While the Republican establishment remains distraught and plotting over how to sabotage Donald Trump's possible nomination win, they remain near orgasmic over dreams that Hillary Clinton will be indicted over her use of a private e-mail server while Secretary of State - something we have since learned her predecessors did as well - thus throwing the Democrat side of the election process into chaos. A column in the Washington Post looks at why this Republican wet dream is unlikely to happen. Here are excerpts:
For those of you salivating — or trembling — at the thought of Hillary Clinton being clapped in handcuffs as she prepares to deliver her acceptance speech at the Democratic convention this summer: deep, cleansing breath. Based on the available facts and the relevant precedents, criminal prosecution of Clinton for mishandling classified information in her emails is extraordinarily unlikely.
There are plenty of unattractive facts but not a lot of clear evidence of criminality, and we tend to forget the distinction,” American University law professor Stephen Vladeck, an expert on prosecutions involving classified information, told me. “This is really just a political firestorm, not a criminal case.”
Another possible prosecutorial avenue involves the Espionage Act. Section 793(d) makes it a felony if a person entrusted with “information relating to the national defense” “willfully communicates, delivers [or] transmits” it to an unauthorized person. That might be a stretch given the “willfully” requirement.
The argument here would be that Clinton engaged in such “gross negligence” by transferring information she knew or should have known was classified from its “proper place” onto her private server, or by sharing it with someone not authorized to receive it. Yet, as the Supreme Court has said, “gross negligence” is a “nebulous” term. Especially in the criminal context, it would seem to require conduct more like throwing classified materials into a Dumpster than putting them on a private server that presumably had security protections.
The handling of the emails is an entirely legitimate subject for FBI investigation. That’s a far cry from an indictable offense.