Government Integrity Rests Upon Following Former Secretary of State Hillary Clinton’s Use of a Private Server
Founding teachings of a democracy has brought about the viability of a republic
The historical viewpoint leading to the creation of republics: that is, representative democracies in which the people are ultimately in charge (because no one has more at stake than everyone does) but not immediately in charge (because someone must have time, knowledge, and experience to govern well on the daily pressing matters of state), fosters recognition that some people lack the education or the opportunity to be provided with the wealth and leisure to be educated in postmodernism.
A current reminder that “the many” might be considered unfit to have complete charge of a political community and should -at most- be trusted with a partial role in governing. And, with “the many” being checked by their “better elected officials” and -in turn- the elected class being checked by “the many.”
Pushing aside personal theories and intellects, the spiritual component of me finds it difficult to break away from the perspective that all people are equal, that all people hold natural rights, and that each man is bound to be governed by self-consent.
To the very contrary, with theories and intellects at the foremost, no one should be trusted with the sum total of political power.
What’s interesting is how, for many, a brand of logic has been used to rationalize ignoring former Secretary of State, Ms. Hillary Clinton’s, email investigation. Because multiple investigations have taken so long, many people believe that nothing of real sustenance has been found, or simply that Ms. Clinton is too powerful to face any serious repercussions. Any attempt to warn people that Ms. Clinton could realistically face criminal indictments is viewed either as a Republican scare tactic or just simple lunacy.
Yet, every American embassy, there are diplomatic Marine guards that worked under Hillary Clinton, each with standing orders to protect the classified information that’s inside those embassies, warrants concern on, if, how, and why, Mr. Clinton may have giving such information away, by mere negligence or by choice, requires full explanation.
Factual Background
Former Secretary Clinton Used a Private Server and Email Account to Conduct Her and Select Aids’ Official Government Business
On March 2, 2015, the New York Times reported that Ms. Hillary Clinton, while serving as Secretary of State, exclusively used a private email account to conduct government business and that neither she nor her aides took actions to have those emails preserved in the State Department’s official recordkeeping system at the time.[i] Through a press conference and a written statement issued on March 10, 2015, Ms. Clinton responded to that report in which she denied any wrongdoing but did admit to using a private email account housed on a private server over which she maintained exclusive control.[ii]
Via hand delivery, law firm cdMillsGroup, attorney Ms. Cheryl Mills, for Ms. Clinton claimed to have turned over printed copies of all of her work-related emails to the State Department on December 5, 2014[iii] (a full 22 months after she resigned from office).
According to Ms. Clinton’s written statement 30,490 emails “sent and received by Secretary Clinton from March 18, 2009 to February 1, 2013” for a total of 55,000 printed pages was produced to the State Department.[iv] Ms. Clinton went on to claim that approximately 90 percent of her emails were captured by the State Department’s record-keeping system because “they were sent to or received by ‘state.gov’ accounts.”[v]
In Ms. Clinton’s oral statements, she acknowledged that these emails had been deleted from her personal server.[vi] In a following letter written on March 27, 2015 to Trey Gowdy, Chairman of the House Select Committee on Benghazi, Ms. Clinton’s lawyer, David Kendall, explained that Ms. Clinton had deleted all of her emails from her tenure as Secretary of State such that “no e-mails from hdr22@clintonemail.com reside on the server or on any back-up systems associated with the server.”[vii]
NRA Did Not Authorize Former Secretary Clinton To Store Record Emails on a Private Server
The National Archives and Records Administration (NARA), the federal agency in charge of overseeing federal records management, wrote to the State Department on March 3, 2015 expressing its concern that “Federal records may have been alienated from the Department of State’s official recordkeeping system” and asking, pursuant to its statutory authority, that the State Department submit a report within 30 days detailing “how these records were managed and the current status of these records.”[viii]
That letter clearly reveals that NARA had not given Ms. Clinton or the State Department permission to house or archive her official email records on a private server. Federal statutes and regulations define the term “alienation” in terms of “allowing a record to leave the custody of a Federal agency without the permission of the Archivist of the United States.”[ix]
The State Department responded to NARA on April 2, 2015.[x] The two-page report and the accompanying exhibits highlights the State Department’s policies regarding the creation and retention of email records and explained that the State Department was aware that former Secretary Clinton had used a “non-government” email account during her tenure, although the report did not indicate by what authority or authorization. The report also noted that on October 28, 2014 the State Department had requested Ms. Clinton and the precluding former Secretaries of State to supply the State Department with copies of any federal records in their possessions, including “emails sent or received on a personal email account.”[xi] The report admitted that when it made this request, “the degree to which [Ms. Clinton’s email] records were captured in the Department’s systems was unknown.”[xii]
The State Department Sought Former Secretary Clinton’s Emails Upon Realizing It Could Not Respond fully to Document Requests from the House Select Committee on Benghazi
Reports and documents released to the public offer a very cloudy picture as to who knew of Ms. Clinton’s use of a private email system and when and during what time such person was a wear of this account. A March 23, 2015 New York Times article proposes that some State Department recordkeeping officials were not aware of Ms. Clinton’s use of a private email account until sometime after her resignation.[xiii] As that news report explains, the reason the State Department approached Ms. Clinton at the end of October 2014 to request her email records was because officials realized that Ms. Clinton was using an outside email address for her official correspondence only after they attempted to respond to document requests from the House Select Committee on Benghazi.
