ANALYSIS/OPINION:

The Hillary Clinton email investigation is entering a critical phase. The FBI has already interviewed some of Mrs. Clinton’s key aides when she was secretary of state and reports have said they will soon be interviewing Mrs. Clinton herself. At this juncture, it’s not a question anymore of whether any crimes were committed, because it has been well reported that Mrs. Clinton’s reckless use of a private email server and her gross mishandling of classified information was criminal behavior. I believe that what the FBI is really honing in on now, or should be examining, is the revolving-door State Department access that Mrs. Clinton gave her top donors and closest friends.

When the FBI interviews Mrs. Clinton and her aides, they will be able to question her about both the substance of the emails and the use of the private email and server. With respect to the substance of the emails, there has been plenty of focus on the classified ones, but there are also several that pose very serious ethical challenges.

From granting special access to Mrs. Clinton’s campaign and Clinton Foundation donors, to assisting her son-in-law’s business contacts, there are numerous examples demonstrating quid pro quo. Here is a look at some of the emails that my organization, the Foundation for Accountability and Civic Trust, have documented in this area:

• Hillary Clinton intervenes for son-in-law Marc Mezvinsky: On Aug. 22, 2012, Mrs. Clinton acted on a request from her son-in-law, Marc Mezvinsky, for the State Department to assist one of his business contacts that also had ties to a Clinton Foundation donor. This apparent special access to the State Department was given based upon relationships with Mrs. Clinton’s family members and Clinton Foundation donors.

• Billionaire George Soros’ access to the State Department: On May 12, 2012, Neera Tanden, a longtime Clinton confidante and president of the Center for American Progress, emailed Mrs. Clinton to tell her that George Soros, billionaire activist and major Clinton Foundation donor, said he was “impressed” with the level of access he had to Mrs. Clinton at the State Department.

• Clinton Foundation and the Red Cross: Clinton Foundation donors getting preferential treatment wasn’t the only arena in which foundation and State Department business overlapped. A Jan. 19, 2010 email from Mrs. Clinton to chief of staff Cheryl Mills recommended that the State Department work with the Clinton Foundation and the Red Cross on an education initiative for Haiti. As grounds for her recommendation, she noted that the foundation and the Red Cross have “Unencumbered $.” Mrs. Clinton’s motives may have been pure, but she should have been conscious of the conflict of interest posed by actively pushing the department to work with the foundation.

• Hillary Clinton gives former chief campaign consultant special access: Mrs. Clinton’s political allies also enjoyed special access. Her longtime pollster and chief consultant on her 2008 presidential race, Mark Penn, emailed Mrs. Clinton on Feb. 22, 2010, demanding “why no one called” him to help get corporate sponsors for the Shanghai Expo, an event Mrs. Clinton was deeply involved in at the time. Mrs. Clinton thanked Mr. Penn and forwarded his email to an aide, Kris Balderston, who set up a call with Mr. Penn for the following day. Days later, Mr. Balderston reported back to Mrs. Clinton in an email listing major corporations, including Boeing, Citi and Blackstone, that had agreed to provide financial support for the Shanghai Expo.

These emails demonstrate a disturbing narrative with the way Mrs. Clinton handled State Department business. If someone wanted access to her, they needed to be a top donor to her campaigns or philanthropic efforts. This is not the kind of treatment offered to ordinary citizens.

I know FBI Director James Comey. He is a competent, ethical person, and I am confident he will do the right thing in this case. The challenge, though, is that he can only make a recommendation to the Department of Justice about whether or not to bring a case against Mrs. Clinton.

The decision to bring a case ultimately rests with the Justice Department. It’s a decision the department cannot and should not be able to make, especially after it was reported this week that Hillary Clinton received almost $75,000 in political contributions from Justice Department employees, the most given to any of the current presidential candidates by Justice staff.

Furthermore, I am not sure Attorney General Loretta Lynch has the fortitude to oppose President Obama, who has publicly said Mrs. Clinton’s behavior didn’t put our national security at risk. In fact, the Obama administration recently stated that Hillary is qualified to be president, with White House spokesman Eric Schultz saying Mrs. Clinton “comes to this race with more experience than any other non-vice president in recent campaign history.”

Secondly, in a Fox News interview earlier this year, she wasn’t forthcoming about her role in the decision to prosecute the case. When asked if she was the one who would ultimately decide whether to prosecute Mrs. Clinton, Ms. Lynch answered, “It depends.” The fact that the one person who will ultimately make the decision about an indictment evades routine questioning clearly demonstrates that this administration has shown no ability to be impartial with this investigation, as they have looked the other way at every turn. For this reason, I am renewing my call for the appointment of a special counsel in this case.

We are supposed to be a nation of laws, not citizens who feel they are entitled to disregard them. That was the foundation upon which our country was built. In the coming weeks, we will find out if those principles hold true in this case.

• Matthew Whitaker, a former U.S. attorney, is executive director of the Foundation for Accountability and Civic Trust.

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