“Hillary’s email defense is laughable”

So says Dan Metcalfe, a Democrat who served for more than a quarter-century as founding director of the Justice Department’s Office of Information and Privacy and, as such, was the federal government’s chief information-disclosure “guru.”

Clinton defends her use of a private email account on the theory that there was not a flat, categorical prohibition on federal government officials ever using their personal email accounts for the conduct of official business. But Metcalfe points out that this is “a far different thing from saying (as she apparently would like to) that a government official could use his or her personal email account exclusively, for all official email communications, as she actually did.”

To use private email exclusively violates the Federal Records Act, according to Metcalfe:

That law, which applies to all federal agency employees who are not within the White House itself, requires the comprehensive documentation of the conduct of official business, and it has long done so by regulating the creation, maintenance, preservation and, ultimately, the disposition of agency records. When it comes to “modern-day” email communications, as compared to the paper memoranda of not so long ago, these communications now are themselves the very means of conducting official business, by definition.

This does not preclude using private email in some circumstances:

When Obama administration officials came into office in 2009, the Federal Records Act certainly allowed room for the occasional use of a personal email account for official business where necessary—such as when a secretary of state understandably must deal with a crisis around the world in the middle of the night while an official email device might not be readily at hand.

But even in these circumstances, the Federal Records Act still called upon that official (or a staff assistant) to forward any such email to the State Department’s official records system. In this way, the Act’s comprehensive documentation requirement could be satisfied.

This, says Metcalfe, is what Colin Powell (for example) did. By contrast, Hillary Clinton never used the Department’s email system and never caused her email traffic to be forwarded into the State Department’s official records system. She thus violated the Federal Records Act.

In addition, Clinton prevented the State Department from meeting its obligations under the Freedom of Information Act. As Metcalfe explains:

[T]he official availability of official email communications is not just a matter of concern for purposes of the Federal Records Act only. It also makes an enormous (and highly foreseeable) difference to the proper implementation of the Freedom of Information Act (known as the “FOIA” to its friends, a group that evidently does not include Secretary Clinton).

That is because the starting point for handling a FOIA request is the search that an agency must conduct for all records responsive to that request’s particular specifications. So any FOIA request that requires an agency first to locate responsive email messages sent to or from that agency’s head, for instance, is necessarily dependent on those records being locatable in the first place.

An agency simply cannot do that properly for any emails (let alone all such emails) that have been created, and are maintained, entirely beyond the agency’s reach. Or, as it sometimes is said somewhat cynically in the FOIA community, “You can’t disclose what you can’t find.”

Metcalfe explains that by doing business on a private email account, Clinton “managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it—perhaps forever.”

Metcalfe has little doubt that this was deliberate. As he puts it, nullifying FOIA is “nice work if you can get it. . .especially if your experience during your husband’s presidency gives you good reason (nay, even highly compelling motivation) to relegate unto yourself such control if at all possible.”

Finally, leaving nothing to chance, Clinton “did not merely use a personal email account; she used one that atypically operated solely through her own personal email server, which she evidently had installed in her home.”

This meant that, unlike the multitudes who use a Gmail account, for instance, she was able to keep her communications entirely “in house,” even more deeply within her personal control. No “cloud” for posterity, or chance of Google receiving a congressional subpoena—not for her. No potentially pesky “metadata” surrounding her communications or detailed server logs to complicate things. And absolutely no practical constraint on her ability to dispose of any official email of “hers,” for any reason, at any time, entirely on her own.

Therefore, this isn’t, as Hillary would have it, just a matter of her choosing one available email option over another. Nor can she credibly claim that she did nothing that her predecessors had not done before her.

And her claim that she “fully complied with every rule that [she] was governed by” is, as Metcalfe says, laughable.


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