I’ve been saying all along that the laws that were likely to get Hillary Clinton into trouble were less likely to be the Espionage Act or the Intelligence Identities Protection Act or any of our other laws respecting government security (despite the petition from former intelligence officers that Sec. Clinton’s security clearance be suspended) but the Federal Records Act and the Freedom of Information Act. At least one of the judges involved in the case seems to agree with me:
A federal judge has added fresh fuel to the incendiary controversy over Hillary Clinton’s email, asserting during a hearing Thursday that she violated government policy by storing official messages on a private server when she worked as secretary of state.
“We wouldn’t be here today if this employee had followed government policy,†said U.S. District Judge Emmet Sullivan, apparently referring to Clinton, during a hearing on one of the many Freedom of Information Act lawsuits seeking access to her records as secretary of state.
Sullivan’s said Clinton’s actions had complicated the State Department’s ability to respond to requests for records on various topics. He also ordered the State Department to contact the FBI to determine whether the private server Clinton used, which Clinton turned over to that law enforcement agency earlier this month, contains official records possibly responsive to the FOIA suit.
After Justice Department lawyer Peter Wechsler argued that the open records law normally doesn’t allow for searches of government officials’ private accounts, the judge said he viewed it as an unusual situation because “there was a violation of government policy.â€
Long-time jurist Emmet Sullivan has received appointments both from Republican and Democratic presidents including Bill Clinton. IMO he’s nopartisan operative, just a conscientious judge although I’m sure there will be complaints from partisans that the only possible motive for treating the case seriously is partisan, a charge I consider specious.
I’m honestly surprised that no one seems to be making a “fruit of the tree” argument relative to the emails on Sec. Clinton’s private server. It seems to me that since some of the emails were clearly work-related there’s a case to be made along those lines. Should Sec. Clinton’s staff or lawyers be making the determination as to which of the emails on that server are work-related and which aren’t?
The odd thing about this particular case is that Clinton revealed that Huma Abedin had an account on Clinton’s server that was also used for government purposes at times. Clinton Declaration I’ve seen no follow-up questioning on why that occurred, or if others had similar accounts. (Cheryl Mills did not, but Clinton, Mills and Abadin are the only relevant parties in this particular FOIA)
The Abedin thing is odd because I seem to remember Clinton saying when she first addressed this issue in March that while she had an email account on the private server, all of the people who worked for her at State had government accounts. What this is supposed to mean is that every time Clinton corresponded with one of her aides, it would have been captured by the system that the State Department uses to archive emails.
If Abedin, and others who worked for Clinton at State, instead had an @ClintonEmail.com” account, then any conversations between Clinton and Abedin or any others on the private server would not have been archived.
I am still unsure on the legality of the private server, though, and I’m not sure that Judge Sullivan’s comments really shed any light on that issue.
There is this noted towards the end of the piece.
“During Thursday’s hearing in the State Department case, Sullivan never said precisely how he believed Hillary Clinton violated government policy. But he repeatedly referred to the department’s obligation to preserve records under the Federal Records Act of 1950.”
So, first, what exactly is the difference between policy and a law? IANAL so this always sounds a bit vague to me. We have policies where I work, but not laws. I have people not follow policy sometimes, but AFAICT they aren’t breaking a law when they do so. Are government policies de facto laws?
I don’t want to speak for Doug, but I am pretty sure he is not really a Hillary partisan and he just said he is unsure if a law was broken. I still can’t tell either. Maybe the judge will specify in future hearings.
Steve
I don’t think Clinton’s email improprieties are solely a partisan issue. As SOS she was a senior government official having access to security-related information effecting all citizens. How she handled this information should concern all citizens. Consequently, her earlier email misstatements, followed now by either vagueness or the parsing of words (a tactic her husband was notorious for doing when responding to touchy questioning, i.e. “it depends what “is” is) should raise the hairs on everyone’s arms, no matter what their party affiliation happens to be.
Just the fact that her government email was exclusively commingled with her personal email, that the devices used by her were not protected, and the server storing these emails was by a company not having any credentials to handle such high level material is beyond unbelievable, demonstrating a foolish recklessness that would be disturbing should she not only be the democratic nominee but also go on to win the presidency.
@Doug, Abedin had both a state.gov account and a clintonemail.com account. No explanation of why.
@steve, The background is that the State Department argues that it does not have any obligation for public records not in its possession. From the earlier August 4th hearing: “But the point is the FOIA obligation is to search documents in the possession and control of the Department. There’s no question we have done that, and we are going to research those.”
Normally, he has a point here. All the FOIA requires is for the responding agency to provide timely copies of government documents that are responsive to the request; it does not require that agency to go out and find documents or create documents.
