Report: Hillary Clinton Evaded Government Email While Secretary Of State
Hillary Clinton's use of email while Secretary of State pretty much violated every Federal law and regulation on the issue.
The New York Times is reporting that, during the time that she served as Secretary of State, Hillary Clinton exclusively used a private email account with unknown security protocols to communicate with State Department employees, others in the Federal Government and, presumably, foreign government officials, in what appears to be a violation of both the letter and the spirit of Federal record keeping laws:
WASHINGTON — Hillary Rodham Clintonexclusively used a personal email account to conduct government business as secretary of state, State Department officials said, and may have violated federal requirements that officials’ correspondence be retained as part of the agency’s record.
Mrs. Clinton did not have a government email address during her four-year tenure at the State Department. Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act.
It was only two months ago, in response to a new State Department effort to comply with federal record-keeping practices, that Mrs. Clinton’s advisers reviewed tens of thousands of pages of her personal emails and decided which ones to turn over to the State Department. All told, 55,000 pages of emails were given to the department. Mrs. Clinton stepped down from the secretary’s post in early 2013.
Her expansive use of the private account was alarming to current and former National Archives and Records Administration officials and government watchdogs, who called it a serious breach.
“It is very difficult to conceive of a scenario — short of nuclear winter — where an agency would be justified in allowing its cabinet-level head officer to solely use a private email communications channel for the conduct of government business,” said Jason R. Baron, a lawyer at Drinker Biddle & Reath who is a former director of litigation at the National Archives and Records Administration.
A spokesman for Mrs. Clinton, Nick Merrill, defended her use of the personal email account and said she has been complying with the “letter and spirit of the rules.”
Under federal law, however, letters and emails written and received by federal officials, such as the secretary of state, are considered government records and are supposed to be retained so that congressional committees, historians and members of the news media can find them. There are exceptions to the law for certain classified and sensitive materials.
Mrs. Clinton is not the first government official — or first secretary of state — to use a personal email account on which to conduct official business. But her exclusive use of her private email, for all of her work, appears unusual, Mr. Baron said. The use of private email accounts is supposed to be limited to emergencies, experts said, such as when an agency’s computer server is not working.
“I can recall no instance in my time at the National Archives when a high-ranking official at an executive branch agency solely used a personal email account for the transaction of government business,” said Mr. Baron, who worked at the agency from 2000 to 2013.
Regulations from the National Archives and Records Administration at the time required that any emails sent or received from personal accounts be preserved as part of the agency’s records.
But Mrs. Clinton and her aides failed to do so.
How many emails were in Mrs. Clinton’s account is not clear, and neither is the process her advisers used to determine which ones related to her work at the State Department before turning them over.
This isn’t the first time that government officials using private email accounts has become an issue, of course. Indeed, as the article notes further on, Colin Powell used a private email account nearly exclusively during the time that he was Secretary of State, although that was at time before current regulations regarding the use of email by government officials and record retention were put in place. In addition, there have been issues similar to this that have arisen at both the Federal and state levels many times over the years regarding everyone from people in the Chris Christie Administration involved in the so-called “Bridgegate” investigation to Sarah Palin. Never before though have we seen a case like this where such a high-ranking government official didn’t just use private email occasionally, but used it exclusively for all official correspondence to the point where they didn’t even bother to establish an official government email account Moreover, and perhaps even more damning, The Washington Post is reporting that the domain that Clinton used for her electronic correspondence while serving as Secretary of State was established just one week before President Obama took office, and on the same day that Clinton’s confirmation hearings in the Senate began. That fact alone makes it seems as though Clinton had decided from the start that she would not comply with Federal record keeping laws while serving as Secretary of State.
Admittedly, there has been some portion of Clinton’s private email correspondence turned over to the State Department for record keeping purposes. However, as the Times article notes, the determination regarding what would be turned over and what would be withheld was apparently made exclusively by Clinton and her personal aides without any participation or review by State Department or other government employees. That, quite honestly, is simply unacceptable. Obviously, if there are purely private communications in the correspondence that Clinton engaged in on the account(s) in question during the time she was Secretary of State that material should not have to be turned over for archiving. However, it is entirely inappropriate for the determination of what should and should not be turned over to be made solely by the government official in question or people working for him or her. Clinton’s actions here violated both the letter and the spirit of Federal law, regardless of whether or not it was done for nefarious purposes.
