Conservatives Are Already Preparing To Cry "Cover-Up" If Hillary Clinton Isn't Indicted

Conservatives Are Already Preparing To Cry "Cover-Up" If Hillary Clinton Isn't Indicted

››› ››› TYLER CHERRY

Right-wing media figures have been laying the foundation to allege a "scandal" and "cover-up" if the FBI's investigation into Democratic presidential front-runner Hillary Clinton's email server does not result in Clinton's indictment, thus setting her up for a lose-lose situation. Yet multiple law experts have explained that an indictment is highly unlikely.

Investigation Into Clinton's Email Use Is Reportedly Nearing Its End

LA Times: FBI Investigation "Moving Into Its Final Phases." A March 27 Los Angeles Times article reported that federal prosecutors "have begun the process of setting up formal interviews" in the investigation into Hillary Clinton's email server, "an indication that the inquiry is moving into its final phases." The Times noted, "Those interviews and the final review of the case, however, could still take many weeks." [Los Angeles Times, 3/27/16]

Right-Wing Media Have Breathlessly Claimed Clinton Broke The Law For Months

Fox's Sean Hannity: "I Believe" Clinton Broke The Law; "Yes, I Do." On the August 13 edition of Fox News' Hannity, Fox contributor Newt Gingrich claimed, "You know she broke the law," to which host Sean Hannity responded, "Yes, I do. I believe it." Gingrich then asserted that "no reasonable person can doubt that Secretary Clinton broke the law." [Fox News, Hannity, 8/13/15]

Fox's Andrea Tantaros: "Based On The Evidence That We've Seen So Far ... She Has Committed A Felony." On the March 10 edition of Fox News' Outnumbered, co-host Andrea Tantaros claimed that "based on the evidence that we've seen so far, the FOIAed emails, she has committed a felony." Tantaros added that Clinton's behavior was "highly illegal." [Fox News, Outnumbered, 3/10/16]

Fox's Andrew Napolitano: Clinton Committed A Felony, Intentionally Sent Classified Information To Aides. On the February 11 edition of America's Newsroom, Fox legal analyst Andrew Napolitano baselessly claimed that Clinton "sent out top secret emails, knowingly sending them to people who weren't authorized to receive them," which he claimed was a "felony." [Fox News, America's Newsroom, 2/11/16]

Radio Host Hugh Hewitt: "It's Clearly A Felony; I Think She's Going To Be Indicted." On the January 10 edition of ABC's This Week with George Stephanopoulos, conservative radio host Hugh Hewitt predicted that none of the Sunday morning political talk shows hosts would bring "up 18 USC 1924, a statute that former Secretary of State Clinton almost certainly broke," referencing a federal law that prohibits removal of classified information. He claimed that a then-newly released email showed "she directed Jake Sullivan to alter and send over a non-secure system" classified information, concluding, "It's clearly a felony; I think she's gonna be indicted." [ABC, This Week with George Stephanopoulos, 1/10/16]

National Review: "The Known Evidence That Mrs. Clinton Committed Federal Crimes Is Abundant." In a March 29 National Review post, Andrew McCarthy alleged, "The known evidence that Mrs. Clinton committed federal crimes is abundant, perhaps even overwhelming. It is manifest that she lawlessly transmitted and stored classified information outside its secure system, and that she caused her underlings to do so." [National Review, 3/29/16]

Fox's Steve Doocy: Clinton's Email Use Is "The Same Thing That David Petraeus Pleaded Guilty To." On the August 12 edition of Fox News' Fox & Friends, co-host Steve Doocy alleged that Clinton's private email use was "a direct violation of the U.S. law," and he hyped the debunked claim that Clinton's email use was similar to Gen. David Petraeus' illegal mishandling of confidential information. [Fox News, Fox & Friends, 8/12/15]

