This week, fresh investigations (or inquiries; at least one set of them is not being dubbed an “investigation”) have reportedly been launched into both the Hillary Clinton email “matter” and the operations of the Clinton Foundation.
The “fresh look” at Hillary’s emails seems to be couched in slightly odd terms. We’ll get to that in a moment.
The renewed probe of the Clinton Foundation appears to be straightforward. Hillary’s not getting an “HQ special” with this one, if we go by John Solomon’s article at The Hill on 4 January 2018. The investigation is being done by FBI agents in Arkansas, where the Foundation was started. They are reported to have already interviewed at least one witness.
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The officials, who spoke only on condition of anonymity, said the probe is examining whether the Clintons promised or performed any policy favors in return for largesse to their charitable efforts or whether donors made commitments of donations in hopes of securing government outcomes.
The probe may also examine whether any tax-exempt assets were converted for personal or political use and whether the foundation complied with applicable tax laws, the officials said.
Again, straightforward. These are the things we would expect the FBI to be looking at, based on previous reporting about the Foundation’s peculiarly-timed activities, and its use of funds. Hold those thoughts.
On the Hillary emails, the Daily Beast report conveys this interesting information:
An ally of Attorney General Jeff Sessions who is familiar with the thinking at the Justice Department’s Washington headquarters described it as an effort to gather new details on how Clinton and her aides handled classified material. Officials’ questions include how much classified information was sent over Clinton’s server; who put that information into an unclassified environment, and how; and which investigators knew about these matters and when. The Sessions ally also said officials have questions about immunity agreements that Clinton aides may have made.
The first question would be of historical interest, to be sure.
Statute of limitations
But by itself, it’s not likely to result in any indictments. The reason: the statute of limitations is just about up on most of the infractions anyone could be charged with (including the likeliest and most straightforward one, “Unauthorized removal and retention of classified documents or material,” 18 USC 1942).* The general limitation for non-capital federal offenses, of the kind Hillary Clinton or Huma Abedin might have been indicted for in the matter of their emails, is five years.
Hillary resigned as secretary of state effective 1 February 2013, which will be five years ago 26 days from now. And most of the dates of her email-related infractions – and Huma’s – fell before that date. The FBI and DOJ were aware of them before the statute of limitations ran out, on at least some of the ones that occurred in or after 2010, but took no expeditious action.
The deletion of 33,000 Hillary emails, meanwhile, is supposed to have occurred in the fall of 2014 – date uncertain – according to Hillary herself. The statute of limitations on that still has a ways to go.
But it could be hard to prove at this point that her email deletion intentionally involved federal records, or records sought by federal agencies, which would be necessary for an indictment on an obstruction-of-justice or improper-handling-of-records count. (There are clues that the 2014 deletion was performed in the summer; see here for more on the IT worker who did it. But, again, with the data unrecoverable, proving the destruction crime probably isn’t feasible at this point.)
The second question – who put the information into an unclassified environment, and how – suggests a bit more. It seems to raise the specter of something beyond the “gross negligence” language famously debated in the summer of 2016. That language, from the Espionage Act (18 USC 793), was operative in James Comey’s assessment that Hillary’s conduct didn’t meet the requirement of the statute.
Looking into the matter in greater depth, including the involvement of other people, suggests DOJ perceiving the act of putting classified material in non-secure media in a different light. The statute of limitations would not have run out on something under 793 — if it could be proven.**
But consider again the other two objects of the “fresh look.” Which investigators (i.e., at the FBI or DOJ) knew about these matters, and when? And what are the answers to “questions” about the immunity agreements made with the witnesses?
That’s a significant part of what this fresh look is about, I think. There may not be a lot that can be done about Hillary or Huma at this point. They were both out of the State Department’s employ just about five years ago. It could be hard to prosecute Hillary (or anyone else) on the deletion of emails, even though the statute of limitations hasn’t run out.
But what’s been going on at Justice and the FBI is a different story. Most of it happened in the last three years, well within any statute of limitations timeframe. And it needs to be identified and dealt with – for both the sake of the Trump administration, and its ability to function, as well as that of the people and the nation’s future.
The Clinton Foundation
I asked you to hold the thoughts on the Clinton Foundation probe for a reason. There are two aspects of it: pay-for-play, and tax fraud (i.e., improper use of tax-exempt funds).
The statute of limitations factor comes into play again, of course. John Solomon points that out, at the very end of his article:
One challenge for any Clinton-era investigation is that the statute of limitations on most federal felonies is five years, and Clinton left office in early 2013.
That would apply to racketeering or bribery actions from Hillary’s tenure as secretary of state. For criminal violations of tax law (which may or may not relate to Hillary’s official actions as secretary of state), the baseline standard is six years after the filing of a false return.
But there is no statute of limitations on pursuing civil tax fraud. That means not only that Justice and IRS officials can consider lawsuits over activities prior to January 2012; it means they can require financial and other records going back as far as they need to.
Moreover, if investigators are looking into the use of funds by the Clinton Foundation, they may find other prosecutable irregularities from more recent years. Besides banking and financial violations, it’s not impossible that they may find the improper use of funds gained from racketeering during the Clinton tenure at State. They may actually find things more important than what Hillary could be prosecuted for; they may find adverse national security events that have yet to be uncovered.
And if they are looking into it all via district staffs, as in Arkansas, and not as an “HQ special” – with top officials seeking ways to suppress indictable information rather than deal with it – the outcome may be a different one from what James Comey and Loretta Lynch came up with in 2016.
* For general information, a sample of the non-disclosure oath signed for maintaining an individual’s clearance in a job that requires it is here. See paragraph 4 for the U.S. Code citations that charges may be brought under for violations of this oath.
** See John Ford from 2016 on why charges under 18 USC 793 – which has a statute of limitations of 10 years – are not likely, or for that matter proper. As regards precedent, I believe he reads this correctly; i.e., a charge under this statute requires mens rea involving the expectation that mishandling classified material will benefit a foreign power “relating to the national defense.”
It has to be noted that what we learned in 2017 regarding Comey’s opinion on Hillary and 793 doesn’t seem to have been about that point. What we learned was that Comey deliberately softened the language for expressing the gravity of what Hillary did, from “gross negligence” to “extreme carelessness.” That argues that simply avoiding the language of 793 was uppermost in his mind, rather than commenting on the lack of applicable mens rea in Hillary’s case.
Still, writing in 2016, Ford offered a plausible reason for Comey’s ultimate decision: that Hillary did not have the particular mens rea about her action and its relation to the national defense. Ford’s point that that’s the standard the federal judiciary has established in precedent is actually important, even if it wasn’t the main thing Comey was thinking about.
The lack of the specific mens rea doesn’t necessarily mean there would be no way to prosecute Hillary (or possibly someone else) under 793. But you’d have to find a prosecutor willing to take a different approach from the precedential cases. Ford implies it’s a bar he would not waste time trying to clear, since Hillary’s case would not fit the aspects of the successful cases from the past. In 2016, under Obama, with the Lynch Justice Department, he was probably right. Under a different administration? Is that what the Sessions Justice Department is shooting for? We’ll have to see.