Hillary's Espionage and the Statute of Limitations

Alger Hiss was a U.S. State Department official who was accused in 1948 of being a Soviet spy.  Hiss's indictment stemmed from alleged espionage in the form of secret State Department documents spirited out of Foggy Bottom and into the hands of persons "not authorized to receive" them.  "The Pumpkin Papers" consisted of sixty-five pages of retyped secret State Department documents, four pages in Hiss's own handwriting of copied State Department cables, and five rolls of developed and undeveloped 35mm film.  

Being charged under the Espionage Act was appropriate for those who obtained any information relating to the national defense and delivered that information to someone who was not authorized to have it.  The former State Department official, Alger Hiss, typed classified information on his office typewriter, slipped the copies into a briefcase, removed classified information from the State Department, and provided all of this to his Soviet handler, who photographed and microfilmed it.  The FBI wished to prosecute Alger Hiss for espionage, but the Justice Department indicated that the statute of limitations had run out, and Hiss was convicted of the lesser crime, perjury, for lying to the FBI.

Former secretary of state Hillary Clinton insisted that she "had broken no rules" to conduct government business through the use of a private email service in lieu of the U.S. government's unclassified system, the Non-Classified Internet Protocol (IP) Router Network (abbreviated as NIPRNet) and the Secret Internet Protocol Router Network (SIPRNet).  These are a system of interconnected computer networks used by the U.S. Department of Defense and the U.S. Department of State to transmit classified information.

The U.S. government has spent billions of dollars developing, deploying, and protecting its internet protocol router networks to enable authorized government officials to conduct the business of government, properly exchange information, and intelligence, up to and including information classified SECRET, with others in the government (and their contractors) who are authorized and entitled to have it.  Mrs. Clinton purposely avoided using the government's networks through the use of a homebrew server.  That she found a way to transmit countless classified documents, up to and including special access program material, to her personal server has been made public and is not in question.

The former Democratic presidential candidate disclosed that she and her aides had deleted more than 30,000 emails she deemed "personal."  For a frame of reference, 30,000 emails printed out represents a stack of 60 reams of paper, a stack 11 feet tall.  When the FBI retrieved the spools of microfilm, the Alger Hiss "Pumpkin Papers" printed out to a stack four and a half feet tall.

Hillary Clinton and the FBI have learned much from the Alger Hiss case.  The American public will not be able to read a transcript of Hillary Clinton's interview with the FBI, because the bureau did not transcribe it.  Furthermore, Mrs. Clinton was also not placed under oath during the three-and-a-half-hour interview.  When Mrs. Clinton wasn't placed under oath, she could not be charged with lying to the FBI, as Alger Hiss was eventually charged with and convicted of.

There doesn't seem to be a race against the clock for the Trump DOJ to charge Mrs. Clinton with espionage.  Alger Hiss escaped prosecution under the Espionage Act of 1917 due to the statute of limitations having expired.  Also, there was no appetite by the DOJ to charge the former senior State Department official and Democrat lawyer.  Although federal statute USC 3282 provides for a five-year statute of limitation for the vast majority of federal crimes, this statute of limitations does not necessarily stand in the case of espionage prosecution.  It is generally agreed by legal scholars that acts of espionage can be prosecuted for at least ten years after the alleged act.  

I wish Congressman Trey Gowdy could give Attorney General Sessions a lesson on Spoliation of Evidence, with which attorneys fresh out of law school are familiar.  Hillary Clinton's deletion of 30,000 emails is a classic case.  When parties fail to produce relevant evidence within their span of control, evidence they are otherwise naturally expected to possess, the U.S. legal system allows and even mandates that unfavorable presumptions be drawn against them.  So when some item of relevant evidence – whether documents, physical objects, or data relevant to an ongoing legal matter – is destroyed, discarded, or modified in some way, the U.S. legal system allows us to presume that the missing evidence was unfavorable to that party and allows us to draw conclusions accordingly.  The classic junior high school excuse, "the dog ate my homework," isn't valid under the law when the disappearance is suspicious.

Spoliation of evidence is prohibited by an array of laws and regulations.  Also, anyone who destroys relevant evidence or assists in such destruction is subject to criminal prosecution, civil fines, tort liability, exclusion of testimony, and dismissal of claims, as well as adverse evidentiary inferences.  We have little way of knowing if any one of the 33,000 missing documents under Mrs. Clinton's control could have been used "to the injury of the United States or to the advantage of a foreign nation."

The Trump DOJ should be making all possible efforts to retrieve the missing 33,000 emails and determine once and for all: "was it espionage or was it yoga?"

"You don't use BleachBit for yoga emails or for bridesmaids emails," Congressman Trey Gowdy said in an interview to Fox News.  "When you are using BleachBit, it is something you really do not want the world to see."

The cabal of President Obama, Attorney General Loretta Lynch, and FBI director James Comey did everything they could to protect Hillary Clinton from the politically explosive charge of espionage when it was obvious to anyone in the intelligence community what she was doing.  There is sufficient and obvious evidence that like the Soviet spy Alger Hiss, Mrs. Clinton should be charged with espionage before the statute of limitations runs out.