Ken Cuccinelli in NY Post: "Yes, Hillary Clinton Broke The Law." In a September 27 New York Post opinion piece, Republican operative Ken Cuccinelli claimed that "Hillary Clinton broke the law" with her use of a private email server and that "Mrs. Clinton is already in just as bad -- or worse -- of a legal situation than Petraeus faced." Cuccinelli claimed that Clinton violated all "five elements that must be met for a violation of the statute" 18 U.S. Code§ 1924 and that it is thus "likely that the FBI will recommend prosecution." [New York Post, 9/27/15]

National Review's Ian Tuttle: The Claim That Clinton "Did Nothing Unlawful" Is "Bunk." Ian Tuttle alleged in a March 3, 2015, National Review article that "Hillary Clinton broke the law" because "Clinton failed to follow procedures" in transferring "communications from her private account for preservation," among other alleged violations. [National Review, 3/3/15]

Fox's Charles Gasparino: There Is "Compelling Evidence That Clinton Broke The Law." A March 20 New York Post article by Fox Business senior correspondent Charles Gasparino alleged that FBI "investigators are increasingly certain that presidential nominee Hillary Clinton violated laws." Gasparino claimed that FBI agents believe Director James Comey" is getting stonewalled, despite uncovering compelling evidence that Clinton broke the law, "concluding that it's a "reality that Clinton's email server activities violated the law." [New York Post, 3/20/16]

Fox News Opinion Piece: Clinton's "Email Transgressions" Are A "Gross Mismanagement Of Classified Material That Happens To Violate The Law." In an August 13 Fox News opinion piece, former Rep. Pete Hoekstra (R-MI) and former Deputy Assistant Attorney General Victoria Toensing alleged that Clinton's "conduct" was "in violation of 18 USC 1924," and further wrote, "Let's cut the spin and identify her email transgressions for what they are: gross mismanagement of classified material that happens to violate the law." [FoxNews.com, 8/13/15]

Accordingly, Conservatives Have Been Preparing To Baselessly Crow "Scandal" And "Cover-Up" If Clinton Is Not Indicted

Lawyer Joseph DiGenova: The FBI Is Preparing To "Revolt" If Clinton Is Not Charged By The DOJ. On the January 5 edition of Courtside Entertainment Group's The Laura Ingraham Show, Joseph diGenova claimed that members of the intelligence community are "in the process of girding themselves to basically revolt against" Attorney General Loretta Lynch if she doesn't charge Clinton. DiGenova, a discredited Republican lawyer and longtime critic of the Clintons, added that Lynch wouldn't be able to survive the "massive revolt" within the FBI. [Courtside Entertainment Group, The Laura Ingraham Show, 1/5/16]

Radio Host Rush Limbaugh: "If DiGenova Is Right That There's This Mountain Of Compelling Evidence ... And If There Are No Charges," "The Purpose Here Obviously Is To Protect The Democrat Party." On the January 6 edition of The Rush Limbaugh Show, Rush Limbaugh quoted and parroted diGenova's claims, adding that if diGenova is right about the evidence against Clinton and "the Obama Department of Justice does not charge her, it's clear the reason will be so as to not destroy the Democrat Party's presidential prospects in November. Pure and simple." [Premiere Radio Networks, The Rush Limbaugh Show, 1/6/16]

Fox's Rudy Giuliani: "If She Doesn't Get Indicted, You Are Going To Have A Scandal." On the March 9 edition of The O'Reilly Factor, Fox frequent guest Rudy Giuliani claimed, "I think if she doesn't get indicted, you are going to have a scandal. I think there are FBI agents ready to come forward and say she should be indicted, she clear-out broke the law." [Fox News, The O'Reilly Factor, 3/9/16]

Fox's Andrea Tantaros: "I Think This Entire Administration Is In On It." On the March 28 edition of Fox News' Outnumbered, co-host Andrea Tantaros alleged that "this entire administration is in on" a cover-up, claiming, "I think the FBI will recommend charges" but "I do not believe the [the Department of Justice will indict." [Fox News, Outnumbered, 3/28/16]

