During his victory lap after Tuesday’s big five state win, Donald Trump relished in taking aim at his presumptive Democratic opponent, Hillary Clinton. He couldn’t resist mentioning the FBI’s email investigation, and how “it’s an absolute criminal outrage.”
“Whether I read about it in the paper, or I watch it with legal experts on television, virtually every single one of them said what she did is a criminal act. What she did is a very dangerous thing for our country and here she is running,” he told reporters.
So as a legal website, we had to fact check this one. Does ‘virtually every single’ legal expert really believe Clinton committed a crime? The answer is no. In fact, legal experts are pretty divided. While there are several very credible legal minds who say she should be indicted based on the evidence, there are also plenty who believe she didn’t do anything legally wrong.
First, here’s a rundown of legal experts who have opined that Clinton may have, in fact, committed a crime.
#1 Fox’s Judge Andrew Napolitano has said time and time again that there is ‘overwhelming’ evidence to both indict and convict Clinton. “The evidence is overwhelming to conclude, overwhelming to anyone that observed what she did,” he said.
# 2 Former U.S. Attorney General Michael Mukasey penned a Wall Street Journal opinion piece saying that a criminal charge is, in fact, justified. He writes:
“…from her direction that classification rules be disregarded, to the presence on her personal email server of information at the highest level of classification, to her repeated falsehoods of a sort that juries are told every day may be treated as evidence of guilty knowledge—it is nearly impossible to draw any conclusion other than that she knew enough to support a conviction at the least for mishandling classified information.”
# 3 LawNewz.com editor Chris White who says “At a minimum, we know enough today to sustain a misdemeanor charge of unauthorized removal and retention of classified material.”
#4 Former Asst. U.S. District Attorney Andrew McCarthy also believes she may have committed a crime he wrote in The New York Times:
These attempts to suggest she was unaware of any wrongdoing are likely unavailing. .. The laws against mishandling classified information are prosecution-friendly. For example, it is a felony for one entrusted with classified information not only to communicate it to a person unauthorized to have it, but also to enable its removal from its secure storage facility through gross negligence. It is also a crime to fail to report that information’s improper removal or communication. So is retaining materials containing classified information at an unauthorized location… Secretary Clinton systematically conducted official business on a private unsecure system, and had subordinates do likewise, knowing the nature of their duties made classified communications inevitable
While those legal experts undoubtedly back up Trump’s claim, there are many who say there is no way Mrs. Clinton will end up in handcuffs (including, of course, Mrs. Clinton herself)
# 1 American University Law Professor Stephen Vladeck who also penned an opinion piece in The New York Times which said her conduct might have been careless but was not criminal. He writes:
In Secretary Clinton’s case, then, the fact that some of the emails contained information that might be classified today does nothing to prove that the information was classified (and was known by her to be classified) at the time it was discussed over unsecured networks
#2 Former federal prosecutor Anne Tompkins (who also prosecuted David Petraeus), she wrote “The key element that distinguishes Secretary Clinton’s email retention practices from Petraeus’ sharing of classified information is that Petraeus knowingly engaged in unlawful conduct, and that was the basis of his criminal liability.”
#3 LawNewz.com founder, Dan Abrams, also believes based on what we know today, Clinton did not commit a crime. “The reality as I see it is one that won’t entirely satisfy either side — that based on what we know today, she likely did violate government procedures and rules, but not the law,” Abrams said.
# 4 Loyola Law Professor Laurie L. Levenson who wrote in The National Law Journal that “[p]olitics aside, it is difficult to find prior cases where the unwise handling of classified information led to a federal indictment. For the last 20 years, the federal statutes have been used when there were intentional unauthorized disclosures.”
Despite what Mr. Trump reads and sees on television, legal experts are clearly very divided on whether Clinton committed a crime. The FBI investigation is reportedly in its final stage. Agents will likely turn their findings over to Attorney General Loretta Lynch. Ultimately, it will be Lynch who decides if charges against Clinton, or any of her aides are, in fact, warranted.