Dan Metcalfe teaches secrecy law at American University’s Washington College of Law. He served as Director of the Justice Department’s Office of Information and Privacy for more than 25 years, during which time he handled information-disclosure policy issues on dozens of Clinton Administration scandals. He’s a registered Democrat who says he will vote for Hillary Clinton in November “if she escapes indictment and manages to become the Democratic presidential nominee.”
Metcalfe believes, however, that Clinton will be indicted, and should be, over the email scandal. He explains why in this column.
For those of us who recognized from the outset that Ms. Clinton’s exclusive use of a personal email system for all her official business (not to mention her unprecedented use of a private server atop that) was a clear violation of the Federal Records Act (“FRA”), the findings of the State Department’s Inspector General (“IG”) to that effect in his May 25 report were no surprise. In fact, on the admitted facts of the case, no other conclusion was possible, and it was simply another “shoe waiting to be dropped.”
For Metcalfe, the primary significance of the IG’s Report “is that it so flatly and persuasively belies nearly every public ‘defense’ that she has uttered on the matter”:
No, her self-serving email set-up was not “allowed” under the State Department’s rules. No, she was not “permitted” to use a personal email system exclusively as she did. No, what she did was hardly just a matter of her “personal convenience.” No, there is no evidence that any State Department attorney (other than perhaps Secretary Clinton herself) ever gave “legal approval” to any part of her special email system. No, everything she did was not “fully above board” or in compliance with the “letter and spirit of the rules,” far from it.
Yes, she was indeed required by the FRA to maintain all official emails in an official system for proper review, delineation, and retention upon her departure. Yes, her private server equipment was in fact the subject of multiple attempted intrusion attempts (i.e., hacks), including by foreign nations.
The list goes on and on. (Note that this does not even include Ms. Clinton’s many serious “misstatements” about her handling of classified or potentially classified information.)
And, yes, an indictment is warranted:
[T]he most likely Democrat nominee, having just been seriously wounded by this week’s IG report, is manifestly vulnerable to a much greater wound in the form of a criminal indictment for misconduct that far transcends what the IG report dealt with. . . .
Former Secretary Clinton’s intent. . .is not what matters in this case. Rather, the applicable legal standard is a mere “gross negligence” one, as specified in the standard national security non-disclosure agreement that she signed and its underlying criminal statutes.
And when you marry that to the fact that (among other things) her admitted failure to use the State Department’s special classified email system for classified (or potentially classified) information constituted a clear violation of a criminal prohibition, you start worrying big-time. And this is especially so given that Ms. Clinton did not just violate such laws inadvertently or even only occasionally — she did so systemically. In other words, her very email scheme itself appears to have been a walking violation of criminal law, one with the mens rea prosecution standard readily met.
Like everyone I know who has worked with FBI Director James Comey, Metcalfe considers him a man of “the utmost integrity.” Accordingly, Metcalfe says:
Given that the facts and law are so clear in Ms. Clinton’s case, it is difficult to imagine her not being indicted, unless Jim Comey’s expected recommendation for that is abruptly overruled at “Main Justice” (i.e., by Criminal Division Assistant Attorney General Leslie Caldwell, by Deputy Attorney General Sally Yates, or by Attorney General Loretta Lynch) or at the White House by President Obama (who customarily does not intervene in such things and would do so here either secretly or at no small political peril).
My view is that, more likely than not, a Comey recommendation to prosecute would be overruled at Main Justice. One way or another, however, the IG’s report signals stormy weather for Hillary Clinton.