Forcing Hillary’s Emails Into the Open By Dan Epstein
http://www.wsj.com/articles/forcing-hillarys-emails-into-the-open-1438125301
Why we’re suing to make the government do what it seems disinclined to do: get to the bottom of this murky matter.
The truth about Hillary Clinton’s email practices is murkier than ever.
On Friday news broke that the inspectors general for the State Department and the intelligence community raised serious concerns about the mishandling of classified information in conjunction with Mrs. Clinton’s emails as secretary of state, all of which were routed through a private email account and server. This was followed by reports in this paper that, despite her claims to the contrary, she sent multiple classified emails via her private account. Speaking to a TV station in Des Moines, Iowa, on Sunday, Mrs. Clinton responded by saying “it’ll all work its way out.”
It’s true—the federal court system will now see to that. On July 8 Cause of Action, where I am executive director, filed a lawsuit in the U.S. District Court for the District of Columbia. It seeks to compel recovery of Mrs. Clinton’s personal email server and all of the federal records it may contain. Our suit takes a unique approach: It is the first asking the court to compel current Secretary of State John Kerry and National Archivist David Ferriero to seek the assistance of the attorney general to recover this material. The Federal Records Act requires them to do so.
We have reason to believe our case will proceed. The U.S. Court of Appeals for the District of Columbia Circuit held in 1991 that a private plaintiff may bring a lawsuit under the Administrative Procedure Act to require an agency head and the national archivist to initiate legal action for the recovery of records that were either destroyed or removed in violation of an agency’s guidelines and directives.
Before the court can rule on that question, however, it must first determine whether Mrs. Clinton’s emails are federal records—as defined by the Federal Records Act of 1950 and its amendments—and whether her exclusive use of a private email server constitutes an illegal removal of those records from the State Department’s official record-keeping system.
The State Department has already admitted that at no point during her four-year tenure as secretary of state did Mrs. Clinton turn over her email correspondence to the federal government, routing it instead through an account on her private email server in Chappaqua, N.Y. She turned over some 30,500 emails in December 2014, nearly two years after she left office. She apparently destroyed another 32,000 emails she admitted to sending between 2009 and 2013, claiming that they had no bearing on her work.
Unfortunately for her, Mrs. Clinton’s word is no substitute for federal law. Any employee—no matter how senior—who knowingly withholds or destroys government records has engaged in an illegal act. This is especially applicable to those who leave federal employ, who can face a criminal penalty for violating the Federal Records Act if they “remove Federal records from agency custody.”
Mrs. Clinton plainly violated these provisions of federal law. Moreover, as recent news reports show, she withheld all or part of at least 15 work-related emails from the trove she turned over to the State Department. It would thus strongly appear that Mrs. Clinton failed to differentiate between the official and personal emails sent via her private server.
Then again, such differentiation is the duty of Secretary Kerry and National Archivist Ferriero—which means they should already have recovered all federal records in Mrs. Clinton’s possession through full access to her private email server.
Federal agencies are legally required to maintain control over their employees’ records, including their electronic communications. The Federal Records Act does not give the State Department or any other agency discretion to delay or otherwise neglect this duty.
Pursuant to the law’s regulations, “agencies with access to external electronic mail systems shall ensure that Federal records sent or received on these systems are preserved in the appropriate record keeping system.” Agencies also must ensure “reasonable steps are taken to capture available transmission and receipt data needed by the agency for record keeping purposes.”
The law also plainly states that agency heads must collaborate with the national archivist to “initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed from that agency.” And if the agency itself will not act, it is incumbent upon the archivist to personally “request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.”
Since neither Mr. Kerry nor Mr. Ferriero has abided by the law, the federal courts must now compel them to do so. And if the D.C. District Court will not do that, it should still rule on whether Mrs. Clinton illegally removed federal records from the government’s control.
The American public deserves answers and accountability from its government officials. Hillary Clinton’s exclusive use of a private email server while secretary of state is one of the great violations of government transparency in the modern era—a fact reinforced by the troubling developments of the past week. But until the emails stored on her private server are returned to the federal government’s possession, the truth will remain hidden behind a presidential candidate’s campaign-trail claims.
Mr. Epstein is the executive director of Cause of Action, a government-accountability organization.
Comments are closed.
