Plenty of lawyers, including some who have a lot of experience with federal-records laws, have opined that Hillary Clinton did not “technically” violate the law. Reasonable minds may disagree, but that conclusion is hard to accept. The Federal Records Act requires the preservation of any official “record,” which is defined functionally to require preservation whenever a record relates to the performance of a federal official’s duties. There is little question that Hillary Clinton was conducting official business on her private e-mail account, and her turning over 55,000 pages of documents only after she left office all but concedes that (but may not concede the full scope of her use of that account).
There is also little doubt, given this functional definition, that e-mail has been covered by the Federal Records Act since its adoption by the federal government during the Clinton administration. As Ian Tuttle correctly notes, the State Department’s own manual has plainly provided, since 1995, that e-mail records must be preserved under the Federal Records Act.
So was the use of private e-mail allowed when Clinton was secretary? Well, sure, at least to some extent. I suspect every federal employee has, at some time, used a private e-mail account to conduct business. But that doesn’t excuse failure to comply with the Federal Records Act. Best practices have always been that an employee using a private account for government business has to either print the e-mail (which rarely happens) or copy or forward the e-mail to the employee’s official government e-mail account for preservation. Those practices, which reflected the law as it existed before Mrs. Clinton was secretary of state, were codified by National Archives Regulations in 2009, which required that any records created on private e-mail accounts must be saved to the federal-records system. And Congress confirmed that in 2013, by adopting a prohibition on the use of private e-mail, unless the employee forwards to or copies an official e-mail account within 60 days of the record’s creation.
But Mrs. Clinton did something here that went well beyond occasional or incidental use of private e-mail accounts. She eschewed the use of an official account entirely, and deliberately established a private e-mail account, apparently maintained on a server in the Clintons’ New York home. As a result, her e-mails were at no time during her tenure in office subject to the Federal Records Act. (She provided some of the e-mails only after she left office, and only when the Department of State asked for them back.) As our friends at Judicial Watch will no doubt remind everyone, there were plenty of Freedom of Information Act requests that would have implicated her e-mails. But they were never searched, even though a reasonable search of all responsive federal records must be made in response to FOIA requests. And the records would have been relevant to congressional inquiries as well, including continuing investigations of the Benghazi attacks.
Why does that matter? Well, a federal criminal law makes it a felony when any custodian of official government records “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same.” The crime is punishable by up to three years in prison. And interestingly, Congress felt strongly enough about the crime that it included the unusual provision that the perpetrator shall “forfeit his office and be disqualified from holding any office under the United States.”
The requirement for specific intent in this criminal law — “willfully and unlawfully” — and the fact that Loretta Lynch would ultimately decide whether to bring prosecution, makes it doubtful that charges would be filed. But the better question is how could Hillary Clinton, in light of this prohibition, decide that this was a good (or legal) idea? Setting up a shadow e-mail server to conduct all official business as secretary of state is an action plainly undertaken for the purpose of evading federal-records laws. And Clinton was successful at that, avoiding congressional and citizen demands for review of her record during her term in office. For all we know, she may still be withholding records that ought to be handed over to the State Department and subjected to pre-existing FOIA requests.
Unlike the Presidential Records Act, which allows the president a cooling off period before subjecting his records to public review, the Federal Records Act does not allow officials in federal agencies the same grace period. Yet that presidential privilege, at a minimum, is what Hillary Clinton claimed for herself. Could it be said that she also violated a federal criminal prohibition on willfully “concealing” federal records? That certainly is a question that should be examined.
— Shannen 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.