Nguyen: The Email Scandal: Did Hillary Clinton Break The Law?
Wednesday, March 11, 2015
The latest “scandal” involves the former Secretary of State’s use of a personal email address during her tenure from January 21, 2009 to February 1, 2013. Remember those dates because they are important.
During her time as Secretary of State, Clinton used the email address [email protected], a completely personal, non-governmental email address from her own private server that was traced to her hometown in Chappaqua, New York. She used this email address exclusively, for both official government business and for personal correspondence.
The outcry now is that Clinton should have used a government-issued email address, one that ends in .gov, to conduct official government business because, well, the public has a right to access those emails (that do not contain any classified information), and if they are not controlled by the government, how does anyone know what Clinton was doing?
The accusation from the Hillary-haters is that Clinton purposefully set up a private email, equipped with her own server, totally out of the reach of the government, so that she could sidestep any public scrutiny and basically conduct official business without any oversight.
The timing of this “breaking news” is interesting to say the least.
First, the public found out about Clinton’s personal email address in March 2013, when a hacker broke into the personal email account of a White House staffer and saw correspondence with Clinton at [email protected]. The level of political clamor that is happening now did not ensue following the revelation in March 2013.
Moreover, even if the general public didn’t know about Clinton’s personal email address until March 2013, obviously every government official with whom Clinton exchanged email communications knew she was writing from a personal email account. Clearly, [email protected] is not government-issued. If using a private email address was so very wrong, why didn’t anyone call Clinton’s actions out to be corrected? I mean, I don’t know Clinton personally, but I dare say that it is doubtful that she would have continued her email practice if she was told it violated the law.
The law applicable here is the Federal Records Act of 1950, which requires government agencies to preserve records that contain official government business. How are emails handled? Surely, the law did not account for email communications when it was enacted in 1950.
Well, on November 26, 2014, an update to the Act signed by President Obama was made law. This update limits agency officials who use private email for official business, barring them from creating or
sending a government record on a private email account unless they also copy or forward the email to their official government email address. It doesn’t prohibit the use of private email accounts all together, but ensures that all official business is captured on government servers.
November 26, 2014 is nearly two years after Clinton left her position as Secretary of State (remember her tenure was over February 1, 2013).
At the time Clinton was actually in office, personal email addresses were allowed and there was no requirement that private account email records be stored on government servers pursuant to the Federal Records Act. So as far as I can tell, Clinton did not violate the Federal Records Act.
However, during the time that Clinton was in office, there were pertinent regulations issued by the National Archives and Records Administration, an independent agency of the US government tasked with maintaining government and historical records. Those regulations mandated that agencies that allowed employees to conduct official business on personal email accounts had to ensure that any records sent on private email systems were preserved “in the appropriate agency recordkeeping system.”
This seems to be what the Hillary-haters are hanging their hats on. But the question becomes, did Clinton violate this regulation, or did the State Department? The language does not mandate the agency official to act in a certain way. It mandates the agency. This issue will hash itself out in the weeks to come.
It appears that the State Department is trying to go back and collect all private emails that contain official government business. In October 2014, the State Department asked ALL Secretaries of State to send it any such emails. Time out. So you’re saying that other Secretaries of State could have conducted official government business in private email accounts the same way Clinton did? Yes. That’s exactly what I am saying. Apparently, present Secretary John Kerry is the first to have an official state.gov email address.
Clinton’s people turned over 55,000 pages of emails in December 2014. The sheer number of emails and how they were turned over sparked the present day concern. The process of identifying relevant emails was overseen by Clinton’s people, not the government, because the government didn’t have access to Clinton’s server. This begs the question of whether Clinton withheld any documents that would hurt her.
The email scandal is made more controversial because of subpoenas issued last Wednesday by the Benghazi committee, for all of Clinton’s communications related to Libya and the Benghazi massacre of September 11, 2012. The Benghazi conflict is considered the low point of Clinton’s time as Secretary of State, and there are many questions left to be answered. Many believe that those answers can be found in Clinton’s email.
Clinton gave a press conference on Tuesday afternoon on this controversy. She said that when she entered the office of Secretary of State, she didn’t want to carry around two devices, one with her private email, and one with her personal email. She admitted that “looking back, it would have probably been smarter to use two devices.” She pointed out that the vast majority of her work-related emails were sent to people with .gov accounts, so the emails were preserved on a government server at some point. She also stated that she was over-inclusive in her production of emails to the State Department in December – providing any email that could have been remotely related to official business (which the State Department probably already has on its servers by virtue of them being correspondence with .gov addresses). It is doubtful that the press conference has quelled the Hillary-haters.
Clinton is expected to announce her presidential candidacy soon. Whether the timing of this email scandal is coincidental or not, how Clinton handles it in the weeks to come can determine the tenor of her campaign.
Aivi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP, with a focus on business litigation and employment litigation.
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