New regulations state that “such messages are considered Federal records under the law.” (The Washington Post, 3/10/2015)
Within days of his inauguration, president-elect George W. Bush stops using email. He mentions in his last email, “Since I do not want my private conversations looked at by those out to embarrass, the only course of action is not to correspond in cyberspace.”
Bush’s close aide Karen Hughes says Bush stopped using e-mail because of public records laws, including the Freedom of Information Act (FOIA). (CNet, 1/29/2009)
The State Department decrees that “sensitive but unclassified” information should not be transmitted through personal email accounts. It also states, “It is the Department’s general policy that normal day-to-day operations be conducted on an authorized [government server], which has the proper level of security control to provide nonrepudiation, authentication, and encryption, to ensure confidentiality, integrity, and availability of the resident information.” (US Department of State, 1/12/2016) (The Washington Post, 3/10/2015)
The department’s regulations also require that “Departing officials must ensure that all record material that they possess is incorporated in the Department’s official files and that all file searches for which they have been tasked have been completed, such as those required to respond to FOIA [Freedom of Information Act], Congressional, or litigation-related document requests. Fines, imprisonment, or both may be imposed for the willful and unlawful removal or destruction of records as stated in the US Criminal Code (e.g., 18 U.S.C., section 2071).” (US Department of State, 8/17/2007)
In 2004, The National Archives and Records Administration (NARA) issued a bulletin noting that officials and employees “must know how to ensure that records are incorporated into files or electronic recordkeeping systems, especially records that were generated electronically on personal computers.”
In 2009, NARA amends its regulations explicitly to address official emails on personal accounts: Departments that allow employees to send and receive work-related emails using a system not operated by the department must ensure that all such emails are preserved in the appropriate department recordkeeping system. (US Department of State, 5/25/2016)
Shortly Before January 21, 2009: In an email exchange shortly before Clinton becomes secretary of state, records officials within the Bureau of Administration wonder if there is an electronic method that could be used to capture her emails because they are “not comfortable” advising the new administration to print and file email records. (US Department of State, 5/25/2016)
After Clinton’s email scandal becomes public in March 2015, The State Department will request all work-related emails from four of Clinton’s top aides: Cheryl Mills, Huma Abedin, Jake Sullivan, and Philippe Reines. The emails will be turned over between June and August 2015.
A department analysis will determine that all four aides frequently used personal email accounts for work matters, although they had government email accounts and sometimes used those as well. The combined work-related personal emails from the four of them will total nearly 72,000 printed pages. One of the four sends and receives 9,585 work emails using a personal account while Clinton is secretary of state, though it isn’t clear which one. That person averages nine work emails from that account per work day.
In May 2016, the department’s inspector general will conclude that, just like Clinton, “these [four aides] failed to comply with department policies… because none of these emails were preserved in department recordkeeping systems prior to [being handed over] in 2015.” (US Department of State, 5/25/2016)
Clinton exchanges 19 emails with Army General David Petraeus, who is chief of the US Central Command at the time. The exchange will continue into February 2009.
In 2015, Clinton will claim that she didn’t start using her email account for government work until March 18, 2009. As a result, all the emails she will later hand over to the State Department will be from March 18 or later. These emails have not yet been made public. (The Washington Post, 3/27/2016)
In August 2015, in a sworn deposition to a federal court, Clinton will claim: “I, Hillary Rodham Clinton, declare under penalty of perjury that the following is true and correct: While I do not know what information may be ‘responsive’ for purposes of this law suit, I have directed that all my emails on clintonemail.com in my custody that were or potentially were federal records he provided to the Department of State, and on information and belief, this has been done.” (Judicial Watch, 8/10/2015)
The 19 emails between Clinton and Petraeus from January 2009 will be discovered by the Defense Department in September 2015, one month after Clinton’s sworn deposition. Presumably, they come from Petraeus’ email account. (Reuters, 9/26/2016)
Clinton writes in an email: “Dear Lauren [Jiloty] and Huma [Abedin], I have just realized I have no idea how my papers are treated at State. Who manages both my personal and official files? […] Are there personal files as well as official ones set up? […] I think we need to get on this asap to be sure we know and design the system we want.”
