One of the defenses that Hillary Clinton offered at yesterday’s press conference was that she had complied with federal records laws because those laws leave it up to her, as the employee who created or received an e-mail, to decide whether that e-mail must be preserved under the Federal Records Act. But while Clinton is correct that every employee has to make some initial determination of whether a particular document is an official “record,” the ultimate determination is most definitely not up to the employee, but rather to the agency and its records-management officials. Bear with me through some bureaucratic mumbo-jumbo for a moment, because the payoff is pretty significant.
That Mrs. Clinton is not the ultimate arbiter of whether her records must be preserved is made very clear in the Department of State’s own records-management manual. Under a provision titled “Removal Procedures,” the manual sets forth the process that each Department of State employee must go through upon separation (i.e., resignation or retirement) from the department. In addition to relinquishing classified materials, all employees are required to clear the removal of any unclassified materials through records-management officials.
First, the “departing official or a staff member must prepare an inventory of personal papers and nonrecord materials proposed for removal.” The departing official must then “request a review of the materials proposed for removal.” Lest Mrs. Clinton claim she was not subject to this rule, the manual provides that this review process is specifically required for “Presidential appointees confirmed by the Senate.”
The purpose of this independent review by records officials (as opposed to simply accepting the say-so of the departing official) is “to certify that the documentary materials proposed for removal may be removed without diminishing the official records of the Department; violating national security, privacy or other restrictions on disclosure; or exceeding normal administrative economies.” The process “generally requires a hands-on examination of the materials to verify the accuracy of the inventory.” (5 FAH-4 H-217.2(b)).
Finally, there is a formal certification by the State Department records official authorizing the employee to remove the documents from State’s custody: “Once the reviewing official is satisfied that documentary materials proposed for removal comply with Federal law and regulations the reviewing official completes Form DS-1904, Authorization for the Removal of Personal Papers and Non-Record Materials, and forwards the form and the inventory to the Department of State records officer.”
These “nonrecord materials” may be removed only “when authorized by the Department and only to the extent that their removal does not: (1) Diminish the official records of the Department; (2) Violate confidentiality required by national security, privacy or other restrictions on disclosure (e.g., commercial or financial information, personnel files or investigative records); (3) Exceed normal administrative economies.”
Despite her repeated protestations at yesterday’s press conference that she followed all applicable rules, it is pellucid that she did not. Mrs. Clinton plainly did not just remove personal e-mails without clearing that removal with records officials; she also did not even return official records. Her defense now is that returning the documents two years later is good enough. But the same records manual emphatically rebuts that post-hoc justification. The department’s records manual requires that departing officials “must ensure that all record material that they possess is incorporated in the Department’s official files and that all file searches for which they have been tasked have been completed, such as those required to respond to FOIA, Congressional, or litigation-related document requests.” And lest the employee not get the message, the manual adds that “fines, imprisonment, or both may be imposed for the willful and unlawful removal or destruction of records as stated in the U.S. Criminal Code (e.g., 18 U.S.C., section 2071).”
I have already discussed here the question of whether Mrs. Clinton may have violated that criminal prohibition on willful concealment of government records, and the evidence to date — especially her disclosure yesterday that she deleted any document that she determined to be personal in nature (without permission of the Department under the records-removal guidelines) — suggests a strong possibility that she did. But might she have lied to department records officials when she separated from service?
The department’s records manual (5 FAH-4 H-217.1(a)) requires that records officials “remind[] all officials, about to leave the Department or a post, of the requirements for the removal of personal papers and nonrecord materials.” Critically, the department enforces “compliance with these procedures for the removal of documentary materials prior to execution of the Separation Statement (Form OF-109).”
And what is Form OF-109? It is a formal separation statement, in which the departing official certifies the return of any classified materials, and, more relevant for present purposes, that the departing official has “surrendered to responsible officials all unclassified documents, and papers relating to the official business of the Government acquired by me while in the employ of the Department.” The form makes very clear that a false statement in the certification is punishable as a crime, including under 18 U.S.C. § 1001, which makes it a crime to knowingly and willfully falsify or conceal facts in statements made to federal agencies concerning a matter within its jurisdiction.
According to the department’s procedures, then, every departing official is required to certify the return of all government documents under penalty of law. Did Hillary Clinton sign such a certification upon her separation from government? Did she knowingly swear that she had returned all records, when in fact she had retained at least 55,000 pages of official e-mails (and perhaps more)? And if she did not sign such a certification, why not? Every other departing employee and official of the State Department is required to do so. Did she ignore her obligations to return the records and thus avoid a false certification? It seems that the one document in all of this that we need to see, if it exists, is Hillary Clinton’s Form OF-109.
— 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.