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FBI Director James Comey’s statement yesterday provided some clear facts that establish the egregiousness of Hillary Clinton’s reckless email practice, though many questions and open issues remain. Here are two such open issues:
1. Clinton’s lawyers mystifyingly deleted tens of thousands of emails instead of preserving them for possible re-review. As a litigator who has been involved in the collection and review of hundreds of thousands of documents in the course of e-discovery, I know that lawyers — especially the sophisticated attorneys Clinton would hire — are extremely cautious about deleting data collected in the course of discovery. That’s why Director Comey’s statement yesterday about the actions of those lawyers is so incredible:
“It is also likely that there are other work-related e-mails that [Clinton’s lawyers] did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.”
Based on Comey’s statement, Clinton’s lawyers collected about 60,000 emails from Clinton’s personal email system and then “reviewed” the emails for those relating to Clinton’s government service. I use scare quotes, because Clinton’s lawyers did not actually read the text of all 60,000 emails (even though that is actually a very small number in the world of e-discovery). Instead, they merely used “search terms” and review of header text (does Comey mean subject-line text rather than “header”?) to cull a subset of 30,000 work-related emails from the initial 60,000 collected. Thus, Clinton’s attorneys, in Comey’s words,”likely” missed relevant evidence using terms not captured by the search term list or found in the body of the email.
Search terms are commonly used as an efficiency tool in e-discovery, and emails are often deleted in the course of business or as a result of an organization’s regular data retention policy (e.g., purging all emails older than 30 days). However, it is very unusual for Clinton’s lawyers to have decided to permanently delete the remaining 30,000 emails that they collected but did not produce to State.
Lawyers and potential witnesses have an obligation to take reasonable steps to retain all information potentially relevant to an ongoing government investigation. It is stunning that Clinton’s lawyers were not advised at the time and not now deemed to have been under that continuing obligation as it relates to the 30,000 emails they did not produce after an initial search term/header review. It is even more stunning that her lawyers actively took steps to permanently delete and scrub such data so that it became unrecoverable. After the FBI pursued other sources (e.g., officials Clinton corresponded with) to collect “several thousand” work-related emails unique from the 30,000 emails Clinton’s lawyers first turned over, the FBI could have asked Clinton’s lawyers to use new, broader search terms to re-review the 30,000 emails not produced. But that set was “deleted as ‘personal'” by Clinton’s lawyers and is now lost forever.
Why did Clinton’s lawyers feel free to permanently delete potentially relevant evidence? Did the FBI or State Department give them the OK to do so? We can get answers to these questions, though we will never know whether the deleted evidence contained damning material.
2. Director Comey mischaracterized the kind of mental state required by the federal penal code sections applicable to this case.
National Review‘s Andrew McCarthy rightly notes that Comey re-wrote a new “intent” requirement into Section 793(f) of the federal penal code, given that 793(f) criminalizes the lower standard of grossly negligent misconduct — a standard that Clinton meets according to Comey’s own conclusion that she was “extremely careless.”
But there is another layer to this that McCarthy does not address. In interpreting the statutes it is important to specify the kind of mental state that is an element of the offense — for example, is it an intent to damage American interests? An intent to hand over secrets to the enemy? Or is it merely an intent to move material to an unauthorized place, as is the case here?
Federal penal code section 1924(a) (the misdemeanor offense) states in relevant part:
Whoever, being an officer . . . of the United States, and, by virtue of his office . . . becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.
The only knowledge or intent required by section 1924(a) is the intent to “remove” and “retain” such documents at an “unauthorized location.” It is incomprehensible that Clinton’s personal email system does not meet this basic intent requirement, even under the facts as presented by Comey yesterday. As many have noted, the government’s 2015 prosecution of Bryan Nishimura, a Naval reservist deployed in Afghanistan, shows that a case can be successfully brought under section 1924(a) for the willful removal of “several” classified files from authorized government computers and storage on unauthorized “personal” electronic devices. Nishimura was sentenced to two years probation and permanent revocation of his security clearance.
Note also that the misdemeanor statute does not specify that the material has to be marked classified (as Clinton has cleverly said in her defense) or that the person must know that the information is classified. Instead, the intent element is limited to a knowing removal and retention of classified information (as was the case here with the 110 Clinton emails containing information classified at the time they were removed to and retained on Clinton’s servers).
As for Section 793(f) (the felony statute), even if the FBI were to write-in an “intent” requirement, Clinton’s actions still would have violated that law, which states in relevant part:
“Whoever, being entrusted with or having lawful possession or control of any document . . . relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody . . . shall be fined under this article or imprisoned not more than ten years, or both.”
The requisite mental state here (“gross negligence”) refers to the “remov[al]” of the documents from their “proper place of custody.” Even if intent were the required mental state, can it be disputed that Clinton did not intend to remove documents “relating to the national defense” (note that this is broader than “classified information”) from their “proper place” on government servers?
The only way to get around such basic intent requirements is to say that the whole act of moving the documents was a mistake, e.g., accidentally dropping some documents in your suitcase or adding your personal email to the CC line for a few sensitive messages. A vast, separate email system containing at least 30,000 work-related messages breathtakingly establishes an intent to remove the documents from their “proper place of custody” on government servers!
Comey notably evaded the clear text of these laws by using shorthand to describe the statutes. His misleading characterizations suggest that a different kind of mental state is required, namely maliciousness or an intent to harm America. If Comey had taken these facts to Attorney General Lynch, she would have been hard-pressed not to indict Clinton, or at least explain in detail her assessment of the statutes as they apply to the facts here. It is mystifying that Comey would interpret the law — not the FBI’s core role as a fact-gathering office — in such an egregiously favorable way for Clinton (and Lynch).
Why was the applicable “intent” element in the misdemeanor statute not satisfied here? Why didn’t Clinton’s systematic removal of government information not establish the requisite mental state under the felony statute? Why did Comey take it upon himself to interpret the law in such a distorted way?
Politics aside, these questions only begin to show how extremely disturbing this event is for those of us who want to believe in the legitimacy of our country’s institutions.