Omar Abdel Rahman, the ‘Blind Sheikh,’ Is Dead

Omar Abdel Rahman in 1993 (Reuters photo: Mike Segar)

Omar Abdel Rahman in 1993 (Reuters photo: Mike Segar)

Abdel Rahman, the Blind Sheikh, was responsible for much of the last quarter century of terrorism.

National Review, by Andrew C. McCarthy, February 18, 2017:

Omar Abdel Rahman, the notorious “Blind Sheikh” who died on Friday night while serving his life sentence in federal prison, was never shy about being a terrorist. As he put it:

What kind of name is this? Why are we afraid of it? Why do we fear the word terrorist? If the terrorist is the person who defends his right, so we are terrorists. And if the terrorist is the one who struggles for the sake of God, then we are terrorists. We . . . have been ordered with terrorism because we must prepare what power we can to terrorize the enemy of Allah and your enemy. The Koran says “to strike terror.” Therefore, we don’t fear to be described with “terrorism.” . . . They may say, “He is a terrorist, he uses violence, he uses force.” Let them say that. We are ordered to prepare whatever we can of power to terrorize the enemies of Islam.

Before there was an al-Qaeda or an ISIS, there was the Blind Sheikh, known to his worldwide following as “the emir of jihad.” And he bears much of the responsibility — he would think of it as the credit — for what followed him. Indeed, bin Laden credited Sheikh Abdel Rahman with the fatwa (the sharia-law edict) that approved the 9/11 jihadist attacks in which nearly 3,000 Americans were murdered. Abdel Rahman had indeed issued such a fatwa:

Muslims everywhere to dismember their nation, tear them apart, ruin their economy, provoke their corporations, destroy their embassies, attack their interests, sink their ships, . . . shoot down their planes, [and] kill them on land, at sea, and in the air. Kill them wherever you find them.

Having been the lead prosecutor in the trial at which he was convicted, I find that barely a day goes by that I don’t ruefully think about this. For all the praise we received for a job well done — and I am immensely proud of the work we did — we only managed to imprison him. We did not stop him.

Abdel Rahman was the central character in a memoir I wrote about the case nearly a decade ago, Willful Blindness. The title has become something of catch phrase describing the wayward American approach to counterterrorism. I meant it as something more than that — a contrast: the steely determination that underlay Abdel Rahman’s clarity of purpose that the world be ruled by Islamic law, versus our own conscious avoidance of the sharia-supremacist ideology that drives the jihadist threat, and diffidence about whether our own liberty culture is worth defending.

He was raised in the tiny Nile Delta town of al-Gamalia, where he lost his sight to juvenile diabetes in 1942, at the age of four. The sickly boy was a prodigy, memorizing the Koran at an early age and developing into a renowned scholar of Islamic jurisprudence — the discipline in which he earned a doctorate, with distinction, at storied al-Azhar University, the seat of Sunni Islamic learning since the tenth century. Abdel Rahman was deeply influenced by Ibn Taymiyyah, the 14th-century docent who had come of age in a soul-searching time for Islamic fundamentalism: after invading Mongols routed the Abbasid Caliphate, laying Baghdad to waste. Taymiyyah championed a return to basics: a literalist interpretation of scripture and the notion that the original Islamic communities forged by the prophet Mohammed were the ideal to which all humanity must aspire.

Abdel Rahman was also affected by contemporary followers of Taymiyyah. Interestingly, one was the Shiite jihadist icon, Ayatollah Ruhollah Khomeini. Notwithstanding their theological differences, Abdel Rahman perceived in Khomeini the possibilities of Islamic revolution and the exploitation of what he saw as American weakness — particularly by Hezbollah, Khomeini’s forward jihadist militia that, among other atrocities, killed 241 U.S. Marines in their Beirut barracks in 1983. “If Muslim battalions were to do five or six operations to the Americans in surprise attacks like the one that was done against them in Lebanon,” the Blind Sheikh urged, “the Americans would have exited [the Persian Gulf] and gathered their armies and gone back . . . to their country.” It was a recruitment speech he delivered hundreds of times.

Abdel Rahman also revered Sayyid Qutb, his fellow Egyptian and a Muslim Brotherhood hero long imprisoned and eventually executed by the hated Nasser regime. From the premise of Taymiyyah’s teaching, and building on the foundation laid by Brotherhood founder Hassan al-Bannah, Qutb taught that Islam is “a declaration that sovereignty belongs to God alone”; that the “freedom” God offers is submission to His law, sharia; and that supplanting man’s dominion with Allah’s could never be achieved by “preaching” alone — it would require jihad “to wipe out tyranny” and impose this Orwellian conception of “freedom” on mankind.

Echoing Ibn Taymiyyah, Qutb’s jihad targeted not only declared non-believers but also those rulers who professed to be Muslim but did not adhere to sharia. Qutb also infused his teaching with visceral anti-Semitism, portraying the Jew as the instantiation of all that is anti-Islamic and treacherous. Abdel Rahman drank deeply from this noxious well.

The Blind Sheikh completed his master’s degree in Cairo in 1967, in the aftermath of Qutb’s execution and what Muslims still see as the humiliation of the Six-Day War. By the time he earned his doctorate in 1971, he already had a following of young budding jihadists. By 1973, the firebrand “cleric” (he is better thought of as a sharia jurist) was the emir of a jihadist organization, Gama’at al-Islamia (the Islamic Group). Essentially, it was a spinoff of the Brotherhood, comprised of young Muslims who had been lured into the Brotherhood’s sharia-supremacist ideology but were impatient with the Brotherhood’s methodical pace, which — in their view – too often failed to live up to the militant violence of its rhetoric, and too often played a double game of collusion with the secular regime Muslims were obliged to overthrow.

Abdel Rahman became most notorious for issuing the fatwa relied upon by the jihadists who murdered Egyptian president Anwar al-Sadat at a military parade in 1981 — for the unforgivable offense of making peace with Israel. The Blind Sheikh was acquitted at his Egyptian trial when he defended himself with a stirring recitation of Islamic-law principles, exceedingly effective before a hypocritical authoritarian regime that nominally claims fidelity to sharia but does not actually enforce it. As he argued to the court, Allah’s commands hold that society must be governed by sharia; if it is not, it becomes the individual duty of every Muslim to perform jihad against the regime until it either is overthrown or enforces God’s law. This self-evident truth, he elaborated, required no scholarly fatwa. Thus, Sadat’s slayers were performing a sacred duty, and it was pointless to quibble over whether it had been authorized by him or by any man; it was dictated by the Koran.

It was the same defense the Blind Sheikh would later attempt to posit at his American trial. Suffice it to say that it did not have the same traction with a jury of New Yorkers sitting in a courthouse six blocks from the World Trade Center.

Though acquitted in Egypt, Abdel Rahman delighted in claiming credit for Sadat’s murder. Years later, safely out of Egypt and stoking new recruits, he would reflect that, of the “many jihad operations” carried out by his Islamic Group, the “most famous” one was “killing . . . the atheist, the oppressor and the profligate, . . . Anwar Al-Sadat.” But what about the result, someone asked. Hadn’t getting rid of Sadat only given Muslims Mubarak, who was worse?

