A former Justice Department official says there is no doubt former Secretary of State Hillary Clinton broke federal laws by exclusively hosting all of her official emails on a home server and possibly compromising national security, but she says the political nature of Barack Obama’s Justice Department makes an indictment very unlikely.
Victoria Toensing is a former deputy assistant attorney general and also served as an assistant U.S. attorney. Since her time in government, Toensing has represented many high-profile clients on issues ranging from terrorism to political corruption to the 2012 attack in Benghazi. She says this case should be simple for the FBI and federal prosecutors just based on what has already been revealed.
“18 USC 1924 makes it a crime to have classified information at an unauthorized location,” said Toensing.
Clinton’s defenders say several of her predecessors used private email accounts while heading the State Department. Toensing says that’s true, and it’s completely irrelevant.
“It’s the server stupid. That’s the line. Don’t let them mislead you by saying, ‘Oh, it’s a private email account. Colin Powell had one.’ Yeah, he did. Everyone does. What she was not supposed to do was have a server taking classified information when that server was not a protected server under the government’s auspices. That is the issue,” said Toensing.
The FBI investigation of the Clinton server comes at a politically sensitive time. Clinton is the clear favorite for the Democratic nomination in an otherwise weak field and the first votes are less than two months away.
Toensing says that should not matter when it comes to enforcing the law but she says that may be hoping for too much.
“This has been the most political Justice Department that I have ever, ever seen, and I go back a long way, back to (Carter administration Attorney General) Griffin Bell, who was just a great attorney general. It wouldn’t have bothered him one way or the other. It wouldn’t have bothered Democratic or Republican administrations,” said Toensing.
However, she says the track record of the Obama Justice Department should lead us to expect no legal trouble for Clinton in the coming weeks or months.
“We all know Lois Lerner is being told she has no prosecution concerns. Nobody at the IRS has prosecution concerns. Nobody from Fast & Furious has any prosecution concerns. So why would we think this would be any different?” said Toensing.
But while Toensing does not expect Attorney General Loretta Lynch to indict Clinton regardless of what the FBI may or may not recommend, she says the probe may still lead to serious political damage for Clinton.
“I think that you’ll find a lot of leaks if it doesn’t happen. If they find criminal conduct and recommend criminal prosecution and it’s quashed, I think people in the press will start getting a dime dropped on them,” said Toensing.
For Toensing, however, there is no doubt there was criminal conduct. In addition to Clinton doing all of her work email through a private, unsecure server, there are now more than a thousand released emails containing classified information.
Clinton often says that those emails were never marked classified. Again, Toensing says that defense is “silly”
“Is that silly now? Of course it wasn’t marked classified at the time because it’s supposed to go through a classification process when it comes to the State Department. Her people took raw information and didn’t put any classification markings on it, or they took them off, which is another one of the allegations, and sent them to her,” said Toensing.
Additionally, Toensing says it is the duty of the secretary to know what constitutes classified material and what does not.
“The secretary of state is supposed to know when something is classified and certainly things such as the overhead pictures and so forth that has been described. Those are classified and anybody on the bottom-most level of the State Department should know that,” said Toensing.
Toensing is also dumping cold water on another Clinton excuse, namely that there is considerable debate over what was classified and was not and that the State Department is still sorting through it. She says that’s all a smokescreen.
“No, here is the rule,” said Toensing. “If the CIA creates the document, the CIA and only the CIA gets to say whether it’s classified. There can be no dispute by any other agency. The State Department cannot refute a classification that the CIA put on a document,” said Toensing.
She says several documents kept on Clinton’s server break the law for that very reason.
“There’s already been several classified documents that the CIA has said, ‘These were classified at birth.’ Then they went to her private server,” said Toensing.
Further damaging to Clinton is her inability to cite where she got permission to have the home server.
“I think one reporter asked her, hardly anyone else does, ‘Well, who authorized it at the State Department? Who was the person?'” recounted Toensing.
Hillary’s answer was weak.
“‘Well no one had to. It was just known that it was okay,'” said Toensing in summing up Clinton’s response.
There is also evidence that Clinton obstructed justice during the course of the investigation.
“There is a possible obstruction of justice charge in that Sidney Blumenthal was also asked to turn over documents. He turned over emails back and forth to her that she never turned over. Prosecutors go after that all the time,” said Toensing.
