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Open Government Experts: Hillary's Use of Personal Email 'Brazen Decision' to Flout Law

When Hillary Clinton began using a personal e-mail account to conduct official business as secretary of State, she made a “brazen decision” to flout the law and deny Americans access to records they deserve, according to a panel of open government experts and political watchdogs. What’s more, they say, dozens of officials in and out of the Obama administration must have known about her use of the private e-mail.

The panel spoke Tuesday at a presentation hosted by Judicial Watch, a conservative, nonpartisan government watchdog group that has sued the Department of State in an effort to get records related to Clinton’s tenure at Foggy Bottom. The group also has made numerous requests under the Freedom of Information Act, which requires most non-classified government documents, including e-mails, to be open to public scrutiny.

Tom Fitton, director of Judicial Watch, says they have been stymied time and again by both Clinton and the State Department in efforts to obtain the former secretary’s correspondence, especially as it relates to the 2012 attack on the American consulate in Benghazi, Libya. Four Americans died in the attack by Islamic militants, including U.S. Ambassador J. Christopher Stevens.

Conservatives and government watchdog groups have long suspected that Clinton and the Obama administration engaged in a cover-up about when officials knew about the attack, and how much they did to help those killed — or to prevent it from happening in the first place.

Half of Messages Deleted

The revelation earlier this year that Clinton used a personal e-mail account and server to conduct business as secretary of State has been harshly criticized by both Democrats and Republicans. Critics say her decision brings up important questions, among them:

–  With a private server installed at her home in Chappaqua, N.Y., and not hooked up to any government archiving system, how can anyone be sure she or her aides didn’t delete some e-mails, instead of saving them to be archived, as required?

–  Who knew about the use of personal e-mail and did anyone try to address it with her during her time as secretary?

–  And why did Clinton use personal e-mail in the first place, instead of the official government system federal workers are supposed to use?

Clinton has said she used it out of “convenience,” and said she did nothing wrong, noting that the State Department allows the use of personal e-mail on the job. Everything she did, Clinton insists, was aboveboard.

Not so fast, panelists at Tuesday’s presentation said.

“The Federal Records Act, as a practical matter, allows for occasional use of a personal e-mail account under exceptional circumstances,” explained Dan Metcalfe, a professor at American University and the founding director of the Department of Justice’s Office of Information and Privacy.

But Clinton went far beyond “occasional use,” Metcalfe said.

“She says clearly that she did not begin or ever use the official State Department e-mail account,” he said. “She only used the personal e-mail.”

Moreover, if personal e-mail ever is used, messages are supposed to be preserved and immediately sent to the appropriate archiving system, Metcalfe said. That was never done in Clinton’s case, he added.

Indeed, Clinton said messages concerning official business were handed over to the State Department — but only after she had left her post there. That amounts to about half of the 60,000 e-mails she sent as secretary, she said.

What’s more, she had her staff, not a disinterested official responsible for archiving government documents, decide which messages contained “official business.” So, open government experts say, there’s no telling what threshold her aides used to determine what was official and what wasn’t — or whether any other criteria was used to decide what to withhold.

Even more disturbing is the fact that Clinton said she deleted the remaining e-mails — about 30,000, supposedly personal, messages — and wiped her personal server clean, meaning it’s unlikely anyone at the State Department or other agencies will be able to double-check whether any of those messages should have been preserved.

“This amounts to a flouting, if not a violation, of the Federal Records Act, which says all federal agency employees have an obligation to take some steps to preserve things for posterity,” Metcalfe said.

Critics are also suspicious of the 30,000 figure. It would be highly unusual, Metcalfe says, to find fully half of the e-mails a secretary of State sent during his or her tenure were personal in nature.

Brazenness ‘Staggering’

Unlike Clinton’s critics on the right, Metcalfe’s perspective may hold more sway with Democrats and liberals. He is, after all, both.
“I have no ax to grind with Hillary Clinton,” he said. “I am a Democrat and a self-described liberal. I don’t use ‘progressive.’ I am a liberal. I just call it the way I see it under the law.”

Panelist Joseph diGenova, a former U.S. attorney, said there’s no question in his mind that Clinton knew what she was doing was wrong from the start.

“What you have here is a brazen decision to prevent the disclosure of public information to the press, the Congress, the courts, and the American people,” diGenova said. “It was a deliberate strategy from the beginning of her tenure as secretary of State.”

He said the facts of the case “cry out” for a formal investigation.

“She has destroyed history for anybody who cares about government — whether they’re Republican, Democrat, tea party, lefto-nutzo,” diGenova said. “She destroyed history with no accountability. She had no right to do that. There should be a federal criminal investigation going on right now.”

Part of the problem, diGenova said, is that Clinton was likely treated differently than other incoming secretaries, given her prominence as a former first lady, U.S. senator and presidential candidate.

That would have made many in the State Department hesitant to question her about using personal e-mail, he said, assuming they knew about it. And it’s likely at least some of them did, he said. In fact, diGenova added, it’s all but inconceivable that officials at the department, along with key staff at the White House and other administration offices, weren’t aware she used personal e-mail and a private server at her New York home.

“This is just staggering in the brazenness of evasion of the legal duty by everybody at the State Department, and especially the secretary,” he said. “It is simply staggering; it’s unbelievable.”

Fitton said the e-mail scandal goes beyond whether or not a government official followed Freedom of Information Act guidelines and disclosed everything she was supposed to disclose. The deleted e-mails, he pointed out, may include information about Clinton’s actions before and after Benghazi.

“There are four people who have died that need to be vindicated,” Fitton said, adding that Judicial Watch’s investigation into the attack — especially its FOIA requests for Clinton-related documents — helped uncover the e-mail scandal, and the possibility that Clinton tried to hide the extent of her role in the Benghazi debacle. When an official hides a “secret” e-mail account, it’s safe to assume “they’re up to no good,” Fitton said.

“This is not your typical political scandal,” he added. “There were no dead bodies at Watergate.”