Hillary Clinton isn't likely to be indicted over accusations that she mishandled classified information, according to a former Justice Department official. But that doesn't mean she should be celebrating.
"If the FBI recommends prosecution, which I think they will, and if the Justice Department agrees crimes have been committed, they're going to try to negotiate plea agreements with people … involving misdemeanors," Joseph DiGenova said in an interview with the Washington Examiner. "I don't think they're going to let it get to a point where there's going to be an indictment.
DiGenova was appointed by President Reagan and served as U.S. attorney for the District of Columbia. He won esteem for cases that included the conviction of two of the district's deputy mayors, and the prosecution of Israeli spy Jonathan Pollard.
He's also an expert on the case against Clinton, who he said he believes will have a difficult time avoiding charges. "Even though I don't trust this Justice Department ... this case is so well-known that if no one is charged, that will be almost as bad as charging everyone," DiGenova said. "If no charges are brought, then I assume there will be massive leaks from the FBI, and the public will learn about it a different way."
Washington Examiner: Reports this week indicated that Guccifer has claimed he hacked Clinton's server. We already know that the server violated records laws, so does the fact of a breach in some way enhance the wrongdoing?
DiGenova: It would demonstrate that any classified information that was on the server was subject to compromise, so it would be a piece of evidence that would be used in building a case of violations of the various statutes that prohibit storing or maintaining classified information in an improper location.
The fact that Guccifer apparently hacked into her computer is a valuable piece of evidence for the FBI to use. It wouldn't be crime, but it would be evidence used to prove that classified information was improperly maintained, because it was accessible.
Of course it was illegal to keep it on a private server that was unencrypted, but the fact that someone was able to get access to it will be something the bureau would take into account, along with the intelligence community, in conducting a damage assessment.
If in fact they're able to show that it was compromised, and compromised by a foreign government, that will add to the gravity of any charge, and of course push them towards perhaps charging a felony rather than a misdemeanor.
But the situation with Guccifer is such that he's obviously a very valuable witness. And that's why he's here. They don't extradite people for non-financial hacking. They just don't.
Examiner: In the event of an indictment in, say, August, when would we be looking at a trial?
DiGenova: I don't think there's going to be an indictment. If the FBI recommends prosecution, which I think they will, and if the Justice Department agrees crimes have been committed, they're going to try to negotiate plea agreements with people, and probably agreements involving misdemeanors. I don't think they're going to let it get to a point where there's going to be an indictment.
Even though I don't trust this Justice Department and think they're politically corrupt … this case is so well-known that if no one is charged, that will be almost as bad as charging everyone.
Charging no one will raise just an amazing round of criticism of the department, because these cases are so obvious that classified information was handled in violation of federal law for four years. This isn't an overnight problem where somebody left a piece of paper out.
This is four years of illegally handling classified information. So I don't think they're going to be indicted. I think there will be deals made to dispose of these cases. And then the public will make up its mind.
If no charges are brought, then I assume there will be massive leaks from the FBI, and the public will learn about it a different way.
She's not going to go to trial. If it gets to the point where she's going to be charged, they're going to do everything they can to say she shouldn't be charged. They'll go to the mat, they might even go to the president, who legally has the authority to instruct the Justice Department not to prosecute somebody.
But if it got to that point, where the president had to intervene, that's as bad as her being charged. At that point, she becomes radioactive politically.
Examiner: The intelligence community is obligated to engage in a "damage assessment" whenever classified information is exposed, so we know they're doing that with Clinton's emails, even though that process itself is entirely classified. What does that look like, and when should we expect it to finish?
DiGenova: They're assuming there's been compromise given the fact that for four years, classified information was maintained and sent through an insecure server. That process is underway. It's extremely costly and time consuming, but it's necessary, it has to be done, it's part of the rules of classified information procedure.
How long it takes depends on how much information has been compromised. The FBI has recovered the 30,000 emails Hillary deleted, so they'll be able to see if there was any classified information in there. They look at what kind of information was compromised, [such as] sources and methods.
We already know there were at least 22 highly classified emails containing top secret code words, special access program stuff. So the assessment could take quite awhile.
Examiner: We hear a lot of complaints about why the investigation is taking so long. Why is that?
DiGenova: I don't think it's taking long. People don't understand, criminal investigations are not like television shows. They move at their own pace, and there's a lot of information to be gathered. This investigation is standard length, it's fine, it's probably at a point where they're beginning to make judgments about who violated the law.
The director has said the fact that there may be conventions has nothing to do with their timetable. They'll finish it when done.
Examiner: Do you expect that the investigation into the Clinton Foundation could extend into next year?
DiGenova: I would think the foundation might very well go beyond the election. That's a much more complicated investigation involving huge money trails, foreign countries, more people. So I think you could separate the classified information case, that would be done certainly before the election.