Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

18 U.S.C. §2071[1]

[Now there’s an interesting bit of legal trivia. It says that if there’s a “book, paper, document or other thing,” and it’s “filed or deposited” in any “public office” or with a “public officer of the United States,” it’s a crime to “remove, obliterate or destroy” it, or to attempt to do so. So why should anyone care? These days who really wants to destroy Government records, except possibly Government people?

Oops, I forgot! That’s today’s controversy, isn’t it? Government people are real blabbermouths, and they love their emails. More to the point, they like to send lots of them to each other, to impress the boss or an occasional subordinate, to cover an exposed a__ or two, or simply to bloviate. Once all that stuff is generated, how does one get rid of it? It’s not nice to destroy Government records.

In the old days bureaucrats would get rid of offending paper simply by running some sort of a “clean your office” campaign. You know, the boss comes in, complains about the clutter in everyone’s office, and orders his [or her] subordinates to clean up the working space. It helps if the agency has a written records retention policy. Then people can say they’re following it, and not violating the law, when they get rid of the embarrassing stuff. The question of whether they actually follow the policy, or go beyond it, is largely irrelevant. In most cases the people doing the dirty work don’t understand the policy anyway; and if someone goes too far, who’s to know or care?

Emails, of course, are a bit of a problem for bureaucrats who follow the old school. Like most electronic records they – the emails – really don’t take up much physical space; mostly they exist on hard drives or back-up DVDs; so they’re not “clutter” in the traditional sense; and it’s harder to get rid of them on purely aesthetic grounds.  But certainly emails can be embarrassing. Typically there are lots and lots of them and, given enough time, and enough people, eventually someone will produce something outrageous.  Note that I said “outrageous,” not “true.” People say all kinds of dumb stuff in emails; not all of it has to be true.

As we all know, Hillary Clinton has problems with emails that come from her time as Secretary of State. Her basic problem is that she and her people produced lots of them, but they didn’t store them in State Department facilities. Instead apparently her email traffic was hosted on a server in the basement of the Clinton home in New York. So for the past couple of years the press, the public and the Republicans have been preoccupied with the great questions: What’s on that server? Have any public records been destroyed? Were any laws broken? Who’s going up the river and for how long?

And so on, and so on. Luckily just last month the Inspector General of the State Department issued a long-awaited report on the Clinton emails that may or may not shed some light on them[2]. It’s supposed to be quite thorough. I don’t know, because I haven’t read it. However, the indomitable Larry has, and he’s fully prepared to brief you while I leave town for a couple of weeks.

Oh, and please note: For the purposes of this discussion the IG is the Inspector General, the person; the OIG is his office, i.e., the Office of the Inspector General. Larry tends to use the terms interchangeably, which is usually OK, but not always. Take it away, Larry!]

And there goes G. Sallust, riding into the sunrise! Anyway, the IG report doesn’t answer all the questions currently bouncing around about the Clinton emails. Mostly it addresses their status as federal records and how such documents should be handled in the future. It doesn’t offer a direct opinion on whether 18 U.S.C. §2071 – the statute quoted at the beginning of this piece – was violated by the Clintons. It does, however, provide lots of information about what actually happened with those documents.

But let’s start with the basics. Who is the Inspector General and why should we listen to him on these matters?

Who are the Inspectors General and why do they exist?

The Inspectors General were created in their present form in 1978. They’re set up to be independent of, yet operate in various federal agencies, and their function is to audit and investigate agency programs. Section 12 of the law[3] specifically identifies which agencies [the law calls them federal “establishments”] must have an IG Office. Today these include the Departments of Agriculture, Defense, Health and Human Services, Justice, Homeland Defense, State and many, many others. The IGs are appointed by the President and can only be removed by him.[4] Agency heads can’t do it. However, where IGs have overlapping jurisdiction, they may, from time to time, appoint one of their number to act as “lead” in a particular matter.[5]

IG investigations aren’t easily controlled by management. This is important, because the IG wears more than one hat in any investigation. He [or she] can be a management consultant, an audit supervisor and all the rest, but at the same time, the IG is also a criminal investigator. Section 4 of the law says that an IG must keep the head of the agency and the Congress “fully and currently informed … concerning fraud and other serious problems, abuses, and deficiencies relating to [agency programs.]”[6]

Did the State Department’s IG conduct a criminal investigation of the Clinton emails?

No, apparently not. Report ESP-16-03 is styled an “Evaluation of Email Records Management and Cybersecurity Requirements;” it’s not an indictment or a recommendation to prosecute or anything like that, and there are no allegations of overt criminality in it.

