Where was Harold Koh?

Harold Koh is a left-wing law professor. He teaches at Yale law school where he once was the Dean.

Koh served as Legal Adviser at the State Department during Hillary Clinton’s time as Secretary of State. We criticized the selection of Koh for this key post here and here.

Among our concerns was the fact that Koh was a prominent supporter of the FAIR v. Rumsfeld litigation. In that case, “FAIR” challenged the constitutionality of the Solomon Amendment, which conditioned the receipt of federal funding by universities on the provision of access for the military to college students that is equal to that provided other employers. Koh signed a friend of the court brief on behalf of FAIR’s challenge. A unanimous Supreme Court rejected that challenge.

We were also concerned about Koh’s “transnationalism.” We viewed it as an effort to curtail our representative democracy.

The Senate nonetheless confirmed Koh. He became the State Department’s Legal Adviser.

As such, he shows up in the Inspector General’s Report dealing with Hillary Clinton’s use of a private email server. The Report states that the Inspector General’s office “found no evidence that staff in the Office of the Legal Adviser reviewed or approved Secretary Clinton’s personal system.”

A bit later, the Report states:

In addition to interviewing current and former officials in DS and IRM, OIG interviewed other senior Department officials with relevant knowledge who served under Secretary Clinton, including the Under Secretary for Management, who supervises both DS and IRM; current and former Executive Secretaries; and attorneys within the Office of the Legal Adviser. These officials all stated that they were not asked to approve or otherwise review the use of Secretary Clinton’s server and that they had no knowledge of approval or review by other Department staff.

These officials also stated that they were unaware of the scope or extent of Secretary Clinton’s use of a personal email account, though many of them sent emails to the Secretary on this account. Secretary Clinton’s Chief of Staff also testified before the House Select Committee on Benghazi that she was unaware of anyone being consulted about the Secretary’s exclusive use of a personal email address.

(Emphasis added)

It appears, then, that although attorneys in the Office of the Legal Adviser had not approved or reviewed the use of Clinton’s server, some of them sent emails to Clinton on this account.

Based on these facts, a reader wonders about Harold Koh’s role in this affair. Specifically, the reader poses the following questions regarding the State Department’s then-Legal Adviser:

1) Was Harold Koh consulted? Has anyone asked him?

2) If he was consulted, what did he say?

3) If he wasn’t, how many e-mails did Harold Koh get from [or send to] Hillary [on] her personal e-mail address in her capacity as Secretary?

4) Assuming that number is substantial, why didn’t he raise questions about this?

The reader, who has years of experience serving in high level government positions, adds:

The problems [Clinton’s use of the private server] creates for security, for the Federal Records Act, and for FOIA are completely obvious to anyone who has any idea what he is doing.

Harold Koh knows what he is doing. Where was he?