From the Wall Street Journal:
Hillary Clinton’s use of a private email server to conduct public business while serving as secretary of state, followed by the deletion of information on that server and the transfer to her lawyer of a thumb drive containing heretofore unexplored data, engages several issues of criminal law—but the overriding issue is one of plain common sense.
Let’s consider the potentially applicable criminal laws in order of severity.
It is a misdemeanor punishable by imprisonment for not more than a year to keep “documents or materials containing classified information . . . at an unauthorized location.” Note that it is the information that is protected; the issue doesn’t turn on whether the document or materials bear a classified marking. This is the statute under which David Petraeus—former Army general and Central Intelligence Agency director—was prosecuted for keeping classified information at home. Mrs. Clinton’s holding of classified information on a personal server was a violation of that law. So is transferring that information on a thumb drive to David Kendall, her lawyer.
Moving up the scale, the law relating to public records generally makes it a felony for anyone having custody of a “record or other thing” that is “deposited with . . . a public officer” to “remove” or “destroy” it, with a maximum penalty of three years. Emails are records, and the secretary of state is a public officer and by statute their custodian.
The Espionage Act defines as a felony, punishable by up to 10 years, the grossly negligent loss or destruction of “information relating to the national defense.” Note that at least one of the emails from the small random sample taken by the inspector general for the intelligence community contained signals intelligence and was classified top secret.
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To be sure, this particular email was turned over, but on paper rather than in its original electronic form, without the metadata that went with it. If other emails of like sensitivity are among the 30,000 Mrs. Clinton erased, that is yet more problematic. The server is now in the hands of the Federal Bureau of Investigation, whose forensic skills in recovering data in situations like this are unexcelled.
The highest step in this ascending scale of criminal penalties—20 years maximum—is reached by anyone who destroys “any record, document or tangible object with intent to impede, obstruct or influence the proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter.”
So, for example, if Mrs. Clinton caused to be wiped out emails that might have been anticipated to be of interest to a congressional committee, such conduct would come within the sweep of the statute. That, by the way, is the obstruction-of-justice statute, as revised by the Sarbanes-Oxley law, passed by Congress in 2002 while Mrs. Clinton served as a senator, and for which she voted.
All of this is not to suggest that Mrs. Clinton is in real danger of going to jail any time soon. All of these laws require at least knowing conduct, and the obstruction statute requires specific intent to impede at least a contemplated proceeding. It is not helpful to Mrs. Clinton’s cause that the emails finally turned over to the State Department were in paper rather than electronic form, which makes it impossible to search them—and easier to alter them—and would thus tend to impede rather than advance a congressional investigation.
Further, we won’t know whether permanent damage was done by the email erasure unless someone manages to examine the thumb drive in the possession of Mr. Kendall. The actual erasure of material appears to have been done by one or more of Mrs. Clinton’s aides, and we can certainly expect some or all of them to dive, if not be thrown, under the bus. Nonetheless, these statutes serve at least to measure the severity with which the law views the conduct here.
The common-sense issues in this matter are more problematic than the criminal ones. Anyone who enters the Situation Room at the White House, where Mrs. Clinton was photographed during the Osama bin Laden raid, is required to place any personal electronic device in a receptacle outside the room, lest it be activated involuntarily and confidential communications disclosed.
Mrs. Clinton herself, in a now famous email, cautioned State Department employees not to conduct official business on personal email accounts. The current secretary of state,John Kerry, testified that he assumes that his emails have been the object of surveillance by hostile foreign powers. It is inconceivable that the nation’s senior foreign-relations official was unaware of the risk that communications about this country’s relationships with foreign governments would be of particular interest to those governments, and to others.
It is no answer to say, as Mrs. Clinton did at one time, that emails were not marked classified when sent or received. Of course they were not; there is no little creature sitting on the shoulders of public officials classifying words as they are uttered and sent. But the laws are concerned with the sensitivity of information, not the sensitivity of the markings on whatever may contain the information.
The culture in Washington, particularly among senior-executive officials, is pervasively risk-averse, and has been for some time. When I took office as U.S. attorney general in 2007, members of my staff saw to it that I stopped carrying a BlackBerry, lest I inadvertently send confidential information over an insecure network or lest it be activated, without my knowledge, and my communications monitored.
When I attended my first briefing in a secure facility, and brought a pad to take notes, my chief of staff leaned over and wrote in bold capital letters at the top of the first page, “TS/SCI,” meaning Top Secret, Secure Compartmentalized Information—which is to say, information that may be looked at only in what is known as a SCIF, a Secure, Compartmentalized Information Facility. My office was considered a SCIF; my apartment was not.
The point he was making by doing that—and this is just the point that seems to have eluded the former secretary of state—is one of common sense: Once you assume a public office, your communications about anything having to do with your job are not your personal business or property. They are the public’s business and the public’s property, and are to be treated as no different from communications of like sensitivity.
That something so obvious could have eluded Mrs. Clinton raises questions about her suitability both for the office she held and for the office she seeks.
Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006).