Hillary Clinton says she won't be indicted over emails. Is that right?
Regardless of the outcome of the FBI investigation into Clinton's emails, the GOP will do everything it can to keep the issue alive.
Then-Secretary of State Hillary Rodham Clinton checks her Blackberry from a desk inside a C-17 military plane in 2011. Infamous Romanian hacker Marcel Lazar says that he hacked e-mails stored on her private server.
Kevin Lamarque/AP/File
During last night鈥檚 Democratic debate Hillary Clinton seemed annoyed by a question about her State Department emails. Univision anchor Jorge Ramos asked her if she would resign if indicted by the FBI for mishandling classified information, and in response she raised her hands, palms out, as if wiping the issue away.
鈥淥h for goodness ... that鈥檚 not going to happen. I鈥檓 not even answering that question,鈥� Mrs. Clinton said, as the audience broke out in supportive applause.
Is Clinton right to be so dismissive?
On the question of whether she鈥檚 facing an actual United States indictment, Clinton is probably correct. Emphasize 鈥減robably,鈥� as federal legal outcomes are notoriously unpredictable.
The FBI is indeed conducting a criminal investigation into the possible mishandling of classified information on the private email server Clinton used for State Department communications. The Justice Department recently gave immunity to a former State staffer who worked on the server, Bryan Pagliano, securing his cooperation with the probe.
But Clinton has not been told she is a specific legal 鈥渢arget鈥� of the investigation. There is no evidence federal prosecutors have convened a grand jury to dig more deeply into testimony.
Clinton supporters say that granting immunity to Pagliano is consistent with prosecutors wrapping up loose ends on an investigation that鈥檚 set to end soon, possibly by May. So far, on the surface, that seems correct.
It鈥檚 a federal crime to 鈥渒nowingly鈥� mishandle classified information, or to display 鈥済ross negligence鈥� towards its security.
Clinton has said the use of the server was a mistake. But it was far from criminal, in her view, because none of the emails she sent or received on the server were marked 鈥渃lassified鈥� at the time of communication. The intelligence community decided they should be classified during a review of her communications after the server issue went public.
鈥淲hat you are talking about is retroactive classification,鈥� Clinton said Wednesday night after the moderator, Mr. Ramos first raised the subject.
US intelligence officials haven鈥檛 discussed the nature of the emails they鈥檝e deemed secret in hindsight. Press leaks indicate many deal with the US drone program in the Middle East, a subject widely discussed in the media but closely held in official communications. It鈥檚 possible the emails could be classified just for referencing TV or newspaper stories about the armed drones.
In sum, Clinton鈥檚 use of a private server for her State Department emails looks awful. Given that she was considering running for president when it was set up, it was downright idiotic, according to Washington Post columnist Ruth Marcus.
But it鈥檚 unlikely to put her in a federal courtroom.
鈥淐ould a clever law student fit the fact pattern into a criminal violation? Sure. Would a responsible federal prosecutor pursue it? Hardly 鈥� absent new evidence,鈥� wrote earlier this week in an examination of the issue.
But Clinton shouldn鈥檛 be dismissive of the e-mails' possible political damage on a general election campaign if she wins the Democratic nomination. (That鈥檚 still the most likely outcome 鈥� sorry Bernie fans.)
On the one hand, the FBI investigation of the issue could be a shield for Clinton. If she isn鈥檛 indicted, she can use that fact as an all-purpose dismissal. Something along the lines of, 鈥淭he feds found no problem here, so move along, move along.鈥�
On the other hand, Republicans will do their best to keep the issue alive, no matter what. The Republican National Committee on Wednesday filed two lawsuits seeking access to Clinton鈥檚 State Department communications, citing the Freedom of Information Act.
The first lawsuit asks for all Clinton鈥檚 text and BlackBerry messages sent and received during her time at the State Department, as well as communications to and from various top Clinton aides. The second asks for communications between the State Department and Clinton鈥檚 presidential campaign after she left office in 2013.
鈥淭his thing is not going away, no matter how much the press and the Clinton campaign kiss and hug over it,鈥� at the conservative Red State site.
After all, if Donald Trump is the Republican presidential nominee, his campaign will need to do all it can to focus the presidential race on Clinton鈥檚 perceived faults as opposed to Trump鈥檚 own outsize personality.