Why Congress needs to keep up heat on Clinton emails

The scandal surrounding former secretary of state Hillary ClintonHillary Rodham ClintonTrump officials: Russia meddled in the election Trump lawyers asking about presidential pardon powers: report CIA director: 'I don't love' Wikileaks MORE’s use of a private email account for official government business raises serious concerns about how her administration would handle government transparency issues should she be elected president. Congress thus needs to vigorously demand access to disputed emails, whether through direct examination or a third party review, and it needs to add legal teeth to existing laws and regulations that govern the preservation of official governmental communications.

Right now, with fast evolving technologies and slow-moving government entities – note the State Department did not have an effective policy for preserving emails during Clinton’s tenure there - much about our government’s operations is being lost and high-level officials do not fear serious repercussions for playing loose with their own official communications.

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The Clinton email scandal we suspect is just one high-profile reflection of a larger issue over the preservation of government communications. In light of the recent revelations, now witness the proliferation of stories about other past and current public officials with private email accounts that they used, or are still using, for public business.

As long as Congress keeps the heat on its current investigation of Clinton’s emails and showcases that there are consequences for concealing official communications, it is likely that many other public officials will take note and avoid the use of private email accounts for anything other than private communications. That is good.   

But will the expected front-runner for the Democratic nomination for president take note of the overriding concerns raised about government transparency? When she first ran for president in 2008 Clinton leveled strong criticisms of the George W. Bush administration for its penchant for secrecy and information control and she promised - if elected - to conduct an administration committed to transparency.

But this latest scandal and a number of past controversies suggest that Clinton’s actions as president would not match the rhetoric of her earlier campaign. In the 1990s, there were controversies over her concealing tax records, the secrecy of the health care reform task force, and later a secret task force on energy policy during her tenure as U.S. Senator, as well as ongoing issues surrounding the Clinton family foundation’s operations and sources of donations.  

The propriety of secret task forces, for example, is at least debatable. But it is beyond reason for a top-level government official to establish a private email system at home to conduct government business. No federal official is permitted to operate independently of existing government structures and processes.

Congress has an obligation to secure whatever records it can on governmental communications. Speaker of the House John BoehnerJohn BoehnerSudan sanctions spur intense lobbying OPINION | GOP's 7-year ObamaCare blood oath ends in failure A simple fix to encourage bipartisanship in the House MORE (R-Ohio) has even offered Clinton an easy way out: let a third party review the emails.

The Federal Records Act (FRA) – even before the 2014 amendments – established the principle that government records should be preserved. Clinton not only acted against that principle, but she decided unilaterally that it was proper to delete over thirty thousand emails. Congress must push to uphold the principles set forth in the FRA as there is the added utility of the legislative branch signaling to a very likely leading presidential candidate that the institution takes government transparency issues seriously and it will not permit one person to hide or destroy official communications.

But there is more that Congress should do to fix the problem of a patchwork of laws on government transparency that have failed to keep up with fast-evolving technologies and do not stop public officials from concealing official communications. The amendments to the FRA permit federal officials to use personal email accounts for official business, as long as hard copies of emails are made or the emails are forwarded to the employees’ government accounts. Even without the amendments Clinton certainly understood her actions were running counter to transparency laws or the very least good government principles.

The Clinton email scandal highlights the need for better enforcement of the FRA. Recently the Department of State has acknowledged that Clinton never completed a separation statement, which requires her to turn over all relevant records to the Department before leaving. This statement is an internal State Department mechanism intended to help the Department comply with the FRA. As the Clinton case highlights, it can be easily ignored by top department officials.

Congress should conduct investigations and create processes that codify into law an enforceable system to ensure that public records go to the National Archives. One sensible reform would be to give the Archivist of the United States the authority to create an enforceable system for collecting all relevant records from the heads of departments and agencies. Another would be to make the inspector general responsible for departmental compliance with the FRA.

Whatever reforms are made, Congress should not be willing to allow the current system to continue.

Rozell is acting dean of the School of Policy, Government, and International Affairs at George Mason University. Sollenberger is associate provost at University of Michigan-Dearborn. They are co-authors of the book The President’s Czars: Undermining Congress and the Constitution.