Hil­lary Clin­ton’s as­ser­tion on e-mails: ‘Ev­ery­thing I did was per­mit­ted’

The Washington Post Sunday - - POLITICS & THE NATION - “Ev­ery­thing I did was per­mit­ted. There was no law. There was no reg­u­la­tion. There was noth­ing that did not give me the full au­thor­ity to de­cide how I was go­ing to com­mu­ni­cate. Pre­vi­ous sec­re­taries of state have said they did the same thing. . . . Ev­ery­thi

It’s been a while since we looked deeply at the con­tro­versy sur­round­ing Clin­ton’s e-mails while she was sec­re­tary of state, but her re­cent state­ments to CNN pro­vide a new op­por­tu­nity.

In some ways, her re­marks, when ques­tioned on her “e-mail prac­tices,” re­mind the Fact Checker of Vice Pres­i­dent Al Gore’s state­ment in 1997 that there was “no con­trol­ling le­gal au­thor­ity” con­cern­ing his phone calls from the White House seek­ing Demo­cratic cam­paign con­tri­bu­tions.

Here, Clin­ton says that “ev­ery­thing I did was per­mit­ted” be­cause “there was no law. There was no reg­u­la­tion.”

So is that re­ally the case?

The Facts

In 2014, Pres­i­dent Obama signed an up­date of the 1950 Pres­i­den­tial and Fed­eral Records Act. That law ex­panded the def­i­ni­tion of “fed­eral records” to specif­i­cally in­clude elec­tronic com­mu­ni­ca­tions and also clar­i­fied the re­spon­si­bil­i­ties of fed­eral gov­ern­ment of­fi­cials when they use non­govern­ment e-mail sys­tems. The re­spon­si­bil­i­ties in­clude copy­ing an of­fi­cial record, such as an email, or for­ward­ing a com­plete copy of the e-mail within 20 days of trans­mis­sion.

In other words, the le­gal re­quire­ment to im­me­di­ately pre­serve e-mails from non­govern­ment e-mail ac­counts was not made manda­tory un­til nearly two years af­ter Clin­ton stepped down as sec­re­tary of state.

But that does not mean that, when Clin­ton was the na­tion’s chief diplo­mat, there were not al­ready in place State Depart­ment rules on how to han­dle e-mails and whether to use a per­sonal e-mail ac­count. While Clin­ton says that other sec­re­taries “did the same thing,” none had set up an ex­clu­sive and pri­vate e-mail server for all of their de­part­men­tal com­mu­ni­ca­tions. (In fact, only Colin L. Pow­ell has ever said he sent e-mails from a per­sonal ac­count, so Clin­ton’s use of the plu­ral is mis­lead­ing.)

The rules also quickly be­came clearer. In 2009, eight months af­ter Clin­ton be­came sec­re­tary of state, the U.S. Code of fed­eral reg­u­la­tions on han­dling elec­tronic records was up­dated: “Agen­cies that al­low em­ploy­ees to send and re­ceive of­fi­cial elec­tronic mail mes­sages us­ing a sys­tem not op­er­ated by the agency must en­sure that Fed­eral records sent or re­ceived on such sys­tems are pre­served in the ap­pro­pri­ate agency record­keep­ing sys­tem.” The re­spon­si­bil­ity for mak­ing and pre­serv­ing the records is as­signed to “the head of each fed­eral agency.”

On top of that, when Clin­ton was sec­re­tary, a ca­ble went out un­der her sig­na­ture warn­ing em­ploy­ees to “avoid con­duct­ing of­fi­cial Depart­ment busi­ness from your per­sonal e-mail ac­counts.”

The is­sue thus be­comes whether Clin­ton co­op­er­ated in the spirit of the laws and rules in place at the time. Clin­ton sug­gests that “when I mailed any­body in the gov­ern­ment, it would go into the gov­ern­ment sys­tem,” so that sig­ni­fied com­pli­ance with the re­quire­ment to main­tain fed­eral records. But her prac­tice made it dif­fi­cult to lo­cate records in re­sponse to spe­cific re­quests be­cause Clin­ton’s e-mail would be in another of­fi­cial’s in­box — but would not ex­ist in the fed­eral sys­tem as part of Clin­ton’s out­box. An of­fi­cial’s out­box would be the first place that peo­ple seek­ing records would look.

