The Corner

Politics & Policy

Did Hillary Clinton Violate the Federal Embezzlement Law?

(Doug Pensinger/Getty)

Secretary of State Hillary Clinton’s systematic evasion of federal recordkeeping requirements involved both the use of private email addresses and a server system installed in her Chappaqua manse. The servers, according to the Washington Free Beacon, may have been set up by shady longtime Clinton lackey Eric Hothem – under a false name (Eric Hoteham) slightly varied from his true name. It may also have been designed to give users the ability to erase emails without a trace.

Shannen Coffin’s excellent column today points out that Mrs. Clinton’s Clintonesque shenanigans not only appear to be a clear violation of the Federal Records Act; she may also have violated a federal penal statute that makes it a felony for the custodian of government records to conceal or otherwise tamper with them.

I think there are other potential criminal violations as well. We don’t know enough about the former secretary of state’s emails yet to make a judgment about whether they involved classified matters – which could trigger liability under the espionage act (which governs the maintenance and severely limits the permissible disclosure of national security secrets). It is hard to imagine that no classified matters are implicated, but let’s set that aside for the moment.

As I have pointed out before in connection with government leaks, the embezzlement statute (Section 641 of the federal penal code – Title 18) may also be relevant. Embezzlement generally refers to the theft of money, but the federal statute extends the concept to cover government records and other property as well.

Specifically, the statute makes it a crime, punishable by up to 10 years’ imprisonment, for anyone (does not have to be a custodian or even a government official) to embezzle, steal, purloin or knowingly convert for the use of herself or others “any record … or thing of value of the United States or of any department or agency thereof.” It similarly criminalizes the receipt, concealment or retention of such embezzled or purloined government records. Under federal law, emails constituting government business conducted by government officials are government records.

Much has justifiably been said today about the importance of issuing subpoenas to compel production of Mrs. Clinton’s private email records. That should only be the beginning of the investigation. It takes a great deal of time and effort to maintain, service, repair and operate servers. Who was involved in that project? Who had access?

And who knew about the external email system and facilitated its operation? As secretary of state, Clinton was surrounded by several longtime aides, including Cheryl Mills, Jake Sullivan and Huma Abedin. Mills and Sullivan have already been implicated by a witness in a scheme to purge embarrassing documents from the materials the State Department provided to Mrs. Clinton’s hand-picked Accountability Review Board that investigated security lapses surrounding the 2012 Benghazi massacre. It is known, moreover, that then-Secretary Clinton created an ethically dubious arrangement that allowed Abedin to work for private clients – at a Clinton-connected consulting firm – while remaining on the State Department payroll as a top adviser.

The Obama Justice Department may want no part of this, but congressional committees ought to be getting very busy.

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