A simple Google search turns up numerous articles on the pending FBI investigation into Hillary Clinton’s private email account and server. Reflecting an election season marked by harsh and exaggerated rhetoric, they typically swing between forceful speculation that an indictment is a foregone conclusion to strident argument that the whole affair is a trumped-up red herring. As has become par for the course on the modern American political scene, it is exceedingly difficult to distill reasoned analysis of the issue from impurities wrought by fiery electoral passions.
In truth, the whole affair exists in a drab world of black and white and gray — the world of legal analysis populated by statutes, cases, reports, memoranda, and evidence. If the FBI is taking the investigation seriously (and we have every indication that it is), then it will make its recommendation based on a careful consideration of the facts and law. It stands to reason, then, that one ought to attempt to undertake a careful consideration in order to assess the probability of whether the investigation will culminate in a recommendation to indict.
I will try my hand at such an analysis here. Before proceeding, I wish to make it clear that (1) I am not a criminal lawyer; and (2) I am not an expert in national security law. I am, however, a practicing civil litigator with over a decade of experience analyzing legal fact patterns covering a range of circumstances and statutes. I consider legal analysis to be a professional skill that becomes more refined with experience. And the better one becomes at legal analysis, the more accurately one is able to predict legal outcomes.
Also, I am an avowed Bernie Sanders supporter, and I help run a Super PAC that is endorsing Sanders. In assessing my analysis, these facts should also be noted, as it would seem Sanders has much to gain politically should an indictment be probable. That said, I will do my best to minimize the extent to which my political affiliation colors my reasoning. In other words, I will treat this exercise as if I were seeking to give sound and sober legal advice to a valued friend. I suspect most agree that a good attorney would be doing his or her friend a disservice by giving anything other than unvarnished, objective legal advice.
By the same token, I would be doing Sanders and his supporters no favors by propagating a falsely inflated assessment of the likelihood of indictment. I personally believe that the advisability of Sanders remaining in the race through the Democratic National Convention is directly proportional to the probability that Hillary Clinton will be indicted. Sanders’ only path at winning the nomination entails convincing a large chunk of the 712 Super Delegates to vote for him. Because 547 of the Super Delegates have already pledged support to Clinton, Sanders will have to make a compelling argument to them in order to gain their votes. Perhaps the most compelling argument potentially available to Sanders is the argument that he should be nominated in order to avoid nominating a candidate under federal indictment.
Thus, if I provide a falsely inflated prediction that Clinton will be indicted, then I will risk creating falsely high expectations among Sanders supporters that their candidate has a compelling case to make to the Super Delegates at the Convention. This will exaggerate the current disharmony between Clinton supporters and Sanders supporters, making it less likely that the Democratic Party would be able to unify around Clinton should she win the nomination. In such an event, I will have helped make it more likely that Trump will win in November. This would horrify me no end because I, like Bernie Sanders, believe that on her worst day, Clinton is “100 times better” than Trump.
As such, my own personal stakes in providing an objective and accurate analysis are quite high. I would be extremely horrified to know I had contributed in any way to the election of a President Trump in 2016.
Before getting to the analysis itself, let me offer a few words about why the issue is important. I was shocked by recent polls showing that as many as 71% of Democratic voters believe Clinton should keep running even if indicted. It seems practically self-evident to me that having its presidential nominee under indictment would be an utter travesty for the Democratic Party. That said, assuming it is indeed true that at least some of my fellow Democrats must be persuaded that such a scenario would be terrible, allow me to offer this: Let us assume that Clinton, while under indictment, is still able to muster enough political acumen to defeat Donald Trump in the general election. (I do not believe this an obvious assumption at all, but let’s just assume to simplify the argument). Now picture the galactically hideous spectacle of a Republican led-House of Representatives voting to adopt articles of impeachment against Hillary Clinton just as soon as she is inaugurated into office. (If you don’t believe a federal officer may be impeached based on his or her conduct prior to taking office, please review the impeachments of Judge Robert W. Archibald and Judge G. Thomas Porteous).
