Obstruction of Justice

It is a crime — obstruction of justice — to destroy even one message to prevent it from being subpoenaed.

so writes Ronald Rotunda in the Wall Street Journal.

...When Congress subpoenaed Mrs. Clinton’s official communications, or when nongovernmental organizations filed Freedom of Information Act requests for the same, the State Department could not turn over her emails because it did not have them.

...By her own admission, Mrs. Clinton destroyed more than 30,000 emails once the subpoenas started coming in.

...How did those reviewing the emails define “personal”? For instance, if Mrs. Clinton had emailed a foreign government about a donation to the Clinton Foundation, was that message—whatever its interest to watchdogs or voters—tossed in the trash bin?

...The law says that no one has to use email, but it is a crime (18 U.S.C. section 1519) to destroy even one message to prevent it from being subpoenaed. Prosecutors charging someone with obstruction don’t even have to establish that any investigation was pending or under way when the deletion took place.

...Legal commentators call this “anticipatory obstruction of justice,” and the law punishes it with up to 20 years imprisonment. The burden of proof is light.

...In addition, rules governing the practice of law forbid attorneys from anticipatory obstruction of justice. These ethics rules are drafted by the American Bar Association, but they are also reflected in real law. Virtually every state court adopts them, and violation can lead to disbarment. Rule 3.4 (which has been around for many years) provides that an attorney shall not unlawfully “conceal a document or other material having potential evidentiary value.” Mrs. Clinton is a lawyer governed by these rules. So are any attorneys who advised her to delete her emails.

When the Senate Watergate Committee discovered that President Richard Nixon had a very extensive inventory of White House tapes, both the committee and the special prosecutor subpoenaed them. At the time, some wondered why Mr. Nixon, a lawyer before entering politics, didn’t simply destroy the tapes. The answer was that doing so could have led Mr. Nixon to an indictment for obstruction as well as disbarment.

At the time, I was assistant majority counsel to the Senate Watergate Committee, so I remember that period well. Mrs. Clinton should remember it too: She worked on the House Impeachment Committee, which warned Nixon not to destroy the tapes.

Here’s another reason Mrs. Clinton should know about obstruction: Congress enacted section 1519, making the crime easier to prove, in 2002, as part of the Sarbanes-Oxley Act. As senator, she voted for the law.

Read more here.