What Law Did Hillary Break?

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

Update

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.

Update 2

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.

24 comments… add one
  • ...

    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.

    Really? Even back in the Dark Ages of 2009, mobile devices were quite handy. (Remember how advanced and brilliant Obama was supposed to be because he had a Blackberry?) The likelihood of not having a suitable mobile device handy seems vanishingly small. Hell, I was expected to be handy at a moments notice on my last job, and it dealt with exactly nothing that couldn’t wait until Monday. (In the years I worked there I was contacted on work-related business exactly once, and that was on a lunch break, and the person at the other end wanted me to pick up something for them. It was a requirement for all salaried employees, and designed for those that worked on Guest related matters.)

  • ...

    Good Lord. Are we really going to be subjected to another fucking decade of Clinton bullshit? I’m ready to vote for Crazy Joe Biden or Jeb Fucking Bush to avoid another decade of parsing the meaning of every single word in the dictionary.

  • CStanley

    One thing that’s clear is that the laws have had to change to keep up with changing tech ology, and the lag left a gray area. However, as Dan Metcalf’s article explains, it’s also clear that Clinton’s way of dealing with this had to have been with intent to circumvent FOIA laws and prevent transparency. With that in mind, it is appropriate to apply the laws as stringently as possible.

    And that’s only with regard to the secrecy aspect- there’s also the issue of handling classified and/or sensitive information. She’s likely to have broken laws there too and may have committed perjury if she signed the exit document when she left her post.

    I’m sure she’s not the only one to have fallen afoul of some of these regulations and laws, and that others have also done it with intent to hide their communications- but the breadth of what she has done is such that I can’t believe anyone still thinks she’s fit for office.

  • jan

    I’ve noticed that our selective news media has given little coverage to the OF-109 disclosure form covered in this 2003 document, that says:

    a. A security debriefing will be conducted and a separation statement will be completed whenever an employee is terminating employment or is otherwise to be separated for a continuous period of 60 days or more. The debriefing is mandatory to ensure that separating personnel are aware of the requirement to return all classified material and of a continuing responsibility to safeguard their knowledge of any classified information. The separating employee must be advised of the applicable laws on the protection and disclosure of classified information (see 12FAM 557 Exhibit 557.3) before signing Form OF-109, Separation Statement (see 12 FAM 564 Exhibit 564.4).

    Nowhere does it say there are any exceptions for VIPs to this rule. Some news people have recently filed a FOIA to access whether or not Clinton signed this form. If she did, they say she may have committed perjury, as she waited 2 years before turning over her emails that were hand-selected by her own employees. If she failed to sign the form then the laxness might fall on the administration.

  • ...

    and that others have also done it with intent to hide their communications

    Those hard drive crashes were completely coincidental!

  • ...

    Meanwhile, back in the real world:

    http://thehill.com/blogs/congress-blog/labor/235706-outsourcing-in-america

    The SCE workers are wondering: “Why should I lose my job when the work still needs to be done? Why is the government doing this to me and my family?”

  • ...

    The worst thing about political scandals in general, and Clintonian scandals especially, is that they completely suck the oxygen out of the news cycle for investigating what’s really going on.

    In happier news, Earth, Wind & Fire is currently playing on Radio Free Nowhere’s Disco Dance Party in the ‘Hood. Good stuff!

  • the breadth of what she has done is such that I can’t believe anyone still thinks she’s fit for office

    It’s the “(D)” after her name.

  • jan

    “It’s the “(D)” after her name.”

    …and that’s what wrong with how such political improprieties are investigated or people vetted for office as to their worthiness and ethical conduct — such scrutiny mainly revolves around a person’s party affiliation. Consequently democrats are treated more lightly in such matters, while republicans are delightfully called out and then roasted. IMO, conduct should be examined under the same microscope, no matter who they are.

  • Guarneri

    Yes, it’s the D after her name, but also the abrogation of responsibility on the part of the electorate to be at least nominally informed. That’s why the media can control the narrative by either staying with a story like a dog with a bone, or letting it pass. It’s a top of mind issue for the average voter. Throw in the W and there you have it.

    In any event, this woman has no business being in that office. Should she go on to win I would suggest to you all that with the passage of time people will look back at this era and ask “were they so rabid in their political correctness that they had to choose those two minorities as the first to occupy the big chair?” Is that all there was?

  • PD Shaw

    Somewhat OT: My Congressman just resigned. Pretty shocking.

    Several years ago, he was voted most likely to get in a scandal by a poll of House. I had no idea why this would be, and never heard an explanation. I assume that he was young and a bit careless. And then a few months ago attention was brought to his extravagant spending on redecoration of his office. Google “Downtown Abbey” scandal, and then every few days another minor scandal involving perks and suspicious financial dealing with backers. Now we get mileage reimbursements for miles not driven, and he’s gone. We’ll probably get the next, more-conservative, generation of LaHoods.

  • steve

    “It’s the “(D)” after her name.”

    Have to agree. Cant think of any Republican who has ever done anything remotely sleazy or illegal.

    Steve

  • Cstanley

    Steve I think the point was that there are sufficient numbers of voters on each side who will vote for their party’s candidate no matter what and will come up with a rationale to excuse the corruption.

    The only time I remember that being justifiable (though not along party lines) was the election in LA between Edwin Edwards and David Duke. The clothespin became so emblematic (as in, holding one’s nose) that my brother and his wife were told that they couldn’t enter the polling place with their clothespins clipped on their pockets because it was taken to be a form of campaigning.

    We’re reaching a point where most of our elections approach that level of “lesser of evil” decision making.

  • steve

    “Steve I think the point was that there are sufficient numbers of voters on each side who will vote for their party’s candidate no matter what and will come up with a rationale to excuse the corruption.”

    On this I will agree. So let’s say as long as you have a D or R after your name half the people will think you are fit for office.

    Steve

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