A specter is haunting the Hillary Clinton campaign – the specter of an FBI investigation. The possibility of an indictment for her use of a private email system as secretary of state has been looming for months now, but the story hasn't engulfed Clinton's inevitability narrative. Thanks to Sanders' commitment to running a positive campaign, Clinton's FBI problem has scarcely been mentioned in Democratic debates.
It's entirely possible that nothing will come of this. The final result may well be a slap on the wrist and a noisy news cycle for Clinton, but that's easily endurable. It's also possible that the story has legs, that a scandal could erupt months from now in a heated general election.
Clinton's FBI problem became a little more concrete over the weekend. The Los Angeles Times reports that “Federal prosecutors investigating the possible mishandling of classified materials on Hillary Clinton's private email server have begun the process of setting up formal interviews with some of her longtime and closest aides, according to two people familiar with the probe, an indication that the inquiry is moving into its final phases.”
Notifying aides that interviews are imminent means the Feds have collected all the relevant data. The background work is done. “They are likely nearing the end of the investigation and the agents need to interview these people to put the information in context,” said James McJunkin, former FBI official. “They will then spend time aligning these statements with other information, emails, classified documents, etc., to determine whether there is a prosecutable case.”
It's unlikely that Clinton will be prosecuted for using the private email server. Although questionable, using a private email system was not illegal at the time – and Clinton certainly wasn't the first government official to do this. The key issue, as the LA Times notes, is whether classified material was communicated outside the State Department's secure system. Regardless, Clinton can still avoid prosecution, as investigators have to prove she “knowingly or willfully” handled classified material “in a grossly negligent manner.”
Establishing this beyond doubt is difficult, especially for someone as careful as Clinton. And while you can question her judgment, Clinton does not appear to have broken any laws. “The facts of the case do not fit the law,” said Stephen Vladeck, a law professor at American University. “Reasonable folks may think that federal law ought to prohibit what Hillary did, but it's just not clear to me that it currently does.”
Legal concerns aside, you can be sure that Clinton's use of the private server will be continuous fodder for Republicans in a general election. The GOP will lie and exaggerate and smear, as they always do, particularly if an indictment is handed down. Even in the more likely event that Clinton escapes legal trouble, this won't go away. And that's what makes Clinton's decision so maddening: a non-scandal scandal like this is perfectly avoidable.
Clinton brought this on herself. She knew this would be a problem. Of the 30,500 emails she turned over to the feds, 22 were identified as “top secret” and hundreds of others were identified as “secret” or “confidential.” This isn't as bad as it sounds, considering how over-classified intelligence documents are, but the optics are terrible and Republicans will exploit that to no end. The facts won't matter one bit. Gen. David Petraeus's mishandling of classified information, for example, was far worse than anything Clinton appears to have done. Politically, though, the damage might be considerable.
If Democrats are worried about this, they haven't begun worrying in public – not yet, at least. “This is clearly disruptive to the campaign,” one Democratic pollster told The Los Angeles Times. “It will take her [Clinton] off message and coverage about important aides being questioned is not coverage you'd like to have. However, this issue is largely dismissed by Democratic primary voters and baked into the cake for the general electorate.” Perhaps so, but there is no guarantee the general electorate will see through the propaganda on this issue. After all, a ludicrous – and false – narrative about Clinton's responsibility for Benghazi is still percolating in Republican circles.
What will be interesting to watch is how Bernie Sanders chooses to handle this story. So far the Vermont senator has remained focused on his message, avoiding overly harsh criticisms of Clinton. But increasingly his argument is about electability. A looming FBI investigation is a legitimate concern in October and November. There are indications that Sanders may get more aggressive as this race begins to narrow. Should he decide to raise this issue, the tone of the Democratic race would change dramatically.