Obviously, news like this is likely to fuel the passions of those who were likely to be opposed to Hillary Clinton to begin with, and one can see that in much of the reaction in the blogosphere. It is understandable, of course, given the history of the Clinton’s when it comes to disclosing information. During the Whitewater investigation, requests for the billing records for Hillary Clinton’s work while representing the company as an employee of the Rose Law Firm were stonewalled for years until the records suddenly seemed to appear out of nowhere, for example. In this case, though, we’re talking about a government official and rather clearly written Federal Law that forbids what was being done in this case. Even leaving aside the issues regarding withholding documents from the government, there are some rather obvious security concerns involved in having a Secretary of State using a private email domain to communicate regarding official, and in some cases presumably classified, government business. At the very least, what Clinton did was irresponsible for that reason alone. As John Cole puts it, one has to wonder if Hillary Clinton can do anything without committing some kind of an unforced error.
In the end, this may have no impact on the 2016 race at all. In fact, it’s quite likely that it won’t. In the short term, though, it reinforces all of the old doubts and questions about Hillary Clinton herself and the Clintons in general.
UPDATE (James Joyner): Vox’s Max Fisher, whose judgment I trust and who’s certainly no Republican, has an interesting take headlined “Hillary Clinton’s personal email account looks bad now. But it was even worse at the time.” The key bit:
But this story looks even worse if you transport yourself back to early 2009, when Clinton first became of Secretary of State and, according to this story, initially refused to use a governmental account. The Bush administration had just left office weeks earlier under the shadow of, among other things, a major ongoing scandal concerning officials who used personal email addresses to conduct business, and thus avoid scrutiny.
The scandal began in June 2007, as part of a Congressional oversight committee investigation into allegations that the White House had fired US Attorneys for political reasons. The oversight committee asked for Bush administration officials to turn over relevant emails, but it turned out the administration had conducted millions of emails’ worth of business on private email addresses, the archives of which had been deleted.
The effect was that investigators couldn’t access millions of internal messages that might have incriminated the White House. The practice, used by White House officials as senior as Karl Rove, certainly seemed designed to avoid federal oversight requirements and make investigation into any shady dealings more difficult. Oversight committee chairman Henry Waxman accused the Bush administration of “using nongovernmental accounts specifically to avoid creating a record of the communications.”
That scandal unfolded well into the final year of Bush’s presidency, then overlapped with another email secrecy scandal, over official emails that got improperly logged and then deleted, which itself dragged well into Obama’s first year in office. There is simply no way that, when Clinton decided to use her personal email address as Secretary of State, she was unaware of the national scandal that Bush officials had created by doing the same.
That she decided to use her personal address anyway showed a stunning disregard for governmental transparency requirements. Indeed, Clinton did not even bother with the empty gesture of using her official address for more formal business, as Bush officials did.
So, yes, this is a big deal and probably more than a mere “unforced error.” But, no, it’s hardly unprecedented nor something uniquely Clintonesque. Will it have legs in the campaign? Only to the extent that it’s part of a pattern of behavior, reminding people what they don’t like about her.
But if we see all of Clinton’s emails then we will see that she had no accomplishments as Sec State. This way, her team can be blamed for losing all the proof of her contributions to the world. Remember that photo of Clinton on the plane with her Blackberry? That photo, a favorite for the Ready for Hillary people, might not get a lot of publicity anymore.
Yes, it does.
I wonder if she put this out there. The timing would be about right. She’ll probably announce in a month and this will die as a story because of Netanyahu tomorrow. It would be clever timing.
Admittedly I’m tired at the moment and I have a lot of other things on my mind, but I’ve just been up and down Title 44 and I can’t find any statutory mandate that government employees are required by law to solely utilize government email addresses hosted on government owned servers.
Granted, it’s a good idea, and she acted stupidly here, but calling it criminal might be a bit of a stretch. If I’m missing the statutory mandate, could someone point me towards it please?
@HrvardLaw92:
They may be referring to the Presidential and Federal Records Act Amendments of 2014.
@David M:
It can’t be them, they were signed into law by Obama on November 26, 2014, Clinton left office on February 1, 2013.
Isn’t the gist basically that the statutory changes mandating that electronic communication has to be recorded were implemented many months after she left the office?
Where is the issue in that case?
“Under federal law, however, letters and emails written and received by federal officials, such as the secretary of state, are considered government records and are supposed to be retained so that congressional committees, historians and members of the news media can find them.”
