If she is indicted, she will face further questions about her honesty and perhaps even calls for her to step aside. If she isn’t indicted, as many legal experts predict, critics will accuse the Obama administration of letting her escape charges merely because they want her to win the White House.
Clinton was interviewed by the FBI Saturday for three-and-half hours at its headquarters in Washington, according to her campaign, suggesting the inquiry is nearing its end.
“Secretary Clinton gave a voluntary interview this morning about her email arrangements while she was secretary,” Clinton campaign spokesman Nick Merrill said in a statement. “She is pleased to have had the opportunity to assist the Department of Justice in bringing this review to a conclusion.”
However it is concluded, events this week underscored anew that Clinton is likely to emerge scarred. A new controversy over the Obama administration’s handling of the case and Attorney General Loretta Lynch’s refusal to hand it over to a special prosecutor far removed from the White House served as a reminder that critics would always say that political favoritism toward Clinton tainted any decision to clear her.
Under pressure after she met privately with Clinton’s husband this week at his invitation, Lynch did announce Friday that she expects to accept the recommendation of investigators and prosecutors at the FBI and the Justice Department as well as FBI Director James Comey, a Republican, in the case. “I fully expect to accept their recommendations,” she said.
She said that she still plans on reviewing the case, which was launched by the FBI’s Counterintelligence Division after classified information was found in some of Clinton’s emails last year, and will not recuse herself.
Lynch has repeatedly rejected demands that she give the case to a special prosecutor, after Barack Obama said Clinton did not endanger national security, after the president and vice president endorsed her, and after Lynch met privately with Bill Clinton, a visit she said was social and did not mention the case but still raised bipartisan alarms.
Don Smaltz, a lawyer appointed as an independent counsel to investigate former President Bill Clinton’s secretary of agriculture, Mike Espy, in the 1990s, said Lynch should have appointed a special prosecutor last year.
“I think she would have a more thorough investigation,” he said. “The public could have more confidence in whatever the outcome is.”
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The year-long investigation is expected to conclude in the coming weeks, though it could take longer, leaving open the probability it will cast a shadow over Clinton as she accepts the Democratic Party’s nomination for president in Philadelphia this month and launches her general election campaign against Republican Donald Trump.
The FBI and Department of Justice do not generally comment on cases if charges aren’t filed, but legal experts expect them to announce their conclusion because of the publicity surrounding the case.
At least 2,079 emails that Clinton sent or received contained classified material, according to a State Department review of emails Clinton turned over after she left the department. Most were at the confidential level, which is the lowest level of classification, but a handful were at the top secret level.
None of Clinton’s emails was marked as classified during her tenure, State Department officials say, but intelligence officials say some material was clearly classified at the time. Clinton initially said she did not send or receive any classified information – a denial she later adjusted, saying that none was marked as classified at the time.
In October, 44 Republican lawmakers sent a letter to Lynch demanding she name a special prosecutor. “A Special Counsel must be appointed to preserve the integrity of this investigation and any subsequent prosecution and ensure that there is no bias or undue influence from the White House,” the lawmakers wrote.
White House Press Secretary Josh Earnest has repeatedly said Obama has not and will not be involved in any decision relating to the case – a practice legal experts say is usually followed.
“He believes that this matter should be handled without regard to politics,” Earnest said Friday. “And he believes this investigation should be conducted based on facts, not based on the political affiliation or the political standing of anybody who may be involved in it.”
After Watergate, Congress passed a law allowing for the appointment of an independent counsel to create a check on the president and top appointees. But lawmakers let the statute expire after independent counsel Kenneth Starr’s investigation of Bill Clinton led to the president’s impeachment and trial.
Independent counsels have examined more than a dozen cases including those of Jimmy Carter’s chief of staff, Hamilton Jordan, the Iran-Contra scandal during Ronald Reagan’s term, and Bill Clinton’s Housing and Urban Development secretary, Henry Cisneros. The most famous, Kenneth Starr, began looking the Whitewater land deal and expanded the investigation to include Bill Clinton’s affair with Monica Lewinsky that led to the president’s impeachment and trial.
The law required the attorney general to appoint an independent counsel – chosen by a panel of judges – when there was substantial evidence of a crime by any of 49 federal officials. Without the law, Lynch is allowed but not required to appoint a special prosecutor.
Peter Zeidenberg, a former federal prosecutor who handled cases against public officials, including Vice President Dick Cheney’s chief of staff, Scooter Libby, said attorneys general investigate and prosecute government officials all the time. “There is no requirement for attorneys general to recuse themselves,” he said.
Legal experts say independent counsels or special prosecutors have, at times, abused their own power or made their cases political.
Katy Harriger, a professor at Wake Forest University who has studied special prosecutors, said administrations can face criticism no matter which route they take. “It’s kind of damned if you do, damned if you don’t,” she said.
If Republicans are going to make it an issue, they are are going to make it an issue. Facts don’t stand in their way
Scott Falmlen, a Democratic consultant in North Carolina
A report by the State Department inspector general determined that her email arrangement violated State Department rules, that she did not seek permission for the setup and that her was shut down at least once because of fears it had been hacked.
Clinton failed to hand over all her work emails, despite being asked to do so repeatedly. She said she is unable to access emails she sent or received in her first two months as secretary of state because her emails were not yet being captured on her server. And in recent weeks, several new batches of emails have come to light that she did not turn over.
Legal experts say investigators could be looking into potential violations of Section 1924 of Title 18, which deals with the unauthorized removal and retention of classified documents or material, or even the Espionage Act, which makes it a crime for anyone “through gross negligence,” to allow the loss, theft or removal of classified information or fails to promptly report such mishandling to his superior.
Abbe Lowell, a defense attorney who has represented a slew of public officials, including governors and members of Congress, said cases like this are conducted by line agents and prosecutors who he said are as “independent and zealous as they can be.”
“This is a big case for them,” he said. “If a political appointee quashed it, there would be hell to pay.”