What Should We Make of the Hillary Clinton Indictment Speculation?

With Clinton poised to secure the nomination, the chatter about the FBI investigation into her email server has grown louder

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What Should We Make of the Hillary Clinton Indictment Speculation?
Hillary Clinton continues to face questions about her use of a private email server while serving as secretary of State.

Hillary Clinton has all but locked up the delegates needed to become the Democratic nominee for president — a fact many on both the right and the left are finding difficult to come to terms with. Perhaps that's why potential disaster scenarios seem to be surfacing with increasing frequency these days. With her rival, Bernie Sanders, all but mathematically eliminated after a string of bruising primary losses, chatter has gotten louder about Clinton potentially being indicted by the FBI over her use a private email server during her tenure at the State Department.

Republican mega-donor T. Boone Pickens insisted to Newsmax last week that Clinton would not be the Democratic nominee. "I don't think she's physically up to it, but that's not going to eliminate her," he said. "It'll be some other reason. I just don't think that she will ever hear the starter's gun." Asked if he believed "emailgate" would disqualify Clinton, Pickens said, "All of it. She has so many things." (Both Pickens and former House Speaker John Boehner have in recent days publicly floated scenarios in which Joe Biden swoops in at the DNC to wrest the nomination from Clinton's grip.)

On the left, Ralph Nader speculated obliquely on CNN that Sanders should remain in the race in case a Clinton scandal erupts, while Cenk Uygur, the host of the online news program The Young Turks and a Sanders supporter, stressed that the possibility of an indictment remains very much alive. "If you've got a dozen people investigating you, odds are they will indict you," Uygur said firmly. He went on to speculate that if FBI Director James Comey, a Republican, "wanted to do maximum damage to the Democrats, you know when he would announce the indictment? The last day of the Democratic convention." 

Even Jane Sanders — whose husband once famously said Americans are "sick and tired of hearing about [Clinton's] damn emails" — expressed frustration with the pace of the FBI investigation of those emails. "It would be nice if the FBI moved it along," she told CBS last week.

As long as the FBI investigation remains unresolved, Clintons's detractors — irrespective of political affiliation — have good reason to continue using it to whatever advantage it affords them. But voters are entitled to wonder about the likelihood that the investigation will actually result in an indictment. 

Clinton has said of the investigation, "I am not concerned about it. I am not worried about it, and no Democrat or American should be either."

On the campaign trail, Bill Clinton has emphasized that his wife's emails were retroactively classified — that the goalposts were moved on her — in a move that he suggests was politically motivated. "This is a game," he said earlier this week.

That may well be the case, but criminal charges would probably not hinge on when the emails were classified, lawyer Abbe David Lowell says. Lowell, who recently wrote about America's broken classification system for the New York Times, explains that what actually matters in a case like this is Clinton's intent.

"All criminal laws require a certain level of intent and, in the area of classified document cases, the intent to disclose it to someone not authorized to receive it," says Lowell, who has a long history of defending politicians in ethics cases, and served as chief counsel to the House Democrats during Bill Clinton's impeachment proceedings. "Secretary Clinton's use of an email server was [for correspondence with] her own staff and other officials. It was not [intended to be provided] to the press or to a foreign country or any other entity, so it would be ridiculous [for her to] even be considered charged under these laws."

Lowell notes that the two cases sometimes invoked as possible analogs to emailgate — David Petraeus' mishandling of classified information, and Edward Snowden's wide dispersal of classified documents — are both quite different in intent. "Giving books filled with classified information, including the identities of covert people, to the person writing your biography who you want to sleep with? ... Taking 11 trillion bytes of information and dispersing it to the globe?" Lowell says. "Remember what I said about the intent to disclose to someone not authorized to receive it: That really is the distinguishing character in classified information cases."

Nathan Sales, an associate law professor at Syracuse University, disagrees with Lowell's and others' assessment. "Many scholars and lawyers think it's unlikely. I'm actually kind of in the minority on this," Sales says. "But, based on what we do know so far, I think there is a not insignificant chance that a grand jury could look at the facts and say, 'Actually, she may have violated various laws protecting classified information.'"

Sales points to the Petraeus case in particular, noting that the former CIA head did not, in the end, plead guilty to charges related to sharing classified information with his mistress and biographer, but rather to those related to him keeping the information in a desk drawer inside his home. "The conduct that is being investigated [in Clinton's case] — keeping the documents on an unclassified server — that's kind of the digital equivalent of locking it in your desk drawer, which is ultimately what did in General Petraeus," he says.

Intent, though, is what President Obama — himself a former Constitutional law professor — often returns to when asked about Clinton's potential culpability. "Hillary Clinton was an outstanding secretary of State," Obama said in an April interview. "She would never intentionally put America in any kind of jeopardy."

Whether or not the investigation ultimately results in charges, the talk generated by a drawn-out investigation helps Clinton's rivals; like the ineffectual investigations that failed to ensnare the Clintons in the past — Benghazi, Whitewater, Troopergate, Vince Foster — it serves to remind voters of an internalized distrust for the Clinton name.

That distrust was confirmed by a March national poll that found 57 percent of Americans believed Hillary Clinton was neither honest nor trustworthy.

But the good news for Clinton, and Democrats generally if she does end up the party nominee, is that 66 percent of the same voters believed she had the "right experience to be president" — a full 40 percent more than believed the same of her presumptive rival, Donald Trump.