The New York Times is reporting that, during the time that she served as secretary of State, Hillary Clinton exclusively used a private e-mail 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 Clinton exclusively 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 e-mail accounts has become an issue, of course. Indeed, as the article notes further on, Colin Powell used a private e-mail account nearly exclusively during the time that he was secretary of State, although that was at time before current regulations regarding the use of e-mail 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 e-mail occasionally, but used it exclusively for all official correspondence to the point where they didn’t even bother to establish an official government e-mail 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 e-mail 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 e-mail 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.
Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.
James Joyner is editor of the Outside the Beltway blog at http://www.outsidethebeltway.com/.