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Home » Turner Law Offices Blog » Hillary Clinton’s Email Problem: Illegal? Wrong? Fishy?

Hillary Clinton’s Email Problem: Illegal? Wrong? Fishy?

hillary-clinton-email-scandalHillary Clinton’s Email Problem Gets Even More Complicated

ABC News’ legal analyst Dan Abrams argues in a piece for his law and crime site that it is absolutely crucial to make a distinction between the question of whether Secretary Clinton did anything wrong and the question of whether she did anything illegal. He claims that “she likely did violate government procedures and rules, but not the law.” In this spirit, I’ll examine here the main laws that Clinton is accused of violating – that is, the two laws for which there seems to be the best case that Clinton should be indicted. I’ll find, as does Abrams, that there is no real case that can be made for Clinton’s indictment. However…

… this does not mean that she should be let off the hook; that distinction between wrong and illegal provides for Clinton’s legal absolution but, I think, the question of whether she did anything wrong is still open. When I say “open” I mean it: there’s nothing technically wrong with keeping a server in order to have greater control over one’s email records. I’ll get into that later, after my analysis of the legal dimensions of the whole situation.

First, The Facts: What Happened?

What did Clinton do that is apparently so controversial?

Many are under the impression that Clinton’s transgression was to use a private email account for government business. This is true; however, the image it conjures up of Clinton logging into Yahoo Mail to check up on state department business is a false one. Clinton actually had an entire private server registered to her home address, and hosted her own email account on that server as well as those of some of her top aides.

CNN reported that in 2012, the US Ambassador to Kenya was criticized and eventually forced to resign because he used a private email account to communicate “unclassified but sensitive information.” But this case is different than Clinton’s because the ambassador was using a commercial email address (like Yahoo, Gmail, etc.), rather than an address hosted on a private server like Clinton’s.

Criminal Conspiracy?

Some like Judge Jeanine Pirro have suggested that Hilary should be indicted “at least” seven charges, including “mass criminal conspiracy” (criminal conspiracy being the only one she mentions explicitly).

To be convicted of criminal conspiracy, at least two people have to enter into a contract to commit some crime or perform some illegal act. These charges would, therefore, have to be predicated on the act being determined to be illegal by some other law.

Some Other Law: #1

Discussion of the legality of Clinton’s actions has focused around two such laws. The first, and most important, regulates “unauthorized removal or retention of classified documents or material.” It reads as follows:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

This would be hard to prove, especially because the documents in question were not classified at the time at which they were held on Clinton’s email servers, and because as secretary of state it seems clear that Clinton would have the authority to possess those documents even if they were classified.

On the other hand, it seems totally reasonable for a secretary of state with the political resume of Hillary Clinton should be able to identify classified information based on its content. And some of the stuff in her emails — like the true names of CIA officers in foreign nations, including those under non-official cover — seems like information that one of our nation’s top leaders shouldn’t need a label to know that it’s classified.

Some Other Law: #2

The other law in question might seem at first glance to provide for an easier prosecution, regulates “gather, transmitting, or losing defense information”, reads as follows:

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.

Prosecuting Clinton under this law may appear easier, because it only requires that the information in question relate to national defense, rather than requiring it specifically to be classified, like the other law does.

However, as Abrams notes in his piece, a 1941 supreme court decision made it clear that this law only applies in cases in which there is intent to injure the US (which is out of the question in the case under consideration) or in cases of gross negligence. Gross negligence is defined in legal terms as a “lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence, and can affect the amount of damages.”

At best, Clinton displayed “an absence of attention or care” (the legal definition of “inadvertence”).

Still — internet and emails didn’t exist in the 1940’s. There really isn’t a precedent to what’s happening now, which makes it very difficult to bring accusations with historical clout.

Conclusion: The Investigation Needs To Wrap Up

At this point, experts pretty much agree that what Clinton did was not illegal (keeping in mind the distinction we made between illegal and wrong, or illegal and in violation of procedures or rules). Even a team of legal experts put together by Fox news agreed that she probably did nothing “illegal.”

A better question, then, would be whether what she did was unwise, whether it violated public rights, and whether it put anyone at risk. Did she do anything wrong?

There is far less consensus with respect to this question. Why the private server? That’s something that has to be done consciously, unlike using a commercial email, which is an act of negligence. The simple answer is that Clinton wanted more control over her emails and email records, and those of her staff. Is this something the American public should be wary of?

From one angle, it seems like she’s hiding something (regardless of whether the documents in her email server were classified or not) — but from another angle, shouldn’t she be allowed to have this sort of control, precisely to avert the kind of situation we’re seeing now, in which a republican-led committee is overseeing the release of her emails to the public? That’s her argument, at least.

Its a difficult question, especially when Clinton is hardly the first high-up government official to have used a non-official email address to conduct official business, and she would definitely be the first one to be indicted in court for it. For political reasons, such an indictment might come; however, it seems clear that any prosecution will find little strictly legal ground to stand on. Its also safe to say that Clinton’s legal team will be a formidable force.

At Turner Law Offices, P.C., our team of attorneys has over twenty years of experience working with clients in a number of areas of Tennessee law. We offer the quality of a big firm with a small firm feel — a far cry from what is probably a formidable Clintonite legal army in reserve, waiting to be called up in the case of an indictment. Call today, or go online to set up free initial consultation and meet with a skilled lawyer who’s ready and waiting to bring you the results you deserve.

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