Law & the Courts

Did the State Department Consider Hillary Above the Law?

As the head of the Department, Clinton should have been obligated to ensure proper records were kept.

Did Hillary Clinton’s State Department exit follow the Department’s standard records-keeping protocol?

Department spokeswoman Jen Psaki on Tuesday answered a pressing question I posed here about Clinton’s use of a private e-mail server to conduct official business. Responding to questions from AP reporter Matt Lee, she reported that the State Department had “no record” that Mrs. Clinton signed a “separation statement” (Form OF-109) certifying the completeness of the records that she left with the Department upon her resignation. When pressed on whether Mrs. Clinton actually signed the document, Ms. Psaki left herself some wiggle room, stating that she was “fairly certain” the former secretary of state had not.

Ms. Psaki, acting more like an extension of Hillary 2016 than a State Department spokesperson, then went into full spin mode, disclosing that neither of Mrs. Clinton’s two Bush-administration predecessors signed a Separation Statement. She further stated that Mrs. Clinton broke no rules in failing to sign the statement. But Ms. Psaki’s spin misstates applicable State Department rules and leaves many questions unanswered.

First, the governing rules. The State Department Foreign Affairs Manual and Foreign Affairs Handbooks, which set forth the Department’s internal operating procedures and guidelines for the day-to-day operations of the Department, plainly require that all departing employees sign a separation statement. Department management is responsible under those procedures for “reminding all employees who are about to leave the Department . . . of the laws and regulations pertaining to the disposition of personal papers and official records” and for “ensuring that . . . [the] Separation Statement [is] executed for each departing employee.” Elsewhere, the same department rulebook, addressing termination of an employee, provides that a “separation statement will be completed whenever an employee is terminating employment.”

Ms. Psaki’s suggestion that the rules were not broken therefore can’t bear scrutiny when actually reading those rules. And to suggest, as Ms. Psaki did at her presser, that these internal operating rules were simply “recommendations” is to misunderstand their place in the law. While certainly not binding on the outside world, like a formal government regulation might be, they are formal policies to guide the Department of State’s own practices. And to the extent they address records management, the State Department guidelines implement the Department’s legal obligations under federal records laws, including the Federal Record Act. So while Ms. Psaki is correct that the failure to follow the guidelines does not — in itself — constitute an offense punishable by any criminal law, she is plainly dissembling when she suggests that they were merely “recommendations” to be disregarded at will by the Department of State. They were policies required under federal law.

More importantly, while the failure to follow those guidelines alone is not a crime, any willful evasion by Mrs. Clinton of the obligation imposed on every other State Department to sign the form might be evidence that she sought to hide the existence of the 30,000 or more e-mails on her home server. The willful concealment of those records could, as discussed here, violate federal criminal statutes prohibiting destruction or concealment of official records by their custodian. And, as discussed by Professor Ron Rotunda in the Wall Street Journal yesterday, it might also evidence a violation of federal statutes (enacted with the support of then-Senator Hillary Clinton) prohibiting such concealment or destruction of any records (official or personal) for the purpose of frustrating an existing or even contemplated federal investigation.

So the disclosure that Mrs. Clinton likely did not sign the separation statement should not be the end of the questions for Ms. Psaki. The most basic follow-up question is whether Mrs. Clinton was asked to sign the document by State Department records officials. If Mrs. Clinton was, and declined or avoided that obligation, she would have an even more obvious concealment problem under the law. Given how difficult it was to determine whether the document even existed, it is hard to imagine that an answer to that question is readily forthcoming.  

Even more difficult to answer at this point is whether she might have been asked to certify the completeness of her records orally in an exit interview. Every official of government, whether cabinet secretary or file clerk, goes through some form of out-processing upon separation from office. They’re asked to return all property, cell phones, keys, and the like. The State Department’s Foreign Affairs Manual further requires that a records official go over each departing employee’s records and determine which, if any, can be taken home as personal or non-official. Only when that records official is satisfied that the departing official has complied with records regulations does he formally authorize (in writing) the removal of such personal records from the Department.

Did the proper officials at State sign such a certification for Mrs. Clinton? And if they did, on what basis did they conclude that Mrs. Clinton had not improperly removed official records? (Megyn Kelly, who has been covering this story closely on Fox News’ The Kelly File, has sought those authorization records from the State Department as well). If they did not even ask the question, the Separation Statement problem could simply be a case of administrative oversight or incompetence. For an agency so woefully out of compliance with its recordkeeping obligations, as shown by a recent State Department Inspector General report, that simple explanation may be the most likely. But could the failure to seek Mrs. Clinton’s certification be the result of something slightly more nefarious — namely the view that Mrs. Clinton was above the obligations imposed on everyone else at the State Department? Ms. Psaki certainly seems to think so, explaining that the Separation Statement may not exist simply because “there’s a difference between also secretaries of state or former secretaries and staff at lower levels.”

She is undoubtedly correct. But that difference cuts in quite the opposite direction. As secretary of state, Mrs. Clinton was the one official that Congress tasked with preserving the official records of the Department of State. The Federal Records Act imposes this important obligation not on the Department of State writ large, but on the head of that agency. That obligation is imposed on the Secretary in order to ensure that a sufficient record of the business of the government is available so that the average American can know what the federal government is up to. And whose records reflect the business of the State Department more than those of the Secretary? By treating her differently, the Department it placed the one person whose compliance is most critical to the success the Department’s government records program above the very records law she was tasked with implementing.

— 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.

Shannen W. Coffin — Shannen W. Coffin is a contributing editor to National Review. He practices appellate law in Washington, D.C.

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