Hillary Clinton says she won't be indicted over emails. Is that right?

Regardless of the outcome of the FBI investigation into Clinton's emails, the GOP will do everything it can to keep the issue alive.

Kevin Lamarque/AP/File
Then-Secretary of State Hillary Rodham Clinton checks her Blackberry from a desk inside a C-17 military plane in 2011. Infamous Romanian hacker Marcel Lazar says that he hacked e-mails stored on her private server.

During last night’s Democratic debate Hillary Clinton seemed annoyed by a question about her State Department emails. Univision anchor Jorge Ramos asked her if she would resign if indicted by the FBI for mishandling classified information, and in response she raised her hands, palms out, as if wiping the issue away.

“Oh for goodness ... that’s not going to happen. I’m not even answering that question,” Mrs. Clinton said, as the audience broke out in supportive applause.

Is Clinton right to be so dismissive?

On the question of whether she’s facing an actual United States indictment, Clinton is probably correct. Emphasize “probably,” as federal legal outcomes are notoriously unpredictable.

The FBI is indeed conducting a criminal investigation into the possible mishandling of classified information on the private email server Clinton used for State Department communications. The Justice Department recently gave immunity to a former State staffer who worked on the server, Bryan Pagliano, securing his cooperation with the probe.

But Clinton has not been told she is a specific legal “target” of the investigation. There is no evidence federal prosecutors have convened a grand jury to dig more deeply into testimony.

Clinton supporters say that granting immunity to Pagliano is consistent with prosecutors wrapping up loose ends on an investigation that’s set to end soon, possibly by May. So far, on the surface, that seems correct.

It’s a federal crime to “knowingly” mishandle classified information, or to display “gross negligence” towards its security.

Clinton has said the use of the server was a mistake. But it was far from criminal, in her view, because none of the emails she sent or received on the server were marked “classified” at the time of communication. The intelligence community decided they should be classified during a review of her communications after the server issue went public.

“What you are talking about is retroactive classification,” Clinton said Wednesday night after the moderator, Mr. Ramos first raised the subject.

US intelligence officials haven’t discussed the nature of the emails they’ve deemed secret in hindsight. Press leaks indicate many deal with the US drone program in the Middle East, a subject widely discussed in the media but closely held in official communications. It’s possible the emails could be classified just for referencing TV or newspaper stories about the armed drones.

In sum, Clinton’s use of a private server for her State Department emails looks awful. Given that she was considering running for president when it was set up, it was downright idiotic, according to Washington Post columnist Ruth Marcus.

But it’s unlikely to put her in a federal courtroom.

“Could a clever law student fit the fact pattern into a criminal violation? Sure. Would a responsible federal prosecutor pursue it? Hardly – absent new evidence,” wrote Ms. Marcus earlier this week in an examination of the issue.

But Clinton shouldn’t be dismissive of the e-mails' possible political damage on a general election campaign if she wins the Democratic nomination. (That’s still the most likely outcome – sorry Bernie fans.)

On the one hand, the FBI investigation of the issue could be a shield for Clinton. If she isn’t indicted, she can use that fact as an all-purpose dismissal. Something along the lines of, “The feds found no problem here, so move along, move along.”

On the other hand, Republicans will do their best to keep the issue alive, no matter what. The Republican National Committee on Wednesday filed two lawsuits seeking access to Clinton’s State Department communications, citing the Freedom of Information Act.

The first lawsuit asks for all Clinton’s text and BlackBerry messages sent and received during her time at the State Department, as well as communications to and from various top Clinton aides. The second asks for communications between the State Department and Clinton’s presidential campaign after she left office in 2013.

“This thing is not going away, no matter how much the press and the Clinton campaign kiss and hug over it,” writes Caleb Howe at the conservative Red State site.

After all, if Donald Trump is the Republican presidential nominee, his campaign will need to do all it can to focus the presidential race on Clinton’s perceived faults as opposed to Trump’s own outsize personality.

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