Right-wing media have consistently pushed the dubious claim that Democratic presidential candidate Hillary Clinton will be indicted for using a private email server during her time as secretary of state. However, legal and intelligence experts continue to point out that such claims baselessly speculate that the former secretary intentionally mishandled classified material, a crucial component of criminal charges.
Experts Explain Necessity Of “Intent” And “Motive” In Clinton FBI Investigation
TPM's Josh Marshall: Experts Agree Clinton Indictment “Chatter Is Just Plain Ridiculous.” As reported by Talking Points Memo editor, Josh Marshall, law professors and former federal prosecutors have told him “to a person” 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. [TPM, 2/1/15]
ABC News: “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 media outlets hyping the claim that Clinton will be indicted over her private server usage. Abrams added 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”:
[In the Wall Street Journal, Judge Michael Mukasey] seems to be arguing that because this all just feels wrong and even criminal-y, [Clinton] should at least be charged with a misdemeanor. That is, of course, not how the law can or should work. In fact, Judge Mukasey learned the hard way that misstating the law when discussing the case against Clinton can be hazardous. Judge Mukasey also echoed the conservative talking point that the case against Clinton is eerily similar to the charges against former general David Petraeus: “This is the same charge brought against Gen. David Petraeus for disclosing classified information in his personal notebooks to his biographer and mistress, who was herself an Army Reserve military intelligence officer cleared to see top secret information.” Except that it is nothing like that case. Apart from the possible charge, there are actually few or no similarities from a factual perspective as the lead prosecutor in the Petreaus case explained in an op-ed in USA Today:
"During his tenure as the commander of the International Security Assistance Force in Afghanistan, Petraeus recorded handwritten notes in personal journals, including information he knew was classified at the very highest level. . .
Both the law and his oath required Petraeus to mark these books as 'top secret' and to store them in a Secured Compartmented Information Facility. He did neither. Rather, Petraeus allowed his biographer to take possession of the journals in order to use them as source material for his biography.
Importantly, Petraeus was well aware of the classified contents in his journals, saying to his biographer, Paula Broadwell on tape, 'I mean, they are highly classified, some of them. They don't have it on it, but I mean there's code word stuff in there.' When questioned by the FBI, Petraeus lied to agents in responding that he had neither improperly stored nor improperly provided classified information to his biographer. Petraeus knew at that time that there was classified information in the journals, and he knew they were stored improperly."
In the law, intent can be everything. Petraeus clearly knew he was violating the law, but based on what we know today, 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. Even assuming for argument's sake she created the server to keep her emails out of the public eye, that is in no way remotely comparable to the Petraeus case. Efforts to contrast the two cases fall flat factually and legally.
To be clear, none of this means Clinton won't be charged. There may be a trove of non-public evidence against her about which we simply do not know. It's also possible that the FBI recommends charges and federal prosecutors decide not to move forward as occurs in many cases. No question, that could create an explosive and politicized showdown. But based on what we do know from what has been made public, there doesn't seem to be a legitimate basis for any sort of criminal charge against her. I fear many commentators are allowing their analysis to become clouded by a long standing distrust, or even hatred of Hillary Clinton. [ABC News, 2/1/16]
NBC's Andrea Mitchell: “I Don't Think There Is Legal Culpability Here.” On The February 1 edition of MSNBC's Morning Joe, Andrea Mitchell noted the lack of “intent” and “motive” in the FBI investigation over Hillary Clinton's email server. Mitchell said based on her intelligence community sources, there isn't “legal culpability”:
JOE SCARBOROUGH (CO-HOST): So Andrea, Hillary Clinton says it's just like Benghazi. It's obviously not like Benghazi. There are investigations going on, the State Department, their investigation is going on, obviously at the FBI and what Mark Halperin and I found so interesting is Friday morning -- I will just say, Chris [inaudible] e-mailed me and Chris was at “Morning Joe” now he is over at CBS and he said when do we start talking about all the chatter we're hearing from inside the administration about the investigation? I said, “Well, let's see.” And I talked about it on the air. We talked about what we've all heard inside Washington about this investigation being further along than expected. What was interesting was we got no push back. And then of course this big news dropped later in the day. What can you tell us?
ANDREA MITCHELL: First of all, Bernie Sanders, a complete switch, he has walked back from about October, now it matters. Okay. I'm not going to politicize it, but he's talking about it. What's happening with the FBI probe I think none of us know for sure, you're hearing a lot of stuff. They are looking at the security of the server, they're looking at aides because these were e-mails sent to her for the most part. The ones that were top secret were sent to her, do not originate from her.
MIKA BRZEZINSKI (CO-HOST): But were there interactions?