Abdel Rahman would hear none of it. God “ordered us to eliminate” Sadat, he insisted, “even if this had to be done by killing him[,]” and even though Mubarak proved to be worse. Mubarak — “the third traitor, backstabber who became the loyal dog to America, . . . and was at the forefront of the treachery caravan to give to Israel and then America everything” — would, the Blind Sheikh assured, be dealt with in “another operation.”

While Abdel Rahman never managed to have Hosni Mubarak killed, he spent many years trying — and we ultimately convicted him on a count of conspiracy to murder the then-president of Egypt (one plan included trying to assassinate him near the U.N. in the early 1990s). Abdel Rahman could not fail to be pleased by Mubarak’s overthrow and replacement, in 2011, by a Muslim Brotherhood government whose platform included demanding that the United States transfer their beloved Blind Sheikh back home — a hope that was dashed when the Brotherhood government was ousted.

By the time he settled in the United States in late 1990, Abdel Rahman was a globally recognized . . . menace. He was deeply involved in recruiting and fundraising for the “Arab-Afghan” contingent that joined the anti-Soviet jihad (and to this day regards its service to Allah as responsible for the demise of the Soviet empire). His network of associates included Gulbuddin Hekmatyar, the Afghan warlord and former prime minister to whom much of the funding of the Arab fighters was channeled; Sudanese leader Hassan al-Turabi; and such founding figures of al-Qaeda as Ayman al-Zawahiri (Abdel Rahman’s Egyptian contemporary and sometime rival, who is now the international terror network’s leader) and Abdullah Azzam, the charismatic Palestinian who, like Abdel Rahman, graduated with a doctorate from al-Azhar and taught for a time in Saudi Arabia — where both Azzam and Abdel Rahman profoundly influenced a young student named Osama bin Laden.

Even before he settled in the New York metropolitan area (thanks to a tragicomedy of errors by American immigration authorities, who failed to notice he was on terrorism watch lists), the Blind Sheikh had an ardent following. His acolytes included Sayyid Nosair, Mohamed Salameh, Mahmud Abuhalima, and Nidal Ayyad — to name just a few. They used mosques and Islamic community centers as hubs for recruitment, fundraising, and paramilitary training — including shooting sessions in Calverton, Long Island, and drills involving explosives and close combat in remote areas of New York, New Jersey, Connecticut, and Pennsylvania. They would report on their activities in overseas phone calls to Abdel Rahman, which were recorded and used to draw young Muslims to the cause.

In 1990, Nosair murdered Rabbi Meir Kahane, the controversial founder of the Jewish Defense League, at a hotel in midtown Manhattan. On February 26, 1993, Salameh, Abuhalima, and Ayyad, along with Ramzi Yousef, carried out the bombing of the World Trade Center — a plot long in the making, much of which was planned during visits to Nosair at Attica state prison in New York.

By then, for well over a year, Abdel Rahman had been urging jihad against the United States from within the United States. America, he declared, was “the head of the snake,” the world’s leading enemy of Islam. A notebook kept by Nosair and recovered after the Kahane murder contained such teachings as this:

Before announcing the establishing of the state of Abraham in our holy land . . . to break and to destroy the morale of the enemies of Allah. (And this is by means of destroying) (exploding) the structure of their civilized pillars. Such as the touristic infrastructure which they are proud of and their high world buildings which they are proud of and their statues which they endear and the buildings in which gather their heads (their leaders).

In the run-up to the bombing, Abdel Rahman was in constant touch with the plotters. Just a few weeks before the explosion that killed six adults (including a pregnant woman) and caused billions of dollars in damage, he spoke at a jihadist conference, thundering that “God has obliged us to perform jihad,” and thus that “the battalions of Islam and its divisions must be in a state of continuous readiness to hit their enemies with strength and power.” Reminding the crowd that “the enemies at the foremost of the work against Islam are America and its allies,” he continued with one of his favorite themes:

If those who have the right [to have something] are terrorists then we are terrorists. And we welcome being terrorists. And we do not deny this charge to ourselves. And the Koran makes it among the means to perform jihad for the sake of Allah, which is to terrorize the enemies of God and our enemies too. . . . Then we must be terrorists and we must terrorize the enemies of Islam and frighten them and disturb them and shake the earth under their feet.

In the summer of 1993, we arrested the Blind Sheikh and eleven of his followers as they conspired to carry out an even more ambitious plot against New York City landmarks: simultaneous bombing of the Lincoln and Holland Tunnels and the U.N. complex. Other potential targets under consideration were American military installations — which Abdel Rahman quite explicitly ordered attacks against — and the FBI’s headquarters in lower Manhattan. In October 1995, after a nine-month trial, they were convicted of conspiring to levy a terrorist war against the United States, including the WTC bombing, as well as the additional bombing plots and plans for various political assassinations. The presiding judge, Michael B. Mukasey — a peerless jurist who later served as U.S. attorney general in the Bush administration — sentenced the Blind Sheikh to life imprisonment.

As I said, we imprisoned him, but we failed to put an end to his reign of terror. Besides the fatwa that paved the way for 9/11, Abdel Rahman issued guidance to his Egyptian terrorist organization to end a truce with the Mubarak government. Lynne Stewart, the radical lawyer who had represented him at the trial, was eventually convicted of material support to terrorism for transmitting his directives from jail.

As I recounted in 2012, when the Egyptian press was reporting that the Obama administration was considering transferring Abdel Rahman back to Egypt:

In 1997, Gama’at al-Islamia threatened to “target . . . all of those Americans who participated in subjecting [Abdel Rahman’s] life to danger” — “every American official, starting with the American president [down] to the despicable jailer.” The organization promised to do “everything in its power” to obtain his release. Six months later, Gama’at jihadists set upon 58 foreign tourists and several police officers at an archeological site in Luxor, Egypt, brutally shooting and slicing them to death. The terrorists left behind leaflets — including in the mutilated torso of one victim — demanding that the Blind Sheikh be freed.

Gama’at subsequently issued a statement warning that its forcible struggle against the Egyptian regime would proceed unless Mubarak met its three demands: the implementation of sharia, the cessation of diplomatic relations with Israel, and “the return of our Sheikh and emir to his land.” In March 2000, terrorists associated with the Abu Sayyaf group kidnapped a number of tourists in the Philippines and threatened to behead them if Abdel Rahman and two other convicted terrorists were not freed. Authorities later recovered two decapitated bodies (four other hostages were never accounted for).

On September 21, 2000, only three weeks before al-Qaeda’s bombing of the U.S.S. Cole [killing 17 members of the U.S. Navy], al-Jazeera televised a “Convention to Support the Honorable Omar Abdel Rahman.” Front and center were Osama bin Laden and Ayman al-Zawahiri (then bin Laden’s deputy, now his successor as emir of al-Qaeda). They warned that unless Sheikh Abdel Rahman was freed, jihadist attacks against the United States would be stepped up. At the same event, Mohammed Abdel Rahman, an al-Qaeda operative who is one of the sheikh’s sons, exhorted the crowd to “avenge your Sheikh” and “go to the spilling of blood.”

