What if Clin­ton isn’t in­dicted?

Cecil Whig - - OPINION - Ruth Mar­cus

— This may sound strange com­ing from some­one who doesn’t ex­pect Hil­lary Clin­ton to be in­dicted and doesn’t think she should be, but I’ve been wor­ry­ing about what will hap­pen if she isn’t.

There is a school of peo­ple — a big school, judg­ing from my email — for whom there are only two pos­si­bil­i­ties:

Ei­ther Clin­ton is charged with a crime for mis­han­dling clas­si­fied in­for­ma­tion on her pri­vate server — an out­come, this group thinks, that should be dev­as­tat­ingly ob­vi­ous to any­one with half a brain. Or the Jus­tice Depart­ment will squelch the in­dict­ment out of a po­lit­i­cally mo­ti­vated de­sire to pro­tect the likely Demo­cratic

WASH­ING­TON

pres­i­den­tial nom­i­nee. The only dis­agree­ment here in­volves whether At­tor­ney General Loretta Lynch will act on her own or un­der or­ders from Pres­i­dent Obama.

Heads, she’s in­dicted; tails, they’re cor­rupt. For this crowd, there is no out­come here that con­tem­plates in­de­pen­dent, sober­minded pros­e­cu­tors look­ing at the facts and the law and reach­ing a con­trary con­clu­sion.

This at­ti­tude presents a prob­lem, not so much for Clin­ton — she’ll be happy to ac­cept the no-in­dict­ment out­come and the peo­ple who re­ject it will never be Clin­ton vot­ers any­way — as for the crim­i­nal jus­tice sys­tem. It bears some think­ing at the top lev­els of the Jus­tice Depart­ment and FBI about whether there is some way to mit­i­gate the sus­pi­cion by mak­ing more in­for­ma­tion pub­lic than is the norm.

Once there was a statu­tory so­lu­tion to this un- der­stand­able skep­ti­cism, al­beit a hugely im­per­fect one, in the form of the in­de­pen­dent coun­sel law. Clin­ton knows bet­ter than any­one how pro­longed and risky this route can be; the in­de­pen­dent coun­sel orig­i­nally named to in­ves­ti­gate the Clin­tons’ White­wa­ter in­vest­ment ended up with Mon­ica Lewin­sky.

Even now that the statute has lapsed, the Jus­tice Depart­ment re­tains the au­thor­ity, by reg­u­la­tion, to ap­point a spe­cial coun­sel when the at­tor­ney general “de­ter­mines that crim­i­nal in­ves­ti­ga­tion of a per­son or mat­ter is war­ranted” and “would present a con­flict of in­ter­est for the depart­ment or other ex­tra­or­di­nary cir­cum­stances.”

There’s no in­di­ca­tion that Jus­tice has con­tem­plated this step; in­deed, it’s not clear it has even de­ter­mined that a “crim­i­nal in­ves­ti­ga­tion” is war­ranted. In any event, turn­ing to a spe­cial coun­sel now, with the clock tick­ing to­ward Elec­tion Day, would not serve the pub­lic well. What it needs is max­i­mum in­for­ma­tion speed­ily re­vealed.

FBI agents and fed­eral pros­e­cu­tors tend to be al­ler­gic to re­leas­ing in­for­ma­tion, ap­pro­pri­ately so. ( There is that pesky mat­ter of grand jury in­for­ma­tion, which is sup­posed to be kept se­cret, al­though there’s no in­di­ca­tion this in­quiry has even reached the grand jury stage.) Pros­e­cu­tors ei­ther in­dict or stand down, no ex­pla­na­tion pro­vided. But in the case of a pub­lic fig­ure whose con­duct has drawn in­tense scrutiny, that ap­proach may not be op­ti­mal — for the in­di­vid­ual in­volved or, more im­por­tant in this case, for the pub­lic.

There is use­ful guid­ance in both the in­de­pen­dent coun­sel law and the depart­ment’s own prece­dents. The in­de­pen­dent coun­sel law re­quired the prose­cu­tor to file a fi­nal re­port — hence the in­fa­mous Ken­neth Starr re­port on Lewin­sky — that the su­per­vis­ing court could make pub­lic.

Sim­i­larly, the Jus­tice Depart­ment in 2010 is­sued a 92- page in­ves­tiga­tive sum­mary that de­tailed the ev­i­dence against Bruce Ivins, the Fort Det­rick re­searcher who was the sus­pect in the 2001 an­thrax at­tacks but who com­mit­ted sui­cide while un­der in­ves­ti­ga­tion.

Or­di­nar­ily, that would have ended the case, but of­fi­cials de­ter­mined that the in­tense pub­lic in­ter­est jus­ti­fied re­leas­ing more in­for­ma­tion. Tellingly, that took a year to ac­com­plish — time that is not avail­able in this cir­cum­stance.

So that leaves — as­sum­ing no in­dict­ment — an un­sat­is­fy­ing situation. Or­di­nar­ily, in such cases, there would be no of­fi­cial an­nounce­ment at all. In some high- pro­file cases, Jus­tice has taken the un­usual step of an­nounc­ing that the mat­ter is closed. In 2012, then- At­tor­ney General Eric Holder an- nounced that there would be no pros­e­cu­tion in the death of two CIA de­tainees overseas, say­ing that “the ad­mis­si­ble ev­i­dence would not be suf­fi­cient to ob­tain and sus­tain a con­vic­tion be­yond a rea­son­able doubt.”

In the Clin­ton situation, there has to be a way to pro­vide more in­for­ma­tion, in a timely way, from a cred­i­ble source. Se­nior Jus­tice of­fi­cials will be mis­trusted what­ever they say, but what about FBI Di­rec­tor James Comey, who served in the Jus­tice Depart­ment un­der Ge­orge W. Bush?

If this in­quiry is closed with­out fur­ther ac­tion, the pub­lic needs some ex­pla­na­tion be­yond ev­ery­one­just- move- along- now. Not for Clin­ton, but for the sake of the Jus­tice Depart­ment and the pro­fes­sion­als who work there.

Ruth Mar­cus is a syn­di­cated colum­nist. Con­tact her at ruth­mar­cus@wash­post. com.

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