May 10, 2016: A key record keeping official says the disappearance of Pagliano’s emails “stink to high heavens.”

Daniel Metcalfe (Credit: Diego M. Radzinschi / Legal Times)

Daniel Metcalfe (Credit: Diego M. Radzinschi / Legal Times)

Dan Metcalfe, director of the Justice Department’s Office of Information and Privacy for 25 years, comments on news that the State Department can’t find the emails of Clinton’s computer technician Bryan Pagliano: “If it is true that federal records directly documenting his work no longer exist, then that is awfully coincidental, to put it most charitably—especially given the nature of his work and the role he has played in the Clinton email controversy.”

He adds, “And it certainly now raises reasonable suspicion, as it did with the Senate a few months ago, that something was very much amiss here—either with record creation or record preservation, or both. For someone who has taken the Fifth regarding his government activity, it is more than suspicious that his agency suddenly determine that the records that you would ordinarily expect it to have maintained about his work are just not there. […] In short, the whole thing stinks to high heavens.” (LawNewz, 5/10/2016)

May 13, 2016: Clinton clearly violated the Federal Records Act (FRA), but the act is “effectively toothless” when it comes to punishing her.

Dan Metcalfe, director of the Justice Department’s Office of Information and Privacy for 25 years, writes an editorial noting that penalties for violating the FRA are limited to monetary or administrative sanctions, and those can only be applied to people who are still federal employees when violations are discovered.

He says that Clinton’s conduct with her emails “violated the Federal Records Act from beginning to end, including through what appears to be her utter failure to meet any of the requirements placed on a departing employee. This amounts to what can be viewed as the biggest, most consequential violation of the FRA in its history, as well as a blatant circumvention of the FOIA [Freedom of Information Act] the likes of which have never before been seen.” However, she will face no penalty for violating this law because she is no longer a federal employee.

Metcalfe calls for Congress to “update the Federal Records Act to provide meaningful sanctions” to prevent others from doing what Clinton did. Nevertheless, Metcalfe says he is a Democrat and will support Clinton if she is not indicted. (LawNewz, 5/13/2015)