MITCHELL: So the question is the interactions. Exactly. Let's say they're forwarding an AP or New York Times story about the top secret drone program in Pakistan. So that is public source, but then the question is what did she say or what did someone when they forwarded to her say. It's those comments when they were forwarded that are the critical issue. And that's the vulnerability. Honestly from my sources and they go pretty high up including -- including some of the people who are doing the review for the -- inside the intelligence community, I don't think there is the legal culpability here. I don't think there is going to be what has been widely reported. For a bunch of reasons. You have to prove intent, you have to prove motive. [MSNBC, Morning Joe, 2/1/16]
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, 2015 piece that most criminal statutes involving classified information require “a knowing or intentional disclosure or mishandling” of the classified information. Levenson further pointed out “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]
Conservative Media Baselessly Hype The Probability Of A Clinton Indictment
Judge Michael Mukasey: Federal Indictment Against Secretary Clinton Would Be “Justified.” In a January 21 article in the Wall Street Journal, former judge Michael Mukasey and current national security adviser to Republican presidential candidate Jeb Bush, compared Clinton's private server use to Gen. David Petreaus's. Mukasey claimed based on frustration Clinton showed in her emails with classification regulations, we can conclude “she knew enough to support a conviction”:
While the State Department and intelligence agencies finish picking through messages recovered from the private email server Hillary Clinton used to conduct public business as secretary of state, the contents of the periodic document dumps have become increasingly sensitive. State has been referring any email that appears to contain sensitive information for further consideration by the agency with jurisdiction over the relevant data. Thus the most problematic emails are dribbling out last.
Yet--from her direction that classification rules be disregarded, to the presence on her personal email server of information at the highest level of classification, to her repeated falsehoods of a sort that juries are told every day may be treated as evidence of guilty knowledge--it is nearly impossible to draw any conclusion other than that she knew enough to support a conviction at the least for mishandling classified information.
This is the same charge brought against Gen. David Petraeus for disclosing classified information in his personal notebooks to his biographer and mistress, who was herself an Army Reserve military intelligence officer cleared to see top secret information.
The simple proposition that everyone is equal before the law suggests that Mrs. Clinton's state of mind--whether mere knowledge of what she was doing as to mishandling classified information; or gross negligence in the case of the mishandling of information relating to national defense; or bad intent as to actual or attempted destruction of email messages; or corrupt intent as to State Department business--justifies a criminal charge of one sort or another. [Wall Street Journal, 1/21/16]
Fox Contributor Baselessly Suggested Potential Petraeus Demotion “La[id] The Groundwork” For A Secretary Clinton Indictment. On the January 19 edition of Fox News' America's Newsroom, Fox contributor John Bolton floated the theory the Gen. David Petraeus' demotion was an effort from the White House to lay the “groundwork for an indictment” against Clinton:
BILL HEMMER (HOST): Quickly, in 20 seconds. Petraeus might be demoted? What's that about?
JOHN BOLTON: Well, I think this has to come from the White House. I can't see the Pentagon raising this issue again. And it leads me to wonder whether this is an effort to show that a harsher penalty against Petraeus may be laying the groundwork for an indictment against Secretary Clinton. [Fox News, America's Newsroom, 1/19/16]
Fox's Andrew Napolitano Predicts “Massive Resignations” Within FBI If Clinton Is Not Indicted. On the January 12 edition of Fox News' Fox & Friends, Fox's senior judicial analyst Judge Andrew Napolitano baselessly claimed Hillary Clinton instructed an aide to strip classification markings from a classified document and send it over a nonsecure fax machine, which he said “shows an intent and a willingness to violate the laws.” Napolitano also suggested Clinton herself could be the target of the FBI's investigation around her use of private email while in office. Fox & Friends host Steve Doocy then cited discredited Republican lawyer Joseph diGenova to claim that the FBI has “the goods on her” to secure an indictment:
ANDREW NAPOLITANO: Good morning, Steve. There's two investigations going on now. And both are coming to a head shortly. The first is the email investigation. Did she or did she not fail to secure national security secrets? The evidence that she failed to do that is overwhelming. Over the weekend, we've got two smoking guns, two emails from Mrs. Clinton to two separate aides. One says that document that says secret on it that you can't get to me using a State Department fax machine, don't worry, use another fax machine. The other, that document that says secret on it, referring to another document, get rid of the word “secret” before you send to me. That shows an intent and a willingness to violate the laws that require that you protect secrets.
STEVE DOOCY (HOST): She was telling her aide how to break the law.
NAPOLITANO: Precisely. We don't know if the aide did it.
DOOCY: It doesn't matter, does it?
NAPOLITANO: No it doesn't. Because it shows a willingness and an intent to break the law.
DOOCY: She has said on numerous occasions, the stuff on my private email that was unsecured? Nothing secret there. But now, as of yesterday, we're up to at least 1,340 classified emails.
NAPOLITANO: Correct. The other thing she said after Catherine's report came out yesterday, was, Fox News is wrong, I'm not being investigated. She would not know whether or not she's being investigated. There is no obligation of the Justice Department to tell her she's being investigated until they get closer to the end of their work.
