It has never seemed plausible that Hillary Clinton would be indicted for her mishandling of State Department emails, but that hasn’t stopped Republicans from hoping, praying, dreaming and imagining that prosecutors rescue them from their nightmare anyway.
An extensive investigation by Josh Gerstein at Politico should put a damper on all that, or at least would if such things were susceptible to rational analysis. After reviewing years of previous cases, interviewing experts and prosecutors and studying the available evidence, Gerstein concludes:
“A Politico review of dozens of recent federal investigations for mishandling of classified records suggests that it’s highly unlikely — but not impossible.
The examination, which included cases spanning the past two decades, found some with parallels to Clinton’s use of a private server for her emails, but — in nearly all instances that were prosecuted — aggravating circumstances that don’t appear to be present in Clinton’s case….
Several experts told POLITICO that in light of the legal obstacles to a case and the Justice Department’s track record in such prosecutions they are confident Clinton won’t face charges.
“Based on everything I’ve seen in the public media, not only don’t I see the basis for criminal prosecution, I don’t even see the basis for administrative action such as revoking a clearance or suspending it,” said (Bill) Leonard, the former director of the Information Security Oversight Office.
“Looked at as a potential criminal case, this would be laughed out of court,” said William Jeffress, a Washington attorney on the defense team for former Bush White House aide Scooter Libby during his trial for lying in a leak investigation. “There hasn’t been any case remotely approaching a situation where someone received emails that were not marked classified, who simply receives them and maybe replies to them and a criminal prosecution is brought,” Jeffress said.”
I'd add that if the FBI and Justice Department viewed prosecution as a potential outcome in this case, they would have moved much faster than they have to date. The general election is now less than seven months away; it would be foolhardy in the extreme to indict a leading presidential contender this close to Election Day, thus throwing the entire democratic process into major turmoil, unless you were absolutely certain that the alleged crime was serious and that a conviction would be the result.
An indictment that was followed later by dropped charges or an innocent verdict — particularly if it doomed the chances of electing our first female president — would put the prosecutors who made such a decision into the pantheon of biggest goats in American legal and political history. They would make the folks who blew the OJ Simpson prosecution look like geniuses by comparison.
And unless Justice is sitting on truly explosive information not yet leaked to the public, I just don't see that happening.