The Four Ways Hillary Clinton’s Email Scandal Will Still Haunt Her

The FBI may have declined to prosecute Hillary Clinton. But if she’s going to become president, she has to avoid all sorts of legal pitfalls between now and November.

Photo Illustration by Brigette Supernova/The Daily Beast

Hillary Clinton has now lost her lead in the key swing states of Pennsylvania and Florida, according to a new poll that includes responses taken after FBI Director James Comey publicly excoriated the former secretary of state’s “extremely careless” handling of classified information over her private email system last week.

The poll, released Wednesday, offers the first indication that the FBI investigation has hurt Clinton in her race with Donald Trump for the White House. While it makes no direct link between the email scandal and her drop in the polls, Clinton lost ground to Trump on questions about the candidates’ perceived “moral standards” and “honesty.”

There’s still plenty of time for Clinton to reverse those swing state losses. But she is by no means out of the woods. The FBI and Justice Department may have spared Clinton from criminal prosecution over her use of a private email system, but she faces at least four legal and political challenges, any one of which could severely damage her. They include two open-ended congressional investigations about her email system, a court proceeding that could see Clinton deposed, and an internal inquiry by the State Department.

Any single probe would prove a liability as Clinton heads into her party’s nominating convention in Philadelphia later this month. But cumulatively, they ensure that the saga of Clinton’s private email, which has long re-enforced voters’ sense that she is untrustworthy, won’t dissipate in the runup to the election in November. Some of the investigations could remain unresolved even after the inauguration of the next president.

Perhaps Clinton’s biggest nemesis is the House committee investigating the Benghazi attacks, which, despite having published its findings last month, is still open for business, with subpoena power, a paid staff, and a broad mandate to investigate “any other relevant issues” related to the attacks.

Last week, committee chairman Trey Gowdy told reporters that he and his colleagues would review the transcripts of Clinton’s marathon testimony last October to see if her statements are inconsistent with the FBI’s findings. The committee doesn’t even begin the process of shutting down until it submits its final report to the House, a procedural move that may not happen for months given the new task it has set out for itself, which includes reviewing transcripts of more than 100 other witnesses.

Clinton may also have to speak yet again about her email and the decisions that led her to use a “homebrew” server in the basement of her New York home. This time, it would be in a deposition to the conservative watchdog group Judicial Watch, which in a civil lawsuit is probing whether Clinton and other State Department officials tried to thwart open records laws.

Next week, the judge overseeing the case will hold a hearing on whether Clinton must be deposed; he already took the extraordinary step of allowing Judicial Watch to question some of Clinton’s closest aides and advisers, including Cheryl Mills and Huma Abedin. All of the interview transcripts have been made public, and presumably Clinton’s would be, as well.

The House oversight committee also wants to know if Clinton perjured herself in that 11-hour hearing about the Benghazi attacks. This week, Chairman Jason Chaffetz sent a written referral to the Justice Department asking law enforcement to examine her testimony against the FBI’s findings. Clinton told lawmakers last October that she only used only one server, that her lawyers had reviewed all her emails, and that she had never sent any classified information, but Chaffetz says the FBI has found otherwise.

Add to this political minefield that fact that the State Department has opened an “internal review” about how Clinton and her aides handled classified information. That inquiry might heap yet another round of criticism on Clinton; the department’s inspector general has already found that lawyers never would have agreed to approve a private email system had Clinton asked them for guidance. The internal review could lead to sanctions against Abedin, Mills, and others who Clinton presumably would want to bring into her future presidential administration. If the State Department were to recommend actions that made it difficult for those aides to obtain a security clearance, Clinton would have to go without her closest advisers in her administration unless she were willing to take the extraordinary measure of overruling State’s determination.

It may be open season on Clinton. But Republicans face their own political pitfalls in a relentless pursuit for answers about her email and what she told Congress.

The Benghazi Committee already has been blasted by its Democratic members as a partisan witch hunt. Last week, the committee voted in secret and along party lines to approve the final report, written entirely by the Republican majority. The committee Democrats, who didn’t know the report was finished until hours before its release, wrote their own, dissenting version.

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But before the committee officially wraps up its work, the final report must be submitted to the House floor. And that won’t happen, says chairman Gowdy, until the Obama administration completes a “declassification review” to determine what transcripts, supporting documents, and other materials the committee can release publicly.

