Hillary destroys evidence [updated]

The House Select Committee on Benghazi sent Hillary Clinton a subpoena for all her emails related to Libya on March 4. The committee statement on the issuance of the subpoena to Clinton is posted here. The committee followed up with a letter dated March 19 formally requesting Clinton’s email server. A PDF of the letter is posted here. After obtaining a two-week extension, Clinton attorney David Kendall responded by letter:

In a letter provided to the committee, Kendall said Clinton would not be turning over the server to a third-party for review and that the emails no longer exist on the private server located in her New York home.

“There is no basis to support the proposed third-party review of the server that hosted the [email protected] account,” Kendall wrote. “To avoid prolonging a discussion that would be academic, I have confirmed with the secretary’s IT support that no emails…..for the time period January 21, 2009 through February 1, 2013 reside on the server or on any back-up systems associated with the server.”

* * * * *

Kendall said the State Department is “uniquely positioned” to respond to requests for additional documents, a sign from Clinton’s camp that they believe she has fully responded to any standing legal requests.

Kendall added, “Thus, there are no [email protected] e-mails from Secretary Clinton’s tenure as Secretary of State on the server for any review, even if such review were appropriate or legally authorized.”

Lauren French’s Politico article, from which I have taken these quotes, provides Kendall’s letter at somewhat greater length than Michael Schmidt’s New York Times story.

I take it that the server has not been thrown into the East River. If the server still exists, the hard drive should be examined by someone acting on behalf of the committee to ascertain whether any of the subpoenaed documents can be retrieved. I take it that they can’t, but I don’t think the committee should leave it at David Kendall’s letter.

The wiping of the hard drive apparently occurred recently. “While it is not clear precisely when Secretary Clinton decided to permanently delete all emails from her server, it appears she made the decision after October 28, 2014, when the Department of State for the first time asked the Secretary to return her public record to the Department,” committee chairman Trey Gowdy said in a statement. The committee has posted Gowdy’s statement here.

Wiping the hard drive was probably at least as effective as throwing it in the East River, but either method of disposing of the originals of the emails is suggestive of culpability. The destruction of the email originals is a form of spoliation of evidence. It seems to me that a federal judge would be likely to instruct a jury that it was entitled to draw adverse inferences against the party destroying the documents.

The circumstances here are highly suggestive of spoliation. The destruction of the documents was willful and performed at a time after they had expressly been sought by the State Department.

Even if the email messages hadn’t been sought by the State Department, Clinton knew that they were highly probative of the issues on which she had already testified before Congress. Indeed, if Gowdy’s statement accurately notes the timeframe, the destruction would have occurred after the establishment of the House Select Committee on Benghazi. The House voted to establish the committee on May 8, 2014.

What good faith reason would support wiping the server under the circumstances? Kendall’s letter does not appear to offer one. (I can’t find the text of Kendall’s letter online.)

Madam Hillary’s behavior brings the memories of the Clinton era rushing back. Sid Blumenthal is in the news again in connection with his intelligence reports to Clinton by email during her service as Secretary of State. How long before we are treated to Bill Clinton’s favorite pick-up lines again?

UPDATE: A reader writes to add:

On the timing of things:

From what I gather from information in the news, Hillary’s personal IT guy setup a Microsoft Exchange server for her. Sometime recently they set her email account to automatically delete after 60 days so they could claim they didn’t delete anything; the system did.

However, while it deletes emails from the individual’s personal account, emails persist in the Exchange Server “Dumpster” (versions prior to 2013) for another 60 days or they remain in the “Recoverable Items” folders (for 2013 and later versions of Exchange*) for another definable period of time which defaults to the individual account auto deletion time.

Since the adjustment of the auto delete was likely done sometime in November and the committee’s request came in early March, the Clinton team’s extension request was likely timed to ensure that both auto-delete functions had time to perform their work. This would support the well-parsed position “We didn’t delete anything. The system did.”

*Starting with Exchange 2013 feature supporting data retention for litigation discovery were implemented, but there are administrator defined policies/capacities that can limit the ability to save information. In this day and age, a well implemented Exchange Server can save essentially all emails sent and received (along with MS instant messages) forever without the user having to be burdened with a massive local mailbox file.

Regardless, I would reiterate that the committee was established in May 2014, at which time Clinton knew that her emails were relevant evidence.

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