We now know for certain what I argued was a virtual certainty back in March: Hillary Clinton and her top aides illegally maintained and communicated classified information on Mrs. Clinton’s private e-mail system. One pressing question now is: Has the government – preferably the Justice Department and the FBI – taken possession of the Clinton private server? If not, why not?
Recall that rather than providing the government with her server(s) or, at the very least, with a readily searchable electronic download of all government-related information on her private system, Mrs. Clinton and her lawyers provided the government with “hard” (paper) copies of e-mails she unilaterally selected and decided to provide to the government. What was inevitable has now been confirmed: Those e-mails contained classified information, almost certainly lots of it.
Mrs. Clinton also claims to have destroyed over 30,000 e-mails that have never been examined for their content by the government – because, according to her, they had nothing to do with government business. In a normal criminal investigation, agents and prosecutors are never satisfied with the subject’s say-so about whether evidence still exists; they insist on checking for themselves.
The Clinton camp is engaged in its usual obfuscations, claiming that Mrs. Clinton has done nothing wrong, much less committed any crimes, because the information in question was not classified at the time she communicated it – i.e., it was only later classified by the government. As I have already explained, this is a specious contention: If she knew the information she was communicating in an unsecure medium was secret national defense information, she was in violation of the law even if the government did not get around to stamping the actual e-mails “classified” until some later time. But let’s put that aside for the moment.
Mrs. Clinton finally provided the government with paper copies of what is (or, she claims, was) on her server(s). Given that there is classified information in those paper copies, there necessarily has to have been – or, more likely, still is – classified information on the server(s). Regardless of whether you buy Mrs. Clinton’s argument that the information was not classified at the time she sent the e-mails, there is no denying that (a) it is classified now, and (b) she still has the server(s).
The transfer of classified information to a private server system, the communication of classified information through a private server system, and the storage of classified information on a private server system can all be felony violations of the Espionage Act (section 792 of the federal penal code). For example, a person may be sentenced to up to ten years in prison if she:
Was lawfully entrusted with classified information and then “communicates, delivers, [or] transmits” it to any person not entitled to have it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it;
Has unauthorized possession of classified information then “communicates, delivers, [or] transmits” it to any person not entitled to have it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it [note that this “unauthorized possession” provision applies to Mrs. Clinton because, even though she was authorized to possess classified information as secretary of state, her possession of it on a private server was unauthorized];
Was lawfully entrusted with classified information and then “through gross negligence permits the [classified information] to be removed from its proper place of custody or delivered to anyone in violation of [her] trust, or to be lost, stolen, abstracted, or destroyed [if Mrs. Clinton had classified information on her server and lost or destroyed it, that could be a crime]; or
Was lawfully entrusted with classified information and, knowing that the classified information was then illegally removed from its proper place of custody or delivered to anyone in violation of [her] trust, and that it was then lost, stolen, abstracted, or destroyed . . . fails to make prompt report of such loss, theft, abstraction, or destruction to her superior officer.
Mrs. Clinton, through her counsel, has claimed that her server system was “wiped clean.” That is a highly suspect assertion. Unless and until there is a thorough, competent forensic examination of the server(s), we cannot know what is or is not still retrievable.
From the perspective of the criminal law, however, this is beside the point. In the very likely event that a crime was committed in the transfer of classified information to Mrs. Clinton’s server(s), and in the storage of that classified information thereon, the crime was complete long ago. Consequently, the server system is undeniably relevant to a criminal investigation regardless of whether the classified information that is/was on it is still retrievable:
(a) If classified information is still on it, it is obviously evidence of a potential crime;
(b) If the server has been erased (or an attempt has been made to erase it), that could also be evidence of a crime, namely: (i) physical evidence corroborating that classified information was on the server system at one time; (ii) consciousness-of-guilt evidence demonstrating that Mrs. Clinton knew it was a violation of law to have classified information on her server; and (iii) evidence supporting a potential obstruction-of-justice charge.
Federal criminal investigators are thus derelict if they have not already obtained possession of the Clinton server(s).
While Mrs. Clinton would obviously claim that the server(s) should not be seized because the system contains private information irrelevant to her government service and to any investigation, that is a problem of her own making and one that is common to many if not most criminal investigations. In those instances, the FBI generally seizes the entirety of the item in question, and then the subject of the investigation seeks (from the Justice Department or the court) the return of any information not relevant to the case. Usually, the property is not returned to the subject until after the investigation is concluded, but the subject will be provided with copies of information needed to conduct business, etc.
So, have the Justice Department and the FBI taken custody of Mrs. Clinton’s server(s)? After all, not only does it appear that serious offenses may have been committed; people have been prosecuted for less serious mishandling of classified information than appears to have happened here.
Has Congress asked this question?
A version of this piece previously appeared on National Review Online.