What Law?

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.

11 comments… add one
  • PD Shaw Link

    re: “Moving up the scale . . .” I think Clinton has admitted to violating the second step on that scale, which is:

    “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.”


    Mukasey probably sells this one short by focussing on the destruction angle as the most “willful act,” but a prosecutor would focus on the deliberate actions to remove/conceal public records at the outset, the continuing concealment over time of which Clinton as head of the Agency would be charged with constructive, if not actual, knowledge, and finally move towards destruction and refusal to turn over the server.

    For those interested, I didn’t quote the provision in which a violator of that law shall “be disqualified from holding any office under the United States.” Obama won’t prosecute her, and even if he did, I don’t think the Constitution provides, or should provide, authority for a statute to trump the will of the People.

  • That’s the point I’ve been focusing on and, indeed, I think the heavy focus on classified items obscures the magnitude of the actual offense. The sheer scope of the infractions is staggering. That alone should give pause.

    Then there’s the likelihood of conspiracy which adds another layer of wrongdoing on top of those listed. Presumably, Sec. Clinton’s supporters will deny intent but intent may be inferred from a pattern of behavior and there’s been a clear pattern of mendacity and obstruction.

  • steve Link

    Michael (I love torture) Mukasey? Really? Why don’t you just cite Ted Cruz? Or Donald Trump? So now I have had lawyers from both sides claim that the law was broken and not broken. Who to believe? I keep waiting for Volokh’s guy sot say something about this. They aren’t usually that partisan, unless the issue involves Israel.


  • Do you know what an ad hominem argument is?

    It hasn’t been simply partisan posturing, however much you might like it to have been. One of the earliest people to have spoken out on it, when the story first broke, was the long-term federal official responsible for records and he’s a Democrat.

  • Andy Link

    I’m not a lawyer, but it seems to me there is enough gray area here that a prosecutor who was willing could build some kind of case…not that it will happen. Clinton’s staffers may not be so lucky and one goal of the FBI investigation will be to discovered who took classified intel community information and put it on a private email server.

  • Andy Link

    Here’s a good explanation of how classification works in the IC. The only thing I’d add is the originating agency controls the classification level for intelligence it produces and and a different agency cannot downgrade the classification without the originator’s permission.

  • Andy Link
  • PD Shaw Link

    A somewhat similar email scandal has rocked the University of Illinois, which offered a position to a professor, who accepted and quit his job, but when the U of I found out that the new hire had expressed anti-semitic views in relation to the Palestinian conflict, the U of I indicated that the final hiring decision had not been made (and must be made by the Board of Trustees not simply the Chancellor), and the offer was rescinded. Litigation ensued and much law school blogging on intellectual freedom.

    And then a week ago it was disclosed that the Chancellor had directed all important communications through personal email accounts to discuss difficult issues without public eyes and some of those emails had been destroyed. The next day the Chancellor resigned under the golden parachute provisions of her contract ($400,000 bonus, plus a one year sabbatical before returning to her tenured position as a professor). Everyone is outraged.

    Under pressure, including from the Governor, the Board refused to accept the resignation and begins proceedings to fire her. The Chancellor lawyers up and disclosed that these private emails included ones with members of the Board, as well as U of I’s chief legal counsel. The Board reverses its position and accepts the resignation.

    I don’t think this is over. The lawsuits will increase; the University’s position in various legal matters has seriously eroded; there will be ethics inquiries of everyone involved, even if possibly the Chancellor has found safe harbor, and worst of all, the continuing need to disprove negative claims, which is what happens when record retention policies are corrupted.

    Crooked Timber thinks the Chancellor committed criminal misconduct, but most people interested in the criminal ramifications cannot express their views without merging them with the political issues of the Zionist imperial state. They might be right on one thing, but not the other.

  • steve Link

    “Do you know what an ad hominem argument is?”

    Sure. Do you know what a biased argument is? Left of center lawyers have claimed she did not break the law. Now you quote a guy whose every decision supports or defends Republicans and their ideas. Then look at the actual argument. He cites no specific laws, just fragments of unspecified laws. He makes a strong statement in the first part of the article that she definitely broke the law. I suspect that most people, including you, stopped reading after that. Then at the end he hedges. He concedes that maybe she didn’t break the law. So what are we to think if we read this fairly? Even Joyner is making the case she probably didn’t break a law. He is still at least nominally a Republican, but he is nowhere the absolute super partisan that Mukasey has been.

    Just to give Mukasey his due, his ending is actually the best part of the article. After finally suggesting it is not really clear if she broke the law, he makes the point that this was bad judgment.

    Finally Dave quoted a (singular) Democrat he said she might have broken the law. Just to be clear that this is bipartisan, it was Fox News analysts who were saying she didn’t break any law. SO again, from both sides, we have people claiming she didn’t actually break a law.



  • Now you quote a guy whose every decision supports or defends Republicans and their ideas.

    After having a cited a Democrat who held an office that required him to know the law. steve, if you’re calling me biased, you have drunk the Kool-Aid.

    I don’t know whether she broke a law or not but there is obviously room for question. It certainly seems that she has already confessed to breaking one or more. The issue here is that it’s not simply to be dismissed which is what the real Democratic Party ditto-heads like Josh Marshall are peddling.

  • jan Link

    ” 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.”

    I think questioning Hillary’s Clinton’s “judgment” is the very least an open-minded person would do in weighing the evidence produced so far during this email saga. However, no matter what angle it’s viewed from, her aboveboard honesty and transparency always comes into play — no matter what laws have been deemed broken or merely skirted.

    From the get go, though, Clinton has snobbishly asserted no classified info was included in her email transmissions. Now, with only a small portion of emails exhumed and examined, 60 (and still counting) have been found to fall under a “classified” status — with several being seen as “top secret.” Also, her exclusively used private server was not given over voluntarily, but had to be “taken” by the FBI, and only after it had been professionally scrubbed!

    Furthermore, rumors are swirling around her staff that classification documentation may have been tampered with and/or removed to protect Clinton from any further incrimination. This kind of sordid behavior is so reminiscent of the stuff going on during the Watergate scandal — something Woodward is beginning to use as a comparison, when discussing the current controversial hiding and/or destruction of emails during Clinton’s official capacity as SOS.

Leave a Comment