Politico Analysis: Highly Unlikely Clinton Will Be Indicted

It's not impossible that Hillary Clinton will be indicted for sending classified materials and sensitive items through her private home email server, but it's highly unlikely, an extensive Politico review of recent federal cases involving mishandling of records reveals.

The cases that ended up being prosecuted always included a "plus" element, and "sometimes that 'plus' factor may reach its way into the public record, but more likely it won't," an unnamed former federal prosecutor told the website. 

For example, an FBI agent who was having an affair with a Chinese intelligence agent and brought agency records home was indicted, as was a National Security Agency official who took boxes of classified documents and also lied while filing a job application.

The Justice Department usually turns down prosecution in most cases, a former senior FBI official, who asked not be named, commented, as "when you look at the history of what they pursued, you really had to have a slam-bam case that met all the elements."

According to Justice Department information, federal prosecutors only pushed for prosecution in six of 30 cases referred from investigators, and in the six that were pushed, the defendants ended up entering guilty pleas.

Part of the issue is that laws vary when it comes to classified information. With the Espionage Act, it is a felony to remove sensitive national security information through "gross negligence," but then there is another law that makes it a misdemeanor to remove classified documents and retain them in an unauthorized location.

Most of the cases that have been prosecuted have involved former members of the military, and some, like that of former CIA Director David Petraeus, have involved high-profile instances.

But in the Petraeus case, he kept black books with top secret information in his Virginia home and shared them with biographer Paula Broadwell. He admitted to the FBI that he had had an affair with Broadwell, not that he shared information with her, but there was a recording of him admitting to her that he knew there was top secret information in the books.

Petraeus ended up pleading guilty to misdemeanor charges and was sentenced to two years of probation. There are many, including former New York Mayor Rudy Giuliani, who complain that Clinton's actions reached even further and involved far more classified documents.

"She didn't just accidentally take it home, she took it home every night," Giuliani told Politico. "It was like you were taking home top-secret information every night and putting it on your nightstand."

However, there were only about 100 out of the 2100 emails that Clinton herself either sent or forwarded.  She and her team deny the emails were classified at the time and have pushed to release the messages.

In addition, there are some national security law experts who say her intent is more important than how many emails were sent.

Even Giuliani, a former federal prosecutor, said most cases of mishandling never end up with indictments, and he is sure that there were situations even with his own deputies taking confidential information home at some time or another.

But he still thinks Clinton deserves to be indicted, and she would have been by now, if she were not seeking the presidency.

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