A perp walk? Oddly, that doesn’t come up in this clip from Bloomberg’s “With All Due Respect,” where John Heilemann and Mark Halperin focus more on the short-term worst-case scenarios for Hillary Clinton. If the scrubbed server gets restored and classified material is found, plus e-mail that Hillary deleted turns out to be work-related, she could face a lot more problems than she does now, Halperin states. Heilemann replies that if the server stays scrubbed, that won’t play well either, but whose fault is that? “This story is not going away,” Halperin concludes, “and it’s of her own doing.”
It’s a pretty good look at the short-term risks for Hillary, but mostly from a political point of view. That is no longer the big risk, though. Given the referral from the IGs on just a sample of 40 e-mails, there is plenty of evidence strongly suggesting that Hillary and her team violated two laws governing the handling of classified material, 18 USC 1924 and 18 USC 793 — both of which carry prison terms. The Department of Justice has prosecuted people for criminal violations of both statutes, especially 1924, which was used against David Petraeus in this administration. As one former US Attorney tells the Boston Herald, a refusal to prosecute in this case would raise all sorts of red flags about favoritism, especially after Petraeus’ conviction:
“I believe there will be a concern that if they don’t in this case, that it will be perceived as preferential treatment,” said Bradley D. Simon, a former federal prosecutor, noting the Justice Department set a recent precedent by going after the high-profile general who was admired for pulling the Iraq War back from disaster.
In April, a federal judge gave Petraeus two years’ probation and a $100,000 fine after he pleaded guilty to a misdemeanor to sharing classified information with his biographer and mistress, Paula Broadwell. Samuel “Sandy” Berger, a Clinton administration national security adviser, pleaded guilty in 2005 to violating the same law for removing documents from the National Archives.
Clinton may have run afoul of the same law that makes keeping classified documents at an “unauthorized location” a misdemeanor, experts say — a minor crime but one that would embarrass the candidate and give her rivals fodder.
If DOJ finds violations and U.S. Attorney General Loretta Lynch chooses not to prosecute, Simon said, that could be seen as “sending the wrong message … that we will, on occasion, look the other way when transgressions occur.”
At a minimum, Clinton kept classified material at an unauthorized location — her house in Chappaqua, in electronic form. The referral makes that clear. The question will be whether the Department of Justice will want to look much farther past that point to see what else Clinton did. Another suggested that the Obama administration may try to get out from underneath the decision by appointing a special prosecutor:
Makan Delrahim, a former chief counsel to the Senate Judiciary Committee, said he believes the case is likely to end up with a special prosecutor, given how politically hot the case is and the uncertain impact any decision could have on the presidential election.
“I think the public would like that, but I don’t think Clinton would like that,” Delrahim said.
That would truly be the worst-case scenario, and not just for Clinton. Special prosecutors usually take years to investigate, which means we may not know the end of this story until the 2020 cycle. Their investigations rarely hit the target, but instead produce collateral damage to secondary figures, mainly through perjury traps. The Clintons have weathered special prosecutors in the past, but those cases involved personal behaviors, not the exposure of high-risk government data. Needless to say, Hillary will be a much less sympathetic figure than Bill was in similar circumstances, both because of the potential crimes committed and because she’s a much less adept politician than Bill.
In the end, though, a special prosecutor may be needed, especially if Loretta Lynch and Barack Obama punt on the issue. They may not be able to afford to do so, though, especially if they want to keep prosecuting leakers using 1924 and 793. Defense attorneys will have a field day accusing prosecutors of using these statutes as political ploys if they fail to apply them to Obama’s own appointees.