http://thehill.com/policy/national-security/286059-email-story-wont-end-for-clintonEmail story won’t end for Clinton
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By Julian Hattem - 06/30/16 06:00 AM EDT
The FBI’s investigation of Hillary Clinton’s email is this election’s never-ending story.
Just weeks before the Democratic National Convention, the FBI has yet to issue a report on its findings.
It’s been nearly a year since inspectors general from the State Department and federal intelligence agencies referred the case of Clinton’s server to the Justice Department last July.
At the time, officials expressed concern that some of the materials in her private inbox were classified at some level, suggesting possible mishandling of sensitive information.
The issue has dogged Clinton’s presidential campaign ever since and proven to be reliable ammunition for Donald Trump and other Republicans.
Many watchers expected the investigation to be drawing to a close this spring, when a flurry of reports claimed senior aides had begun sitting down for interviews with FBI agents and federal prosecutors. Government lawyers appeared to be circling around Clinton, with an eye on interviewing the candidate herself.
“I hope that this is close to being wrapped up," Clinton said on CBS’s “Face the Nation” in May.
But nearly two months later, there have been no reports that an interview with the former top diplomat has taken place.
“I, like other people, am a bit surprised that it hasn’t come to a resolution yet,” said Douglas Cox, a professor at the City of New York School of Law.
He added that within Clinton’s campaign, “I would think internally that there would have to be a little bit of concern.”
Spokespeople for Clinton’s campaign did not to respond to an inquiry from The Hill on Wednesday.
FBI officials have routinely refused to discuss the case, while FBI Director James Comey has repeatedly insisted that his bureau conducts its investigations without regard to the political calendar.
“We want to do it well, and we want to do it promptly,” he said last month. “As between the two things, we will always choose 'well.’”
Clinton survived this week’s release of a Republican-led congressional investigation into Benghazi unscathed, as the report did little to change the narrative surrounding the attack on the U.S. diplomatic compound in Libya, which left four people dead.
Rep. Trey Gowdy (R-S.C.), the panel’s chairman, emphasized that the report was a look at the administration as a whole and not Clinton.
With Benghazi now largely in Clinton’s rearview mirror, the question of whether the FBI could ever indict her over her use of a private email server while at State may be the only potential deathblow left for her campaign.
In a federal court filing earlier this month, Justice Department lawyers warned against releasing the terms of the immunity agreements reached with IT aide Bryan Pagliano, which they said “could prematurely reveal the scope and focus of the pending investigation.”
Federal prosecutors have a policy to avoid having their investigations affect the outcome of an election, and officials are clearly aware that their probe is happening against a backdrop of intense political scrutiny.
Despite Comey’s comments, many watchers have speculated that the Justice Department has an unofficial deadline of the party conventions next month to finish its probe one way or the other.
Attorney General Loretta Lynch reportedly met privately with Clinton’s husband, former President Bill Clinton, in Phoenix on Monday evening. But Lynch insisted that the discussion was purely social and did not touch on Benghazi or the email investigation.
“There was no discussion of Benghazi, no discussion of State Department emails,” Lynch said at a news conference.
Multiple legal experts are skeptical that the presumptive Democratic nominee will be indicted, given the high hurdle of proving that she willfully set up the system to take classified documents out of secure locations.
But the possibility has been a fascination among Republicans who want to see her barred from the White House. And some staunch supporters of Sen. Bernie Sanders (I-Vt.) have held out hope that a federal indictment will catapult him to the Democratic nomination.
Critics are sure to characterize a decision not to press charges as a political move to protect Clinton.
“I think that [federal prosecutors] would want to get all their ducks in a row,” said Cox. “They would want to make sure that their decision was as insulated as it could be from any charges that a decision not to bring charges would be politically motivated or be driven by political considerations.”
If Clinton were to be indicted, she would not automatically be booted from the presidential race, though the pressure for her to withdraw would certainly be immense.
It’s anybody’s guess what would happen next.
If an indictment were handed down before the convention and she stepped aside, Clinton could push delegates to support Sanders or another prominent Democrat, such as Vice President Biden.
If it happened afterwards, the Democratic Party would likely be responsible for selecting a replacement.
But either scenario would dramatically upset the presidential race, which is why some predict that the Justice Department would stay mum until after the election if it wants to press ahead with charges.
“If the FBI concludes that Clinton did not engage in any criminal conduct … I anticipate that we will know about those findings before the election, to remove the cloud,” said Steven Levin, a former federal prosecutor.
“If the FBI were to identify criminal conduct, such a disclosure would affect the election, something that the Department of Justice has a policy against doing,” he added. “So I think we should expect to see something of that nature post-election.”
Other former prosecutors and defense lawyers questioned that hypothesis, claiming that a decision to wait to indict a potential president-elect would be a far bolder move than acting ahead of time.
But in any case, it’s clear that without answers, many will continue to assume the worst.
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“Whenever there is an open criminal charge or an open criminal investigation, it puts a shadow over people,” said David Deitch, a former federal prosecutor in Washington. “And of course it's even worse if it’s a political figure who’s up for election.”
“We have this wonderful presumption of innocence in this country, but often that’s something that people say in fancy rhetorical language, but in their gut they want to believe that people who are under investigation must be guilty,” he added.
“And it’s an unfortunate thing, because some are, of course. But a lot are not."