Radio Host Mark Levin: "The United States Department Of Justice Under This President Is In Full Cover-Up Mode." On the September 2 edition of Fox News' Hannity, conservative radio host Mark Levin claimed that having "the criminal side of the FBI investigating" is "not enough," asking, "Where's the U.S. Attorney General? ... Where's the special prosecutor?" He ultimately alleged that "The United States Justice Department under this president is in full cover-up mode" and claimed that the Department of Justice (DOJ) won't appoint a special prosecutor or impanel a grand jury "only because it's Hillary Clinton." [FoxNews.com, 9/3/15]  

WSJ Editorial Board: "There's Reason To Doubt" The DOJ Will Conduct The Probe With Impartiality. A February 25 Wall Street Journal editorial claimed that "there's reason to doubt" the impartiality of the DOJ's probe because of the agency's alleged bias in the investigation into the "IRS targeting of conservative groups." The piece also said that having a "'career' official" lead the probe "doesn't guarantee an honest investigation." The editorial board concluded that it will "hope for the best" but speculated that an appointee of the next Republican president might have to "judge the evidence independently." [The Wall Street Journal, 2/25/16]

Fox's Dana Perino: "If She's Not Indicted ... It Just Exposes The Rot And Corruption" People Think Exists In The System. On the March 28 edition of Fox News' The Kelly File, Fox's Dana Perino said of Clinton, "If she's not indicted ... think about that. It just exposes the rot and corruption that the people on the other side think already exists in the system." [Fox News, The Kelly File, 3/28/16]

Commentator Ann Coulter: "There's Not Going To Be An Indictment ... Democrats Do Not Indict Democrats." In a February 3 interview with Breitbart News, conservative commentator Ann Coulter said, "No, there's not going to be an indictment. Not going to happen, over." She continued, "I haven't been paying attention to her particular law breaking, but I know Democrats. Democrats do not indict Democrats." [Breitbart.com, 2/3/16]

National Review's Andrew McCarthy: Indicting "Will Be The President's Call," But He's "Under Immense Political Pressure Not To Permit An Indictment." In a February 3 National Review article, Andrew McCarthy said "few people believe the decision whether to indict Mrs. Clinton will be made by Attorney General Loretta Lynch alone. It will be the president's call." He added that President Obama has a "conflict of interest" in the Clinton investigation because an indictment "might expose that Obama engaged in recklessness similar to Clinton's." McCarthy then suggested that "Obama is already under political pressure not to permit an indictment that would doom his party's presumptive presidential nominee," speculating that the pressure could be the reason "Clinton has not been charged already." [National Review, 2/3/16]

Radio Host Rush Limbaugh: "If Nothing Happens To" Clinton, "Respect For The Rule Of Law Just Goes By The Wayside." On the March 24 edition of The Rush Limbaugh Show, host Rush Limbaugh claimed that "nobody has any faith" in the rule of law when Democrats "are encharged with enforcing it," and he argued that "if nothing happens" to Clinton, "by definition, respect for the rule of law just goes by the wayside." Limbaugh concluded, "This is exactly why so many Americans look at the political establishment and think it's corrupt beyond repair." [Premiere Radio Networks, The Rush Limbaugh Show, 3/24/16]

Fox's Jesse Watters: "They're Not Going To Bring Charges Because Obama Cares More About His Legacy Than The Law." On the February 29 edition of The Five, Fox correspondent Jesse Watters claimed, "Lynch isn't going to prosecute. I think that she'll be indicted, but they're not going to bring charges because Obama cares more about his legacy than the law."[Fox News, The Five, 2/29/16]

Former IG  Howard Krongard: Clinton Will Not Be Indicted Because "There Are Four Loyal Democrats Standing In The Way." A February 2 Breitbart News article quoted former Inspector General Howard J. Krongard, who baselessly claimed Clinton wouldn't be indicted because "the decision to act on the FBI's recommendation would have to pass through 'four loyal Democrat women.'" The article noted, "Krongard is referring to Loretta Lynch and her deputies Leslie Caldwell and Sally Yates. In addition, Valerie Jarrett, one of President Obama's top advisers, could weigh in." [Breitbart.com, 2/2/16]