On March 4, 2015, two days after the New York Times initial report, the House Select Committee on Benghazi realized that it may not have received all available State Department records relating to Benghazi issued a subpoena to Ms. Clinton for all documents, including email communications, in her possession related to Libya and the terrorist attack.[xiv]
On March 19, 2015, Chairman Gowdy of the Select Committee on Benghazi wrote to Ms. Clinton’s lawyer, David Kendall, to grant his request for an extension of time to respond to the March 4, 2015 subpoena. [xv] At the same time, he requested that Ms. Clinton “relinquish her server to a neutral, detached, and independent third-party, such as the Inspector General for the State Department, for review and an independent accounting of any records contained on the server, including a determination of which documents in the Secretary’s possession belong to the State Department and which are private.”[xvi]
The justification for such a request centered on the way Ms. Clinton had concealed knowledge of the emails and her use of a private server and email account both during and after her tenure as Secretary of State.
As Chairman Gowdy explained, in response to the Select Committee’s initial request to the State Department for all relevant documents relating to their investigation into the Benghazi terrorist attack, the State Department delivered approximately 15,000 pages of documents in August 2014. Included among these documents were only eight emails to or from former Secretary Clinton. These few emails revealed that Ms. Clinton was using a private email address for her official work, which was the first time the Select Committee became aware of the practice.
Given the small number of emails to or from Ms. Clinton, the Select Committee submitted two new requests for relevant documents and communications “authored by, sent to, or received by former Secretary of State Clinton,” one on November 18, 2014 to the State Department and the other on December 2, 2014 to Ms. Clinton through her lawyer, Mr. Kendall[xvii].
Mr. Kendall made no document production on Ms. Clinton’s behalf but simply referred the Select Committee’s letter to the State Department, stating that it was the State Department who was “in a position to produce any responsive documents.” There was no mention at this time that Ms. Clinton’s work-related emails were stored on her own private server and not in the State Department’s recordkeeping system.
In response to the November 18, 2014 and December 2, 2014 document requests, the State Department delivered 847 pages (representing about 300 of Ms. Clinton’s emails) on February 13, 2015. However, the only reason the State Department was able to produce these documents, was because of the email records that Ms. Clinton had produced to the State Department on December 5, 2014, proof that neither Ms. Clinton nor the State Department had preserved her email records (whether in paper or electronic form) in the State Department recordkeeping system either during or for the almost two years after her tenure as Secretary of State.[xviii]
Not until after the February 13, 2015 was Chairman Gowdy aware that the State Department revealed for the first time, in a meeting with the Select Committee held on February 27, 2015, that Ms. Clinton exclusively used a private email account throughout the entirety of her tenure as Secretary of State.[xix] The State Department, however, never revealed that Ms. Clinton retained exclusive control over her work-related emails both during and after her tenure, that Ms. Clinton only returned the paper copies of these emails after request from the State Department, or that the State Department’s request to Ms. Clinton was precipitated by the Select Committee’s document requests. Thus, it was only when the Select Committee learned the full story from the March 2, 2015 New York Times story that it then issued its March 4, 2015 subpoena.
The Select Committee has revealed that several State Department officials, other than Ms. Clinton, as well as non-State Department individuals with whom Ms. Clinton interacted in furtherance of her official duties, also used private email accounts to communicate with Ms. Clinton about official business.[xx] According to Chairman Gowdy, “[s]ince the Secretary used exclusively personal email, and several State Department officials also used personal email, there can be no assurance any and all of her relevant emails conducted between two private accounts would have been captured in Secretary Clinton’s review of documents.”
Chairman Gowdy’s letter highlighted the problematic way in which Ms. Clinton conducted her search for relevant documents. Ms. Clinton’s official statement from her March 10, 2015 press conference explained that the process was simply one in which search terms were employed to return what she considered to be the responsive documents.
