Curious, perhaps, that diGenova didn't just advise Clinton to tell the FBI the truth, but he didn't say why. At the time, now almost two months ago, diGenova believed the FBI had "a locked case," and already knew who was involved and who was lying. He named several people, suggesting that the key person might be Patrick Kennedy, a career diplomat who was undersecretary for Management under Clinton, without explaining his possible significance. He offered Hillary Clinton this free legal advice on the air:
"If I were representing Mrs. Clinton, and I think this may be part of her defense, she will say: 'Look, the State Department knew I had this set-up all along. They didn't stop me. They didn't tell me not to do it. No one came and seized the computer [server]. There is no correspondence saying I should not do this.'"
Professional legal analysis leaves little doubt as to Clinton's Guilt
In January 2016, Clinton had already used a variation of that argument at a public forum: "I'm not willing to say it was an error in judgment because what -- nothing that I did was wrong. It was not -- it was not in any way prohibited." On C-SPAN, diGenova rebutted this line of argument:
"Unfortunately, that's not a defense, because for her, she is one of the ten people in the United States Government who has the generic statutory authority to classify information. There's only ten people who can do it. She has the power to assist in the declassification of that, so her duty in terms of knowing things about classified information is much higher. So, when Patrick Kennedy doesn't stop her from putting in an email server in her home to conduct all government business, even though after January 2009 -- people may not have known right away that Mrs. Clinton didn't have a .gov account, but within a couple of months everybody knew: isn't it funny there are no .gov emails from the Secretary or her staff. At that point, what the department did or didn't do becomes irrelevant to the criminal investigation because she's in line -- as the Secretary of State -- to be President of the United States. And along with her job, not only to conduct foreign policy, comes the duty to understand and know classified information. That is the envelope from which the FBI is operating. This is not a GS-2 [employee] who accidentally slips a piece of paper in the wrong file and it stays out all night on somebody's desk. This is a person with the highest classification authority possible, who used a private server to conduct all of her government business. This has nothing to do with politics. That's illegal, per se. And the reason is very simple. The government has a classified email system for a reason: it's to protect the integrity of national security information, national defense information, and to prevent its disclosure to unauthorized persons. The existence of that server violates every known federal law on the protection of classified information."
How many laws have to be how badly broken before it matters?
The crux of the issue is that Hillary Clinton, by using a private server, took possession of information that did not belong to her, it was the legal property of the US government and, ultimately, the American people. When deGenova asserts that Clinton's email server "violates every known federal law on the protection of classified information," he no doubt has in mind, among others:
Federal Records Act, starting with section 1301 that requires that: "The head of each Federal agency [i.e., Secretary of State] shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the
legal and financial rights of the Government and of persons directly affected by the agency's activities." Clinton's private email server did not fulfill her mandated public duty.
Freedom of Information Act (FOIA), as amended to allow "public access to information in an electronic format." Clinton's private email server effectively made this law a nullity. (There are already FOIA lawsuits proceeding in court based on Clinton private email server.)
National Archives and Records Administration's regulations, which require in considerable detail a systematic method of identifying, organizing, and preserving government records. Clinton's private email server violated intent and letter of this law to "ensure that complete and accurate records are made and retained in the Federal Government" in all formats and media" (section 1222.12). (Clinton also appears to have violated section 1236.22, which requires her records to be kept by the State Department's record keeping system, not a private email server.)
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