6) Controversy #1 – was it illegal/criminal for the Secretary of State to conduct all her professional communications on a private email server and not on a government server?
Okay now circling back around to this, which really is the most important question. Let’s see what Hillary said when asked this.
CLINTON: First, the laws and regulations in effect when I was Secretary of State allowed me to use my email for work. That is undisputed.
Secondly, under the Federal Records Act, records are defined as reported information, regardless of its form or characteristics, and in meeting the record keeping obligations, it was my practice to email government officials on their state or other .gov accounts so that the emails were immediately captured and preserved.
Okay let’s go in order.
First, is it undisputed that the laws allowed her to use a private email?
Nope. It is very disputed. The FBI argues that Hillary Clinton’s private email violated these three laws while in office: The Federal Records Act, National Archives and Records Administration (NARA) Regulations and The Freedom of Information Act. I’ll address them sequentially.
Hillary’s Side: The Clinton argument from the get-go has been that there is no law that prevents federal employees from having a non-government, personal email as long as relevant work-related documents are preserved. She points to several other public officials who used private emails while in office, including former Secretaries of State Condoleezza Rice and Colin Powell and that the current Secretary of State John Kerry is the first to primarily use a state.gov email account.
An important part of her defense is that she followed all the rules DURING her tenure. After she left the State Department in 2013, President Obama signed an update to the Federal Records Act in 2014 that explicitly said federal officials can only use personal email addresses, if they also copy or send the emails to their official account within 20 days of transmission. 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.
As far as deleting or destroying relevant records, she says the emails that were destroyed on her server were personal correspondence that she has the legal right to decide what to do with.
FBI’s Side: First, anyone can use a private email for personal correspondence, and you can do whatever you want with it. But that would usually require one to go through a commercial vendor like Google or Yahoo, someone the government can go to if they want/need information. It’s true that former Secretaries of State used a private email, but Clinton went as far as to have a private server where she exclusively communicated all of her personal and professional messages; making her the sole arbiter of what the government can and cannot see. No other Secretary of State, or public official for that matter, has done that. The other differences between Clinton and the previous Secretaries of State have already been explained in the previous section. Remember, PolitiFact rated this comparison – mostly false.
The FBI will likely even reference a 2005 State Department policy on “sensitive but unclassified information” which explains that employees should conduct “normal day-to-day operations” through the State Department’s official email system to protect the security of the emails’ contents.
Second, while it may be true that she did not technically violate the Federal Records Act while in office, she certainly violated the spirit of the law by avoiding oversight from anyone in the government. John Wonderlich from The Sunlight Foundation, an American nonprofit organization that advocates for open government, sums up this point well:
“[O]ur expectations for public service are [that] public servants use their official email accounts.
The final arbiter of what’s public or what’s turned over to Congress shouldn’t be private staff working for Hillary Clinton. It should be State Department employees who are bound by duty to the public interest.”
Third, well we’ll get to the deleting emails part soon enough.
(2) National Archives and Records Administration‘s (NARA) regulations. NARA Regulations require all federal records to be maintained “by the agency” and maintain “ready retrieval of electronic records”. If any records are requested by the public or Congress, they are “readily found when needed”.
Hillary’s Side: Her team points to this 2009 National Archives regulation that recognizes the right to use a non-government email:
“[a]gencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system”
How she believes that her emails “are preserved in the appropriate agency recordkeeping system” will be explained in the second statement she made. Their main argument is that there is a colossal difference between “wrong,” and “improper” and a federal crime.
FBI’s Side: They would disagree with her defense of the 2009 National Archives Regulation because they don’t think her emails were “preserved in the appropriate agency record-keeping system” since they were on a personal server (this will be addressed more when looking at her second statement). The off-site nature of her server would also clearly make it harder for Congress to “readily” access information.
And what about the fact that thousands of her work-related emails were on a USB Flash drive with her lawyer? That doesn’t seem like the “appropriate record-keeping system.” If it’s determined that her emails were housed in what could be considered an “unauthorized” device instead of “the appropriate record-keeping system” she is in violation of Section 1924 of Title 18.
(3) Freedom of Information Act (FOIA): The FOIA has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement
**Most of the information made public in Hillary’s email’s are a result of the 35 active lawsuits against the State Department under the FOIA.
