NYT, MSNBC, CNN: Hillary broke the law
From Politico:

Quote:Hillary’s Email Defense Is Laughable

I should know—I ran FOIA for the U.S. government.

By DAN METCALFE

March 16, 2015

I thought when I retired from the Justice Department in 2007, I was done with records-related scandals. By that point, I had spent more than a quarter-century as founding director of the Justice Department’s Office of Information and Privacy, effectively serving as the federal government’s chief information-disclosure “guru.” In that position, I had weathered many a Clinton records scandal during the 1990s—about two dozen, all told, including two that amazingly have still never become public—and I thought I had seen the last of them. At the very least, I thought I had become immune to being shocked by anything in that vein.

It turns out I was wrong on both counts.

We now have former Secretary of State Hillary Clinton being revealed as someone who took the unprecedented step of arranging to use her personal email account for all of her official email communications. What’s more, she decided to use her own email server equipment, rather than a commercial Internet service provider, so that the records of her email account would reside solely within her personal control at home. And if that were not enough, she then proceeded blithely—though not uncharacteristically—to present herself to the public, at a press conference held on March 10, as if there were really nothing “wrong” about any of this at all.

Well, as the saying goes, “reality is not her friend.”

For anyone considering this sad tale carefully—including the media, members of Congress and the public at large, whether from “inside the Beltway” or not—some basic points of both law and reality should be borne in mind.

First, while it is accurate for Secretary Clinton to say that when she was in office there was not a flat, categorical prohibition on federal government officials ever using their personal email accounts for the conduct of official business, that’s a far different thing from saying (as she apparently would like to) that a government official could use his or her personal email account exclusively, for all official email communications, as she actually did. In fact, the Federal Records Act dictates otherwise.

That law, which applies to all federal agency employees who are not within the White House itself, requires the comprehensive documentation of the conduct of official business, and it has long done so by regulating the creation, maintenance, preservation and, ultimately, the disposition of agency records. When it comes to “modern-day” email communications, as compared to the paper memoranda of not so long ago, these communications now are themselves the very means of conducting official business, by definition.

To be sure, this cannot as a practical matter be absolute. When Obama administration officials came into office in 2009, the Federal Records Act certainly allowed room for the occasional use of a personal email account for official business where necessary—such as when a secretary of state understandably must deal with a crisis around the world in the middle of the night while an official email device might not be readily at hand. That just makes sense. But even then, in such an exceptional situation, the Federal Records Act’s documentation and preservation requirements still called upon that official (or a staff assistant) to forward any such email into the State Department’s official records system, where it would have been located otherwise.

This appears to be exactly what former Secretary of State Colin Powell did during his tenure, just as other high-level government officials may do (or are supposed to do) under such exceptional circumstances during their times in office. Notwithstanding Secretary Clinton’s sweeping claims to the contrary, there actually is no indication in any of the public discussions of this “scandal” that anyone other than she managed to do what she did (or didn’t) do as a federal official.

Second, the official availability of official email communications is not just a matter of concern for purposes of the Federal Records Act only. It also makes an enormous (and highly foreseeable) difference to the proper implementation of the Freedom of Information Act (known as the “FOIA” to its friends, a group that evidently does not include Secretary Clinton). That is because the starting point for handling a FOIA request is the search that an agency must conduct for all records responsive to that request’s particular specifications. So any FOIA request that requires an agency first to locate responsive email messages sent to or from that agency’s head, for instance, is necessarily dependent on those records being locatable in the first place. And an agency simply cannot do that properly for any emails (let alone all such emails) that have been created, and are maintained, entirely beyond the agency’s reach. Or, as it sometimes is said somewhat cynically in the FOIA community, “You can’t disclose what you can’t find.”

In this case, which is truly unprecedented, no matter what Secretary Clinton would have one believe, she managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it—perhaps forever. “Nice work if you can get it,” one might say, especially if your experience during your husband’s presidency gives you good reason (nay, even highly compelling motivation) to relegate unto yourself such control if at all possible.

