Politics & Policy

The Democrats’ ‘But Sipowicz Does It’ Defense of Hillary Clinton

Powell and Clinton at a State Department event in 2014. (Jonathan Ernst/Reuters)
Her e-mail exchange with Colin Powell does not exonerate her.

Marge Simpson: Homer, I don’t think you should wear a short-sleeve shirt with a tie.

Homer Simpson: Ohhh, but Sipowicz does it.

Marge Simpson: If Detective Sipowicz jumped off a cliff, would you do that too?

Homer Simpson: (walking away) Ohhh, I wish I was Sipowicz.

The Simpsons

Forgive another ’90s television reference, but Homer Simpson has nothing on Democrats defending Hillary Clinton. Democrats are gleefully touting an e-mail exchange between former secretary of state Colin Powell and, at the time, new secretary of state Hillary Clinton as somehow exculpatory evidence. Representative Elijah Cummings (D., Md.), ranking member of the House Oversight Committee, released the e-mail this week, saying it “illustrates the longstanding problem that no Secretary of State ever used an official unclassified email account until the current Secretary of State [John Kerry].” By this, Cummings apparently meant to justify Clinton’s circumvention of State Department policy requiring the use of official e-mail systems because, you see, every one else (especially Colin Powell!) did it. (Cumming does not disclose that Clinton’s immediate predececessor, Condeleezza Rice, did not use e-mail at all.)

Perhaps blaming Colin Powell for Clinton’s troubles does provide a small amount of shade from the blazing political heat that Clinton has been taking. But it certainly shouldn’t. If anything, the e-mail exchange confirms that Clinton was aware that her private server circumvented federal records laws from the very beginning of her tenure as secretary of state.

A few days after Clinton took office, on January 23, 2009, she sent an e-mail to Powell, asking how the State Department handled Powell’s BlackBerry usage (or “berries,” as Clinton called them) during his tenure. Powell explained that he did not use a BlackBerry but did have his own private e-mail system, which he used from his home. “What I did,” wrote Powell, “was have a personal computer that was hooked up to a private phone line (sounds ancient). So I could communicate with a wide range of friends directly without it going through the State Department servers.” Powell even used that e-mail account “to do business with some foreign leaders and some of the senior folks in the Department on their personal email accounts. I did the same thing on the road in hotels.”

Powell did not stop there, and this is where Clinton’s problem comes in. He explained a “real danger” in Clinton’s plan to use a BlackBerry. “If it is public that you have a BlackBerry and it [is] government and you are using it, government or not, to do business, it may become an official record and subject to the law.” Powell warned Clinton to “be very careful. I got around it by not saying much and not using systems that captured the data.”

RELATED: Even If You Believe the Left’s Excuses, Hillary Clinton Still Violated Criminal Law

So Powell did it, too — something we have known from the outset of this controversy, since Clinton has made sure everyone knew of Powell’s private e-mail use. His e-mail to Clinton shows that Powell rather blatantly violated federal records laws, knowingly and intentionally.  He communicated with foreign leaders and other State Department officials on this system without saving his records. All that proves, however, is that Powell probably violated the law, too.

Is Clinton’s defense here that she’s not the first secretary of state to blatantly disregard federal records laws and conceal the existence of her official communications from public scrutiny? If that’s what her defenders want us to take away from this exchange, we can readily concede that Powell was a records cheat as well.   

Clinton was already well into setting up her private e-mail server when she reached out to Powell for advice.

But the e-mail has much more significance to Clinton’s current predicament — a predicament that is much more political than legal thanks to the FBI’s decision not to recommend prosecution. It shows that Clinton was well warned about what Powell perceived as an inconvenient need to preserve records under federal law and about the ways her predecessor “got around” those legal requirements.  

Clinton was already well into setting up her private e-mail server when she reached out to Powell for advice. The FBI’s report on its investigation notes that the “Clintonemail.com” domain had been registered for her use ten days earlier, on January 13, 2009, and she began transitioning to use of that e-mail address during the same period. Clinton had already made the decision to use a private e-mail server before Powell warned her about the troublesome obligations of record preservation.

#related#But the e-mail exchange confirms that Clinton was aware of those obligations and that her private e-mail server would help her circumvent those requirements. Powell, quite erroneously, explained that she could avoid the federal records-preservation requirements by “not saying much” and not saving the data. Neither of those tactics relieves a federal office holder from the obligation to preserve official records, including e-mail. But it does demonstrate Clinton’s awareness that what she was doing might enable her to get around her obligations to preserve a record of her official acts.

As we have explained from the beginning of this controversy, 18 U.S.C. § 2071(b) makes it a felony when the official custodian of federal records “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same.” The evidence of Mrs. Clinton’s concealment and even destruction of federal records is overwhelming. The key question is whether that conduct was done “willfully,” that is, intentionally and with full knowledge of its illegality. Congressional Democrats’ release of the Powell e-mail provides strong evidence of that missing link.

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

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