Hillary Rodham Clinton’s use of a personal e-mail account as secretary of State has created confusion over when and whether she complied with federal regulations to archive her e-mails.
The New York Times reported late Monday that Clinton used a personal account for all her e-mail while serving as secretary of State, meaning that her e-mails might not automatically be preserved. Clinton’s office responded that 90% of her emails were sent to State Department addresses and would therefore have been preserved — and that all of her official e-mails were turned over to the State Department last fall.
The e-mail issue is a matter of potential impropriety in government — but since Clinton is considered to be all but declared as a presidential candidate, it has political ramifications, too.
Clinton spokesman Nick Merrill said “the letter and spirit of the rules” allowed for personal e-mail use provided “appropriate records were preserved.”
White House press secretary Josh Earnest at his daily briefing said “the policy as a general matter allows individuals to use their personal e-mail address as long as those e-mails are maintained and sent to the State Department.”
Meanwhile, some Republicans weighed in, including likely GOP presidential contender Jeb Bush, who tweeted: “Transparency matters.”
Here’s a look at some of the questions that have been raised since reports about Clinton’s e-mail use surfaced:
What’s the big deal?
Merrill said Clinton maintained and used a private e-mail account during her four years as secretary of State, not a government account. That means all her e-mails may not have been automatically archived as government documents, although Merrill said thousands of her e-mails have been.
Is that legal?
Any government official can maintain a private e-mail account, as long as they turn over government business for archiving. Federal policy encourages all employees to transact business on government accounts.
Jason R. Baron, a former director of litigation at the National Archives and Records Administration, said Clinton’s “sole use” of a private e-mail account is “highly unusual” and “plainly inconsistent with the Federal Records Act.”
It would not be “sanctionable” conduct, he said, because the rules have been clarified in recent years, after Clinton left the State Department.
A bill passed by Congress last year, the Presidential and Federal Records Act Amendments of 2014, makes it illegal to use a non-official e-mail account to conduct public business.
There are two exceptions: An employee can copy their official e-mail account on the correspondence, or forward a complete copy of the e-mail to the official account within 20 days. Violations of that law are not criminal, but “shall be the basis of disciplinary action.”
But those provisions did not exist until President Obama signed them into law last November, almost two years after Clinton left office. Before that, federal law considered public business conducted via private e-mails to be a federal record and prohibited employees from destroying them, but did not explicitly ban the use of personal e-mail. Under a 2009 regulation, federal agencies that allowed the use of personal e-mail were required to ensure those e-mails were preserved.
In 2012, President Obama signed a presidential memorandum ordering federal agencies to update their recordkeeping systems. The National Archives and Records Administration issued a directive implementing that order the same year. It required that “e-mail records must be retained in an appropriate electronic system that supports records management and litigation requirements.”
The goal of federal law is to make sure that e-mails dealing with government business are kept and recorded, says Peter Swire, a professor of law and ethics at Georgia Tech. “The updated archiving rules were issued several years after Clinton became secretary of State,” he said. “It has taken a while for federal archiving rules to catch up with changing technology. It appears that Clinton turned over her government-related e-mails months before this news story hit.“
Many executives in the private sector insist on having personal e-mail accounts, Swire said, noting that “Bring Your Own Device” is a common rule of thumb at corporations. That is easier said than done at the federal level because of worries about security against hackers. The government had to develop special technology in order for President Obama to send private e-mail on his BlackBerry.
Then-secretary of State Hillary Rodham Clinton waves upon leaving for Beijing at a military airbase in Seongnam, south of Seoul, on Feb. 20, 2009. (Photo: Park Ji-Hwan, AFP/Getty Images)
What is Clinton’s response?
Merrill said that, with official business, Clinton e-mailed federal colleagues on their government accounts “with every expectation they would be retained.” He added: “When the Department asked former Secretaries last year for help ensuring their emails were in fact retained, we immediately said yes. Both the letter and spirit of the rules permitted State Department officials to use non-government email, as long as appropriate records were preserved.”
