Fox's Andrew Napolitano and Andrea Tantaros and MSNBC's Joe Scarborough cited a March 27 report from the Los Angeles Times to push the possibility that Hillary Clinton used a private email server unlawfully, claiming she “might be a criminal defendant in a felony prosecution.” But the Times article quotes legal experts who say there is “no reason to think Clinton committed any crimes with respect to the use of her email server,” and the piece says the chances of a finding of criminal liability are “low.”
LA Times Reports That Officials May Interview Clinton And Aides About Emails
LA Times: Federal Prosecutors “Have Begun The Process Of Setting Up Formal Interviews” With Clinton Aides Over Email Practices. A March 27 Los Angeles Times article reported that the federal prosecutors investigating former Secretary of State Hillary Clinton's private email server “have begun the process of setting up formal interviews with some of her longtime and closest aides.” The article said the planned meetings “are also an indication that much of investigators' background work ... is nearing completion”:
Federal prosecutors investigating the possible mishandling of classified materials on Hillary Clinton's private email server have begun the process of setting up formal interviews with some of her longtime and closest aides, according to two people familiar with the probe, an indication that the inquiry is moving into its final phases.
Those interviews and the final review of the case, however, could still take many weeks, all but guaranteeing that the investigation will continue to dog Clinton's presidential campaign through most, if not all, of the remaining presidential primaries.
No dates have been set for questioning the advisors, but a federal prosecutor in recent weeks has called their lawyers to alert them that he would soon be doing so, the sources said. Prosecutors also are expected to seek an interview with Clinton herself, though the timing remains unclear.
The interviews by FBI agents and prosecutors will play a significant role in helping them better understand whether Clinton or her aides knowingly or negligently discussed classified government secrets over a non-secure email system when she served as secretary of State.
The meetings also are an indication that much of the investigators' background work - recovering deleted emails, understanding how the server operated and determining whether it was breached - is nearing completion. [Los Angeles Times, 3/27/16]
Media Use Report To Hype Clinton Wrongdoing
Fox's Andrew Napolitano: Clinton “Might Be A Criminal Defendant In A Felony Prosecution” For Her Email Setup. On the March 28 edition of Fox News' Fox & Friends, Fox senior judicial analyst Andrew Napolitano discussed the LA Times report, claiming that Clinton “could be prosecuted for failure to safeguard secrets” in her email, and asserting that she “might be a criminal defendant in a felony prosecution” for her email setup:
BRIAN KILMEADE (HOST): Federal prosecutors handling Hillary Clinton's email server investigation have started a new phase of the probe, setting up the formal interviews with some of her longtime and closest aides, and an interview with Hillary Clinton herself. So, what happens now? Here now to weigh in on this -- the guy's been all over this from day one -- Fox News senior judicial analyst, Judge Andrew Napolitano. Judge, what do you mean the interviews are just starting? They've been just accruing the background information to set them up on who they should be talking to one-on-one?
ANDREW NAPOLITANO: Precisely, Brian. The interview stage of people who are either potential targets, meaning they could have committed a crime and they might be prosecuted, or people with exceptional knowledge of the case who have not yet given anything voluntarily to the FBI is the last phase. There's 147 FBI agents that have been working on this for over a year. They have a mountain of evidence. They are now ready to test that evidence by asking questions of these aides around Hillary. There's about five of them and they are publicly known. They each have their own lawyers and they have to decide whether or not to go in. If they go in, they're not under oath. But it is very, very dangerous because if they mislead or lie to the FBI, that's a felony, the equivalent of perjury. And they can be prosecuted. And they do not know and their lawyers do not know what the FBI knows about them.
NAPOLITANO: Look, on Clinton's first day in office, Brian, she got a two-hour FBI tutorial which everybody gets who's entrusted with the government secrets. And among other things in the tutorial, she promised as a result at the end of the tutorial under oath that she would recognize secrets when she saw them and she had an absolute duty to safeguard secrets and she could be prosecuted for failure to safeguard secrets, even if that failure was negligent. The next day is when Brian Pagliano began the migration of the two email streams over to her server in Chappaqua. Did she tell that to the FBI? Of course not.
KILMEADE: When are we going to find out what's going to go on, if anything?
