The Corner

Hillary Clinton Is Still Violating the Law and the Justice Department Should Take Custody of the Server

Shannen Coffin had an important NR column Wednesday, exploring for a second time the question whether Hillary Clinton committed a crime by failing to turn over government records – the thousands of work-related emails on her private server – when she left the State Department two years ago. On Fox News’s The Kelly File last night, he and Megyn Kelly followed up: outlining how, contrary to suggestions from Camp Clinton, there is a serious process involved when a high-level official stops working for a federal department – a process designed to ensure that all work-related information has been turned over for retention in government files.

While it is true, as Mrs. Clinton has said, that the departing official must decide what information belongs to the government and what is private, that is just the start of the process. What the official claims is private must be inventoried and reviewed by the department’s records retention staff; if there is any doubt about whether a record is related to official business, the default position is that the government retains the record.

More importantly for present purposes, there is a form involved – this is the government after all. The departing official must complete Form OF-109. As Shannen explains:

It is a formal separation statement, in which the departing official certifies the return of any classified materials, and, more relevant for present purposes, that the departing official has “surrendered to responsible officials all unclassified documents, and papers relating to the official business of the Government acquired by me while in the employ of the Department.” The form makes very clear that a false statement in the certification is punishable as a crime, including under 18 U.S.C. § 1001, which makes it a crime to knowingly and willfully falsify or conceal facts in statements made to federal agencies concerning a matter within its jurisdiction.

As Megyn reported last night, Fox News has asked the State Department to produce Mrs. Clinton’s Form OF-109. The public should be able to learn whether she signed it, thus representing, falsely as it turns out, that she had turned over to the State Department all files and documents relating to official government business.

I would further point out that Mrs. Clinton, even by her own account, even with respect to the copies of e-mails she has deigned to produce, is still in defiance of federal law.

Not only did she conceal and apparently delete files without completing an inventory and enabling State Department record retention officers to review her claim of privacy. Even with respect to the thousands emails she has finally revealed, she is still withholding information. What Mrs. Clinton hoarded on her server are (or were until deleted) electronic communications; what she has reportedly turned over, by contrast, are paper copies of those e-mails –reportedly, 30,490 e-mails comprising 55,000 printed pages. The paper copies may or may not have some information deleted from them.

The government record is the e-mail, the electronic communication itself. A paper copy is just a picture – and perhaps an incomplete one – of an actual electronic mail. When I left the Justice Department, I had to surrender my files and my credentials, not photocopies of them. The photocopies are depictions of the records, they are not the records. The public is entitled to maintain the actual records in the government’s filing system. It is Mrs. Clinton who must content herself with photocopies (and only of files that contain whatever categories of non-classified information she is permitted to retain as a private citizen).

It is not just that what Mrs. Clinton produced are not the actual electronic records she continues to hoard. The paper production is also not searchable in the way the actual electronic government records are. If Mrs. Clinton is permitted with impunity to continue denying the public the actual records that, by law, must be retained in the government’s files, it will cost the public additional, unnecessary millions of dollars. After all, the insufficient paper copies will have to be reviewed, organized, converted into a searchable format, and analyzed to determine if they are responsive to pending or past congressional, judicial and public disclosure demands on which the State Department is now derelict because of Mrs. Clinton’s obstruction.

This is no longer a mere political issue, much less a partisan issue. It is now a black-and-white law-enforcement issue: Mrs. Clinton is withholding records that belong to the public and there is probable cause to believe she made a prosecutable false statement to the government in claiming to have surrendered all records of official business to the State Department.

If she does not voluntarily surrender her server, forthwith, to the State Department, the Justice Department should be taking prompt action – probably through the United States attorney’s in the Southern District of New York (where the Clintons reside and where their servers are believed to be stored), or in Washington (where the State Department’s records are retained and where Mrs. Clinton probably signed her departure form – assuming she did so).

Whether voluntarily or by judicial warrant, the Justice Department should take custody of the server(s). At an appropriate time, counsel for Mrs. Clinton could then meet with prosecutors and State Department record-keepers to sort out what electronic records should be transferred to the State Department, what records the Justice Department should retain in the event there are any criminal proceedings, and what records are private and should be returned to Mrs. Clinton.

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