Third, there is the compounding fact that Secretary Clinton did not merely use a personal email account; she used one that atypically operated solely through her own personal email server, which she evidently had installed in her home. This meant that, unlike the multitudes who use a Gmail account, for instance, she was able to keep her communications entirely “in house,” even more deeply within her personal control. No “cloud” for posterity, or chance of Google receiving a congressional subpoena—not for her. No potentially pesky “metadata” surrounding her communications or detailed server logs to complicate things. And absolutely no practical constraint on her ability to dispose of any official email of “hers,” for any reason, at any time, entirely on her own. Bluntly put, when this unique records regime was established, somebody was asleep at the switch, at either the State Department or the National Archives and Records Administration (which oversees compliance with the Federal Records Act)—or both.

Now, what Secretary Clinton would have one believe is that this is all just a matter of her choosing one available email option over another, that she really did nothing that her predecessors had not done before her and that she can be trusted to “have absolutely confidence” that what she did “fully complied with every rule that [she] was governed by.” In other words, the thrust of her March 10 press conference was: “Everything was fine, nothing to be seen here, so let’s all just move along.”

But having spent a quarter-century at the forefront of the government’s administration of the FOIA, including its transition to electronic records and its involvement in so many Clinton administration “scandals du jour,” I know full well that both what Secretary Clinton arranged to do and what she now has said about that are, to put it most charitably, not what either the law or anything close to candor requires. At a minimum, it was a blatant circumvention of the FOIA by someone who unquestionably knows better and an attempted verbal “cover” of the situation (if not “cover-up”) that is truly reminiscent of years past.

And I say that even as someone who, if she decides to run for president and is the Democratic nominee, will nevertheless vote for her next year.

Dan Metcalfe spent more than thirty years working at the U.S. Department of Justice, at which he served from 1981 to 2007 as director of the Office of Information and Privacy, where he was responsible for overseeing the implementation of the FOIA throughout the entire executive branch. He now teaches secrecy law at American University’s Washington College of Law.




Read more: http://www.politico.com/magazine/story/2...z3Ul2fIYql
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Another informative read:

Quote:March 18, 2015
Hillary committed obstruction of justice
By Wesley Clark, MD

Hillary Clinton, and her attorneys who have helped delete her e-mails, have committed the serious federal crime of obstruction of justice.

In an op-ed today at the Wall Street Journal (behind the paywall), legal professor Ronald D. Rotunda of Chapman University’s Fowler School of Law and the co-author, with John Nowak, of Treatise on Constitutional Law, mentions any action to destroy information that is subject to subpoena, or may even become subject to investigation in the future:

The law says that no one has to use email, but it is a crime (18 U.S.C. section 1519) to destroy even one message to prevent it from being subpoenaed. Prosecutors charging someone with obstruction don’t even have to establish that any investigation was pending or under way when the deletion took place.

Professor Rotunda explains also that records such as Hillary's e-mails, even those she asserts were "personal," could not be deleted or destroyed, even if nobody had yet asked for them – although numerous FOIA requests had been made to the State Department before she claims to have performed her deletion of "private e-mails."

Legal commentators call this “anticipatory obstruction of justice,” and the law punishes it with up to 20 years imprisonment. The burden of proof is light. The Justice Department manual advises that section 1519 makes prosecution much easier because it covers “any matters” or “’in relation to or contemplation of’ any matters.”

Additionally, attorneys who advise destruction of records, or participate in doing so, are also in violation of the law and subject to disbarment. Hillary, being a lawyer herself, would be also.


Now if only our ruling class would take action against one of their own, just as they recently did to General David Petraeus, the phenomenon of the Clinton dynasty would be gone forever.

Read more: http://www.americanthinker.com/blog/2015...z3Ul3zX8UX
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Quote:Hillary’s Emails and the Law
It is a crime—obstruction of justice—to destroy even one message to prevent it from being subpoenaed.

