By Julian Hattem - 02/03/16 06:00 AM EST
To hear Republicans tell it, Hillary ClintonHillary Rodham ClintonFive takeaways from New Hampshire Senate debate Trump losing cash race in final weeks Report: Biden on top of Clinton's short list for secretary of State MORE could be in trouble next year if she doesn’t win the White House.
Multiple GOP presidential candidates have suggested that the former secretary of State could be the target of criminal probes for mishandling classified information if they are elected president in November.
“If the Republicans get in, what would happen to her?” he added. “Would they go after her? Because then you would have somebody who would be, I’m sure, very fair — but they’d look at it fairly.”
“When I’m president of the United States, neither she nor any of these other people are going to be above the law,” Sen. Marco RubioMarco RubioFive takeaways from New Hampshire Senate debate Obama plans 'aggressive' blitz for Clinton in campaign's final days One way or another, 2016 was all about Donald Trump's hands MORE (R-Fla.) said on Fox News’s “Hannity” in January. “People are going to be held accountable if they broke the laws of this country.”
“There will be a full accounting of all this when I’m president and we have a real Justice Department with a real attorney general.”
Legal experts question the validity of the threats, which would be nearly unprecedented and likely seen as a political retribution.
“The Justice Department isn’t supposed to be used for political purposes,” one former high-ranking department official told The Hill.
“This isn’t a banana republic, that ‘If we prevail then the other side better watch out,’ ” added the official, who was granted anonymity in order to speak freely. “That’s not what we do.”
Clinton has been dogged by the FBI’s lingering investigation into whether classified information was mishandled under her watch, and Republicans are only likely to play up the issue as the general election draws nearer.
For months, GOP critics have warned that Clinton, now a top candidate for the presidency, violated the law by using an email account connected to a private server throughout her tenure at the top of the State Department.
“Hillary Clinton is disqualified from being the commander in chief of the United States,” Rubio said during a Republican debate last month. “In fact, one of her first acts as president may very well be to pardon herself.”
According to a McClatchy/Marist poll from November, 68 percent of Americans believe Clinton’s use of the server was either unethical or illegal.
The criticism has only escalated with the increasing numbers of emails labeled as classified.
More than 1,300 emails sent or received by Clinton have been classified upon their release to the public in recent months. On Friday, the State Department said that 22 of the emails were classified as top secret — the highest level of classification — and would not be released, even in a redacted form.
Clinton’s campaign and other Democrats have largely dismissed the criticism as purely political.
“I take classified information very seriously,” Clinton told ABC News on Sunday. “You know, you can’t get classified information off the classified system in the State Department to put onto an unclassified system, no matter what that system is.”
None of the emails that reached Clinton were ever marked as classified, both she and the State Department have said. While the agency has claimed that many of the now-classified emails were not classified at the time they were sent, it has declined to take a position on whether the 22 top secret emails were unclassified when they appeared in Clinton’s email account.
The FBI has repeatedly declined to discuss the details of its investigation, but officials have said that Clinton herself is not a target.
Last month, former Attorney General Michael Mukasey wrote an op-ed in The Wall Street Journal claiming that a criminal charge was “justified.” Other legal experts have suspected charges could be warranted against the former secretary or her top aides.
It’s the Justice Department that is responsible for handing down any indictment, however. And with a nominee of President Obama’s as attorney general, many Republicans say there’s no chance charges will ever be issued.
“If they decide they want to rid of her, then she will be indicted. And if they don’t, she won’t,” Sen. Ted CruzTed CruzDemocrats pounce on Cruz's Supreme Court comments Brent Budowsky: An epic battle for the future of Congress Cruz: Precedent exists for keeping Supreme Court short-staffed MORE (R-Texas), who won the Iowa caucuses on Monday, told radio host Hugh Hewitt after the disclosure that 22 of Clinton’s emails were classified top secret.
“You can appreciate, as an alumnus of the Department of Justice, just how heartbreaking it is that there is an acceptance that the enforcement of criminal justice is decided not by the laws of this country but by some political hack in the West Wing of the White House,” Cruz added. “That is not how our Constitution is meant to operate.”
The FBI’s investigation is expected to wrap up later this year.
If no charge is brought against Clinton, watchers warned, it would be an extreme step for a new Republican president to try and raise the issue next year.
“I really can’t see a Republican administration doing that,” said the former high-ranking Justice Department official.
“Until we become a dictatorship, presidents will not be able to ‘order’ the indictments of anyone,” added Steven Aftergood, the head of the Federation of American Scientists’ project on government secrecy, in an email.
Aftergood rejected the notion that any criminal charge would be justified against Clinton.
“There is no possibility whatsoever of criminal action against Hillary Clinton for mishandling classified information,” he said. “The drumbeat of commentary along these lines is best understood as an attempt to tarnish and derail her presidential campaign.
“It has no basis in national security law.”
The nearest recent analogy to a Republican administration’s move to reopen the case would be the 2009 decision by then-Attorney General Eric HolderEric H. HolderSenior House Republicans fighting for their lives Issa hits back at Obama over campaign mailer Podesta floated Bill Gates, Bloomberg as possible Clinton VPs MORE to expand a probe into the CIA’s use of brutal interrogation techniques, which have been widely condemned as torture. The investigation never led to charges against anyone connected to the interrogation program and was criticized by Republicans at the time.
Rubio, for his part, noted that he “can’t order the Justice Department to do anything.”
“Unlike this president, I’m not going to interfere in these agencies doing their job,” he said in January.
“I will say this: I am confident — in fact, I know for sure that I will have appointed, when I’m president, an attorney general who will follow the law and apply it,” the Floridian added, “not one that conspires with me to undermine the Second Amendment and not one that looks the other way when cronies of the current president are committing lawlessness, as has been, I believe, the case with regards to Hillary Clinton’s emails.”