Since when?
E-mailGHazi!!!!!
So did she break the law or not?
Was the law signed after she left?
This seems like crucial information missing from this post, which was written by an attorney.
Granted he was probably giddy at the chance to Clinton bash…and so his failure can be ignored.
Gee…I wonder why?
Maybe Darrel Issa and Ken Starr can explain.
I’ve been on record here for a long time that I wish the Clinton’s and the Bush’s would go away.
This is really just the beginning.
I can’t wait for the wing-nut comments to begin.
Ben-mail-zi!!!!!!
@HrvardLaw92: @David M: @Tecumseh: @David M: @C. Clavin: As noted here, the law required officials to preserve all official emails at least as far back as the first day of the George W. Bush administration. The use of private emails here—as during the Bush administration—is clearly an attempt to circumvent that requirement. Much more recently, it’s been made illegal to use personal emails for official business—which is actually highly problematic because it’s done all the time for completely non-nefarious purposes (i.e., simple portability for those of us who can’t access official email except at a machine that has a CAC reader).
I have many reasons to mistrust Mrs. Clinton and this is the latest one.
Give her a break. The woman has a world class cattle futures trading acumen that must be shielded from copycats.
@James Joyner:
I don’t see where it says what you say it says.
Gonzoles says White House staff must keep emails.
Is SOS considered White House staff?
Looks like an iffy regulation with no teeth.
Unless there is something I’m missing….which is likely.
I guess the term “to parse” will have to make a come back. Maybe this demonstrates a good reason why wonks and pundits do not like to write about anything the Clinton’s say or write. Who would be interesting in parsing everything and determining all the ways that it could be spun in the future.
I guess writing about irrelevant Republicans is more fun that either parsing the Clintons or in defending them. Anyone want to speculate that as the Obama Adminstration winds down in 2016 that it will be discovered that most of the work done by Valerie Jarrett and other fixers in the White House was done outside of official channels and that no records exist?
@C. Clavin:
Exactly. I fear this will have legs. The GOPs can launch an investigation, and even if there’s nothing there, they can drag it out ’til the election standing on their heads. Which makes this really stupid.
However, this is also one of the many things I don’t understand about this story. The Republicans have been investigating Benghazi for years, and presumably read tens of thousands of State Dep’t emails, and they didn’t notice this? What?
B
EMAIL
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G
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APPEARANCE
Z
IMPROPRIETY
OK, that was kind of juvenile but fun :-).
Seems that there was no statute that Ms. Clinton actually violated, and that people are hyperventilating about her conduct creating the appearance of impropriety, rather than it actually being improper.
Time for liberals to take a deep breath and come down off the ledge. This is more of a pecadillo, than a true scandal, especially since she has disclosed whatever she has been asked about. ( Have we seen Romney’s tax records yet? ) . Notify me when there’s actual evidence of a coverup of some sort.
@gVOR08:
Probably means that they saw nothing improper about it then, although now that they have noticed this , it will probably become THE! WORST! SCANDAL! SINCE! WATERGATE!
@gVOR08:
That’s actually a really good question. Why was this not an issue earlier? I can see your average old school Congress Critter not thinking of it but there are plenty of techy-savvy youngsters who would think to look or know it’s important. And what does it say about the “investigators” that they don’t think to check the addy when anyone’s who ever received spam knows to do so and see if it’s legit? Talk about an rookie investigation fail – you never assume you know anything, you always check and recheck your “facts”.
I didn’t have a high opinion of the Ghazi-Nazis to begin with but this just dropped it to below the sub-basement.
I think she should be subject to the exact same amount of outrage and punishment as folks from the Bush administration who were using a private email system (including Karl Rove, who apparently used it for 90% of his official email), which subsequently “lost” 20 million emails when there where congressional investigations into possible wrongdoing
@Ken:
In the real world you might be correct.
But in the world we live in Benghazi was worse than 9/11, and Obama is a tyrannical dictator.
Finally. Somewhere in those hidden emails there is one that will definitively show, to Darrell Issa’s satisfaction, that Hillary Clinton ordered and orchestrated the attack on the American consulate offices in Benghazi. There’s probably a pretty good chance there’s some Rose Law Office Billing stuff in there too.
More from Business Insider:
This will blow over soon, although Fox, Issa and the Republicans will do their worst to perpetuate it.
