The Politics and the Law

To some Republicans, it looked like the smoking gun they’d been imagining for years. When the State Department released another batch of Hillary Clinton’s emails in early January, her GOP opponents said they had found proof she broke the law by knowingly keeping classified intelligence on her unsecured personal server as Secretary of State. GOP candidates declared her unfit for office, and the prospect of Hillary under federal investigation apparently helped spur aides to billionaire former New York City mayor Michael Bloomberg to float word of a possible White House run.

But behind the smoke there is, so far, just more smoke. A quiet, deliberate investigation by the FBI and the Justice Department is reviewing the potential mishandling of classified information found on Clinton’s server. The good news for Clinton is that the bar for legal action in cases like this is high, which makes criminal charges unlikely. The bad news for her is that the political costs may continue to mount anyway.

The latest turn in the story started back on June 16, 2011. Clinton was preparing to head to Guatemala and Jamaica, and the Middle East was a mess. A top aide, Jake Sullivan, arranged for a Defense Department expert to send Clinton some talking points on the situation in the region. When the Pentagon had trouble forwarding the material via secure fax, Clinton emailed Sullivan and suggested he “turn [it] into nonpaper w[ith] no identifying heading and send nonsecure.”

Michael Mukasey, George W. Bush’s former Attorney General, writing in the Wall Street Journal, said that email showed Clinton’s “guilty state of mind,” which is the hard-to-prove standard for conviction in some cases of criminal mishandling of intelligence. Clinton’s campaign says it shows the opposite. A “nonpaper,” one campaign official points out, is a diplomatic document that has been stripped of identifying material so that it can be circulated to counterparts in negotiations. People “mistook” what she was asking for, the official says. In any case, State says no such “nonpaper” email ultimately was sent to Clinton; a secure fax was.

Justice rarely moves quickly on these kinds of probes, and with more than 1,600 work emails from Clinton’s private server found to have classified material in them, there is plenty for the FBI to review. Investigators will pay close attention to 22 emails intelligence officials say contain top-secret information that was not originally generated by State but by agencies like the CIA or the National Security Agency. The FBI might interview diplomats who mishandled that information and then, perhaps, the Clinton aides who passed it along to her on her private server.

But only then would a discussion begin at the highest levels of the Justice Department over whether to pursue any legal action. A conviction would have to be “a lead-pipe cinch,” says one former top Justice official who is no fan of Clinton’s. Investigators have been collecting documents, but there is no sign that federal agents have interviewed anyone close to Clinton yet. Several individuals involved in the case tell TIME they have not been interviewed by the FBI or the Justice Department.

Still, the email affair will continue to dog Clinton as she contends with Bernie Sanders in the early primaries. The judge overseeing the Freedom of Information Act case that forced the release of 44,818 pages of emails so far ordered the State Department to release the remaining 7,600 pages by the end of January. State, struggling to find and remove classified information from them before doing so, asked for a one-month extension. That would mean the final batch of emails could come out right before Super Tuesday, when Democratic voters in 11 states go to the polls. Even then, the FBI probe could continue for months. Only when Justice is ready to go public with its findings will the smoke around Clinton’s emails finally clear.