DOOCY: And real quick exit question: alright, it sounds like the FBI is amassing all this data. It sounds like, from what you've said and what others have said, Joe diGenova said the other day, that they've got the goods on her. Next thing you know,OK,they just found it. They give it to the attorney general. If they decide not to prosecute her, what's going to happen inside the FBI?
NAPOLITANO: I think you will see massive resignations and almost a, if I could use the phrase, “Saturday Night Massacre,” the likes of which we saw at the time of Watergate. [Fox News, Fox & Friends, 1/12/16]
Joseph DiGenova: Hillary Clinton Will Not “Be Able To Complete Her Campaign” After Indictment For Committing “Numerous Federal Crimes” With Private Email Use. On the January 5 edition of Courtside Entertainment Group's The Laura Ingraham Show, host Laura Ingraham interviewed discredited Republican lawyer and longtime critic of the Clintons, Joseph DiGenova, who claimed that Hillary Clinton and her staff “have committed numerous federal crimes involving the negligence and improper handling of classified information” through her use of a private email account and server. DiGenova asserted that the FBI is “not going to be able to walk away from this,” claiming that the evidence is “so overwhelming” and stating that the FBI would “revolt” and “intelligence community will not stand for” it if Clinton is not indicted. From the interview:
LAURA INGRAHAM (HOST): Joining us now, one the greats in legal thinking, one of my favorite people, period, is Joe DiGenova, former U.S. attorney, founding partner of DiGenova & Toensing. He has really interesting information about Hillary's potential vulnerability as a candidate given the legality, illegality frankly of what's going on with these emails. He joins us now. Joe, it's great to talk to you, happy new year. So, she doesn't meet the threshold -- it's a court ordered threshold of the percentage of emails that had to be turned over. What they said at the end of the year, December 30th, they said, 'we've been working really hard and we did the best we could' basically. What's your reaction to this and what are your sources telling you?
JOSEPH DIGENOVA: Well I think the State Department production [of] documents is, of course -- was always going to be a problem because they have a person there who is trying to protect Hillary and has been from the very, very beginning, and that's Patrick Kennedy, the undersecretary for management. He has been the Maginot Line against governmental inquiries, against Freedom of Information Act requests, and his time is running out. He will be one of the people whose emails have finally been turned over to a House committee, I must say that it has taken this long for a House committee to get his emails is a disgrace to the investigative process in the House of Representatives, but those are comments for another show. Hillary Clinton's problem, by the way, does not, she's going to have problems because of what's in the emails, but also the classifications. Her biggest problem right now is the FBI. They're not going away, they have reached a critical mass in their investigation of the Secretary and all of her senior staff. And it's going to come to a head, I would suggest in the next 60 days. And I predict that Hillary will not make it to the finish line. She is not going to be able to complete her campaign. This criminal investigation must, out of necessity focus on her and all the people around her. And if Jim Comey, the FBI director, is doing his job, which I expect him to do as an honorable man, she cannot be the nominee of the Democratic Party, she's going to have to be charged with a crime. It's going to be a very complex matter for the Department of Justice, but they're not going to be able to walk away from it. She and her staff have committed numerous federal crimes involving the negligence and improper handling of classified information. They are now at over 1,200 classified emails, and that's just for the ones we know about, from the State Department, that doesn't include the ones that the FBI is in fact recovering from her hard drives.
INGRAHAM: Do you have confidence that Loretta Lynch -- from what we saw with her handling of the Baltimore riots and all that -- is going to okay, greenlight an indictment of Hillary Clinton in an election year?
DIGENOVA: I believe that the evidence that the FBI is compiling will be so compelling, that unless she agrees to the charges, there will be a massive revolt inside the FBI, which she will not be able to survive as an attorney general. It will be like Watergate, it will be unbelievable. The evidence against the Clinton staff and the secretary is so overwhelming at this point, that if in fact, she chooses not to charge Hillary, they will never be able to charge another federal employee with the negligent handling of classified information. The intelligence community will not stand for that, they will fight for an indictment and they are already in the process of girding themselves to basically revolt against the attorney general if she refuses to bring charges.
INGRAHAM: How much of this, Joe, is related to the bad blood between the Clintons and the intelligence agencies? I mean, there is so much bad blood already, aside from the illegality. But a lot of these government employees work really hard in the intelligence gathering and at the Justice Department. These are people who believe in law and order. They didn't much like what happened under the Clinton administration when it comes to this and they didn't much like what happened during the Obama administration and how they've been thrown under the bus on issue after issue, including on things like Benghazi, where --
DIGENOVA: Yes, well, I think you've hit on it, Laura. There is a massive breach between the intelligence community, the military community at the Department of State and the national security superstructure inside the intelligence community. There is vitriol of an intense amount developing. You can hear it in your conversations with people in the intelligence community. They will fight to the death if the attorney general attempts to bury this case. It's going to be very, very ugly for her and it's going to be an awful ending to the Obama administration, but one which they richly deserve. [Courtside Entertainment Group, The Laura Ingraham Show, 1/5/16]