A question that has been asked (frequently truculently) by some supporters of Hillary Clinton about her decision to do all of her public business while Secretary of State on a completely private email address and server has been what law did she break in doing so? After three weeks of the story being in the media, we finally have an answer from Dan Metcalfe, former head of the Department of Justice’s Office of Information and Privacy. It’s the Federal Records Act:
To be sure, this cannot as a practical matter be absolute. When Obama administration officials came into office in 2009, the Federal Records Act certainly allowed room for the occasional use of a personal email account for official business where necessary—such as when a secretary of state understandably must deal with a crisis around the world in the middle of the night while an official email device might not be readily at hand. That just makes sense. But even then, in such an exceptional situation, the Federal Records Act’s documentation and preservation requirements still called upon that official (or a staff assistant) to forward any such email into the State Department’s official records system, where it would have been located otherwise.
This appears to be exactly what former Secretary of State Colin Powell did during his tenure, just as other high-level government officials may do (or are supposed to do) under such exceptional circumstances during their times in office. Notwithstanding Secretary Clinton’s sweeping claims to the contrary, there actually is no indication in any of the public discussions of this “scandal” that anyone other than she managed to do what she did (or didn’t) do as a federal official.
It’s a good, information, not politically-motivated article by a knowledgeable and authoritative individual and I recommend you read the whole thing.
Hat tip: memeorandum
Here’s a bit of the relevant code, 18 U.S.C. 2071:
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.
It’s going to be an interesting time.
There’s more on a related issue from Ronald Rotunda:
The law says that no one has to use email, but it is a crime (18 U.S.C. section 1519) to destroy even one message to prevent it from being subpoenaed. Prosecutors charging someone with obstruction don’t even have to establish that any investigation was pending or under way when the deletion took place. As T. Markus Funk explained in a journal article for the National Association of Criminal Defense Lawyers, the prosecutor “need only prove that the defendant shredded the documents, at least in part, to make life more difficult for future investigators, if and when they eventually appear.”
Legal commentators call this “anticipatory obstruction of justice,” and the law punishes it with up to 20 years imprisonment. The burden of proof is light. The Justice Department manual advises that section 1519 makes prosecution much easier because it covers “any matters” or “’in relation to or contemplation of’ any matters.” It adds, “No corrupt persuasion is required.”
In addition, rules governing the practice of law forbid attorneys from anticipatory obstruction of justice. These ethics rules are drafted by the American Bar Association, but they are also reflected in real law. Virtually every state court adopts them, and violation can lead to disbarment. Rule 3.4 (which has been around for many years) provides that an attorney shall not unlawfully “conceal a document or other material having potential evidentiary value.” Mrs. Clinton is a lawyer governed by these rules. So are any attorneys who advised her to delete her emails.
As I’ve written before, just because they’re lawyers doesn’t mean they’re good lawyers.