alt.legal: Could Hillary Clinton Go To Jail?
Does Hillary Clinton bear potential exposure to be held in contempt? And what are the right questions to be asking about data, preservation, life, the universe, and everything?
Disclaimer: As always, the opinions and views contained herein are my own, and not those of Thomson Reuters, my co-writers on alt.legal, or Above The Law. Moreover, they really aren’t that political, so please chill out. Obviously.
The Supreme Court noted, in McGrain v. Daugherty (1927): “experience has taught … that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed.” Sanctions and contempt are today’s “means of compulsion,” both in the e-discovery world and with respect to Congress.
Does Hillary Clinton bear potential exposure to be held in contempt? Is there a chance that Clinton could go to jail based on her comments at her super-awkward press conference, stating that she deleted about 30,000 emails that she considered personal in nature? What are the right questions to be asking about data, preservation, life, the universe, and everything?
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Forget The Politics
We all know that there are political implications to the Clinton email scandal—Fox News and House Republicans are going to kirk out about this until at least November 2016. But forget the politics for a minute. Let’s set aside the fact that storing emails privately is just a bad idea, potentially a national security risk, maybe in violation of diplomatic security protocols, and most likely a violation of the Federal Records Act.
Set aside that her use of her private email server results in an unlawful acquisition of government data… not altogether un-Snowden like, although we have no reason to believe she’s leaked any of those documents or sought asylum in Russia.
Set all that noise aside and just focus instead on Clinton’s deletion of emails she claimed were personal.
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Don’t Delete, Just Review!
Clinton stated that she turned over a number of documents that hit on broad search terms. Without getting into the weeds, the search terms Clinton’s attorneys used did indeed seem inclusive to me, but as any e-discovery professional knows, there is definitely the possibility that the documents that weren’t returned by the searches were relevant. The kicker here is that she did not simply withhold these documents—she deleted them. She actively sought to cease preserving them and give them no human review.
Jason Baron, formerly director of litigation at the National Archives, notes that the other 30,000 documents should have been reviewed manually. If an email appears mostly personal but “also contains a sentence or paragraph related to government business, then that email is a government record appropriate for preservation at the State Department.” (FYI, 30,000 documents is really not a lot of documents—my company routinely and cost-efficiently reviews 30,000 documents in a week.)
The Whiff of Spoliation
For me, as a former litigator and current e-discovery professional, there’s a lot wrong here. The whole thing smells like e-discovery spoliation, a violation of the duty to preserve potentially relevant information. Her self-collection was not cool to begin with, and her search terms weren’t negotiated with the requesting party. Again, deleting the personal emails instead of simply withholding them is bad news too.
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Sanctions can cause some serious pain, including an adverse jury instruction, default judgment, or even contempt of court. My favorite spoliation sanctions case is Victor Stanley v. Creative Pipe 296 F.R.D. at 500 (D. Md. 2010), where Judge Grimm holds the defendant that willfully deleted evidence was in civil contempt of court, and accordingly, the defendant be imprisoned for a period not to exceed two years unless and until fees and costs are paid.
If Hillary Clinton had behaved this way as a defendant in active litigation, a court would likely issue some sanctions, and depending on how egregious her behavior was, the sanctions could go up to and including civil or criminal contempt.
But she’s up against a congressional subpoena, not civil litigation. I thought Congress was toothless and incapable of doing anything?
Congressional Contempt
Congress possesses the power to hold a person in criminal contempt to punish acts committed by people obstructing the legislative process, which recently is typically in response to the refusal of a witness to comply with a congressional subpoena. Historically, the power of contempt is not frequently deployed, but in the last eight years we’ve seen the likes of Harriet Miers, Joshua Bolten, Eric Holder, and Lois Lerner be threatened with or found in contempt of Congress. You can find a good primer on how congressional contempt works here (PDF). As Clinton has already admitted that she deleted her “personal” records, criminal contempt could operate to punish her bad act under 2 U.S.C. 192, punishable by a small fine and “imprisonment in a common jail for not less than one month nor more than twelve months.”
One particularly instructive Supreme Court case is Jurney v. MacCracken (1935). MacCracken, a lawyer, was subpoenaed by the Senate to provide all books of account and papers relating to air and ocean contracts. Before producing these documents, some of his clients stopped by with his law practice partner and asked to see some of their files that were “wholly personal and unrelated to matters under investigation.” Those clients then removed or destroyed some of the documents.
Wait, this sounds familiar, you say? So how did this turn out for MacCracken?
The Senate held him in contempt and he served ten days in jail.
Yikes.
The Likely Outcome
Okay, sounds scary, but what’s really going to happen here? At the end of the day, the boys in blue are unlikely to show up and take away Hillary Clinton in cuffs. Because Congress can turn this case of Clinton the contemnor over to the Department of Justice, who could rely on prosecutorial discretion … to do nothing. From an interview with Rep. Trey Gowdy (R-S.C.), the star ex-prosecutor that is leading the investigation on Benghazi: “Even if Clinton were criminally cited for contempt, Obama’s Department of Justice would almost certainly not act on it.”
There’s a long process ahead, and it’s unlikely that Clinton is actually going to end up in jail. But there’s a small chance that Clinton makes further missteps, refuses to cooperate with a Congressional subpoena, and Gowdy and Co. decide to try and lock her up. It’s highly unlikely, but it would be exciting to watch.
Ed Sohn is a Global Director at Thomson Reuters’ award-winning legal outsourcing company, Pangea3, which employs approximately 1,000 full-time attorneys globally. After five and a half years as a Biglaw litigation associate, Ed spent over two years in New Delhi, India, managing hundreds of Indian attorneys and professionals in delivering high-value managed legal services. He now focuses on developing integrated technology and outsourced legal solutions. You can contact Ed about e-discovery, managed legal services, theology, chess, Star Trek The Next Generation, or the Chicago Bulls at edward.sohn@thomsonreuters.com.