Radio Host Rush Limbaugh: Clinton Is Blackmailing Obama To Avoid Indictment Over Emails. On the August 28 edition of The Rush Limbaugh Show, host Rush Limbaugh questioned why there hadn't been an indictment yet and responded by saying, "Who knows what she's got on Obama. Who knows what she's got on Holder," adding that "the Clintons are experts and professionals at collecting data on people to be used in just these kinds of circumstances, to prevent people from taking action against them." [Premiere Radio Networks, The Rush Limbaugh Show, 8/28/15]

Conservative Watchdog: Lynch's "Partisan Leanings" Could Impede "The Right Prosecution Decision." On March 4, Matthew Whitaker, the executive director of the conservative watchdog group Foundation for Accountability & Civic Trust, told The Washington Times that Lynch shouldn't be the deciding vote on whether to indict Clinton because of Lynch's "partisan status." He added that while he's sure the FBI will "present the soundest case possible," he's "worried Mrs. Lynch will decide not to pursue it" because she's an Obama appointee. Whitaker called on the Obama administration to appoint a special counsel because "someone with a true independence from the Obama administration... is necessary to make the right prosecution decision." [The Washington Times, 3/4/16]

National Review's Andrew McCarthy: "Conventional Wisdom Holds That Lynch Will Decline Prosecution." In a March 29 National Review article, Andrew McCarthy speculated that, while "conventional wisdom holds that Lynch will decline prosecution," Lynch may "simply" decide to "do nothing" about the investigation. McCarthy noted, "The Justice Department never has to make a decision, never has to say 'yes' or 'no' to an indictment," and he ultimately speculated that Lynch might "tap dance for eight months" to stonewall the process and stall an indictment. [National Review, 3/29/16]

AllenBWest.Com's Michelle Jesse: Clinton "Will Avert Indictment By The ... Political Motives Of The Current Democrat Administration." Michelle Jesse wrote in a March 17 article for AllenBWest.com that "many of us fear Hillary Clinton will avert indictment by the sheer grace political motives of the current Democrat administration -- namely President Barack Obama and his Attorney General Loretta Lynch," alleging, "Perhaps Obama and Clinton know something the rest of America hasn't yet been let in on?" [AllenBWest.com, 3/17/16]

Fox's Andrew Napolitano: If The DOJ Doesn't Indict Clinton, "The Ensuing Scandal Would Be Almost As Treacherous ... As If She'd Been Indicted." On the April 21 edition of Fox Business' Varney & Co., Fox senior judicial analyst Andrew Napolitano claimed that "the public record has already revealed overwhelming evidence sufficient to indict and convict," and thus if Clinton isn't indicted, "the ensuing scandal would be almost as treacherous and dangerous and fatal to Mrs. Clinton's political career as if she had been indicted." Napolitano also said that Republican presidential front-runner Donald Trump's claim that the Democratic Party will protect Clinton from indictment was "a good point" and alleged that a "president ... is pretty much going to get his or her way and is not going to have someone indicted that he doesn't want indicted." [Fox Business, Varney & Co.4/21/16

Law Experts And Media Say Clinton Will Not Be Indicted

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 have told him an indictment is 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." Marshall writes, "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 media 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 also refuted the claim "that the case against Clinton is eerily similar to the charges against former general David Petraeus," stating that Clinton's situation "is nothing like that case" and "there are actually few or no similarities from a factual perspective." 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: "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 Clinton's email server. Mitchell said based on her intelligence community sources, there isn't "legal culpability." [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." [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." A March 27 Los Angeles Times report by Del Quentin Weber stated 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. In a March 22 article, Eric Tucker and Michael Biesecker of 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." [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'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."  [The American Prospect, March 2016; Media Matters, 3/21/16]

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. The article noted, "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." 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.' 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]

This post has been updated to include additional examples.

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