Eugene Kiely

FactCheck.org

Hillary Clinton once again made the claim that using a private email account and server while secretary of State was “absolutely permitted.” That’s pure spin. We’ve been through this before, but it bears repeating as more information becomes available:

• Federal regulations allowed Clinton to send and receive emails outside the government system, but those emails had to be preserved before she left office. Clinton did not provide the department with emails from her private server until 21 months after she left office.

• Her decision to conduct government business exclusively on a private server was, as one federal records expert put it, “inconsistent with long-established policies and practices … governing all federal agencies.” A federal judge in a lawsuit involving Clinton’s emails said she failed to follow “government policy.”

Clinton’s email saga became public on March 2, 2015, with a report in TheNew York Times that she exclusively used a private email account to conduct State Department business during her time in office, from January 2009 to February 2013. Shortly after, the Associated Press reported that Clinton’s email account was hosted on a server at her home in New York.

She said on CBS’ Face the Nation that she thought it was more “convenient” to use a single personal email account to conduct both private affairs and government business, and she regrets having made that decision. Host John Dickerson asked her what voters can take from her opting for convenience when faced with such a decision.

Dickerson, May 8: "A general election voter will know, when Hillary Clinton is the president in the office, and a convenient option arrives, maybe she will think twice about it?" Clinton: "Well, as I have said many times, there was — I was absolutely permitted, and I did it. And it turned out to be a mistake. It wasn’t the best choice."

Absolutely permitted? That’s a stretch.

The Clinton campaign makes that claim based on a National Archives and Records Administration regulation in place since 2009 that said federal agencies may allow their employees to send and receive work-related emails “using a system not operated by the agency,” but an agency “must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.”

But NARA also requires federal agencies to maintain an NARA-approved schedule for preserving work-related records. The State Department Records Disposition Schedule says “incoming and outgoing correspondence and memorandums on substantive U.S. foreign policy issues” should be permanently retained “at the end of the Secretary’s tenure or sooner if necessary.” Clinton, who left office Feb. 1, 2013, did not provide the State Department with her emails until Dec. 5, 2014. She did so after the department in October of that year requested her emails in response to congressional requests for documents related to the Benghazi attacks on Sept. 11, 2012.

“In the process of responding to congressional document requests pertaining to Benghazi, State Department officials recognized that it had access to relatively few email records from former Secretary Clinton,” State Department spokesman John Kirby told The Washington Post. “State Department officials contacted her representatives during the summer of 2014 to learn more about her email use and the status of emails in that account.”

Simply put, Clinton did not follow the NARA regulations on preserving email records.

In addition, Clinton’s decision to conduct government business exclusively through a private email network caught the experts at NARA by surprise. It was unprecedented. Clinton has said that other “secretaries of State” did the “same thing,” but Colin Powell — who was secretary of state from 2001 to 2005 — was the only other secretary of State to use an email account outside of the government email system and he did not set up a private server. Powell used America Online, where he once served on the board of directors.

The day after TheNew York Times broke its story, NARA Chief Records Officer Paul M. Wester Jr. sent a letter to the State Department saying he was “concerned that Federal records may have been alienated from the Department of State’s official recordkeeping systems.” Wester wanted to know what the department was doing to retrieve “records created using personal email accounts.” (See the first exhibit in Attachment B of NARA’s response to GOP Sen. Chuck Grassley.)

The State Department responded to that letter on April 2, 2015, by informing NARA that, among other things, it had sent a letter to “all employees reminding them of their responsibilities vis-a-vis records, emails, and personal accounts.” In its letter to employees, the State Department said, “As a general matter, to ensure a complete record of their activities, senior officials should not use their private e-mail accounts (e.g., Gmail) for official business.”

The reminder was nothing new. In fact, as the Washington Post Fact Checker wrote, Clinton herself in June 2011 sent a cable “under her signature warning employees to ‘avoid conducting official Department business from your personal e-mail accounts.’ ”

Jason R. Baron, a lawyer at Drinker Biddle and a former director of litigation at the National Archives, expressed surprise at Clinton’s exclusive use of a private email network at a Senate Judiciary Committee a year ago. He told the committee that “any employee’s decision to conduct all e-mail correspondence through a private e-mail network, using a non-.gov address, is inconsistent with long-established policies and practices under the Federal Records Act and NARA regulations governing all federal agencies.”

Baron also made the point that an employee who does not use a government email account “compromises the ability of an agency to adequately respond to FOIA requests,” referring to the Freedom of Information Act. In fact, U.S. District Judge Emmet Sullivan expressed frustration with Clinton at a hearing last summer involving a FOIA lawsuit filed against the department over her records. “We wouldn’t be here today if this employee had followed government policy,” Sullivan said.

Clinton can say her private email network was permitted because there wasn’t anything in federal law that expressly prohibited it. But such extensive use of private emails was unusual and clearly discouraged, and she failed to comply with the regulations for maintaining government records.

FactCheck.org's file on Clinton’s claims about her emails can be found here.