- - Tuesday, September 29, 2015

ANALYSIS/OPINION:

Forget the classified information. Hillary Clinton has already admitted to criminal violations of federal law.

There has been a great deal of speculation recently regarding Mrs. Clinton’s mishandling of classified information. But whether that mishandling amounts to a violation of the law turns on one of those questions regarding what did she know and when did she know it that might never be completely resolved.

Classified material is only part of her problem, though. As everyone knows by now, Mrs. Clinton kept all of her official — and unofficial — emails on a private server exclusively under her control. About two years after she left the State Department, she went through all of her emails and separated out the ones she claimed were personal. Before wiping the server and destroying the originals, she forwarded copies of the rest to the State Department. Or did she?

U.S. Code Title 18, Section 2071(b) doesn’t come up much in casual conversation. It’s in a section of Title 18 that also penalizes publishing false weather reports. (It calls for 90 days in jail, in case you were wondering.) Nonetheless, it’s an important statute that protects the integrity of the records and data that keep the government functioning. Section 2071(b) makes it a crime for the custodian of a public record to “willfully and unlawfully conceal mutilate falsify or destroy the same.”

There is no question that her work-related emails as secretary of state qualify as official records and, since she kept them on a server in her basement under her sole control, there is no question that Mrs. Clinton was their custodian. But did she do any of the things forbidden by the statute and, if the server was wiped clean, how would we ever know? The answers are “yes” and “Sidney Blumenthal.”

Back in June, in response to a subpoena issued by the House committee investigating the Benghazi attack, Mr. Blumenthal provided copies of dozens of emails he sent to Mrs. Clinton on the situation in Libya. Nine of these emails did not appear at all in the records that Mrs. Clinton had turned over to the State Department. So we know that when she wiped her server, she destroyed at least nine records covered by U.S. Code Title 18, Section 2071(b).

Maybe this was an accident. When you are turning over 30,000 emails, it’s not surprising that a few might get overlooked. Do we really know that Mrs. Clinton did this “willfully and unlawfully,” and if so, how do we know? Once again, the answers are “yes” and “Sidney Blumenthal.”

Six of the emails that Mr. Blumenthal turned over to Congress were in the email dump that Mrs. Clinton turned over to State. Sort of. Because six of the emails that Mr. Blumenthal sent to Mrs. Clinton were edited before she turned them over. In one case, for example, a warning that a new Libyan government would probably be “founded on Shariah” was removed from an email sent by Mr. Blumenthal before Mrs. Clinton provided that email to the State Department. Mrs. Clinton also deleted Mr. Blumenthal’s concerns that democracy might never take hold in Libya — even after holding elections and “fulfilling a list of proper democratic milestones.”

Why would Mrs. Clinton do something like this? While motive is not an element of the crime, she certainly had one. In 2011, Mrs. Clinton was keen to “take ownership” of Libya, going so far as to visit Tripoli to meet rebel leaders and later quipping, “We came. We saw. He died,” when she heard the news of Moammar Gadhafi’s death.

But today, Libya is a failed state and U.S. intervention there cannot be counted as one of Mrs. Clinton’s great foreign policy successes. By editing these emails and deleting others, Mrs. Clinton was attempting to destroy evidence that she was expressly warned her Libyan adventure could result in a disaster and become a new haven for Islamic militants. This is not the kind of ammo you want to provide to your opponent in a close presidential election.

In other words, this wasn’t an accident. These emails were carefully screened and edited to remove material that might be unflattering or politically damaging. By the way, falsifying or mutilating a record like this is also a violation of U.S. Code Title 18, Section 2071(b).

OK, fine. The law was violated by someone. But how do we know it was Mrs. Clinton? Maybe it was her lawyer or some intern. We know it was Mrs. Clinton because she told us so at a press conference in August. When asked how she determined which emails were “personal” — and therefore destroyed — and which emails were work-related, she said, “I made those decisions.”

So the law was violated and Mrs. Clinton was the one who violated it. What’s the penalty? Violating Section 2071(b) is pretty serious — a fine and up to three years imprisonment. There’s also another, somewhat unusual penalty: disqualification “from holding any office under the United States.”

Oops.

Chris Truax is an appellate attorney living in San Diego, Calif.


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