By Ronald D. Rotunda
March 16, 2015 7:09 p.m. ET

The fact that Hillary Clinton exclusively used a private server in her home, rather than a secure government server, to send emails during her four years as secretary of state has raised many questions. She now says that it was a mistake but also emphasizes that she broke no law. News reports typically describe her offense as not following “policy.”
Whether or not Mrs. Clinton violated a State Department rule, her admitted destruction of more than 30,000 emails sure looks like obstruction of justice—a serious violation of the criminal law. Let’s consider some of the basic, undisputed facts, and then the law.
First, Mrs. Clinton was worried that communicating through email would leave a trail that might be subject to subpoena. “As much as I’ve been investigated and all of that,” she said in 2000, “why would I ever want to do email?” But when she became secretary of state, she didn’t have much choice. So she set up a private server in her house. That way, in the event of an investigation, she could control which emails would be turned over.
We know this is true because that is exactly what happened. When Congress subpoenaed Mrs. Clinton’s official communications, or when nongovernmental organizations filed Freedom of Information Act requests for the same, the State Department could not turn over her emails because it did not have them.
The State Department must have known that its leader was using a private account. Mrs. Clinton presumably emailed other officials within the department, and the “from” line would have shown clearly that she wasn’t sending the message from a proper government email address.
Mrs. Clinton claims that she never sent any classified or secret information on her private account, though many have noted that she conspicuously left out whether she received such material. Either way the claim is hard to swallow—one would think it would have left her out of the loop—but let’s assume she is telling the truth.
By her own admission, Mrs. Clinton destroyed more than 30,000 emails once the subpoenas started coming in. She claims that she only destroyed personal records. Team Clinton initially explained that her work emails were separated from her personal emails using keyword searches. Now, after the outcry about how much this method might have missed, Mrs. Clinton is insisting that every email was individually read before the deletion.
Still, this leaves questions unanswered. How did those reviewing the emails define “personal”? For instance, if Mrs. Clinton had emailed a foreign government about a donation to the Clinton Foundation, was that message—whatever its interest to watchdogs or voters—tossed in the trash bin?
The law says that no one has to use email, but it is a crime (18 U.S.C. section 1519) to destroy even one message to prevent it from being subpoenaed. Prosecutors charging someone with obstruction don’t even have to establish that any investigation was pending or under way when the deletion took place. As T. Markus Funk explained in a journal article for the National Association of Criminal Defense Lawyers, the prosecutor “need only prove that the defendant shredded the documents, at least in part, to make life more difficult for future investigators, if and when they eventually appear.”
Legal commentators call this “anticipatory obstruction of justice,” and the law punishes it with up to 20 years imprisonment. The burden of proof is light. The Justice Department manual advises that section 1519 makes prosecution much easier because it covers “any matters” or “’in relation to or contemplation of’ any matters.” It adds, “No corrupt persuasion is required.”
In addition, rules governing the practice of law forbid attorneys from anticipatory obstruction of justice. These ethics rules are drafted by the American Bar Association, but they are also reflected in real law. Virtually every state court adopts them, and violation can lead to disbarment. Rule 3.4 (which has been around for many years) provides that an attorney shall not unlawfully “conceal a document or other material having potential evidentiary value.” Mrs. Clinton is a lawyer governed by these rules. So are any attorneys who advised her to delete her emails.
When the Senate Watergate Committee discovered that President Richard Nixon had a very extensive inventory of White House tapes, both the committee and the special prosecutor subpoenaed them. At the time, some wondered why Mr. Nixon, a lawyer before entering politics, didn’t simply destroy the tapes. The answer was that doing so could have led Mr. Nixon to an indictment for obstruction as well as disbarment.
At the time, I was assistant majority counsel to the Senate Watergate Committee, so I remember that period well. Mrs. Clinton should remember it too: She worked on the House Impeachment Committee, which warned Nixon not to destroy the tapes.
Here’s another reason Mrs. Clinton should know about obstruction: Congress enacted section 1519, making the crime easier to prove, in 2002, as part of the Sarbanes-Oxley Act. As senator, she voted for the law.

Mr. Rotunda is a professor at Chapman University’s Fowler School of Law
http://www.wsj.com/articles/ronald-d-rot...DS=rotunda
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(03-18-2015, 10:53 AM)Big Rock Wrote:
Quote:Hillary’s Emails and the Law
It is a crime—obstruction of justice—to destroy even one message to prevent it from being subpoenaed.

