Hillary's criminal liability in the e-mail scandal

Shannen W. Coffin, a lawyer who was formerly counsel to VP Dick Cheney, has delved into the detailed legalities of State Department officials and their records and believes that Hillary Clinton may well have committed at least one felony when she departed her position as secretary of state while keeping possession of her entire e-mail correspondence.  In an article in National Review Online and an appearance on The Kelly File (video below), he explains how Mrs. Clinton may need to add an orange jumpsuit to her collection of pantsuits and long, roomy jackets. 

Under provisions of the State Department’s records-management manual:

First, the “departing official or a staff member must prepare an inventory of personal papers and nonrecord materials proposed for removal.” The departing official must then “request a review of the materials proposed for removal.” Lest Mrs. Clinton claim she was not subject to this rule, the manual provides that this review process is specifically required for “Presidential appointees confirmed by the Senate.”

Mrs. Clinton has explicitly claimed to have followed all the rules and procedures that applied to her, so this last point is important.  What follows does apply to even the exalted position of departing SecState.  Note that the review must be requested.  In other words, the departing official herself cannot undertake this review, which is intended:

... “to certify that the documentary materials proposed for removal may be removed without diminishing the official records of the Department; violating national security, privacy or other restrictions on disclosure; or exceeding normal administrative economies.” The process “generally requires a hands-on examination of the materials to verify the accuracy of the inventory.” (5 FAH-4 H-217.2(b)).

Now comes the part that raises the specter of a felony:

Finally, there is a formal certification by the State Department records official authorizing the employee to remove the documents from State’s custody: “Once the reviewing official is satisfied that documentary materials proposed for removal comply with Federal law and regulations the reviewing official completes Form DS-1904, Authorization for the Removal of Personal Papers and Non-Record Materials, and forwards the form and the inventory to the Department of State records officer.”

Courtesy of the Washington Examiner, you can study the form and other separation papers here.  The penalty for falsely signing the document is criminal and a felony.  And Coffin explains why Mrs. Clinton, if she did sign the document as State Department regulations require all departing officials to do, faces felony charges:

Mrs. Clinton plainly did not just remove personal e-mails without clearing that removal with records officials; she also did not even return official records. Her defense now is that returning the documents two years later is good enough. But the same records manual emphatically rebuts that post-hoc justification. The department’s records manual requires that departing officials “must ensure that all record material that they possess is incorporated in the Department’s official files and that all file searches for which they have been tasked have been completed, such as those required to respond to FOIA, Congressional, or litigation-related document requests.” And lest the employee not get the message, the manual adds that “fines, imprisonment, or both may be imposed for the willful and unlawful removal or destruction of records as stated in the U.S. Criminal Code (e.g., 18 U.S.C., section 2071).”

You can view the segment of The Kelly File where Coffin explained this below:

Shannen W. Coffin, a lawyer who was formerly counsel to VP Dick Cheney, has delved into the detailed legalities of State Department officials and their records and believes that Hillary Clinton may well have committed at least one felony when she departed her position as secretary of state while keeping possession of her entire e-mail correspondence.  In an article in National Review Online and an appearance on The Kelly File (video below), he explains how Mrs. Clinton may need to add an orange jumpsuit to her collection of pantsuits and long, roomy jackets. 

Under provisions of the State Department’s records-management manual:

First, the “departing official or a staff member must prepare an inventory of personal papers and nonrecord materials proposed for removal.” The departing official must then “request a review of the materials proposed for removal.” Lest Mrs. Clinton claim she was not subject to this rule, the manual provides that this review process is specifically required for “Presidential appointees confirmed by the Senate.”

Mrs. Clinton has explicitly claimed to have followed all the rules and procedures that applied to her, so this last point is important.  What follows does apply to even the exalted position of departing SecState.  Note that the review must be requested.  In other words, the departing official herself cannot undertake this review, which is intended:

... “to certify that the documentary materials proposed for removal may be removed without diminishing the official records of the Department; violating national security, privacy or other restrictions on disclosure; or exceeding normal administrative economies.” The process “generally requires a hands-on examination of the materials to verify the accuracy of the inventory.” (5 FAH-4 H-217.2(b)).

Now comes the part that raises the specter of a felony:

Finally, there is a formal certification by the State Department records official authorizing the employee to remove the documents from State’s custody: “Once the reviewing official is satisfied that documentary materials proposed for removal comply with Federal law and regulations the reviewing official completes Form DS-1904, Authorization for the Removal of Personal Papers and Non-Record Materials, and forwards the form and the inventory to the Department of State records officer.”

Courtesy of the Washington Examiner, you can study the form and other separation papers here.  The penalty for falsely signing the document is criminal and a felony.  And Coffin explains why Mrs. Clinton, if she did sign the document as State Department regulations require all departing officials to do, faces felony charges:

Mrs. Clinton plainly did not just remove personal e-mails without clearing that removal with records officials; she also did not even return official records. Her defense now is that returning the documents two years later is good enough. But the same records manual emphatically rebuts that post-hoc justification. The department’s records manual requires that departing officials “must ensure that all record material that they possess is incorporated in the Department’s official files and that all file searches for which they have been tasked have been completed, such as those required to respond to FOIA, Congressional, or litigation-related document requests.” And lest the employee not get the message, the manual adds that “fines, imprisonment, or both may be imposed for the willful and unlawful removal or destruction of records as stated in the U.S. Criminal Code (e.g., 18 U.S.C., section 2071).”

You can view the segment of The Kelly File where Coffin explained this below: