Will Hillary Clinton be indicted over her private email server?

posted at 1:21 pm on March 9, 2016 by John Sexton

Hillary Clinton’s homebrew server has been in the news for a year at this point. With the FBI set to wrap up their investigation of potential security violations in the next two months, is it possibly Clinton herself could face an indictment?

There are really two parts to this question. First, is there any evidence that Clinton or someone working for her violated the law. Second, even if such evidence exists is it likely that the FBI will recommend prosecuting the front-runner for the Democratic nomination?

With regard to the first question, only the FBI knows for certain whether there is any evidence of wrong doing, but it’s already not difficult to see where Clinton might be in trouble and where she probably is not. Washington Post columnist Ruth Marcus wrote a piece yesterday arguing that Hillary Clinton was unlikely to face any charges in connection with the server. The first two-thirds of her argument seems to track with other reports, i.e. Clinton’s behavior isn’t as bad as General Petraeus because she didn’t lie to the FBI. However, the last third of Marcus’ argument seems less convincing:

Section 793(f) covers a person with access to “national defense” information who through “gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust.” The government has used the “gross negligence” provision to prosecute a Marine sergeant who accidentally put classified documents in his gym bag, then hid them in his garage rather than returning them, and an Air Force sergeant who put classified material in a Dumpster so he could get home early.

The argument here would be that Clinton engaged in such “gross negligence” by transferring information she knew or should have known was classified from its “proper place” onto her private server, or by sharing it with someone not authorized to receive it. Yet, as the Supreme Court has said, “gross negligence” is a “nebulous” term. Especially in the criminal context, it would seem to require conduct more like throwing classified materials into a Dumpster than putting them on a private server that presumably had security protections.

Actually, what Clinton did is not all that dissimilar from accidentally throwing classified material in a gym bag and then hiding it in a garage. In this case, she may not have intended to have any classified information on her server but it did wind up there and once it did she failed to return that material to the government until, thanks to inquiries from Congress, the State Department came looking for it more than a year later.

As for throwing classified material in a dumpster, here’s the story from the 2000 article Marcus links:

Air Force Sgt. Arthur J. Gaffney Jr. was charged in 1983 with gross negligence for taking home classified information that he was supposed to have destroyed at work. On several occasions, he threw the classified material in a Dumpster outside his home, where it was discovered by neighborhood children. His guilty plea was upheld by a court of military review.

Throwing classified material in a dumpster was found to be negligent but not because Chinese spies climbed into the dumpster and fished the material out. Similarly, Clinton could be found grossly negligent of setting up the server (she has said it was for her own convenience) whether or not the server was actually hacked. But returning to that 2000 Post story there is also this nugget on who is likely to face prosecution for mishandling classified material [emphasis added]:

“There’s no accountability,” agreed Melvin A. Goodman, a former senior CIA analyst and professor of international security at the National War College. “What Deutch did, that was pretty gross. Important people seem to get away with more than lesser people.”

And that brings us to the second question. Even if a case can be made for gross negligence, will the FBI apply the law fairly given that Hillary is leading in the race for the Democratic nomination and the wife of a former President, etc? The answer is still unclear but there is at least some concern that current FBI Director Comey is a little too independent to suit the Obama administration. A story published Wednesday at The Hill is titled, “Comey’s FBI makes waves.”

The split over Clinton’s email server is the most politically charged issue facing the FBI, with nothing less than the race for the White House potentially at stake.

Obama has publicly defended Clinton, saying that while she “made a mistake” with her email setup, it was “not a situation in which America’s national security was endangered.”

But the FBI director has bristled at that statement, saying the president would not have any knowledge of the investigation. Comey, meanwhile, told lawmakers last week that he is “very close, personally,” to the probe.

The article goes on to say that Comey’s reputation is one of speaking truth to power. So it seems within the realm of possibility that, if he believes prosecution of Clinton or her aides is warranted, Comey will pursue it regardless of consequences.

As anyone who has been following this story knows by now, any recommendation made by the FBI still has to be taken up by the DOJ. Former State Department Inspector General Howard J. Krongard told the New York Post in January that is very unlikely to happen:

Still, “It will never get to an indictment,” Krongard said.

For one, he says, any criminal referral to the Justice Department from the FBI “will have to go through four loyal Democrat women” — Assistant Attorney General Leslie Caldwell, who heads the department’s criminal division; Deputy Attorney General Sally Yates; Attorney General Loretta Lynch; and top White House adviser Valerie Jarrett.

Even if they accept the referral, he says, the case quickly and quietly will be plea-bargained down to misdemeanors punishable by fines in a deal similar to the one Clinton’s lawyer, David Kendall, secured for Gen. David Petraeus. In other words, a big slap on the wrist.

Realistically then, the trail ends for Hillary at the DOJ. Even if FBI Director Comey speaks truth to power in this case, by suggesting there is evidence of gross negligence, Clinton will likely get the kind of special treatment reserved for important people.


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