Two former U.S. attorneys said the FBI will likely reach a determination in the next few months in its investigation of Hillary Clinton’s private email server, and based on publicly available evidence said the bureau could have a strong criminal case.
"I expect the FBI to conclude the investigation within 60 to 90 days and make a recommendation to the Justice Department, and I believe they will recommend a series of charges involving the classified information," said Joseph DiGenova, who was U.S. Attorney for the District of Columbia during the Reagan administration.
The FBI has been investigating whether classified information was mishandled over Clinton’s private email server since at least August. The probe reportedly has expanded to include contracts awarded by the State Department in relation to Clinton Foundation donors.
"These classified information cases are relatively simple cases to get into, and the FBI knows that what the Clinton people did with regard to her server was a clear violation of federal criminal law," DiGenova added. "It is the negligent handling of classified information, which is prohibited by statute, and this is a gross example of it, and it dwarfs the information in the [David] Petraeus case."
Matthew Whitaker, the former U.S. Attorney for the Southern District of Iowa under President George W. Bush, said there is growing public evidence that laws were broken.
"Based on what we know in the public record, I think there are some serious legal violations," said Whitaker. "There’s got to be more that we don’t know. I think that could be really incriminating evidence, if it’s like anything we’ve already seen."
Whitaker, who runs the Foundation for Accountability and Civic Trust, a watchdog group that has been critical of Clinton, said the decision about whether to pursue a criminal case will ultimately depend on the Department of Justice. But he said the Fox News report on Monday about expansion of the FBI investigation puts more pressure on that department to take the investigation seriously.
"I think the effect is it puts some pressure on the Department of Justice to not sweep this under the rug, to otherwise ignore inconvenient facts for secretary Clinton," said Whitaker.
DiGenova said the most prudent move for Attorney General Loretta Lynch would be to appoint a special counsel if the FBI does recommend criminal charges.
"If Loretta Lynch is smart, which I think she is, she will punt on this and send it to a special counsel so she doesn’t have to decide what to do," said DiGenova.
According to DiGenova, the FBI has devoted significant resources to the investigation, including over 100 agents.
On Tuesday, Clinton denied that the FBI had expanded its investigation into her family’s foundation, telling the Des Moines Register that the Fox News report was "an unsourced, irresponsible claim that has no basis."
But Charles Lipson, a political science professor at the University of Chicago, said there is growing evidence that the investigation is a much more serious matter than the Clinton campaign has acknowledged.
"There is no way that the FBI would devote these massive amounts of resources to the case unless the early stages of their investigation show that there was possible criminal activity," said Lipson.
Lipson said the FBI has an incentive to make a determination while the Democratic primaries are still underway.
"They can’t go for three years like a normal investigation. She can’t have this hanging over her as she campaigns," said Lipson. "She has a real right if she’s not going to be indicted to go out and say they’ve looked into this, they’ve put all these resources into this, neither I nor the people I work closely with did anything wrong."
DiGenova said there is a good chance the FBI will call Clinton in for an interview—and while her attorney may advise against it, there could be political pressure for her to comply.
"The first thing that happens when you ask to interview someone is that their lawyer says, ‘What is her status?’ Is she a witness, is she a subject, is she a target?" said DiGenova. "My guess is at this point Hillary Clinton is a subject. She’s not a witness anymore. She may not be a target yet. But she is a subject."