Remember the shift in focus by the FBI in their investigation of Hillary Clinton’s e-mail server to 18 USC 1001? Fox News reported it yesterday as a relatively new area of interest in their probe, adding it to the previous context of Espionage Act violations in handling classified information. The Daily Caller got an exclusive look at the separation agreement signed by Huma Abedin when she left the State Department, and may have found out what has made the FBI so interested in the statute regarding “materially false” statements:
That aide, Huma Abedin, maintained control of emails she sent and received through a personal email account hosted on Clinton’s private email server for nearly two-and-a-half years after she left the agency in Feb. 2013.
In signing the form — called the OF-109 — but failing to turn over State Department records, Abedin may have opened herself up to criminal charges.
“I have surrendered to responsible officials all classified or administratively controlled documents and material with which I was charged or which I had in my possession,” reads Abedin’s signed OF-109, which The Daily Caller obtained through a Freedom of Information Act lawsuit filed on its behalf by the watchdog group Cause of Action.
“I am not retaining in my possession, custody, or control, documents or material containing classified or administratively controlled information furnished to me during the course of such employment or developed as a consequence thereof,” the form reads.
“I have surrendered to responsible officials all unclassified documents, and papers relating to the official business of the Government acquired by me while in the employ of the Department.”
In signing the form, outgoing employees acknowledge that they have been advised that “Section 1001 of Title 18, United States Code, provides criminal penalties for knowingly and willfully falsifying or concealing material fact in a statement or document submitted to any department or agency of the United States Government.”
Well, maybe, but this language raises an important point. The e-mail server wasn’t in her “possession, custody, or control,” and neither were its contents, at least not in physical form. The server and its contents were in the “possession, custody, or control” of Hillary Clinton, at first in her Chappaqua residence, and later at Platte River and Datto under contract to her. She can argue, and most certainly will argue, that she surrendered everything in her possession at the time of her departure from State — and therefore there are no violations of 18 USC 1001, at least not in the context of Hillary’s server.
However, if Abedin continued to access those e-mails after signing this form, then that may be a very different matter. She would have at the very least shared control over the stored e-mails on the server in electronic form if she still had access to her clintonemail.com account. The same would be true of Cheryl Mills, except that Mills never signed her OF-109, an oversight that the State Department might need to explain. Hillary Clinton never signed an OF-109 either; the FOIA compliance memo states that outgoing Secretaries of State do not usually get asked to sign separation agreements, as they continue to consult and need security clearances for such work.
If this is the reason that 18 USC 1001 has become a focus in the FBI probe, it seems like weak sauce. There are more obvious violations of 18 USC 793 and 18 USC 1924 for Hillary and others in her circle than this technicality in Abedin’s OF-109. Perhaps it could get used as leverage, but the issue of possession and control make this at the very least a creative strategy for a prosecutor to embrace. However, if prosecutors want to make a case that the entire e-mail server was designed to hide communications from Congressional committees in their oversight of the State Department, that seems like a much more fruitful use of 18 USC 1001, and that one applies directly to Hillary Clinton.