Ex­perts: Clin­ton charges un­likely

Anal­y­sis casts new doubts on FBI case

Baltimore Sun - - ELECTION 2016 - By Del Quentin Wil­ber

WASH­ING­TON — Even if FBI agents dis­cover clas­si­fied in­for­ma­tion on a newly seized lap­top, Hil­lary Clin­ton is un­likely to face crim­i­nal charges, ac­cord­ing to le­gal ex­perts and for­mer fed­eral prose­cu­tors.

That’s largely be­cause the Jus­tice Depart­ment and FBI Di­rec­tor James Comey have al­ready de­clined to pros­e­cute based on a le­gal con­clu­sion that there was no ev­i­dence that Clin­ton and her aides in­tended to vi­o­late laws gov­ern­ing the han­dling of clas­si­fied in­for­ma­tion, a key el­e­ment of such a crim­i­nal of­fense.

To change the cal­cu­lus, the FBI would have to find cor­re­spon­dence that demon­strates Clin­ton or her aides know­ingly broke the law, ex­changed ma­te­ri­als they knew to be clas­si­fied or at­tempted to in­ter­fere with the in­ves­ti­ga­tion by with­hold­ing or de­stroy­ing ev­i­dence, ac­cord­ing to for­mer fed­eral prose­cu­tors and le­gal schol­ars.

“Such an email it­self would have to be one of those things you would be say­ing, ‘I can’t be­lieve you wrote that down,’ ” said Roscoe HowardJr., a for­mer fed­eral prose­cu­tor and U.S. at­tor­ney for the District of Columbia dur­ing the Ge­orge W. Bush ad­min­is­tra­tion. “I would be shocked if they found such a thing.”

The chances of the bu­reau miss­ing such ev­i­dence af­ter what Comey had de­scribed as a com­pre­hen­sive in­quiry would ap­pear to be FBI head­quar­ters are re­flected in a store win­dow sell­ing a Hil­lary Clin­ton po­lit­i­cal souvenir Tues­day in Wash­ing­ton. slight, for­mer prose­cu­tors said.

“Short of a truly in­cul­pa­tory email, the ex­is­tence of which I find hard to fathom, I don’t see a sit­u­a­tion that comes out of this that jus­ti­fies the hoopla,” said Stephen Vladeck, a law pro­fes­sor at the Univer­sity of Texas.

The anal­y­sis comes as fed­eral agents and an­a­lysts are scram­bling to re­view emails found on a lap­top used by for­mer Rep. An­thony Weiner, D-N.Y., and his es­tranged wife, Huma Abe­din, one of Clin­ton’s top aides.

Agents came across Abe­din’s cor­re­spon­dence while search­ing the com­puter for ev­i­dence that the dis­graced for­mer law­maker may have vi­o­lated fed­eral laws when ex­chang­ing sex­u­ally ex­plicit mes­sages with a 15-year-old girl.

Dur­ing its nearly year­long probe, the FBI in­ter­viewed dozens of wit­nesses, con­ducted foren­sic tests and ex­am­ined tens of thou­sands of mes­sages that passed through the pri­vate email server used by Clin­ton and some of her aides while she was sec­re­tary of state.

In the end, agents un­cov­ered clas­si­fied in­for­ma­tion in 193 emails that were part of 81 email chains, though none of the emails were marked with a clas­si­fied header.

Of those chains, the depart­ment con­cluded that eight should have been treated as top se­cret, the high­est level of clas­si­fi­ca­tion, the FBI re­ported.

“So if there were 100 ex­am­ples of clas­si­fied in­for­ma­tion be­fore and now they find 10 more, how is that go­ing to change the anal­y­sis?” asked Peter Zei­den­berg, a for­mer fed­eral prose­cu­tor who signed a pub­lic let­ter crit­i­cal of Comey’s de­ci­sion last week to pub­licly re­veal the new in­quiry.

“It’s the same ques­tion. It’s the same is­sue,” he said. “That’s even as­sum­ing the emails they find on the lap­top are clas­si­fied emails. There may all be du­pli­cates, or emails that don’t have any clas­si­fied in­for­ma­tion. We don’t know.”

And even if agents dis­cover ev­i­dence that war­rants an in­dict­ment, Comey’s past pub­lic state­ments could un­der­mine a fu­ture prose­cu­tion, le­gal ex­perts said.

De­fense lawyers would cer­tainly seek all records as­so­ci­ated with his pub­lic an­nounce­ment in July, when he de­clared Clin­ton’s ac­tions were “care­less” but not crim­i­nal.

An about-face by the FBI would per­mit de­fense at­tor­neys to at­tack the thor­ough­ness of the en­tire in­ves­ti­ga­tion, point­ing out that it failed to turn up Abe­din’s emails on a lap­top she shared with her hus­band.

JIM LO SCALZO/EPA

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