What Would a Justice Department Indictment of Hillary Clinton Look Like?

As the presidential race plods along from caucus to primary, the Democratic frontrunner, former Secretary of State Hillary Clinton is on track to capture her party’s nomination. Growing more and more confident by the day of victory, she has pooh-poohed suggestions that past flip-flops or improprieties could come back to haunt her between now and the general election in November.

However, there’s an 800-pound gorilla in the room that her campaign is reluctant to discuss except to issue denials about it. The gorilla is, of course, her use of a private email server to conduct classified State Department communications during her tenure as head of the Department and her deletion of thousands of emails that she claimed were personal. By keeping her email on a private server, she exempted it from examination under the government Freedom of Information Act, limiting future scrutiny of her messages.

Despite Clinton apparently believing that the scandal surrounding her server has died or faded away, it in fact has gathered steam in the last several months as it appears the FBI has hastened its probe of her emails and her staff, dedicating up to 50 agents to work on the case. The current FBI Director, James Comey, has a reputation as someone who is nonpartisan and very dedicated to his job; he’s been described by some observers as a modern-day Eliot Ness, the U.S. Treasury agent who was responsible for putting gangster Al Capone in jail.

Meanwhile, at the Department of Justice, Obama cabinet member and Attorney General Loretta Lynch has been accused of being directed by the Obama administration not to serve a criminal indictment to Clinton prior to the general presidential election taking place in November (Lynch was personally appointed by President Obama in 2015).

The history of the email scandal is long and involved, but at this point, it incorporates at least four separate investigations that Clinton has had to testify in. The most recent of these testimonies, on October 22, revealed no damning evidence but the clamor of the media and the public over the affair is growing, rather than subsiding.

At first, Clinton’s spokesman declared that her use of the email server in her home complied with both the “letter and spirit of the rules.” Clinton later said she had installed the server for purposes of “convenience.” Upon testifying in 2013 about the server to the Senate Foreign Relations Committee, she commented, “What difference, at this point, does it make?”

In early 2015, the State Department began turning over to Congress Clinton’s emails, almost two years after they’d been subpoenaed. Even after 20,000 pages had been turned over, it subsequently came out that 15 emails to Clinton family friend and confidant Sidney Blumenthal had not been provided by the State Department to the Senate committee investigating the Benghazi affair, a separate scandal Clinton had been testifying in.

In the meantime, Loretta Lynch’s Department of Justice stated that Clinton had a right to erase the 32,000 emails that she had deleted and that courts did not require their preservation.

Clinton initially denied that her server contained any classified material. Later, she clarified that statement by saying that she had never sent or received emails that were specifically marked classified (to have done so would have been a violation of the law). Her campaign admitted that some emails may have been subsequently marked classified after she sent them.

Indeed, the State Department admitted that 2,100 emails were marked classified after being sent, including 65 deemed to be “Secret” and 20 considered “Top Secret.” Subsequent emails have been discovered to be classified at a level above “Top Secret.” Even if the messages were not marked as classified at the time they were sent, given the subject matter contained in them, it seems farfetched that Clinton could not have known they were off-limits.

According to Clinton, “Everything I did was permitted. There was no law. There was no regulation. There was nothing that did not give me the full authority to decide how I was going to communicate.” On September 9, 2015, Clinton apologized for her use of a private server but later said, “there’s only so much I can control.”

In the meantime, four former State Department staff members have retained the same high-powered counsel, former Assistant U.S. Attorney Beth Wilkinson, who served as a prosecutor in the cases of former Panamanian dictator Manuel Noriega and Oklahoma City bomber Timothy McVeigh. Some legal strategists say this allows them to save both time and money and may be an indication that they don’t believe the government’s case against their boss is strong.

Others say that this could be naive on their part and could backfire, especially if their defenses turn out to conflict with one another. There is some evidence that it’s Clinton who may be paying their legal bills. Wilkinson has declined to answer questions about the matter, citing case confidentiality.

On March 2, 2016, Clinton’s IT Specialist Bryan Pagliano, who set up the server in question, was given prosecutorial immunity, presumably in exchange for his testimony in the case. Legal experts stated at the time that this is typically only done when a federal grand jury is being convening (which happens in secret).

If this is the case, the FBI’s investigation of Clinton may have turned up more than they’re saying. Some experts say this move indicates a belief by the FBI that wrongdoing has been committed by individuals fairly high up the ladder of command. Likely, they’re hoping that Pagliano will give testimony that would shed further light on the possible illegality of these people’s actions.

