Obama's latest defense of Clinton has lawyers cringing
By Susan Crabtree (@susancrabtree) • 4/18/16 12:01 AM
http://www.washingtonexaminer.com/obamas-latest-defense-of-clinton-has-lawyers-cringing/article/2588417?custom_click=rss&utm_source=fark&utm_medium=referral&utm_campaign=im President Obama's decision to defend Hillary Clinton's handling of classified material on her personal email is rankling legal experts and prompting new questions about his impartiality in the federal probe involving her email server.
The president tried to remain neutral for months in the race for the White House, and pledged only to get involved in the general election after the Democratic Party had selected its nominee.
But this month, Obama waded into the increasingly contentious primary to bat down Bernie Sanders' argument that Clinton is not qualified to be president, and more recently appeared to diminish the severity of her alleged mishandling of classified documents on her private server.
"There's stuff that is really top secret, top secret, and there's stuff that is being presented to the president or the secretary of state that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open source," Obama told Chris Wallace on "Fox News Sunday."
National security lawyers collectively cringed, arguing that criminal charges for mishandling classified material usually are not based on whether a document is "confidential," "secret" or "top secret."
"If you were to make this case in court, you would be laughed out of the room," Bradley Moss, a lawyer who represents clients accused of mishandling classified material, told the Washington Examiner. "It's either classified or it's not ... Classified is classified and you're required to maintain it. You don't get to make that decision."
If you tried to make that argument in court, the judge would use it as further evidence of your poor judgment," he added.
But the president's comments didn't just create headaches for attorneys in the intelligence community. It also drew derision from Edward Snowden, the infamous former National Security Agency contractor who leaked classified information about the U.S. government's sweeping surveillance program.
"If only I had known," tweeted Snowden, who fled the country in 2013 after leaking the documents and now faces federal treason charges.
Republican critics argue that Obama's decision to wade in also delivered a blow to the Obama administration's ability to lead an impartial investigation of Clinton's use of her private email server as secretary of state.
The Republican National Committee quickly seized on Obama's remarks and said he had conceded that Clinton mishandled classified information, but then "twist[ed] to defend her."
And Ron Hosko, a former assistant director at the FBI who serves as the president of the Law Enforcement Legal Defense Fund, said the president's comments over the weekend give the impression that he's "getting some sort of periodic briefings or feed [on the Clinton FBI investigation], when that would be essentially inappropriate."
His comments differentiating between levels of classification in the context of the probe into Clinton's email are "unnecessary and inappropriate," Hosko told the Examiner.
"It's an opinion and gives those who distrust the system and distrust politics in America an excuse to say, 'There, I told you so ... This process is being determined by the president,'" he said.
The White House last week tried to explain Obama's remarks as simply a way to describe the ongoing debate in the intelligence community over how to handle technically classified material that the media regularly covers and discusses.
Presidential press secretary Josh Earnest also insisted that the ongoing investigation of the email system will be free of political influence, and noted that Obama's knowledge of the case is based on public reporting, not any first-hand knowledge or briefing about the FBI's finding so far.
Greg Greiner, a partner at Tully Rinckey who specializes in security clearance cases, is giving Obama the benefit of the doubt as he struggles to publicly discuss the different levels of classified information and the laws surrounding how it is handled.
But, he said, he has so many clients who have lost their security clearances and their jobs over inadvertent mishandling of classified material that Obama should be clear about what kind of message he's sending.
"He runs the military and is in charge of all the executive branch intelligence agencies," Greiner said. "... I think judges that enforce the national security rules get a little frustrated when the president diminishes that piece of the national security apparatus, intentionally or unintentionally."
