Hillary Clinton’s supporters have been vehement in claiming the complete innocence of Sec. Clinton in the matter of her covert private email server, further claiming that the entire matter is a non-scandal and purely political contrivance. What law has she broken? Former attorney general and long-time judge Michael Mukasey answers the question in a Wall Street Journal op-ed:
It is a misdemeanor punishable by imprisonment for not more than a year to keep “documents or materials containing classified information . . . at an unauthorized location.” Note that it is the information that is protected; the issue doesn’t turn on whether the document or materials bear a classified marking. This is the statute under which David Petraeus—former Army general and Central Intelligence Agency director—was prosecuted for keeping classified information at home. Mrs. Clinton’s holding of classified information on a personal server was a violation of that law. So is transferring that information on a thumb drive to David Kendall, her lawyer.
Moving up the scale, the law relating to public records generally makes it a felony for anyone having custody of a “record or other thing” that is “deposited with . . . a public officer” to “remove” or “destroy” it, with a maximum penalty of three years. Emails are records, and the secretary of state is a public officer and by statute their custodian.
The Espionage Act defines as a felony, punishable by up to 10 years, the grossly negligent loss or destruction of “information relating to the national defense.” Note that at least one of the emails from the small random sample taken by the inspector general for the intelligence community contained signals intelligence and was classified top secret.
To be sure, this particular email was turned over, but on paper rather than in its original electronic form, without the metadata that went with it. If other emails of like sensitivity are among the 30,000 Mrs. Clinton erased, that is yet more problematic. The server is now in the hands of the Federal Bureau of Investigation, whose forensic skills in recovering data in situations like this are unexcelled.
The highest step in this ascending scale of criminal penalties—20 years maximum—is reached by anyone who destroys “any record, document or tangible object with intent to impede, obstruct or influence the proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter.”
So, for example, if Mrs. Clinton caused to be wiped out emails that might have been anticipated to be of interest to a congressional committee, such conduct would come within the sweep of the statute. That, by the way, is the obstruction-of-justice statute, as revised by the Sarbanes-Oxley law, passed by Congress in 2002 while Mrs. Clinton served as a senator, and for which she voted.
In the event that the investigation actually becomes a criminal prosecution to be sure Sec. Clinton is entitled to the presumption of innocence. Such a presumption does not pertain to political judgments and IMO in that area only the most stubborn supporter could leap to her defense. Far from being a contrivance of her political enemies this entire matter is what is called in baseball an “unforced error” which should, at the very least, bring the Secretary’s judgment into question.