Those Clinton Emails

Published: September 21, 2015

By Jim Lichtman
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The political fallout from Hillary Clinton’s email mess has only picked up speed since the beginning of this year.

Getty Images

Getty Images

On March 10, Clinton offered the most comprehensive statement on the issue, essentially saying: “I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two.

“Looking back,” she continued, “it would’ve been better if I’d simply used a second email account and carried a second phone, but at the time, this didn’t seem like an issue.”

According to a June 17 Quinnipiac University poll of key swing states, “[Clinton] is not honest and trustworthy; Florida voters say 51 – 43 percent, Ohio voters say 53 – 40 percent and Pennsylvania voters say 54 – 40 percent.”

In a July 7 interview with CNN, Clinton stated: “Everything I did was permitted. There was no law [stating that she must use a .gov email address].”

In an August 17 interview with Clay Masters of Iowa Public Radio, Clinton added, “I did what other secretaries of state have done. I was permitted to and used a personal email… But I never sent nor received any classified email; nothing marked ‘Classified.’ ”

On September 8, after months of comments, and declining poll numbers, Clinton publically apologizes: ‘[It] was a mistake. I’m sorry about that. I take responsibility.”

I’ve been following the Clinton email issue for some time now, and frankly, the more I read, the more complicated it gets.

Because this issue does not lend itself to short, simple answers, this commentary is, by necessity, broken into parts.

Let’s  begin by examining some obvious questions.

1/ Did Clinton send a memo to State Department staff telling them that all government business messages sent by email, must be done on government email accounts?

On March 10, Politifact writes, “Under the heading ‘What can you and your family members do?’ the memo covered such familiar steps as changing your password and making sure you choose a strong one. It also said, ‘Avoid conducting official Department business from your personal email accounts.’ ”

Politifact concludes: “Clinton had no direct role in sending the memo, even though it went out under her name. And while the memo encouraged staffers to avoid using personal email accounts, it fell short of prohibiting their use.”

2/ Was Clinton’s use of a private email server for government-related business during her tenure as Secretary of State allowable by law?

Politifact writes, “There was not an explicit, categorical prohibition against federal employees using personal emails when Clinton was in office, said Daniel Metcalfe, former director of the Department of Justice’s Office of Information Policy, where he administered implementation of the Freedom of Information Act. High-level officials like Clinton need the flexibility to sometimes use a personal email, such as responding to a national security emergency in the middle of the night.

“So it seems she didn’t break a rule simply by using a personal email to conduct business. Rather, by using personal emails exclusively, she skirted the rules governing federal records management, [Douglas Cox, a law professor at City University of New York who studies records preservation said].

“A federal record is any documentary material, regardless of physical form, made or received by a government agency, according to the National Archives and Records Administration (NARA), which oversees federal record-keeping. Records are preserved as evidence of the agencies’ activities, decisions and procedures. Each agency is responsible for maintaining its records in accordance with regulations.

“It would have been a violation of NARA’s rules in the Code of Federal Regulations for Clinton to use personal email exclusively, Metcalfe said. The code requires federal agencies to make and preserve records that duly document agency activity, so that they are readily available when needed — such as for FOIA requests or congressional inquiries. Using personal email exclusively is contrary to proper record preservation. …

“Had Clinton used a email address,” Politifact continues, “every email sent and received would have been archived in the State Department system. Clinton, who served from 2009 to 2013, has argued that her emails were archived in the system because she was in the habit of sending them to other government employees with .gov email addresses.

“However, experts said this defense is insufficient. Under this practice, the State Department records management system would have captured emails from Clinton to a State Department employee, but it would not necessarily capture emails from Clinton to government employees in other departments or non-government employees, said John Wonderlich, policy director for the Sunlight Foundation, which advocates for government transparency.

“Although they may contain the same individual emails, Clinton’s outbox and other employees’ inboxes are considered two separate records, which is important for locating the records in response to specific requests.

