Soon after the New York Times broke the story of Hillary Clinton’s use, exclusively, of private email during her stint as Secretary of State, Shannen Coffin argued that Clinton may well thereby have committed a felony. Coffin noted that federal criminal law makes it a felony when any custodian of official government records, which includes emails, “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same.” Clinton concealed all of her emails for a period of two years. And she obliterated tens of thousands of them.
Coffin now returns to this topic. He addresses the argument Clinton made at her press conference that she complied with federal records laws, and thus did not unlawfully delete records, because these laws leave it up to her, as the employee who created or received an e-mail, to decide whether that e-mail must be preserved under the Federal Records Act.
The argument is specious. To be sure, it is up to the employee or official (in this Clinton) to make an initial determination as to whether an email must be preserved. But the State Department’s records management manual makes clear that the official must also “prepare an inventory of personal papers and non-record materials proposed for removal” and then “request a review of the materials proposed for removal.”
After that, there’s a formal certification procedure. Only after certification is an official authorized to “remove” records from the Department’s custody. The manual also states that this review process is required for “Presidential appointees confirmed by the Senate.” Thus, they plainly applied to Clinton.
The reason for this procedure is obvious. If the official’s deletion decisions were not subject to such a review process, the official could delete whatever materials she wanted to, and the record retention requirements would be discretionary, not mandatory.
It is undisputed that Clinton did not take the steps that are required before documents may be removed from Department custody. In fact, it is undisputed that the deleted emails were never in the Department’s custody.
For that matter, the emails that Clinton didn’t destroy were not in State’s custody for a period of about two years following her departure from the Department. This too is a violation, Coffin notes. Thus, the case that Clinton committed the felony of willfully and unlawfully concealing and/or destroying records seems strong.
Coffin also points to an additional crime Clinton may have committed. The State Department’s records manual requires that officials about to leave the Department be reminded of the requirements for the removal of personal papers and non-record materials, and that they execute Form OF-109. In this form, the departing official certifies, under penalty of perjury, that she has “surrendered to responsible officials all unclassified documents, and papers relating to the official business of the Government acquired by me while in the employ of the Department.”
Did Hillary sign From OF-109? If so, then it appears she committed the crime of perjury.
It may be that Clinton didn’t sign the form. In that case, there is no perjury. However, we would then want to know how Clinton avoided the signing requirement.
For now, the big question is: where is Hillary Clinton’s Form OF-109?