Abedin replies, “We’ve discussed this. I can explain to you when I see [you] today.” (US Department of State, 5/31/2016)
In June 2016, Chris Cillizza will write in the Washington Post: “[T]his email to Abedin—which came at the start of her four-year term in office—suggests a bit more active agency than Clinton has previously let on. ‘I think we need to get on this asap to be sure we know and design the system we want,’ doesn’t strike me as Clinton simply wanting convenience and following the instructions of her IT people on how to make that happen. It reads to me as though Clinton is both far more aware of the email setup and far more engaged in how it should look than she generally lets on publicly.” (The Washington Post, 6/28/2016)
In her July 2016 FBI interview, Clinton will be asked about this email. According to the FBI, “Clinton stated this email pertained to how her ‘files’ were going to be treated at [the] State [Department]. Clinton relayed while in the Senate, she maintained a personal and official paper file. This process was not implemented through Senate procedure or guidance but through Clinton’s own personal process. Clinton was not aware how other State staff maintained their records and was unaware of State’s State Messaging and Archive Retrieval Toolset (SMART).” (Federal Bureau of Investigation, 9/2/2016)
The US Code of federal regulations on handling electronic records is updated: “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.” (The Washington Post, 3/10/2015)
In 2015, Jason Baron, former director of litigation at the National Archives and Records Administration (NARA), will comment that the rules get stricter in 2013. But even prior to that, “the use of a private [email] account was to be rare and occasional, and not to be the norm.” Using a private account “without using an official account is inconsistent with the Federal Records Act.” He adds, “To solely use a personal e-mail for four years [as Clinton did] is something that is highly unusual.” (Bloomberg News, 3/3/2015)
The National Archives and Records Administration (NARA) issues guidelines to the heads of all federal agencies, including Secretary of State Clinton, stating that all emails and email attachments relating to government business are considered records to be preserved under the Federal Records Act. (The Wall Street Journal, 9/30/2015)
According to a 2015 State Department inspector general report, in 2011, only 61,156 department emails out of a billion are formally archived, a rate of far less than one percent. In 2013, the number is even lower, only 41,749. Clinton will later justify her use of a private email address by claiming that her emails to other government officials would be permanently archived through their email accounts. (Politico, 3/11/2015)
The request by Citizens for Responsibility and Ethics in Washington (CREW) ask for “records sufficient to show the number of email accounts of or associated with Secretary Hillary Rodham Clinton.” (US Department of State, 7/29/2016)
This request is sparked by reports that Lisa Jackson, administrator of the Environmental Protection Agency, had been using an email account at work under the name “Richard Windsor.”
Clinton is still secretary of state at the time, and her chief of staff Cheryl Mills soon learns of CREW’s request, due to a December 11, 2012 email sent to her (and possibly Clinton) about it. But although Mills is very aware of Clinton’s private email address since she frequently sends emails to it, she doesn’t take any action and merely has an aide monitor the progress of CREW’s request.
In May 2013, the State Department will respond to CREW, “no records responsive to your request were located.”
Other requests for Clinton’s records will meet the same fate until the House Benghazi Committee finds out about her private email account in 2014. (The Washington Post, 3/27/2016) (The Washington Post, 1/6/2016)
Clinton is less than two months away from ending her term as secretary of state. Paul Wester, chief records officer for National Archives and Records Administration (NARA), writes to his NARA co-workers, “We need to discuss what we know, and how we should delicately go about learning more about the transition plans for Secretary Clinton’s departure from State.” He says he has been warned of an effort to move Clinton’s files to Bill Clinton’s presidential library in Little Rock, Arkansas.
He adds that a co-worker is “asking questions about what we are doing to make sure everyone leaving the Administration does not leave with Federal records. I told him we are aware of the issue and are working on it.”
Officials at Clinton’s presidential library will later say they never heard of such an effort, and it wouldn’t have been appropriate for the library to house Hillary’s records in any case.