Omar Abdel Rahman was physically incapable of doing anything that would be useful to a terrorist organization: He couldn’t build a bomb, hijack a plane, or carry out an assassination. The only thing he could do for a terrorist organization was lead it. His life is a testament to the centrality of sharia-supremacist ideology to modern jihadism and to the broader Islamist movement in which it thrives. His death reminds us why we must fight everything he represented.

— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.

Is the Abedin/Weiner Laptop the Last of It?

Abedin and Clinton at the Democratic presidential debate in Iowa, November 15, 2016. (Reuters photo: Jim Young)

Abedin and Clinton at the Democratic presidential debate in Iowa, November 15, 2016. (Reuters photo: Jim Young)

National Review, by Andrew C. McCarthy, November 3, 2016:

A nagging question has been lost amid the tempest over the FBI’s revival of the Clinton e-mails investigation. As everyone knows, the file has been reopened because of a trove of e-mails found on a laptop shared by top Clinton aide Huma Abedin and her estranged husband, Anthony Weiner. What we don’t know, however, is: Why has the FBI only recently learned about a computer used by Ms. Abedin?

Remember, Abedin is said to have cooperated in the Clinton e-mails investigation and sat for a lengthy interview with FBI agents. The agents asked her about her e-mail practices. Assuming they asked basic questions, as agents are trained to do, they would have methodically itemized the computers and e-mail accounts she used. Yet, the Abedin/Weiner computer, which is said to contain 650,000 e-mails (an unknown number of which are relevant to the Clinton investigation), was not acquired by the bureau in connection with the Clinton investigation. It was seized in an unrelated investigation of Weiner, reportedly involving his alleged “sexting” with a teenage minor.

Why did the FBI agents on the Clinton e-mails investigation fail to acquire and search this computer months earlier? The question becomes more pressing in light of the Washington Examiner’s report that the FBI failed to ask not only Abedin but other Clinton aides to surrender their computers, smartphones, or other communications devices.

Now, there could be a good explanation, at least in connection with some Clinton aides. If, after a reasonably thorough investigation, the FBI had found no indication that potentially classified information was transmitted or stored on a particular device, there’d be no need to seize it. Let’s say X is a Clinton staffer. Let’s also say the FBI finds that X appears only to have used her government e-mail account for official business; that X did not have an account on the clintonemail.com domain; that whenever Clinton or other government officials e-mailed X, they addressed the e-mail to X’s state.gov account; and that X was cooperative when interviewed and convincingly said she never used her private e-mail for government business. Under those circumstances, it would be reasonable not to ask for the surrender of X’s private cellphone or computers.

Let’s now consider, though, the case we actually have. Several Clinton staffers appear to have sent and received e-mails about government business on private devices and private e-mail accounts. A number of those e-mail exchanges involved classified intelligence. It seems like a no-brainer to me that these devices should have been seized and searched.

Why was this not done? There are at least four reasons, none of them good.

First, the Obama Justice Department under Loretta Lynch denied the FBI’s Clinton e-mails investigators access to the grand jury. The grand jury’s power to compel production of evidence and testimony is the source of much of the FBI’s power to convince people to be cooperative. Defanged by DOJ, investigators were forced to negotiate and cajole when they should have been able to demand. That makes it much harder to investigate. It undoubtedly drummed into the agents the message that they should not press too many requests for the voluntary surrender of items the owners would not want to part with — and no one wants to give up personal laptops and smartphones. If a request made by an agent was denied, the agent could have no confidence that the Justice Department would back him.

Second, the Good Ship Clinton overflows with lawyers. It is also very close to the Obama Justice Department (many Obama-administration lawyers were once Clinton-administration lawyers). Lawyers know that the FBI worries about being accused of violating attorney-client privileged communications. They also know that the Obama Justice Department is indulgent of extravagant claims about what the attorney-client privilege shields from disclosure. Lawyers’ devices are thus a big hassle for agents, and they no doubt shy away from asking for them unless it’s patently necessary (as it was, for example, with the laptops of Cheryl Mills and Heather Samuelson, since those computers were used to store and vet all of Hillary Clinton’s e-mails). And when you start shying away from seeking access to the computers of important subjects (such as Mills) because you don’t want to deal with lawyer complications, it becomes much easier to rationalize not seeking the devices of other subjects. Once it is established by habit that obtaining computers is not a priority, you stop asking.

Third, it’s never good to compartmentalize an investigation. In this case, the classified e-mails investigation has apparently been severed from the Clinton Foundation investigation, as if they were completely separate and unrelated. When obviously related matters are joined together, there is a broader basis to demonstrate probable cause that evidentiary items, such as computers, are relevant and should be seized. But that advantage is lost when what should be one investigation is divided into two or more. If you are an agent investigating the classified e-mails case, you are not going to make efforts to acquire a computer that might be very relevant to the Clinton Foundation investigation but only marginally tied to the classified-information probe. When an investigation is artificially carved up, agents do not see the big picture: Things that ought to be acquired end up falling through the cracks.

Fourth and finally, there is the enervating effect of working on an investigation that agents strongly suspect is not going to result in charges. Even as the agents on the classified-information investigation gradually assembled compelling evidence, they had to know that the president and the Justice Department were very unenthusiastic about the case. President Obama talked the investigation down, going out of his way to say Mrs. Clinton would never do anything to harm national security. Justice Department officials leaked the same message to the press.

Put yourself in the shoes of FBI agents who witness things they’ve never seen before: subjects of the investigation given immunity from prosecution and then allowed to appear as lawyers for other subjects; Justice Department lawyers more accommodating of defense lawyers than of FBI agents; witnesses who lie to the FBI given immunity rather than being arrested and squeezed for cooperation. The agents see the handwriting on the wall that their hard work is going to come to nothing. An agent no doubt asks himself: “Why should I push to acquire this computer? If DOJ wanted me to have it, they’d let me subpoena it; if they wanted to make the case, some of these suspects would already be in cuffs.”

This is an understandable attitude, but it’s not an acceptable one. The FBI is not just the nation’s premier investigative agency; it is also our domestic-security service. Wholly apart from whether a computer contains evidence that can be used to prosecute a case, that computer has become a threat to national security if — as a private device that is not hardened against espionage and operates on networks that are not hardened against espionage — it is likely to contain classified information. Even if no one is indicted, the hacking or dissemination of the intelligence on the computer could damage national security.

The reports of the FBI’s investigation that have been made public indicate that there could be dozens of computers and other communications devices which may be storing classified information, but which the FBI has neither seized nor made plans to try to obtain. If that is true, it is inexplicable. That the Justice Department and senior FBI officials have adopted a theory that undermines prosecution of crimes involving mishandling of intelligence is beside the point.

It also raises another question: Is the Abedin/Weiner laptop the last one? Or will late discoveries continue to rock Camp Clinton and roil our politics?

Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.

