Andy McCarthy adds a subtle but important point to the discussion of Hillary Clinton’s non-compliance with federal record-retention requirements. Clinton makes much of the fact that she turned over 55,000 pages of emails to the State Department (if you’re a litigator, you know that such a production isn’t all that substantial). Her critics point out that she turned them over two years after she left the State Department and only after being prompted to.
McCarthy notes, however, that Clinton’s belated production was only of hard copies of email. As such, it doesn’t comply with federal requirements:
The government record is the e-mail, the electronic communication itself. A paper copy is just a picture – and perhaps an incomplete one – of an actual electronic mail.
When I left the Justice Department, I had to surrender my files and my credentials, not photocopies of them. The photocopies are depictions of the records, they are not the records.
The public is entitled to maintain the actual records in the government’s filing system. It is Mrs. Clinton who must content herself with photocopies (and only of files that contain whatever categories of non-classified information she is permitted to retain as a private citizen).
The distinction may sound overly technical, but it is an important one. As McCarthy notes, “the paper production is. . .not searchable in the way the actual electronic government records are.” Electronic records can be searched with the press of a few buttons applying search terms. Paper records take vast amounts of time to search, and such searches tend to be imperfect.
Thus, in litigation it is a common tactic for lawyers to attempt to produce documents to the opposition in the least searchable form they can get away with. Another reason why I don’t miss practicing law.
Clinton’s violation of her records-related obligation has thus set back the State Department’s efforts to comply with legitimate document requests from Congress. This is true even if she didn’t destroy any relevant documents.
The proper remedy is clear:
If [Clinton] does not voluntarily surrender her server, forthwith, to the State Department, the Justice Department should be taking prompt action – probably through the United States attorney’s in the Southern District of New York (where the Clintons reside and where their servers are believed to be stored), or in Washington (where the State Department’s records are retained and where Mrs. Clinton probably signed her departure form – assuming she did so).
Whether voluntarily or by judicial warrant, the Justice Department should take custody of the server(s).
At an appropriate time, counsel for Mrs. Clinton could then meet with prosecutors and State Department record-keepers to sort out what electronic records should be transferred to the State Department, what records the Justice Department should retain in the event there are any criminal proceedings, and what records are private and should be returned to Mrs. Clinton.
It seems far more likely, however, that the Obama administration will abet Clinton’s attempt to obstruct scrutiny into her time as Secretary of State and, especially, her conduct relating to Benghazi.