If the old political adage is true that the cover-up is worse than the crime, there is a corollary that denying the acts are a crime can be nearly as bad. When news first broke that Hillary Clinton used a private server for her email the reaction was generally that she acted unethically, foolishly, and possibly in violation of the rules. Then Clinton gave a news conference in which she basically insulted the intelligence of the press and all thinking people watching her who retain any objectivity. She claimed that she did not violate any rules, and the fact checkers got hard to work to show that, despite her denials, Clinton clearly did violate the rules. Instead of burying the story as she hoped, her dishonesty has kept talk of the issue going.
Clinton apologists came out with several attempts to obfuscate the issue. They quoted the 2014 changes in the Federal Records Act, arguing that they were passed after Clinton left office, but ignored the 2009 changes in the rules, along with directions within the Obama administration in 2009 and 2011 to improve transparency in government. They say that Colin Powell did the same, ignoring the rules changes which didn’t come into effect until 2009. Sure other Republicans have had comparable problems with their email, but it is hardly a good defense to show that Clinton is acting like a Republican. They move the goal posts and argue that there was no law against using private email. The issue is not the use of private email but that it did violate the rules in using private email exclusively. More seriously, she violated rules requiring that when private email is used it be archived on government servers. She also violated the rules when she deleted email, and when she used her private servers to avoid Freedom of Information requests from the press.
I have previously quoted Dan Metcalfe, who ran the Freedom of Information office for the Justice Department, explaining how Clinton violated the rules. Since that interview, he has written an article explaining yet once again how Clinton violated the rules:
We now have former Secretary of State Hillary Clinton being revealed as someone who took the unprecedented step of arranging to use her personal email account for all of her official email communications. What’s more, she decided to use her own email server equipment, rather than a commercial Internet service provider, so that the records of her email account would reside solely within her personal control at home. And if that were not enough, she then proceeded blithely—though not uncharacteristically—to present herself to the public, at a press conference held on March 10, as if there were really nothing “wrong” about any of this at all.
Well, as the saying goes, “reality is not her friend.”For anyone considering this sad tale carefully—including the media, members of Congress and the public at large, whether from “inside the Beltway” or not—some basic points of both law and reality should be borne in mind.
First, while it is accurate for Secretary Clinton to say that when she was in office there was not a flat, categorical prohibition on federal government officials ever using their personal email accounts for the conduct of official business, that’s a far different thing from saying (as she apparently would like to) that a government official could use his or her personal email account exclusively, for all official email communications, as she actually did. In fact, the Federal Records Act dictates otherwise.
That law, which applies to all federal agency employees who are not within the White House itself, requires the comprehensive documentation of the conduct of official business, and it has long done so by regulating the creation, maintenance, preservation and, ultimately, the disposition of agency records. When it comes to “modern-day” email communications, as compared to the paper memoranda of not so long ago, these communications now are themselves the very means of conducting official business, by definition.
To be sure, this cannot as a practical matter be absolute. When Obama administration officials came into office in 2009, the Federal Records Act certainly allowed room for the occasional use of a personal email account for official business where necessary—such as when a secretary of state understandably must deal with a crisis around the world in the middle of the night while an official email device might not be readily at hand. That just makes sense. But even then, in such an exceptional situation, the Federal Records Act’s documentation and preservation requirements still called upon that official (or a staff assistant) to forward any such email into the State Department’s official records system, where it would have been located otherwise.
This appears to be exactly what former Secretary of State Colin Powell did during his tenure, just as other high-level government officials may do (or are supposed to do) under such exceptional circumstances during their times in office. Notwithstanding Secretary Clinton’s sweeping claims to the contrary, there actually is no indication in any of the public discussions of this “scandal” that anyone other than she managed to do what she did (or didn’t) do as a federal official.
