Shannen Coffin, former counsel to Vice President Dick Cheney, told Fox’s Megyn Kelly on Wednesday night that there is “no doubt” that former Secretary of State Hillary Clinton committed a felony when she didn’t turn over her email records as she left the State Department — if she signed the usual exit form given to all exiting employees.
The State Department’s “Separation Statement,” Form OF-109, can be seen here.
It requires the outgoing State Department employee to certify that all “classified or administratively controlled documents and material” have been “surrendered to responsible officials.” But it doesn’t just require the return of classified materials. It also requires the employee to certify that she has “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.”
We don’t know if there were any classified or administratively controlled materials in the emails on Clinton’s home server. Perhaps she made sure no classified information reached her server homebrew. (If classified information was stored on her home server, then that would raise an entirely different set of concerns and potential legal problems for Clinton. Just ask David Petraeus.)
However, we do know positively that all emails “relating to the official business of the Government” were not returned to the government before the former secretary of state walked out the front door of the State Department in 2013.
She admitted at her press conference on Tuesday that she was just now turning over 50,000 pages of documents.
The final paragraph of OF-109 just before the signature lines warns that “Section 1001 of Title 18, United States Code, provides criminal penalties for knowingly and willfully falsifying or concealing material fact in a statement or document” submitted to the federal government.
Section 1001 is the catch-all provision that the Justice Department uses to go after individuals and witnesses who make false statements to government agencies and officials like FBI agents.
It prohibits making “any materially false, fictitious, or fraudulent statement or representation” as well as making or using “any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”
Section 1001 is routinely used by the FBI to prosecute people who don’t tell the truth to the government. In fact, some managers at the Justice Department instructed employees to threaten people with 1001 actions who were not fully forthcoming in civil investigations.
If Hillary Clinton signed this form, she could be prosecuted under 18 U.S.C. §1001. A knowing and willful violation is a felony, punishable by not more than five years in prison.
One of the most well-known recent cases of a prosecution under this statute was the conviction of Scooter Libby, the former chief of staff to the vice president, who was charged (among other charges) with making a false statement to an FBI agent in connection with the Valerie Plame case.
Celebrity and businesswoman Martha Stewart was also convicted under §1001 in 2004 for making false statements to FBI agents and investigators from the SEC who were investigating her for insider trading, a crime she was never charged with.
Of course, even if Hillary Clinton violated this statute, the probability that this administration and this Department of Justice would ever prosecute Hillary Clinton is probably slim to none. However, Shannen Coffin is certainly correct in his legal analysis. This virtually guarantees that the first question Hillary Clinton or the State Department will be asked by any congressional committee investigating this email fiasco is whether Secretary Clinton signed exit form OF-109.
If she did, then she is going to have a great deal of explaining to do to the American people as to why she believes she was above the usual rules and laws that apply to regular government employees and all the rest of us.