Could Hillary Clinton really be indicted over her emails?
The FBI is still investigating and while the candidate herself and much expert opinion say it’s not going to happen, any indictment could end her campaign
The then secretary of state, Hillary Clinton, checks her mobile phone after her address to the security council at United Nations headquarters in March 2012. Photograph: Richard Drew/AP
David Smith in Washington
Friday 10 June 2016 20.00 AEST
Did Hillary Clinton do the wrong thing when she used a private email server while secretary of state from 2009 to 2013?
Yes. She herself has admitted that it was a mistake. A recent report by the state department inspector general found that she broke multiple rules despite repeated warnings to use official communications methods that would ensure her emails were stored and kept safe from hackers.
Did she break the law?
As an FBI investigation continues, expert opinion is divided. Some offer a view reminiscent of Bill Clinton’s famous remark that he experimented with marijuana but “didn’t inhale”. “I believe Clinton did break the law but at the same time I don’t think there’s evidence she committed a crime,” says Douglas Cox, associate professor at City University of New York School of Law.
It is a violation of federal records law to remove or destroy material, Cox notes, although Clinton “in part” fixed this by returning thousands of emails. More important in assessing whether a crime was committed is the question of intent, Cox says. “While there were warnings and memos that she should have been aware of, from a prosecution side they would need to prove her knowledge and intent and have evidence of that to bring before a jury.”
Cox believes such evidence is lacking. In this sense the case is different from those of retired general David Petraeus, former director of the CIA, and Sandy Berger, ex-national security adviser, both of whom handled information they knew was classified and were wilfully deceitful.
But a minority disagree with this analysis. Republican congressman Chris Stewart, who as a member of the House intelligence committee has read secret emails found on Clinton’s server, says: “She did reveal classified means. She did reveal classified methods. She did reveal classified human assets.”
Stewart, a former air force B1-bomber pilot, adds: “If I had behaved that way in the military, I would be very concerned about my legal future.”
State department and intelligence officials have identified 2,093 email chains from Clinton’s server as containing classified information. Twenty-two were deemed so highly classified that they were withheld from release to the public. Clinton contends that none of the messages was marked classified at the time.
But former US attorney Joseph DiGenova is blunt: “I don’t think there’s any question Mrs Clinton and her staff broke the law. She maintained a server in her private home in Chappaqua, New York, and conducted government business. This clearly was beyond gross negligence.
“When she set up the server, the intent was to avoid accountability. There is no other intent required. The notion this is not a violation of the law is ludicrous. If she and her staff get a pass, there will be hell to pay in the intelligence community.”
A critical editorial in the Washington Post said last month: “While not illegal behavior, it was disturbingly unmindful of the rules. In the middle of the presidential campaign, we urge the FBI to finish its own investigation soon, so all information about this troubling episode will be before the voters.”
So how likely is it that Clinton will be indicted when the FBI hands its report to the Department of Justice?
“That is not going to happen,” Clinton herself told Fox News on Wednesday. “There is no basis for it and I’m looking forward to it being wrapped up as soon as possible.”
Many analysts agree with her. Steven Aftergood, director of the Federation Of American Scientists Project on Government Secrecy, says: “I would estimate the probability at zero. There’s no criminal offence here; there’s bad policy practice. There’s possible obstruction of record management and freedom of information practices.”
Stephen Vladeck, law professor at American University Washington College of Law, adds: “I think an indictment is very unlikely because the evidence is very unclear that she broke the law and the statutes are vague and open-ended – and they are rarely enforced. It’s not a violation of US law to use unsecured forums to discuss sensitive information.”
But a longtime government lawyer, who does not wish to be named, muses: “My gut is telling me she won’t be indicted. It would also have told you Donald Trump won’t be nominated.”
Some are convinced she will be. Dave Handy, a political organiser who will represent Bernie Sanders as a delegate-at-large at the Democratic convention in Philadelphia, tweeted: “It’s going to be funny to watch when Hillary gets indicted, and all her supporters are like: [with a gif of a person’s head exploding].”
He says: “There’s been a large push online to say this investigation is over and Hillary Clinton has been cleared and nothing’s going to happen. I think that’s total bullshit in that no one knows what’s happening at the FBI and, if they did, they [the FBI or those outside the bureau with knowledge of the investigation] broke the law.
“I would hope that if the FBI determines that she has broken the law, she will be indicted. I would hope that we have the strength and courage as a country to hold everyone to the law.”