Clinton’s State Department: A RICO Enterprise

Clinton is sworn in as secretary of state, February 2, 2009. (Reuters photo: Jonathan Ernst)

Clinton is sworn in as secretary of state, February 2, 2009. (Reuters photo: Jonathan Ernst)

National Review, by Andrew C. McCarthy, October 29, 2016:

Felony mishandling of classified information, including our nation’s most closely guarded intelligence secrets; the misappropriation and destruction of tens of thousands of government records — these are serious criminal offenses. To this point, the Justice Department and FBI have found creative ways not to charge Hillary Clinton for them. Whether this will remain the case has yet to be seen. As we go to press, the stunning news has broken that the FBI’s investigation is being reopened. It appears, based on early reports, that in the course of examining communications devices in a separate “sexting” investigation of disgraced former congressman Anthony Weiner, the bureau stumbled on relevant e-mails — no doubt connected to Huma Abedin, Mr. Weiner’s wife and, more significantly, Mrs. Clinton’s closest confidant. According to the New York Times, the FBI has seized at least one electronic device belonging to Ms. Abedin as well. New e-mails, never before reviewed by the FBI, have been recovered.

The news is still emerging, and there will be many questions — particularly if it turns out that the bureau failed to obtain Ms. Abedin’s communications devices earlier in the investigation, a seemingly obvious step. As we await answers, we can only observe that, whatever the FBI has found, it was significant enough for director James Comey to sense the need to notify Congress, despite knowing what a bombshell this would be just days before the presidential election.

One thing, however, is already clear. Whatever the relevance of the new e-mails to the probe of Clinton’s classified-information transgressions and attempt to destroy thousands of emails, these offenses may pale in comparison with Hillary Clinton’s most audacious violations of law: Crimes that should still be under investigation; crimes that will, in fitting Watergate parlance, be a cancer on the presidency if she manages to win on November 8.

Mrs. Clinton appears to have converted the office of secretary of state into a racketeering enterprise. This would be a violation of the RICO law — the Racketeer Influenced and Corrupt Organizations Act of 1971 (codified in the U.S. penal code at sections 1961 et seq.).

Hillary and her husband, former president Bill Clinton, operated the Clinton Foundation. Ostensibly a charity, the foundation was a de facto fraud scheme to monetize Hillary’s power as secretary of state (among other aspects of the Clintons’ political influence). The scheme involved (a) the exchange of political favors, access, and influence for millions of dollars in donations; (b) the circumvention of campaign-finance laws that prohibit political donations by foreign sources; (c) a vehicle for Mrs. Clinton to shield her State Department e-mail communications from public and congressional scrutiny while she and her husband exploited the fundraising potential of her position; and (d) a means for Clinton insiders to receive private-sector compensation and explore lucrative employment opportunities while drawing taxpayer-funded government salaries.

While the foundation did perform some charitable work, this camouflaged the fact that contributions were substantially diverted to pay lavish salaries and underwrite luxury travel for Clinton insiders. Contributions skyrocketed to $126 million in 2009, the year Mrs. Clinton arrived at Foggy Bottom. Breathtaking sums were “donated” by high-rollers and foreign governments that had crucial business before the State Department. Along with those staggering donations came a spike in speaking opportunities and fees for Bill Clinton. Of course, disproportionate payments and gifts to a spouse are common ways of bribing public officials — which is why, for example, high-ranking government officeholders must reveal their spouses’ income and other asset information on their financial-disclosure forms.

While there are other egregious transactions, the most notorious corruption episode of Secretary Clinton’s tenure involves the State Department’s approval of a deal that surrendered fully one-fifth of the United States’ uranium-mining capacity to Vladimir Putin’s anti-American thugocracy in Russia.

The story, significant background of which predates Mrs. Clinton’s tenure at the State Department, has been recounted in ground-breaking reporting by the Hoover Institution’s Peter Schweizer (in his remarkable book Clinton Cash: The Untold Story of How and Why Foreign Governments and Businesses Helped Make Bill and Hillary Rich) and the New York Times. In a nutshell, in 2005, under the guise of addressing the incidence of HIV/AIDS in Kazakhstan (where the disease is nearly nonexistent), Bill Clinton helped his Canadian billionaire pal Frank Giustra to convince the ruling despot, Nursultan Nazarbayev (an infamous torturer and human-rights violator), to grant coveted uranium-mining rights to Giustra’s company, Ur-Asia Energy (notwithstanding that it had no background in the highly competitive uranium business). Uranium is a key component of nuclear power, from which the United States derives 20 percent of its total electrical power.

In the months that followed, Giustra gave an astonishing $31.3 million to the Clinton Foundation and pledged $100 million more. With the Kazakh rights secured, Ur-Asia was able to expand its holdings and attract new investors, like Ian Telfer, who also donated $2.35 million to the Clinton Foundation. Ur-Asia merged with Uranium One, a South African company, in a $3.5 billion deal — with Telfer becoming Uranium One’s chairman. The new company proceeded to buy up major uranium assets in the United States.

Meanwhile, as tends to happen in dictatorships, Nazarbayev (the Kazakh dictator) turned on the head of his state-controlled uranium agency (Kazatomprom), who was arrested for selling valuable mining rights to foreign entities like Ur-Asia/Uranium One. This was likely done at the urging of Putin, the neighborhood bully whose state-controlled atomic-energy company (Rosatom) was hoping to grab the Kazakh mines — whether by taking them outright or by taking over Uranium One.

The arrest, which happened a few months after Obama took office, sent Uranium One stock into free fall, as investors fretted that the Kazakh mining rights would be lost. Uranium One turned to Secretary Clinton’s State Department for help. As State Department cables disclosed by WikiLeaks show, Uranium One officials wanted more than a U.S. statement to the media; they pressed for written confirmation that their mining licenses were valid. Secretary Clinton’s State Department leapt into action: An energy officer from the U.S. embassy immediately held meetings with the Kazakh regime. A few days later, it was announced that Russia’s Rosatom had purchased 17 percent of Uranium One. Problem solved.

Except it became a bigger problem when the Russian company sought to acquire a controlling interest in Uranium One. That would mean a takeover not only of the Kazakh mines but of the U.S. uranium assets as well. Such a foreign grab requires approval by the Committee on Foreign Investment in the United States, a powerful government tribunal that the secretary of state sits on and heavily influences. Though she had historically postured as a hawk against foreign acquisitions of American assets with critical national-security implications, Secretary Clinton approved the Russian takeover of Uranium One. During and right after the big-bucks Russian acquisition, Telfer contributed $1.35 million to the Clinton Foundation. Other people with ties to Uranium One appear to have ponied up as much as $5.6 million in donations.

In 2009, the incoming Obama administration had been deeply concerned about the potential for corruption were Hillary to run the State Department while Bill and their family foundation were hauling in huge payments from foreign governments, businesses, and entrepreneurs. For precisely this reason, the White House required Mrs. Clinton to agree in writing that the Clinton Foundation would annually disclose its major donors and seek pre-approval from the White House before the foundation accepted foreign contributions. This agreement was repeated flouted — for example, by concealing the contributions from Telfer. Indeed, the foundation was recently forced to refile its tax returns for the years that Secretary Clinton ran the State Department after media reports that it failed to disclose foreign donations — approximately $20 million worth.

Under RICO, an “enterprise” can be any association of people, informal or formal, illegitimate or legitimate — it could be a Mafia family, an ostensibly charitable foundation, or a department of government. It is a racketeering enterprise if its affairs are conducted through “a pattern of racketeering activity.” A “pattern” means merely two or more violations of federal or state law; these violations constitute “racketeering activity” if they are included among the extensive list of felonies laid out in the statute.

