As the Democratic primary enters its final stages, one possible contest remains in which there are no opinion polls or past results to guide those looking for clues to the outcome.



Hillary Rodham Clinton versus the US Department of Justice is a theoretical showdown that few in the party want, or expect, to see influencing the outcome of the presidential election, but that many will still be relieved to see removed from the political calendar.

The necessary secrecy surrounding the FBI’s investigation into whether laws were broken by her use of a private server while secretary of state means the threat of criminal charges remains a partisan elephant in the room –regularly cited by Republican opponents and largely ignored by both Democratic candidates.

Barack Obama spoke longest on the subject this weekend. In a rare interview on Fox News, he insisted seven times that the decision about whether to prosecute Clinton for breaching security rules was being handled no differently just because she might be his party’s next presidential nominee.



“I guarantee that there is no political influence in any investigation conducted by the Justice Department or the FBI, not just in this case, but in any case,” said the president. “Guaranteed. Full stop. Nobody gets treated differently when it comes to the Justice Department, because nobody is above the law.”



Though he acknowledged “carelessness” in how his former adversary in 2008 had managed her emails while working for him, Obama also stressed his belief that no national security risk was posed by the personal email system, even if some of what passed through it has subsequently been deemed classified.

“She would never intentionally put America in any kind of jeopardy,” said Obama. “I continue to believe that she has not jeopardized America’s national security.”

The argument employed is one repeated by the Clinton campaign, and shared by many independent legal and security experts who have looked at the case.

“What I also know, because I handle a lot of classified information, is that there are – there’s classified, and then there’s classified,” explained Obama. “There’s stuff that is really top secret top secret, and there’s stuff that is being presented to the president or the secretary of state, that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open source.”

“Over-classification run amok” was how Clinton spokesman Brian Fallon described the situation in January when it first emerged that 22 of the emails on the server that were due to be released as part of efforts to show it was harmless had been deemed “top secret” on further review.

The argument matters not because there is ambiguity over the rules dealing with classified information, but because it bolsters the defence used by Clinton that she did not, and could not, have known at the time that some of these then unclassified emails might later receive classified status.



Any successful prosecution would require evidence that someone “knowingly or willingly” held onto classified data, handled in it a “grossly negligent” way or deliberately passed it to someone not entitled to see it – all tests it is hard to see applying in her case.



But as the 100 or so FBI investigators rumoured to be involved in the case move from examining the physical evidence to a final stage that is expected to include interviewing Clinton and her top team, there is always a chance they could encounter the unexpected.

If the claims of independence are to be taken at face value, even the White House may not know what investigators have found until they present their recommendations. If there is political interference, the number of people involved presents a high risk of it leaking – with potentially devastating consequences for two Democratic presidencies.



“I do not talk to the attorney general about pending investigations. I do not talk to FBI directors about pending investigations,” Obama said. “We have a strict line and always have maintained it.”



The biggest risk, according to one senior DoJ source not involved with the case but familiar with some of its activities, is not that Clinton could be indicted but that some of her team could be judged to have strayed close to the line and the DoJ could feel duty-bound to say so.

In this scenario, the campaign risks damage either by association or through the appearance of throwing junior staffers to the wind to protect the candidate – or both.

Already, the technician in charge of setting up the server at Clinton’s home has reportedly been granted immunity by the FBI in exchange for cooperating – an often routine procedure in such circumstances but one which underlines what is at stake.

All public officials have it drummed into them how important the treatment of classified information is, and the fact that Clinton can point to other senior leaders who also used private email accounts, or rules that allow it in certain circumstances, does not mean it is something that those involved have entered into lightly.

Perhaps the worst-case scenario is that one of the tight circle of aides who followed Clinton from the State Department to her presidential campaign – several of whom also used private email accounts on the server – is identified as having knowingly moved classified material to the unclassified setting.



In such a case, the DoJ faces the unpalatable prospect of bringing charges that it knows may not stick in court but could nonetheless change the next presidential race forever, or exercising prosecutorial discretion that few will believe is entirely independent and risk undermining the outgoing president’s legacy.



Though this still appears a remote risk, as the clock ticks down to a likely decision in the coming weeks, there are many in both the Obama and Clinton camps hoping that the Department of Justice is not forced to choose.