But numerous wording ambiguities and loopholes may let Hillary avoid perjury prosecution.
On August 10, 2015, I asked Did Hillary just walk into a perjury trap over her emails?.
The document in question was a very curiously worded Declaration under oath signed by Hillary in a Judicial Watch FOIA lawsuit:
“1) While I do not know what information may be “responsive” for purposes of this law suit, I have directed that all my e-mails on clintonemail.com in my custody that were, or potentially were, federal records be provided to the Department of State, and on information and belief, this has been done….”
The Declaration was a response to a court Order that Hillary and certain others “confirm, under penalty of perjury, that they have produced all responsive information that was or is in their possession as a result of their employment at the State Department.”
The wording was so Clintonian. First, the Declaration only addressed documents “in my custody,” whereas the Order addressed also what “was” in her possession previously. She doesn’t say in the Declaration that there are documents that once existed but no longer were in her custody. I’m not sure anyone picked up on that linguistic sleight of hand at the time.
Second, the Declaration was written with concern not about telling the truth but drafted in a way to hide the truth while providing Hillary with multiple avenues to avoid prosecution. Here were some of the outs provided in the wording I noted at the time:
Let’s take a look as the many potential loopholes and outs Hillary has in the wording:
- “While I do not know what information may be “responsive”” — In other words, everything that follows is qualified by Hillary not knowing what she’s supposed to be producing.
- “I have directed” — so if it doesn’t get done, it’s not Hillary’s fault.
- “on clintonemail.com” — special emphasis on “on” — what does that mean to be “on” an email account?
- ” in my custody” — usually I’ve seen wording much broader, “in my custody or under my control” or similar language.
- “were or potentially were federal records to be provided to the Department of State” — so only records that were to be provided by her to DoS are covered, but that’s not necessarily the universe of all federal or potentially federal records.
Any declaration under oath holds great risk. But Hillary’s lawyers have carefully worded her Declaration to admit to nothing, provide multiple ambiguities, and numerous “outs” should she be challenged.
Judicial Watch is continuing to press for answers and documents.
But Judicial Watch is up against the world’s expert on dodging — someone who learned from the Master. Or maybe the Master learned from her.
And sure enough, documents from the Podesta email account released by Wikileaks show that Hillary’s lawyers worried at the time as to a public statement to be issued by the campaign to make it appear that everything had been produced.
John Solomon and Raphael Wlliams examine the latest Wikileaks release of emails, A leaked email raises questions about Hillary Clinton’s veracity in sworn court document (emphasis added):
On the same day Hillary Clinton swore to a judge that she believed all of her State Department emails had been turned over in a federal lawsuit, her private attorney wrote to the presidential candidate’s inner circle acknowledging the possible existence of additional messages that had not yet been produced, according to a leaked email message.
The Aug. 8, 2015 late-night email message from attorney David Kendall could have implications in a federal open records lawsuit that is still pending….
The Kendall email was written just hours after Clinton sought to convince a federal judge in a carefully worded sworn declaration that the thousands of State Department-related emails she turned over in late 2014 from her personal email account covering the period March 18, 2009 through Feb. 1, 2013 were all she could produce to the court overseeing a FOIA case brought by the conservative group Judicial Watch….
It wasn’t until 2016 when a State Department inspector general report and an FBI investigative report were released that the public formally learned there were emails on her private account prior to March 18, 2009 that had been recovered and relevant to her work as the country’s top diplomat.
But at 10:24 p.m. on Aug. 8,2015, Kendall sent an email to her campaign chairman John Podesta, as well as close aides Abedin, Cheryl Mills, Heather Samuelson, Jen Palmieri and Brian Fallon.
Kendall warned the campaign leadership that using the March 18, 2009 date in a public statement about Clinton’s compliance with the lawsuit was a potential “gotcha” because they were aware of emails that existed prior to the date on her private email server accounts.
“I would prefer not to use the ‘March 18, 2009’ date, because we know there were other emails using the her clintonemail.com address prior to that date,” Kendall wrote.
“Could we make this more vague, like ‘early in her term as SOS’? Or would this change provide a ‘gotcha’ target–if so, not worth it, since this is the date of the earliest email in the PST of her emails, as I understand it,” he added….
But the documents could also cause repercussions in the federal case, congressional investigations and the FBI probe focused on Clinton’s handling of emails.
For instance, the FBI reported in June that Clinton and her legal team never turned over any emails prior to March 18 2009.
(Full email chain here.)
The Declaration under oath was a clear deception, as it didn’t reveal the concern Kendall had expressed about documents prior to March 18, 2009 that had not been produced. Whether it was perjury will depend on whether a prosecutor or court would accept the numerous Clintonian loopholes built into the wording.DONATE
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