Should Hillary Clinton be Indicted?

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( — February 25, 2016) –As the investigation into Hillary Clinton’s emails has continued to raise questions, many people are now wondering if she could be indicted. A recent Newswire Twitter poll actually found that 90 percent of respondents believe that she should be, and it appears that she could face indictment for several federal offenses. 

It is important to understand that an indictment simply means that a grand jury believes there is probable cause to believe that a person may have committed a crime. It is not a conviction. A U.S. Attorney would present evidence to the grand jury and then that body would either return an indictment or a no-true bill. An indictment requires that the prosecutor show that their is probable cause to believe the defendant committed an overt act that violates federal law. In Mrs. Clinton’s case, it appears she could potentially be indicted for around eight federal crimes.

Overt Acts That Could Lead to an Indictment

1. The Private Email Server

Clinton’s private email server and her using private email to both send and receive classified information could result in felony indictments under multiple sections of the U.S. Code. Additionally, retention of classified information is itself a federal felony. The relevant provisions are U.S.C. §§ 793, 798, 1924, 2701(b) and 641, each of which can be pled as separate offenses in an indictment.

U.S.C. § 793 makes it a felony offense punishable by up to 10 years in prison to 
gather, transmit or lose classified information. In Mrs. Clinton’s case, a federal prosecutor would likely file a charge against her for retaining and transmitting such information as well as against the aides who gathered and transmitted the information to her via her private email and server.

U.S.C. § 798 makes it a felony offense punishable by 10 years in prison to disclose classified information. Again, given the information that is known about Hillary Clinton’s communication with aides who didn’t have proper clearances, it is likely both she and others could face separate counts under this law as well.

U.S.C. § 1924 criminalizes the unauthorized retention and removal of classified information. As a misdemeanor, this might be offered as a plea if Mrs. Clinton or her aides agree to cooperate with the government after an indictment on the felony charges. The likely result of a plea to this level of charge is a probationary sentence and a fine.

U.S.C. § 2701(b) makes it a felony punishable by 3 years in prison to remove classified information and conceal the fact that the information was removed. If the prosecutor has evidence that classified information was removed and then held by Clinton in a manner that concealed that fact from the government, she could be charged with this offense if the copy she held was the only copy of the document.

U.S.C. § 641 makes it a misdemeanor to take classified documents and convert them to a person’s own exclusive use. This type of charge would be more likely to be offered as a plea in the event that the prosecutor felt that Mrs. Clinton or her aides had cooperated. The likely result for a conviction under this section would be a probationary sentence and a fine.

2. State Department Briefing and Affidavit of Understanding

As reported by the Washington Free Beacon, Hillary Clinton signed Special Form 312 on Jan. 22, 2009, shortly after she started working at the State Department. This form is a briefing and non-disclosure agreement that all employees of the State Department are required to sign when they start working. In this document, the criminal penalties for disclosure of and accessing sensitive classified information without authorization are clearly outlined and reference U.S.C. § 793 and U.S.C. § 1924. This means that Clinton was well aware that what she was doing was a violation of the law before she even set up the server in her home, but she still did it anyway. It also negates any possible defense of ignorance she might raise. 

3. Exit Interview Problems

When State Department employees leave the department, all are supposed to sign Form OF-109, which is a certification that the departing employee has left all records they held with the State Department when they left. Strangely, Hillary Clinton was not required to sign this form by the department, something that was pointed out by the National Review and multiple media outlets in March of 2015. 

4. Destruction of Emails

Whether she deleted emails or wiped her server, the destruction of her emails poses yet another series of problems for Mrs. Clinton. 

18 U.S. Code § 1505 makes it a felony punishable by up to five years in prison to destroy, conceal or withhold information that a committee is rightfully seeking. While emails have been since turned over, Mrs. Clinton has admitted deleting some that she deemed to be personal, but no one else was given the ability to make that determination first. There is no way to know what she deleted.

18 U.S. Code § 1519 similarly makes it a felony to destroy or conceal records in federal investigation. If a prosecutor could prove that Mrs. Clinton did so when her server was wiped and her emails deleted, she could face a felony punishable by up to 20 years for doing so.

5. Hiring a Private IT Company to Administer Her Server

Hiring someone to administer and maintain the private server she set up in her home is also problematic for Mrs. Clinton on multiple levels. The company would not have had clearance to handle the information contained on or passing through her server, and she could face prosecution for fraud against the States under U.S.C. § 1031, wire fraud under U.S.C. § 1343 and conspiring to defraud under U.S.C. § 371. This is because the IT professional, in their role of maintaining a server for the Secretary of State, would be considered to be a public servant whom Mrs. Clinton knew was working in that role and that the government was not reimbursed for what was paid to them.

5. The Clinton Foundation and the Dual Role of Huma Abedin

Huma Abedin, Clinton’s longtime aide, worked for the State Department, the Clinton Foundation and a private consulting firm all at the same time, something that is being investigated as potentially violating conflict of interest rules. The Clinton Foundation recently received subpoenas regarding Ms. Abedin, according to the New York Post. There are questions about whether Ms. Abedin performed favors for private individuals outside of the State Department while serving in the multiple positions, as well as whether the foundation itself was functioning as Mrs. Clinton’s alter ego rather than as a separate charitable organization.

6. Contributions by Foreign Nationals

Several foreign contributions to the Clinton Foundation have raised eyebrows, including one from Algeria in 2010 that violated rules put in place by the Obama Administration for foreign donations. This donation was ostensibly to help Haiti following its devastating earthquake. Since then, the foundation has solicited investors, including Carlos Slim, to purchase large tracts of land in Haiti and then sell them off. These kinds of activities could be in violation of Article I, Section 9 of the US Constitution because of foreign countries and multinationals possibly purchasing influence in both Haiti and the U.S. by bribing the Clinton Foundation through disguised charitable gifts.

U.S. prosecutors seek indictments from grand juries when they believe they have probable cause that a person has committed a crime. If the myriad of news reports are to be believed, it appears that Mrs. Clinton probably should be indicted for multiple offenses. The ones detailed here are an incomplete list, and there are most likely additional offenses for which she could face indictment. The question remains whether the Department of Justice will decide to seek an indictment or if it will instead deem her too big to prosecute.