About a week ago, the Federal Bureau of Investigation announced that it would not be pressing charges against Hillary Clinton for her use of a personal email during her tenure as Secretary of State. This has been a long time coming for Clinton, as the email controversy has been a blight on her presidential campaign from its start.

 

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News of “Emailgate” broke in 2014, and picked up last year right before Hillary Clinton announced her run for president. It has dealt a huge blow to her trustworthiness and transparency, with a Morning Consult national survey from this month finding that “half of voters said Clinton’s use of a private email server was illegal.” Those are dangerous numbers for the Democrats, leaving voters finding Donald Trump twice as honest as Hillary Clinton according to a recent Rasmussen survey.

If you still don’t really know much about the controversy, here’s a quick rundown:

Being the Secretary of State involves handling sensitive information, and it was discovered that during her tenure, Hillary Clinton used a series of personal email servers that were nowhere near as secure as federal record systems would have been. This left her correspondence vulnerable to being compromised by the likes of hackers and foreign countries, and people are not happy about that.

At the heart of this controversy lies the fact that Hillary Clinton had signed a Classified Information Nondisclosure Agreement (“NDA”).

 

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Confidential information, or classified information as per this agreement, was given a clear definition as being marked or unmarked. Specific obligations related to confidentiality were outlined, such as protecting such information “in the interest of national security.”

Hillary Clinton has pushed back at the controversy in true political fashion, skirting the issue by saying first that she never handled any classified information over email, and then that she had not known some content was classified because it was not marked as such. But the first point was disproven by the FBI, and the second is explicitly covered in the agreement. She also tried to dampen the blow of the scandal by pointing out that most other Secretaries of State before her had utilized personal emails as well, but status quo is no good defense against contractually agreed upon obligations related to confidentiality.

All of this leaves Hillary Clinton in a position to be either criminally charged for violating federal law, or to receive administrative discipline for wrongdoing in her position as Secretary of State.

As she no longer holds that position, discipline is not a viable option. As for the former, neither the FBI or the Attorney General are willing to press charges.

So, if a substantial portion of the public finds her conduct criminal and legal violations did occur as per the agreement she signed, why is she (so far) getting away scot-free?

Here it’s a matter of nuancing the law. The FBI intimated that there was definitely evidence of wrongdoing that amounts to the actus reus, and went so far as to chide her for her actions, describing her conduct as “extremely careless.” Hillary Clinton admitted just as much when she said that in hindsight, she should have had a separate work email. However, she simply does not meet the requirement for intent, or mens rea, of having “intentionally transmitted or willfully mishandled classified information” beyond a reasonable doubt.

Without substantial evidence of such intent, a court cannot convict her. Without full confidence that a court can convict her, it would be dangerous to press charges against a woman who is no longer just a former Secretary of State, but now the presumptive nominee for the Democratic Party in the rapidly approaching presidential election. Such a move would have enormous, and potentially disastrous, consequences for the country.

Click here to view our Non-Disclosure Agreement template in our Small Business Law Library!

This article was co-authored by: Alina Butt

 

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