Why the Clinton email scandal is important

The one thing both Republicans and Democrats can agree on is that Hillary Clinton and her team never intended for our secrets to fall into the hands of our enemies, regardless of how grossly negligent their handling of the information was. While they “technically” violated various laws, the importance of the scandal is the lessons our leaders have learned. It is highly unlikely that future leaders will make the same mistakes that Hillary Clinton and her staff made by circumventing the government’s information security systems — but there is one less we haven’t learned.

The lesson that I’m not certain we’ve learned is the importance of preserving government records in accordance with the Federal Records Act. The FBI concluded that Hillary Clinton didn’t understand the classification system — but she certainly understood that ALL of her correspondence was the property of the American people. Upon her departure from the State Department she and her staff signed various sworn statements attesting to their understanding and compliance with our various rules regarding preservation of government records — agreements that they ALL were shown to have violated. Here are just five:

“Departing officials and employees [may] not remove Federal records from agency custody” — 36 C.F.R. § 1222.24 — Hillary Clinton and her staff have admitted they all retained Federal records on their personal computers, servers, and smartphones. Had they not we would have never been able to recover tens of thousands of emails and documents in their custody.

“Agencies that allow employees to send and receive 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 recordkeeping system.” — 36 C.F.R. § 1236.22(b) — Hillary Clinton and her staff have apologized for failing to turn over their emails to the State Department.

“All Department employees are … required by law to preserve documentary materials meeting the definition of a record under the Federal Records Act [and are] responsible for creating, using, maintaining, preserving, and disposing of the Department’s information and records.” — State Department Foreign Affairs Manual — Hillary Clinton and her staff have apologized for deleting tens of thousands of emails. Fortunately, the FBI was able to recover and reconstruct many of the deleted emails and documents.

“It is the Department’s general policy that normal day-to-day operations be conducted on an authorized AIS, which has the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of the resident information.” — State Department Foreign Affairs Manual — Hillary Clinton and her staff have apologized for failing to obtain permission from the State Department to set up a private email system — the IG indicated that permission would NOT have been granted.

“Where warranted by the nature of the information, employees who will be transmitting SBU information outside of the Department network on a regular basis to the same official and/or most personal addresses, must contact the [information security officials] for guidance in implementing a secure technical solution for those transmissions.” — State Department Foreign Affairs Manual — Hillary Clinton and her staff have apologized for having their personal systems secured as per the law.

Republicans insist that Hillary Clinton lied to Congress regarding the classification of the emails she sent and received using her personal email server — they’re probably correct, but to be found guilty under the statute they’d have to prove she understood the classification system — something the FBI determined she never understood. The good news is that future leaders won’t make the same mistake — the bad news is that we haven’t addressed the real issue — failure to preserve government documents. Someone — Hillary Clinton or her staff — must be held accountable for their failures so that future leaders don’t make the same mistake. An example must be made.

Violation of the Federal Records Act is punishable by three years in prison and includes a provision that states, “forfeit his office and be disqualified from holding any office under the United States.”