Is the White House Putting Its Finger on the Scale in the Clinton Email Investigation?

By Pam Martens and Russ Martens: March 11, 2016

U.S. Attorney General Loretta Lynch Testifying Before Senate Judiciary Committee, March 9, 2016

U.S. Attorney General Loretta Lynch Testifying Before Senate Judiciary Committee, March 9, 2016

This past Wednesday, the U.S. Senate Judiciary Committee held a hearing with U.S. Attorney General Loretta Lynch as part of its oversight of the Justice Department. One line of questioning concerned how the White House is suggesting it has an inside track on what the Justice Department plans to do regarding its investigation of Hillary Clinton’s  use of a private server in her house to transmit all of her government and personal emails while she served as U.S. Secretary of State. According to a January 14, 2016 unclassified letter from the Inspector General of the Intelligence Community, I. Charles McCullough III, to members of Congress, some of those emails have been deemed to have a classification of Top Secret. (Clinton has repeatedly asserted that no classified material was sent over her unsecure server originally but that it has been classified subsequently.)

The line of questioning by Republicans on the Judiciary Committee stems from two separate events. First, on October 11, 2015, President Obama appeared on 60 Minutes and told interviewer Steve Kroft that the email issue seemed to be “ginned up” because of politics. He also, improperly, weighed in on whether it posed a national security problem, saying it didn’t. Clearly, the President didn’t have all the facts at that point and prosecutors should not have the President of the United States characterizing the nature of their investigation and where it might be heading.

This is the key part of the exchange on 60 Minutes:

Steve Kroft: Did you know about Hillary Clinton’s use of private email server–

President Obama: No.

Steve Kroft: –while she was Secretary of State?

President Obama: No.

Steve Kroft: Do you think it posed a national security problem?

President Obama: I don’t think it posed a national security problem. I think that it was a mistake that she has acknowledged and — you know, as a general proposition, when we’re in these offices, we have to be more sensitive and stay as far away from the line as possible when it comes to how we handle information, how we handle our own personal data. And, you know, she made a mistake. She has acknowledged it. I do think that the way it’s been ginned up is in part because of — in part — because of politics. And I think she’d be the first to acknowledge that maybe she could have handled the original decision better and the disclosures more quickly.

Next came remarks by President Obama’s Press Secretary, Josh Earnest, on January 29, 2016 at a White House press briefing. Earnest directly implied that the White House had spoken with “prosecutors over there” and were told that Clinton was not “a target of the investigation.” The Justice Department is not legally allowed to share information with outsiders on the direction of an ongoing criminal investigation. This is the exchange at the press briefing:

Press Member: Thanks, Josh.  Staying with emails for just a moment, can you say with certainty and confidence that Secretary Clinton will not be indicted because of this email scandal?

Earnest:  That will be a decision that is made by the Department of Justice and prosecutors over there. What I know that some officials over there have said is that she is not a target of the investigation. So that does not seem to be the direction that it’s trending, but I’m certainly not going to weigh on a decision or in that process in any way. That is a decision to be made solely by independent prosecutors.  But, again, based on what we know from the Department of Justice, it does not seem to be headed in that direction.

Press Member: As a Democrat, should there be a plan B just in case? In other words, if Secretary Clinton were to get the nomination or be leading significantly after Super Tuesday or deeper into the process, should there not be a plan B for Democrats in the event that she is indicted?

Earnest: That’s not something I’m worried about.

Press Member: Not at all?

Earnest: No.

Notice that in this press briefing, Earnest first states that he’s heard that Clinton is not a target of the investigation and then says that he’s “not going to weigh on a decision or in that process in any way.” But he already has: he has transmitted to major media that Clinton is not a target.

Earlier in the press briefing, Earnest attempted to paint the investigation as a political witch hunt, stating:

“So look, in the context of a presidential campaign, people are going to have a whole bunch of reasons to criticize any of the candidates, so it’s not surprising to me that there are certain political opponents of Secretary Clinton that are looking for a way to use this situation to criticize her. That’s part of the process.  And she and her team I’m confident will muster a robust defense.” (Read the full transcript of the press briefing here.)

President Obama and his Press Secretary are not the only ones characterizing how the Justice Department’s investigation is going to turn out. This past Wednesday night at the Democratic debate in Miami, moderator Jorge Ramos asked Clinton if she were indicted if she would drop out of the campaign. Clinton, showing annoyance, stated “that is not gonna happen. I’m not even answering that question.” Clinton has a law degree and should know better than to predict what the FBI and the Justice Department will eventually do.

Against that background, Republicans on the Judiciary Committee had some serious questions for Attorney General Loretta Lynch at this past Wednesday’s hearing. The exchange between Senator Lindsey Graham and Lynch went as follows:

Graham: Have you ever discussed the Clinton email investigation with President Obama or anyone at the White House?

Lynch: No sir, I have not.

Graham: Do you anticipate that happening?

Lynch: No sir, I do not.

Graham: So when Josh Earnest speaks about the investigation and talks about basically to reassure the American people that this is no big deal, do you know where he gets that information from?

Lynch: Senator, no, I do not. But I can assure you that neither…

Graham: Would you tell him that he should probably just stay silent.

Lynch: Certainly it’s my hope that when it comes to ongoing investigations that we all would stay silent. And, I can assure you that neither I nor anyone from the department has briefed Mr. Earnest or anyone at the White House about this matter or other law enforcement matters.

Graham: He’s just operating sort of on his own I take it.

Lynch: I’m simply not aware of the source of his information.

Senator Chuck Grassley weighed in with this:

Grassley: Can I say something. I’ve often been accused of asking about Secretary Clinton’s email since she’s run for President. But to make the record clear, in June of 2013 I started asking questions about this as it related to one of her counselors, Abedin[Huma Abedin], and email and conflict of interest and stuff like that. That’s where this all started a long time before she was running for President. So, recently, a senior unnamed law enforcement official told the Washington Post about an immunity agreement with a State Department staffer who maintained her email server. Yet, you, Attorney General, have not answered this Committee’s question about the nature and status of that investigation. Does the immunity agreement contain any provision requiring that staffer to cooperate with all government inquiries, including Committees as I had requested. And, if not, why not? Would you provide a copy of that agreement to the Committee?

Lynch: Well, Senator, and again I thank you for your recent letter on this topic. We are providing our response to your letter in writing. So I don’t want to get ahead of that as we review the issues that you’ve raised there. I believe you had asked for a copy of that document. We typically do not provide copies of documents as part of ongoing investigations but we are preparing our response to your letter on those issues. Similarly, we don’t go into the details of the agreements that we have with any witness in any matter in ongoing investigations.

On March 3, the Washington Post reported that the FBI’s investigation of the Clinton email matter is a criminal investigation. The White House and Hillary Clinton should immediately stop guiding the American people as to how this matter will turn out. We’re not sure about the nature of the political cocoon that Josh Earnest lives in, but the American people are well aware that a viable Plan B already exists. His name is Senator Bernie Sanders and he has a 25-year, untainted record in the U.S. Congress.

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