Contributor Post Created with Sketch. Clinton’s Private Email Server Saga — What’s Next?

 
Hillary Clinton
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Hillary Clinton’s presidential campaign has faltered over her use of a private e-mail server and account for professional and personal matters while Secretary of State.

Last December, Clinton turned over to the State Department more than 30,000 e-mails she sent and received during her tenure as secretary, and a judge has ordered the department to release the e-mails on a rolling basis, completing the process by January. Clinton has said that she did not send or receive any information marked classified, and that what she did was allowed by the State Department.

But the Washington Post recently reported that while she was secretary of state, Clinton wrote and sent at least six e-mails using her private server that contained what government officials now say is classified information. And the FBI is investigating whether Clinton’s e-mail setup may have compromised national security information, though officials have said that she is not the target of the inquiry.

Improperly disclosing classified information has steep penalties. A look back at similar cases illustrates the possible legal liabilities at issue for Clinton.

General David Petraeus, the former director of the Central Intelligence Agency, shared classified documents with his biographer, Paula Broadwell, with whom he had an extramarital affair. He agreed to plead guilty to a misdemeanor charge of mishandling classified information in exchange for a prosecutor’s recommendation he serve no jail time, and was later sentenced to two years of probation and a $100,000 fine.

John Deutch, another former director of the CIA, was discovered with large amounts of classified material on unclassified computers in his home. Deutch had already resigned his post, had his security clearance stripped, and was considering a deal with the Justice Department in which he would plead guilty to a misdemeanor when he was pardoned by then-President Bill Clinton.

A number of federal statutes deal with the handling of confidential government information. 18 U.S.C. § 793 provides that anyone entrusted with national defense information who, through gross negligence, permits it to be delivered to an unauthorized person or to be lost, stolen, or destroyed shall be fined or imprisoned not more than ten years, or both.

Similarly, 18 U.S.C. § 798 provides that anyone who knowingly and willfully communicates to an unauthorized person classified information obtained through communications intelligence of foreign governments shall be fined or imprisoned not more than ten years, or both. And 18 U.S.C. § 1924 makes it a crime for an officer of the United States to knowingly remove classified information without authority and with the intent to retain such documents at an unauthorized location. The punishment for this crime is a fine or imprisonment for not more than one year, or both.

Clinton has said that she does not know whether the e-mail server she turned over to the FBI was wiped, but admits that 31,000 personal e-mails were not turned over to the State Department. Destruction of records associated with a public office is prohibited under federal law. Specifically, 18 U.S. Code § 2071 provides that anyone who willfully and unlawfully destroys any record deposited with any officer in any public office shall be fined 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.

While it’s not clear what, if anything, may result from the current investigation surrounding Clinton’s e-mail server, it seems that the controversy isn’t likely to end soon, despite her recent apology. Clinton is scheduled to testify before the House Select Committee on Benghazi on October 22nd, and members of the Committee will be asking her about Libya, Benghazi, and of course, her emails.

This piece is cross-posted at the Institute of Governmental Studies at UC Berkeley.

There are 31 comments.

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  1. The (apathetic) King Prawn Member

    John Yoo: be disqualified from holding any office under the United States.

    This has a very nice ring to it.

    • #1
    • September 10, 2015, at 5:41 PM PDT
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  2. Fake John/Jane Galt Coolidge

    In a month or two the FBI will exonerate her. Most likely at a moment that is politically advantageous to her. The statement will go something like “while it was unwise to communicate as she did none of what was done involved criminal intent and does not rise to the threshold of being a crime.”

    The folks in the FBI want to keep their jobs and maybe get promoted. They do not want a mad Clinton and Company messing with their careers. It is also very likely that Ms Clinton will be the next POTUS. Trying to hang the future POTUS out to dry is bad for business. Helping the future POTUS get her much desired position may just be good enough to make a career or two or three.

    • #2
    • September 10, 2015, at 5:47 PM PDT
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  3. The (apathetic) King Prawn Member

    Some of the relevant statutes do not require intent, only negligence.

    • #3
    • September 10, 2015, at 5:52 PM PDT
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  4. Eeyore Member
    Eeyore Joined in the first year of Ricochet Ricochet Charter Member

    Given my avatar, my opinion is that the fix is in. If Mr. Pagliano testifies before Oct. 22 with immunity. I would expect him to execute a very carefully crafted narrative absolving Clinton of any wrongdoing. He has far more to fear, both personally and professionally, from the Clintons than from Government. And I include in that potential for prosecution for perjury.