“For example, even if Clinton had sent every email to individuals with or other federal agency addresses, that procedure would hamper State Department compliance with Freedom of Information Act requests for Clinton’s emails, said David Sobel, who directs a FOIA project at the Electronic Frontier Foundation, a digital freedom advocacy group. It would not be apparent to agency personnel conducting the search that they would need to search the accounts of myriad employees to locate all of Clinton’s emails, he said.

“ ‘In fact, State likely would have argued that it would be unreasonable to conduct such a far-reaching search,’ Sobel said.” …

“In response to a State Department request last year, Clinton turned over 55,000 pages of emails and documents from her private email server, leaving out emails and documents that she said were of a personal nature, like wedding and funeral plans. She later said she deleted these personal emails.

“Cox said the fact that Clinton’s staff — rather than a State Department federal records officer — chose which emails to destroy is ‘honestly breathtaking.’ Her private employees don’t have the authority to decide what does or doesn’t count as a federal record. Further, when she was making these choices, she was acting as a private citizen, not a government employee.

“In Clinton’s defense, we should note that it was only after Clinton left the State Department, that the National Archives issued a recommendation that government employees should avoid conducting official business on personal emails (though they noted there might be extenuating circumstances such as an emergency that require it). …

“Because these rules weren’t in effect when Clinton was in office, ‘she was in compliance with the laws and regulations at the time,’ said Gary Bass, founder and former director of OMB Watch, a government accountability organization.

“ ‘Unless she violated a rule dealing with the handling of classified or sensitive but unclassified information, I don’t see how she violated any law or regulation,’ said Bass, who is now executive director of the Bauman Foundation. ‘There may be a stronger argument about violating the spirit of the law, but that is a very vague area.’ ”

3/ Did Clinton knowingly receive and send work-related documents marked “Classified”?

“Whether or not Clinton’s email address complied with security regulations is a harder question,” Politifact writes. “Clinton argues that she never emailed classified information, instead using other secure methods of communication approved by the State Department.

“However, in 2005 (before Clinton took office), a State Department manual said information that is ‘sensitive but unclassified’ — a broad category that covers anything from meeting schedules, to visa applications, to ordinary emails to other federal agencies — should be emailed through servers authorized by the department.

“We also don’t know if the State Department had signed off on Clinton’s private server or if the server met government security standards, though the State Department was aware of the server. At the press conference, Clinton said the server was set up for former President Bill Clinton’s office and that it had ‘numerous safeguards.’

“The State Department has said there is no indication her account was breached.

“ ‘Her assurance that there was no security breach is an empty assurance, because there’s no way to know that for sure,’ Wonderlich said.”

On July 7, in a CNN interview with Clinton, the former secretary said, “Everything I did was permitted. There was no law. There was no regulation. There was nothing that did not give me the full authority to decide how I was going to communicate. Previous secretaries of state have said they did the same thing…. Everything I did was permitted by law and regulation. I had one device. When I mailed anybody in the government, it would go into the government system.”

On July 9, Washington Post fact-checker, Glenn Kessler writes, “the legal requirement to immediately preserve e-mails from non-government e-mail accounts was not made mandatory until nearly two years after she stepped down as secretary of state. …

“But that does not mean,” Kessler adds, “that when Clinton was secretary of state, there were not already in place State Department rules on how to handle e-mails and whether to use a personal e-mail account. While Clinton says that other secretaries “did the same thing,” none had set up an exclusive and private e-mail server for all of their departmental communications. (In fact, only Colin L. Powell has ever said he sent e-mails from a personal account, so Clinton’s use of plural is misleading.)

Further, points out, “…there’s no evidence that [Powell] — or any other previous secretary of state — maintained emails on a personal server.”

Thus, making Clinton’s claim “partially” accurate, at best.

But how did this controversy start? To my knowledge, there’s never been a question about any other government official’s emails before. I will answer that and explore additional issues on Wednesday.


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