Last week I asked about Hillary Clinton’s email practices, Is it Espionage?  Former Secretary of State Hillary Clinton insisted that she “had broken no rules” to conduct government business through the use of a private email service in lieu of the U.S. government’s unclassified system, the Non-classified Internet Protocol (IP) Router Network (abbreviated as NIPRNet) and the Secret Internet Protocol Router Network (SIPRNet).  These are a system of interconnected computer networks used by the U.S. Department of Defense and the U.S. Department of State to transmit classified information.  

The U.S. government has spent billions of dollars developing, deploying and protecting its Internet protocol router networks to enable authorized government officials to conduct the business of government, properly exchange information and intelligence, up to and including information classified SECRET, with others in the government (and their contractors) that are authorized and entitled to have it. 

The Democratic Presidential candidate under investigation by the FBI has disclosed that her aides had deleted more than 30,000 emails that she deemed personal.  30,000 emails printed out represents a stack of 60 reams of paper, a stack 10 feet tall.  When the FBI retrieved the spools of microfilm, the Alger Hiss “Pumpkin Papers” printed out to a stack 4 ½ feet tall. 

Attorneys fresh out of law school are familiar with the legal issue known as “spoliation of evidence.”  When parties fail to produce relevant evidence within their span of control, evidence which they are otherwise naturally expected to possess, the U.S. legal system allows and even mandates that unfavorable presumptions be drawn against them.  So when some item of relevant evidence -- whether documents, physical objects or data relevant to an ongoing legal matter -- is destroyed, discarded or modified in some way, the U.S. legal system allows us to presume that the missing evidence was unfavorable to that party and allows us to draw conclusions accordingly.  The classic junior high school excuse, “the dog ate my homework,” isn’t valid under the law when the disappearance is suspicious.

Spoliation of evidence is prohibited by an array of laws and regulations.  Also, anyone who destroys relevant evidence or assists in such destruction is subject to criminal prosecution, civil fines, tort liability, exclusion of testimony and dismissal of claims, as well as adverse evidentiary inferences.  Intentional destruction or negligent loss of evidence suggests that the party in possession believed that it was harmful to them, and that consciousness of guilt led them to destroy, hide or lose it.

Hillary Clinton said the deleted messages “included private emails with her husband, or involved personal matters like her yoga classes or planning for the wedding of their daughter, or the funeral of her mother.”  These private emails that involved personal matters could possibly account for a ream of paper.  That leaves 59 reams of paper “that the dog ate.”  This is the very definition of spoliation of evidence.

Secretary Clinton said she regretted relying on a private email account while in office, rather than a government account.  She blamed the Obama administration for a lack of policy guidance.  She also said she used the private account “as a convenience” so that she didn’t need to carry separate phones for personal and official communications.  Photographs show Mrs. Clinton with multiple personal electronic devices.

She said she had never sent any classified material on the private account, using other staffers’ government accounts for that.  Emails now released reveal that her State Department minions were directed to strip off the classification headers and footers off classified documents and input those documents, or even essential information that would make the information classified.  Whether she directed others to do it or she performed the action herself, the FBI has reported thousands of cases exist where classified information was moved to an unsecured email server. 

Seventy years ago, senior State Department official Alger Hiss found a way to remove classified information from State Department offices.  Hillary Clinton found a way to remove classified information from State Department offices.  The essence of espionage is to get classified documents out of a Sensitive Compartmented Information Facility, a SCIF, and into the hands of “someone not authorized to receive them.” 

Among those charged under the Espionage Act of 1917 were Socialist Party of America candidate, Eugene V. Debs, the communists Julius and Ethel Rosenberg, and most recently, whistleblowers Daniel Ellsberg, Bradley Manning, and Edward Snowden. 

Being charged under the Espionage Act was appropriate for those who obtained any information relating to the national defense and delivered that information to someone who was not authorized to have it.  The former State Department official, Alger Hiss, typed classified information on his office typewriter, slipped the copies into a briefcase, removed classified information from the State Department, and provided them to his Soviet handler who photographed and microfilmed them.  The FBI wished to prosecute Alger Hiss for espionage, but the Justice Department indicated the statute of limitations had run out and Hiss was convicted of the lesser crime; perjury, for lying to the FBI.

The development of the Espionage Act was based on the Defense Secrets Act of 1911 along with the Trading with the Enemy Act.  These were enacted shortly after the United States entered World War I.  The purpose of the laws was in response to a growing number of spies who acquired and conveyed highly sensitive information which could “interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies.”

In his December 7, 1915 State of the Union address, President Woodrow Wilson asked Congress for legislation to create the Espionage Act.  He said, in part, “I urge you to enact such laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation.  Such creatures of passion, disloyalty, and anarchy must be crushed out.  They are not many, but they are infinitely malignant, and the hand of our power should close over them at once.  They have formed plots to destroy property, they have entered into conspiracies against the neutrality of the Government, they have sought to pry into every confidential transaction of the Government in order to serve interests alien to our own.”

A commenter of the article last week got it right.  He observed,

“While the spies of yesteryear were motivated by ideology, the thoroughly modern Clintons are totally commercial.  How quickly we forget the trading of US weapons designs to ChiCom bundlers of campaign cash, and the DOJ investigations terminated before further treason was exposed.  Do not imagine for a second that the home brew server was merely a FOIA foil and not a blame free method of transferring state secrets to our nation’s enemies for cash paid into the Clinton Global Initiative.”

Mark A. Hewitt is the author of espionage thrillers. www.markhewitt.com