Don’t expect an indictment of Hillary Clinton anytime soon, according to experts. Recommendations by the FBI to indict a person over the mishandling of classified information usually come only as a result of the most flagrant violations of law, a Monday report said.
“If you look at the history of what they pursued, you really had to have a slam-bam case that met all the elements,” one former senior FBI official said for the report in Politico. Of 30 cases in which investigators recommended a misdemeanor charge for mishandling classified information between 2011 and 2015, prosecutors pursued charges in just six.
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Those dynamics suggest that in order to recommend an indictment for Clinton over the more than 2,100 classified messages she stored on a private server as secretary of state, the FBI will likely need to discover relatively sensational violations of the law.
Cases that are prosecuted, one former federal prosecutor said, “always involve some ‘plus’ factor. Sometimes that ‘plus’ factor may reach its way into the public record, but more likely it won’t.”
High profile cases prosecuted in the past included those of retired Gen. David Petraeus, who kept “top secret” information in his home that he knowingly shared with his biographer and mistress, Paula Broadwell. Petraeus lied to the FBI about sharing that classified information, and received two years of probation, in addition to a $100,000 fine.
Another high profile case involved former National Security Adviser Sandy Berger removing top secret documents from the National Archives over multiple trips and hiding them beneath a construction trailer. Berger received two years probation and a $50,000 fine.
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Less famous cases involve similarly egregious offenses accompanied by elements of sensationalism. The report also notes the case of former FBI agent J.J. Smith, who was charged with five felonies for compromising documents marked “secret” over the course of an affair with a Chinese intelligence officer.
Clinton’s server was found to have contained 65 messages marked secret and 22 marked top secret. The latter number comprised seven “threads.” Whether Clinton could be hit with a felony charge under the Espionage Act, or a misdemeanor under another law, likely hinges on those messages and their contents.
While some officials are skeptical the messages will prove sufficient to result in charges, Clinton’s detractors insist that they should. “It is massive. It was a plan,” Rudy Giuliani, the former New York mayor and U.S. attorney in Manhattan, said for the report. “She didn’t just accidentally take it home. … She took it home every night. It was like you were taking home top-secret information every night and putting it on your nightstand.”
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The report comes a day after President Obama dismissed the investigation into Clinton, saying that the information on her server wasn’t damaging to national security even if it was classified. “There’s classified, and then there’s classified,” he said in an interview on Fox News. “There’s stuff that is really top-secret, top-secret, and there’s stuff that is being presented to the president or the secretary of state, that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open-source.”
Giuliani said Clinton’s consistent intent should play a role. “I’m sure we had situations when I was associate attorney general or U.S. attorney where some FBI agent, assistant U.S. attorney or assistant attorney general took confidential material home with him,” he said. “Of course, we weren’t prosecuting if that happened one time or two times.”
“It’s a tough decision, politically, but legally, I think it’s not,” Giuliani added. “If Hillary Clinton was not running for president, she’d have been indicted by now. … I’d love to try this case.”