    People have fallen on their swords over much more significant issues than this. My prediction is that after Mr. Pagliano’s dissembling testimony, Elijah Cummings will begin the chant “Stop with this partisan attack NOW!” The Clinton campaign will pick up the chant and Hillary be able to go “See! See! See!” on 10/22.

    Mr. Pagliano will then have employment within the Clinton orbit for a long time at many times the going rate for whatever services he provides.

    • #4
    • September 10, 2015, at 5:53 PM PDT
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  5. Instugator Thatcher
    Instugator Joined in the first year of Ricochet Ricochet Charter Member

    (Edit) Never mind. You covered it at the end and I missed it. However, it seems to me that this is a clean kill and it would be malfeasance not to bring charges on this alone. She altered the record by printing the emails out and not preserving the metadata.

    Edit- remainder of this post is offered as a reminder to RTFQ.

    John you neglect to mention 18 USC 2071 which deals with ANY record, unclassified or not. I am interested in your opinion on that.

    https://www.law.cornell.edu/uscode/text/18/2071

    • #5
    • September 10, 2015, at 6:00 PM PDT
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  6. Doctor Robert Member

    “…18 U.S. Code § 2071 provides that anyone who willfully and unlawfully destroys any record deposited with any officer in any public office shall be fined 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.”

    Your pen. God’s ears.

    Galt and Eeyore are not unreasonable in their pessimism, but this is an opportunity to kill the Woman who Would Be Queen. Strike now, strike hard, strike ruthlessly and repeatedly. When she is felled, make every other Dem candidate weigh in on her a hundred times during the 2016 campaign (and on the Iran deal, too)

    Where is the House committee investigating this?

    • #6
    • September 10, 2015, at 6:21 PM PDT
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  7. The (apathetic) King Prawn Member

    Doctor Robert:“

    Your pen. God’s ears.

    Where is the House committee investigating this?

    Requires conviction, which is a pretty high bar.

    • #7
    • September 10, 2015, at 6:23 PM PDT
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  8. Doctor Robert Member

    KP, the bar is infinitely high if no one attempts to clear it. Fortune favors the bold.

    Strike now, strike hard, strike ruthlessly and repeatedly. That’s what a Clinton would do in this situation.

    • #8
    • September 10, 2015, at 6:26 PM PDT
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  9. The (apathetic) King Prawn Member

    Doctor Robert:KP, the bar is infinitely high if no one attempts to clear it. Fortune favors the bold.

    Strike now, strike hard, strike ruthlessly and repeatedly. That’s what a Clinton would do in this situation.

    From your keyboard to God’s ears.

    • #9
    • September 10, 2015, at 6:29 PM PDT
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  10. ShellGamer Member
    ShellGamer Joined in the first year of Ricochet Ricochet Charter Member

    John Yoo: was considering a deal with the Justice Department in which he would plead guilty to a misdemeanor when he was pardoned by then-President Bill Clinton.

    This explains everything. She needs to be elected so she can pardon herself.

    • #10
    • September 10, 2015, at 6:35 PM PDT
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  11. Eeyore Member
    Eeyore Joined in the first year of Ricochet Ricochet Charter Member

    Doctor Robert: Strike now, strike hard, strike ruthlessly and repeatedly. That’s what a Clinton would do in this situation.

    Uhhh…

    mcconnell-boehner

    ….might not happen…

    • #11
    • September 10, 2015, at 6:41 PM PDT
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  12. civil westman Inactive

    Are we really supposed to believe that the entire conduct of her tenure as SecState included no classified emails sent or received? And that it is legal to have such material on a private server?

    • #12
    • September 10, 2015, at 6:55 PM PDT
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  13. Big Ern Inactive

    Does anyone even doubt for a minute that Barack Obama would grant her a full pardon?

    • #13
    • September 10, 2015, at 7:36 PM PDT
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  14. PHCheese Member

    Big E so could she run after a pardon?

    • #14
    • September 10, 2015, at 7:40 PM PDT
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  15. Eeyore Member
    Eeyore Joined in the first year of Ricochet Ricochet Charter Member

    Big Ern:Does anyone even doubt for a minute that Barack Obama would grant her a full pardon?

