Deputy Attorney General Rod Rosenstein said Thursday that the Justice Department still could prosecute former Secretary of State Hillary Clinton for mishandling classified information using a private email server.
Rosenstein didn’t say it was likely, but told lawmakers it was possible — even if the FBI’s investigation was declared over nearly two years ago, with then-FBI Director James Comey saying he would not recommend charges.
“In the event the evidence is sufficient to prove beyond a reasonable doubt that a crime was committed and it meets our principles of federal prosecution, yes, we would prosecute it,” Rosenstein said.
The deputy attorney general was answering a question from House Judiciary Committee Chairman Rep. Bob Goodlatte, R-Va., who asked during a hearing: “Does DOJ ever plan on holding anyone accountable for the significant spillage of classified information during the Clinton reign as secretary of state?”
Comey drafted a statement exonerating Clinton before she was interviewed, and his decision to usurp standard prosecutorial processes to recommend against charges was criticized in a recent Justice Department inspector general report. Comey argued prosecutors would be unable to prove Clinton had criminal intent, making it impossible to win a conviction.
Experts recently told the Washington Examiner that Clinton could be charged until March 2025 — after Trump would leave office, even if he wins a second term.
There are a couple charges Clinton theoretically could face. She arguably can no longer be prosecuted under the more lenient law, 18 U.S. Code § 1924, which forbids “unauthorized removal and retention of classified documents or material.” That law carries a possible five years in prison, with a statute of limitations of equal length, beginning at the date of removal.
Federal prosecutors generally favor the more severe 18 U.S. Code § 793, which restricts possession or retention of information “relating to the national defense.” That law carries a possible 10 years in prison, with a 10-year statute of limitations.
Clinton left office in early 2013, but her private email server was not wiped of her emails until March 2015.
The tougher law is sometimes used even if there’s no allegation of information being deliberately shared. For example, former Navy sailor Kristian Saucier was indicted and pleaded guilty in 2016 under the law for taking six cellphone photos inside a nuclear submarine in 2009. The phone was discovered at a Connecticut dump in 2012.
The information in Saucier’s photos was deemed confidential, the lowest level of classification. Although some photos depicted the sub’s nuclear reactor, he argued they were innocent keepsakes. By contrast, at the time the FBI closed its investigation, it found 110 emails in 52 email chains on Clinton’s server containing classified information. Eight emails chains contained top secret information, and 36 others had secret information.
Non-leak cases charged under the tougher law include the prosecution of Harold Martin III, the Maryland National Security Agency contractor who agreed to plead guilty in January after improperly storing classified information at his home.
