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The VICE Guide to the 2016 Election

Hillary Clinton's Secret Email Stash Is Shady, but Was It Illegal?

The former Secretary of State's use of a private email shows just how easy it is for the government to hide its records.

by Peter Rugh
Mar 4 2015, 9:01pm

Photo by William Ng/US State Department

Hillary Clinton has been having a very bad week. The presumptive Democratic presidential candidate, who might have the nomination more locked up at this point than any other candidate in history, has been embroiled in scandal, after the New York Times reported Monday that she exclusively used a personal email account during her four years as President Obama's Secretary of State.

The use of private email raises big questions about Clinton's transparency, dredging up old suspicions that the Clintons are secretive, shady operators with a habit of being less than truthful with the public they claim to serve. That's been compounded by new revelations, reported by the Associated Press Wednesday, that Clinton ran her emails through a private server out of the family's home in Chappaqua, New York—a practice that would have given her "impressive control over limiting access to her message archives."

Clinton spokesman Nick Merrill has insisted that the former Secretary of State adhered to both the "letter and spirit" of federal disclosure laws, and her staff maintains that she turned over more than 55,000 emails during her tenure in the Obama administration. That may be true, but Clinton's aides were responsible for choosing which emails were turned over, which doesn't exactly scream transparency. And given the level of sophistication required to run her own email system, it sure looks like Clinton went out of her way to keep her emails private.

Beyond the questions this raises about the likely 2016 candidate, the revelations have reignited debate over what sort of levels of accountability we should require of government officials. While Clinton's use of a private email account may look suspicious, in terms of both transparency and national security (as one internet expert told Motherboard, "It doesn't strike me as particularly credible that in her entire tenure as Secretary of State she never sent any classified material in any email ever"), it's not clear that it was illegal. The question then is whether it should be.

VICE called up John Wonderlich, policy director for Sunlight Foundation, a Washington, DC–based organization that advocates for increased government transparency, to see if he could flesh out the legal, security, and political implications of Clinton's hidden email stash.

VICE: Was it legal for Clinton to use a private email account to conduct official business?
John Wonderlich: The important point to make is we don't know. We don't know enough about what she did and how she used the account and who had access to it and who didn't. There's been a lot of back-and-forth about the preservation of her emails. There was an internal State Department guideline that said she had to preserve her emails by sending them to the State Department. She may or may not have done that. That would not necessarily have been illegal, but it would have been contrary to State Department regulations.

Beyond the preservation point, my concern is that she created this account, presumably, to avoid or be able to manage Freedom of Information Act Request access, Inspector General oversight access, or Congressional oversight requests. What it means is that instead of the government being able to access her email it is something that she personally manages with her personal staff.

The Benghazi hearings are the most obvious example of this, where Congress asked for her emails and it was up to her staff's discretion what she turned over.
Right. And that's exactly the situation we want to avoid. Oversight is something that should be based on statutory criteria and public interest, not private employees of a private citizen who report directly to her. It appears that the design of her whole system was to take her communications and remove them from public access.

But are there legal gray areas here?
The letter of the law doesn't say what is illegal and what is legal. That ends up being for courts to decide. The facts of the situation determine what is illegal or not and we don't know the facts. So it is very difficult to say whether she did something illegal or not, because there are a lot of different legal implications for a cabinet secretary's conduct.

It's also a gray area because there are guidelines, there are regulations, and there are laws. A lot of them are overlapping, and they changed during her tenure. No one should claim that the email situation is simple. There are people who disagree about the plain meaning of the law. There's a lot of complexity.

That's one of the reasons we're hoping that the political debate elevates the substantive dialogue we all need to have about how government emails should work. If we don't fix the law and get real enforcement and oversight into government agencies for how email works for officials, this is going to keep happening, and it's only going to get worse.

Doesn't the Federal Records Act require her to turn over her emails? The Federal Records Act requires that relevant records be preserved. But if her staff is picking and choosing what records to preserve, that's different from having a public official from the National Archives who is trained to determine what is historically relevant and what's to be disposed of sift through the material. Whether or not that is illegal, it is certainly not how anyone expects a Cabinet official's records to be preserved.

How common is this approach to record keeping? I can't imagine that a regular employee at the State Department can use her Gmail account for government business. Does it get more common higher up the ladder?
Among rank-and-file federal employees it is unusual to use personal email at all, although I'm sure it happens. At more senior levels you'll find more examples of emails being used improperly or the use of aliases, but nothing of this scale, where she set up an entirely private system for her and her staff.

Does this raise security concerns?
It's certainly an open question now as to whether or not the account was secure. The security of that system isn't something that should be up to the whim of a private citizen. It should be something that is publicly verifiable based on public infrastructure. That shouldn't be a matter of trust and hope, but a matter of having criteria that are publicly verifiable. That's the whole point of having public infrastructure. I keep imaging if a cabinet secretary said they were going to have their own office, their own security, and hired a private public relations firm to do all their work. No one would accept that and that's what Clinton set up for her information.

Given the Obama administration's promises that it would be the most open in history—and on the other hand, its fervent prosecution of whistle-blowers—do you see this controversy as part of a larger issue surrounding government transparency?
Absolutely. When Obama ran for office the first time, he ran on a message of transforming government and of making decisions where the default is towards transparency and public access. Then to hear at a White House press briefing such vague standards about how cabinet secretaries manage their work and whether Clinton did something wrong—it's all driven by politics. And the White House is not leading on the email question. And they should be. Because the Secretary of State should not be using a [personal] server set up in her home to conduct essential communications.

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