The Fourteenth Amendment to the Constitution, ratified in 1868, enshrined the right of every American to equal protection under the law.
But since that time, scholars have wrestled with a key deficiency in its text — namely, it does not address how some people are more equal than others.
Consider the cases of Hillary Clinton and Plantronics, a California-based electronics company that recently found itself on the business end of a $3 million court-ordered fine for illegally deleting emails.
In many ways, the circumstances of Clinton and Plantronics are identical, but in the eyes of the law, their situations are vastly different.
Plantronics’ problems began in 2013 when a senior company official repeatedly instructed underlings to delete email conversations he feared would end up as part of the court record in ongoing litigation with a competitor.
For example, Don Houston, then Plantronics’ senior vice president of sales, at one point wrote in an email to colleagues, “Given the sensitive nature of this issue and the on going legal issues, please delete this entire string of emails for everyone that has been copied ASAP!”
Clearly, not everyone followed this instruction! When this and other, similar incidents emerged in court, the U.S. District Chief Judge Leonard P. Stark of the U.S. District Court for Delaware was not pleased at all.
Stark threw the book at Plantronics, accusing them of “bad faith,” fining them $3 million, ordering them to pay for an 18-month investigation conducted by their competitor into the matter and allowing the deletions into evidence in the forthcoming court case originally at issue.
Like Plantronics, Hillary Clinton had a clear legal obligation to preserve written records including emails, and, like Houston, she (or her lawyers under her orders) deleted a large number of those emails (a considerably higher number, actually).
And yet, the vastly different legal outcome she faced is quite instructive.
For example, someone of Clinton’s stature is permitted to decide for herself which records are required to be preserved, even if, for other people, all records are required to be preserved.
Secondly, while Plantronics’ Houston and others of his station are subject to vigorous efforts by law enforcement to determine the scope of their illegal actions, for a more equal person such as Clinton the police and the FBI are more properly considered part of her legal team.
During Clinton’s investigation, for instance, FBI agents agreed to help destroy potentially incriminating evidence in order to secure cooperation they theoretically had the legal power to compel.
Thirdly, a VIP like Clinton receives exemplary service from the law enforcement officials who, whether they know it or not, are only pretending to investigate her. Weekend interviews? No problem. Advanced warning of legal filings? Absolutely. And if anything ever arises, the Attorney General is available for a 39-minute face-to-face meeting at a tarmac of your choosing.
Finally, when rank-and-file FBI agents who conducted the investigation are unanimously urging their superiors to recommend charges be brought, other important people are on hand to intervene.
Rank-and-file FBI agents, God bless them, are about the same as Plantronics in the pecking order. They could not possibly understand the burdens of leadership faced by someone like Clinton.
Do not think it she takes any pleasure in those burdens! Deciding how the rest of us should live is a tremendous sacrifice Clinton makes on our behalf, something another person of her stature, like FBI Director James Comey, understands well.
As you can see, these two cases, at once the same and yet so different, highlight the difficulties that scholars have faced in trying to reconcile the traditional concept of “equality under the law” with the, uh, nuances of the current U.S. legal system.
Finally, Clinton’s situation offers one other lesson for the Plantronics officials caught red-handed deleting thousands of emails, in this case a practical one.
Although the details are fairly technical, a computer hard drive can retain traces of documents even after they have been deleted using ordinary tools. It’s like a murder scene. The floor might look clean to the naked eye, but you’d be amazed what the CSI guys can find.
To address this, Clinton’s subordinates accomplished their task of destroying records with the use of a sophisticated piece of software called BleachBit.
BleachBit (which, conveniently, is open source and thus available free of charge) touts on its website it will ensure “even God can’t read” the emails you delete.
In conclusion, the next time you need to delete thousands of emails illegally, follow Clinton’s lead and use the tools of a professional. As our friends from Plantronics can attest, you don’t want to end up reading your orders to destroy evidence in a news article!