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posted by martyb on Monday March 30 2015, @09:27AM   Printer-friendly
from the of-course-there-are-no-backups dept.

Anyone who follows American politics will have heard of Hillary Clinton's email server. Rather than using an official State Department address, she chose to use a private server for her official email. Federal law requires all official email to be archived on government servers. Armchair lawyers have pointed out that it doesn't require the use of government servers to send and receive the email, but the archival requirement is clear. This requirement was clearly violated in this case: in response to a subpoena, Hillary Clinton's private staff extracted emails from her private server and turned them over to the government. The contents of the server itself were never made available to the government, and now she has had the server erased:

Hillary Clinton wiped “clean” the private server housing emails from her tenure as secretary of state, the chairman of the House committee investigating the 2012 terrorist attacks in Benghazi said Friday.

“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,” Rep. Trey Gowdy (R-S.C.), chairman of the Select Committee on Benghazi, said in a statement.

As Popehat tweeted:

@Popehat
I ask you, who among us hasn't wiped a server clean after its contents were requested by subpoena?

I naively wonder why she isn't in jail, but that's just me. Comments and views from those interested in American politics?

 
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  • (Score: 2) by linuxrocks123 on Tuesday March 31 2015, @02:06AM

    by linuxrocks123 (2557) on Tuesday March 31 2015, @02:06AM (#164602) Journal

    Hillary Clinton did respond to the subpoena. She just deleted everything non-responsive on the server afterwards. So you can't get her on not complying with the subpoena. That's why you're trying to go for spoilation, but it's not applicable here as far as either of us has been able to find. Given that Hillary Clinton is smart, she probably had a lawyer look into exactly this issue before destroying the non-responsive emails. So, most likely, she's in the clear?

    Sleazy? Kinda. But her opponents don't like what she did because it means they can't pour through her private correspondence to try to find things they can pluck out of context and use in sleazier negative campaign ads. Fight fire with fire, right?

    Starting Score:    1  point
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  • (Score: 2) by hemocyanin on Tuesday March 31 2015, @03:42AM

    by hemocyanin (186) on Tuesday March 31 2015, @03:42AM (#164629) Journal

    It strikes me as odd that lying to Congress is worth 5 years (see Clapper) but destroying documents under subpoena is worth nothing but excuses and yeah-buts. What did Oliver North get some jail time for?

    Anyway, your point seems to be the "Fox guarding the henhouse" fallacy, where we are supposed to just trust that she turned over everything, despite there being significant gaps. That's baloney and it totally doesn't fly in any other litigatory context.

    As for that extra-draconian provision I mentioned earlier (up to 20 years), it appears there is some question about whether it is not applicable in legislative investigations (I had originally thought it was out -- maybe not):

    see PDF pages 64 - 67: Obstruction of Justice by Destruction of Evidence: http://fas.org/sgp/crs/misc/RL34303.pdf [fas.org]

    Beyond the bankruptcy matters to which the section explicitly refers,406 however, the case law suggests that, as long as a matter is within the investigative purview of a federal executive branch agency, the section extends to the obstruction of other judicial branch investigations such as those of the grand jury.407 The same logic might be used to bring destruction of evidence sought by Congress within the section’s purview.

    Interpreting: https://www.law.cornell.edu/uscode/text/18/1519 [cornell.edu]

    • (Score: 2) by linuxrocks123 on Tuesday March 31 2015, @06:20AM

      by linuxrocks123 (2557) on Tuesday March 31 2015, @06:20AM (#164671) Journal

      Kudos for linking to the Congressional Research Service. That's an interesting statute, although I think it's probably not applicable: changing your phrasing one place and not another is indicative of Congressional intent. But even if the statute is applicable, she can say she only deleted personal emails and therefore had no intent to impede an investigation. It's just impossible to tell whether she's telling the truth, and the burden of proof is on the state.

      I think where you're going wrong fundamentally is this isn't a litigatory context. Also, by the way, the interpretation of "tangible item" in the CRS report you linked is out-of-date. That interpretation was overturned on appeal in the Supreme Court case Yates v. United States, a case moderately famous for Kagan's dissent citation of Dr. Seuss.

    • (Score: 2) by linuxrocks123 on Tuesday March 31 2015, @06:34AM

      by linuxrocks123 (2557) on Tuesday March 31 2015, @06:34AM (#164674) Journal

      You need to look up what a "fallacy" is. In any case, of course we don't know whether she destroyed evidence. That's the point. The state would have to prove she did.