The problem is that the existence of “public records” outside the possession and control of the government is not a concept that is supposed to exist according to the Federal Records Act. The Judge has ruled previously, and appears to have ruled again, that under these unique circumstances the State Department is obligated to investigate the location and nature of “public records” outside of its control. So the Judge ruled previously that the Department could be ordered to ask the former employees to provide a sworn response to some questions. Yesterday, it looks like the Department was ordered to work with the FBI.
To answer your other question, concealing, removing, or destroying public records is a felony if done “willfully,” if it is done negligently or innocently it would merely be a violation of workplace rule.
I would add that in law intent may be inferred from a pattern of action.
Sounds like another poorly written law(s). I suspect that is why it is not clear whether or not she has broken any specific law and why Mukasey hedged, Sullivan didn’t name a specific law and Mataconis is not certain if she did anything illegal.
Steve
If the Federal Records Act is the law that Judge Sullivan was talking about when he referred to “policy,” then my understanding is that the obligations under the law extend to the department more than they do to any single employee. It is then the department’s responsibility to draft policy to ensure that the FRA is followed and that government communications are properly archived. My understanding is that at the time Clinton became Secretary of State the existing policy still allowed State Dept. employees to use private email, but I have not seen that policy so I can’t say for sure and I don’t know if the policy included allowing employees to use their own server under their direction and control. In any case, the question of whether policy was violated may be moot because what Clinton was approved by the State Dept. and, likely by some other agencies of the government as well. The GAO and the National Archives come to mind.
More broadly than that, I will say that even if what Clinton did was legal it was most certainly unwise and it should not have been permitted. She also should not have had the ability to be the person who determined at the end of her time in office which emails were “work-related” and which were “personal.”
Increasingly Hillary Clinton’s defensive statements regarding her email, along with denials of their classified status being stamped as such, seem to be falling apart. According to Reuters some of the disputed correspondence was classified from the very onset because of it’s serious/secret content, or “born classified.” The fact that she is currently portraying herself as an innocent in all of this is blatantly bizarre.
Special ops group demands state department strip Hillary’s security clearance.
Some fallout.
“If the Federal Records Act is the law that Judge Sullivan was talking about when he referred to “policy,†then my understanding is that the obligations under the law extend to the department more than they do to any single employee.”
Technically, the obligation goes to the head of each federal agency. I believe this is the approach taken in such laws because if an entire agency would be responsible, then nobody would be accountable. But you are correct that there are two separate issues here, one is Clinton’s responsibility during her term and the other is Kerry’s responsibility during his.
“My understanding is that at the time Clinton became Secretary of State the existing policy still allowed State Dept. employees to use private email, but I have not seen that policy so I can’t say for sure and I don’t know if the policy included allowing employees to use their own server under their direction and control.
I’m not sure written policies are required, but there appears to have been one. During Clinton’s tenure, a State Department Ambassador was fired in part for using non-governmental e-mail account for official government purposes. Link
That link goes to an Inspector General’s report describing the policy:
“According to 12 FAM 544.3 and 11 State 73417 (from the Assistant Secretary for Diplomatic Security to the Ambassador), it is the
Department’s general policy that normal day-to-day operations be conducted on an authorized information system, which has the proper level of security controls. The use of unauthorized information systems increases the risk for data loss, phishing, and spoofing of email accounts, as well as inadequate protections for personally identifiable information. The use of unauthorized information systems can also result in the loss of official public records as these systems do not have approved record preservation or backup functions. Conducting official business on Department
automated information systems must be limited to only maintaining communications during emergencies.”
Report Number ISP-I-12-38A, August 2012
My comment is being moderated.
Dave Schuler: Should Sec. Clinton’s staff or lawyers be making the determination as to which of the emails on that server are work-related and which aren’t?
Current policy charges her with making that determination. Think of a Secretary of State cleaning out her desk. She sorts her personal items into one box, and business items in another.
Email is not considered secure, so classified information is normally not sent on that channel. Some unmarked classified information may have been sent, and some discussions may have involved classified information, though some of it may have already been in the public domain. None of that sort of leakage is unusual.
I think you’re confusing with determinations on what is to be classified with determinations on what is official.
Department heads do not have complete discretion and don’t operate without Congressional or judicial oversight. Additionally, there’s the matter of timing. At the point we’re talking about Hillary Clinton was not Secretary of State; John Kerry was. She should have turned everything over intact.
Dave Schuler: I think you’re confusing with determinations on what is to be classified with determinations on what is official.
The time to have made that determination was on her severance from the department just as is the case with any other government employee, not years later.
Dave Schuler: The time to have made that determination was on her severance from the department just as is the case with any other government employee, not years later.
Her claim is that government correspondence was already backed up with the recipients emails. While this is not good policy, it is probably not illegal. Nor is she required to turn over her private emails. This should entail new policies concerning email to prevent a recurrence.