Bianchi on Fox’s Sean Hannity Show Predicts No Charges for Hillary Clinton Using a Private Server, Known as the Hillary Clinton Email Scandal by the Media

I was honored to again appear on Fox News Sean Hannity show to discuss the Hillary Clinton email scandal. I appeared with co-guest, Jay Sekulow.

High profile criminal cases are unique, present difficulties for prosecutors and the criminal defense lawyer alike. The Hillary Clinton email scandal case is a perfect example of this. Firstly, I have from the inception of this matter predicted that there would not be any criminal charges filed against Secretary Clinton for a number of reasons with the respect to her using a private email server.

In most white-collar crime, (and all high profile criminal cases for that matter), the target of an investigation actually goes through 2 trials. One possibly in a court of law, the other in the court of public opinion. But, these “courts” in reality are very different and create vastly different results. The Hillary Clinton email scandal is no different.

As to the investigation and possible criminal prosecution, we need to take the politics, likes and dislikes, etc…out of the equation. For prosecutors, it is about law and facts during an investigation and/or criminal charge, as opposed to speculation, frenzied and sloppy analysis, and the like. And, this is exactly the temperament of the FBI and Department of Justice attorneys that are investigating this matter. This leaves us, as it should be, with the facts, law, and most importantly, prosecutorial temperament and discretion- – which is often never discussed when analyzing legal matters in the court of public opinion – – but is crucial to understand if you want to predict accurate legal outcomes.

As a former head NJ County Prosecutor that has investigated and charged many political corruption cases, I know well there are numerous considerations to an investigation of this nature. Firstly, law enforcement will be very slow and methodical to learn all of the facts. They will not rest upon technical violations of the law to charge, but in my opinion, acts that show a knowing and/or purposeful attempt to violate the law, even if that law only requires negligence and/or reckless conduct to charged.

This will be difficult here as the policies governing how this information is to be stored, kept, and disseminated are frankly surprisingly convoluted and morphing at the State Department. Any decent criminal defense lawyer will be all over that issue.

Strictly speaking, while many discuss a litany of perceived criminal law violations, what they are not discussing is the “philosophy” behind how prosecutors assess cases. They look at the intent of the law to see if the thing the law was attempting to protect was willfully violated. Many make mistakes of an innocent nature that are technical violations of the law, but they are not prosecuted. As a criminal defense lawyer and former prosecutor, I know that principal very well. It is called “prosecutorial discretion.”

Prosecutors are reluctant to prosecute a person for a mistake, misinterpretation, or stupidity. They look to go after people that are purposely or knowingly violating the law- -which essentially means it was their “intent” to commit a crime. So, while high profile criminal cases generate a lot of media interest, often times the prosecutor’s discretion is never discussed and that is a crucial area of importance in analyzing a high-profile criminal case. And that discretion in my experience states the following principle: “just because you can charge, does not mean you should charge.”

For example, the Espionage Act reads as it does. But case law interpreting it states very clearly that even if one violates that law technically, that the government must still prove that the person violating the technical provisions of the law did so to harm the interests of the United States. In my mind from what I know of this case, there is no way the prosecution will be able to prove that Hillary Clinton email scandal was, in reality, a willful attempt to violate the law in that way. To me, that means regardless of what she did with these emails, the case will never be prosecuted under that statute, especially if the government feels that this was a mistake and not a willful attempt to subvert the interests of the United States.

All this goes to show that prosecution of cases is a delicate balance of determining facts, the law, and then the all-important decision as to whether it is believed that this was simply a stupid mistake, or a purposeful, knowing, or grossly negligent attempt to do something illegal. Again, I do not feel that evidence exists in this case.

Pundits can opine, but the FBI and DOJ operate on a different level. They want cases that can to be proven beyond a reasonable doubt to 12 jurors, especially in high-profile criminal cases. This is a very hard standard for the prosecution to meet in the Hillary Clinton email scandal matter. And, to indict a former Secretary of State on weak evidence, is not how these professionals operate from my experience regardless of how high profile a criminal case it may be.

That said, I do see risk for Secretary Clinton in one area.   Many cases are built upon situations where a person under investigation attempts to cover up something. This often leads to “obstruction of justice” charges, perjury, and the like. It is often said and very true that many times the “cover-up is worse than the crime.” Hence, if Secretary Clinton (or anyone on her behalf) did something to attempt to conceal or hide facts from the investigating authorities, I see tremendous exposure. But as of now, we simply do not have those details, or facts to support such an assertion. But be assured, the FBI is looking into any cover-ups along the way.

As a criminal defense lawyer, I am very cognizant of the perjury, obstruction of justice issues with every client’s case. It is such an easy trap many fall into.

As a final note, I would look just at how the court of public opinion and a court of law (and/or investigators) call what is happening here. The media calls it the Hillary Clinton email scandal, the courts call it the Hillary Clinton investigation and/or case. It is the same matter, but even in the manner as to how it is referred shows the stark difference between opinion and fact.

It was an honor to be on Sean Hannity’s show. He is a great person, his staff is very professional and I always feel I have enough time to develop and articulate a cogent legal analysis.

© 2016 Robert (Bob) Bianchi, Esq.

Former head NJ County Prosecutor

New Jersey Supreme Court Certified Criminal Trial Attorney