It may not sound like it at first, but the FBI’s decision to move fast on its investigation of Hillary Clinton’s email practices is good news for the Democratic front-runner.
Federal prosecutors have begun setting up formal interviews with Clinton’s advisors. After those sessions, they’re expected to seek an interview with the candidate herself. Clinton has long said she will cooperate.
Signs are that FBI Director James Comey, who has personally overseen the inquiry, wants to get the probe done before the Democratic Convention in July. Comey understandably wants to avoid any appearance of sitting on information that could influence a presidential election.
But it’s also in Clinton’s interest to get the case over with as soon as possible, because, in the end, she’s unlikely to face prosecution. The cloud of suspicion is worse than the likely outcome.
Let’s not mince words: Clinton screwed up. Instead of using the State Department’s email system, she decided to send business messages through a private, unsecured system set up by a former campaign aide. That was contrary to State Department policies, some of them promulgated by Clinton herself.
Clinton said she decided to use a private server as a matter of “convenience.” To many of us, it looked more like a Clintonian urge to keep control over information. Either way, it wasn’t her decision to make. After months of public criticism, Clinton eventually acknowledged that she’d erred.
But did she commit a crime?
Washington lawyers who specialize in national security law say the answer is “no.” While Clinton’s gambit was foolish and dangerous, it wasn’t an indictable offense.
The laws governing the misuse of classified information require that the offender knew the material was classified and either delivered it to someone who wasn’t authorized to receive it or removed it from government custody “with the intent to retain” it.
So the first test is whether Clinton knew she was putting classified information into an unclassified system. Clinton and her aides have insisted that she didn’t. They say none of her emails included material that was marked as classified at the time.
Some of her emails were later reclassified, including 22 that have been designated “top secret” – but they weren’t classified when she sent or received them.
Second, did she “willfully communicate” classified information to anyone not authorized to receive it? She says she didn’t, and there’s no known evidence that she did. Most of her exchanges were with other officials who were cleared to look at secret material.
Third, did she remove classified information “with the intent to retain such documents or materials at an unauthorized location”?
“If all she was doing was exchanging emails with her staff, I don’t think they can prove that she had the intent to retain anything,” a former top government lawyer told me.
The FBI won’t make the decision whether to prosecute Clinton. That will be up to the Justice Department, after the FBI delivers its report. At that point, prosecutors will have to consider several recent cases that count as precedents.
In 2015, retired Army Gen. David Petraeus was prosecuted for giving top secret notebooks to his mistress, who was writing a book about him. (“Highly classified,” he told her – so he knew what he was doing.) Petraeus pleaded guilty to a single misdemeanor count of mishandling classified information and was fined $100,000.
Here’s a better analogy: Beginning in 1998, former CIA Director John M. Deutch was investigated for storing highly classified documents on a personal computer connected to the Internet. The Justice Department initially declined to prosecute. After a public outcry the case was reopened, and Deutch negotiated a misdemeanor plea, but he was pardoned by then-President Bill Clinton.
The Petraeus and Deutch cases both included material that was highly classified, and both defendants clearly knew it. If Clinton’s case doesn’t clear that bar, it would be difficult for the Obama Justice Department to explain why she merits prosecution.
This isn’t to excuse her conduct; it’s just a diagnosis of the way the law works.
In political terms, a bigger danger to Clinton may be the counterintelligence question: Did spies from China, Russia or some other country penetrate her server? If so, some voters might conclude that poor judgment should disqualify Clinton for the presidency. Clinton may want that part of the investigation to take as long as possible.
But my bet is that, unless new facts emerge, the potentially criminal part of her case will end this summer with the Justice Department declining prosecution. At that point, it will be up to the government to lay out the facts, and let the voters decide what they think.
Reach Doyle McManus at firstname.lastname@example.org.