The FBI is probably going to be successful in seeking charges against at least some of Hillary Clinton’s associates, according to a former Justice Department official, if not Clinton herself. If it isn’t because of classified information, he suggested, it will be because they talk too much and are ill-equipped to defend against charges of public corruption.
“My sense is that the bureau will refer a criminal case over,” Matthew Whitaker, who served as a U.S. attorney under President George W. Bush, told the Washington Examiner. “I don’t know if it’s going to be against Hillary Clinton or others in the inner circle who were actually doing the work of taking classified documents and stripping off information, but my sense is that there will be people charged in this case.”
Whitaker, who now serves as the executive director of the Foundation for Accountability and Civic Trust, was responding to experts who have suggested that Clinton’s case will not meet the Justice Department’s criteria for an indictment. The former secretary of state is under investigation chiefly for using a private server to process nearly 2,100 emails that contained classified information. Some observers have suggested that the department rarely pursues criminal charges in similar cases: Of 30 referred for prosecution between 2011 and 2015, Justice pursued charges in just six.
Whitaker said that metric wasn’t completely applicable for a couple of reasons. For one, he pointed out, political considerations mean that Clinton’s team will need to do things that a lawyer would not advise. That includes, for instance, agreeing to interview with the FBI.
“The FBI will know all of the answers to any question they ask,” Whitaker said. “This is where oftentimes people like Martha Stewart have gotten themselves into a lot of trouble. The underlying crime couldn’t be proven, but ultimately the answering of the questions turned out not to be true.
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“Whenever I’ve advised criminal defendants, in my experience as a defense attorney, you do not want your client to submit to an interview with the FBI,” he added. “They’re professional interviewers, and they’re going to know the answer to every question. They’re going to put you in some very difficult situations. If you’re going to tell your story, you only want to tell it once on the stand. “Everybody tells a story differently the second or third time they’ve told it.
“In this situation, I think politically Hillary Clinton and others have to submit to the interview, but I don’t think their defense attorney is very excited about it. The last thing he wants you to do is be interviewed by the FBI,” he said.
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Whitaker also pointed out that even if Clinton’s team manages to avoid conflicting stories or the charge that they exposed classified information, the FBI reportedly opened a potentially more serious investigation into the Clinton Foundation in January. If State Department resources were used to benefit the foundation, the probe could involve public corruption charges for a number of high-level Clinton associates.
“That’s where you’re dealing with the public corruption issue and fraud,” Whitaker said, “which would be felonies. If I were guessing based on what’s publicly available, I think the more serious charges are going to come out of the foundation and the relationship it had with the State Department.”
