The Corner

Hillary’s Tweet, and Other Defenses

Hillary Clinton has, rather ridiculously, sought to beat a posse of critics to the pass by tweeting that she wants the State Department to release her emails. But that includes only those emails that have already been turned over to the State Department. She plainly isn’t suggesting that she’s going to turn over anything else, or subject her private servers to searches by objective federal records officials, such as the National Archivist. And she knows full well that most FOIA requests pertaining to high level officials result in substantial withholdings and redactions under the law’s disclosure exemptions. Her tweet is a vacuous gesture.

One of the arguments Clinton’s defenders have settled on is that she complied with the Federal Records Act as it applies to any emails that she sent from her personal account to official government accounts, since the records of those official accounts are automatically preserved. Putting aside the obvious point that it does nothing to protect emails sent to or received from non-government officials, including foreign leaders and even Clinton allies like Sidney Blumenthal, the argument is plainly incorrect for several reasons.

First, it appears that at least some of those government officials also used private email addresses (it has been reported that at least some of her close aides followed the same practice). Second, and more importantly, if the only comprehensive record of Clinton’s emails is scattered across hundreds of recipient government accounts, she has still failed to satisfy one of her primary obligations under the Federal Records Act: her correspondence isn’t preserved in such a way that it’s easily searchable by the agency.

When a records act (FOIA) request comes in for all of the Secretary’s emails relating to a particular subject, the Department of State is not going to search the email systems of hundreds of unknown recipients. Instead, it is going to search the Secretary’s records. What is required of records officials is a reasonable search of files where responsive records are likely to be. Faced with such a request, the agency would reasonably conclude that they only have to search the Secretary’s emails, because they have no way of knowing every account she wrote to. The Federal Records Act requires each individual official to save his/her records in such a way that the agency can search them if needed. And looking in other employees’ email records isn’t a reasonable way of preserving the Secretary’s records. Congress recognized this in its most recent amendments to the Federal Records Act, which required an official’s private emails to be forwarded to their government email account. Hillary’s defense doesn’t hold water.

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