How Mrs. Clinton’s deletion of “personal” e-mails likely violates federal records law
Shortly after her press conference this week at the United Nations, Hillary Clinton released a background “Q&A” that all but confirmed that she did not comply with federal records laws (a story that Time reported on yesterday). Mrs. Clinton’s lawyeristic backgrounder explained that, after the State Department requested the return of any e-mails that contained official business, her legal team conducted a highly suspect review of the e-mails to determine which ones might contain official business. Rather than actually reviewing each of the 60,000 or so e-mails, her legal team developed a screening mechanism, common in civil litigation, of using keyword searches to cull the stack.
The backgrounder explains that Clinton’s lawyers first searched the e-mails to see if they were sent by or to a “.gov” e-mail account, capturing any e-mails Mrs. Clinton may have sent to official federal-government contacts (but not Clinton.com e-mail accounts maintained by her close associates). They then added as search terms the names of 100 government officials. Those names would simply have been people that Hillary Clinton might have remembered having an e-mail exchange with during her tenure in office. Finally, the lawyers added in some legal search terms, like “Libya” and “Benghazi.”
The problems with using such a method for determining what are official and what are personal records are legion. While the search method would account for records that were sent to the named officials, there were apparently no searches for private individuals or foreign officials whom she might have e-mailed. Her backgrounder later explains that “the review of all of her emails revealed only one email with a foreign (UK) official.” But that representation sounds more like the result of a defective search methodology than a personal practice of not e-mailing foreign officials. Indeed, the backgrounder never really answers the question, which it poses itself, whether Mrs. Clinton used her e-mail to communicate with foreign officials; it only answers what the search, using her selected methodology, turned up.
Nor could her use of a list of subjects possibly capture all the subjects she might have touched on in her four-year tenure as secretary of state. While keyword searches are often used in civil discovery to find responsive electronic records, those searches are done in response to demands for particular documents. If a plaintiff asks a corporation that might have known about the problems with a particular widget, a search for the term “widget” in an e-mail, coupled with a list of likely custodians, might be a good way to screen the millions of electronic records that a corporation has. Even then, the lists of search terms are often the subject of intense negotiations (and often judicial orders) between the parties to litigation. Here, Mrs. Clinton apparently did not have any discussions with the State Department about her search methodology and terms. And how on earth could Mrs. Clinton develop a list of all the subjects she might have sent or received e-mails about during her tenure at the State Department? The answer is that she could not.
So there is every reason to think that the 30,000 e-mails Mrs. Clinton turned over to the State Department in December 2014 were under-inclusive. If Mrs. Clinton’s legal backgrounder is accepted at face value, some 31,000 additional e-mails were deemed “private, personal records” simply because they did not trip any of the search tripwires used by her lawyers. Apparently no one ever looked at those additional records on a case-by-case basis. Even if you accept that Mrs. Clinton’s review could satisfy her legal obligations, which I have suggested is not the case, there is simply no way that Mrs. Clinton has now properly reviewed and categorized her e-mails, as required by the federal records act.
The most stunning admission in her press conference and written Q&A is that, after conducting this review, Mrs. Clinton then deleted all of the records that satisfied her specious definition of “personal records.” The only reason for deleting those records, of course, is to seek to put them permanently beyond public inspection. Mrs. Clinton explained that she was allowed to do so because government officials “are granted the privacy of their personal, non-work related emails, including personal emails on .gov accounts. Secretary Clinton exercised her privilege to ensure the continued privacy of her personal, non-work related emails.” But once again, Mrs. Clinton (and her highly paid lawyers) completely misrepresent the applicable rules. The State Department’s e-mail records policy makes it emphatically clear that “no expectation of privacy or confidentiality applies” to personal e-mails maintained on State Department servers (5 FAM, 443.5 Points to Remember about E-mail). Every high-ranking federal employee has to understand that e-mails covering an evening grocery list are just as likely to get searched by agency records officials in response to congressional subpoenas or FOIA requests as their records reflecting actual agency business.
That does not mean that Mrs. Clinton would not be entitled to delete purely personal e-mails, had they been maintained on official governmental servers. A government employee could, consistent with federal records laws, delete e-mails from a spouse at the end of every business day or even at the end of a term of employment. But that employee is not entitled to do as Mrs. Clinton did here, which is deem as “personal” any records that didn’t meet an artificial and erroneous definition of “official,” and then delete those records wholesale. Nor, as I explained here, could she retain all such documents (and her official e-mails to boot) after she left office without getting prior approval from department records officials.
Despite her repeated suggestion that she complied with all the rules, Mrs. Clinton almost certainly has deleted records that State Department records officials would have preserved as official records. Perhaps, again, there is a good explanation for all of this. But based on what we now know from Mrs. Clinton herself, there’s a lot more explaining to do.
— Shannen W. Coffin is a contributing editor to National Review. He is a partner at the Washington, D.C., law firm Steptoe & Johnson LLP and was a senior lawyer in the George W. Bush Justice Department and White House.