Another hard drive bites the dust, taking with it the record of possible malfeasance:
Federal employees, like all Americans, are entitled to hold passionate political beliefs. Most executive branch federal employees, however, may not engage in certain political activities, thanks to an anti-conflict of interest principle enshrined in a federal law called the Hatch Act…
Which brings us to the case of April Sands, an employee at the Federal Elections Commission (FEC), who struck a deal with the agency’s Inspector General to avoid criminal charges related to running afoul of the Hatch Act on numerous occasions. She has openly confessed to breaching federal law as part of her effective plea bargain, but investigators were unable to probe a potential goldmine of incriminating activity: Her email. Why? You guessed it; her hard drive crashed, supposedly wiping out her email records, and resulting in the FEC recycling (i.e., destroying) the hard drive. Sounds familiar. Did I mention that Ms. Sands worked under Lois Lerner when Lerner served as the agency’s Associate General Counsel for Enforcement?
Sands’ job was “helping to enforce election laws” as an FEC employee, and yet she posted strongly partisan anti-Republican political opinions on Twitter (example: “I just don’t understand how anyone but straight white men can vote Republican. What kind of delusional rhetorical [sic] does one use?”). She has already confessed to “violating the Hatch Act by soliciting political contributions via Twitter, conducting political activity through her Twitter account, and participating in a political discussion ‘via webcam from an FEC conference room . . . while on duty’.”
But Sands’ emails, which could be an extremely important source of evidence on which to base a charge of committing the criminal offense of soliciting campaign contributions from work, have been destroyed along with her hard drive. The criminal investigation is stalled without it.
So let’s leave Ms. Sands for a moment, and ponder the question of the necessity for emails as evidence. Emails would seem to be easily recoverable, even if hard drives crash, because until now it’s been unusual for computers and/or hard drives to actually be destroyed in order to cover a perp’s tracks. Computers and emails have largely taken over business and government correspondence within the last twenty years or so (perhaps even earlier, but I’m not sure, since I wasn’t employed in the business or government world). But I seem to recall that, before that, paper was the way to keep a record of things, and paper was not only harder to find in discovery (it’s not on a hard drive) but quite easy to destroy. And yet prosecutors managed somehow to indict and convict people.
So, how was it done? Not everyone made tapes a la Nixon (who of course most likely erased some crucial minutes of his); in fact, most people kept no electronic record whatsoever. So, how was prosecution accomplished? I don’t think white collar workers were routinely tortured back then to make them squeal. Did cases without a paper trail rely on witnesses, confederates who became informants? I doubt that perps had such a great respect for paper that they never destroyed it, either. Were threats to the perp or confederates involved? Or did perpetrators just get away with it?
Maybe I’m missing something; help me out here.
I’m really curious, because I foresee that from now on “my hard drive has been recycled” will be a routine defense. If we don’t figure out other ways to amass evidence of wrongdoing, government employees will violate these and other laws with impunity, and we will have no protection from them.
Hmmmm. Perhaps that’s already happened.
[NOTE: I realize that some people have suggested we call on the NSA records, the ones they’ve amassed through spying. That’s a pretty dangerous incursion on liberty, don’t you think? And wouldn’t the NSA just say it didn’t have any records for the people the government is interested in exonerating? Who checks on the NSA?]