Right-wing media are claiming that President Obama’s endorsement of presumptive Democratic presidential nominee Hillary Clinton is “a terrible conflict of interest," suggesting the FBI could otherwise indict Clinton but will not do so because of the endorsement. Mainstream media and legal experts have reported for months that the “chatter” that Clinton will be indicted “is just plain ridiculous,” noting that “there doesn’t seem to be a legitimate basis for any sort of criminal charge against” Clinton.
President Obama Endorses Presumptive Democratic Nominee Hillary Clinton
CNN: President Obama Endorses Hillary Clinton. President Obama endorsed presumptive Democratic presidential nominee Hillary Clinton in a video on June 9, saying of Clinton, “I don’t think there’s ever been someone so qualified to hold this office.” CNN reported that Clinton thanked the president for his endorsement, saying that it ”means so much to have a strong, substantive endorsement from the President.” [CNN.com, 6/9/16]
Right-Wing Media Claim That Endorsement Could “Nullify” FBI Investigation Into Clinton’s Email Server
RedState: “If Obama Publicly Endorses Hillary Clinton That Is A Clear Sign To Everyone That The Fix Is In And Hillary … Will Go Scot-Free.” A post from the right-wing website RedState characterized Obama’s endorsement as “helping elevate to the presidency a woman who has willingly used her office for personal gain, and made US top secret information vulnerable to foreign intelligence services and who may have actually engaged in the sale/barter of US secrets for profit." The post also alleged that the president’s endorsement of Clinton “is a clear sign to everyone that the fix is in and Hillary and her inner circle will go scot-free for the same thing Aldrich Ames is serving a life sentence for.” From the June 9 post:
I think this is exactly right though it will hardly deter a man who sees the Constitution as an impediment to be disregarded rather than a sacred treasure requiring devoted and faithful stewardship. Obama has never shied away from using the prestige of the presidency to influence judicial proceedings, left, right, and center. But there is a difference between trying to have an innocent man railroaded for murder for killing a brutal thug in self-defense and helping elevate to the presidency a woman who has willingly used her office for personal gain, and made US top secret information vulnerable to foreign intelligence services and who may have actually engaged in the sale/barter of US secrets for profit.
No matter how “independent” FBI Director James Covey claims to be, he cannot indict Hillary. And the US Justice Department is led by Obama's political appointees who are not only beholden to Obama for their job but who know that if they act to prosecute Hillary and her inner circle, against Obama's stated wishes which is what an endorsement would signify, that their political careers are finished. If Obama publicly endorses Hillary Clinton that is a clear sign to everyone that the fix is in and Hillary and her inner circle will go scot-free for the same thin Aldrich Ames is serving a life sentence for. [RedState, 6/9/16]
Fox’s Napolitano: FBI’s Work “Could Be Nullified Because Of The President’s Political Wishes.” Fox senior judicial analyst Andrew Napolitano claimed that President Obama’s endorsement of Hillary Clinton sends the message to FBI Director James Comey and Attorney General Loretta Lynch that “I know you’re investigating somebody, but I really want her to succeed me.” Napolitano also asserted that the work of the FBI “could be nullified because of the president’s political wishes” and it could be difficult for them to “continue with this investigation knowing that [their] boss wants this person who is the target of the investigation to succeed him.” From the June 9 edition of Fox News’ Fox & Friends:
STEVE DOOCY (CO-HOST): Reports suggest President Obama may actually publicly endorse Hillary Clinton for president in the next couple of days after he sits down with Bernie Sanders. So where does that leave FBI Director James Comey and Attorney General Loretta Lynch, both Obama appointees tasked in investigating Clinton for espionage and public corruption? Let’s talk to Fox News senior judicial analyst Judge Andrew Napolitano. Judge, this does put the whole situation in a curious state, because you've got the president of the United States, the chief law enforcement officer for the U.S., and yet he's got his arm around Hillary saying, “You know what? We need to elect her president of the United States.” What does that say to Comey and Lynch?
ANDREW NAPOLITANO: Well it not only says to Comey and Lynch, I know you're investigating somebody, but I really want her to succeed me. It says the same thing to the FBI agents in the field. You're talking about hundreds of human beings -- federal prosecutors, FBI agents, investigators, clerks, researchers -- and thousands of person hours investigating Mrs. Clinton on two fronts. The email scandal, which is potential espionage, the failure to keep safe state secrets that have been put in your hands, and public corruption, making decisions as secretary of state to benefit her husband’s foundation. So these people are saying, “Well now our work could be nullified because of the president’s political wishes.” He's not saying stop investigating her. He’s not saying we're not going to present this to a grand jury, but how can we continue with this investigation knowing that our boss wants this person who is the target of the investigation to succeed him? That’s called a conflict. [Fox News, Fox & Friends, 6/9/16]
Megyn Kelly: Obama’s Endorsement Of Clinton Could Be “A Terrible Conflict Of Interest” While “His DOJ And FBI Are Investigating Her Criminally.” Fox host Megyn Kelly asserted that Obama’s endorsement of Clinton raises “a dramatic new question … about whether such an endorsement would create a terrible conflict of interest for this administration.” Kelly went on to ask Fox contributor Karl Rove, “How can he be endorsing her at the same time his DOJ and FBI are investigating her?" From the June 8 edition of The Kelly File:
MEGYN KELLY (HOST): Breaking tonight, with Hillary Clinton now the presumptive Democratic nominee and reports the president could endorse her at any point, there’s a dramatic new question tonight about whether such an endorsement would create a terrible conflict of interest for this administration.
