Over the course of a year, many political pundits have prognosticated that the FBI’s criminal investigation of Hillary Clinton’s use of a private email server to conduct all business while secretary of state will result in no FBI referral for indictment given the difficulty of proving the required element of “intent” with respect to her actions. President Obama returned to this familiar refrain in his April 10th televised interview by describing her actions as “careless”, but adding, “She would never intentionally put America in any kind of jeopardy.” Interest in the investigation has vacillated with intermittent periods of intense scrutiny engendered by a leak of details of the FBI investigation or the production of a detailed accounts such as Robert O’Harrow’s excellent reporting in a March 27th Washington Post article. We now appear to be in a period where most have concluded it a fait accompli that a referral for indictment will not be forthcoming. However, many of the experts’ conclusions of “no referral coming” may be based upon a fundamental misunderstanding of “intent”.  Additionally, the vast majority of media reporting has focused upon Secretary Clinton’s conduct while secretary of state. However, her greatest criminal exposure may well lie in her actions vis a vis the private server after returning to private citizenship.  A few pertinent facts need be stated to support these conclusions.

The day after commencing her role as the secretary of state, Clinton signed an SF (Standard Form) 312. This document certified her understanding of the classified system, and her awareness of criminal penalties for disclosure of classified information.  Most importantly she therein acknowledged: “I agree that I shall return all classified materials which have, or may come into my possession of for which I am responsible because of such access…. upon the conclusion of my employment or other relationship that requires address to classified information.” She subsequently acknowledged in SF 312 that a failure to do such could be violations of 18 U.S.C  793 and/or 1924 of the Criminal Code of the United States.

In connection with her February 1, 2013 departure from the State Department, Clinton was clearly responsible under the State Department’s own records-management manual to prepare an inventory of personal papers and government materials, along with any proposal for retention of papers in the inventory for requisite State Department approval. The purpose of the procedure was, by its own terms, to certify that the documentary materials proposed for removal could be removed without diminishing the official records of the department or violation of national security or other restrictions on disclosure. The SF 312 requirements specifically encompassed in its coverage “Presidential appointees confirmed by the Senate.” Secretary Clinton did not comply with any of the SF 312 procedures upon her departure from the State Department, but rather, simply retained her private server. Her document retention included at least 22 TOP SECRET/SAP documents. She continued to maintain the server in the basement of her Chappaqua, New York home. In May 2013 she turned over the server to Platte River Networks that matriculated all of Clinton’s emails to another server. The emails were additionally backed up by a cloud-based backup server for recovery in the event the primary server failed. Platte River Networks was not authorized to be a custodian of these government records. For 22 months after Clinton’s departure from State, the existence of the server was unknown to the vast majority of the federal government and the public at large. Admittedly, some State Department personnel were aware of the server. The existence of the server was first discovered by the Benghazi Special Committee in early 2015, and was brought to public by the New York Times on March 24, 2015.

The absence of an evil motive as an element of violating these statutes is confirmed in opinions wherein the courts have rejected arguments of government leakers that their press leaks were not motivated by evil intent, but rather, with the best interests of the United States at heart.

The four most applicable Espionage Act statutes to Clinton’s post resignation detention of government records are 18 U.S.C. §§ 793, 798, 1924, and  2071. These statutes frequently define the mens rea requirement in terms of willfully, intentionally, and knowingly. A comprehensive analysis of all elements of these statues would require a multipage brief. It is critical to note that these various mens rea do not include proving intent to injure the United States. Nevertheless, mens rea requirements are slippery to define. In essence, the term “willfully” can best be defined as an intentional act with knowledge that it violates the law. “Specific intent”, applicable to some of the foregoing statutes, is defined as intending to commit a particular act with knowledge of a consequence to follow or intending a consequence. “Knowingly” refers generally to being aware that the conduct is of such nature as is prohibited by law, or in other contexts, that certain prohibited consequences will be the natural consequence of the action. Section 793(f) even lowers the requisite mens rea to gross negligence, generally defined as a very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference so far as other persons are concerned. 

In summary, Secretary Clinton’s conduct included (1) Written acknowledgement of the unlawfulness of maintaining personal custody of classified information after departure from her post as secretary of state; (2) Her acknowledgement, in March 2015, that she was familiar with the rules governing classification; (3) Her conscious decision to forego complying with the known requisite procedures, concerning documentation or its removal upon departure from the State Department; (4) Her unilateral decision to freely move the governmental documents to the Platte River server; and (5) Her subsequent unilateral destruction of documents including some that were clearly governmental as opposed to private in nature

The foregoing conduct reflects an intentional private retention of classified and other federal records whose proper place of custody was with the State Department. There is evidence that the acts were done not only intentionally, but with knowledge of the unlawfulness of the acts as opposed to being a product of mere carelessness on the part of Secretary Clinton. For example, unilaterally avoiding the SF 312 requirements upon her departure from State, coupled with retention of the materials for 22 months in the face of Freedom of Information Act (“FOIA”) and a congressional subpoena to the State Department, confirms that another motive other than her stated “convenience” was present in Secretary Clinton’s actions. In short, she wished to place the documents beyond the purview of public scrutiny under FOIA or through subpoena by retaining them in her custody as a private citizen. Ultimately, the discovery of her personal custody over the private server necessitated the reopening of previously closed FOIA lawsuits for purposes of supplementing the requested productions with Secretary Clinton’s emails.  Her private retention additionally explains why the first subpoena from the Benghazi Special Committee to the State Department, encompassing all related Benghazi documents, resulted in the production of a grand total of eight Clinton emails. After the discovery of the private email server, Clinton was to produce approximately 55,000 pages of federal records

The cited statutes from the Espionage Act can, for the most part, be summarized as prohibiting the willful or intentional removal of classified information from its proper place of custody, prohibiting the willful concealment of classified information that has been maintained by the government, and prohibiting intentional destruction of classified materials. In the case of §§ 793 and 2071, the materials need not rise to the level of “classified.” Her private retention of the government records for 22 months and transfer to Platte River evidences intent to conceal the existence of the records. Her destruction of some of the government records certainly appear to fulfill the various mens rea requirements of one or more of these federal statutes. Indeed, her compilation of the records without the participation of the State Department coupled with the deletion of so called “private emails” is among the most damning evidence against Clinton. Completion of the FBI’s investigation and any referral awaits  

Andrew F. Emerson is an attorney in Dallas, Texas and a frequent legal commentator. He can be reached by Twitter at Andrew Emerson@ConservAnalysi1