Wester will be interviewed in 2015 and will say the concern was over paper records only. “We had no information or no inkling of any issues with the email matters that have come to our attention more recently.” (Politico, 5/21/2015)
Representative Darrell Issa (R) asks Clinton in a letter, “Have you or any senior agency official ever used a personal email account to conduct official business? If so, please identify the account used.” His letter also asks if State Department employees have to turn over work-related emails from personal accounts by the time they leave office, and it seeks written documentation of the department’s policies for the use of personal email for government business.
Issa is the chair of the House Committee on Oversight and Government Reform, and he is investigating how the Obama administration handles its officials’ use of personal email.
However, Clinton never sends a reply, and leaves office seven weeks later.
Issa finally gets a response from the State Department on March 27, 2013, but it fails to mention Clinton’s use of a private email address for work matters and just describes the department’s general email policies.
In 2015, a department spokesperson will decline to explain why Issa was never told about Clinton’s personal email usage. (The New York Times, 4/14/2015)
When Clinton ends her tenure as secretary of state, she is required by law to turn over all of her work-related documents to the State Department, including emails, but she fails to do so.
A May 2016 State Department inspector general’s report will conclude, “Secretary Clinton should have preserved any federal records she created and received on her personal account… At a minimum, [she] should have surrendered all emails dealing with department business before leaving government service and, because she did not do so, she did not comply with the department’s policies that were implemented in accordance with the Federal Records Act.”
The report will note that at least she turned over 30,000 emails in December 2014, 21 months later. However, the report will also conclude that the emails she gave then are “incomplete,” because many of her work-related emails have since been discovered through other means, such as being found in other email inboxes. For instance, although her tenure began on January 21, 2009, and she started using her email account by January 28, no emails received prior to March 17, 2009, were turned over, nor were any emails sent prior to April 12, 2009. (US Department of State, 5/25/2016)
All State Department officials are required to sign the “separation statement,” known as the OF-109 form. Those who sign the OF-109 form acknowledge they could be subject to “criminal penalties” for not turning over the documents.
In 2015, the Daily Caller will sue the State Department for several OF-109 forms. They will be given a form with Mills’ name on it, but with the date and signature spaces left blank. Mills used a private Yahoo email account for at least some of her government work.
A State Department official will neither explain the discrepancy nor confirm that Mills did not sign the agreement.
Clinton apparently never turns in her form. Huma Abedin, Clinton’s deputy chief of staff, does sign her form in February 2013, but she doesn’t turn over her private, work-related emails. (The Daily Caller, 11/13/2015) (The Hill, 11/13/2015) (US Department of State, 9/11/2015)
All State Department officials are required to sign the “separation statement” when they leave the department, known as the OF-109 form. However, Abedin has a private email address (email@example.com) on the same private server that Clinton does, and when she leaves the department in February 2013 she does not turn over any of her emails from it, including work-related emails.
Her emails will not be handed over until a couple of years later, after various lawsuits and investigations. In signing the form, Abedin acknowledges she could be subject to “criminal penalties” for lying on the document.
The Hill will later report, “It’s unclear whether Abedin would be subject to prosecution, given the unusual nature of Clinton’s private email setup.” (The Hill, 11/13/2015) (US Department of State, 9/11/2015)
This comes five days after the hacker known as Guccifer broke into the email account of Clinton confidant Sid Blumenthal and shortly thereafter publicly revealed Clinton’s exact private email address. The email asks Clinton, “Was the White House aware of your consultations with Blumenthal? And were your emails to and from the firstname.lastname@example.org account archived according to the provisions of the President Records Act and Freedom of Information Act?” But Clinton never replies, and it doesn’t seem that other reporters ask Clinton these questions in 2013. (Gawker, 3/3/2015)
State Department staff reviewing material to possibly give to Congressional committees examining the September 2012 Benghazi terrorist attack discover emails sent by former Clinton aide Jake Sullivan to a personal email address belonging to Clinton.
In ensuing weeks, senior department officials discuss if the Federal Records Act (FRA) requires the department to turn over emails from such personal accounts. In fact, the act does require emails to be turned over if they are work-related. However, an internal investigation will later determine that the department does not notify the National Archives and Records Administration (NARA) of a potential loss of records at any point in time. Furthermore, none of Clinton’s emails are given to any Congressional committee in 2013, nor are they provided in response to any Freedom of Information Act (FOIA) requests that year.