If a relationship is thought as being like a scale with grains of sand on either side, then defining a personal relationship and a profession relationship derives from the acumination of interactions, but with the scale tipping one way or another.
The problem with Ms. Clinton’s approach to have private employees, whom did not have the authority to decide what does or doesn’t count as a federal record, relates to creation of another legal matter. Further, when Ms. Clinton was making these choices, she was acting as a private citizen, not a government employee.
As well, in a separate civil case, a critical issue is whether Mrs. Clinton’s and the State Department’s creation and use of the “off-grid” record system and their concealment of the system for six years, deliberately thwarted FOIA.[xxi]
Summary
Ms. Clinton’s exclusively used a private email account for correspondence relating to her official duties. Ms. Clinton’s failed to turn over those email records to the State Department upon leaving the office of Secretary of State.
Thereafter, Ms. Clinton’s storing, without authorization, those email records on a private server over which she retained exclusive control and failed to archive them in the State Department’s official recordkeeping system during her tenure and for 22 months. Ms. Clinton failed or delayed to turn over responsive documents in her possession upon request from congressional committees investigating the Benghazi terrorist attacks. And, Ms. Clinton wiped the electronic versions of the email records without authorization. Only upon a proper indictment and trial, would a jury, receiving proper judicial instructions, be able to make any legal findings based upon the known facts. [xxiii]
[i] http://www.nytimes.com/2015/03/03/us/politics/hillary-clintons-use-of-private-email-at-state-department-raises-flags.html?hp&action=click&pgtype=Homepage&module=first-column-region®ion=top-news&WT.nav=top-news&_r=2 , Michael S. Schmidt, Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules, N.Y. Times (Mar. 2, 2015)
[ii] See The Facts About Hillary Clinton’s Emails, https://www.scribd.com/doc/258299350/Q-A , https://www.hillaryclinton.com/p/briefing/factsheets/2015/07/13/email-facts/ . http://www.businessinsider.com/hillary-clinton-it-would-have-been-better-if-i-used-official-email-2015-3 , https://www.washingtonpost.com/news/post-politics/wp/2015/03/10/transcript-hillary-clinton-addresses-e-mails-iran/
[iii] https://www.archives.gov/press/press-releases/2015/pdf/attachment8-clinton-reply-letter.pdf
[iv]http://www.politico.com/story/2015/05/hillary-clinton-emails-deemed-personal-118176 , Lauren French, More than 1,000 Clinton emails deemed ‘personal,’ Politico (May 21, 2015)
[v] Statement from the Office of Former Secretary Clinton, supra note ii
[vi] https://assets.documentcloud.org/documents/2401597/jw-notice-of-order.pdf ; See Alexandra Jaffe & Dan Merica, Hillary Clinton: I used one email ‘for convenience,’ CNN (Mar. 11, 2015)
[vii]http://democrats-benghazi.house.gov/sites/democrats.benghazi.house.gov/files/documents/2015_03_27_Kendall_to_TG_re_Response_to_March_4_Subpoena.pdf Letter from David E. Kendall, Lawyer for Hillary Clinton, to Trey Gowdy, Chairman of the H. Select Comm. on Benghazi, at 6 (Mar. 27, 2015)
[viii] https://oig.state.gov/system/files/esp-16-03.pdf , Offical Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements; http://images.politico.com/global/2015/03/18/narastateltrhrcemails.pdf , Letter from Paul M. Wester, Jr., Chief Records Officer, NARA, to Margaret P. Grafeld, Deputy Assistant Sec’y for Global Info. Servs, Bureau of Admin., U.S. Dep’t of State (Mar. 3, 2015), ; see also http://www.nytimes.com/2015/03/19/us/politics/state-department-is-asked-to-explain-handling-of-clintons-emails.html?_r=1 Michael S. Schmidt, State Department Is Asked to Explain Handling of Hillary Clinton’s Emails, N.Y. Times (Mar. 18, 2015)
[ix] http://democrats-benghazi.house.gov/sites/democrats.benghazi.house.gov/files/documents/2015_03_27_Kendall_to_TG_re_Response_to_March_4_Subpoena.pdf , § 1228.100(a) (“The Archivist of the United States and heads of Federal agencies are responsible for preventing the alienation or unauthorized destruction of records, including all forms of mutilation. Records may not be removed from the legal custody of Federal agencies or destroyed without regard to the provisions of agency records schedules (SF 115 approved by NARA or the General Records issued by NARA).”); 44 U.S.C. § 3105 (“The head of each Federal agency shall establish safeguards against the removal or loss of records he determines to be necessary and required by regulations of the Archivist. Safeguards shall include making it known to officials and employees of the agency — (1) that records in the custody of the agency are not to be alienated or destroyed except in accordance with sections 3301–3314 of this title[.]”); id. § 3106(a) (“The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed from that agency, or from another Federal agency whose records have been transferred to the legal custody of that Federal agency.”).
