Law & the Courts

Why a Criminal Prosecution of Hillary Clinton Might Not Happen

(Nicholas Kamm/AFP/Getty)

Ever since two inspectors general asked the Justice Department to investigate Hillary Clinton’s retention of “hundreds of potentially classified e-mails” from her time as Secretary of State on an unsecured private server, one question has loomed over the Clinton campaign: Will the presumptive Democratic nominee face criminal prosecution?

The answer is not a simple one, despite the apparent gravity of Clinton’s actions. Attorney General Loretta Lynch must first agree to open a full-scale investigation, and the DOJ must then find evidence of Clinton’s criminal intent in order to prosecute. National-security lawyers say the decision to charge Clinton would depend largely on whether the offending documents were actually marked “classified.” Given the Justice Department’s history of foot-dragging in cases involving high-level government officials mishandling classified documents, Clinton may well avoid a criminal investigation altogether — much less a prosecution.

Pundits have compared Clinton’s case to that of former Army general David Petraeus, who was convicted of storing classified notebooks in an unsecure location and sharing them with his mistress. But legal experts say ex-CIA Director John Deutch’s case is a more apt analogy. Days after his retirement in December 1996, Deutch was found to possess six documents containing classified information on a private, unsecured computer connected to the Internet at his home. “It’s similar in the vulnerability context,” says Bradley Moss, a Washington-based national-security lawyer. “That’s been the biggest angle of all with Hillary’s private server.”

But while the information’s exposure to foreign hackers is comparable, the similarity of the documents themselves is less clear-cut. In Deutch’s case, an initial discovery touched off a broader investigation of the former director’s data troves, with CIA analysts finding more documents on unsecured PC cards labeled “Unclassified.” Some of these documents were marked “Secret” or “Top Secret Codeword,” a crucial distinction that cuts to the intent of Deutch’s infraction. The former CIA director couldn’t simply claim he was unaware of the documents’ sensitivity — their classified status blared from the top of each page.

RELATED: Clinton’s Case Is About National Defense Information, Not Just Classified Documents

It’s not clear if the same is true in the case of Clinton’s classified e-mails — but for some observers, it shouldn’t matter. “If I take a blank piece of paper and put some security markings on it, does the void in the middle become classified? I think not,” says another Washington-based national-security lawyer, who has spent time in the CIA. “But is a piece of information that is genuinely sensitive — and you should know that it’s sensitive — not classified because it doesn’t have the word ‘Secret’ in front of it? I think that’s a tough argument to make.”

Nevertheless, Moss says Clinton must have transmitted documents with a clear “classified” label — or, at the very least, quoted heavily from such documents — within the offending e-mails in order for the DOJ to open a criminal inquiry. “Is she sitting on a plane, shifting between Candy Crush and asking a couple questions about the prime minister of India?” he asks. “Or was she remembering a certain [classified] document, asking a question relying on that document to construct her e-mail question?” The latter, Moss explains, “could possibly go down the criminal route.” But, he adds, “I have a feeling we won’t find that in Hillary’s e-mails.”

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Even if some of Clinton’s e-mails contain information that’s unambiguously classified, it’s no guarantee that the Justice Department would move to prosecute. Janet Reno’s Justice Department took more than a year to investigate Deutch’s case before deciding against pressing charges in April 1999. An extensive CIA report and a scathing reproach from the New York Times may have prompted a change of heart — Deutch was facing Justice Department charges, and considering pleading guilty to a misdemeanor, before he was pardoned by President Clinton at the end of his term.

RELATED: Has the Justice Department Seized Hillary’s E-mail Server? If Not, Why Not?

Like the secretary of state, the director of the CIA was considered a cabinet-level official at the time of the DOJ probe. “I think the Deutch case, as sensitive as it was, was a little less sensitive than the Hillary Clinton case, because she’s running for president,” says one national-security lawyer. “I can understand why [Clinton’s case] may move a little slower, because this is radioactive stuff, right?”

#related#But, he adds, Loretta Lynch is no Janet Reno. “When she was a U.S. attorney in New York she put a lot of Democrats in jail, as well as Republicans,” he says.

Given the intense scrutiny and the alleged volume of e-mails Clinton put at risk, a criminal investigation seems inevitable — even if the Justice Department ultimately declines to prosecute. “I don’t see how they get away with not at least opening a case,” the lawyer says.

Moss is less sure of the outcome. “It’s a little odd how they’re handling it,” he says. “I’d rather take my odds in Vegas than figure out what the DOJ is going to do here.”

— Brendan Bordelon is a political reporter for National Review.

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