No matter what decision federal prosecutors and FBI investigators make in the Hillary Clinton email probe, there is sure to be a public backlash from the left or the right.
If Clinton doesn’t face charges, Attorney General Loretta Lynch and the Justice Department will certainly come under criticism from conservatives who will suspect President Obama’s administration of covering up for a former Cabinet member.
{mosads}Yet if charges are brought, Democrats are just as sure to question the motives of FBI Director James Comey, a Republican who worked for the Bush administration.
The stakes are huge given Clinton’s status as the likely Democratic presidential nominee, underscoring the pressure on the Justice Department. Charges against her or her aides could wound her presidential bid, while silence would ease her path to the White House.
“In this scenario, federal prosecutors are damned if they do bring a case and damned if they don’t,” said Justin Shur, the former deputy chief of the Justice Department’s public integrity section, who is now at the law firm MoloLamken.
“Regardless of whether the charging decision is supported by the facts and the law, there’s always someone who will suggest there was a political agenda behind it.”
The federal investigation connected to Clinton’s use of a private email server throughout her tenure as secretary of State has loomed over her presidential campaign. Central to the investigation is whether she sent classified information over her server, though more than 2,000 of the emails now considered classified were not marked as such at the time they were sent.
The investigation has gone on longer than some anticipated, though it may now be nearing a conclusion.
FBI investigators and federal prosecutors have reportedly interviewed multiple Clinton aides in recent weeks, and a session with Clinton herself is expected in the coming days.
Multiple former prosecutors are seeing those interviews as a sign that the investigation is in its final stages.
Some former officials with the Justice Department are watching the unfolding case with concern and warn a decision in the Clinton case could affect Justice’s image for years to come.
“I’m greatly concerned about the reputation of the Justice Department, which is why I have stated that I think the proper and best course would have been to have this go to an independent prosecutor a good year ago,” said Ronald Sievert, a former Justice Department official who teaches law at Texas A&M University and the University of Texas Law School.
“It was pretty obvious that to put these decisions in the hands of … high-ranking
political appointees creates a perception — valid or not — of, at the very least, unconscious political influence,” he added.
Sen. John Cornyn (Texas), the No. 2 Senate Republican, has taken to the Senate floor to call for Lynch to appoint a special prosecutor to handle the case. So far, however, Justice has declined to do so.
In the absence of a special counsel, others have pushed for the Obama administration to release as much information as possible about the case if it decides not to press forward with an indictment.
“All I can go by is what the president has said and what the attorney general has said: that there’s not going to be any politics played,” Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said on Tuesday.
“If it doesn’t work out that way and they don’t prosecute, then they’ll have to be very transparent and tell us what there is in the FBI report that will tell us why it shouldn’t be prosecuted.”
That’s easier said than done.
Prosecutors are largely prohibited from releasing details about investigations that don’t lead to criminal charges. And while there are some instances of prosecutors releasing information about a case they declined to pursue, such as in cases of police shootings, the Clinton case lacks many of the quirks that made those disclosures possible.
“It’s very, very rare for that to be done, and it wouldn’t happen in this case because they can’t go into the details of Hillary
Clinton’s email in a public report,” Amy Jeffress, a former Justice Department official who is now a partner at Arnold and Porter, told The Hill. “It would be too politically sensitive, as well as potentially damaging to national security and foreign relations, to release anything more than the decision.”
According to reports, federal prosecutors and FBI investigators have yet to dig up evidence that could lead to a criminal indictment, though the process is not yet completed. There has been no evidence that a grand jury has been convened in the case, which would be necessary before criminal charges could be filed.
If the Justice Department does decide to press charges, either against Clinton or one of her allies, the evidence will become public, making the decision easier to justify.
Still, Comey is a Republican who gave money to Mitt Romney, the 2012 GOP presidential nominee, in his race against Obama. He has a reputation more as a maverick than a political lackey, but Clinton’s allies might try to change that if the Justice Department proceeds with an indictment.
The department has repeatedly refused to discuss details of the investigation.
“That investigation is, as you know, an ongoing matter,” Lynch said this week. “It’s being handled by the career lawyers and agents of the department, and they will review all the facts and evidence and make a recommendation at the appropriate time.”
Comey is fond of saying the FBI doesn’t “give a rip about politics,” and multiple former officials insisted that political considerations would not enter into their minds.
“There’s no bigger quote-unquote ‘target’ when you talk about a presidential nominee, especially Secretary Clinton,” said Glen Kopp, a former prosecutor now in the white-collar section at Bracewell, a law firm.
But there are plenty of other “heads on the wall” of politicians from both parties who have faced federal charges, he said. Despite the unique nature of the Clinton case, the mechanics aren’t too different from other high-profile investigations.
“People are wary of those political influences and, from my experience, do their best to block out the noise,” he said.
“In this context, yes, there will be perhaps some … louder screams of dissatisfaction with the process. But I think it’s the integrity of the process that is paramount.”