Second, the official availability of official email communications is not just a matter of concern for purposes of the Federal Records Act only. It also makes an enormous (and highly foreseeable) difference to the proper implementation of the Freedom of Information Act (known as the “FOIA” to its friends, a group that evidently does not include Secretary Clinton). That is because the starting point for handling a FOIA request is the search that an agency must conduct for all records responsive to that request’s particular specifications. So any FOIA request that requires an agency first to locate responsive email messages sent to or from that agency’s head, for instance, is necessarily dependent on those records being locatable in the first place. And an agency simply cannot do that properly for any emails (let alone all such emails) that have been created, and are maintained, entirely beyond the agency’s reach. Or, as it sometimes is said somewhat cynically in the FOIA community, “You can’t disclose what you can’t find.”
In this case, which is truly unprecedented, no matter what Secretary Clinton would have one believe, 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. “Nice work if you can get it,” one might say, especially if your experience during your husband’s presidency gives you good reason (nay, even highly compelling motivation) to relegate unto yourself such control if at all possible.
Third, there is the compounding fact that Secretary Clinton did not merely use a personal email account; she used one that atypically operated solely through her own personal email server, which she evidently had installed in her home. This meant that, unlike the multitudes who use a Gmail account, for instance, she was able to keep her communications entirely “in house,” even more deeply within her personal control. No “cloud” for posterity, or chance of Google receiving a congressional subpoena—not for her. No potentially pesky “metadata” surrounding her communications or detailed server logs to complicate things. And absolutely no practical constraint on her ability to dispose of any official email of “hers,” for any reason, at any time, entirely on her own. Bluntly put, when this unique records regime was established, somebody was asleep at the switch, at either the State Department or the National Archives and Records Administration (which oversees compliance with the Federal Records Act)—or both.
Now, what Secretary Clinton would have one believe is that this is all just a matter of her choosing one available email option over another, that she really did nothing that her predecessors had not done before her and that she can be trusted to “have absolutely confidence” that what she did “fully complied with every rule that [she] was governed by.” In other words, the thrust of her March 10 press conference was: “Everything was fine, nothing to be seen here, so let’s all just move along.”
But having spent a quarter-century at the forefront of the government’s administration of the FOIA, including its transition to electronic records and its involvement in so many Clinton administration “scandals du jour,” I know full well that both what Secretary Clinton arranged to do and what she now has said about that are, to put it most charitably, not what either the law or anything close to candor requires. At a minimum, it was a blatant circumvention of the FOIA by someone who unquestionably knows better and an attempted verbal “cover” of the situation (if not “cover-up”) that is truly reminiscent of years past.
And I say that even as someone who, if she decides to run for president and is the Democratic nominee, will nevertheless vote for her next year.
I cannot tell you how many times, during the eight years of the Clinton administration, I heard someone say, “The cover-up is worse than the crime.” For those of us who knew what most of the alleged record “cover-ups” actually were, even if not the full extent of each “crime,” I can tell you that this sometimes was true—but not always. In fact, the exact phrasing of the public explanations given, with their sly connotations versus denotations, could make all the difference.
Let’s start with her opening sentences of the press conference: “First, when I got to work as secretary of state, I opted for convenience to use my personal email account, which was allowed by the State Department….”
This statement, right off the bat, gives a false impression, through two key words that are used and one that is missing. Her use of “opted” (which, incidentally, was readily accepted by her first questioner) strongly implies that she actually had a choice under the Federal Records Act; she did not. And the word “allowed” likewise connotes that what she did was permissible as a matter of law. It was not. It obviously was “allowed by the State Department” in one sense because it did proceed to happen; no one tackled her in the hallway before she could do it. But that does not mean that it was properly allowed, which is what she repeatedly implies. The missing word, of course, is “exclusively.” Officials were not absolutely barred from ever using their personal email accounts. But again, that is a far cry from what this answer falsely implies—that the law and regulations, either back then or now, allow the use of a personal email account exclusively. She never should have been using a personal account exclusively for her email correspondence. That’s the key ingredient that made her email setup contrary to policy, practice and law.
