Clinton’s reckless and possibly criminal quest for secrecy

Hillary Clinton’s private email account, the only email account she used for State Department business, continues to spark commentary on the internet. Attorney Shannen Coffin wonders whether Clinton committed a felony. He points out that 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.

As Coffin says, “setting up a shadow e-mail server to conduct all official business as secretary of state is an action plainly undertaken for the purpose of evading federal-records laws.” By setting one up, Clinton was able to conceal records that both Congress and private citizens demanded to review. Hence the possibility that Clinton committed a felony.

Meanwhile, Andy McCarthy considers whether Clinton violated federal embezzlement law. Embezzlement, he notes, generally refers to the theft of money. However, federal law extends the concept to cover government records and other property as well.

Specifically, section 641 of the federal penal code, Title 18, makes it a crime, punishable by up to 10 years of imprisonment, for anyone 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.

This statute seems better to describe what former Bill Clinton aide Sandy Berger did at the National Archives than what Hillary has done. But maybe a good prosecutor could make a case of embezzlement against the former Secretary of State. Clearly, it isn’t going to happen, though.

McCarthy adds that the Espionage Act could also come into play if some of Clinton’s emails contain classified information pertaining to national security. It seems highly probable that some of Clinton’s emails did. But again, don’t hold your breath waiting for Hillary to be prosecuted. These sorts of prosecutions are for saps like General Petraeus, not national icons like Mrs. Clinton.

Possible criminal violations aside, Clinton’s conduct seems clearly to raise national security concerns. Dustin Volz of the National Journal reports that “Clinton’s decision to forgo either a government or commercial email account is stoking concerns that the nation’s former top diplomat may have been reckless about securing her communications.” Volz explains:

The Web domain clintonemail.com, which Clinton used exclusively to conduct official business during her four years heading the State Department, was run through an Internet service registered to a family home in Chappaqua, N.Y., according to the Associated Press.

“The task of keeping a mail-server secure isn’t one even the average [system administrator] is up to. I’d be shocked if her server was even remotely secure,” said Nate Cardozo, a staff attorney with the Electronic Frontier Foundation.”Clinton’s decision to forgo the State Department’s servers is inexplicable and inexcusable.

Bart Gellman, who was heavily involved in the Edward Snowden affair and thus may know a thing or two about secure and non-secure email servers, has tweeted: “I don’t care who the Clintons hired: it is not possible for a high value target to secure a home-managed email server.”

In this instance, moreover, it appears that Clinton’s consultants set up the server with a misconfigured encryption system, which left it vulnerable to hacking. So says Alex McGeorge, head of threat intelligence at Immunity Inc., a Miami Beach-based digital security firm. “There are tons of disadvantages of not having teams of government people to make sure that mail server isn’t compromised; its just inherently less secure,” McGeorge added.

Moreover, Clinton reportedly was warned of precisely this danger. She chose to ignore these warnings. As this report by Bloomberg puts it, Clinton’s email system was built for privacy, not for security.

To Clinton, privacy was a political imperative. Security was not. Thus, it took a backseat.

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