[x] http://www.archives.gov/press/press-releases/2015/pdf/state-dept-response-to-wester-04-02-2015.pdf , Letter from Margaret P. Grafeld, Deputy Assistant Sec’y for Global Info. Servs., Bureau of Admin., U.S. Dep’t of State, to Paul M. Wester, Jr., Chief Records Officer, NARA (Apr. 2, 2015) (“State Dep’t Report to NARA”)
[xi] http://www.archives.gov/press/press-releases/2015/pdf/attachment4-clinton-letter.pdf , Letter from Patrick F. Kennedy, Under Secetary of State for Mgmt., to Cheryl Mills, Lawyer for Hillary Clinton (Nov. 12, 2014)
[xii] State Dep’t Report to NARA, supra note ix
[xiii] http://democrats-benghazi.house.gov/sites/democrats.benghazi.house.gov/files/documents/2015_04_22_Kendall_to_Gowdy_re_Response_to_03-31-15_Letter.PDF, Michael S. Schmidt, In Clinton Emails on Benghazi, a Rare Glimpse at Her Concerns, N.Y. Times (Mar. 23, 2015), http://goo.gl/V7Oexn.
[xiv]https://benghazi.house.gov/sites/republicans.benghazi.house.gov/files/Kendall.Clinton%20Subpoena%20-%202015.03.04.pdf , Press Release, H. Select Comm. on Benghazi, Statement from the Communications Director on Subpoena Issuance (Mar. 4, 2015)
[xv]http://benghazi.house.gov/sites/republicans.benghazi.house.gov/files/TG%20letter%20to%20Kendall%203.19.15.pdf , Letter from Trey Gowdy, Chairman of the H. Select Comm. on Benghazi, to David E. Kendall, Lawyer for Hillary Clinton (Mar. 19, 2015)
[xvi] https://assets.documentcloud.org/documents/2401597/jw-notice-of-order.pdf ; https://oig.state.gov/system/files/esp-16-03.pdf ; Letter from David Kendall, Lawyer for Hillary Clinton, to Trey Gowdy, Chairman of the H. Select Comm. on Benghazi, at 3–6 (Mar. 27, 2015)
[xvii] https://www.judicialwatch.org/wp-content/uploads/2016/02/Gowdy-letter-to-Kendall-Dec.-2-2014.pdf Letter from Elijah E. Cummings, Ranking Minority Member of the H. Select Comm. on Benghazi, to David Kendall, Lawyer for Hillary Clinton (December 2, 2014)
[xviii] http://www.judicialwatch.org/wp-content/uploads/2016/02/JW-v-State-Mills-July-email-00687.pdf Letter from John F. Hackett, Director, Office of Information Programs and Services, to Ms. Kate Baily Judicial Watch 425 Third St. SW. Suite 800 Washington, DC 20024 (February 4, 2016)
[xix] https://benghazi.house.gov/news/press-releases/gowdy-statement-in-response-to-clinton-comments-on-the-benghazi-committee ; Press Release Gowdy Statement in Response to Clinton Comments on the Benghazi Committee (July 7, 2015)
[xx] http://www.nytimes.com/2015/03/23/us/politics/in-clinton-emails-on-benghazi-a-rare-glimpse-at-her-concerns.html?hp&action=click&pgtype=Homepage&module=first-column-region®ion=top-news&WT.nav=top-news&_r=3 , Michael S. Schmidt, In Clinton Emails on Benghazi, a Rare Glimpse at Her Concerns, N.Y. Times (Mar. 23, 2015); http://www.washingtontimes.com/news/2015/mar/18/monica-crowley-was-hillary-clinton-running-her-own , Monica Crowley, Was Hillary Clinton running her own rogue intel operation? Wash. Times (Mar 18, 2015); http://www.politico.com/story/2015/06/clinton-emails-mentioning-benghazi-kept-from-panel-119140 , Rachael Bade, Hillary Clinton emails mentioning Benghazi kept from panel, Politico (June 17, 2015)
[xxi] https://www.judicialwatch.org/wp-content/uploads/2016/02/JW-v-State-56-d-motion-01363-1.pdf ; Case 1:13-cv-01363-EGS Document 48 Filed 12/11/15 Page 1 of 31
[xxii] http://www.judicialwatch.org/wp-content/uploads/2016/03/JW-v-State-opposition-to-discovery-01242.pdf , Case 1:14-cv-01242-RCL Document 27 Filed 09/18/15 Page 1 of 17
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