The Washington Post which, along with the New York Times and others, has not treated Hillary Clinton with kid gloves on the e-mail issue and other controversies, takes one more “deep look” at the “e-mail controversy.”
The Post launches off quoting excerpts from Clinton’s July 7 CNN interview:
Everything I did was permitted. There was no law. There was no regulation. There was nothing that did not give me the full authority to decide how I was going to communicate. Previous secretaries of state have said they did the same thing. …. Everything I did was permitted by law and regulation. I had one device. When I mailed anybody in the government, it would go into the government system.
The Post then focuses on Clinton’s claims that “everything [she] did was permitted” because “there was no law…there was no regulation.” But first it compares Clinton’s claims “in some ways” to the then Vice President Al Gore’s statement in 1997 that there was “no controlling legal authority” concerning his phone calls from the White House seeking Democratic campaign contributions.
Then the Post proceeds to “The Facts”:
• …the legal requirement to immediately preserve e-mails from nongovernment e-mail accounts was not made mandatory until nearly two years after she stepped down as secretary of state.
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• In 2014 , President Obama signed an update of the 1950 Presidential and Federal Records Act. That law expanded the definition of “federal records” to specifically include electronic communications and also clarified the responsibilities of federal government officials when they use nongovernment e-mail systems. The responsibilities include copying an official record, such as an e-mail, or forwarding a complete copy of the e-mail within 20 days of transmission.
But, the Post hurries to explain, “that does not mean that, when Clinton was secretary of state, there were not already in place State Department rules on how to handle e-mails and whether to use a personal e-mail account.”
The Post also calls Clinton’s use of plural “misleading” when she says that other secretaries did the same thing because, the Post says, “none had set up an exclusive and private e-mail server for all of their departmental communications” and only “Colin L. Powell has ever said he sent e-mails from a personal account.”
In addition, in 2009, the rules became clearer — eight months after Clinton became secretary of state — when the U.S. Code of federal regulations on handling electronic records was updated to include that employees sending and receiving official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency record-keeping system.
On top of that, the Post says, “when Clinton was secretary, a cable went out under her signature warning employees to ‘avoid conducting official Department business from your personal e-mail accounts.’” The issue thus becomes, says the Post “whether Clinton cooperated in the spirit of the laws and rules in place at the time.”
While Clinton “suggests” she did cooperate, the Post maintains that such practices made it difficult to locate records in response to specific requests…” and cites the problems when the House Select Committee on Benghazi sought copies of Clinton’s e-mails.
In explaining Clinton’s remarks, her campaign points to previous comments that “The Federal Records Act puts the obligation on the government official to determine what is and is not a federal record” and quotes from the Foreign Affairs Manual.
However, the Post counters “well before this directive was issued–and before Clinton joined the Obama administration–the Foreign Affairs Manual made it clear that before a senior official (such as a Senate-confirmed presidential appointee) departs government service, he or she must prepare an inventory of personal papers that are proposed for removal” and adds, “The manual states ‘correspondence or e-mail received or sent in an employee’s capacity as a Department official is not personal.’”
The Post’s conclusion:
Clinton certainly failed to live up to that requirement, as she had retained those e-mail records for nearly two years after she left office before returning them to the State Department. The Clinton campaign suggests she could determine what actually was a federal record, but her State Department-related emails did not fall in that category.
The “Pinocchio Test.”
With her very careful language, Clinton skirts some of the important issues concerning her private e-mail account. She appears to be arguing her case on narrow, technical grounds, but that’s not the same as actually complying with existing rules as virtually everyone else understood them.
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In reality, Clinton’s decision to use a private e-mail system for official business was highly unusual and flouted State Department procedures, even if not expressly prohibited by law at the time.
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Moreover, while she claims, “everything I did was permitted,” she appears to have not complied with the requirement to turn over her business-related e-mails before she left government service. That’s a major misstep that she has not acknowledged.
In Pinocchio numbers:
We wavered between Two and Three Pinocchios, but Clinton’s excessive spin finally tipped us toward Three. She goes too far in suggesting her actions were ordinary–and did not stretch the limits of existing laws and regulations.
Two Pinocchios:
“Significant omissions and/or exaggerations. Some factual error may be involved but not necessarily. A politician can create a false, misleading impression by playing with words and using legalistic language that means little to ordinary people.”
Three Pinocchios:
“Significant factual error and/or obvious contradictions.”
For those not familiar with the Pinocchio Test “ratings,” please read here.
lead image: www.shutterstock.com
The author is a retired U.S. Air Force officer and a writer.