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Two (of Many) Open Issues in the Clinton Email Affair
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.Published in General
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.
Darrell Issa said this today
We are in a crisis because Hillary Clinton, if the voters do not stop her, will be the next President of the United States. She will, in fact, on Day One say, “Pardon me,” and she’ll mean it. She’ll have pardoned herself. She will have, in fact, gone from being a criminal involved in a criminal enterprise — obviously, Clinton Cash depicted that — and somebody who flaunted the security laws, the privacy laws, the presidential and the Federal Records Act, and gotten away with it.
Hold your noses and vote R.
I could see her lawyers being charged with (or at least disbarred for) destroying evidence. One doesn’t accidentally erase things to the point that they cannot be recovered by forensic computing.
All of my experience with classified materials and systems has led me to believe that due to the training received and agreements signed to have access to such things that merely not following the rules for handling the material is enough to get crossways with the law. Willful intent is not required, only the action, whether you meant to do it or not.
I think Hillary would be able to avoid a fine for speeding based on the defense that she didn’t intend to exceed the speed limit.
I think the defense is she didn’t intend to cause harm exceeding the speed limit.
Those 30 thousand emails are right next to her missing Rose Law Firm records.
Can a president self-pardon? There ought to be an exception for that.
Clinton’s lawyers should be charged with obstruction of justice, and she should be charged with gross negligence. But neither will suffer any harm. Those in bed with this administration are above the law, and that is apt to be the story about our future.
Today’s political power knows no scandal, no right and wrong, no consequences other than minute fluctuations in shallow “legacies” prewritten by warped partisans. Beyond good and evil. Beyond reality. Beyond the law.
Nobody falls on their sword in this, it seems. Cheryl Mills, Huma, even Obama, who I recall sent her 12 emails to her email address. And her ethically challenged attorneys of record – (of course, everyone but the immunized IT guy are lawyers and should know how risky their behavior was) – should be the first to fall. If rule of law were still fashionable, Lynch would resign.
You are so correct – these are trying times for those who want to believe in the legitimacy of our institutions.
Isn’t having a private email system crime because government officials are required to retain all official records and communications. Wasn’t this decided in the 1970s because Nixon argued the tapes were personal, not government property?
Seems to me an easily provable case. You don’t accidentally set up an off the books server.
This won’t stop prosecutors during a Hillary Clinton presidency from going after people for similar offenses. Democrats and their media allies contracted the meaning of sexual harassment to protect Bill Clinton, but in recent years progressives have attempted to destroy people with allegations that are not a fraction of what Clinton was accused of.
An excellent analysis. When I heard Comey state that Clinton’s lawyers had deleted tens of thousands of e-mails and had then scrubbed their hard drives so that the e-mails could not be recovered, I just shook my head. If that happened in a civil case, at the very least the lawyers responsible would be found in contempt of court and sanctioned. They might well be disbarred. While a criminal defendant generally does not have any responsibility to turn over incriminating evidence, I don’t believe the same applies to his or her lawyer (and, of course, Clinton was not a criminal defendant). The lawyer would be subject to obstruction of justice charges and disbarment – at the very least. Clinton’s lawyers apparently want us to believe that they can be trusted to have impartially analyzed her e-mails, but the FBI has established that they did a slipshod job and that quite a few e-mails that they failed to turn over (and subsequently destroyed) were classified. There should be a next step here with respect to the lawyers and their destruction of evidence, but I’m not holding my breath.
With respect to your construction of the statutory intent, again I think you’ve accurately analyzed the statutes. Why Comey manufactured an intent requirement baffles me. It’s hard not to conclude that Clinton’s powerful connections and her “status” as the presumptive Democratic nominee saved her from prosecution. As Comey himself acknowledged, if this had been someone else (less connected) he or she would have been prosecuted. Goodbye rule of law!
I wonder if this could lead to impeachment. Wouldn’t that be an impossible to pardon situation. You can’t pardon yourself after being removed from office because you were impeached. What do you think? Should republicans impeach Hillary if she does become president? I mean, this could be a case of “other high Crimes and Misdemeanors” as stated in the constitution in the impeachment clause.
Also, a more theoretical question. Given the obvious political pressures involved in this kind of case, who should make the decision whether or not to prosecute? Special prosecutor? Grand jury?
I guess what I am saying is that their are other people who should be making this decision, not the director of the FBI. Honestly, its not even fair to him to make him make the decision. The FBI is a department of “investigation” not judging.
Can’t one of the civil suits in progress request that the missing emails be produced by her legal team? Then when they are not, ask why? Doesn’t the deletion represent spoliation of evidence which is then looked at in the most guilty light at trial?
It will not only not stop them, but it will encourage them to go after others who commit similar but lesser offenses. That’s the way the Clintons work.
There’s a difference between treason and negligence. Comey applied the definition for the mental state of treason to the act of negligence. Of course it doesn’t apply, but it’s close enough to sound plausible.
Much as I can’t stand her, I never considered Hillary to be hostile to America. Instead, I consider her to be so glaringly selfish as to put her own interests ahead of the law. And when it comes to classified information, that’s not a choice you’re allowed to make on your own.
Moreover, if the whole episode was simply a well-meant mistake, why did she go to such lengths to cover it up? As far as I know, deliberately covering up your activity is legal evidence that you knew it was wrong.
This would have been fantastic evidence in a prosecution here — you’re right, cover-ups strongly support an inference of willful misconduct.
Not only did Comey manufacture an intent requirement for 793(f), he did not apply the right kind of intent requirement EVEN IF there were an intent requirement for 793(f). (And clearly Clinton satisfies the intent requirement in 1924(a)). All that had to be established was that there was an intent to move something (as opposed to it being accidentally lost or moved by mistake). Terrible.
It all depends on what the intent of intent is.