Democrats are touting an e-mail exchange between Colin Powell and Hillary Clinton as some sort of a defense of Clinton’s use of private email to conduct State Department business. However, Shannen Coffin at NRO shows that what Powell told Clinton actually makes her conduct even harder to defend.
Why? Because, as Coffin says, “the e-mail exchange confirms that Clinton was aware that her private server circumvented federal records laws from the very beginning of her tenure as secretary of state.”
Clinton was already well into setting up her private e-mail server when she communicated with Powell in late January 2009, a few days after taking office. According to the FBI, the “Clintonemail.com” domain had been registered for her use on January 13, 2009, and she had started transitioning to use of that email address during the same period. Thus, Clinton had already made the decision to use a private e-mail server before she discussed the matter with Powell.
Powell described for Clinton how and why he used private email. He wrote:
What I did was have a personal computer that was hooked up to a private phone line (sounds ancient). So I could communicate with a wide range of friends directly without it going through the State Department servers.
Powell added that he also used his private account “to do business with some foreign leaders and some of the senior folks in the Department on their personal email accounts.”
This shows that Powell, as Clinton has been insisting, Powell used private email to conduct official business. But this is no defense for Clinton doing so. The legality and appropriateness of this behavior is not contingent on whether Powell engaged in it. And, of course, Powell is not running for president.
But Powell had more to say to Clinton, and this is where his email hurts Clinton’s position. He warned her that there is a “real danger” in her plan to use a BlackBerry:
If it is public that you have a BlackBerry and it [is] government and you are using it, government or not, to do business, it may become an official record and subject to the law.
Accordingly, Powell advised Clinton to “be very careful.” “I got around it by not saying much and not using systems that captured the data,” he added.
This shows that Clinton was warned about her obligation to preserve records under federal law and was aware that her private email server would help her circumvent those requirements.
What does this knowledge mean in legal terms? Coffin tells us:
18 U.S.C. § 2071(b) makes it a felony when the official custodian of federal records “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same.” The evidence of Mrs. Clinton’s concealment and even destruction of federal records is overwhelming. The key question is whether that conduct was done “willfully,” that is, intentionally and with full knowledge of its illegality.
Congressional Democrats’ release of the Powell e-mail provides strong evidence of that missing link.
The FBI let Clinton off the prosecutorial hook. However, given her run for the presidency, her case is very much on trial in the court of public opinion.
The release of the Powell email was intended to boost Clinton’s case in that tribunal, and maybe it will. Properly analyzed, however, it is good evidence for the “prosecution.”