The Latest Bombshell from Mrs. Clinton’s Lawyer

By Shannen W. Coffin

Monday, March 30, 2015

Hillary Clinton’s lawyers confirmed what many have suspected since her remarks at a U.N. press conference earlier this month: She has wiped her server clean of any e-mails that she didn’t turn over to the State Department. In so doing, Mrs. Clinton has given her critics more reason to suspect that she is up to no good and yet further reason that Mrs. Clinton should keep those lawyers on speed dial.

In the ongoing saga of Hillary Clinton’s exclusive use of a private server at her Chappaqua, N.Y., home, the latest bomb was thrown by her lawyer, David Kendall (of Bill Clinton impeachment fame). Late last week, Mr. Kendall wrote a lengthy letter to the Benghazi Select Committee to respond to Chairman Trey Gowdy’s demand that she turn over her server for inspection and analysis by a “neutral detached and independent third-party.” Mr. Kendall flatly refused the demand, suggesting that the committee lacked the authority to request it. But for good measure, Kendall explained that review of the server would be fruitless. After her personal lawyers reviewed the e-mails to determine which records Mrs. Clinton should return to the State Department, she “chose not to keep her non-record personal e-mails and asked that her account (which was no longer in active use) be set to retain only the most recent 60 days of e-mail.”

To “avoid prolonging a discussion that would be academic,” Mr. Kendall adds, “no e-mails from hrd22@clintonemail.com for the time period January 21, 2009, through February 1, 2013, reside on the server or on any back-up systems associated with the server.” Thus, he concludes, “there are no hrd22@clintonemail.com e-mails from Secretary Clinton’s tenure as Secretary of State on the server for any review, even if such review were appropriate or legally authorized.”

Lawyers are not usually this bold when disclosing evidence that suggests potential breaches of criminal law. I say “potential” because it is impossible to know for sure — unless, of course, you, like most congressional Democrats, are willing to take Mr. Kendall’s (and Mrs. Clinton’s) word for it. But the destruction of any record while a person is subject to a congressional-committee investigation is a reason for humility, rather than hubris, on the part of that person’s lawyer. This is so because a number of federal laws prohibit obstruction of such investigations.

And several federal criminal statutes might be implicated here. (The Congressional Research Service has been kind enough to pull them together: PDF here.) The Sarbanes-Oxley statute — enacted (with the support of Senator Clinton) in response to alleged document destruction by accounting firm Arthur Anderson in the Enron fraud investigation — prohibits just the sort of conduct here if, in fact, Mrs. Clinton destroyed any official records to avoid disclosure in a federal investigation. The statute provides the following: “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 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.” (That statute may not be directly implicated by congressional investigations, since Congress is not a “department or agency of the United States.” But a strong argument could be made that the State Department’s response to such a congressional investigation is a “matter” within the scope of the law.)

Other statutes directly address obstruction of a congressional investigation. For instance, 18 U.S.C. § 1505 provides: “Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress — Shall be fined under this title, imprisoned not more than 5 years . . . ” Similarly, other statutes I have previously discussed make it a crime for the custodian of an official federal record to conceal or destroy it, without regard to whether it has been demanded in a federal investigation.

It bears repeating that we don’t know, for certain, whether Mrs. Clinton has done anything that violates these statutes. If you accept Mr. Kendall’s word at face value, her lawyers have conducted a careful review of 60,000-plus e-mails and returned to the State Department anything that even arguably could be classified as an official State Department record. If true, then the discussion of criminal-law violations for destruction of documents is probably moot (though we don’t know whether Mrs. Clinton has saved any “official” e-mails in their original electronic form — a question whose answer is obscured by Mr. Kendall’s letter).

But whether or not she destroyed records, there is certainly evidence that she willfully concealed the existence of these e-mails during her tenure as secretary of state, because they were never searched in response to either congressional-committee requests or citizen FOIA requests while she was in office. We now know, by virtue of the State Department’s recent release to the Benghazi Select Committee of 850 pages e-mails from Mrs. Clinton’s private server, that she did, in fact, withhold records responsive to a federal inquiry for more than two years from their first request in 2012. Were it not for the State Department’s request that she return any official records on her private e-mails, would she ever have disclosed these records?

Putting aside the question of concealment, however, if what David Kendall says is true, we’re left mostly with a debate about Mrs. Clinton’s compliance with federal civil-records laws and regulations designed to protect and preserve a record of the business of the State Department. With regard to this, for reasons I have discussed at some length, there is every reason to conclude that Mrs. Clinton’s conduct was not only bad form but also a pretty blatant violation of the law. Mr. Kendall goes to some length to argue that Mrs. Clinton complied with the State Department’s governing regulations, but he elides the obvious fact that she took everything with her when she left the Department — without giving State Department records officials the opportunity to review and retain official records. This is a privilege otherwise unknown to the rank-and-file employee at the State Department and in obvious conflict with governing rules.

All of this raises the ultimate question: Given her wholesale failure to comply with her obligations as the highest ranking official of the State Department, why on earth would anyone be ready to accept Mrs. Clinton’s representations — carefully made through her private legal counsel — that she has fully complied with the law? The admission that Mrs. Clinton has deleted documents while she is subject of several congressional document demands (both by subpoena and less formal letter requests) at least gives rise to a reasonable suspicion that something is amiss. Normally, in those circumstances, a prosecutor would not simply rely on the deleter’s representations that she has acted in good faith. Instead, a reasonable prosecutor would want to verify that she complied with her obligations to turn all of her responsive records to the State Department — which it might be able to do through forensic analysis of her server. So rather than laying to rest the controversy of Mrs. Clinton’s server, Mr. Kendall has only amplified it.