On the other hand, if the IG’s management review uncovered any such evidence, no doubt it was forwarded immediately to the appropriate investigators, in this case the FBI, without publicity or fanfare. Why send it to another agency? Well, because the FBI was already “on the case,” as it were. Why no publicity? That’s simple. Investigators generally don’t like publicity; it interferes with their ongoing work.

Are emails federal records that the State Department should have managed?

The State Department is responsible for managing its records. And what are those? Well, actually we have a nifty definition in the law that gives us an answer. “Records” are “all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business …”[7] Not to put too fine a point on it, “recorded information” includes “all traditional forms of records, regardless of physical form or characteristics, including information created, manipulated, communicated, or stored in digital or electronic form.”[8]

So does this definition really include emails? The email is pretty new; it’s not a “traditional” form of record; so perhaps emails are not records at all? That’s an argument, but really not much of one. Digital and electronic records were contemplated by the law from the early days, and emails are everywhere. Why not include them as well? And, in any case, if there is any doubt about the status of emails, there’s a procedure for resolving it. The National Archivist makes the final call as to what is “recorded information.”[9]

In this case, the operative federal regulations are those issued by the National Archives and Records Administration [NARA]. “NARA promulgates regulations providing guidance to agencies on implementation of the Federal Records Act and recordkeeping obligations more generally.”[10] And, as the OIG points out, “[f]or the last two decades, both Department of State … policy and Federal regulations have explicitly stated that emails may qualify as Federal records.”[11]

Some emails may qualify as federal records, but not necessarily all. How does one tell the difference?

Well, I guess you just have to apply the statutory definition of a federal record to the particular email. So you have to ask yourself (i) was the email sent or received “under Federal law or in connection with the transaction of public business;” or (ii) should it be “preserved … as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government”  or for  the value of its data.[12]

The law seems to exclude the purely personal – emails about haircut appointments, doctor visits, dates, job interviews, etc. – but may include just about anything else. So how does an ordinary person – or bureaucrat – apply standards like these without some guidance from the hierarchy? A good rule, perhaps, might be to avoid doing any personal business on government computers, or on the government telephone, for that matter. Then the Government could simply retain everything without requiring its employees to make fine distinctions.

But of course that wasn’t the situation with the Clinton emails. In her case, she [and key staff] chose to conduct their business, public and private, via a private server, located at the Clinton residence.[13] So when questions arose concerning her emails, and which of them related to government business, she eventually produced for the State Department “from her personal email account approximately 55,000 hard-copy pages, representing approximately 30,000 emails that she believed related to official business.”[14] The remainder were retained, and/or destroyed by her.

I don’t think you have answered my question. How did Mrs. Clinton distinguish between the emails she furnished, and those she didn’t?

I’m not sure I know that answer.  It’s knowable, I suppose, if someone gains access to all of the emails, including the ones she didn’t provide, and does a comparison. The Clinton people say that as of December 5, 2014, she provided “all federal email records in her custody, regardless of their format or the domain on which they were stored or created that may not otherwise be preserved, to our knowledge, in the Department’s recordkeeping system.”[15] Nevertheless, additional documents do tend to pop up from time to time.

OIG determined that the Clinton production “included no email covering the first few months of Secretary Clinton’s tenure – from January 21, 2009, to March 17, 2009, for received messages; and from January 21, 2009, to April 12, 2009, for sent messages.[16]” Emails from this period tend to trickle in from other sources, including the State Department and the Department of Defense. Not too long ago, for example, DoD provided 19 previously unseen emails exchanged between General Petraeus and Mrs. Clinton.[17]

More importantly, perhaps, is the fact that some of Mrs. Clinton’s key staff also made extensive use of private email in their government jobs.[18] Two of them acknowledged occasionally using private email; but four of her immediate staff made much more extensive use of private accounts. In the summer of 2015, and at the request of the State Department, these individuals produced “nearly 72,000 pages in hard copy and more than 7.5 gigabytes of electronic data. One of the staff submitted 9,585 emails spanning January 22, 2009, to February 24, 2013, averaging 9 emails per workday sent on a personal email account.”[19] The OIG did not attempt to determine whether any of these productions were complete.

Fine. Since we’re focused on federal recordkeeping, what actual harm has been done to the National Archives by all this private email nonsense?

Actually NARA is in the best position to judge that. It’s their job, and NARA determined that while Secretary Clinton could have done a better job her subsequent “production of 55,000 pages of emails mitigated her failure to properly preserve emails that qualified as Federal records during her tenure and to surrender such records upon her departure.”[20] NARA made the same determination with respect to Clinton’s staff, and their belated efforts to produce documents. That is, that they also mitigated their errors with the documents they later provided.[21]

So what are the prospects for a criminal prosecution coming out of all of this?

