Perhaps President Obama’s involvement is the reason that the FBI has not yet referred charges to the Justice Department in the Hillary Clinton email case.  It may be metastasizing so quickly and so dangerously that not only are agents and lawyers within the agency having trouble keeping up with new evidence of wrongdoing, but that the scandal itself now threatens a constitutional crisis.  The Department of State’s refusal to release 18 emails exchanged between President Obama and Clinton through her unsecured home server at best creates a conflict of interest for Obama (as explained by Andrew McCarthy here) while at worst it raises the likelihood that the President has run afoul of national security laws and ought to be impeached. 

I always assumed that somewhere in the 55,000 plus pages of email that Clinton belatedly turned over to the State Department there must have been exchanges with the President.  White House Press Secretary Josh Earnest said in March 2015 that the two occasionally emailed each other without specifying whether the emails went through Hillary’s private email. Earnest also said that Obama did not look at email addresses, though the President was aware that Clinton sometimes used private email. (Obama had originally said he learned about the private email through new reports -- a typical Obama story -- but backtracked later.)  And remember in March, the only admitted concern was whether Clinton had complied with the Federal Records Act. 

The more recent State action evidently concerns 18 specific emails that were sent/received over Clinton’s home server.  It seems quite likely that in the eighteen emails classified information was discussed as conceived under federal statutes, and as McCarthy points out, one of Obama’s own executive orders regarding dissemination of foreign intelligence. That includes conversations with foreign officials and leaders that are what you would expect the Secretary of State to discuss with the President, and which are born classified.   State Department spokesman John Kirby did not deny that these emails contain classified information, but rather only stated that that they “have not been determined to be classified,” claiming that they are being withheld because of concerns over confidentiality between the President and his aides.  But again, if Obama and Clinton were not discussing foreign leaders and policy, then what on earth were they emailing each other about?

The White House tried to block the release of emails between Obama and Clinton last fall, with the same claim, denying that they were asserting executive privilege but rather maintaining confidentiality between the president and his top aides.  Presumably, these 18 emails are these very same ones.  The White House has gotten around using executive privilege to hide the emails by having State block court-ordered FOIA production on these vague confidentiality grounds.  McCarthy says that this is a backhanded way of asserting executive privilege and effectively classifying the documents without saying so, since otherwise Obama’s transgressions might be obvious.  It is hard to argue with that conclusion.  Moreover, State’s action (clearly at Obama’s behest) is circumstantial evidence that the information contained within the emails is indeed classified -- born classified -- and thus subject to security protocols whether marked or not, which both Obama and Clinton violated.   And circumstantial evidence is as probative of guilt as direct evidence if a jury (or the Senate) chooses to believe it. 

Obama’s claim of “confidentiality” might circumvent the FOIA production order (with State’s connivance) but there is another issue pressing.  There is no reason that the FBI should not have access to the Obama/Clinton emails.  It is part of the executive branch, and its investigation is confidential, so FBI agents and lawyers should be allowed to review the email exchange.  Have the emails been turned over to the FBI?  If the FBI requests the emails, and the White House refuses to turn them over, what conclusion could be drawn other than that they somehow incriminate the President, since the FBI already has thousands of similar emails on Hillary? 

Beneath all Clinton’s implausible denials and claims of right wing persecution, behind Josh Earnest’s improper insistence that nothing really serious is going on at the FBI, is the very real possibility that Clinton has now enmeshed the President into her scandalous intrigues, with serious constitutional implications.  Obama cannot ethically continue to preside over this investigation (which, effectively, he does as the chief executive.)   But removing himself would require Obama to actually care about the ethics of the matter, and secondly potentially expose himself to criminal liability.   The situation is quite akin to the Watergate scandal at this point, in that government officials have hidden or erased potentially damaging documents, and the President effectively presides over investigations that could subject him, aides, and former aides, to criminal liability. 

FBI Director James Comey appears to long have had sufficient evidence to charge Clinton, but seemingly has so far been stayed by countervailing influences.  On the one hand there are obvious political concerns and pressures.   On the other is a continuing flow of evidence against Clinton that only makes the case against her stronger.  But the Obama emails now complicate the case to an extraordinary degree.  Does Comey have them, and if not, has he demanded them?  If Obama refuses, then the President is effectively hiding probative evidence. 

If Comey were to get the emails, and they did contain born classified information (as is likely) it would be difficult for Comey to proceed against Clinton without implicating Obama.  Almost certainly, the Obama Justice Department would never pursue a prosecution that exposed him to criminal liability.

If Obama were a man who could actually admit a mistake, and also one that legitimately cared for his country, he would cut the Gordian Knot on this brewing crisis by releasing his email exchanges with Clinton -- redacted as necessary -- taking a mea culpa for being caught up in Hillary’s malfeasance, and throw her under the bus, which is something he does well.   There likely would be little appetite in the country for impeachment; Obama might actually earn some credit for doing the right thing, and the Democrats would be rid of a problematic and probably unelectable candidate.

That would put the Democrats into crisis mode, made worse perhaps, by the very real possibility that Vice-President Biden is also exposed to the scandal and thus might not be ready to step in.  This might be part of the reason Biden -- with Obama’s evident approval -- declined to enter the race in the first place.

Since Obama is unlikely to take such a step, the only other way to achieve a semblance of justice might be through Congressional action.  Obama would then have to formally invoke executive privilege to hide the emails, which would strongly echo Nixonian tactics and be politically damaging, though Republicans would be at risk too.  Hillary would certainly claim that Congressional hearings prove the whole affair is political after all, and the Democrats would try to stymie matters and use the mainstream media to vilify Republicans as they always do.     

All this makes FBI Director Comey’s situation increasingly untenable.  He knows now that there is no way Attorney General Loretta Lynch can fairly and properly evaluate the evidence his agents are fast compiling.  If he continues to hesitate, due to political pressure or in hopes of building the perfect case, the situation will fester and worsen.  If Comey is really the stand-up guy that many say, he will act soon, in order to force the hands of Lynch and Obama, put Hillary in the legal peril that she has earned, and Obama in jeopardy too if that is where the evidence leads.  In the probable event the administration does nothing or pushes back against an FBI referral, Comey will have to resign, and Congress will have to act.