    If Ed Klein is to be believed, the answer is a big yes. “Reluctantly, we have to respect the judgements of the judicial system. She has served her country, but… [cue sound of trap door opening]

    • #15
    • September 10, 2015, at 7:43 PM PDT
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  16. GrannyDude Member

    Eeyore:

    Big Ern:Does anyone even doubt for a minute that Barack Obama would grant her a full pardon?

    If Ed Klein is to be believed, the answer is a big yes. “Reluctantly, we have to respect the judgements of the judicial system. She has served her country, but… [cue sound of trap door opening]

    Agree.

    • #16
    • September 10, 2015, at 7:53 PM PDT
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  17. Bruce Caward Thatcher
    Bruce Caward Joined in the first year of Ricochet Ricochet Charter Member

    civil westman:Are we really supposed to believe that the entire conduct of her tenure as SecState included no classified emails sent or received? And that it is legal to have such material on a private server?

    Seriously.

    If her private server was set up solely for her yoga lessons and whatever, where are all of her legit classified communications? Did she use the (already understandably and totally acceptably provided at taxpayer expense) secure government server? If so, are all those citizen-owned communiques available to a foia request?

    She was (self)lauded for being the greatest SecState ever because she had logged more flight hours traveling the globe that any predecessor (sort of like Spinal Tap’s being “England’s loudest band!”). In all that travel, did she actually do anything? Possibly, but if so, where’s the paper trail? What can historians access to assess her time in that office?

    • #17
    • September 10, 2015, at 8:07 PM PDT
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  18. Richard Fulmer Member

    Hey, none of her e-mails were classified. She ran the most transparent State Department in history just as she is telling the most transparent…, er, running the most transparent campaign in history.

    • #18
    • September 10, 2015, at 9:48 PM PDT
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  19. Kozak Member
    Kozak Joined in the first year of Ricochet Ricochet Charter Member

    Wait. She apologized and accepted responsibility.

    Therefore under the “Rules of Dealing with ( Non Conservative, or Christian or GOP) Celebrities” the entire event is over.

    It is officially now Old News and henceforth cannot be brought up without a severe eye roll and a knowing smirk.

    • #19
    • September 11, 2015, at 12:08 AM PDT
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  20. OkieSailor Member
    OkieSailor Joined in the first year of Ricochet Ricochet Charter Member

    She’s happy to accept responsibility as long as there are no consequences.

    • #20
    • September 11, 2015, at 2:22 AM PDT
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  21. Man With the Axe Member

    Big Ern:Does anyone even doubt for a minute that Barack Obama would grant her a full pardon?

    Wouldn’t it be interesting if Obama offered her a pardon now. Much like Ford offered Nixon a pre-emptive pardon before he actually went to trial, Obama could do the same for Hillary. If she accepts it, her electoral hopes are dashed forever, as she admits to intentional wrongdoing in the minds of the public. If she doesn’t, she can assume that it won’t be offered again and she would be taking some risk that she could spend quite a few years in prison. So she would be put into a tough spot by the offer.

    Obama, are you listening?

    • #21
    • September 11, 2015, at 5:15 AM PDT
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  22. Man With the Axe Member

    How did she manage to ensure that she would not, that she could not, receive any materials marked “classified?”

    Did she send out a mass email to all government departments saying:

    “Do not, I repeat, do not email me any material marked “classified” My email is on a private server and is not secure. If you have classified material to communicate to me please do not mark it “classified.” Go ahead and send it, but instead of marking it “classified” you can assume that I will know that it is classified, because I’m certainly well-aware of the classification requirements. The Chinese and Russian hackers won’t be interested if it’s not marked “classified.”

    Some coded terms you can use:

    • “Yoga routine” means “secret negotiation with Iranian mullahs”

    • “Chelsea’s wedding” means “Benghazi attack”

    • “My mother’s funeral” means “Invasion of Crimea”

    • “Finally, an evening alone with Bill” means, “Finally, an evening alone with Huma.”

    • #22
    • September 11, 2015, at 5:31 AM PDT
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  23. I Walton Member

    Any official communication sent out by a Secretary of state is classified, if nothing else as LOU. The things that were wiped would almost certainly have to do with contributions to the Clinton foundation and favors for same. Those will indeed have been wiped clean and the recipients or hackers who have copies won’t release them, they’ll hold them over here should she become President. So this has an easy out for everyone, including Republicans. Get Trump to run as the Democrat.

    • #23
    • September 11, 2015, at 5:54 AM PDT
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  24. livingtheLoneStarlife Inactive

    Man With the Axe: Wouldn’t it be interesting if Obama offered her a pardon now.