Significantly for present purposes, the listed felonies include bribery, fraud, and obstruction of justice. Fraud encompasses both schemes to raise money on misleading pretexts (e.g., a charitable foundation that camouflages illegal political payoffs) and schemes to deprive Americans of their right to the honest services of a public official (e.g., quid pro quo arrangements in which official acts are performed in exchange for money). Both fraud and obstruction can be proved by false statements — whether they are public proclamations (e.g., “I turned over all work-related e-mails to the State Department”) or lies to government officials (e.g., concealing “charitable” donations from foreign sources after promising to disclose them, or claiming not to know that the “(C)” symbol in a government document means it is classified at the confidential level).

The WikiLeaks disclosures of e-mails hacked from Clinton presidential-campaign chairman John Podesta provide mounting confirmation that the Clinton Foundation was orchestrated for the purpose of enriching the Clintons personally and leveraging then-Secretary Clinton’s power to do it. Hillary and her underlings pulled this off by making access to her contingent on Clinton Foundation ties; by having top staff service Clinton Foundation donors and work on Clinton Foundation business; by systematically conducting her e-mail communications outside the government server system; by making false statements to the public, the White House, Congress, the courts, and the FBI; and by destroying thousands of e-mails — despite congressional inquiries and Freedom of Information Act demands — in order to cover up (among other things) the shocking interplay between the State Department and the Clinton Foundation.

Under federal law, that can amount to running an enterprise by a pattern of fraud, bribery, and obstruction. If so, it is a major crime. Like the major crimes involving the mishandling of classified information and destruction of government files, it cries out for a thorough and credible criminal investigation. More important, wholly apart from whether there is sufficient evidence for criminal convictions, there is overwhelming evidence of a major breach of trust that renders Mrs. Clinton unfit for any public office, let along the nation’s highest public office.

— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.

Why Weren’t Clinton’s Lawyers Prosecuted for Failing to Report Mishandling of Classified Information?

download-17National Review, by Andrew C. McCarthy October 25, 2016:

I have a column just up on the website, focusing on an issue that’s been ignored: the classified-information law implications of Hillary Clinton’s transmission of classified information to her lawyers.

There has been a good deal of commentary about the fact that Cheryl Mills and Heather Samuelson, former State Department officials under Secretary Clinton, should not have been permitted to represent Clinton as lawyers in the e-mails investigation: They were subjects of the same investigation; as former government officials, they were disqualified from advocating on Clinton’s behalf; they were barred from representing Clinton by ethical rules applicable to lawyers; and the arrangement was illegal under federal criminal law.

But let’s put all that aside for the moment. There is no doubt that Clinton willfully provided Mills and Samuelson with her e-mails, at least 110 of which (the FBI tells us) were classified at the time they were sent or received. Those include e-mails classified as top-secret and designated as “special access program.” Even if Mills and Samuelson had security clearances, the transmission of such highly classified information to them would have been illegal unless they were read into these limited-access programs and had a government-certified need to know the information.

The same is true of Clinton’s principal criminal defense lawyer, David Kendall. He reportedly has a security clearance, but that is not sufficient to make one an authorized recipient of this kind of intelligence.

On this subject, my column raises a little-noticed provision of federal law that I want to flesh out a bit more.

It is not only a criminal offense for government officials to mishandle classified information willfully or with gross negligence. It is also a felony for a persons trusted with security clearances to fail to report to the government that they have learned classified information has been removed from its authorized, secure location and transmitted to an unauthorized person or stored in an unauthorized setting.

When Clinton, Mills, Samuelson, and Kendall reviewed Clinton’s emails – beginning in mid-2014, at the State Department’s request – did they immediately report to the government that classified information had been removed from its proper government repository and stored on non-secure, non-government servers, laptops and thumb-drives?

I’m betting they didn’t. Indulge me for a moment as we consider how a failure to do so would be prosecuted.

There is no doubt that Mills and Samuelson had Clinton’s classified e-mails on their laptops. As FBI director James Comey conceded in his congressional testimony, these lawyers had copies of what was on Mrs. Clinton’s home-brew server so that, at Clinton’s direction, they could sort the supposedly private e-mails from those that were State Department-related.

Again, let’s assume they failed to report to the government that they’d learned during this review that highly classified information had been improperly removed and was being improperly stored. That’s a criminal offense, so how would the Justice Department and the FBI ordinarily go about proving it? Well, it would be straightforward as long as the government had obtained the laptop computers on which the classified information was improperly stored.

The Justice Department could easily have obtained these computers by either having the FBI seize them pursuant to search warrant, or issuing subpoenas that compelled the lawyers to surrender their laptops to the grand jury.

But what did the Obama Justice Department do? It refused to open a grand jury investigation so subpoenas could be issued; and it treated Mills and Samuelson as friendly witnesses – even lawyers – in the case, not as suspects from whom investigators typically seize evidence by warrant.

The Justice Department gratuitously gave the two lawyers immunity from prosecution in order to cajole them into turning over their laptops, promising that Mills andSamuelson would not be indicted based on any evidence found on those laptop computers. And Justice promised these computers – the incriminating evidence – would be destroyed after the FBI conducted a highly limited examination.

In a normal investigation, the government does not grant immunity when it has a solid, prosecutable criminal case against a suspect. It indicts the suspect and then, from a position of strength, negotiates a guilty plea agreement in which the suspect promises to cooperate in the investigation of other suspects in return for sentencing leniency.

But for some reason – can’t imagine what it might be – that didn’t happen in the Hillary Clinton e-mails investigation.

Clinton’s Pretense That She Didn’t Understand ‘C’ Was for ‘Classified’

hillary-clinton-secretar-state-emails-classified-information-fbi-justice-departmentNational Review, by Andrew C. McCarthy, October 22, 2016:

So now Hillary finally knows what the “(C)” stands for in government documents: It’s Cartwright . . . as in four-star Marine General James E. Cartwright, the retired 67-year-old former vice chairman of the Joint Chiefs of Staff, the expendable federal official against whom laws protecting classified information actually get enforced.

(C), see? Oh wait — sorry. I don’t mean to confuse Mrs. Clinton by starting this second paragraph with “(C)”. After all, as she diva-’splained to the FBI, she could only “speculate” that “(C)” must have something to do with organizing paragraphs “in alphabetical order.” Speculation was necessary, she said, apparently with a straight face, because she didn’t really know what “(C)” meant.

The question arose because the “(C)” designation — applicable to classified information at the confidential level — turned up in at least one of Clinton’s personal e-mails. Those would be the e-mails that, she repeatedly insisted, never, ever contained classified information. Or at least, that’s what she insisted until government agencies confessed that hundreds of the e-mails do contain classified information. Then Clinton’s “never, ever” tale morphed into the more narrowly tailored lie that there were no e-mails “marked classified.” Alas, that claim could not withstand examination of the e-mails, during which the “(C)” markings were found . . . whereupon the explanation underwent more, shall we say, refining. Thus the final, astonishing claim that she didn’t know what the markings meant, along with the laugh-out-loud whopper that maybe it was all about alphabetical order.

Yeah, that’s the ticket!

In case you’re keeping score: When a person being prosecuted for a crime changes her story multiple times, as if she were playing Twister (kids, ask your parents), the prosecutor gets to prove each of the evolving lies at the trial. As you’d imagine, juries grasp that the truth doesn’t need an editor. That’s why people whose explanations can’t keep up with the evidence are pretty much a lock to get convicted.

