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United States News Title: Let us look at the law re: Clinton Emails Let us look at the law re: Clinton Emails by Cthulhu So....in the last day, we've heard that SOS Clinton used only private email accounts to conduct official business. It appears that Clinton aides have said that they have turned over some, but not all, of the email conducted on those accounts. I and others have expressed concern about the legality of SOS Clinton's activities. Clinton supporters have responded that the relevant regulations did not go into effect until 2014, and therefore, our legal concerns are inappropriate. Unfortunately, based on my reading of the statutes and regulations as they existed from October 2009 through 2012, I believe that the legal concerns are justified. My analysis below the fold, but, a few caveats: (1) I am looking at regulations that went into effect in October 2009. I am specifically responding to the claim -- offered repeatedly -- that there was no law regarding the handling of email in until 2014. That argument is simply wrong, as I will show below. (2) Ms. Clinton's liability is premised on the report that she has not turned over, to the proper authorities, government records she sent while serving as the SOS. If she turned over every record already then there is no liability. However, right now, based on what I've read, it appears that Clinton aides themselves are saying that not every record has been turned over. Doubtlessly, this will be the debate in the coming days. (3) Things I think may be important are marked by bold or at least asterisks. Also, as you will see, I try to point out things helpful to Mrs. Clinton, as well as problems I believe she will have justifying her actions. Let's start with the relevant statute, 44 USC Chapter 31, which is titled RECORDS MANAGEMENT BY FEDERAL AGENCIES. See Here. If you click on the first statute after the link, you can see the following text: Important Point 1 There has been an argument that HRC maybe did not know about her obligation to store documents. This position is meritless: HRC was the head of a Federal Agency, and she by law had an obligation to preserve records throughout her agency. She by law cannot claim ignorance of her requirements. 44 USC Chapter 31 is implemented through regulations. Those regulations came about in 2009. See 74 FR 51014, October 2, 2009. These were published in the CFR in the 2010 edition of the CFR, and that is what I will be citing. Ms. Clinton was secretary of state at the rime the regulations were adopted and, by law, she was expected to have knowledge of them and implement them per 44 USC Chapter 31. Important Point 2 Some have argued that other Secretaries of State have used personal email and not archived it. Since the regulations regarding use of personal email arguably were not clear until October 2, 2009, claims about legal violations by prior secretaries of state seem to have no merit. Important Point 3 Since the regulations were not in effect until October 2, 2009, this means that Mrs. Clinton cannot be criticized for failing to preserve emails prior to that date. Anyone who says that Mrs. Clinton came into office intending to violate the regulations by setting up a private email account is wrong. OK, so what do we know? We know that Mrs. Clinton had some records of the State Department, she kept them on her personal server. Well, the good news is that it was perfectly legal in 2010 for Mrs. Clinton to use personal email to conduct Department of State business. The bad news, however, is that she failed to do what was required of her -- she failed to put in place regulations to ensure that her documents were recorded on State Department Servers. The 2010 regs say: (a) Agencies must issue instructions to staff on the following retention and management requirements for electronic mail records: (1) The names of sender and all addressee(s) and date the message was sent must be preserved for each electronic mail record in order for the context of the message to be understood. The agency may determine that other metadata is needed to meet agency business needs, e.g., receipt information. (2) Attachments to electronic mail messages that are an integral part of the record must be preserved as part of the electronic mail record or linked to the electronic mail record with other related records. (3) If the electronic mail system identifies users by codes or nicknames or identifies addressees only by the name of a distribution list, retain the intelligent or full names on directories or distributions lists to ensure identification of the sender and addressee(s) of messages that are records. ... (b) Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system. Important Point 4 This is where the rubber meets the road. SOS Clinton had an obligation to have the State Department set up a protocol to ensure that all her federal records were transferred to the State Department system. She didn't do that. Consequently, she kept at least 55,000 records on her personal server that should have been turned over. This was a violation of the law. So what, you say? I mean, let's assume that she has turned over each and every record that was in her possession on her personal server now, in 2014. No harm, no foul, right? Wrong. Under 36 CFR 1236, even the accidental removal of documents from the possession of the state department is considered a crime: § 1230.12 What are the penalties for unlawful or accidental removal, defacing, alteration, or destruction of records? The penalties for the unlawful or accidental removal, defacing, alteration, or destruction of Federal records or the attempt to do so, include a fine, imprisonment, or both (18 U.S.C. 641 and 2071). And 18 U.S.C. 2071 says: Important Point 5 And thus, the worry. SOS Clinton, when she left office, failed to turn over official records of the United States for almost 2 years. We know this because she now has, belatedly, turned over 55,000 pages of records to the State Department. Assume that the failure to turn over the documents was an accident -- doesn't matter, per the regs, she is still subject to criminal prosecution, and 18 USC 641 is broad enough to encompass even accidental retention. Worse still, it was unlawful for her to remove the documents from the state department or to "conceal" them on her server and not turn them over. She could be arrested, forfeit office, and be disqualified from holding any office under the United States....forever.* So, that is my legal analysis. I leave it to the audience to tell me how wrong I am....but please, everyone, stop pretending that failing to turn over records when she left office was not a big deal for HRC.
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#1. To: nolu chan (#0)
(Edited)
The issue clearly supports the failure of a public officer to perform within the bounds of established guidelines, regulations and statutory laws. She therefore did not act responsibly towards her legal requirements. But, as the day wears on "What does it matter?"
#2. To: Pridie.Nones, All (#1)
'Zactly. The MSM has already annointed her POTUS in waiting. I have a bet with my wife that Billary will get 60% or better of the women vote in 2016 - my wife thinks not but agrees that she will get well over 50%. Criminals are running the country. And we keep on electing the same ones over and over again. We deserve what we are getting. The enemy indeed is us.
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