@al-Ameda:
You forgot Vince Foster’s murder and her lesbian love affairs. They’re in there too.
To be fair to Hillary, she and Bill learned the hard way that it isn’t so easy to have ex-officials steal records from the National Archives. She probably just decided to cut the National Archives out all together.
Of course, how the record of agency business is created or transmitted has no bearin on whether it is a required archival item. Content, not form or whether it is on or off a government system is key.
@stonetools:
That statement is so much BS. What is archivable is not just correspondence with other agency officials, but rather any correspondence the affects policy, or other government business whether the correspondent is a government employee, private citizen or foreign. Correspondence with or among staff may or may not be archivable depending on content.
@JKB:
Please link to the law that says the SoS is required to keep records of communications with private citizens.
@stonetools:
Of course, and I apologize.
Until I have my morning coffee I’m just not up to regular OTB blogging standards.
@David M:
Un, yea, that would be Title 44, mentioned already. Anyone care to be a bit more specific?
@James Joyner:
Granted, so if you simply don’t delete any of the emails in your private email account, you’ve met that requirement.
Again, where? As I said, I have been up and down the Federal Records Act, several times now, and I do not see any statutory mandate requiring government officials to utilize government email accounts. I see several mandates that records be preserved.
Now, I could be missing it, which is why I asked for clarification, but simply saying “it’s against the law” doesn’t cut it. Which statute makes it illegal?
Found it, finally. 44 U.S.C § 2911. Seems GPO still hasn’t updated anything, which isn’t surprising.
That having been said. there are a few problems there:
1) Executive branch employees can continue to use non-governmental email accounts as long as they either 1) copy their official email account on emails constituting records when sending the email from their non-governmental account, or 2) forward a complete copy of the email constituting a record to their official email account within 20 days of sending the email.
2) This didn’t become law until late November, 2014, almost 2 years after Clinton left office.
Legally, she’s in the clear.
N.B.: §2911 doesn’t even impose criminality to begin with. It potentially subjects violating employees to disciplinary action congruent with Title 5, Chapter 75.
From a legal standpoint, this is a non-starter.
Of course, the GOP will milk it for every ounce of political benefit it can obtain – which is probably why they waited to leak it. Problem is that, as usual, they didn’t wait long enough.
@HarvardLaw92:
Honest question…..
Is the defense we’re going to use when our next Republican president’s cabinet uses their personal email accounts to conduct state business?
@James Pearce:
I think it’s a balance between open disclosure and political opponents mining official correspondence for any and every tidbit of the appearance of scandal.
The ideal that you’re describing only works in a system populated by honest brokers whose primary motivation is the best interest of the country. In the fundamentally and profoundly broken situation that we have, that sad reality of having to conduct official business with the opposition research team looking over your shoulder results in officials who are much more likely to do the popular thing than the right thing.
Severely OT, but it seems that Squirrel has grown tired of life in Russia and wants to come home – as long as we don’t actually charge him with violating the laws he broke.
Dasvidaniya, comrade. Looks like you’ll be freezing your behind off for a long time to come.
@James Pearce:
Only if it happens after 2014 🙂
@James Pearce: Already happened. It appears that John Kerry is the first SoS to use a state.gov account as his primary account. No link; I’m at work.
@HarvardLaw92: So what would he be charged with? Generic theft of government property? Probably also with whatever laws he violated with his compromises of classified information? I mean, apart from the Espionage Act.
Regardless, he’s already been charged under the Espionage Act and there’s certainly nothing about that which would preclude a fair trial.
A lot of focus on how just using a personal account was somehow wrong, but yet no specifics to what regulations or laws were broken. All I really took from the articles is that the regulations before 2014 were probably too lax and John Kerry is the first SOS to primarily use a government email address.
@Mikey: And our intelligence people want him back so they can grill him about who exactly got what information. He has leverage for deal making.
@gVOR08: Honestly, I’d be happy if they cut some kind of deal with him to get him back and get that out of him. Sure I’d like to see him in the klink for a very long time, but learning which foreign governments, if any, got access to the information is far more important than making a spectacle of the guy.
That’s not meant to say I believe he should get a plea deal–he needs to go on trial. But maybe charging him under a different set of statutes than the Espionage Act could work.
I seem to recall an actual Presidential candidate who admitted to intentionally destroying hard drives containing emails from his tenure as a governor of some state that also enacted health care reform under his watch.
