Throughout most of Monday night and all of Tuesday, those of us who weren't automatically kneejerking and garment-rending about Hillary Clinton were scratching our heads in an attempt to determine what specific law, if any, the former Secretary of State had actually violated with regards to her email account. And now, 24 hours after The New York Times' bombshell article hit newsstands, there's been a minor clarification from the reporter of the story, Michael Schmidt.
Before we continue, let's recap.
Bear in mind what the article said. Clinton "may have" violated regulations by not storing records from her private email account on government servers.
Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act.
Naturally, many of us stumbled onto the law that was cited by name in the article: the Federal Records Act of 1950, which was amended by Congress and the president in late 2014, nearly two years after Clinton stepped down.
After extensive research to discover a key fact that should've been in Schmidt's article, we learned that during Clinton's tenure, the Federal Records Act didn't outlaw the use of private accounts and, prior to the 2014 update of the law, didn't require the storage of private account email records on federal government servers. This State Department excerpt from the Foreign Affairs Manual (FAM pdf page 5) also outlines the proper use of email by department employees. While it defines emails as "federal records," the October 1995 guidance doesn't explicitly require the archiving emails on federal government servers, nor does it forbid the use of private email accounts. Clinton clearly retained an archive of her emails per the law and State's guidance, but she apparently didn't copy her emails onto the department's archive (until last year, that is).
Finally, after too many hours of guesswork about something that should've been in the article in the first place, Schmidt revealed to Politico the alleged violation, which turned out to be a line from the U.S. Code of Federal Regulations (CFR):
According to Section 1236.22 of the 2009 NARA requirements, which Schmidt provided in an email, "Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system."
First of all, why wasn't this in the original article? Regardless, we checked it out and sure enough it was right there in the CFR: Title 36 › Chapter XII › Subchapter B › Part 1236 › Subpart C › Section 1236.22(b).
Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.
"Agencies" are defined as any department or body within the federal government, including State. Mystery solved. Finally. This leads us to a series of six important questions before the inquisition continues.
1) Did Clinton break any laws by using a private email account, exclusively or otherwise?
No. And we've known about her private email for a couple of years now after it was originally reported by Gawker. So, old news. Also, guess which lawmaker made sure personal email usage was permitted in the amendments to the Federal Records Act last year? Rep. Darrell Issa (R-CA).
2) Did Clinton break any laws by not maintaining an archive of her emails?
3) Did Clinton break any laws by not turning over her emails when requested?
4) Did Clinton use her email to send or receive classified information?
5) Did Clinton violate the Federal Records Act of 1950, circa 2009-2013?
No. See #2.
6) Did Clinton violate a National Archives and Records Administration (NARA) CFR regulation by not routinely archiving her emails on the State Department's servers?
That last question is the extent of the "bombshell" and "scandal" -- an alleged archiving violation. Yes, she might be guilty of not copying and pasting her emails from her personal inbox to federal government computer. Well, until last year, that is, when she handed over 55,000 pages to State. Prior to that, she did so by emailing other State and government officials via their dot-gov addresses, a de facto preservation of her emails on government servers.
Forgive me if I don't totally freak out and superglue a "gate" onto a copy/paste scandal.
(As an aside, according to Title 22 › Chapter I › Subchapter R › Part 171 › Subpart A › Section 171.6 the State Department isn't required to turn over its records to NARA until the records "are 25 years old.")
Now, is there a debate to be had about foreign policy officials using private email accounts? Sure, especially with the pervasiveness of hacking and leaking. But the debate can't merely focus on one person's email habits, but rather all government email habits, especially moving forward. Furthermore, is it possible Clinton had sinister motives? I suppose anything's possible, but as former Sunlight Foundation director Clay Johnson, a transparency advocate, observed in Medium:
I think she was looking for the easiest way to do her job. The one thing you have to understand about people in public service is people down to the lowest levels of public service understand open records laws, and they all know one thing: if you don’t want something on the record, don’t use email. Pick up the phone. Hillary Clinton knows that, too.
Hillary Clinton was trying to use what she wanted to use in order to do her job. As a former fed, I’m empathetic. When you start at the Federal Government, it’s often like stepping in a time machine. You’re handed technology from years ago and (especially at her level) you’re expected to do tomorrow’s work.
Of course none of this matters because there's chum in the water, hastily scooped by The New York Times and Michael Schmidt in one of the most egregious examples of sloppy reporting this year so far.