With Tuesday’s Indiana primary expected to all but confirm Hillary Clinton as the Democratic nominee for president, a Federal Bureau of Investigation probe into theprivate email server she set up at her home remains one of the biggest clouds on her horizon.
For months, a team of FBI agents have been poring over Mrs Clinton’s correspondence to determine whether she mishandled classified information through her use of the server, set up at her home in Chappaqua, New York — a process that the FBI has indicated could potentially extend past the Democratic National Convention in late July.
In the crosshairs along with Mrs Clinton are some of her closest aides: Jake Sullivan, her deputy chief of staff at the state department and an adviser on her 2016 campaign; Huma Abedin, a longtime aide and vice-chair of Mrs Clinton’s campaign; and Cheryl Mills, Mrs Clinton’s chief of staff at the State Department.
Political partisans see the Clinton email saga as a clear-cut case. Mrs Clinton and heraides have repeatedly denied evidence of wrongdoing, characterising the episode as over-classification run amok. “This isn’t public corruption … this isn’t a venal crime,” one person close to the Clintons told the Financial Times.
On the other side of the aisle, Chuck Grassley, chairman of the Senate Judiciary Committee, has taken issue with a June 17, 2011 email in which Mrs Clinton urged an aide to send information through an “insecure” channel, a request Mr Grassley deemed “disturbing”.
In that exchange, Mr Sullivan informed the then secretary of state that they had been having trouble sending her talking points over a secure fax line. “If they can’t, turn into nonpaper w [sic] no identifying heading and send nonsecure,” Mrs Clinton wrote.
For the Justice Department officials who must ultimately decide whether or not to indict the former secretary of state, the case is significantly more complicated. At the heart of the issue are two key questions: intent and knowledge.
Prosecutors would need to show that Mrs Clinton knew that her emails contained information that was classified at the time or should have been classified, said Douglas Cox, a law professor at the City University of New York who specialises in government records law. “Criminal charges require some level of knowledge or gross negligence.”
In January, the State Department said that 22 emails sent via Mrs Clinton’s home server contained such highly-classified material that they could not be made public along with the thousands released over the past several months. The 22 emails included material classified “top secret/special access programs”, reflecting their potential for causing “exceptionally grave damage” to national security if disclosed, according to the intelligence community’s inspector-general.
It’s hard to see a case for any kind of criminal indictment based on the available facts. There’s been no known disclosure of classified information, no known compromise of national security.
But unless the material was obviously classified at the time Mrs Clinton saw it — involving code words, covert US operations, or diplomatic secrets — prosecutors might be reluctant to charge the Democratic frontrunner. As secretary of state, Mrs Clinton had personal authority to declassify material generated by her department but not documents that originated with other agencies.
Mrs Clinton’s handling of her emails demonstrated bad judgment, but probably fell short of an offence that warranted indictment, several experts said.
“It’s hard to see a case for any kind of criminal indictment based on the available facts,” said Steven Aftergood, who directs the Federation of American Scientists’ project on government secrecy. “There’s been no known disclosure of classified information, no known compromise of national security. It’s therefore hard to see how this would result in a criminal case against anyone.”
Other high-profile government officials have been prosecuted for their handling of classified records, notably retired General David Petraeus, former director of the Central Intelligence Agency, and Sandy Berger, former national security adviser.
There’s a difference between things careless and things criminal
But in both cases, the men knew the material in question was classified and both acted with deliberate deceit. Mr Petraeus, who was later sentenced to two years of probation and fined $100,000, delivered eight personal notebooks containing extremely sensitive military secrets to his mistress and biographer, Paula Broadwell, and then lied to FBI investigators.
Mr Berger, who was sentenced to 100 hours of community service and fined $50,000 before his death in 2005, removed classified documents from the National Archives by stuffing them into his trousers. He also initially lied about his actions when questioned.
Use of a private server by Mrs Clinton undermined compliance with the Freedom of Information Act and may have left Mrs Clinton’s emails vulnerable to hackers, said Mr Aftergood. But poor judgment is not a criminal offence. “There’s a difference between things careless and things criminal,” said Steven Vladeck, a law professor at American University who specialises in national security law.
Should one of Mrs Clinton’s top aides be indicted in the case, he or she would probably immediately resign to minimise damage to the campaign, said the person close to the Clintons. Yet even that, he claimed, would not be fatal to Mrs Clinton’s bid as long as there was no evidence that “they revealed sources and methods that put people’s lives at risk”.
“If they’re indicted you could characterise it as a fairly serious administrative mistake. But unless there is intelligence that they revealed sources and methods that put people’s lives at risk, I think it will be regarded as not very serious.”
James Comey, the FBI director, has said the bureau feels under no pressure to rush its investigation. “The urgency is to do it well and promptly,” he told reporters in April. “And ‘well’ comes first.”
Yet some political observers said a longer investigation decreased the likelihood of an indictment.
Charlie Cook, the political commentator and publisher of the Cook Political Report, the online political newsletter, said while he once believed there was a significant chance either Mrs Clinton or an aide might be indicted, he now thought that likelihood had significantly decreased, especially as the general election grew closer.
“What does the FBI know that they didn’t know 90 days ago?” he asked. “At some point it becomes interference in the democratic process.”
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