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Clinton Email Scandal: Thoughtless Mistake or Criminal Act?

19-Oct-2015

Democratic presidential candidate Hillary Clinton has been under fire for using her home email server to send and receive information which has since been designated as confidential. While Clinton acknowledges that it was a mistake to use her home email server to conduct government business, she scoffs at those who call her actions criminal.

And there is not shortage of opponents who say that Clinton should be criminally charged for potentially exposing government secrets through an unsecured server vulnerable to attack. The former first lady's critics compare this transfer of now-confidential information over an unsecured server to other links of top secret information, notably the David Petraeus and John Deutch cases.

David Petraeus is a former CIA Director and 4-star general who pleaded guilty to a misdemeanor after admitting to giving journals containing highly classified and top secret information to his biographer--and mistress--Paula Broadwell.

John Deutch, another former CIA chief, agreed to plead guilty to a misdemeanor charge of mishandling government secrets after he took top secret files home, storing some of them on an internet-connected computer. Interestingly enough, Deutch was pardoned by then-President Bill Clinton before the Justice Department finished filing the case.

So it seems as if Hillary Clinton should have known better. If one government official could be criminally charged for storing files on an unsecured server, then shouldn't another be charged for transmitting information via email over an unsecured server?

Legal experts say that in Hillary Clinton's case, however, the answer is no. The files that she sent via her home email were not, at the time she sent them, designated as classified or top secret. It is only since their transmission that the information has been classified.

Government secrecy law experts say that in order to prove a crime was committed, there must be evidence that Clinton either knowingly sent classified information, or that she sent information that was so highly sensitive that she should have reasonably known it was classified. But so far, it does not appear that any recovered email fits that description.

For those seeking criminal prosecution, unless such an email is recovered, there is little to no chance that Hillary Clinton will face criminal charges for using her personal email to conduct government business. However, there is still another potential way she could face charges: destruction of official records.

Under the Federal Records Act, it is a crime to destroy official records. Reports indicate that Hillary Clinton ordered 32,000 "personal" emails be deleted from the server, and the server be wiped to render them unretrievable. If these were all indeed personal emails, then there is no crime; but if anyone saved a copy of one of those emails, and it contains government information or business, then Clinton could face charges for destruction of those records. And even one government email among the 32,000 destroyed personal emails would place the whole purge under suspicion.  



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