At the March 9th Democratic presidential debate in Miami, Clinton was asked by moderator Jorge Ramos about what she would do in the face of an indictment over the scandal. “I’m not even answering that question,” she retorted.

According to an Al Jazeera America report, in early April of this year, Clinton herself is scheduled to give testimony to the FBI as part of interviews with Clinton staff including State Department aide Philippe Reines, former Clinton Chief of Staff Cheryl Mills (both being represented by aforementioned attorney Wilkinson) and higher-ups at the Clinton Foundation. Insiders say this interview could be crucial because if Clinton testifies to matters that contradict anything the FBI has discovered or been told thus far, she could be in legal jeopardy.

In fact, there’s a precedent for conviction via this method in the case of I. Lewis “Scooter” Libby in 2004 when Libby made false statements to federal agents regarding the Valerie Plame affair and was convicted of obstruction of justice. Clinton may be palpably quaking in her shoes about this interview, especially if there’s been wrongdoing.

On December 9, 2015, James Comey reported to a Senate committee that the investigation of Clinton was proceeding “promptly” and that he’s been pleased by its progress. No further details were revealed, but if Comey or his agents have by now found anything, the next action to occur would be a recommendation sent to the Justice Department to serve Clinton with an indictment, likely of either obstruction of justice or conspiracy. If such a step was taken, it would have devastating ramifications for her presidential campaign.

Voters, who already don’t trust Clinton by a ratio of six in 10 nationally, could conceivably disavow the former Secretary further and withdraw their support for her. Even if she fought the indictment in the media, the damage could be fatal for her campaign. GOP frontrunner Donald Trump has vowed to prosecute Clinton and throw her in jail if necessary. This is likely an even greater motivation for her to win the general election as her worst nightmares may possibly become reality if Trump were to enter office.

While it’s possible that Clinton could try to carry on campaigning despite the indictment (as her husband carried on his presidency despite impeachment hearings), the smirch of the charges would likely doom her chances of victory. Another possibility is that the FBI could recommend a lesser set of charges — perhaps something that would be palatable to both Clinton and the Democratic establishment.

But it’s unlikely, as it’s not the manner of Comey or his organization to water down charges, even (some might say especially) for someone of such a lofty and connected stature. “As I’ve said many times before, we don’t give a rip about politics,” Comey has said.

In fact, Comey has stood up to the office of the president before, as the Acting Attorney General under George W. Bush when senior members of the president’s administration wanted the Justice Department to sign off on the legality of certain components of National Security Agency spying programs. Comey threatened to resign along with hospitalized Attorney General John Ashcroft and got Bush to come around and make changes to the programs.

According to author and Clinton expert Ed Klein, Comey and “a lot of other FBI agents” are again prepared to use the same threat if the current investigation is hindered or politically steered by the White House. This could prove to be too embarrassing for the Obama administration to stomach, and popular support for the president could wither (of course, that may not matter to Obama).

Klein believes Clinton will be indicted on one charge or another; it remains to be seen what kind of impact that will have.

If there is an indictment, and the pressure is too great for Clinton to continue campaigning successfully (public opinion would have to be intensely negative to deter her), that would present second-place Democratic rival Bernie Sanders with the political opportunity of a lifetime.

In fact, the dynamic of the whole presidential race would shift overnight. Many polls have Sanders beating all of the potential GOP candidates (Trump, Texas Senator Ted Cruz and Ohio Governor John Kasich), so they may not necessarily be salivating for an indictment, but at the same time, Trump has declared he would look forward to facing Sanders in a general election.

It’s also possible that such an indictment could influence the GOP to accelerate or change their plans to throw a monkey wrench into the delegate accumulation battle that Donald Trump and Ted Cruz have been waging. The Republican Party may sense a different opening than that which Clinton had been presenting. They might feel their chances of painting a negative picture of declared Socialist Democrat Sanders may be greater than trying to get charges of corruption to stick to Clinton, who appeared to be Teflon-coated even after her 11-hour-long Benghazi grilling.

The chances that the GOP might try to run a third-party candidate to counter Trump would likely be greater in this case. (This would have the effect of preventing any candidate from accumulating the 270 electoral votes necessary to win the general election, forcing the election to be determined by the Republican-controlled House of Representatives.)

For Clinton, the stakes in this battle are already very high, and they’re getting higher.

If she hasn’t taken at least some time out from her campaign to consider her avenues of defense, the former First Lady could end up finding out the hard way that hubris has a habit of biting when and where one least expects it.

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