There was once a US government official who lived in Chappaqua, NY. She had a problem.
Disregarding a directive from her boss, she conducted professional and personal communications through an email server located in her home. As it became public knowledge, she staunchly defended the practice and denigrated those who objected.
When ordered to produce all work related email, she claimed to have done so, but she had taken the liberty to delete the information that she had determined to be personal in nature.
The FBI initiated an inquiry (that’s the definition of “investigation”, in case you were wondering) into the “matter”.
Upon concluding the inquiry, FBI Director James Comey confirmed that numerous offenses had been committed. He proclaimed that the official had been “extremely careless”, and, to everyone’s surprise, he announced that no reasonable prosecutor would bring charges because he could not prove “intent”. Thus, essentially due to the difficulty of proving intent, the exoneration was effected.
BUT WAIT! …
Upon a simple examination of US Code 18, Section 2071 (a copy is provided below), under which the inquiry was made, several points are notable.
- The word “or” precedes the only appearance of the word “intent” in the entirety of Section 2071. Therefore, proving intent is only one of the alternatives for prosecution found in subsection (a). No other alternative needs be dependent upon it, and it has nothing to do with documents already in the custody of a person, which is obviously the case in question. That situation is addressed in subsection (b).
- A brief summary of subsection (b) of Section 2071 is all that is exigent. Therein you will see that a person who is in custody of such records “shall be” (not may be) fined or imprisoned or both if they willfully and unlawfully conceal, remove, mutilate, obliterate, falsifies, or destroys any such records.
- Since custody was obvious, and the infractions had already been confirmed, there remained only two valid paths for Director Comey to exculpate the subject. One was to find that the official’s infractions were performed against her will. The second was to discover that the actions were actually not against the law. Either of those would have been a tough sell.
What Director Comey did do, while banking on an uninformed public and a complicit Washington establishment, was to misdirect attention by the insertion of the irrelevant “intent” and the inapplicable expression “extremely careless”.
Should anyone be unfamiliar with the tale of The Manchurian Candidate, a hero type character was used in a scheme designed to deceive the people and take control of our government.
18 U.S. Code § 2071 – Concealment, removal, or mutilation
Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
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. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.