Tonight we are hearing rumblings that President Obama's endorsement of Hillary Clinton could come at any time. While that would hardly be a surprise, it has the potential to be problematic for those who report to President Obama. Here's why. Right now, President Obama's FBI director and his attorney general are overseeing the unprecedented investigations into Mrs. Clinton's emails. And Fox News has reported, as well, her foundation. A probe that could result potentially in her indictment. That has some legal experts asking how this administration could both support her campaign and investigate her criminally all at the same time. Judge Andrew Napolitano reached out to us today after a source approached him about the conflict now facing the prosecutors and the FBI agents on this case.
KELLY: Karl, do you see this as a potential issue? You can see it just on paper. How can he be endorsing her at the same time his DOJ and FBI are investigating her criminally?
KARL ROVE: Yeah, I think it would probably be in the best interest of the country and frankly in the best interest of Mrs. Clinton if the president held off his endorsement for now. There’s no magic in him endorsing now or endorsing after the Democratic convention. But if he were to endorse now and something were to happen where either the former secretary of state or some of her closest aides somehow were indicted, and/or that the FBI more likely recommended that they be indicted and the main Justice Department turned it down, believing it lacked credibility, then people would worry about whether this was all done because the president put his finger on the scale. [Fox News, The Kelly File, 6/8/16]
Legal Experts And Media Say Clinton Likely Will Not Be Indicted
WSJ: “Several Law-Enforcement Officials Said They Don’t Expect Any Criminal Charges To Be Filed As A Result Of The Investigation.” The Wall Street Journal reported on June 9 that “several law-enforcement officials said they don’t expect any criminal charges to be filed as a result of the investigation.” [The Wall Street Journal, 6/9/16]
Politico: Cases That Lead To An Indictment Have “Almost Always” Included “Aggravating Circumstances That Don’t Appear To be Present In Clinton’s Case.” Politico’s Josh Gerstein reviewed “dozens of federal indictments for mishandling of classified records” and reported that an indictment of Clinton for her use of a private email server is “highly unlikely.” He also noted that the cases that did lead to an indictment “almost always” included “a deliberate intent to violate classification rules” and “aggravating circumstances that don’t appear to be present in Clinton’s case.” From the April 11 article:
The examination, which included cases spanning the past two decades, found some with parallels to Clinton’s use of a private server for her emails, but — in nearly all instances that were prosecuted —aggravating circumstances that don’t appear to be present in Clinton’s case.
The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form.
Clinton herself, gearing up for her FBI testimony, said last week that a prosecution is “not gonna happen.” And former prosecutors, investigators and defense attorneys generally agree that prosecution for classified information breaches is the exception rather than the rule, with criminal charges being reserved for cases the government views as the most egregious or flagrant. [Politico, 4/11/16]
TPM's Josh Marshall: Experts Agree Clinton Indictment “Chatter Is Just Plain Ridiculous.” Talking Points Memo editor Josh Marshall reported on February 1 that law professors and former federal prosecutors told him an indictment is a “far-fetched” idea and “the possibility of an indictment, most of this chatter is just plain ridiculous -- a mix of ignorance and tendentiousness.” Marshall explained, “The simple facts, as we know them, just don't put her in line for an indictment.” [Talking Points Memo, 2/1/16]
ABC News' Dan Abrams: “There Doesn't Seem To Be A Legitimate Basis For Any Sort Of Criminal Charge Against Her.” In a February 1 article, ABC News legal analyst Dan Abrams debunked claims that Clinton will be indicted over her private server usage, writing that “there is no evidence - not suppositions or partisan allegations but actual evidence - that Clinton knew that using a private email server was criminal or even improper at the time.” Abrams concluded that “there doesn't seem to be a legitimate basis for any sort of criminal charge against her.” [ABCNews.com, 2/1/16]
NBC's Andrea Mitchell: There Isn’t “Legal Culpability” To Indict Clinton. NBC correspondent and anchor Andrea Mitchell noted there is a lack of “intent” and “motive” in the FBI investigation over Clinton's email server. Mitchell said on the February 1 edition of MSNBC’s Morning Joe that based on her intelligence community sources, there isn't “legal culpability” to indict Clinton. [MSNBC, Morning Joe, 2/1/16]
National Law Journal's Laurie Levenson: “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. 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 disclosure.” [The National Law Journal, 9/21/15]
LA Times' Del Quentin Wilber: “Legal Experts Believe Clinton Faces Little Risk Of Being Prosecuted For Using The Private Email System.” Del Quentin Weber explained a March 27 Los Angeles Times report that “legal experts believe that Clinton faces little risk of being prosecuted for using the private email system to conduct official business.” Weber 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.” He also notes that the “chances she will be found criminally liable are low.” [Los Angeles Times, 3/27/16]
AP's Eric Tucker and Michael Biesecker: “Several Legal Experts” Agree That “It's A Stretch” To Say That Clinton Could Be Indicted. Eric Tucker and Michael Biesecker of the Associated Press reported in a March 22 article 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.” [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 21 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 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." [The American Prospect, March 2016; Media Matters, 3/21/16]
Former House Judiciary Officials: “There Is Clearly No Evidence Of Any Kind Of Crime.” Former counsels to the House Judiciary Committee Julian Epstein and Sam Sokol wrote in an August 23 USA Today column there is “clearly no evidence of any kind of crime” committed by Clinton through the use of her private email server. The article noted that “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.” [USA Today, 8/23/15]
New Yorker's Jeffrey Toobin: “This Is Not Now A Criminal Matter, And There Is No Realistic Possibility It Will Turn Into One.” New Yorker staff writer and CNN senior legal analyst Jeffrey Toobin explained in an August 18 article, “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.” Toobin concluded, “This is not now a criminal matter, and there is no realistic possibility it will turn into one.” [The New Yorker, 8/18/15]