Based on the recently released excerpts from the FBI’s report on its investigation of Hillary Clinton’s email account and leaked information about “pay to play” access to her while Secretary of State, I can envision a RICO case against both Bill and Hillary Clinton. The heart of any RICO case is a pattern of racketeering activity. The most damning criminal act seems to have occurred on or about March 25, 2015, three weeks after the New York Times reported Hillary Clinton used a private email account as Secretary of State. The following day the House Select Committee investigating Benghazi issued a subpoena to Hillary Clinton, served on her lawyer, David Kendall, seeking her emails on the private account related to its investigation of the attack.

What happened next is now fairly clear. The Clintons panicked. There was a conference call on March 25, 2015 which included an IT worker with Platte River Network, the private firm hosting the Clinton server and “President Clinton’s staff.” After the call the tech purged the archived emails with the bleach bit software program in order to destroy them. On the 27th Mr. Kendall write to the Subcommittee and said “no emails from [Secretary Clinton’s email address] reside on the server.” But they did when he received the subpoena. He omitted to inform the Subcommittee that his client had them destroyed after receiving the subpoena. This is plainly a violation of 18 U.S.C. 1512, which in relevant part, makes it a federal crime to prevent the production of a document or record requested for an “official proceeding.” A congressional committee is an official proceeding. RICO incorporates this crime as a form of racketeering activity. (Destroying evidence sought by a subpoena also can subject the destroyer to a charge of criminal contempt, but that’s not a RICO violation.)

And it is very likely that both Hillary and Bill Clinton were in on the decision to order the purging of the server. It was after all stored at her home. And the former President’s staff were on the conference call with the tech worker. Why was he so interested in the contents of the server? Could it have housed email involving the Clinton Foundation, of which he is President.

It certainly did. We have also seen emails released which indicate that donors to the Foundation were given meetings with the Secretary and other favors. There was close coordination between her staff and the Foundation’s. Is this actually bribery? The federal anti-bribery statute, 18 U.S.C. 201, is broad and forbids public officials from agreeing to do any an “official act” in exchange for something “of value” provided by the briber. The thing of value can be provided to a third party, such as the Foundation. So if an influential person wanted the State Department to contract with his or her company to build a building, a road, or some joint venture, in a foreign country, the person could give a big donation to the Foundation in exchange for the contract. That would violate the law. I have not seen an email which clearly indicates such a deal. But a lot of emails are greasing the skids for favors of some kind to Foundation donors.

If there were even one such bribe, then there would be two RICO violations committed within a fairly short period of time which are related in that they were undertaken to benefit the Foundation and then to destroy the evidence of the bribe. The enterprise would be the Foundation. Bill is the President of it and Hillary, though not an officer, is involved in its affairs as indicated by the emails from Foundation staff to her staff seeking favors for big donors.

In short, the elements of a criminal RICO case are there. But a prosecutor would want more than two violations. So I don’t expect to actually see an indictment unless Trump is elected. Obviously a Clinton Justice Department would not pursue the matter. He has already said his Justice Department would investigate the Clintons.