Former Secretary of State, Hillary Clinton, has recently come under fire for her use of a personal email account for official business while in office.  In a press conference to address the controversy, Clinton claimed it was more convenient for her to use her personal email because then she only had to carry one electronic device instead of two—apparently, her “smart phone” was unable to manage multiple email accounts.  Although Clinton claims she has fully complied with her duties to preserve emails and has provided the State Department with over 55,000 pages of printed emails, Clinton also admits to having deleted thousands of emails that were personal and not related to official business.

Naturally, the question of whether Clinton’s use of a private e-mail account is against the law has risen.  Her critics have cited numerous ways in which she may be criminally prosecuted.  This article will address two issues, 1) willful destruction of records under Section 2071 of Title 18 of the United States Code, and 2) falsifying or concealing a material fact in signing a OF-109 form.

18 U.S.C. § 2071: Willful Destruction of Records

Section 2071 is an old law with its original version dating back to 1853.  (United States v. Rosner).  In McInerney v. United States, the court explained that Section 2071 is intended to protect official records and preserve evidence that concern the government and the public.  The current version of Section 2071 states:

(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.

Historically, Section 2071 has been used to prosecute individuals who unlawfully destroy or remove government records.  In United States v. Rosner, the court concluded that the purpose of the law “is to prevent any conduct which deprives the Government of the use of its documents, be it by concealment, destruction, or removal.”  Further, courts have interpreted the statute to require that the individual acted willfully to violate the statute in order to be convicted.  In United States v. Moylan, the court defined willfulness as acting “intentionally, with knowledge that [one is] breaching the statute.”

To obtain a conviction, a prosecutor would first have to prove that the emails Clinton deleted were governmental records.  Second, the prosecutor would have to prove that Clinton willfully violated the statute, which would be a high burden for the prosecution to meet.

Form OF-109: Falsifying or Concealing a Material Fact

When terminating employment in the Department of State, employees may complete a form OF-109.  However, it is currently disputed how commonplace use of this form is.  Clinton’s critics, namely Republicans, assert that the form is customarily used, where as Clinton’s defenders argue that use of the form is not standard procedure.

Upon signing the OF-109 form, the signatory affirms a list of statements, including:

1. I have surrendered to responsible officials all classified or administratively controlled documents and material with which I was charged or which I had in my possession, and I am not retaining in my possession, custody, or control, documents or material containing classified or administratively controlled information furnished to me during the course of such employment or developed as a consequence thereof, including any diaries, memorandums of conversation, or other documents of a personal nature that contain classified or administratively controlled information.

 

2. I have 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 or USIA.

Further, the signatory acknowledges in point six that “Section 1001 of Title 18 . . . provides criminal penalties for knowingly and willfully falsifying or concealing material fact in a statement or document submitted to any department or agency of the United States . . . .”  If an employee were to sign a form OF-109 and knowingly falsify or conceal a material fact in the statement, the employee may be subject to a fine and up to five years of imprisonment.

If Clinton did sign a OF-109 form when she departed from the State Department, it is fairly clear that she would have violated the law because at that time she had not surrendered all documents to the department.  But, as of yet, there is no record of Clinton having signed the form.  On Tuesday March 17, spokeswoman for the State Department, Jen Psaki, stated that the department was “fairly certain” that Clinton did not complete the form in question.  If, as the State Department believes, Clinton did not complete a Form OF-109, then she would not be subject to a criminal penalty or fine, as there is no penalty for not completing the form.

Conclusion

Many may, fairly, criticize Clinton’s decision to use her personal email as unwise.  Nonetheless, with the information currently available, it does not appear that she violated any laws.  As new information is uncovered on this subject, that conclusion is subject to change.  If an OF-109 form surfaces or evidence is found that documents were intentionally destroyed in violation of Section 2071, Clinton may be subject to criminal penalties.