Hillary’s emails ‘not technically illegal’

Hillary Clinton’s exclusive use of a personal email account to conduct official business as secretary of State caused seems to have stayed within the law, experts say.

“What she did was not technically illegal,” said Patrice McDermott, a former National Archives staffer and the head of the Open The Government coalition, a transparency group.

However, “it was highly inappropriate and it was inappropriate for the State Department to let this happen,” she said.

The New York Times on Monday reported that Clinton did not use an official government email account while serving in Obama’s Cabinet, nor did she back up the messages to a government server.

{mosads}John Wonderlich, the policy director at the Sunlight Foundation, agreed that the practice “seems like it’s not unlawful, which suggests to me that we’re in pretty serious need of a legal reform.”

“When the secretary of State of the United States is using personal email exclusively, that suggests a pretty serious public accountability program,” he added.

Republicans have been especially incensed by Clinton’s email usage, and said that the apparent oversight was part of a larger trend in the Obama administration to hide behind secret email accounts.

A Clinton spokesman defended the practice as routine and said that the former first lady obeyed “both the letter and spirit of the rules.”

“Like secretaries of State before her, she used her own email account when engaging with any department officials,” spokesman Nick Merrill said in a statement. “For government business, she emailed them on their department accounts, with every expectation they would be retained.”

White House spokesman Josh Earnest said that the Obama administration had given “very specific guidance” telling all agencies that staffers should use their official email accounts when conducting official business, and that any business conducted through personal email accounts be “preserved consistent with the Federal Records Act.”

Last November, Obama signed into law a bill requiring government emails dealing with an official matter sent from a personal account to be forwarded to an official email account within 20 days. That law and previous guidance issued by the National Archives have attempted to clarify the rules, but it was never expressly mandated that top-level officials use government-issued accounts.

“There was no prohibition on using a account for official business as long as it was preserved,” State Department spokeswoman Marie Harf said on Tuesday.

Jason R. Baron, a former director of litigation at the National Archives and lawyer at Drinker, Biddle & Reath, said the authors of the law had not anticipated that such a prohibition would be necessary.

The Federal Records Act “assumed that high-level officials will use government-approved record keeping systems for the transaction of government business,” he said. “So while it is not illegal per se to use a private email account like Gmail, it is highly unusual for a high-level official to solely use a private account for the transaction of government business.”

In recent months, the State Department has asked former secretaries of State to submit for preservation emails sent through their personal accounts. Clinton submitted 55,000 pages of emails, the State Department said.

Paul Wester, the chief records officer at the National Archives, said in a statement on Tuesday that the office had reached out to the State Department “to ensure that all federal records are properly identified and managed in accordance with the Federal Records Act and that controls and procedures are in place to manage records effectively in the future.”

Despite the evolving law, there have long been general rules on the books safeguarding “against the removal or loss of records,” said Douglas Cox, a professor at the City University of New York School of Law who focuses on records preservation laws.

“In a situation where she’s creating federal records outside the custody of the State Department and then keeping them there, that I think could violate the more general rules that have been there for long time,” he said. “To me, it’s a bit mind-boggling.”

Emails leaked by Gawker in 2013 seemed to indicate that, while she was in office, Clinton was operating with an email address that used the domain Records show that that domain name was created the day that Clinton’s confirmation hearings began in the Senate in 2009, and just a week before Obama was sworn into office.

Robert Gibbs, Obama’s former press secretary, said on NBC’s “Today” show that Clinton’s email practices were “highly unusual” and noted that top-level officials go through “lots of briefings” on how to preserve their emails.

Rep. Darrell Issa (R-Calif.), who has repeatedly sparred with Clinton over her role in the 2012 attack on a U.S. diplomatic compound in Benghazi, Libya, accused her of trying to “skirt” the law.

“This latest revelation from the so-called ‘most transparent administration ever’ shouldn’t surprise anyone,” he said in a statement on Tuesday.

Steven Aftergood, who heads the Federation of American Scientists’ project on government secrecy, hoped that the flap could lead to legislation with clearer rules about what officials can and can’t do with their personal email accounts. 

“It could be a learning opportunity and a spur to help get federal records in better shape than they are,” he said.

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