By Ronald D. Rotunda
March 16, 2015 7:09 p.m. ET

The fact that Hillary Clinton exclusively used a private server in her home, rather than a secure government server, to send emails during her four years as secretary of state has raised many questions. She now says that it was a mistake but also emphasizes that she broke no law. News reports typically describe her offense as not following “policy.”
Whether or not Mrs. Clinton violated a State Department rule, her admitted destruction of more than 30,000 emails sure looks like obstruction of justice—a serious violation of the criminal law. Let’s consider some of the basic, undisputed facts, and then the law.
First, Mrs. Clinton was worried that communicating through email would leave a trail that might be subject to subpoena. “As much as I’ve been investigated and all of that,” she said in 2000, “why would I ever want to do email?” But when she became secretary of state, she didn’t have much choice. So she set up a private server in her house. That way, in the event of an investigation, she could control which emails would be turned over.
We know this is true because that is exactly what happened. When Congress subpoenaed Mrs. Clinton’s official communications, or when nongovernmental organizations filed Freedom of Information Act requests for the same, the State Department could not turn over her emails because it did not have them.
The State Department must have known that its leader was using a private account. Mrs. Clinton presumably emailed other officials within the department, and the “from” line would have shown clearly that she wasn’t sending the message from a proper government email address.
Mrs. Clinton claims that she never sent any classified or secret information on her private account, though many have noted that she conspicuously left out whether she received such material. Either way the claim is hard to swallow—one would think it would have left her out of the loop—but let’s assume she is telling the truth.
By her own admission, Mrs. Clinton destroyed more than 30,000 emails once the subpoenas started coming in. She claims that she only destroyed personal records. Team Clinton initially explained that her work emails were separated from her personal emails using keyword searches. Now, after the outcry about how much this method might have missed, Mrs. Clinton is insisting that every email was individually read before the deletion.
Still, this leaves questions unanswered. How did those reviewing the emails define “personal”? For instance, if Mrs. Clinton had emailed a foreign government about a donation to the Clinton Foundation, was that message—whatever its interest to watchdogs or voters—tossed in the trash bin?
The law says that no one has to use email, but it is a crime (18 U.S.C. section 1519) to destroy even one message to prevent it from being subpoenaed. Prosecutors charging someone with obstruction don’t even have to establish that any investigation was pending or under way when the deletion took place. As T. Markus Funk explained in a journal article for the National Association of Criminal Defense Lawyers, the prosecutor “need only prove that the defendant shredded the documents, at least in part, to make life more difficult for future investigators, if and when they eventually appear.”
Legal commentators call this “anticipatory obstruction of justice,” and the law punishes it with up to 20 years imprisonment. The burden of proof is light. The Justice Department manual advises that section 1519 makes prosecution much easier because it covers “any matters” or “’in relation to or contemplation of’ any matters.” It adds, “No corrupt persuasion is required.”
In addition, rules governing the practice of law forbid attorneys from anticipatory obstruction of justice. These ethics rules are drafted by the American Bar Association, but they are also reflected in real law. Virtually every state court adopts them, and violation can lead to disbarment. Rule 3.4 (which has been around for many years) provides that an attorney shall not unlawfully “conceal a document or other material having potential evidentiary value.” Mrs. Clinton is a lawyer governed by these rules. So are any attorneys who advised her to delete her emails.
When the Senate Watergate Committee discovered that President Richard Nixon had a very extensive inventory of White House tapes, both the committee and the special prosecutor subpoenaed them. At the time, some wondered why Mr. Nixon, a lawyer before entering politics, didn’t simply destroy the tapes. The answer was that doing so could have led Mr. Nixon to an indictment for obstruction as well as disbarment.
At the time, I was assistant majority counsel to the Senate Watergate Committee, so I remember that period well. Mrs. Clinton should remember it too: She worked on the House Impeachment Committee, which warned Nixon not to destroy the tapes.
Here’s another reason Mrs. Clinton should know about obstruction: Congress enacted section 1519, making the crime easier to prove, in 2002, as part of the Sarbanes-Oxley Act. As senator, she voted for the law.

Mr. Rotunda is a professor at Chapman University’s Fowler School of Law
http://www.wsj.com/articles/ronald-d-rot...DS=rotunda

Yep. AS they call in in legal circles it is "anticipatory obstruction of justice"

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