Earlier this week, Politico reported that the FBI had expanded its resources into the investigation of Hillary Clinton’s secret e-mail server, requesting documents and statements from key figures in the scandal. The most obvious laws that might have been violated are 18 USC 793 and 18 USC 1924, both of which make gross negligence and worse in handling classified information a felony, punishable by prison time. Today, though, Fox News reports that the FBI is looking into another section of the federal code, one that suggests that the legal danger to Hillary and her team may be more fundamental than first supposed:
The FBI has expanded its probe of Hillary Clinton’s emails, with agents exploring whether multiple statements violate a federal false statements statute, according to intelligence sources familiar with the ongoing case.
Fox News is told agents are looking at U.S. Code 18, Section 1001, which pertains to “materially false” statements given either in writing, orally or through a third party. Violations also include pressuring a third party to conspire in a cover-up. Each felony violation is subject to five years in prison.
This phase represents an expansion of the FBI probe, which is also exploring potential violations of an Espionage Act provision relating to “gross negligence” in the handling of national defense information. …
The section of the criminal code being explored is known as “statements or entries generally,” and can be applied when an individual makes misleading or false statements causing federal agents to expend additional resources and time. In this case, legal experts as well as a former FBI agent said, Section 1001 could apply if Clinton, her aides or attorney were not forthcoming with FBI agents about her emails, classification and whether only non-government records were destroyed.
Hmmmmmm. It was three months ago that the FBI reportedly found it could recover the e-mails deleted by Hillary and her team when the State Department demanded her records. If they told the FBI that they had only destroyed non-government data and the FBI finds otherwise, that could possibly trigger a prosecution under 18 USC 1001. It’s a standard strategy in dealing with suspects who lie during an investigation.
But that’s not the only application of 18 USC 1001, and in fact may not be the main application. The statute itself is at once somewhat narrow — and directly on point, emphases mine:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to—
(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or
(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.
This goes beyond obstruction of justice as seen in the Scooter Libby case, and more directly to the perversion of constitutional oversight between the legislative and executive branches. Chapter 47 deals with fraud and false statements in general, but 18 USC 1001 (c) specifically deals with obstructing legislative oversight. Given that the House launched several investigations into Benghazi, including the current Select Committee that consolidated all of the probes, and Hillary and her team didn’t provide this information until they got caught with the secret e-mail server, it may mean that the FBI’s interest is more fundamental than more recent false statements.
Hillary should be familiar with the aphorism, It’s not the crime, it’s the cover-up. If the FBI is taking the investigation in that direction, then the real target would be the person who set up the server and never disclosed its existence to Congress (or the courts in FOIA cases) despite repeated requests. And that person can only be Hillary Clinton.