We have become familiar with the three primary stages of Clintonism in response to a scandal: 1) deny that there is a problem, and blame Republicans for creating one out of thin air; 2) once you realize that there is actually a problem, say that it is no big deal, and blame Republicans for making it into a big deal; and 3) once you realize it’s kind of a big deal, deny wrongdoing and blame Republicans for trying to do harm to the country. This strategy has succeeded in the past. But that part of the Clinton political playbook is particularly ill-suited to the current controversy involving Hillary Clinton, whose wounds are not merely self-inflicted (after all, so were some of her husband’s), but also whose actions raise real questions of federal criminal law and have drawn substantial criticism from those not on the partisan political Right.
So, did Secretary Clinton commit a federal crime? Others have suggested that she did, or likely did; some refuse to take on the issue. Former Attorney General Michael Mukasey (for whom I worked, and for whom I have great respect) had this excellent piece in the WSJ this weekend, detailing the potential criminal case against Secretary Clinton (though he does not go so far as to say she is guilty of a crime). As with many other stories at this stage of development, my own view is that we simply do not know enough to say whether she has committed a federal crime. I need to know more, although I know what I am looking for. But even if she did not commit a crime, or even if one cannot be proven beyond a reasonable doubt, the damage that her own actions have done to her, her campaign, and any subsequent presidency of hers could be substantial. It is possible that voters and Democratic Party operatives are catching on to that. General Mukasey’s piece also makes that point well.
Although there may be other criminal statutes at issue, at this point my own eye is on just a few, in particular. They are 18 U.S.C. section 2071 and 18 U.S.C. sections 793(d) and (f), and 18 U.S.C. section 798. Others are detailed in the Mukasey piece and in Kent Schiedegger’s piece at C&C (in which he, too, details a potential violation of 18 U.S.C. section 1924). Set aside, for now, whether her actions fit those statutes. For the moment, my concern as someone who worked on the prosecution side is whether she acted with the requisite mens rea. This could be especially problematic where the statute requires that she act “willfully.” In federal criminal law, that means that she intentionally violated a known legal duty. Other possibly applicable statutes require proof that she acted “knowingly,” meaning that she was aware of the attendant circumstances surrounding her conduct.
So regardless of which mens rea term applies, her mental culpability will be an important factor in assessing her potential guilt. Notice, then, how Secretary Clinton’s responses have evolved from “there was no classified material” (March 2015) to there was no material “marked as classified.” (July 2015)(emphasis added here). In the Clintonian world of lawyerly distinctions, that distinction matters.
But in the real world of federal criminal law, it might not matter at all. Some have suggested that the comparison to General David Petraeus’s prosecution is inapt, because in Petraeus’s case, the documents had been marked as classified. Of course, we do not yet know whether that is true with respect to any of the Clinton documents. But for purposes of applying the criminal law here, that distinction on its face is irrelevant. The question is not whether the document was marked as classified. The question is whether she knew the document contained classified material, marked or not. She was, after all, the Secretary of State, with regular access to documents that – one would think – she readily knows to contain classified material even if not marked as such. So while what she knew and when she knew it certainly matters for purposes of a criminal case, how the material was marked probably does not. General Mukasey, and Victoria Toensing and former Rep. Pete Hoekstra (who had a good joint piece in the NY Post covering a lot of the ground on classification), all eviscerate Secretary Clinton’s effort to make this distinction matter.
And so, section 2071 becomes important. That statute does not require that the record be classified. If she removed or destroyed certain work-related emails or other covered records, and did so “willfully and unlawfully,” then the statute applies. Again, while we may legitimately quibble about other elements of the crime here, my main interest is in whether she acted “willfully.” And consequently, section 793(f) also becomes important, because that statute does not require a high level of mental culpability at all – only “gross negligence” (not willfulness or even knowledge) in removing or destroying national defense information.
The FBI investigation will likely take months, and it may turn out that Secretary Clinton did not act criminally at all. Still, assuming Secretary Clinton did not commit a federal crime, or at least that she will not be prosecuted for one, her conduct nonetheless raises serious questions about her fitness for the office of the President. Even if her current explanations help her escape criminal liability, her actions still raise questions about her judgment and competence.
I have no special desire to see Hillary Clinton prosecuted, for this controversy or anything else (though I do think the controversy about donations to the Clinton Foundation while she was at State also raises potential criminal law issues for her, maybe even more serious ones). But I do have a special desire to see the institution of the presidency protected, as well as the integrity of federal prosecutorial authority. My previous post on this subject remains applicable. If the facts and the law demonstrate probable cause that she committed a crime, then she should be treated like any other potential defendant. Maybe that means deciding to prosecute her, maybe it means declining to do so. But the exercise of federal prosecutorial discretion here should not be guided by partisan or electoral considerations.