The United States Code provides that official communications from federal employees are owned by the government and that it is a felony for an employee to destroy or conceal any such communication. Federal rules and policy declare that employees should use government facilities for their official communications.
On March 3, a New York Times article disclosed that former Secretary of State Hillary Clinton had throughout her four-year tenure in office used a private email system with a private server at her disposal for all her email communications. This was done although all persons assuming high governmental office were advised of the governmental email system and requested to use it. Upon governmental request, in late 2014, Clinton turned over 55,000 pages of emails selected by her staff as her official communications while in office.
These circumstances are unusual, have generated substantial controversy and deserve attention.
The only explanation Clinton has offered why she chose to use the private system is convenience. One speculation that has surfaced is that she had completed a heated primary campaign against her new boss and she thought she needed private space. Mr. Obama initially stated he did not know of Clinton’s arrangements until he read the New York Times article. However, he later qualified his statement saying only that he did not know of the extent of the private usage.
It is virtually assured Clinton knew of the department policy that indicated that employees should use government equipment for their communications. During her term of duty, a reprimand was issued to the Ambassador to Kenya for use of private emails and it is almost certain that such action would have come to her attention.
There have been consequences of the private email usage. The principal one was that the state department has — in response to Freedom of Information Act inquiries, Congressional Committee requests and judicial subpoenas seeking Clinton communications, including emails — advised that it had no email documents of hers. If the department had been in possession of the emails Clinton has recently turned over, its response should have been different. Whether this failure ought now be corrected is an important issue.
Another question which has arisen incident to the turnover is whether it was appropriate that Clinton or her personal lawyer should make the determination as to which of the aggregate of emails made during her term of office were official business and which were personal.
Most observers have concluded that it would have been more appropriate if government officials were to examine the universe of email documents generated and make such determination. A state department spokesperson has indicated that this would not be done.
A further issue is whether the private email usage impacted security. While Clinton has denied she had transmitted classified matters on her emails, she did not address whether she had discussed classified matters in those emails. And Clinton had no certain assurance that the email system she used was not hacked.
On March 10, Clinton held a brief news conference after her United Nations speech. While Clinton acknowledged using a governmental system for her communications would, in retrospect, have been better, and stated that she had complied with all state department rules, few of the concerning issues were answered.
These include the important questions why it took her two years to turn over what she conceded were work related emails to the state department when rules required action upon severance from service and why she considers that she should be the sole arbiter of the borderline between work related and personal communications.
An important matter for consideration is that a state department rule provided, in substance, that upon leaving office an employee must turn over to the department all work related materials, including emails, in the employee’s possession and certify on form OF – 109 that such action was taken.
“This Tuesday the state department advised that it found no record of a completed separation agreement with Clinton. This information would end a Clinton exposure to a perjury claim, but it leaves open the issues of why Clinton did not observe the procedure, whether Clinton’s statement that she had complied with all state department rules was accurate, and whether there was an unlawful concealment of her records.”
At this time, a variety of questions remain unanswered and no final conclusions can be safely reached other than when one assumes the responsibility of any job, it is an exercise of judgment to listen to the instructions given and either accept them or make known your reasons of concern at that time. There is little doubt but that controversy as to whether Clinton’s conduct conformed to good practice and, perhaps, whether it met legal standards remains unresolved.
Walter Lewis is a retired attorney who lives on Kauai and writes a regular column for The Garden Island.