The FBI interviewed former Secretary of State Hillary Clinton for many hours on Saturday morning.
On Saturday afternoon CNN Senior Producer Teddy Davis tweeted "Sources tell CNN's Evan Perez: expectation is that there will be announcement of no charges in Clinton email probe w/in next two weeks or so".
After I — and perhaps others — pointed out that no source could make such an assertion unless he or she had been in the interview with Clinton, Davis — full disclosure, a fellow with whom I worked closely during debate season and who is very smart — added another tweet:
"More from CNN's @EvanPerez: Expectation is no charges will be brought against Clinton- so long as no wrongdoing emerged in today's interview."
I don't doubt someone at the Justice Department or the FBI was working Perez, and Teddy was simply relaying what Perez had reported. But the expanded and qualified "tip" reflected the underlying reality of the Clinton server investigation: Reporters who don't know the laws involved are being led around by the nose by spinners.
Nobody who knows the status of the investigation into Clinton's server is talking, and those who are talking as if they do — well, they simply do not know what is truly going on but have some incentive to pretend to do so. They cannot know, in fact, unless they know (1) what has been recovered from the server by the forensic specialists working on the server and (2) the precise details of what Secretary Clinton said in her interview. That is because 18 USC 1001 makes it a crime to make false statements to federal agents. Unless someone was in the room with Secretary Clinton who knew exactly what had been deleted, the CNN "source" would have no idea — none — of whether the investigation is close to wrapping up. CNN's Perez should never have reported such spin. Either it came very close to tipping his source or it was pure spin and he should have known that.
Similarly, commentators holding forth about what the server did or did not represent in terms of a threat to national security are quickly in over their heads if they have never held security classifications or at least studied deeply the subject of the surveillance and espionage capabilities of foreign governments that we consider enemies — especially Russia, China and Iran. The capabilities of those countries when it comes to hacking and conducting surveillance of unprotected American computer systems are extraordinary. Knowing this simple fact would greatly assist pundits in their assessments of the server's national security significance, but few in mainstream media take the time to learn it or think on its significance.
On May 15, 2015 I interviewed former CIA Acting Director and long time Deputy Director Michael Morell in a wide ranging interview, the transcript and audio of which are available online. Here is one key aspect of our conversation:
HH: What did you make of the secretary of state having a private server in her house?
MM: So I don't think that was a very good judgment. I don't know who gave her that advice, but it was not good advice, and you know, she's paying a price for it now. Yeah, it was not good.
HH: As a professional matter, do you believe that at least one or perhaps many foreign intelligence servers, services have everything that went to and from that server?
MM: So I think that foreign intelligence services, the good ones, the good ones, have everything on any unclassified network that the government uses, whether it's a private server or a public one. They're that good.
HH: So that's a yes?
Getting a grip on the significance of this crucial truth — and it is truth, rendered from a non-partisan expert — would greatly increase the reliability of pundit conclusions on what is going on in the FBI investigation.
Now I don't admire Secretary Clinton's record as secretary of state or senator, won't vote for her, and believe her to have violated 18 USC 1924 with her illegal private server. But I don't know if she or anyone will be charged. I don't know how the FBI and DOJ will be able to defend charging Gen. David Petraeus and not Clinton, but they may chose to try and so do.
Point is: I don't know. But I do know that Clinton's actions were incredibly reckless and damaged the country's national security. I know that. So does every serious intelligence professional in the country.
Which is why my Saturday exchange on MSNBC with Josh Barro turned out the way it did. The simultaneous conversation with Joy Reid was also sparky but not contentious, but when Barro accused me of being condescending, I had to plead guilty. He simply gave no evidence of having a clue about what he was attempting to opine on — like me holding forth on how to fix an engine.
The problem is either you understand what the Russians, the Chinese and the Iranians do, or you don't. Barro apparently doesn't. He thought it condescending that I would point this out. So does most of mainstream media when confronted with huge gaps in their knowledge. Why this is I cannot fathom, but it is the reflex. "How dare you suggest I am out of my depth!" is sadly a default setting, as opposed to the much more useful "Hmmm. Tell me more and I'll see if that makes sense."
Watch for yourself and see what I mean. As with CNN's Perez, so with Barro. The unfamiliarity with a legal- or intelligence-world reality led to incredibly off-the-mark, credulous statements by both. But they are not unique. Hardly. They are rather the standard in this age of instant expertise in everything.
When it comes to the presumptive Democratic nominee's server, here is what we do know. We know what the Inspector General's report told us. We know that her aide has invoked the Fifth Amendment. We know that Guccifer hacked into systems that held at least some of her emails. We know that she deleted 33,000 emails without permission or input from the government.
We know lots but we don't know what the FBI knows. But we most assuredly know what the Russians, the Chinese, and the Iranians do vis-a-vis high value intelligence targets. Which is everything they can do. Quietly. Effectively.
Which is why you shouldn't vote for Hillary Clinton even if she isn't indicted. Ask yourself how you would feel if your worst three enemies had every bit of email, text and direct messages you had sent and received for the past five years. Would you be vulnerable to them? Could they manipulate you or your correspondents? Could they do so without you knowing? Would they have a detailed knowledge of you, your methods and operations, your strengths and your weaknesses?
That's the situation with Hillary Clinton and America's enemies. To prevent such situations the government insists that those trusted with its secrets and even just those trusted with its leadership use encrypted devices and often retreat to "Sensitive Compartmented Information Facilities" to discuss crucial matters. Those facilities are as secure as we can make them from prying eyes and machines.
Secretary Clinton broke all those rules. Then she spirited away all her emails in contravention of the law. Then she destroyed what she should not have destroyed, obfuscated and outright lied about all of it.
That's what we know. We don't know if she or her close associates will be charged. But we do know she shouldn't be president.
Hugh Hewitt is a nationally syndicated talk radio host, law professor at Chapman University's Fowler School of Law, and author, most recently of The Queen: The Epic Ambition of Hillary and the Coming of a Second "Clinton Era." He posts daily at HughHewitt.com and is on Twitter @hughhewitt.