Politics & Policy

‘I Never Had a Subpoena’ and Other Hillary Fables

Clinton campaigns in Iowa. (David Greedy/Getty)

In Hillary Clinton’s CNN interview on Tuesday (which I discussed with Megyn Kelly that evening), Mrs. Clinton rolled out a string of misrepresentations in defense of her improper e-mail practices. She flatly misrepresented that there was no law to govern her conduct. As we have discussed repeatedly in these pages since March, however, federal criminal statutes, federal record regulations, State Department handbooks, and Mrs. Clinton’s own directions to State Department personnel all plainly governed and prohibited her egregious conduct.

A brief recap of how some of those rules apply here lays her “no law” claim to waste:

‐Mrs. Clinton’s maintenance and exclusive use of a private e-mail address to conduct official business violated State Department regulations (in place since at least 2005), which required that such business be conducted whenever possible over official servers in order to protect the security of sensitive State business. (See 12 Foreign Affairs Manual 544.3(a): “It is the Department’s general policy that normal day-to-day operations be conducted on an authorized AIS, which has the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of the resident information.”) For what it’s worth, the White House also claims that Mrs. Clinton violated the Obama administration’s e-mail policy prohibiting private e-mail accounts. Mrs. Clinton herself reportedly cabled State Department employees stationed overseas in 2011 to direct them not to use private e-mails to conduct official business. And she removed at least one ambassador from his post, in part, because of his use of commercial e-mail systems to conduct State business.

‐She also violated federal regulations in place — in some form since 1995 (see 36 C.F.R. § 1234.24(a)(4) (1995) and with absolute clarity since 2009 (see 36 C.F.R. 1236.22(b)) — that required that any private e-mails used for conducting official business be preserved in federal records systems. She kept at least 30,000 official e-mails outside the federal records system during her entire tenure in office.

‐Her transmission of classified information over unsecure devices is an obvious no-no under all sorts of federal laws, including departmental regulations requiring the return of classified materials upon separation. (See 5 Foreign Affairs Handbook-4 H-217.2 (a): “All Department of State employees are responsible for relinquishing all classified and administratively controlled documents at separation, including copies of classified documents.”) She did so with some frequency, as evidenced by nearly two dozen e-mails out of the initial tranche of 3,000 that were recently released (with more undoubtedly to come every month for the next ten months or so).

‐Her withholding of e-mails relating to her official business from the State Department upon her departure from office violated the Federal Records Act, which requires that the secretary maintain in the federal records system all records of business of the agency. (See 44 U.S.C. § 3301: “The head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.”) It also violated related State Department regulations, which require each employee of the department to return all official records to the department upon separation.

‐When she eventually took action to at least partially comply with those records requirements — by returning 30,000 or so e-mails to the State Department last December only when requested to do so by the State Department — she continued to withhold at least some official records and redacted others, as evidenced by 15 or more of her Sidney Blumenthal e-mails, which Blumenthal turned over to Congress but she had not returned to the State Department.

‐And to put a cherry on top, her purported deletion of all of the original records raises serious questions under criminal statutes prohibiting concealment, alteration, and destruction of federal records by the custodian of records. One such statute (18 U.S.C. § 2071(b)) provides that “whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.” Mrs. Clinton was plainly the custodian of records. She has plainly not returned all official records to the State Department and has altered or deleted some of the records that she should have returned. Whether she did so “willfully and unlawfully” under the statute involves question of her state of mind, but the evidence of the criminal-law violation is pretty apparent.

Mrs. Clinton now argues that she was doing the same thing that former secretary Colin Powell did. Notably, she glosses over the fact that there was one secretary of state (Rice) between the two, and Secretary Rice had no problem complying with federal regulations. Even so, the “he did it first” defense doesn’t really hold up. While it is not clear how frequently (and exclusively) Secretary Powell used private e-mail, he certainly did not maintain that e-mail on a private server in his home. And at least some (quite non-Republican) former records officials I have spoken with insist that the law was just not as clear during Secretary Powell’s tenure. As noted above, government-wide regulations adopted in 1995 purported to require preservation of private e-mails. But they were not the model of clarity, at least according to those who had to deal with them on a day-to-day basis.

As a result, in 2009 the archivist of the United States thought it was necessary to adopt clearer rules, which provided that “agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.” Whatever ambiguity may have existed in the early days of the Obama administration was resolved in October 2009, when that regulation went into effect.

Finally, Mrs. Clinton insisted that she “never had a subpoena” for her e-mails. House Benghazi Select Committee chair Trey Gowdy undercut that claim today, publicly releasing a subpoena from earlier this year directed to Mrs. Clinton.

#related#Even if that subpoena had never been formally issued, it was clear in the days immediately after the Benghazi attacks that the House wanted the documents. As our friend Byron York laid out some time ago (in a go-to piece on the timeline of the investigation), House committees sought documents from the State Department (then headed by Hillary Clinton) nine days after the attack and issued their first subpoenas in August 2013. The Benghazi Committee first requested Clinton e-mails sometime in November 2014 — which presumably was before she destroyed any records (after she provided copies of them to the State Department in December 2014).

In those circumstances, where an ongoing investigation plainly implicates Mrs. Clinton’s e-mails, it is simply irrelevant that a formal subpoena requesting those e-mails had not been issued to her at the time she destroyed them. A federal criminal law enacted while Mrs. Clinton was in the Senate provides that “whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both” (emphasis mine). There is little question that Mrs. Clinton was on notice that the House Select Committee was interested in what was in her e-mails when she put them through an electronic shredder.

But we already knew all of this. Mrs. Clinton’s new lies just give us the chance to revisit it. 

Shannen W. Coffin is a contributing editor to National Review. He practices appellate law in Washington, D.C.

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