LAW & DISORDER
Some say Clinton may face Petraeus’ fate
Hillary Clinton’s alleged use of a private email server to handle classified documents may well fall under the same law the Justice Department used against Gen. David Petraeus, putting the Obama administration in a bind over whether to prosecute the Democratic presidential candidate, according to legal experts.
“I believe there will be a concern that if they don’t in this case, that it will be perceived as preferential treatment,” said Bradley D. Simon, a former federal prosecutor, noting the Justice Department set a recent precedent by going after the high-profile general who was admired for pulling the Iraq War back from disaster.
In April, a federal judge gave Petraeus two years’ probation and a $100,000 fine after he pleaded guilty to a misdemeanor to sharing classified information with his biographer and mistress, Paula Broadwell. Samuel “Sandy” Berger, a Clinton administration national security adviser, pleaded guilty in 2005 to violating the same law for removing documents from the National Archives.
Clinton may have run afoul of the same law that makes keeping classified documents at an “unauthorized location” a misdemeanor, experts say — a minor crime but one that would embarrass the candidate and give her rivals fodder.
If DOJ finds violations and U.S. Attorney General Loretta Lynch chooses not to prosecute, Simon said, that could be seen as “sending the wrong message … that we will, on occasion, look the other way when transgressions occur.”
Clinton agreed Tuesday to turn over her private server to the DOJ, while two U.S. inspectors general told a congressional committee at least two emails contained highly classified information. At least four top aides have also turned over records, including copies of work emails on personal accounts, to the State Department, in response to a congressional subpoena. The developments suggest the investigation could run deep into the 2016 election cycle.
Clinton campaign aides had claimed there was nothing for investigators to find, and the State Department has said it’s not yet clear if the material ought to be considered classified at all. Clinton herself, in one of her few remarks on the scandal, said last month, “I am confident that I never sent nor received any information that was classified at the time it was sent and received.”
Makan Delrahim, a former chief counsel to the Senate Judiciary Committee, said he believes the case is likely to end up with a special prosecutor, given how politically hot the case is and the uncertain impact any decision could have on the presidential election.
“I think the public would like that, but I don’t think Clinton would like that,” Delrahim said.
Some, though, see a prosecution as unlikely if all that’s found is a misdemeanor infraction.
Mark Zaid, who specializes in national security law, said, “Given who it is, it would have to be something incredibly significant.”
Civil liberties attorney Harvey Silverglate said, “Before they go after her … I think they have to do a national security damage assessment to see whether there is anything that if it fell into the wrong people could actual damage national security.”