Occasionally I get asked about the Hillary Clinton email server controversy and whether she committed any federal crimes. In fact, last Winter, after the story broke, I invited my Federal Criminal Law class to look at the relevant statutes and see whether they think there may have been a violation. Now that Secretary Clinton appears ready to turn over her personal server, the story continues and its reach is getting longer. A piece in Politico today notes that Republicans are using the word “crime” with respect to her actions. I will address the legal issues in a separate post, and will use that word, but I won’t do so freely.
One of the prevailing themes is that the Obama Justice Department would never, ever prosecute Secretary Clinton, but only because of politics. I am usually skeptical of claims that the Justice Department, as a whole, is “politicized.” This is a claim each political party makes against the other party’s presidential administration, and they have traded this barb for decades. Having worked there – and at a time when Democratic allegations about the DOJ’s politicization were at their height – I can tell you that this claim is typically overstated, particularly with respect to the Criminal Division (where I worked, and never had occasion for partisan or electoral politics to influence my decision-making). Moreover, the Obama Justice Department has gone after several high-profile Democrats – such as Rod Blagojevich, Bob Menendez, and Chaka Fattah, among others. And sometimes, electoral outcomes will influence policy preferences that drive certain decisions within the Department (e.g., one president may want more resources devoted to violent crime, the next president may shift focus to public corruption or financial crime).
Still, there can be individual instances of politicization within the Department, there can be a culture of politicization among Main Justice leadership, and some observers have raised at least sensible concerns about some base level of politicization at the Obama DOJ (especially during Eric Holder’s tenure). Attorney General Lynch must deal with that heavy burden. If there is no probable cause to believe that Secretary Clinton has committed a crime, she should not be indicted. If there is, then her political affiliation and status should not be a bar to her prosecution, any more than it was with respect to Blagojevich, Menendez, or Fattah. I trust that Attorney General Lynch, her team, and the career prosecutors at DOJ are sensitive to the optics at work here, but I am more hopeful that they will follow the facts and the law.
In the Politico piece, Jennifer Palmieri, the Clinton campaign’s communications director, tried to minimize the significance of the controversy by referring to “nonsense.” I get what she’s trying to do there, but I certainly hope she was referring to Republican rhetoric and not the story itself. Because if she was saying that the investigation and the media attention surrounding it are nonsense, then that is a troubling defense of someone running for the office that is responsible for faithfully executing the laws. Will a Clinton Justice Department cry “nonsense” when it is tasked with investigating and maybe prosecuting some other high-ranking official (maybe even a Republican)? If it is “nonsense” to seek full and accurate facts about whether a high-ranking government official committed multiple serious federal crimes, whether she attempted to conceal evidence of any wrongdoing, and/or whether she compromised our national security in the process, then I have grave concerns about how seriously that a Clinton Justice Department will take the enforcement of federal law. So I hope Palmieri was not characterizing the investigation or the story in this way.
The prosecutors at DOJ, and the federal law enforcement community more broadly, are not part of the Vast Right-Wing Conspiracy. These folks are just trying to do their job, and until now, have not received much help from Palmieri’s boss – the same woman who wants to oversee the enforcement of federal laws.