Hillary’s Side: Clinton argues that all federal records are in the hands of the agency and that she “took the unprecedented step of asking that the State Department make all my work-related emails public for everyone to see.” Even though all her communications were on her personal server, the 55,000 pages of work-related emails she provided to the State Department now gives them the “ready retrieval of records” of all official communications for any Freedom of Information Act inquiry.
FBI’s Side: Yes, the State Department can respond to FOIA requests now, but they didn’t have the ability to do that until two years after she left office when Congress had to ask for them. Not surprising that the Inspector General had issued a scathing report that during her tenure the Clinton State department was abysmal at responding to FOIA requests.
Dan Metcalfe, who was the head of the Justice Department’s Office of Information and Privacy from 1981 to 2007, blasted Clinton saying that “she managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it — perhaps forever.” Calling her actions “a blatant circumvention of the FOIA by someone who unquestionably knows better.”
Second, did she meet the Federal Records Act by emailing officials on their government email (.gov) accounts, so her emails were preserved on the record?
Depends on who you ask. But many argue this question misses the boat entirely. Because it relies on a passing off of her responsibility to properly maintain records, onto every one else she could’ve possibly emailed.
Hillary’s Side: Clinton argues that because she emailed others on their official government .gov email account, almost 90-95% of her communications are logged into the federal record system before she ever turned over any emails. This would technically put her within the boundaries of the Federal Records Act since the agency could hold onto her official communications (with a 5-10% leeway I guess?).
This issue came up during her 11 hour grilling in front of the House Select Committee on Benghazi last October.
Rep. Trey Gowdy : “I have not heard anyone other than you ever cite that figure. Who told you that 90 to 95 percent of your e-mails were in the State Department system? Who told you that?”
Clinton: “We learned that from the State Department and their analysis of the e-mails that were already on the system. We were trying to help them close some gaps that they had.”
Unfortunately for her, that story was not corroborated by the State Department. Let’s look at the transcript when Deputy Spokesperson for the State Department Mark Toner was asked about this the day after the testimony.
QUESTION: Can you tell us who at the State Department would have informed Clinton or her aides that 90 to 95 percent of the emails had been captured in State Department systems?
MR TONER: So, we’re aware of that exchange and appreciate the question. I’m not, frankly, in a position to do that right now. I would have to refer you, frankly, to her campaign team, which has used that figure previously, I think, and explained it in a fact sheet that they released. It was, frankly, her campaign staff that used it – the figure – so they can give you more information about the rationale or the background behind it. I’m not aware that we have given that figure, but again, I’m not in a position right now to confirm that.
The State Department now won’t talk to GOP investigators regarding the email scandal.
FBI’s Side: Okay so the State Department didn’t tell her that 90% of her emails were in the system. So is there a way to know how many were actually recorded? This is from that same 11 hour testimony.
Rep. Trey Gowdy : The Inspector General Report found that less than one percent, less than one percent of State Department emails, record emails were captured. So they give a number of less than one percent, and you give a number of 90 percent.
Clinton: Well I don’t know what you are referring to. I can only speak about my emails, my work related emails
This is the Inspector General report Rep. Trey Gowdy is referring to, which reported –
A 2009 upgrade in the Department of State’s system facilitated the preservation of emails as official records. However, Department of State employees have not received adequate training or guidance on their responsibilities for using those systems to preserve “record emails.” In 2011, employees created 61,156 record emails out of more than a billion emails sent. Employees created 41,749 record emails in 2013.
The Inspector General is saying .6% of all State Department emails are captured in the system. Something consistent with his earlier report that the State Department has been historically bad at responding to Freedom of Information requests from citizen groups and Congress.
Hillary’s only defense for why her emails could have possibly abided by the Federal Records Act not only falls flat, but *looks* like she is actively trying to mislead Congressional investigators into thinking more of her emails are logged in public records based on information that, at this point, has only been provided by her campaign.
Maybe this is why there are rumors that the FBI may also pursue a charge for giving “materially false statements” to federal agents. This would be violation of US Title 18 Section 1001 – violations of the code are punishable by up to five years in prison.