    Valerie Jarrett won’t let him.

    If reports are true, Jarrett hates Hillary with a burning passion. I believe she’s pulling the strings, toying with Hillary, and Hillary knows it.

    The Clinton machine seems to have lost significant power and influence within the party, as seen with the dustup over debates. Does anyone really fear them anymore?

    • #24
    • September 11, 2015, at 6:08 AM PDT
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  25. Fake John/Jane Galt Coolidge

    Man With the Axe: Wouldn’t it be interesting if Obama offered her a pardon now.

    Not going to happen. That would be admitting guilt. No they will go with the FBI saying there was no crime. Shuts the topic down at the source and keeps HRC viable as the next POTUS.

    • #25
    • September 11, 2015, at 6:22 AM PDT
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  26. Man With the Axe Member

    livingthehighlife:

    Man With the Axe: Wouldn’t it be interesting if Obama offered her a pardon now.

    Valerie Jarrett won’t let him.

    If reports are true, Jarrett hates Hillary with a burning passion. I believe she’s pulling the strings, toying with Hillary, and Hillary knows it.

    The Clinton machine seems to have lost significant power and influence within the party, as seen with the dustup over debates. Does anyone really fear them anymore?

    Agreed. But that’s why it’s such a Machiavellian ploy. Destroy Hillary by pretending to help her.

    • #26
    • September 11, 2015, at 6:31 AM PDT
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  27. civil westman Inactive

    Any ordinary mortal- not among the currently favored elite (i.e. not a progressive)- who came under such scrutiny would surely be indicted for something. Look at General Petraeus. Today, we live in a country where prosecutorial discretion is almost wholly informed by politics. If favored politically, there is zero accountability. If you are an ordinary citizen or in the opposition, the full weight and threat of the law will come down upon you. Even should you take a plea or be found “not guilty” at trial, you will have been ruined politically and economically (except if you are Clintonite Sandy Berger). Business owners who have not kept every email are regularly indicted for obstruction. Is retention of government emails less essential than private ones? Really?

    What is on full display here, with Lois Lerner, various individuals who testified falsely before congress (sic) regarding NSA privacy invasions, etc. etc., is the sad fact that we are no longer a nation of laws… right here in our faces again and again. Testing this assertion requires only a simple thought experiment: what would we be hearing from the MSM and opposition party were the exact same things done by a Republican or conservative? How shrill, frequent and condemnatory? How long would a Republican candidate survive the onslaught?

    • #27
    • September 11, 2015, at 6:51 AM PDT
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  28. Tim H. Member

    Doctor Robert:“…18 U.S. Code § 2071 provides that anyone who willfully and unlawfully destroys any record deposited with any officer in any public office shall be fined 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.”

    Your pen. God’s ears.

    Galt and Eeyore are not unreasonable in their pessimism, but this is an opportunity to kill the Woman who Would Be Queen. Strike now, strike hard, strike ruthlessly and repeatedly.

    While this would probably be effective in hurting her election chances, it wouldn’t prohibit her from serving as President. Despite the statute’s language, the Constitution lays out the qualifications for serving as President, and this can’t impose any further restrictions on that office.

    That said, this would surely have to hurt her campaign, right? But then I remember all that Bill Clinton got into, and he was reelected handily. Still, she’s not the politician her husband was.

    I’m still holding to my prediction of a couple of years ago that Hillary won’t even be the nominee.

    • #28
    • September 11, 2015, at 8:36 AM PDT
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  29. Tim H. Member

    Eeyore:

    Doctor Robert: Strike now, strike hard, strike ruthlessly and repeatedly. That’s what a Clinton would do in this situation.

    Uhhh…

    mcconnell-boehner

    ….might not happen…

    Oh, gosh Eeyore, that really made me laugh!

    • #29
    • September 11, 2015, at 8:38 AM PDT
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  30. Dr. Strangelove Thatcher
    Dr. Strangelove Joined in the first year of Ricochet Ricochet Charter Member

    Fake John Galt: The folks in the FBI want to keep their jobs and maybe get promoted. They do not want a mad Clinton and Company messing with their careers.

    They might just don’t want their tires slashed or cats killed.

    If I were selecting the members of the team investigating the Clintons I would favor childless, unmarried agents. Ideally with no living next of kin who could be threatened.

    • #30
    • September 11, 2015, at 11:19 AM PDT
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