The State Department’s explanation of why Hillary Clinton did not sign the Separation Statement that every other State Department employee is required to sign upon resignation is quickly approaching the farcical. In Wednesday’s daily press briefing, State Department spokesperson and Hillary Clinton spinmeister Jen Psaki offered a new take on why Mrs. Clinton was excused from signing the form:
Secretaries of state often do not sign this form, as it is a step to revoking their own security clearance. There’s a long tradition of secretaries of state making themselves available to future secretaries and presidents, and secretaries are typically allowed to maintain their security clearance and access to their own records for use in writing their memoirs and the like. Hence, this is not a form that many would have signed.
Before showing why this explanation is insufficient, let’s start with how it is correct. Psaki is undoubtedly correct that secretaries of state often retain their security clearances (although probably not their clearances into every program) after leaving office. That is probably true with Mrs. Clinton, who might be called upon from time to time to weigh in on an issue with which she has some experience or insight. And there is also some precedent for former secretaries of state being granted access to their official records after they leave office to write their memoirs or for some related purpose. Finally, at least according to Psaki’s prior statements, neither Secretary Condoleezza Rice nor Secretary Colin Powell signed such a statement upon leaving the Department.
None of that supports exempting the secretary of state from Department regulations requiring the return of all records, both classified and unclassified, at the end of her tenure. Indeed, as previously explained here, the secretary, like all State Department employees, is required to account for those records upon departure and may remove only those records, personal or unofficial, that the Department records official has specifically authorized in writing. As part of that separation process, every departing employee is required to sign a separation statement, which certifies, first, the return of all classified materials, and second, the return of all unclassified but official records. The Department records official then certifies compliance by the official with her records obligations. Secretary Clinton apparently did not sign any certification upon her separation.
Psaki’s suggestion is that signing such a certification would inevitably lead to the revocation of Mrs. Clinton’s security clearance. But that suggestion is plainly wrong. That this Separation Statement is part of the standard State Department security-clearance debriefing process is certainly correct. It is a necessary but insufficient part of that debriefing. Signing it would not constitute a revocation of a security clearance. Indeed, to the extent that it addresses classified information, it merely certifies the return of those classified materials, something Mrs. Clinton would be required to do whether or not she retained her security clearance. Nothing in the Department’s extension of that clearance beyond her employment would justify her retaining any classified information, and there is no indication that she had done so. Signing a records certification to that effect should be a normal part of departure in these circumstances, as Department regulations plainly require.
More critically, the retention of a security clearance is irrelevant to an employee’s obligation not to remove unclassified material. Mrs. Clinton would still be required not to retain any official documents at her departure, and could remove other personal records only if she had explicitly cleared them with the Department. There is no “private memoirs” exception to that obligation. While the government often does make special arrangements to allow post-service access to a cabinet secretary’s former records for memoirs or other writing projects, that access is usually permitted under controlled circumstances in a special governmental reading room set up for that purpose. Indeed, in Secretary Rice’s memoirs, she explicitly thanks the “people in Washington who helped me access key records and documents,” strongly suggesting that she was provided only this controlled access to her former records. The “long tradition” Ms. Psaki speaks of is a courtesy extended to permit access to official records in the custody and control of the government. It in no way permits removal of documents at the time of separation or at any time thereafter.
Ms. Psaki’s explanation, then, does not hold water. Requiring a separation statement from a departing secretary of state is perfectly consistent with the “traditions” extolled by Psaki. So some other explanation is still required for its absence in Hilary Clinton’s files. We have yet to hear an explanation that doesn’t sound like a rationalization.
But even assuming for a moment that Hillary Clinton’s retention of her security clearance was, in fact, the reason for her not signing Form OF-109, the question still remains of how Department records officials confirmed that she had returned her official, unclassified records. Did those officials sign the Department’s authorization for removal of records upon departure? And what assurances did Mrs. Clinton make to secure that authorization? False statements in that context would be just as damning as false statements on a signed separation statement. And if Mrs. Clinton purposefully avoided signing the separation statement in order to conceal her private e-mail system, her problems are only beginning. Many more questions still remain to be answered by Mrs. Clinton and the State Department.
— 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.