Nobody Can Figure Out Whether Hillary Broke the Law with Personal Email Account
The New York Times reported Monday evening that Hillary Clinton had used a private email account while Secretary of State, which “may have violated federal requirements.” Why the “may have”?
The issue quickly gets murky. For one, previous secretaries of state had all used personal email accounts; John Kerry is the first to use a State Department email address. Why, besides the 2016 implications, was it a big deal for Clinton to have used a personal email account but not, say, Colin Powell?
According to Times reporter Michael Schmidt, who broke the story, new regulations were implemented in 2009 requiring the archiving of electronic correspondence, which were then followed by a major update to the Federal Records Act in 2014 that forbade the use of personal email accounts for government business.
The former was before Clinton became secretary, the latter after she’d already left. The only 2009 amendment to the law this reporter could find was Executive Action 13489, signed on Obama’s second day in office, governing executive privilege; via Media Matters, a post from the National Archives called the 2014 bill “the first significant changes” to the original 1950 legislation.
The Times article intimated that Clinton was in violation of pre-2014 regulations governing electronic communications. “Mrs. Clinton did not have a government email address during her four-year tenure at the State Department,” Schmidt wrote. “Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act.”
“At the time Clinton was Secretary, the Federal Records Act didn’t require federal employees to use government accounts, only to preserve records of their communications,” the Daily Beast’s Michael Tomasky wrote. “This, Clinton seems to have done.”
There appears to be the crux. Clinton’s spokesperson issued a statement earlier Tuesday arguing that because Clinton’s emails were to State Department officials, they would have been archived within the system on the receiving end. But as Schmidt pointed out, “He did not address emails that Mrs. Clinton may have sent to foreign leaders, people in the private sector or government officials outside the State Department.”
But again, previous secretaries had used personal accounts, and according to Schmidt’s interview on Morning Joe this morning, “Hillary Clinton is the only former Secretary of State to go back and give the State Department her emails.” (In that segment Schmidt was in fact at pains to explain how Clinton’s actions differed legally, instead of politically, from her predecessors.)
This fogginess was enough that New York Times Public Editor Margaret Sullivan addressed it Tuesday afternoon, ultimately supporting the Times’ “cautious” headline that Clinton “possibly” violated rules.
Thus far the most specific framing appears to have come from Vox’s Max Fisher, who wrote “this practice circumvented (though may or may not have outright violated) federal record-keeping regulations that are meant to keep government business transparent.” As of this writing, “circumvent” is le mot juste.
To be clear, there are both national security questions and political ramifications to Clinton’s use of personal emails, the latter potentially re-poking the Benghazi beehive, which appears to be how all this began. The onus is now on Clinton’s camp to prove that her State Department communications were archived according to the rules in place during her tenure — whatever they may have been.
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