NAPOLITANO: The timing is very, very treacherous. I would think that Democrats need to know whether or not they're about to nominate somebody for president who might be a criminal defendant in a felony prosecution before November. [Fox News, Fox & Friends, 3/28/16]
MSNBC's Scarborough: “The Scale Of This Is So Remarkable.” During a discussion of the Los Angeles Times report on the March 28 edition of MSNBC's Morning Joe, host Joe Scarborough referred to “the scale” of the investigation into Clinton's email arrangement as “so remarkable” and said, “I do not know how [FBI Director] James Comey doesn't do something definitive, election year or not”:
MIKA BRZEZINSKI (CO-HOST): The Los Angeles Times reports this morning that the investigation into Hillary Clinton's email server is about to enter a new phase. The paper cites two sources familiar with the probe, who say that federal prosecutors have begun to step up formal interviews in the coming weeks with longtime Clinton aides.
JOE SCARBOROUGH (CO-HOST): The bar is reckless use of classified information,and I will tell you if an FBI agent took a classified document out and went and just left it in a coffee shop and then went back, you know, their career would be over. I can tell you also that if I had gone to an intel briefing and they had told me what happened, you know, in whatever program and then I went back to my office and I sent an email,as a congressman,out about the information that I learned in that intel briefing, they would be in my office in three hoursand would say,“Congressman, you need to get an attorney because that's illegal.” And the scale of this is so remarkable. I do not know how [FBI Director] James Comey doesn't do something definitive, election year or not. [MSNBC, Morning Joe, 3/28/16]
Fox's Andrea Tantaros: “There Is A Strong Chance” Clinton Aides Will Go To Jail, “FBI Will Recommend Charges” Against Clinton, And “She Should Go To Jail.” On the March 28 edition of Fox News' Outnumbered, co-host Andrea Tantaros commented on the LA Times article, saying “I think this is a big deal.” Tantaros claimed “there is a strong chance that either of” Clinton's former aides “will go to prison,” and that Clinton “should go to jail ... the FBI will recommend charges,” but that they will not indict Clinton because “this entire administration is in on it”:
LISA KENNEDY MONTGOMERY (CO-HOST): The federal probe into Hillary Clinton's email scandal could be moving into its final phase. A new report from the LA Times says federal prosecutors are beginning to set up formal interviews with some of Clinton's long-time aides. Those interviews will help the FBI and federal prosecutors find out if Clinton or her aides knowingly discussed classified government secrets over a nonsecure personal server when she served as secretary of state. The report says the Democratic presidential candidate could also be interviewed but no word when that would take place. So Howie, I have to ask, what do you think about this? Is it a formality bringing in some of her long-term aides or are they really on to something?
ANDREA TANTAROS (CO-HOST): Well I think as far as bringing in the aides I think this is a big deal. We know from the FOIAed emails that Cheryl Mills and Huma Abedin were colluding to suppress evidence. So FBI works, as everybody knows, they collect all the data, then they bring in the suspects, right? And then they ask them these questions. If Huma or if Cheryl Mills tries to lie to the FBI that is a felony, 10 years immediately. That is how they always get everybody. One hundred percent conviction rate. That's how they got Martha Stewart. All you have to do is lie. All you have to do is cover up. We know though that they've already acted together to collude that evidence. So I think there is strong chance that either of these two women will go to prison. Hillary Clinton I don't believe they will indict her. I think this entire administration is in on it. I think that she should go to jail but I do not believe that they will indict. I think the FBI will recommend charges. [Fox News, Outnumbered, 3/28/16]
LA Times Report Notes That Experts Say “Clinton Faces Little Risk Of Being Prosecuted”
LA Times: “Legal Experts Believe Clinton Faces Little Risk Of Being Prosecuted For Using The Private Email System.” The March 27 Los Angeles Times report cited by Fox and MSNBC stated that “legal experts believe that Clinton faces little risk of being prosecuted for using the private email system to conduct official business.” The Times reported that experts say that “using a private email system was not banned at the time, and others in government had used personal email to transact official business,” and the article says the “chances she will be found criminally liable are low”:
Many legal experts believe that Clinton faces little risk of being prosecuted for using the private email system to conduct official business when she served as secretary of State, though that decision has raised questions among some about her judgment. They noted that using a private email system was not banned at the time, and others in government had used personal email to transact official business.
