Awkward Petraeus precedent as Hillary may face criminal liability over her secret email system

It must have seemed like a good idea at the time to prosecute General David Petraeus over mishandling of classified material. But that was before it came to light that Hillary Clinton did not bother with an official and secure State Department email account, instead preferring to use a private server under her own control that lacked the kind of security measures in place at the domain. Now, explicit comparisons of the two former officials are being drawn. Jesse Byrnes writes in The Hill:

House Oversight Committee Chairman Jason Chaffetz (R-Utah) on Wednesday questioned whether Hillary Clinton improperly shared classified information like former CIA Director David Petraeus.

Asked on "Fox and Friends" whether Clinton's exclusive use of a personal email address during her time as secretary of State raised national security concerns, Chaffetz said, "It does beg the question: Were there any sort of classified pieces of information that were flowing through her personal email account?"

"Which is something you can't do and something yesterday Gen. Petraeus had to plead guilty to, or was going out in a deal, dealing with his personal email and interaction with somebody who didn't have a classification," Chaffetz added.

Petraeus reached a plea deal, the Justice Department announced Tuesday, over charges he failed to turn over for archiving small record books kept while commanding U.S. forces in Afghanistan, instead providing them and their classified information to his mistress, Paula Broadwell, who wrote a biography of the Army general.

Uh-oh! That does sound a lot like what Mrs. Clinton did, only on a potentially much larger scale. That is, assuming her emails dealt with classified material. And how could they not, since she didn’t use an official email account at all? To suggest that she never touched on any classified matters in email during her entire term in office as SecState is difficult to believe, as she was famously traveling extensively while in office. Was she electronically incommunicado the entire time? Did she only use officially scrambled voice systems? There are all those pictures of her using her Blackberry on her plane. Are we to believe she was exchanging recipes with Chelsea and nothing else?

Actually, Hillary faces a lot of legal liability, as explained by two authors in National Review. First, Shannen Coffin elucidates:

The Federal Records Act requires the preservation of any official “record,” which is defined functionally to require preservation whenever a record relates to the performance of a federal official’s duties. There is little question that Hillary Clinton was conducting official business on her private e-mail account, and her turning over 55,000 pages of documents only after she left office all but concedes that (but may not concede the full scope of her use of that account).   There is also little doubt, given this functional definition, that e-mail has been covered by the Federal Records Act since its adoption by the federal government during the Clinton administration. As Ian Tuttle correctly notes, the State Department’s own manual has plainly provided, since 1995, that e-mail records must be preserved under the Federal Records Act.

This is serous stuff:

…a federal criminal law makes it a felony when any custodian of official government records “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same.” The crime is punishable by up to three years in prison. And interestingly, Congress felt strongly enough about the crime that it included the unusual provision that the perpetrator shall “forfeit his office and be disqualified from holding any office under the United States.”

The fact that a war hero of the magnitude of General Petraeus was prosecuted for not properly archiving his notebooks would make it awkward to pass on prosecuting Hillary. Nevertheless, in the real world, where laws and regualtions are for the little people, not the Clintons:

The requirement for specific intent in this criminal law — “willfully and unlawfully” — and the fact that Loretta Lynch would ultimately decide whether to bring prosecution, makes it doubtful that charges would be filed.

I have to say that going to the trouble of setting up an email system based on a server in your private home does show a level of willfulness. But then again, we are talking about someone for whom the law is an inconvenience.

But that is not the end of Hillary’s potential legal liability. Also on National Review, Andrew McCarthy writes:

…the embezzlement statute (Section 641 of the federal penal code – Title 18) may also be relevant. Embezzlement generally refers to the theft of money, but the federal statute extends the concept to cover government records and other property as well. Specifically, the statute makes it a crime, punishable by up to 10 years’ imprisonment, for anyone (does not have to be a custodian or even a government official) to embezzle, steal, purloin or knowingly convert for the use of herself or others “any record … or thing of value of the United States or of any department or agency thereof.” It similarly criminalizes the receipt, concealment or retention of such embezzled or purloined government records. Under federal law, emails constituting government business conducted by government officials are government records.

As McCarthy notes, whatever the Justice Department under incoming AG Loretta Lynch decides, congressional committees are free to hold hearings, issue subpoenas, and compel testimony. All of this could be going on while Hillary runs for president, assuming Democrats continue on their current trajectory towards nominating her.