The Hillary “spoliation”

The latest news about Hillary Clinton’s email destruction may take her emails saga to another level. As John and Scott have discussed, Clinton apparently had her server wiped clean of emails after a congressional committee had been established to investigate matters as to which she knew her emails were relevant Even more importantly, Trey Gowdy says that Clinton made this decision after October 28, 2014, when the Department of State for the first time asked her to return her public record.

The destruction of documents after they have been requested by a body authorized to do so is a quite a serious matter. As Scott says, in a court of law such conduct ordinarily result in sanctions if, as must be the case here, the destruction was intentional.

Scott mentions one sanction — the drawing of an adverse inference, i.e., concluding that the documents destroyed contained information that hurts the destroyer’s position in the case. Monetary sanctions in one form or another are often awarded as well.

In extreme cases, courts may go further and rule adversely on one or more of the destroying party’s contentions or claims. Courts may even dismiss the plaintiff’s case entirely or enter judgment against the defendant.

Here, the operative court is the court of public opinion. John asks, “Will the Democrats really hold their noses and nominate Hillary?”

I wonder whether Clinton’s willful destruction of evidence will require nose-holding by partisan Democrats. They are conditioned to view investigations into the conduct of their favored politicians as scorched-earth warfare by “the vast right-wing conspiracy” (to use the phrase Hillary coined). No matter how obstructionist or lawless the response, it will not offend these partisans.

To be sure, the request for Hillary’s documents came from John Kerry’s State Department, no one’s idea of a right-wing conspirator. But this won’t matter to partisans; they will insist that Hillary had to protect herself from vicious right-wingers who wanted to take advantage of the State Department’s information-retention procedures.

Partisan Democrats alone can’t elevate Clinton to the presidency, though. The additional voters whose support she needs might well be influenced by a campaign ad that points out (if it’s accurate) that Hillary Clinton had all traces of her emails as Secretary of State wiped out after the State Department rightfully had requested these emails, and at a time when a bipartisan congressional committee was investigating her actions relating to the attack in Benghazi where four Americans were killed by terrorists.

The public need not draw adverse inferences about Clinton’s actions relating to Benghazi, and most non-partisans probably won’t. But if the public reaches the inescapable conclusion (assuming the facts support it) that Clinton destroyed documents after the State Department, not Republicans, asked her for them, and that controversy was swirling around her at the time, Clinton’s bid for the presidency might well be set back.

NOTE: In the original post, I didn’t place quotation marks in the title. I added them because spoliation is a litigation phenomenon and Clinton’s destruction of evidence didn’t occur in the context of a lawsuit.

As I said, the relevant court here is the court of public opinion. However, it is still interesting, I think, to consider how a court of law would treat Clinton’s conduct.

Hillary’s offense, if any, is obstruction of justice.

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