The bigger question is whether she or her aides distributed classified material in email systems that fell outside of the department's secure classified system. But even if prosecutors determine that she did, chances she will be found criminally liable are low. U.S. law makes it a crime for someone to knowingly or willfully retain classified information, handle it in a grossly negligent manner or to pass it to someone not entitled to see it. [Los Angeles Times, 3/27/16]
Plus, Legal Experts Say Elsewhere That Clinton Is Not Likely To Be Indicted Over Private Email Use
AP: “Several Legal Experts” Agree That “It's A Stretch” To Say That Clinton Could Be Indicted. In a March 22 article, the Associated Press reported that “several legal experts” said that “it's a stretch” to apply “laws that govern the handling of classified materials” to Clinton's email use, pointing out that Clinton's “communication of sensitive materials was with aides -- not a national enemy”:
Asked earlier this month whether she'd be indicted over her use of a private email server as secretary of state, Hillary Clinton responded, “It's not going to happen.”
Though Republicans characterized her response as hubris, several legal experts interviewed by The Associated Press agreed with the front-runner for the Democratic presidential nomination.
The relatively few laws that govern the handling of classified materials were generally written to cover spies, leakers and those who illegally retain such information, such as at home. Though the view is not unanimous, several lawyers who specialize in this area said it's a stretch to apply existing statutes to a former cabinet secretary whose communication of sensitive materials was with aides - not a national enemy. [Associated Press, 3/22/16]
Former Homeland Security Classification Expert: “There Is No Reason To Think Clinton Committed Any Crimes With Respect To The Use Of Her Email Server.” In a March piece for The American Prospect, Richard Lempert -- a University of Michigan professor of law and sociology and a former Department of Homeland Security classification expert -- said that thus far there's “no reason to think that Clinton committed any crimes with respect to the use of her email server, including her handling of classified information”:
Should Clinton be indicted?
Based on what has been revealed so far, there is no reason to think that Clinton committed any crimes with respect to the use of her email server, including her handling of classified information. While it is always possible that information not revealed will change this picture, at the moment Clinton's optimism that she will not be criminally charged appears justified. [The American Prospect, March 2016; Media Matters, 3/21/16]
TPM's Josh Marshall: Experts Agree Clinton Indictment “Chatter Is Just Plain Ridiculous.” In a February 1 article, Talking Points Memo editor Josh Marshall reported that law professors and former federal prosecutors have told him that the chances of an indictment are a “far-fetched” idea and that “on the possibility of an indictment, most of this chatter is just plain ridiculous -- a mix of ignorance and tendentiousness”:
[A]s a legal matter, the chances of Hillary Clinton facing any kind of indictment are very, very low.
Start with the fact that as far as we know, she is not actually even being investigated for anything, let alone facing a looming indictment. The simple facts, as we know them, just don't put her in line for an indictment. The first reason is the facts, which rest heavily on intent and reckless negligence. The second is tradition and DOJ regulations which make professional prosecutors very leery of issuing indictments that might be perceived or in fact influence an election. This was my thinking. But as the press coverage has become increasingly heated, I started trying to figure out if there was something I was missing - some fact I didn't know, some blindspot in my perception. So I've spoken to a number of law profs and former federal prosecutors - based on the facts we know now even from the most aggressive reporting. Not like, is this theoretically possible? Not, what the penalties would be if it happened. But is an indictment at all likely or is this whole idea very far-fetched. To a person, very far-fetched.
So why the press coverage? I think it's a combination of reasons. The most irreducible and perhaps most significant is simply prestige reporter derp and general ignorance of the legal system. Second is journalists' perennial inability to resist a process story. And third, let's be honest, wingnut page views.