A Clinton aide, speaking on background, said that 90% of the e-mails from Clinton’s BlackBerry were sent to State Department employees at their work e-mail address and therefore were captured. Clinton turned over 55,000 pages of her e-mails last year. “So if she e-mailed with her daughter about flower arrangements for her wedding, that didn’t go in,” the aide said, “but if she e-mailed one of the 100 State Department officials she regularly corresponded with, State had it in their servers already and (Clinton’s) office replicated that to ensure it was all there.”
Clinton did not use e-mail for classified communication, State Department spokeswoman Marie Harf said.
Has the White House weighed in?
Earnest discussed the issue at his daily White House briefing.
“What I can tell you is that very specific guidance has been given to agencies all across the government, which is specifically that employees in the Obama administration should use their official e-mail accounts when they’re conducting official government business,” he said.
He added that the State Department asked that previous secretaries who used e-mail for official business to send those messages to the department. “Secretary Clinton’s team, in response to that request, reviewed her e-mails and complied with that request by sending all of the e-mails on her personal account that pertained to her official responsibilities as secretary of State.”
Why didn’t Clinton use a state.gov e-mail?
Clinton’s office did not respond to requests for comment on this issue.
State Department spokesperson Marie Harf said that Clinton’s use of a private account “was by no means unusual,” and “had been the practice” until Kerry’s tenure. Harf said there’s no prohibition on non-State accounts, as long as messages between government officials are preserved.
What’s the political fallout for someone who’s a likely presidential candidate?
A blast of criticism from Republicans, for one thing. Republican National Committee Chairman Reince Priebus, referring to previous reports that the Clinton Foundation raised money from foreign governments, tweeted: “Was this so @ could conduct diplomacy and fundraising at the same time?”
Potential election opponents say Clinton used a private e-mail account to hide information. Some are calling on Clinton to release all of her e-mails during her years at the State Department. That includes former Florida governor Jeb Bush, who released his e-mails during his two terms as Florida governor, called on Clinton to release hers.”Transparency matters. Unclassified @ emails should be released,” he said in a tweet.
The organizations waiting to support a Clinton presidential run argued that her e-mail use is not an issue for voters. “If she loses even one vote because she did not have the bureaucracy’s preferred email account, I will eat my hat,” longtime Clinton aide Paul Begala said in an e-mail. “Keep in mind I am a Texan, so I have a ten-gallon Stetson,”
Correct the Record, an independent group that exists solely to combat negative stories about Clinton, pointed out that previous secretaries of State have also used personal email accounts and that Clinton had provided emails when asked to do so. “Hillary ?made sure more than 55,000 pages of emails were archived. She did this months ago,” Adrienne Elrod, communications director, said in a statement.
Clinton’s avoidance of a government e-mail is an easy fit with existing criticisms of her, even among Democrats. “This is an issue that has some resonance with folks’ reasons for skepticism regarding the Clintons: lack of transparency and forthrightness,” says Sean Trende, political analyst for RealClearPolitics.
The e-mail issue is also a test of Clinton’s team in handling controversy, says John Hudak, a governance and politics fellow at the Brookings Institution. Clinton should take Jeb Bush’s advice and release as many e-mails as possible, he says. “She should be as transparent as possible within the bounds of executive privilege and national security, just to make the story go away. That’s just good politics from her perspective.” By the time the 2016 campaign is truly underway, “I don’t think anyone is going to care what e-mail server the secretary of State is using.”
The issue could have political implications beyond her possible 2016 campaign. Although Clinton left the State Department in 2013, the question of her e-mail archiving also reflects on the Obama administration, which has touted its transparency.
What don’t we know?
Although Clinton and the State Department say that 55,000 pages of her emails were turned over for archiving, it isn’t clear how many unclassified e-mails were not turned over. And the question, of course, remains about why she didn’t use a State Department e-mail address to begin with.
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