      • (Score: 0) by Anonymous Coward on Tuesday March 31 2015, @07:57PM

        by Anonymous Coward on Tuesday March 31 2015, @07:57PM (#165011)

        Those pesky 5th, 6th, and 14th amendments, making Presumption of Innocence the standard. Too bad we can't do away with that nonsense!

        'Its better to let 100 guilty men go free than put an innocent man in jail,' and all that. Scumbags like Hillary are where its the most important to ensure the constitution and law are upheld, because setting constitution-eroding precedents against scumbags will come to bite everyone else in the ass very quickly. So what if she got away on a technicality? Better that than allowing unconstitutional fishing expeditions to become the standard and common practice.

      • (Score: 2) by hemocyanin on Tuesday March 31 2015, @09:28PM

        by hemocyanin (186) on Tuesday March 31 2015, @09:28PM (#165068) Journal

        I know there's no such thing as "fox henhouse" fallacy -- that's way I said I just made it up in one of my points. It's a sort of humor.

  • (Score: 2) by hemocyanin on Tuesday March 31 2015, @04:14AM

    by hemocyanin (186) on Tuesday March 31 2015, @04:14AM (#164645) Journal

    Some interesting citations from Ollie's appeal: http://www.leagle.com/decision/19891360716FSupp644_11243.xml/U.S.%20v.%20NORTH [leagle.com]

    18 USC 2071 totally calls into question the cannard -- "oh, HRC did what was legal at the time, but then the law changed." https://www.law.cornell.edu/uscode/text/18/2071 [cornell.edu]

    HRC removed records from the official location by setting up an offsite mail server, and then she destroyed the records. This one is worth up to three years -- and disqualification from public office.

    (a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
    (b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.

    Of course, the neo-con HRC lovers will say: the emails never went to her public office so they didn't get removed, and feel all smug and moral. That still won't get her around paragraph (b) because she definitely had custody and she definitely destroyed them.

    • (Score: 2) by linuxrocks123 on Tuesday March 31 2015, @06:37AM

      by linuxrocks123 (2557) on Tuesday March 31 2015, @06:37AM (#164675) Journal

      Oh wow, Clinton is a neo-con. Someone should tell her; I think she's going for the Democratic nomination instead.

      That statute appears to require a formal demand have been made. No such demand was made at the time she deleted her personal emails.

      • (Score: 2) by hemocyanin on Tuesday March 31 2015, @07:53AM

        by hemocyanin (186) on Tuesday March 31 2015, @07:53AM (#164686) Journal

        TFS indicates there was a subpoena -- it doesn't get more formal than that.

        Clearly though, you're a die hard HRC supporter. The facts won't matter. They don't matter to me either. She's a neo-con warmonger and deserves prison for that fact alone. As do Obama, GWB, Cheney -- basically the whole entire lot of them.

        Anyway, it is my sincerest hope there was a subpoena and she gets to go the way of Ollie North.

        • (Score: 2) by linuxrocks123 on Tuesday March 31 2015, @08:19AM

          by linuxrocks123 (2557) on Tuesday March 31 2015, @08:19AM (#164691) Journal

          There was a subpoena for her official emails, not her personal emails. She claims she only deleted her personal emails.

          • (Score: 2) by hemocyanin on Tuesday March 31 2015, @02:49PM

            by hemocyanin (186) on Tuesday March 31 2015, @02:49PM (#164819) Journal

            CHRIST.

            She does not get to make the selection on her own.

            Do you not comprehend Fox guarding the chicken house?

            Imagine Debian.org sued MS for copyright infringement, demands source of a certain library. MS says "we looked -- there's no infringing code, we're not handing anything over." You'd be totally satisfied with that answer because MS would never lie. Right? You'd be 100% OK with that. That's the position you are taking and exists in no other litigatory or investagatory context. Applying your method to HRC is pure unadulterated favoritism and power fetishism.

            • (Score: 2) by linuxrocks123 on Tuesday March 31 2015, @03:07PM

              by linuxrocks123 (2557) on Tuesday March 31 2015, @03:07PM (#164832) Journal

              Discovery in a lawsuit is a completely different situation, and there are very complex rules related to it. By the way, most companies with, "you must delete all your emails older than X weeks" policies typically have those policies because they want to have nothing responsive in discovery when they're sued for anything.