Dan Metcalfe, a Democrat who served as director of the Department of Justice’s Office of Information and Privacy for more than 25 years, wrote in a column last month: “So what you must contemplate, as a leader of the Democratic Party, is the very real possibility of your likely presidential candidate actually being indicted, on criminal charges, sometime between now and, say, (a) the time of the convention at the end of July; (b) the time of the general election in early November; or (c) Inauguration Day in January. Which possibility would you prefer?”
Is anyone else in the line of fire?
Yes. Clinton’s former chief of staff Cheryl Mills and her deputy Huma Abedin have both been interviewed by the FBI during the investigation and could be in more trouble than she is.
The nameless former government lawyer says: “Aides of hers are, sadly, in jeopardy. Did they transfer stuff from classified accounts to unclassified accounts, for example by retyping parts of messages on to a smartphone and sending them to Clinton? It’s the kind of thing people get indicted for.”
It seems highly unlikely that Barack Obama and the attorney general, Loretta Lynch, would do anything to jeopardise Clinton’s historic candidacy, which Obama backed on Thursday, he adds. “I can’t imagine Lynch doing it but it’s not inconceivable the FBI report will leak and say a lot of critical things. There’s nothing good coming out of that investigation.”
That could yet have political fallout before the election and, if she wins it, there might even be pressure for President Clinton to face a special prosecutor, like Richard Nixon before her.
If Clinton is indicted, what would happen?
Innocent until proven guilty, she would not be legally barred from running for president. Handy draws parallels with Sheldon Silver, the former speaker of the New York assembly who last month was jailed for 12 years for corruption.
“I would hope that she would step down but even given Shelly Silvers’ indictment, it took tremendous pressure to get him to step down as speaker. Even if there were an indictment, I don’t know if she would step aside. I would hope someone indicted would say, ‘For the good of the party, for the good of the nation.’ But her supporters would probably say, ‘She deserves her day in court’.”
While she would not be arrested, experts say, she would normally be expected to appear in court. The optics would be disastrous for a would be commander-in-chief but she could apply to have the charges dismissed or plead to a minor dismeanour in the hope that it would not necessarily disqualify her.
The political, media and public pressure on Clinton might be overwhelming, however, making her candidacy untenable and prompting a sensational, unprecedented and humiliating withdrawal.
Stewart says: “I don’t know how you couldn’t pull out, especially for something like this involving national security.”
Cox adds: “If charges came down before the convention, it would raise questions over whether the Democratic party really wanted to proceed with a nominee facing criminal charges but, again, I think it is very unlikely that is going to happen.”
But what if she is forced to pull out?
The Democratic party’s charter and bylaws state that responsibility for finding a replacement nominee would fall to the Democratic National Committee, but the rules do not specify exactly how this would be done.
Sanders would presumably claim that he should inherit the mantle of nominee after pushing Clinton close in the primaries and earning the right to face Donald Trump. Indeed, it has been speculated that the Vermont senator has clung on so long in case the FBI investigation proves a cataclysmic event for the former first lady and a gamechanger for him.
Handy, 28, says: “Obviously I would hope they would pick Bernie. Having watched him bring so many of my peers into the fold and being excited and engaged finally is such a breath of fresh air. It gives me hope for the future.
“But I think the party could be unified around a Joe Biden or an Elizabeth Warren. Both of these have very favourable numbers.”
Asked how he and other Sanders supporters would react to such a move, Handy replies: “I personally wouldn’t go ballistic. I can’t speak for everyone. I hope there’s unity in the party because at the end of the day the most important thing is stopping Donald Trump and winning down-ballot races. We have to take back the Congress.”
Biden held talks with Warren in Washington last August and it has been reported that he would have chosen her as his running mate if he had taken the plunge and run for president. If Clinton withdraws, that ticket could be revived.
Rich Galen, former press secretary to vice-President Dan Quayle, says: “I think Joe Biden would be the nominee in about 25 seconds. If his son Beau hadn’t died last year, he probably would have run and he probably would have won the nomination.
“It can’t be Bernie Sanders: I don’t care what the polls say, Americans are not going to elect a democratic socialist as the president of the United States.”
DiGenova concurs: “Joe Biden would be a natural. It’s well-known in Washington that he is tanned, rested and ready.”
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READ MORE: http://www.theguardian.com/us-news/2016/jun/10/hillary-clinton-emails-analysis-possible-indictment-fbi
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