Indicted or not, Hillary Clinton could be hurt by email controversy

WASHINGTON – No matter how the FBI investigation into the handling of sensitive information on Hillary Clinton’s personal computer server ends, it is likely to hurt her campaign for president.

If she is indicted, she will face further questions about her honesty and perhaps even calls for her to step aside. If she isn’t indicted, critics will accuse the Obama administration of letting her escape charges merely because they want her to win the election.

The threat of political pain even with no indictment was underscored as dozens of Republicans lawmakers pressed Attorney General Loretta Lynch to appoint a special prosecutor far removed from the White House to determine if any laws have been broken.

But Lynch has resisted those demands even after President Barack Obama said Clinton did not endanger national security, after the president and vice president endorsed her, and after Lynch met privately with Clinton’s husband this week.

Under pressure, Lynch announced Friday that she expects to accept the recommendation of investigators and prosecutors at the FBI and the Justice Department — and FBI Director James Comey, a Republican — in the case.

She said that she still plans to review the case, which was begun by the FBI’s Counterintelligence Division after classified information was found in some of Clinton’s emails last year.

Don Smaltz, a lawyer appointed as an independent counsel to investigate former President Bill Clinton’s secretary of agriculture, Mike Espy, in the 1990s, said Lynch should have appointed a special prosecutor last year.

“I think she would have a more thorough investigation,” he said. “The public could have more confidence in whatever the outcome is.”

At least 2,079 emails that Clinton sent or received contained classified material, according to a State Department review of emails Clinton turned over after she left the department. Most were at the confidential level, which is the lowest level of classification, but a few were at the top secret level.

None of Clinton’s emails was marked as classified during her time as secretary, State Department officials say, but intelligence officials say some material was clearly classified at the time. Clinton initially said she did not send or receive any classified information – a denial she later adjusted, saying that none was marked as classified at the time.

In October, 44 Republican lawmakers sent a letter to Lynch demanding she name a special prosecutor. “A special counsel must be appointed to preserve the integrity of this investigation and any subsequent prosecution and ensure that there is no bias or undue influence from the White House,” the lawmakers wrote.

White House press secretary Josh Earnest has repeatedly said Obama has not and will not be involved in any decision relating to the case.

“He believes that this matter should be handled without regard to politics,” Earnest said Friday. “And he believes this investigation should be conducted based on facts, not based on the political affiliation or the political standing of anybody who may be involved in it.”

After Watergate, Congress passed a law allowing for the appointment of an independent counsel to create a check on the president and top appointees. But lawmakers let the statute expire after Kenneth Starr’s investigation of Bill Clinton led to the president’s impeachment and trial.

The law required the attorney general to appoint an independent counsel – chosen by a panel of judges – when there was substantial evidence of a crime by any of 49 federal officials. Without the law, Lynch is allowed but not required to appoint a special prosecutor.

Peter Zeidenberg, a former federal prosecutor who handled cases against public officials, including Vice President Dick Cheney’s chief of staff, Scooter Libby, said attorneys general investigate and prosecute government officials all the time. “There is no requirement for attorneys general to recuse themselves,” he said.

Legal experts say independent counsels or special prosecutors have, at times, abused their own power or made their cases political.

Katy Harriger, a professor at Wake Forest University who has studied special prosecutors, said administrations can face criticism no matter which route they take. “It’s kind of damned if you do, damned if you don’t,” she said.

A report by the State Department inspector general determined that her email arrangement violated State Department rules, that she did not seek permission for the setup and that her was shut down at least once because of fears it had been hacked.

Clinton did not hand over all her work emails, despite being asked to do so repeatedly. She said she is unable to access emails she sent or received in her first two months as secretary of state because they were not yet being captured on her server. And in recent weeks, several new batches of emails have come to light that she did not turn over.