According to most reports, as far as the FBI investigation is concerned, there are only two statutory provisions in play: (1) 18 U.S.C. s. 1924; and (2) 18 U.S.C. s. 793(f). In the interest of brevity (as well as maintaining a presumption in favor of Clinton), I will focus only on the latter.
The pertinent text of 18 U.S.C. s. 793(f), a sub-provision of the section entitled “Gathering, transmitting or losing defense information,” reads:
“(f) 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, . . .
Shall be fined under this title or imprisoned not more than ten years, or both.”
My first observation is that the statute has a broad scope. Notably, it pertains to documents (and the like) “relating to the national defense,” thereby eliding the entire debate over whether any of Clinton’s emails were classified at the time she sent or received them. As it turns out, the decision to focus solely on s. 793(f) allows us to disregard an entire line of defense arguing that Clinton should not be indicted due to uncertainties regarding the classified status of her emails.
My second observation is that from the prosecution’s point of view, the statute requires a relatively low class of mens rea: “through gross negligence” as opposed to “knowingly” or “purposefully.” While it has been suggested that “gross negligence” is a “nebulous” term, the two definitions offered by my copy of Black’s Law Dictionary appear rather straightforward: (1) “A lack of slight diligence or care”; or (2) “A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party, who may typically recover exemplary damages.”
Lining up the known facts with the relevant statutory language is straightforward as well. Hillary Clinton’s emails, during her tenure as Secretary of State, are undeniably documents related to “the national defense.” There are thus two key questions to answer: (1) when Clinton used a private email account based on a private server in her home to send and receive emails, were her emails thereby “removed from [their] proper place of custody”; and (2) if so, did this occur through Clinton’s “gross negligence”? If there is probable cause to answer “yes” to both questions, then an indictment is warranted.
So what are the facts? The best source to date is the Report released on May 25 by the State Department Office of Inspector General.
The Report states:
“Secretary Clinton employed a personal email system to conduct business during her tenure in the United States Senate and her 2008 Presidential campaign. She continued to use personal email throughout her term as Secretary, relying on an account maintained on a private server, predominantly through mobile devices. Throughout Secretary Clinton’s tenure, the server was located in her New York residence.”
The Report also indicates there is “no evidence that the Secretary requested or obtained guidance or approval to conduct official business via a personal email account on her private server.” It states that Secretary Clinton was under an obligation to “discuss using her personal email account to conduct official businesses with” the Chief Information Officer of the State Department as well as the Assistant Secretary for Diplomatic Security. The Report also states that had Clinton sought the required approval, it would have been denied due existing State Department guidelines protecting against security risks.
As far as Question No. 1 goes (Were Clinton’s emails removed from their proper of custody?), there is clear probable cause to answer “yes.” When Clinton’s emails were stored on an unapproved private email server in her home, they were removed from their proper place of custody per the guidelines and obligations governing Clinton as Secretary of State.
That leaves Question No. 2: Did the removal of Clinton’s emails occur because of her gross negligence? For this question, the Report has several relevant findings. According to Clinton’s Chief of Staff, there was never a consultation regarding her use of a private email account and server. That means no lawyers (including private counsel and the State Department’s general counsel) — or anyone else, for that matter — were consulted regarding the appropriateness of Clinton’s email system. The Report also notes that Clinton’s Deputy Chief of Staff expressly rejected a proposal from other State Department officers to furnish Clinton with a State Department Blackberry and email address.
The Report’s findings suggest clear probable cause that Clinton acted with gross negligence. It seems that, at a minimum, Clinton and her staff ought to have consulted with someone — perhaps not necessarily a lawyer, but someone — before using the private email and server, and prior to rejecting the proposal, from other State Department officers, to receive a State Department Blackberry and email address. The failure to do so embodies a lack of even slight diligence or care on Clinton’s part. The situation might be different if Clinton had consulted someone and received bad advice — then it could be readily established that the removal of Clinton’s emails from their proper place of custody was due to ordinary, not gross, negligence. But to fail to seek any guidance on the issue would seem to fit the very definition of gross negligence.
While the statutory language and known facts seem to present a rather clear-cut case to indict, this should not be the end of the analysis. Thorough consideration of any legal question also requires an examination of what relevant case law there happens to be.
