Since the news that she used a private email server as secretary of State broke in March, Hillary Clinton has repeatedly insisted that everything she did was “legally permitted.” Yet, the so-called Emailgate scandal has only intensified in recent weeks, with the New York Times publishing an erroneous report that Clinton was the subject of a potential criminal probe, intelligence agencies flagging 305 Clinton emails that may contain classified information, and questions swirling about why she wiped her email server before turning it over to the FBI.
Clinton has dismissed the controversy as a “partisan attack,” and clearly the issue is mired in the political hysteria that’s surrounded the Clintons for decades. But is the worst-case scenario merely a drawn-out controversy that distracts from her presidential campaign, or could the scandal end with Clinton facing criminal charges? Most legal experts say it’s unlikely that we’ll see Clinton hauled away in an orange jumpsuit over her strange email setup. However, there’s disagreement over what laws she may have violated, and whether Clinton or her staffers should be worried about legal consequences.
Clinton’s decision to use a private email rather than a .gov email address to conduct official business was certainly inadvisable, and possibly illegal. However, Douglas Cox, a professor at the City University of New York School of Law who studies records preservation laws, tells Daily Intelligencer that we shouldn’t expect to see Clinton charged with violating federal records laws. “The problem is that those laws do not have sharp teeth, and it is only in severe cases that relevant criminal provisions are implicated,” he said.
Since 1950, the Federal Records Act has required federal employees to keep any records related to their official duties, including their communications. President Obama amended the law in 2014 to require that emails on personal accounts be transferred to government servers within 20 days, but at that point Clinton had left the State Department.
When Clinton became secretary of State in 2009, Section 1236.22 of the 2009 National Archives and Records Administration (NARA) requirements did say that if agencies allow employees to use outside email, they “must ensure that Federal records sent or received on such systems are preserved in the appropriate agency record-keeping system.” But there was no timeline for compliance, and when the State Department asked for her records in 2014, Clinton turned over her work-related emails (as determined by her staff). The campaign has also argued that the State Department always had access to some of her emails, since she contacted staffers at their .gov email addresses.
The Clinton team says that’s proof that the secretary wasn’t trying to keep anything out of the public record, contrary to what Lawrence O’Donnell alleged in March. “This email system was set up obviously to defy the Freedom of Information Act,” the MSNBC host said. “Emails were completely immune from every single Freedom of Information Act request.” Regardless of Clinton’s motive (she says she used one email address for “convenience”), her use of a private account did mean that multiple FOIA and congressional requests sent to the State Department came back empty or incomplete, since Clinton did not turn over her emails until December 2014.
As of May, the State Department was facing 79 FOIA lawsuits, many of which involve Clinton’s email. In response to one of the suits filed by Judicial Watch, the State Department argued this month that under FOIA it is not required to conduct its own search of Clinton’s server, or track down other devices that may contain her emails. They noted that Clinton recently signed a statement declaring “under penalty of perjury” that she turned over all of her clintonemail.com messages that were potentially federal records. Nevertheless, on Thursday a federal judge ordered the State Department to ask the FBI for any additional emails recovered from Clinton’s server, and lamented, “We wouldn’t be here today if the employee had followed government policy.”
Aside from the new possibility that Clinton perjured herself, recent reports that classified information may have passed through clintonemail.com present the biggest legal threat to the candidate. Under 18 U.S.C.§ 2071, anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys,” public records, or attempts to do so, has committed a felony. Those found guilty can be fined, imprisoned for three years, and “disqualified from holding any office under the United States.”
According to 18 U.S.C.§ 1924, it is a misdemeanor for government employees to “knowingly” remove classified information “without authority and with the intent to retain such documents or materials at an unauthorized location.” Former CIA director and retired general David Petraeus pleaded guilty to this crime after providing notebooks containing classified information to his biographer and mistress, Paula Broadwell. Petraeus was sentenced to just two years of probation and a $40,000 fine, but the maximum sentence is one year in prison and a $100,000 fine.
The frequent use of the words willfully and knowingly may help explain why the Clinton campaign keeps emphasizing that she never intentionally sent or received classified information via email. “Courts have required prosecutors to show that a defendant knew they were violating the law,” said Cox. “Given that it is unclear whether the State Department may have approved of, or at least acquiesced in, Clinton’s email arrangement; given that there is thus far no evidence that Clinton destroyed, or intended to conceal, emails that were properly government documents; and given that she willingly handed over the emails when requested, pursuing this charge would seem highly unlikely.”
There are also several provisions in the Espionage Act that could apply to Clinton. The law states that anyone in possession of materials “relating to the national defense” who “willfully retains” the information or “fails to deliver it on demand to the officer or employee of the United States entitled to receive it” has violated the law. It’s also a crime to allow such materials to be removed from their “proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed,” through “gross negligence.” The maximum penalty for these crimes is a $250,000 fine and up to ten years in prison.
Clinton claimed this week that there would be a dispute over whether some of her emails should have been marked classified even if she had used a government email account. “This is part of the ordinary process,” Clinton said. “Everybody is acting like it’s the first time it’s ever happened. It happens all the time.” Thomas S. Blanton, director of the National Security Archive at George Washington University, agrees to some extent. “This is primarily a bureaucratic turf grab by the intelligence community to assert control over State Department records,” he told Daily Intelligencer. “None of the email Mrs. Clinton sent or received was classified at the time — even the intelligence inspector general admits that. What’s happening now is that some securocrats (but not others) are retrospectively classifying information in some of the Clinton emails. This is self-defeating because this only puts red flags on material somebody thinks might still be sensitive.”
But Nathan A. Sales, a law professor at Syracuse University who teaches national security law and served in the Justice Department from 2001 to 2003 and the Department of Homeland Security from 2006 to 2007, does not find Clinton’s explanations persuasive. Last month I. Charles McCullough III, the inspector general of the intelligence agencies, said that four Clinton emails from a sample of 40 should have been marked classified and never should have passed through an “unclassified personal system” — though they “did not contain classification markings and/or dissemination controls.” Rather than exonerating Clinton’s staff, “the lack of markings may actually make things worse,” Sales said. “It means that someone (perhaps a State Department aide) may have affirmatively removed the markings before emailing the materials.”
“It’s looking increasingly likely that someone at the State Department broke the law, but it’s too soon to say whether Hillary herself could be successfully prosecuted,” Sales concluded. Steven Aftergood, who directs the Federation of American Scientists’ project on government secrecy, thinks that based on what we’ve learned so far, “there are no laws that Clinton could reasonably be charged with violating.” However, he agrees that the lack of classification markings could be a problem. “If it turned out that when the information was transferred from the intelligence community to the State Department someone deliberately removed the classification markings, the person who did that would be in trouble.”
As the various investigations progress, the Clinton campaign is sticking by its claim that no one knowingly emailed classified information, and making a more aggressive effort to paint the scandal as part of a larger (and legitimate) debate about overclassification. Clinton spokesperson Brian Fallon told Politico on Wednesday that Clinton “was, at worst, the passive recipient of classified information.” He added, “When it comes to classified information, the standards are not at all black and white.” So far, the same could be said of the legal case against Clinton.
A previous version of this post incorrectly stated that Nathan A. Sales worked for the federal government from 2001 to 2008. We regret the error.