The law takes a dim view of the destruction of federal records. U.S. code paragraph 2071 is draconian:
Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.
And so, if Hillary Clinton deliberately destroyed federal records in her custody, she is not only subject to a fine or imprisonment: she may not hold any federal office, and her campaign for the presidency is over. But did she destroy federal records? Mrs. Clinton has obviously tried to ensure that nobody can say so for certain. At least, that is the way she wants us to see the situation, and she has had considerable success in selling her version of events to the public. But what she has sold is only an illusion; the facts are quite different.
Mrs. Clinton’s version of what she did goes like this: she preserved the official documents on her server, and destroyed only personal material. So while the materials she preserved are certainly federal records, nobody could know if there were also federal records among those that she destroyed, because the evidence is gone. You may suspect her, but what difference does it make? However, this version of events is false, and Mrs. Clinton’s own words prove it to be so. People who are skeptical of Mrs. Clinton’s claims about the status of the material she has preserved commonly point out that we have only her word for it that these are accurate copies of the original records.
And this is true. But though that point is valid enough on its own terms, those who make it have missed the real force of their objection, which is infinitely stronger. The fact that we can speculate about the relationship between the material Mrs. Clinton offers us and the records that they may or may not accurately represent — that speculation can only arise because the records themselves no longer exist. Copies — whatever their degree of faithfulness to the originals — are not the original federal records.
The crucial point is this: Mrs. Clinton has tried to create the impression that she destroyed only some of the records on her server, the irrelevant ones. But that was not what she really did. She destroyed not some, but ALL of the records on her server, including a great many federal records that belonged to the United States. This is not a matter of conjecture or speculation: it is what she herself admitted to. If the relevant law is to have any meaning, she must be indicted. And the case is open and shut: the evidence against her could not be more convincing.
Because the facts are clear, once indicted Mrs. Clinton will probably no longer have any part to play in the 2016 campaign for the presidency. Republican leaders will say that it is a forlorn hope to expect any action against her, whether by the U.S. Department of Justice or through the appointment of a special prosecutor. But in comparable circumstances, Democratic leaders would by now have set up such a clamor that action could not be resisted.
John M Ellis is a Professor Emeritus at the University of California, Santa Cruz, and Chairman of the California Association of Scholars.