So, About that Clinton Prosecution Threat From Trump…

“You’d be in jail (if I were president).”  Remember this campaign threat? When Donald Trump told Hillary Clinton she should be in jail? Now that Trump is the next president, what can he do to carry through on this threat?  And is there any precedence for such a prosecution?

hrcMaybe.  Maybe not.

The president doesn’t have the power to order someone be put in jail. (However, they do have the power to order someone released from jail.)  What Trump can do, and what any president can do, is a lot more subtle and a lot more complicated.

Trump is in the process of putting together his government. In the week since the election it’s unclear who Trump is going to tap for Attorney General.  Rudy Giuliani and Chris Christie’s names both have been suggested but neither appear to be the clear front runner.  Whoever the next Attorney General is, he could, at Trump’s behest, seek an indictment of Hillary Clinton. Getting a grand jury to indict is easy.  As one former judge joked, “A grand jury could indict a ham sandwich.”

But the Attorney General has to make a decision about what crime[s] he thinks Clinton committed. In other words, what exactly could she be indicted for?


Trump’s specific threat in the campaign was over the emails.  Hillary Clinton’s use of a private email server when she was secretary of state was  hardly illegal. Ask Colin Powell who did the same thing before her. The issue the FBI investigated, twice, is whether or not her handling of those emails was criminal.  Which crime was being evaluated?  Probably 18 USC 793- gathering, transmitting or losing defense information.  This law makes it criminal for a person to allow, through gross negligence, information pertaining to national secrets to be removed from its proper place of storage, lost or destroyed.  Given the FBI has concluded Clinton’s conduct in storing the emails was not criminal, it’s unlikely a prosecution would be based on this allegation but there are other possibilities.

There is also evidence that emails and other documents were destroyed after Clinton received a subpoena to testify before Congress. This conduct could violate any number of statutes; 18 USC 73 (obstruction of justice), 18 USC 1519 (destruction of records), 18 USC 1505 (obstruction of congressional proceedings), the list of possible charges could go on and on.

Have other people been prosecuted for shredding documents and destroying emails after they received a subpoena? Yes. Think Enron and Arthur Anderson. In 2001 when the Enron scandal broke Arthur Anderson was one of the five largest audit and accounting firms in the U. S..  Arthur Anderson was found guilty of destroying documents.  The conviction was later over turned by the U. S. Supreme Court because of a mistake in the jury instructions. By then Arthur Anderson was all but out of business.

The real question about Clinton’s emails is whether she knew they were being destroyed after receiving the subpoena. She has publically denied this allegation, saying she turned the subpoena over to her lawyers and had no idea anyone was destroying anything. The challenge for Clinton and her defense would be actually proving she didn’t know the emails were being destroyed. I’ve spent nearly 20 years defending white collar crimes.  One thing I’ve learned is that proving someone didn’t know something, essentially proving a negative, is hard.  Not impossible, but hard. It requires piecing together countless small details and otherwise insignificant pieces of evidence to accurately portray what really happened and who knew what and when.

So, , in addition to the emails what else could Clinton be prosecuted for?

False Statements

The Attorney General could also seek an indictment for false statements, a violation of 18 USC 1001. This section makes it a crime to say something false in response to an inquiry by the FBI or other federal agent. When asked about whether Hillary made any false statements in connection with the FBI’s investigation, Comey told Congress the FBI had not been asked to look into this issue.

People can and do go to prison for false statements. In my opinion, it’s a favorite charging tool used by federal prosecutors when they can’t obtain a conviction on a more serious charge.  Ask Martha Stewart. She spent five months in prison and two years on supervised release after being convicted of, among other things, obstruction of justice in the form of false statements to the FBI. Stewart was accused of lying to the FBI in connection with an insider trading investigation into her sale of shares of ImClone Systems stock in December 2001.

Barry Bonds would agree. In 2011, he was convicted of giving a false statement to a grand jury.  More specifically, he was convicted for giving an incomplete answer to a question. His conviction was ultimately over-turned by the Ninth Circuit in 2015. The opinion overturning the conviction characterized Bonds’ statement as “a rambling, non-responsive answer to a simple question.” Hardly the sort of statement a prosecution for false statements should be based upon.

What is the potential false statement Hillary made?  Related to the email investigation were Clinton’s statements to the U.S. House of Representatives Select Committee regarding Benghazi.  Some of the emails uncovered during the FBI’s investigation allegedly contradict statements she made before the House.  However, contradiction doesn’t mean Clinton was lying when in her congressional comments.  And 18 USC 1001 requires an actual intent to mislead or deceive. This could be a hard burden for a prosecutor to meet .  In order to get a conviction on this charge law enforcement would have to find some very clear evidence that Clinton intended to mislead.

Prosecutors may face another challenge in a false statements investigation. There is some level of institutional acceptance when people lie to Congress.  According to a Quinnipiac law review article, only six people have been convicted to lying to Congress in an approximately 70 year period. This lack of prosecutions suggest both prosecutors and lawmakers are reluctant to engage in highly politicized investigations that theoretically would lead to a system of jailing political enemies – as such a practice would undermine the basic foundation of our legal and political systems.

Tax Fraud

Tax fraud prosecutions are common and historically have been used to take down any number of famous individuals – Martha Stewart, Wesley Snipes, Willie Nelson and Nicholas Cage just to name a few. 18 USC 7201 criminalizes an attempt to evade or defeat a tax.  Hillary Clinton is on the board of the Clinton foundation,  a non-profit 501(c)(3).  Because of its status as a non-profit there are strict rules about how the money raised by the foundation can be spent.  What money cannot be spent on are personal or political expenditures for Hillary (or her family).  Millions of the dollars that go to the Clinton Foundation are raised by speaking fees when Hillary, Bill or Chelsea are paid for speeches.  As a board member of the Clinton Foundation, Hillary has the power to influence how money donated to the foundation can be spent. Legally, the Clinton Foundation could not fund her campaign or pay personal expenses. There were claims during the campaign that Clinton Foundation money was being used for just that, personal or campaign expenses.  The problem is that there isn’t much proof, at least not that’s publically available. So, while it’s a theoretical possibility that Clinton committed tax fraud, there really isn’t more than speculation to go on.

Tax fraud can be a hard crime to prove. It basically requires the government prove a person understood the tax laws and intended to break them. The tax code is so complicated it’s difficult for the government to prove an average person knew what they were doing when they broke the tax laws. This argument probably wouldn’t work for HRC, as she’s been a lawyer for nearly 40 years. Claims she didn’t understand the tax code would fall on deaf ears.

The Argument Against Indicting

Issues of guilt or innocence aside there are also a number of reasons Trump should (and probably wouldn’t) back an investigation into Hillary. Jailing one’s political rivals is something that goes on regularly in other countries. Not this country. Why? Because we believe in democracy which, by definition means we also believe in a peaceful transfer of political power.  Jailing political rivals would wholly undermine our system of government and the rule of law.  Even if Trump wanted to prosecute Clinton, one has to hope that whoever the next Attorney General is, respects the legal system too much to use it as a tool for political revenge – even if some candidates have no such qualms when it comes to shutting down bridges.