According to department official Heather Higginbottom, Secretary of State John Kerry is not a part of these discussions or decisions. (US Department of State, 5/25/2016)
Around this debate period, on August 7, 2013, department officials find 17 FOIA requests relating to Clinton in their records, with some of them specifically requesting Clinton emails. But none of the requesters are told about any of Clinton’s emails apparently due to the result of this debate.
Clinton’s personal email address will be rediscovered in May 2014 after a document request from the new House Benghazi Committee.
NARA’s (The National Archives and Records Administration) new regulations state, “While agency employees should not generally use personal email accounts to conduct official agency business, there may be times when agencies authorize the use of personal email accounts, such as in emergency situations when Federal accounts are not accessible or when an employee is initially contacted through a personal account.” (The Washington Post, 3/10/2015) The change comes after it was revealed that Gary Gensler, the head of the Commodity Futures Trading Commission, and officials at the Department of Energy had used private email addresses for government business.
(Bloomberg News, 3/3/2015)
Starting in July 2014, State Department officials privately reached out to Clinton’s lawyers and advisers to gain access to her work-related emails on her private server. Face-to-face meetings on the issue followed in August. But with the emails still not appearing, on October 28, 2014, the Department formally asks Clinton for the emails. (The Washington Post, 3/27/2016)
On the same day the State Department formally asks Clinton for her emails from when she was secretary of state, it also sends letters to her three predecessors as secretary of state—Madeleine Albright, Colin Powell, and Condoleezza Rice—asking if they have any emails or other federal records in their possession.
Albright replies that she did not use email during the years they were in office.
Rice did have a government email account, but only used it rarely.
Powell, who was secretary of state from 2001 to 2005, had a private email account through AOL [America Online] but did not keep his emails.
The State Department’s inspector general will later find that Powell’s personal email account had received two emails from staff that contained “national security information classified at the Secret or Confidential levels.” (The Washington Post, 3/27/2016) (The Wall Street Journal, 3/10/2015)
On September 3, 2015, Clinton’s former chief of staff Cheryl Mills will testify under oath in front of the House Benghazi Committee. After being asked about her role in sorting and deleting Clinton’s emails, Mills says that “after the letter came” from the State Department on October 28, 2014 asking for Clinton’s work-related emails, “Secretary Clinton asked [Clinton’s personal lawyer] David Kendall and myself to oversee a process to ensure that any records that could be potentially work-related were provided to the department.”
Mills is asked if she or Kendall were in physical possession of the server at the time.
She replies, “No. … [T]hat server, as I understand it, doesn’t contain any of her records. So we asked Platte River to give us a .pst [computer file] of all of her emails during the tenure where she was there, which they did. And we used that .pst to first search for and set aside all of the state.gov records, then to actually do a name search of all of the officials in the department so that we could ensure that all the senior officials that she would likely be corresponding with got looked at and searched for by name, and then a review of every sender and recipient so that you knew, if there was a misspelling or something that was inaccurate, that you would also have that review done, as well. And then that created the body of, I think, about 30,000 emails that ended up being ones that were potentially work-related, and not, obviously, completely, but it was the best that we could do, meaning obviously there were some personal records that are turned over, and the department has advised the Secretary of that.”
Mills further explains that she and Kendall “oversaw the process. The person who actually undertook it is a woman who worked for me.” This woman is another lawyer, Heather Samuelson, who Mills admits doesn’t have any specialized training or skills with the Federal Records Act or identifying official records.
Then Mills is asked what happened to the “universe of the .pst file” after the work-emails had been sorted out.