But that’s when it’s “(C)” as in Cartwright, not Clinton.

General Cartwright pled guilty this week to making false statements to FBI agents who were investigating his mishandling of classified information. The general admits to falsely concealing his communications with two journalists. They involved “Stuxnet,” a covert American–Israeli operation to infect the computer systems that controlled Iran’s main nuclear-enrichment facility. The information was top secret, regarding a crucial program. Its exposure caused diplomatic problems and threatens our spy agencies’ relationships with foreign intelligence services, which are based on the ability to keep secrets secret.

Still, compared with Clinton, Cartwright is a piker. As the Washington Post’s Josh Rogin reports, Cartwright appears to have been a “confirming” source. That is, reporters from the New York Times and of Newsweek already had the Stuxnet intelligence (from some other leaker whom the administration has not prosecuted). Cartwright merely acknowledged the information’s accuracy — and, he says, only after it had appeared in published news reports. His claimed purpose was to prevent additional intelligence from being published to the detriment of our national security. This does not excuse his conduct, but it may go a long way toward explaining why the Justice Department charged only a felony false-statement count, not a classified-information offense.

Clinton, by contrast, willfully set up a homebrew e-mail system. Given that the secretary of state’s duties preponderantly involve intelligence matters, this made it inevitable that classified information would unlawfully be transmitted and stored on non-secure servers (i.e., outside the multi-layered protection of the government’s classified communications system). Thus did the FBI find, for example, that of the 110 e-mails on Clinton’s non-secure system that were — contrary to her claims — classified at the time she sent or received them, eight involved top-secret information.

What does “top secret” mean? Under the executive order signed in 1995 by Mrs. Clinton’s husband, President Bill Clinton, it is information the mishandling of which “could be expected to cause exceptionally grave damage to the national security.” With such an enormous level of threat, extraordinary restrictions on access are imposed to limit the possibility of exposure. That’s why the government generally comes down like a ton of bricks on offenders, or at least offenders not named Clinton.

Even these extraordinary measures, however, are deemed insufficient when the information is designated as “SAP” (“special access program”) — as seven of Mrs. Clinton’s were. Because mishandling top-secret SAP programs could expose either intelligence-gathering efforts that are critical to protecting American lives or intelligence sources who gravely imperil themselves in order to acquire life-saving intelligence for the United States, access to such information is on an even more extremely limited “need to know” basis. Yet, Clinton made them vulnerable to everyone.

Fully 36 of Clinton’s e-mails fell into the “secret”-information category. That designation applies when information “could be expected to cause serious damage to national security” if transmitted or stored in an unauthorized manner. “Serious” is not as weighty as “exceptionally grave,” but it is, well, serious. That’s why people usually get prosecuted for compromising it.

Unlike Cartwright, Clinton did not just communicate with a couple of reporters who already knew the information in question. She made previously concealed intelligence massively vulnerable to capture by foreign intelligence agencies and hackers. On this point, the FBI’s rationalization that it found no evidence of capture is meaningless. As the FBI director conceded, competent cyber-thieves do not leave traces of their intrusions.

That brings us back to “(C),” the designation that applied to at least seven of Clinton’s e-mails at the time she sent or received them, and that now covers thousands more because government intelligence agencies adjudged them too sensitive to disclose publicly. Again, “(C)” does not really stand for “Cartwright” or indicate alphabetical ordering. It is, instead, the designation for “confidential” information that, if mishandled, could “cause damage to the national security.” This means its mishandling is a significant offense, even if the damage is not likely to be “exceptionally grave” or “serious.” That’s why its compromise often results in prosecution, or at least severe sanctions such as termination of employment or loss of security clearance.

In light of General Cartwright’s prosecution for lying about his mishandling of classified information, it is worth revisiting Mrs. Clinton’s representation to the FBI that she did not know what “(C)” meant.

For four years, Clinton was secretary of state, a job in which classified information is stock-in-trade. On starting her tenure, Clinton signed a document acknowledging that she had “received a security indoctrination concerning the nature and protection of classified information.” In the last paragraph, right over her signature, Clinton acknowledges that she has been provided with the aforementioned executive order signed by her husband in 1995 — the one that explains, in painstaking detail, what classified information at the confidential level is.

Naturally, when later asked about it by the FBI, Clinton denied any recollection of this security indoctrination. Yet in her memoir, Hard Choices, Clinton vividly recounts receiving thorough training to guard against the omnipresent danger of espionage. Indeed, she recalled that, when she traveled, she and her staff would leave “BlackBerrys, laptops — anything that communicated with the outside world — on the plane, with their batteries removed to prevent foreign services from compromising them.” Further, based on the training she’d gotten, she took to reading intelligence information

inside an opaque tent in a hotel room. In less well-equipped settings we were told to improvise by reading sensitive material with a blanket over our head.

These mountains of documents she scrutinized involved such matters as the Snowden leaks, the NSA program, the Libyan civil war, Mubarak’s fall and the Muslim Brotherhood’s rise, the Saudi role in 9/11, the Iraqi nuclear and missile programs, the Benghazi siege, the arming of “rebels” in Libya and Syria, the deterioration of Libya, Iraq, and Afghanistan, and on, and on. And that’s not the half of it. Before heading the State Department, she spent eight years in the U.S. Senate, most of that time as a member of the Armed Services Committee. It was wartime, and the major national controversies centered on classified information. She therefore had to pore over intelligence that, for example, supported the Iraq invasion, was derived from interrogations, measured the success of the “surge,” and so forth.

If there is one thing Clinton has emphasized in her presidential campaign, it is her “readiness.” Whether she was on Capitol Hill or at Foggy Bottom, she wants you to know, she was never the phone-it-in type. She did all her homework, and then some.

Well, in those classified documents she studied lo those dozen years, the “(C)” designation is ubiquitous. It often appears numerous times in a single document — even on a single page. Yet, despite spending a decade-plus as a daily, top-level consumer of classified information, Clinton looked a room full of FBI agents and federal prosecutors in the eye and told them she didn’t know what the “(C)” designation meant.

Mrs. Clinton has told many preposterous lies, but that has to be the most outrageous of the lot.

Unlike Clinton, Cartwright was not a deft political climber. He maneuvered himself into President Obama’s good graces by siding with the White House on military planning for Afghanistan, in the process double-crossing his former patrons, including former Defense Secretary Robert Gates. As these things tend to go in Gomorrah-by-the-Potomac, Cartwright’s detractors engineered a smear campaign against him — rumors of an alleged affair — that led Obama to renege on a promise to elevate him to Joint Chiefs chairman. So by the time he got jammed up on the Stuxnet leak, he was alone, without allies to bail him out.

When you’re expendable, it’s amazing how zealous law enforcement can be. Remember Clinton’s case, in which the Justice Department refused to open a grand-jury investigation or issue subpoenas to compel production of evidence? Remember how Justice gave immunity to any Clinton ally who wandered near jeopardy? With that in mind, get a load of the self-congratulatory press release Justice issued after Cartwright pled guilty:

We conducted a thorough and independent investigation included collecting tens of thousands of documents through subpoenas, search warrants and document requests, and interviewing scores of current and former government employees.