As I've said, the political calculus and potential political damage is a different matter altogether. There is little doubt that this whole on-going controversy, along with stuff in the background about the Clinton Foundation, have hurt Clinton badly on public estimations of her honesty and trustworthiness. But again, on the possibility of an indictment, most of this chatter is just plain ridiculous - a mix of ignorance and tendentiousness. [Talking Points Memo, 2/1/16]
Former House Judiciary Officials: “There Is Clearly No Evidence Of Any Kind Of Crime.” In an August 23 column for USA Today, former counsels to the House Judiciary Committee Julian Epstein and Sam Sokol said there is “clearly no evidence of any kind of crime” committed by Clinton through the use of her private email server:
We've seen this movie before. And it always ends the exact same way.
Hyperventilating Republicans rush to the cameras claiming they've found the smoking gun proving their political opponents aren't just wrong, but that they're criminals. Traffic hungry reporters take “off the record” spin and run with it, publishing dramatic (and click-driving) stories predicting perp walks any day. Then months later, when the facts actually come out, there is far less to the story than meets the eye.
We saw it in its purest form during the Dan Burton Whitewater years and more recently with a string of supposed Obama Administration scandals from Fast and Furious to the IRS. Lois Lerner may have been guilty of bad management but, despite the calls of Republicans from both ends of Capitol Hill, she is most definitely not in jail.
And it is happening again right now with the overblown, misunderstood controversy regarding Hillary Clinton's decision to use a private email server during her service as secretary of State.
There are legitimate questions to be asked about that decision of course. Clinton herself has said she regrets it. And Republicans who want to argue it shows bad judgment certainly are entitled to do so.
But a bad decision is not a crime. Using a personal email server for State Department work during Secretary Clinton's tenure was not a crime; the statute requiring official email accounts for official business wasn't even passed until 2014.
And receiving or transmitting information that was not known to be classified at the time also was not a crime. This is true even if the information was mislabeled or misclassified. And reports that a larger number of emails are now under review don't change this -- the essential fact remains that there is no evidence that Secretary Clinton sent or received any email marked classified.
Republicans hoping to beat Hillary Clinton aren't going to be bailed out by some mythical criminal prosecution in a case where there is clearly no evidence of any kind of crime. [USA Today, 8/23/15]
National Law Journal: “An Analysis Of Classified Information Laws Shows It Takes Intentional Disclosure To Get An Indictment.” The National Law Journal's Laurie Levenson noted in a September 21 piece that most criminal statutes involving classified information require “a knowing or intentional disclosure or mishandling” of the classified information, which does not apply in Clinton's case. Levenson further pointed out that “it is difficult to find prior cases where the unwise handling of classified information led to a federal indictment. For the last 20 years, the federal statutes have been used when there were intentional unauthorized disclosures”:
Thus, in sorting out Hillary Clinton's actions, there are at least two critical questions: First, to what extent was using a private email server an “unauthorized” handling of classified information. Second, did Clinton ever knowingly mishandle classified information or act in a grossly negligent manner that led to information being lost, destroyed or stolen?
Politics aside, it is difficult to find prior cases where the unwise handling of classified information led to a federal indictment. For the last 20 years, the federal statutes have been used when there were intentional unauthorized disclosures. The Department of Justice appears to have gone after “leakers,” but not bunglers. Twenty years ago, John Deutsch found himself in hot water and the target of a DOJ investigation for transferring classified materials to his government-owned computer at home -- a computer that he used to access a wide range of Internet searches. He was never charged; President Bill Clinton pardoned Deutsch on his last day as president. It remains to be seen what will happen in Hillary Clinton's case. [National Law Journal, 9/21/15]
New Yorker's Jeffrey Toobin on Clinton Emails: “This Is Not Now A Criminal Matter, And There Is No Realistic Possibility It Will Turn Into One.” In an August 18 article, New Yorker staff writer and CNN senior legal analyst Jeffrey Toobin noted, “Criminal violations for mishandling classified information all have intent requirements” and there is “no evidence she” knew the information was classified and disclosed it on purpose to “an unauthorized person”:
The consequences for Clinton, in the midst of a Presidential run, are far more likely to be political than legal. Criminal violations for mishandling classified information all have intent requirements; in other words, in order to be guilty of a crime, there must be evidence that Clinton knew that the information was classified and intentionally disclosed it to an unauthorized person. There is no evidence she did anything like that. This is not now a criminal matter, and there is no realistic possibility it will turn into one. [The New Yorker, 8/18/15]
This post has been updated to include additional examples.