Glenn Harlan Reynolds

Back last summer, I wrote about the prospects for a Trump-Sanders 2016 race. At the time, I thought I was just being cute. Now it looks as if it might happen.

Trump, of course, remains atop all of the polls for the GOP nomination. And now Bernie Sanders is crushing Hillary Clinton in CNN/WMUR's latest New Hampshire poll, 60% to 33%. That’s right, Bernie has a 27-point lead among New Hampshire Democrats.

There’s no question that Hillary is in real trouble. As Peter Wehner noted inCommentary, “Mrs. Clinton is now running as basically the third term of President Obama. She may tweak what he did here and there, but she is fully embracing Mr. Obama. In an election year in which anger and disgust at the political establishment and business as usual are dominant, and in which only a quarter of the American people believe the country is headed in the right direction, that is a dangerous strategy to adopt. In addition, there’s a historical burden Mrs. Clinton faces: Since 1948, a political party has won three straight presidential elections only once, when George H.W. Bush succeeded Ronald Reagan, who was much more popular at the end of his second term than, in all likelihood, Mr. Obama will be.”

With the Middle East on fire and the U.S. economy looking shaky, the “Obama’s third term” strategy isn’t looking very good. But Hillary was part of his administration, so what else can she do?

She also faces increasing legal problems. In particular, as the email story trickles out, it’s now clear that she had beyond top secret material on her secret personal email server. As Politico reports: “In a copy of the Jan. 14 correspondence obtained by Politico, Intelligence Community Inspector General I. Charles McCullough III told both the Senate Intelligence and Senate Foreign Relations committees that intelligence agencies found messages relating to what are known as 'special access programs,' or SAP. That’s an even more restricted subcategory of sensitive compartmented information, or SCI, which is top secret national security information derived from sensitive intelligence sources.”

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As intelligence experts like to point out, normal federal employees would face career-ending consequences, if not prison, for this sort of mishandling of classified information, which made it easy for foreign nations to learn extremely important secrets about U.S. intelligence — and U.S. methods of gathering intelligence. In Charles Krauthammer's view, what Hillary did is worse than what Edward Snowden did: “What people have to understand is that there is nothing higher, more secret than an SAP. And that, from some people I’ve talked to, this is worse than what Snowden did, because he didn’t have access to SAP. And that, if this is compromised, this is so sensitive, that the reason — and the reason it is is that, as a result, if it’s compromised, people die. It also means that operations that have been embedded for years and years get destroyed and cannot be reconstituted.”

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Hillary used this insecure private-server setup, it seems clear to me, because she wanted to be sure that emails she sent as secretary of State wouldn’t be available under Freedom of Information Act requests that might hurt her politically. (Under the Freedom of Information Act, the government doesn’t have to turn over emails that aren’t in its physical possession. Former secretary of State Henry Kissinger gamed the system to keep his correspondence out of public hands, but not in a way that was deemed to have made secrets vulnerable to foreign espionage.) Hillary, on the other hand, chose a method of protecting herself politically that exposed the nation to serious harm. Even if she escapes indictment (she’s a Clinton, and hence presumptively above the law), this will hurt her, and help Bernie. And if she’s indicted, well, Bernie’s prospects are looking awfully good.

Meanwhile, no Republican candidate has yet managed to gain sufficient traction against Trump, who just got an endorsement from fellow anti-establishmentarian Sarah Palin. So will it be a Trump-Sanders race after all? It’s looking likelier by the day.

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself, and a member of USA TODAY's Board of Contributors.

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