Friday brought news that the State Department has determined that 22 of the emails on Hillary Clinton’s personal server contained “Top Secret” information. Politico’s story is here. There is, of course, speculation as to how this will affect the results of the Iowa Caucuses on Monday.
I’m not sure that any of this will do much to deter voters who are committed to Secretary Clinton, and it will likely only embolden those who support Bernie Sanders. The political question is whether those on the fence will be deterred from supporting Clinton as a result of this news. I doubt it. Her bigger concern, politically, will arise in the general election – I can assure her that the Republican nominee will not declare that he is tired of hearing about her damn emails.
The legal question, however, remains an open one. And the situation is becoming increasingly perilous for Secretary Clinton. She, her staff, and her surrogates continue to stress that the material was classified only after she sent or received it. As I have said before, that line of argument is not sufficient to avoid criminal liability altogether; it is only enough to avoid a claim that she intentionally or knowingly mishandled the material. If the material was so sensitive as to require classification at the Top Secret level, should she have known that the material related to national defense? Recently, three respectable names in the world of federal criminal law – Andrew McCarthy, Bill Otis, and former Attorney General Michael Mukasey (under whom I worked when I was at DOJ) essentially predicted that Clinton would be subjected to criminal prosecution, or at least suggested a good chance of that happening. (Otis offers the proper links to Powerline, at C&C here).
I’m not quite there yet. While I certainly see the statutory basis for a criminal inquiry, and have great faith in the integrity and independence of James Comey and the folks at FBI, it is not the FBI that will make a decision to prosecute. That decision belongs solely to the prosecutors and leadership at Main Justice, and I still wonder whether they have a sufficiently air-tight case to demand a criminal prosecution in so sensitive a situation. It’s not that I do not trust AG Lynch’s integrity, or that of the prosecutors at Main Justice (I have said many times that I do – and probably moreso than any other federal actors). It’s just that I do not know if the case is yet solid enough. I especially wonder about their personal interviews, with her staff or possibly even with her – telling your story to a group of reporters is one thing; telling your story to the FBI in the course of a federal investigation is quite another.
That said, the more that is revealed, the greater her criminal exposure. That is especially true if the emails reveal information that suggests corruption in connection with the Clinton Foundation, though I have yet to see anything that rises to the level of a federal crime in that respect. So while I am not yet ready to predict a criminal prosecution (and, indeed, am currently skeptical that a prosecution will occur), it is telling that sensible people who know federal criminal law feel so strongly about the possibility of a prosecution. But here’s a parting thought: if the evidence is sufficient for an indictment, might an indictment occur only after the election, and only if she loses?