In fact, let’s re­call that the State Depart­ment con­tacted Clin­ton, seek­ing copies of her emails, pre­cisely be­cause of­fi­cials were un­able to lo­cate e-mails in re­sponse to queries from a House com­mit­tee in­ves­ti­gat­ing the 2012 ter­ror­ist at­tack in Beng­hazi, Libya.

The Clin­ton cam­paign, in ex­plain­ing Clin­ton’s re­marks, pointed to this sec­tion of a Q&A re­leased by Clin­ton’s of­fice ear­lier this year: “The Fed­eral Records Act puts the obli­ga­tion on the gov­ern­ment of­fi­cial to de­ter­mine what is and is not a fed­eral record. The State Depart­ment For­eign Af­fairs Man­ual out­lines guid­ance ‘de­signed to help em­ploy­ees de­ter­mine which of their e-mail mes­sages must be pre­served as fed­eral records and which may be deleted with­out fur­ther au­tho­riza­tion be­cause they are not Fed­eral record ma­te­ri­als.’ ”

In­ter­est­ingly, the sec­tion of the For­eign Af­fairs Man­ual high­lighted by Clin­ton’s staff now di­rects peo­ple to an in­terim di­rec­tive that was is­sued in mid-Oc­to­ber, at about the time the

The is­sue thus be­comes whether Clin­ton co­op­er­ated in the spirit of the laws and rules in place at the time. ... But her prac­tice made it dif­fi­cult to lo­cate records in re­sponse to spe­cific re­quests.

State Depart­ment for­mally re­quested that Clin­ton pro­vide copies of the e-mails on her pri­vate server.

The no­tice, which re­it­er­ated that em­ploy­ees should not use pri­vate e-mail ac­counts for of­fi­cial busi­ness, stated:

“De­part­ing em­ploy­ees are also re­minded they may take with them only per­sonal pa­pers and non-record ma­te­ri­als, sub­ject to re­view by records of­fi­cers to en­sure com­pli­ance with fed­eral records laws and reg­u­la­tions. All fed­eral records gen­er­ated by em­ploy­ees, in­clud­ing se­nior of­fi­cials, be­long to the Depart­ment of State.”

In­deed, well be­fore this di­rec­tive was is­sued — and be­fore Clin­ton joined the Obama ad­min­is­tra­tion — the For­eign Af­fairs Man­ual made it clear that be­fore a se­nior of­fi­cial (such as a Se­nate-con­firmed pres­i­den­tial ap­pointee) de­parts gov­ern­ment ser­vice, he or she must pre­pare an in­ven­tory of per­sonal pa­pers that are pro­posed for re­moval. The man­ual states that “cor­re­spon­dence or e-mail re­ceived or sent in an em­ployee’s ca­pac­ity as a Depart­ment of­fi­cial is not per­sonal.”

Clin­ton cer­tainly failed to live up to that re­quire­ment, as she had re­tained those e-mail records for nearly two years af­ter she left of­fice be­fore re­turn­ing them to the State Depart­ment. The Clin­ton cam­paign sug­gests she could de­ter­mine what was a fed­eral record, but her State Depart­ment-re­lated e-mails did not fall in that cat­e­gory.

The Pinocchio Test

With her very care­ful lan­guage, Clin­ton skirts some of the im­por­tant is­sues con­cern­ing her pri­vate e-mail ac­count. She ap­pears to be ar­gu­ing her case on nar­row, tech­ni­cal grounds, but that’s not the same as com­ply­ing with ex­ist­ing rules as vir­tu­ally ev­ery­one else un­der­stood them.

In re­al­ity, Clin­ton’s de­ci­sion to use a pri­vate e-mail sys­tem for of­fi­cial busi­ness was highly un­usual and flouted State Depart­ment pro­ce­dures, even if not ex­pressly pro­hib­ited by law at the time. More­over, while she says “ev­ery­thing I did was per­mit­ted,” she did not com­ply with the re­quire­ment to turn over her busi­ness-re­lated emails be­fore she left gov­ern­ment ser­vice. That’s a ma­jor mis­step that she has not ac­knowl­edged.

We wa­vered be­tween Two and Three Pinoc­chios, but Clin­ton’s ex­ces­sive spin fi­nally tipped us to­ward Three. She goes too far in sug­gest­ing her ac­tions were or­di­nary — and did not stretch the lim­its of ex­ist­ing laws and reg­u­la­tions.

GLENN KESSLER

The Fact Checker

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