I watched last night's debate with great interest. I thought both Sanders and Clinton had some very strong moments. However, I tend to watch these debates for the legal issues and I was most struck by former Secretary of State Hillary Clinton's discussion of the email scandal. First, she declared that she will never be indicted — a statement that may irritate federal investigations looking into possible crimes. She certainly has defenses and the odds may indeed favor her. However, defense attorneys usually discourage such statements from potential targets which can enrage prosecutors as presumptuous or suggesting some level of immunity. Second, she insisted that her "predecessors did the same thing" that she did on emails — a statement that is demonstrably untrue but again was left unchallenged by the journalists.

The Indictment Question

We previously discussed the controversy of the White House stating that the investigation was not moving toward any criminal charges — a statement that would indicate either a sweeping assumption or an improper degree of consultation between the White House and the Justice Department on an ongoing investigation. As discussed below, having a personal server is not a crime. Mishandling classified material (or related classification violations) or evading federal laws can be. It would be premature to dismiss or predict an indictment. While the odds may be in her favor, it would be obviously absurd to say that no indictment is possible. It depends on the evidence, which remains largely unknown.

There is of course no way for Clinton to know about what will happen with the indictment. Given that she is running on the theme of "no one too big to jail," the dismissing of the notion of an indictment is a tad incongruous. She certainly has support for saying that recent cases have resulted in relatively light punishment.

As I have previously noted, the best case for Clinton is the conviction of retired four-star general and CIA director David H. Petraeus for mishandling classified information. The deal given to Petraeus by the Justice Department was absurd and rightfully led to objections that powerful figures like Petraeus and Clinton are treated differently from average people. Nevertheless, the Clintons can claim that Petraeus was far more egregious in his lying to investigators and knowing disclosure of top secret code words, identities of covert officers, war strategy and intelligence capabilities to his lover and biographer.

Then there was the late Samuel "Sandy" Berger, a former White House national security adviser to Bill Clinton, who faced that same charge after he intentionally removed and destroyed copies of a classified document (putting some material in his socks to sneak them out). Berger was trying to protect Clinton in the reviewing of potentially negative classified information. Not only that but Berger then lied to investigators — a separate crime regularly prosecuted by the Justice Department. Yet, no one called for his long incarceration. Instead, he was allowed to plead guilty to a single misdemeanor with no jail time.