By Andrew F. Emerson
Over the course of a year, many political pundits have prognosticated that the FBI’s criminal investigation of Hillary Clinton’s use of a private email server to conduct all business while secretary of state will result in no FBI referral for indictment given the difficulty of proving the required element of “intent” with respect to her actions. President Obama returned to this familiar refrain in his April 10th televised interview by describing her actions as “careless”, but adding, “She would never intentionally put America in any kind of jeopardy.”
Interest in the investigation has vacillated with intermittent periods of intense scrutiny engendered by a leak of details of the FBI investigation or the production of a detailed accounts such as Robert O’Harrow’s excellent reporting in a March 27th Washington Post article. We now appear to be in a period where most have concluded it a fait accompli that a referral for indictment will not be forthcoming. However, many of the experts’ conclusions of “no referral coming” may be based upon a fundamental misunderstanding of “intent”. Additionally, the vast majority of media reporting has focused upon Secretary Clinton’s conduct while secretary of state. However, her greatest criminal exposure may well lie in her actions vis a vis the private server after returning to private citizenship. A few pertinent facts need be stated to support these conclusions.....
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