What are the legal issues with Hillary Clinton’s email controversy?

February 2, 2016

Hillary Clinton

REUTERS/BRIAN SNYDER

Yesterday and this morning, the Iowa Caucus dominated headlines relating to Hillary Clinton – which was surely a welcome relief for her and her presidential campaign after Friday.

In case you weren’t paying attention to the news at the end of last week, it wasn’t a particularly good day for the Clinton campaign: The U.S. State Department conceded that at least 22 emails sent through Clinton’s private server were marked as “Top Secret” – the highest level of classification used to indicate the government’s most sensitive secrets.

Now, ever since Clinton’s email controversy became public knowledge in March 2015, it’s been difficult to look at the issue free from partisan clamor.  So what happened exactly?

The official story right now is that Hillary Clinton exclusively used her family’s private email server for her official email communications while serving as U.S. Secretary of State, instead of using the State Department’s official email accounts on government servers.

In addition, sometime after October 28, 2015 (when the State Department requested Clinton turn over her correspondences related to her job as secretary of state), Clinton deleted almost 32,000 emails from the server.  Clinton asserts that these emails were personal and private, relating mostly to “planning Chelsea’s wedding or [her] mother’s funeral arrangements, condolence notes to friends as well as yoga routines, family vacations.”

Clinton flatly asserts that she has broken no laws, but to which laws is Clinton referring?

Although there are a number of federal laws that may have been violated by Clinton’s alleged actions in not only using her private family server to conduct government business, but also in potentially deleting emails containing information belonging to the U.S. government, the three most significant here are:

  1. 18 U.S.C. § 793 – Gathering, transmitting or losing defense information;
  2. 18 U.S.C. § 798 – Disclosure of classified information; and
  3. 18 U.S.C. § 1924 – Unauthorized removal and retention of classified documents or material.

According to the Department of Justice,

Section 793 applies to activities such as gathering, transmitting to an unauthorized person, or losing, information pertaining to the national defense, and to conspiracies to commit such offenses.

Section 798 applies to the willful communication of classified information concerning codes or communications intelligence, or related materials, to an unauthorized person.

Finally, Section 1924 penalizes the mishandling of classified information – without any regard to whether the accused intended or attempted to furnish the information to an unauthorized party.

Sections 793 and 798 are both felonies and carry a maximum sentence of ten years of confinement, while section 1924, a misdemeanor, carries a maximum sentence of one year.

But what would it take for Clinton to get indicted under any of these laws?

Assuming no other political factors, Clinton could easily see indictment under any or all three of the above.

Under all three laws, Clinton may be indicted if there was evidence that Clinton sent, received, or retained emails that contained Top Secret material using her private server – simply because the transmission and storage of this information was itself insecure and may have exposed it to hostile foreign parties.

At this point, you may be asking why Clinton hasn’t already been indicted, since it was just last Friday that the State Department confirmed that there were indeed several “Top Secret” emails on Clinton’s private server.  The answer comes from State Department spokesman John Kirby, who said on Friday that “[t]hese documents were not marked classified at the time that they were sent.”

Indeed, it may be the case that these particular 22 emails weren’t marked as “classified” when Clinton handled them.  However, one can only ponder the plausibility that none of the tens of thousands of emails sent and received by Clinton during her tenure as Secretary of State were marked as “classified” in any way when she exercised custody over them.

Thus, if the accounts reported by news outlets are correct, and Clinton exclusively used her family’s private email server for official Secretary of State matters, it seems very possible that Clinton handled at least one email that was marked as “classified” at the time, and thus would have violated one or more of the three laws in question.

Will she get indicted and see her presidential ambitions dashed?  Unlikely.

As is often the case with politicians on both sides of the aisle, there could be any number of other involved parties that may shoulder a larger share of the blame than the politician him- or herself.  There will likely be no exception in Clinton’s case, and the added complication of a State Department and a Justice Department currently under an administration of the same political party as Clinton – especially when Clinton is widely regarded as the party favorite for the nomination for president – makes Clinton’s indictment that much more unlikely.

But anything could happen, and all we can do for now is wait and see.