I have no idea. Based on the IG report, I don’t see much of a case for destruction of records, or a prosecution on that theory, but that’s just my opinion. It might change if I knew what the FBI knows. And I have even less of an idea of what national security issues, if any, might have turned up in parallel investigations. I know some idiot pundits are screaming “treason,” on the radio, but they’re just paranoid; they really have no way of knowing anything; and neither do I. So I’m sticking with my basic answer, which is: I don’t know.

[1] See 18 U.S.C. §2071(a). Title 18 of the U.S. Code contains most – but not all – of the Federal Criminal Law. It’s available lots of places, including from our Government, but we rely for the most part on the version maintained by the Cornell Law School and its Legal Information Institute. The service is free, by the way. You can find §2071 at https://www.law.cornell.edu/uscode/text/18/2071

[2] See OIG [Office of the Inspector General, U.S. Department of State, Broadcasting Board of Governors], Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements (ESP-16-03, May, 2016), available at https://oig.state.gov/system/files/esp-16-03.pdf  The Report has 79 numbered pages. It will be cited hereafter as Report ESP-16-03 at __. References to page numbers will be to the numbers on the document, not to any generated by Adobe Reader.

[3] The original version of the Act appears as Pub. Law 95–452, §1, Oct. 12, 1978, 92 Stat. 1101 et. seq. It has been amended many times, and is codified at Title 5, Appendix, of the U.S. Code. You can find an up-to-date version of it at http://www.ignet.gov/pande/leg/igactasof1010.pdf . We’ll refer to it as The IG Act of 1978 at ___.

[4] That’s in §3(b) of The IG Act of 1978. “An Inspector General may be removed from office by the President. If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal.”

[5] See, e.g., Lead Inspector General for Overseas Contingency Operations, Operation Inherent Resolve, Report to the United States Congress (March 31, 2015) available at https://oig.state.gov/system/files/oir_042915.pdf

[6] The full quote, from §4(a)(5) of The IG Act of 1978 is that the IG must: “… keep the head of such establishment and the Congress fully and currently informed, by means of the reports required by section 5 and otherwise, concerning fraud and other serious problems, abuses, and deficiencies relating to the administration of programs and operations administered or financed by such establishment, to recommend corrective action concerning such problems, abuses, and deficiencies, and to report on the progress made in implementing such corrective action.”

[7] See 44 U.S.C. §3301(a) (1).

[8] See 44 U.S.C. §3301(a) (2).

[9] See 44 U.S.C. §3301(b): “The Archivist’s determination whether recorded information, regardless of whether it exists in physical, digital, or electronic form, is a record as defined in subsection (a) shall be binding on all Federal agencies.”

[10] See Report ESP-16-03 at p. 4: “Since 1990, the regulations issued by NARA have explained that the medium of the record may be “paper, film, disk, or other physical type or form” and that the method of recording may be “manual, mechanical, photographic, electronic, or any other combination of these or other technologies.” These regulations also have stated that a record can be made “by agency personnel in the course of their official duties, regardless of the method(s) or the medium involved.”

[11] See Report ESP-16-03 at OIG Highlights. Let’s go back to 18 U.S.C. §2071(a) for just a moment. Criminal liability attaches only if records are somehow filed with the government. Since the emails were maintained on a Clinton server – rather than one provided by the State Department – were they ever “filed or deposited” in a public office? Or is it enough that they were in her possession. The statute also covers records in the possession of a public officer. As Secretary of State, she certainly was that. These are just questions; not answers.

[12] See 44 U.S.C. §3301(a).

[13] See Report ESP-16-03 at p. 3: “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.”

[14] See Report ESP-16-03 at p. 4: “In December 2014, in response to Department requests, Secretary Clinton produced to the Department from her personal email account approximately 55,000 hard-copy pages, representing approximately 30,000 emails that she believed related to official business. In a letter to the Department, her representative stated that it was the Secretary’s practice to email Department officials at their government email accounts on matters pertaining to the conduct of government business. Accordingly, the representative asserted, to the extent that the Department retained records of government email accounts, the Department already had records of the Secretary’s email preserved within its recordkeeping system.”

[15] See Report ESP-16-03 at p. 24.

[16] See Report ESP-16-03 at p. 23.

[17] See Report ESP-16-03 at p. 23.

[18] See Report ESP-16-03 at p. 24.

[19] Id.

[20] See Report ESP-16-03 at p. 23.

[21] See Report ESP-16-03 at p. 25. “NARA has concluded that these subsequent productions mitigated their failure to properly preserve emails that qualified as Federal records during their service as Department employees.”