Let’s take, as another example, her claim that what she did was in compliance with law because “the federal guidelines are clear.” OK, please now tell us, Secretary Clinton, exactly which “federal guideline” (even one will do, notwithstanding your claim of plurality) makes it “clear” that you can unilaterally decide, dispositively and with such finality, which of your work-related records are “personal” and which ones are not, even with FOIA requests pending? Years ago, I worked on a case in which a presidential appointee—who shall remain nameless though not blameless—after becoming caught up in an especially controversial matter, intransigently declared that all of the records on a credenza behind his desk were “personal” and thus were beyond the reach of the FOIA (and that of the agency FOIA officer, whom he physically prevented from going back there). This official was severely castigated by a federal judge after it was found that he was, in no small part, quite mistaken about both things; the judge’s opinion was so pointed that we used the case regularly in our FOIA training programs. So yes, Secretary Clinton’s suggestion that federal officials can unilaterally determine which of their records are “personal” and which are “official,” even in the face of a FOIA request, is laughable.
It is not at all uncommon for the average federal employee on a day-to-day basis to bear the responsibility of “separating the wheat from the chaff” under the Federal Records Act, as well as when that employee departs from federal service. Even relatively high-level employees such as myself (as an ES-5 in the Senior Executive Service) often are able, as a practical matter, to determine such things, just as I did when I retired from the Justice Department eight years ago. But I certainly could not have taken with me the sole copy of any agency-generated document, nor could I have properly stymied any pending FOIA request—not even for a record in my office that I was convinced was 100 percent “personal.” In fact, at Justice we created a formal process to govern things that departing officials sought to “remove.” The first official to which the policy was applied, at her own insistence, was Attorney General Janet Reno, at the end of the Clinton administration. (This stood in stark contrast with the sad case of Attorney General Edwin Meese, who was so overreaching upon his departure that we had to scour his garage in Virginia to retrieve about a dozen boxes of records that he wrongfully took with him in violation of the Federal Records Act, among other things.) One cannot help but wonder how Secretary Clinton’s departure process was handled.
Metcalfe went on to criticize Clinton for the security risks in the manner in which she handled sensitive and possibly classified information.
While criticism of Clinton from the left has been over concerns for honesty and transparency in government, criticism from the right has often been over other matters. For example, The Wall Street Journal ran an opinion piece from Ronald Rotunda, a professor at Chapman University’s Fowler School of Law, arguing that Clinton committed obstruction of justice in destroying some of the email:
The law says that no one has to use email, but it is a crime (18 U.S.C. section 1519) to destroy even one message to prevent it from being subpoenaed. Prosecutors charging someone with obstruction don’t even have to establish that any investigation was pending or under way when the deletion took place. As T. Markus Funk explained in a journal article for the National Association of Criminal Defense Lawyers, the prosecutor “need only prove that the defendant shredded the documents, at least in part, to make life more difficult for future investigators, if and when they eventually appear.”
Legal commentators call this “anticipatory obstruction of justice,” and the law punishes it with up to 20 years imprisonment. The burden of proof is light. The Justice Department manual advises that section 1519 makes prosecution much easier because it covers “any matters” or “’in relation to or contemplation of’ any matters.” It adds, “No corrupt persuasion is required.”
An opinion from another law professor would be needed to verify this, but I would think that for this to apply there would need to be reason to believe that Clinton had committed a crime she was covering up. While destruction of the email did violate the Federal Records Act, I would doubt that it goes as far as to constitute obstruction of justice without such evidence of a crime. The preservation of email is important with regards to maintaining government transparency and preserving the historical record, but beyond that there is no evidence of any larger crimes being committed by Clinton. Of course conservatives are likely to counter by saying she would not have destroyed email if she didn’t have something to cover-up, and admittedly there is no way to prove this wrong beyond a presumption of innocence which it is not clear Clinton deserves.
Conservatives have also been obsessing over whether she signed form OF-109, in which an official leaving the government certifies that they surrendered all official records. It now appears that she did not. The whole issue of the OF-109 seems like a petty distraction. The real issue is whether she violated the rules, as she did, not how or whether she completed a form regarding compliance with some of the rules. Besides, it looks like it is quite common for public officials to fail to complete this, with no penalty for not signing. Leave it to conservatives to look beyond the real issues and concentrate on trivialities.
