This post was written by Ronald Rotunda, author of Rotunda and Nowak’s Treatise on Constitutional Law: Substance and Procedure, 5th and Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, 2014-2015 ed. (ABA).  

On March 3, the New York Times announced, “Using Private Email, Hillary Clinton Thwarted Record Requests.” By then, we learned that former Secretary of State Hillary Rodham Clinton never used the secure email servers of the Department of State. Instead, she used her own private server stored in her home in Chappaqua, New York. She said that she never used the secure government server to send any emails during her entire four years as Secretary of State. She says that perhaps she should not have done that, and she may have not followed State Department “policy” (which she was in charge of enforcing), but she explained, she broke no law. Since 2009, federal regulations require that the State Department and other federal agencies preserve all emails in its agency’s record-keeping system. However, her staff “took no steps to have [her emails] preserved as part of State Department record,” the New York Times reported.

While Clinton claims she violated no law, this may be premature. The law on obstruction of justice has changed since Clinton was working on the House Impeachment staff and I was an assistant majority counsel with the Senate Watergate Committee. In addition to violating a State Department rule, her admitted destruction of over 30,000 emails raises serious questions of violation of the statutes.  She later turned over 50,000 pages emails, but she did that with hard copy, not in electronic format, so they are a lot harder to search. Also, hard copy printouts do not include electronic “metadata,” which can provide crucial forensic evidence.

We do not know all the facts yet, and we should not be premature in reaching conclusions, but what we are learning is disconcerting. Perhaps this issue will become yesterday’s news, though that is not happening right now, and the questions are growing. Congress is certainly interested.  The House Select Committee investigating the State Department’s response to the 2012 attack in Benghazi, Libya, has asked Clinton to turn over her server to an independent arbiter. In addition, various private parties who have sued under the Freedom of Information Act (FOIA) are now back in court to secure the emails that the State Department never turned over the first time around. One recently-filed lawsuit alleges that Clinton withheld documents that she had an obligation to turn over under FOIA regarding State Department waivers given to businesses or individuals doing business with Iran, perhaps undermining sanctions that the United States imposed on that regime.

Clinton claims that she never sent or received any classified or secret information using emails while Secretary of State. It is hard to believe that during four years as Secretary of State, no one ever sent her classified or secret information. She was, after all, the head of the State Department. She should not be out of the loop. If she emailed a foreign government about money that government was donating to her personal foundation, the State Department never received a copy. If a State Department official sent her an email, the State Department would often not have any copy because, the March 2015 Report of the Inspector General of the State Department concluded, “many emails that qualify as records are not being saved as record emails.” These are missing emails in addition to the emails on Clinton’s private server.

One would think that the State Department had to know what was going on, when it responded to Congressional subpoenas and FOIA lawsuits. The people who received email from the Secretary of State would know that the “from” line did not have a “dot-gov” suffix, and the State Department personnel who sent her emails had to know that they were not sending to a State Department email address. Yet, they all certified that they complied with the FOIA subpoenas and the Congressional subpoenas. Something is amiss.

After the press learned about the problem, she destroyed over 30,000 emails. Once the subpoenas starting coming in, so she could not turn them over. She claims that she only destroyed personal records, but it is the court, not the subject of the subpoena, who makes the final decision on what is relevant.

Even though the law may not require a person to create a document, it is the crime (18 U.S.C. §1519) to destroy a document to prevent it from being subpoenaed. The Government’s burden of proof is light. The Department of Justice manual advises that §1591 makes prosecution much easier because it covers “any matters” or “’in relation to or contemplation of’ any matters.” It adds, “No corrupt persuasion is required.” Section 1519 imposes up to 20 years imprisonment for what commentators call, “anticipatory obstruction of justice.” The Federal prosecutor does not have to establish that any investigation is pending. As one criminal defense expert explained, the prosecutor “need only prove that the defendant shredded the documents, at least in part, to make life more difficult for future investigators, if and when they eventually appear.” As the court explained in United States v. Ionia Mgmt., S.A., 526 F.Supp.2d 319, 329 (D.Conn.2007), “In comparison to other obstruction statutes, § 1519 by its terms does not require the defendant to be aware of a federal proceeding, or even that a proceeding be pending.”

Congress made it much easier to prove obstruction when it enacted §1519 in 2002, as part of the Sarbanes-Oxley Act. Clinton should know that. As a Senator, she voted for the law.

 

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University. He is a magna cum laude graduate of Harvard College and a magna cum laude graduate of Harvard Law School, where he was a member of Harvard Law Review. He is the coauthor of Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (ABA-West Group, St. Paul, Minnesota, 7th ed., 2009) (with John Dzienkowski). Rotunda is also the co-author (with John Nowak) of the six-volume Treatise on Constitutional Law (West Publishing Co., 5th ed. 2012), and a one volume Treatise on Constitutional Law (West Publishing Co., 8th ed. 2010). In 2014, Rotunda was rated as one of “The 30 Most Influential Constitutional Law Professors” in the United States.