U.S. officials have been scratching their heads over that, because the Pentagon, the State Department, and the CIA already reviewed the report and accompanying documents and witness transcripts before the Republicans published their findings.

“At the Committee’s request, the State Department undertook an intensive review of thousands of pages of interview transcripts and other documents that the Committee indicated may be released or described in their final report,” department spokesman John Kirby said in a statement. “This required extensive coordination with staff not only at the State Department but also within the interagency. As a result of this review, some information was redacted because it is classified or otherwise inappropriate for public release.”

Democrats were furious that the committee majority didn’t bring the Benghazi investigation to a close. “The Select Committee is poised to last for months—perhaps until right before the presidential election—and that appears to be the Republican plan,” Rep. Elijah Cummings, the top democrat on the Benghazi panel, told reporters last week.

To Cummings and others, the committee’s new request seems extraneous. “It doesn’t make sense that now they want another review of classified information,” one U.S. official told The Daily Beast, speaking on condition of anonymity.

Unless it’s by design. “If they can keep the review going, they can blame the administration for trying to stonewall the committee by not declassifying the documents,” said another U.S. official, also speaking on condition of anonymity.

As of Tuesday, the committee had not formally asked any agencies to begin such a review, and it’s not entirely clear what the committee wants released. But there are some 100,000 documents that haven’t been published and that the committee would need the agencies to review. That could take several months. The committee has also called on supporting evidence in documents referenced in more than 2,100 footnotes of the main report to be released, as well as video footage from drones that were operating over Benghazi during the attacks.

But if there’s information that agencies have already deemed classified or inappropriate to release, they’re not likely to change their minds now, two U.S. officials observed.

For his part, Gowdy insists that the committee’s work isn’t now and never has been driven by partisan politics. To prove that, he has called on the administration to clear for release all the transcripts of witness testimony, which occurred almost entirely behind closed doors. Republicans say that was to protect classified information, but Democrats charge that the transcripts would show GOP lawmakers asking some witnesses questions that had little to do with the Benghazi attacks and were aimed at digging up dirt on Clinton and her allies, including former White House aide Sidney Blumenthal, one of Clinton’s confidantes.

Gowdy has said that releasing all of the transcripts is essential to demonstrate the thoroughness of the committee’s work and to show that it was guided by a search for facts and not partisanship. “If we’re going to release one, we’re going to release them all,” Gowdy told Fox News last October.

The committee is slated to shut down in early January even if it doesn’t submit its final report to the House. But lawmakers also could vote to reauthorize the committee, ensuring it lasts into the next administration. Come January, Republicans may end up accusing a President Clinton of preventing the American people from seeing the full work of the Benghazi committee, the very body that exposed her private email in the first place.

If that sounds like a recipe for a fishing expedition, it’s not the only one. On Tuesday, lawyers for Clinton told a federal judge that she should not have to give a deposition to Judicial Watch because there’s already a “voluminous record available” that answers many of the questions the conservative group is asking. Deposing Clinton, they argued, would add no new information, and besides, Judicial Watch can draw on her own testimony to the Benghazi committee; that critical inspector general report published by the State Department in May; and FBI Director Comey’s congressional testimony and public statements last week, which were at times highly critical of Clinton’s actions.

“It is no surprise that neither Hillary Clinton nor the Obama State Department agrees with our request to depose Mrs. Clinton,” Judicial Watch president Tom Fitton said in a statement. “What is notable is that the State Department finally admits that Clinton’s practice of supposedly emailing other State officials using her non-state.gov account was not an ‘appropriate method of preserving federal records or making them available for searches under FOIA,’” he added, pulling a line from the inspector general’s report.

Judicial Watch will reply later this week to Clinton’s claims, and the judge may issue a ruling next week.

Even if the judge decides Clinton doesn’t have to give a deposition and the Benghazi committee finally withers, that sill leave Chaffetz, the oversight chair, who has given no indication that he’ll suspend his perjury inquiry before the next president is sworn in. Indeed, Goodlatte, the congressman who co-signed Chaffetz request for an FBI investigation, gave every indication during a hearing on Tuesday that he’d continue to pursue Clinton if she prevails in November.

The FBI’s findings that Clinton was “extremely careless” in the way she handled classified information “suggests she cannot be trusted with the nation’s most sensitive secrets if she is nevertheless elected president,” Goodlatte said.

—with additional reporting by Nancy A. Youssef