The “high crimes” in the Constitution’s impeachment clause refers not to the nature of the crime, but to the high status of the offending officeholder. An offense need not be an actual part of the criminal code to warrant impeachment and removal from office. In other words, just being really awful at your job could get you removed from it. That’s a powerful check on the executive and judicial branches — if the political will exists in Congress to use it.
That’s a mighty big “if.”
The next two words are “and misdemeanors,” indicating that the Founders thought that mere misdemeanors by officeholders could be grounds for removal from office. That’s supposed to keep our officeholders on a tight leash, but in practice it hasn’t always worked that way.
In office, Clinton’s use of an unsecured private email server ought to have been an impeachable offense for the “high crime” of being too inept at her job to keep it. Clintonemail.com was the high-tech equivalent of sending old-fashioned radio communications unencrypted over public airwaves all across the globe. In the old days, a King would have summarily executed his foreign minister for such treachery. These days, the King gives her his tacit blessing to become his successor.
On Friday there was a minor brouhaha because “the White House is reportedly seeking to keep some emails between President Obama and former Secretary of State Hillary Clinton from being released anytime soon,” but that’s of not much concern. If a president and his secretary of State can’t maintain private correspondence, then effective foreign policy is impossible — the White House should be allowed broad latitude to keep private communications private. But the impeachable point of the matter is that the president and his secretary of State weren’t maintaining private correspondence — clintonemail.com makes it a near certainty that their communications were being read, perhaps in near-realtime, by the Russians, Chinese, and maybe even the Iranians.
What was that about the need for private correspondence being a necessity to an effective foreign policy? Look at the shambles of Obama’s foreign policy if you harbor any doubts about Clinton’s impeachably criminal negligence as SecState.
Of course, the existence of clintonemail.com didn’t come to light until after Clinton had left office, rendering her immune from impeachment. It does however raise the question of why no one at State or in the White House questioned her reliance on a private email server, or why nobody seems to have given even a cursory look into its security.
More broadly, this incident raises the question of what to do with someone who committed impeachable offenses, but didn’t get caught until after leaving office.
The first and most obvious is for voters to shun such a candidate should they ever attempt to run for public office. Given the current nature of Democratic politics and of Clinton’s base, she remains a formidable candidate for the highest office in land. That’s a sad and terrible thing to have to say about half of the American electorate, but we the people remain the first and best safeguard against bad government — and a big chunk of we the people don’t seem much interested in the job.
The next is to look and see if the former officeholder committed any actual crimes, real criminal actions, and then prosecute them to the fullest extent of the law.
“She’s too big to jail,” said national security attorney Edward MacMahon Jr., who represented former CIA employee Jeffrey Sterling in 2011 in a leak case that led to an espionage prosecution and 3½-year prison term. He cited a pattern of light punishments for top government officials who have mishandled classified information while lower level whistleblowers such as Sterling have faced harsh prosecutions for revealing sensitive information to expose waste, fraud or abuse in government.
Please note that a “mere” whistleblower served hard time for doing exactly what he should have done by revealing “waste, fraud, or abuse” by his own government. Clinton almost certainly revealed secrets of her nation’s foreign policy to her nation’s rivals and enemies by keeping top secret information on a poorly secured private server.
The first part of that is criminal negligence. The second part is purely criminal. And yet former federal prosecutor Peter Zeidenberg told McClatchy:
“If the emails were not marked, it would not be possible – at least not in my view – to establish that Ms. Clinton knowingly mishandled classified information,” he said. “How was she to know that this was classified if it was not marked?”
We used to believe that “ignorance of the law is no excuse,” which even our federal prosecutors seem to have given up on, and which half the American people seem uninterested in. Now we have “too big to jail.”
The latter is the inevitable consequence of the former, and both are clear markers on the road to tyranny.