What if Hillary Clinton is in legal hot water and she knows it but won’t admit it? What if she has decided to go on the offensive and make her case that she did nothing unlawful with her emails that contained state secrets?
What if the essence of her defense is that other secretaries of state used non-secure email devices and thus it was lawful for her to do so, as well as the point that none of her emails was “marked classified” at the time she sent or received them? What if these defenses do not hold up to even cursory examination?
What if the other secretaries of state to whom she refers are Colin Powell and Condoleezza Rice? What if neither of them diverted all of their emails to a private server? What if neither of them sent or received state secrets -- secrets that under the law of the land are marked “confidential,” “secret” or “top secret,” not “classified” -- using a non-secure email account?
What if neither of them hired an information technology expert and paid him to divert both a standard State Department email stream and a secret State Department email stream to a private server in one of their homes?
What if neither Powell nor Rice is currently running for president? What if neither Powell nor Rice has had his or her behavior as secretary of state referred to the FBI for a criminal investigation by the inspector general of the State Department?
What if the law of the land is that a document or email contains state secrets by virtue of the information or data in the document or email and not by virtue of any warning label? What if the legal definition of a "state secret" in the U.S. is "information the revelation of which could cause harm to the security of the United States"?
What if it is the law of the land that people in the government to whom state secrets are entrusted are required to recognize the secrets when they see them and protect them from intentional or inadvertent revelation?
What if it is the law of the land that everyone in the government to whom state secrets are entrusted receives a multi-hour tutorial from the FBI on how to protect state secrets? What if the successful completion of that tutorial is a legal prerequisite to the receipt of a national security clearance and thus the receipt of state secrets?
What if that tutorial reminds the people to whom secrets are being reposed that it is their legal obligation to recognize and accept and understand the law before they can receive any state secrets? What if, in order to confirm that understanding, all people who receive the tutorial are required to sign an oath at the end of the tutorial recognizing, accepting and understanding the law and agreeing to be bound by it? What if Clinton signed just such an oath?
What if Clinton had no intention of complying with the oath she signed at the time she signed it? What if we know that because we know she hired the information technologist to divert her emails the same week she received the FBI tutorial? What if she never told the FBI that she planned to divert all her emails -- including those that would contain state secrets -- to a private non-secure email server in her home?
What if it is the law of the land that the failure to secure state secrets is a felony, known as espionage? What if it is the law of the land that espionage can be committed by a person who intends to expose state secrets or by a person who doesn’t care if she exposes state secrets? What if the FBI explained to Clinton in her first day as secretary of state that the grossly negligent exposure of state secrets constitutes espionage?
What if before Clinton was secretary of state, she was a U.S. senator from New York for eight years? What if during that time, she was a member of the Senate Armed Services Committee? What if during her time in the Senate, she was exposed to hundreds of military-related state secrets?
What if Clinton is smart enough and shrewd enough and experienced enough to recognize a state secret when she sees one?
What if the FBI has seen emails in which Clinton ordered subordinates deliberately to avoid State Department secure channels of communications and to send state secrets to her through channels she knew were not secure? What if Clinton passed on state secrets to others who had no security clearances? What if she did so knowing she was sending state secrets from her non-secure server to other non-secure servers?
What if Clinton sent or received more than 2,000 emails that contained state secrets? What if she authored more than 100 of them herself? What if some of the 2,000 emails were so secret that the FBI agents investigating her lack the security clearances to view those emails?
What if Clinton did all this so that she could keep her behavior as secretary of state secret and away from all officials in the State Department outside her inner circle, away from the president and away from the American people? What if she orchestrated and carried out a conspiracy to violate the Espionage Act?
What if the FBI is onto her? What if the Democrats are not?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.