              "Fox guarding the chicken house" is a not a law. It's pounding on the facts, and the table, rather than the law. You're grasping for anything you can hold onto to try to impose a duty to preserve all her emails on her. You think what she did SHOULD have been illegal. I would, perhaps, agree with that.

              But it wasn't illegal. Accept that, and move on.

              • (Score: 2) by hemocyanin on Tuesday March 31 2015, @04:59PM

                by hemocyanin (186) on Tuesday March 31 2015, @04:59PM (#164888) Journal

                You keep pretending that a subpoena means nothing. In the context of a congressional investigation, FRCP 34 applies to the subpoena (via 2 USC 190m) and under that rule, it is a Judge, not the party, who gets to decide if something is discoverable.

                https://www.law.cornell.edu/uscode/text/2/190m [cornell.edu]
                https://www.law.cornell.edu/rules/frcp/rule_34 [cornell.edu]

                Plus there is a law over 100 years old, the same one that got Oliver North prison time, that is a direct bar against what she did:

                https://www.law.cornell.edu/uscode/text/18/2071 [cornell.edu]

                There is also an argument that 18 USC 1519 applies to this situation as I pointed out in this post: http://soylentnews.org/comments.pl?sid=6773&cid=164629 [soylentnews.org]

                You need to accept the fact that "she did nothing illegal" is far from a settled matter and not something you can just propose as fact.

                • (Score: 2) by linuxrocks123 on Tuesday March 31 2015, @11:44PM

                  by linuxrocks123 (2557) on Tuesday March 31 2015, @11:44PM (#165135) Journal

                  Okay, you're just outright making shit up now. 2 USC 190m doesn't say anything like that. Once again, there's no discovery when there's no lawsuit. This isn't worth my time anymore.

                  • (Score: 2) by linuxrocks123 on Tuesday March 31 2015, @11:46PM

                    by linuxrocks123 (2557) on Tuesday March 31 2015, @11:46PM (#165136) Journal

                    Sorry, that was a little harsher than I intended. Looking back, I've been kind of rude to you in this thread. I didn't intend to be, I've just been really busy. Let's just agree to disagree.

        • (Score: 0) by Anonymous Coward on Tuesday March 31 2015, @07:59PM

          by Anonymous Coward on Tuesday March 31 2015, @07:59PM (#165013)

          Clearly though, you're a die hard HRC supporter.

          Yes, everyone who disagrees with you is a die hard HRC supporter. Its not that they're concerned with upholding the law and the constitution or anything, their sole opposition to you is purely that they worship HRC.

          • (Score: 2) by hemocyanin on Tuesday March 31 2015, @09:35PM

            by hemocyanin (186) on Tuesday March 31 2015, @09:35PM (#165073) Journal

            I'm a hardcore bill of rights person. There is nothing in the bill of rights that even hints that destroying evidence sought in a subpoena is a protected action. The subpoena process and the associated court rules are due process, and those rules were broken by HRC.

            Am I gleeful that she broke the law because I would wish that we could have a NOT-neocon-warmonger running in at least one side of the DNCGOP monoparty -- fucking yes I am. I would be gleeful over anything that might keep that warmonging HRC from polluting the next election. I certainly wouldn't advocate breaking the Bill of Rights, but that isn't an issue here at all and this could have been completely resolved if for example, a Judge was allowed to do an in camera review of the server and then say, these emails are in, and these are out.

            Remember -- it was HRC's choice to commingle the data. She didn't have to make that choice, but having made it, she must suffer the consequences which are that she is not the final arbiter of whether things are discoverable. Not under the Constitution, the USC, or the FRCP.

            • (Score: 0) by Anonymous Coward on Wednesday April 01 2015, @12:06AM

              by Anonymous Coward on Wednesday April 01 2015, @12:06AM (#165144)

              The subpoena process and the associated court rules are due process, and those rules were broken by HRC.

              The judge and court disagrees with you. But they're just a bunch of morons anyway, you know the law and can do their jobs far better than them.

      • (Score: 2) by hemocyanin on Tuesday March 31 2015, @08:01AM

        by hemocyanin (186) on Tuesday March 31 2015, @08:01AM (#164690) Journal

        Oh -- and you imply that Democrats (AKA: New GOP) aren't neo-cons. The Democrats haven't liberals for decades if you haven't noticed -- they're military industry tools, wall street tools, war mongers, surveillance junkies -- Jesus, if Nixon could have done half what Obama does, he'd be creaming his pants and laughing maniacally. Obama even got Nixon's health care plan passed. You Democrats are about as liberal as Pol Pot.