Experts: Clinton charges unlikely
Analysis casts new doubts on FBI case
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.