Hillary Clinton could be the first president to be prohibited from looking at classified information if she is ultimately placed on probation for alleged wrongdoing as secretary of state, a former U.S. attorney speculated.
"I think it would be kind of uncharted territory," Matthew Whitaker, a former prosecutor under the George W. Bush administration's Justice Department, told the Washington Examiner. "Some of these statutes that could potentially [have been] violated certainly could bar somebody from future security clearances."
Clinton is under investigation by the FBI for storing classified information on a private server during her tenure leading the State Department. The practice may have violated laws preventing the exposure of classified documents, including the Federal Records Act and the Espionage Act.
In the event Clinton is charged with a crime, there is a strong likelihood that federal prosecutors could offer her a plea deal instead of forcing a trial. That deal would include a probationary period, and could prevent Clinton from looking at classified information until the end of that period.
"There are a lot of unknowns," said Whitaker, who is now executive director of the Foundation for Accountability and Civic Trust. "It would be really strange to have a future president of the United States who couldn't look at some of the nation's most important secrets that they would have to make policy on."
It would not be the first time that a Clinton administration has led to complications involving someone being placed on probation for violating federal classification laws. Sandy Berger, a national security advisor to President Bill Clinton, was placed on probation for two years, and had his security clearance revoked for three years, for removing classified documents from the National Archives.
Clinton's lawyer, David Kendall, is also well-versed on the topic. He negotiated the same arrangement for retired Gen. David Petraeus last year after he was charged with violating the same statutes. Petraeus was placed on probation for two years, though his clearance had already been suspended.
In the event Clinton were to accept such an agreement, a judge could offer flexible terms in light of her difficult circumstances. In addition to exempting her from the drug testing or home visits that would normally be standard, it is possible that she could also be exempted from additional terms that would otherwise be standard.
However, Whitaker said, Congress would still be able to look at whether an agreement constituted a "high crime or misdemeanor" worthy of impeachment. Yet something that could be even more problematic for Clinton are charges related to the Clinton Foundation, which the FBI is reportedly investigating over allegations of illegally coordinating with the State Department. If charges for that coordination came after a plea agreement is reached, it would present serious problems for Clinton.
"If you're charged with another crime while you're still on probation, that would enhance your ultimate sentence and could revoke the probationary period, and potentially result in jail time," Whitaker said. "You would have to go through another process ... but the mere charge could cause a revocation."
That dynamic leaves Clinton, as well as her associates and former employees, with some difficult decisions to keep in mind as the FBI considers whether it will recommend an indictment to the Justice Department.
When that recommendation will happen isn't clear, though FBI Director James Comey has suggested it could come even after the Democratic National Convention in July. Whitaker suggested that if the indictment came in August, the Democratic presidential front-runner would be looking at a trial potentially in November.
In that event, Clinton could potentially resolve the issue more quickly by accepting a plea deal, or let it play out in court later on. That could leave her with some difficult choices to ponder in the days leading up to the FBI's decision.
"Certainly you wouldn't want that hanging over your head as you head into election day, so I think you'd want to resolve it quickly," Whitaker said. "But the timing of a trial, if an indictment is issued that late, you could be timing a trial as late as the election, and that could be unpredictable."