As these columns have observed, the Justice Department and FBI conduct themselves very differently when they are trying to make a case rather than not make a case.

“No, no, no,” they counter, “we treat everyone equally.” In fact, the FBI makes a cameo appearance in the Cartwright press release to state a solemn vow (my italics):

The FBI will continue to take all necessary and appropriate steps to thoroughly investigate individuals, no matter their position, who undermine the integrity of our justice system by lying to federal investigators.

Really? No tolerance for lying? Well then:

Hillary Clinton said she did not know what “(C)” meant.

Hillary Clinton told the FBI she could not recall any training regarding how classified information was to be handled, and yet she wrote extensively about it in her memoir, and — as a condition of getting access to such information — she signed a government declaration attesting that she had gotten precisely such training.

And speaking, as the FBI did, of “the integrity of our justice system”: Hillary Clinton swore in an affidavit, filed in federal Freedom of Information Act litigation, that she had directed that “all my e-mails . . . that were or potentially were federal records” — meaning: anything related to State Department business — “be provided to the Department of State, and on information and belief, this has been done.” This affidavit was filed in August 2015: seven months after her homebrew server system became a public controversy — seven months to review the facts before making these sworn representations to a federal court. Contrary to what she stated, the FBI found that thousands of Clinton’s work related e-mails were not provided to the State Department, and at least three of these withheld e-mails contained classified information.

Moreover, in sworn testimony before the House Benghazi Committee, Clinton not only repeated the false claim that she had provided the State Department with “all of my work-related emails.” She further represented to the Committee that, in segregating what was work-related from what was purportedly private, her lawyers “went through every single email.” Plainly, this is not true.

This week, after General Cartwright’s guilty plea, the Justice Department and the FBI thumped their chests and told us that if any government official, no matter how powerful, mishandles classified information and then lies about it, that official will be prosecuted — at least for the false statements.

Well . . . how about it?

— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.

Also see:

Fact-Checking: Hillary’s’The FBI Has Exonerated Me’ Claim

clinton-email-photo_wide-9fd68d210255d74891d319485750b4b54178a9f9-s900-c85PJ Media, by Andrew C. McCarthy, Sept. 26, 2016:

It’s amusing to listen to flacks for Hillary Clinton, a pathological liar, plead with Lester Holt that he must play activist debate moderator, ready to pounce on Donald Trump’s misstatements. The Clinton campaign, when not reviewing immunity agreements, has put out a “Seven Deadly Lies” script in hopes of enticing Mr. Holt to go all Candy Crowley this evening.

Personally, I’d far prefer no moderator to an activist one. Correcting the adversary’s misstatements and turning them to one’s advantage is the debater’s skill – you’re not supposed to need the moderator’s help, you’re supposed to show us you can handle it on your own.

When I was a prosecutor, it was par for the course for defense lawyers to misstate the record in closing arguments to the jury. To leap out of one’s chair and scream, “objection” when this happened was both unsatisfying and risky. Usually, the most you’d get would be a tepid admonition from the judge that “the jury’s recollection of the evidence” – not the lawyers’ – is what matters. But if the judge did try to correct the record, there was always the danger that the judge would either get it wrong (in which case the prosecutor is in the awkward position of having to correct the judge and thus make the defense lawyer look good), or appear to be bullying the defense lawyer – which could engender the jury’s sympathy.

I always preferred to let the lawyers say what they wanted to say. I knew I’d get my turn to rebut. In so doing, I’d not only be able to show the jury that the defense lawyers had made misleading arguments; it would also be the perfect opportunity to argue that people only try to spin you when they know the truth destroys them – which became the launch point for repeating my three or four best facts. That is, the adversary’s falsehoods didn’t hurt me; they were a chance for me to make them look bad while reinforcing my own case.

In any event, I don’t know how interested people are in Mrs. Clinton’s favorite “deadly lie,” the fact that Trump has been disingenuous in claiming he opposed the U.S. invasion of Iraq. A number of us pointed this out during the GOP primary campaign (see, e.g., here), to no effect. Moreover, Clinton voted for the Iraq war and then became part of the withering Democratic campaign to undermine it. To me, that seems a lot more consequential than Trump’s comparatively uninformed and irrelevant meanderings on the subject. (By “comparatively uninformed and irrelevant,” I mean that Clinton, by comparison, (a) was a member of the Senate serving on the Armed Services Committee, who was thus keenly aware of the alarming intelligence regarding Saddam Hussein; and (b) famously accused General David Petraeus and Ambassador Ryan Crocker of lying about progress in Iraq after the surge.) It seems to me that Clinton’s harping about Trump’s stance on Iraq only calls attention to her own wavering – which even many Democrats have rebuked.

One lie I would like to see fact-checked, though, is Clinton’s repeated one – which she’s certain to rehash this evening, namely: The FBI’s year-long investigation “exonerated” her of wrongdoing in the email scandal.

In point of fact, the FBI merely drew the conclusion that Clinton should not becharged with a crime. Even if we assume for argument’s sake that this was a valid conclusion (in fact, it is hugely suspect), finding that someone should not be indicted is far from exoneration.

In Mrs. Clinton’s case, FBI Director James Comey expressly found that Mrs. Clinton and her underlings “were extremely careless in their handling of very sensitive, highly classified information.” Comey also took pains to point out that, under Mrs. Clinton’s leadership, “the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government.”

Finally, Comey observed that, by recommending against the indictment of Mrs. Clinton, he did not mean:

to suggest that in similar circumstances, a person who engaged in this activity [i.e., being “extremely careless” with “very sensitive, highly classified information”] would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions.

“Security and administrative sanctions” in this context often means, at a minimum, the loss of one’s security clearance and, very likely, the loss of one’s job. A conclusion that one’s conduct would, under ordinary circumstances, render one unable to review classified information or work in a high-level government position is not exactly an “exoneration.”

Hillary Clinton’s inevitable “exoneration” claim should be fact-checked. It will be good for Donald Trump if he is up to the task, rather than waiting on help from Lester Holt.

Obama’s Conflict Tanked the Clinton E-mail Investigation — As Predicted

pic_giant_096416_obama-hillary

Hillary couldn’t be proven guilty without proving the president guilty as well.

National Review, by Andrew C. McCarthy, Sept. 26, 2016:

‘How is this not classified?”

So exclaimed Hillary Clinton’s close aide and confidante, Huma Abedin. The FBI had just shown her an old e-mail exchange, over Clinton’s private account, between the then-secretary of state and a second person, whose name Abedin did not recognize. The FBI then did what the FBI is never supposed to do: The agents informed their interviewee (Abedin) of the identity of the second person. It was the president of the United States, Barack Obama, using a pseudonym to conduct communications over a non-secure e-mail system — something anyone with a high-level security clearance, such as Huma Abedin, would instantly realize was a major breach.

Abedin was sufficiently stunned that, for just a moment, the bottomless capacity of Clinton insiders to keep cool in a scandal was overcome. “How is this not classified?”

She recovered quickly enough, though. The FBI records that the next thing Abedin did, after “express[ing] her amazement at the president’s use of a pseudonym,” was to “ask if she could have a copy of the email.”

