Among many Republican, it’s simply an article faith: Hillary Clinton will, any day now, face a criminal indictment. As the argument goes, her email server management issues aren’t just a scandal, they’ll actually lead to her arrest.
Even some of the Democrat’s critics on the left buy into the idea that such a scenario is plausible. If my Twitter mentions are any indication, there are more than a few Bernie Sanders supporters who genuinely seem to believe Democratic voters might as well support the Vermont senator now, since his rival for the nomination is bound to end up in handcuffs.
The fact remains, however, that such a scenario is pretty far-fetched. Politico’s Josh Gerstein took a closer look today at the legal circumstances, and the reasons Clinton’s foes shouldn’t hold their breaths.
The examination, which included cases spanning the past two decades, found some with parallels to Clinton’s use of a private server for her emails, but – in nearly all instances that were prosecuted – aggravating circumstances that don’t appear to be present in Clinton’s case.The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form.
Politico’s examination seems to have only been able to find one person who sincerely believes Clinton will face prosecution: former New York Mayor Rudy Giuliani (R), who was a prosecutor and a Justice Department official before his partisan antics made him something of a clownish joke.
Among more objective observers, the idea of Clinton facing an indictment seems, at best, implausible. This is very much in line with a recent American Prospect examination, which reached the same conclusion.
TPM’s Josh Marshall published a related piece in February, after speaking to a variety of law professors and former federal prosecutors about the Clinton story. “To a person,” Josh wrote, they agreed the idea of a Clinton indictment is “very far-fetched.”
So, why does such an unlikely scenario generate so much attention? I think there are probably a couple of things going on here.
The first is that Clinton has more than a few media critics, many of whom are a little too eager to embrace the idea of a new “scandal.”
The second, as Paul Waldman argued today, is that Republicans consider the idea of a Clinton indictment “too tantalizing,” even if they know it’s not going to happen.
For the most part, the Clinton email story has been a disappointment to Republicans. They were desperately hoping that the emails would reveal some kind of ghastly malfeasance on Clinton’s part, some smoking gun that would make all Americans realize that she should never be elected president. When that turned out not to be the case, they pinned their hopes on the idea that she would just have to be charged with a crime eventually. I have no doubt that people like George Will and Karl Rove now understand that that isn’t going to happen either.But having gone this far, they need to keep up appearances, and they also know that just talking about her emails serves to convince people that something scandalous must have happened.
And when nothing ends up happening, will the right conclude that they shouldn’t have bought into baseless hype? Of course not. Instead they’ll argue that Clinton would have been indicted were it not for that rascally President Obama intervening to let her off the hook.
Because, as conservatives apparently see it, Clinton’s email server management issues are obviously criminal. If she’s indicted, they’re right, and if she’s not indicted, they’re still right.