According to my own research, there is not much. References to 18 U.S.C. s. 793(f) in reported decisions are few and far between. I did find some items of note, however. First, in a 1992 opinion (U.S. v. McGuinness, 35 M.J. 149), the U.S. Court of Military Justice expressly stated that the statute does not require the defendant to have acted with an intention to harm the United States or to benefit a foreign nation. Besides supporting the use of a standard, dictionary meaning of “gross negligence,” this holding eviscerates the oft-heard argument that Clinton should not be indicted on the basis of lack of “intent” or “motive.”
Also worthy of attention are the circumstances of reported successful prosecutions under s. 793(f). These include:
- the prosecution of an Air Force sergeant for accidentally taking two “top-secret” messages with him on a trip to Alaska in 1979, putting them in a drawer for safekeeping and then forgetting about them. He was sentenced to a bad-conduct discharge and five months in prison;
- the prosecution of another Air Force sergeant in 1983 for throwing classified material into a dumpster outside his home instead of destroying it at work. He pleaded guilty, although I was unable to find the nature of his punishment;
- the prosecution of a Navy seaman in 1989 for stuffing a classified document into his pants and and walking out of the building. He was sentenced to four years in prison and dishonorably discharged.
- the prosecution of a Marine sergeant for inadvertently packing classified documents into his gym bag in 1989 while cleaning out his desk in preparation for a job transfer. He was sentenced to 10 months in prison, dishonorably discharged, and had to forfeit $14,400 in pay.
While these cases would seem to share little in common with the situation presented by Clinton’s email account and server, they all feature the careless handling of sensitive documents by relatively low-level military personnel. None of them alter my conclusion that the text of the statute and known facts present a clear-cut case for indicting Clinton.
Of course, even if an indictment can be brought under the facts and law, it doesn’t mean that it will or should be. The essence of prosecutorial discretion, as the concept has developed under American law, is that prosecutors possess practically unbridled discretion to decide whether or not to bring criminal charges, and what charges to bring, in cases where probable cause exists. In any given case, charges may be warranted under the facts and the law, but other factors may weigh against actually bringing them — and the final decision rests with the prosecutor and the prosecutor alone.
Accordingly, the best arguments against indicting Clinton are really appeals to the exercise of prosecutorial discretion and not based on strict legal analysis of the statutes and known facts. Thus, when we hear arguments based on the assessment that Clinton’s conduct posed no danger to national security, they are best understood as a defense rooted in prosecutorial discretion, given that actual danger to national security is not an element of the crime. Similarly, when Clinton’s apology for her “mistake” in using a private email server is cited as a reason not to bring charges, this too is a call to apply prosecutorial discretion as an exercise of mercy or forgiveness.
But if Clinton’s best (and possibly only colorable) argument depends on prosecutorial discretion, then she might find herself in an intractable double bind. On the one hand, if she is indicted, then her candidacy will be severely damaged. But if she escapes indictment, and the prevailing narrative is that it was due to prosecutorial discretion, then her candidacy might be severely damaged as well. One will need only point to the litany of low-level military men prosecuted and punished rather harshly under the statute to make the point that the former First Lady, Senator, Secretary of State, and multimillionaire has been treated rather favorably under the law. Given that Bernie Sanders and Donald Trump have both built campaigns, in large part, on the general premise that our government is corrupt and has failed the people it should serve, this point will make it very difficult for their supporters to embrace Clinton.
In the end, Hillary Clinton may be a tragic victim not just of her own mistakes, but of the political Zeitgeist. It remains to be seen whether the country will be a victim as well.
Jared H. Beck has a B.A. from Harvard College, an M.A. from the Harvard Graduate School of Arts and Sciences, and a J.D. from Harvard Law School, where he was an editor of the Harvard Law Review. In addition to serving as co-founders and co-directors of JamPAC, he and his wife, Elizabeth, own and operate a law firm, Beck & Lee, in Miami. Beck & Lee dedicated to the practice of business, personal injury and real estate litigation, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. Beck can be reached at 305-234-2060 or email@example.com.