Abedin knew an insurance policy when she saw one. If Obama himself  had been e-mailing over a non-government, non-secure system, then everyone else who had been doing it had a get-out-of-jail-free card.

Thanks to Friday’s FBI document dump — 189 more pages of reports from the Bureau’s year-long foray (“investigation” would not be the right word) into the Clinton e-mail scandal — we now know for certain what I predicted some eight months ago here at NRO: Any possibility of prosecuting Hillary Clinton was tanked by President Obama’s conflict of interest.

As I explained in February, when it emerged that the White House was refusing to disclose at least 22 communications Obama had exchanged with then-secretary Clinton over the latter’s private e-mail account, we knew that Obama had knowingly engaged in the same misconduct that was the focus of the Clinton probe: the reckless mishandling of classified information.

To be sure, he did so on a smaller scale. Clinton’s recklessness was systematic: She intentionally set up a non-secure, non-government communications framework, making it inevitable that classified information would be mishandled, and that federal record-keeping laws would be flouted. Obama’s recklessness, at least as far as we know, was confined to communications with Clinton — although the revelation that the man presiding over the “most transparent administration in history” set up a pseudonym to conceal his communications obviously suggests that his recklessness may have been more widespread.

Still, the difference in scale is not a difference in kind. In terms of the federal laws that criminalize mishandling of classified information, Obama not only engaged in the same type of misconduct Clinton did; he engaged in it with Clinton. It would not have been possible for the Justice Department to prosecute Clinton for her offense without its becoming painfully apparent that 1) Obama, too, had done everything necessary to commit a violation of federal law, and 2) the communications between Obama and Clinton were highly relevant evidence.

Indeed, imagine what would have happened had Clinton been indicted. The White House would have attempted to maintain the secrecy of the Obama-Clinton e-mails (under Obama’s invocation of a bogus “presidential communications” privilege), but Clinton’s defense lawyers would have demanded the disclosure of the e-mails in order to show that Obama had engaged in the same misconduct, yet only she, not he, was being prosecuted. And as most experienced criminal-law lawyers understand (especially if they’ve read a little Supreme Court case known as United States v. Nixon), it is an argument that Clinton’s lawyers would have won.

In fact, in any other case — i.e., in a case that involved any other unindicted co-conspirator — it would be the Justice Department itself introducing the Obama-Clinton e-mails into evidence.

As noted above, the FBI told Huma Abedin that the name she did not recognize in the e-mail with Clinton was an Obama alias. For the agents to do this ran afoul of investigative protocols. The point of an FBI interview is for the interviewee to provide information to the investigators, not the other way around. If agents give information to potential witnesses, the government gets accused of trumping up the case.

But of course, that’s only a problem if there is actually going to be a case.

In this instance, it was never going to happen. The president’s involvement guaranteed that . . . so why worry about letting Abedin in on the president’s involvement?

Abedin was startled by this revelation. No wonder: People in her lofty position know that direct presidential communications with high-ranking officials who have national-security and foreign-policy responsibilities are presumptively classified.

To convey this, and thus convey the legal significance of Obama’s involvement, I can’t much improve on what I told you back in February. When the Obama Justice Department prosecuted retired general David Petraeus, the former CIA director, for mishandling classified information, government attorneys emphasized that this top-secret intelligence included notes of Petraeus’s “discussions with the president of the United States of America.”

Petraeus pled guilty because he knew the case against him was a slam-dunk. He grasped that trying to defend himself by sputtering, Clinton-style, that “the notes were not marked classified” would not pass the laugh test. As I elaborated in the February column, when you’re a national-security official engaging in and making a written record of policy and strategy conversations with the president, the lack of classified markings on the documents you’ve created

[does] not alter the obvious fact that the information they contain [is] classified — a fact well known to any high government official who routinely handles national-defense secrets, let alone one who directly advises the president.

Moreover, as is the case with Clinton’s e-mails, much of the information in Petraeus’s journals was “born classified” under the terms of President Obama’s own executive order — EO 13526. As I’ve previously noted, in section 1.1(d) of that order, Obama issued this directive: “The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.” In addition, the order goes on (in section 1.4) to describe other categories of information that officials should deem classified based on the damage to national security that disclosure could cause. Included among these categories: foreign relations, foreign activities of the United States, military plans, and intelligence activities.

Abedin knew, as the FBI agents who were interviewing her surely knew, that at least some of Obama’s pseudonymous exchanges with Clinton had to have crossed into these categories. They were born classified. As I said in February, this fact would profoundly embarrass Obama if the e-mails were publicly disclosed.

Hundreds of times, despite Clinton’s indignant insistence that she never sent or received classified information, the State Department has had to concede that her e-mails must be redacted or withheld from public disclosure because they contain information that is patently classified. But this is not a concession the administration is willing to make regarding Obama’s e-mails.

That is why, as I argued in February, Obama is trying to get away with the vaporous claim that presidential communications must be kept confidential. He does not want to say “executive privilege” because that sounds too much like Nixon. More important, the only other alternative is to designate the e-mails as classified. That would be tantamount to an admission that Obama engaged in the same violation of law as Clinton.

Again, this is why the prosecution of Mrs. Clinton never had a chance of happening. It also explains why, in his public statements about the matter, Obama insisted that Clinton’s e-mailing of classified information did not harm national security. It is why Obama, in stark contrast to his aforementioned executive order, made public statements pooh-poohing the fact that federal law forbids the mishandling of any intelligence secret. (“There’s classified, and then there’s classified,” he said, so cavalierly.) He had to take this position because he had himself effectively endorsed the practice of high-level communications through non-secure channels.

This is also why the Justice Department and the FBI effectively rewrote the relevant criminal statute in order to avoid applying it to Clinton. In his public statements about Clinton, Obama has stressed that she is an exemplary public servant who would never intentionally harm the United States. In rationalizing their decision not to indict Clinton, Justice Department officials (in leaks to the Washington Post) and the FBI director (in his press conference and congressional testimony) similarly stressed the lack of proof that she intended to harm the United States.

As I’ve repeatedly pointed out, however, the operative criminal statute does not call for proof of intent to harm the United States. It merely requires proof of gross negligence. This is entirely lawful and appropriate, since we’re talking about a law that can apply only to government officials who have a special duty to preserve secrecy and who have been schooled in the proper handling of classified information. Yet the Justice Department frivolously suggested that applying the law exactly the way it is written — something the Justice Department routinely tells judges they must do — would, in Clinton’s case, potentially raise constitutional problems.

Alas, the Justice Department and the FBI have to take that indefensible position here. Otherwise, Clinton would not be the only one in legal jeopardy.

I will end with what I said eight months ago:

To summarize, we have a situation in which (a) Obama knowingly communicated with Clinton over a non-government, non-secure e-mail system; (b) Obama and Clinton almost certainly discussed matters that are automatically deemed classified under the president’s own guidelines; and (c) at least one high-ranking government official (Petraeus) has been prosecuted because he failed to maintain the security of highly sensitive intelligence that included policy-related conversations with Obama. From these facts and circumstances, we must deduce that it is possible, if not highly likely, that President Obama himself has been grossly negligent in handling classified information.

That is why the Clinton e-mail scandal never had a chance of leading to criminal charges.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.