Monday, February 1, 2016

Throwing cold water on the Hillary Clinton indictment hot takes

Posted By on Mon, Feb 1, 2016 at 12:21 PM

The right wing blogosphere, not to mention a chunk of the mainstream media, has visions dancing in their heads of a Hillary Clinton indictment, regarding her use of a private email server while Secretary of State. Almost certainly not going to happen, writes Josh Marshall of Talking Points Memo:

Over the weekend there was a stir because a New York Times reporter, Peter Baker, told CNN's Sunday morning show that Democrats are "quietly absolutely petrified" of a mid-summer indictment. This 'hot take' was immediately picked by Mike Allen's Politico Playbook. The stage was then set for yet another DC bubble derp freakout. Are Democrats "petrified"? I think that's an overstatement. But are some nervous? I have no doubt they are. But I know people are stocking up on ammo for when ISIS mounts an operation against their house. For most people fear is generated by press coverage, often ignorant or tendentious press coverage. And with the breathless coverage of developments that more or less obviously have no legal impact whatsoever, I don't doubt that many are nervous.

Here's the reality. Who knows what we will learn in the future? And this has nothing to do with the political impact of the "emails controversy." But as a legal matter, the chances of Hillary Clinton facing any kind of indictment are very, very low.

Start with the fact that as far as we know, she is not actually even being investigated for anything, let alone facing a looming indictment. The simple facts, as we know them, just don't put her in line for an indictment. The first reason is the facts, which rest heavily on intent and reckless negligence. The second is tradition and DOJ regulations which make professional prosecutors very leery of issuing indictments that might be perceived or in fact influence an election. This was my thinking. But as the press coverage has become increasingly heated, I started trying to figure out if there was something I was missing - some fact I didn't know, some blindspot in my perception. So I've spoken to a number of law profs and former federal prosecutors - based on the facts we know now even from the most aggressive reporting. Not like, is this theoretically possible? Not, what the penalties would be if it happened. But is an indictment at all likely or is this whole idea very far-fetched. To a person, very far-fetched.

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