@Mikey:
Maybe Snowden noticed that people who are inconvenient for Mr. Putin to keep around tend to end up dead. He’s hiding out in the capital of a warmonger and thug, positioning himself as a defender of liberty. He may be a fun toy for Putin to use for a while, but mister ex-KGB is never going to like a guy like Snowden, and the time may come when Putin tires of Snowden and needs to remove him from the equation. Snowden’s long-term choice may be between a sudden, midnight expulsion across the nearest border and a negotiated deal with the US.
@michael reynolds: I’ve no doubt Snowden wouldn’t be making these overtures if he didn’t feel his welcome wearing a bit thin…
Media Matters weighs in:
http://mediamatters.org/research/2015/03/03/medias-double-standard-on-transparency-for-hill/202727
@Mikey:
I’m not sure that I like the precedent that sets. It tells every would-be leaker that they can run off to relatively hostile states, spill whatever secrets they like, then receive a get out of jail free card.
At this point who he shared the material with is relatively meaningless – we can pretty much be certain that China and Russia have seen all of it, and it’s in the wild at this point. There’s nothing much to be gained by trying to cut a deal with this nimrod.
Better to let him stew a bit longer. Before it’s over with, he’ll be begging to come home under any circumstances. He’ll get the fair trial that he’s entitled to, and he can face the consequences.
Or he can just stay in Russia. I hear they have some exceedingly “fair” trials there too.
This makes Scott Walker look so palatable by comparison, right?
none of this matters to her voters, she’s untouchable as far as they’re concerned.
reason #1 – her husband cheated on her so she get’s the feminist sympathy vote forever.
that he still does is of no concern nor is the fact that they’re worth over $100 million (most of it from bills “speaking fees” aka “bribes”) and hence the very people they say we should be at war with.
so this is all about nothing, just vetting some baggage to see if anything will sully her “reputation”….sick as that sounds.
@bill:
Not at all. I don’t much care for her, but as usual, she’s better than the alternatives I’m likely to be given by the GOP, so I’ll hold my nose and vote for her.
@HarvardLaw92: It’s not a “Get out of jail free” card, he’ll still go to jail, likely for a very long time. But it’s difficult to overstate the importance of getting him back under our umbrella. I don’t believe his risk has been fully depleted even this long after he took off, and the sooner we can get control of him, the better.
We’ll see what our government says, if they blow him off we’ll know they want to let him simmer a while longer. Could be interesting.
@PJ: “It can’t be them, they were signed into law by Obama on November 26, 2014, Clinton left office on February 1, 2013.”
So much for the Hahvahd Lahwyah.
……There’s nothing much to be gained by trying to cut a deal with this nimrod……
Its official, baby boomers have decided to trade security for privacy…notice its Clinton, Bush 2, Obama…baby boomers all that have shredded the Constitution and it took a Gen Xer to call you delusional folks out.
I am an old guy and it was the WW2 guys like Frank Church, Mondale, John Tower and that old lefty Barry Goldwater that stopped these idiots from establishing a police state back in the 70s.
Where do you boomers think FISA started?
Snowden is a hero and should be given a suspended sentence.
As for Hillary, she’s a joke and the next, God forbid, boomer President who is running cause she needs to fill out her resume. An empty, inauthentic, condescending do nothing.
Jim Webb would make a much better President.
What is disturbing is the possibilty that her contacts’ cell phones could be hacked and security , secret information obtained. By getting into her phone, a huge network of information sources is now at their hands ! Russians and Chinese are certainly capable of this. And it is scary to think how easy they could get strategic information, even missile data and codes !
I was amazed the other day that my wife, by using a free app, can know my exact location at the click of a button ! I guess that ends my stops at convenience stores for hot dogs and donuts !
I read the other week that having a cell phone opens up your entire private life to anyone who wants to see it ! Now I believe it ! People even know how to turn on someone’s cell phone camera and use it to spy on them ! What have we created ?
@Tyrell: Having a cell phone does nothing of the sort. It’s what you install and do with the phone that allows that to happen.
I don’t even have my gmail linked to my phone. The best someone will get is maybe a few phone numbers.
Turn off GPS and uninstall the software off your phone and she won’t have a clue where you’re at. Even just turning off GPS limits the ability to pinpoint you to just triangulation of the towers near you.
Foursquare facebook and more all allow this to happen. Remove or don’t use that stuff and none of what you said is possible.