She replies: “So the potential set of federal records, we created a thumb drive that David Kendall kept at his office. And then the records themselves, that would have been the universe that they sent, Platte River took back. […] So they just removed it. So it ended up being on system, and they just removed it. And I don’t know what is the technological way they do it, because it’s a way you have to access it, and then they make it so you can’t access it anymore.” (House Benghazi Committee, 10/21/2015)
This does not apply to Clinton’s time as secretary of state. (Politico, 11/26/2014)
They contain 30,490 emails that Clinton deems to be work related. But she will later reveal that she deleted another 31,830 emails that were personal and private. It is not known exactly when those emails were deleted. Apparently, Clinton hands over only paper copies of the emails that she does hand over. (The Washington Post, 3/10/2015)
Cheryl Mills,, who used to be Clinton’s chief of staff but now is one of her lawyers, writes a letter to the State Department on this day that apparently accompanies the release. In it, according to the FBI, she asserts “that it was Clinton’s practice to email State [Department] officials at their government email accounts for official business, and, therefore, [the State Department] already had records of Clinton’s emails preserved within [their] recordkeeping systems.”
The department’s inspector general will conclude in a May 2016 report that this was a proper appropriate method of preserving record emails, and Clinton should have turned over all her emails when she left office. (Federal Bureau of Investigation, 9/2/2016)
The State Department begins using a system that automatically keeps the emails of high-ranking officials, such as deputy secretary of state, and under and assistant secretaries. Secretary of State John Kerry’s emails have been automatically retained since around the time he took office in 2013.
In 2012, an Obama administration directive mandated that departments must devise a system for retaining and preserving email records by the end of 2016, but some departments are slow to adapt.
Patrice McDermott, director of the transparency watchdog group OpenTheGovernment.org, says, “It really is chaos across the government in terms of what agencies do, what individuals do, and people understand that they can decide what they save and what they don’t. If you leave it up to the agency, some are going to behave properly and take it seriously, and some are going to see it as carte blanche to whitewash the record.” (The New York Times, 3/13/2015)
Instead, she used her private email account exclusively, and the State Department doesn’t have any of her emails other than those she provided voluntarily. This story will publicly break in the New York Times on March 2, 2015. (Reuters, 3/15/2015) (The New York Times, 3/2/2015) (National Archives and Records Administration, 3/31/2015)
The article by Michael Schmidt is entitled, “Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules.” It appears as the main front page headline on the printed version of the New York Times the next morning with a slightly different title.
This article also reveals that Clinton’s aides took no action to preserve emails sent or received from her as required by the Federal Records Act. It points out that she left the State Department in February 2013, but didn’t give the department her work-related emails until December 2014. It suggests she may have violated federal regulations by exclusively using a personal email account for public business while secretary of state.
The Times further reveals that existence of Clinton’s personal email account was discovered by the House Benghazi Committee when it sought correspondence between Clinton and her aides. (The New York Times, 3/2/2015)
It will later be frequently assumed that the article also reveals that her email account was hosted on a private server. However, that will be first revealed two days later in an Associated Press article.
The four are Cheryl Mills, Huma Abedin, Jake Sullivan, and Philippe Reines. All four of them frequently used personal email accounts for work matters while Clinton was secretary of state, though they also had government email accounts. According to a 2016 department inspector general’s report, the four of them hand over “email from their personal accounts during the summer of 2015.” (US Department of State, 5/25/2016)
Robert Gibbs, former White House press secretary for President Obama, calls Clinton’s exclusive use of a personal email account to conduct work “highly unusual.” He says this is especially so considering how frequently cabinet-level officials are told to preserve government correspondence. He says White House officials attend numerous briefings informing them about the need to preserve their email, “making sure it’s part of your official account.” (The Today Show, 3/3/2015)
Douglas Cox, a professor at the City University of New York School of Law who focuses on records preservation laws, says that while there was no specific law preventing Clinton from using a private email account, there have long been general rules on the books safeguarding “against the removal or loss of records. […] In a situation where she’s creating federal records outside the custody of the State Department and then keeping them there, that I think could violate the more general rules that have been there for long time. To me, it’s a bit mind-boggling.” (The Hill, 3/3/2015)
Cox’s comment appears to be made in direct response to Clinton spokesperson Nick Merrill’s claim the day before that Clinton’s email practices followed “both the letter and spirit of the rules.”
One week later, Cox adds, “While Clinton may have technical arguments for why she complied with each of these and the other rules that have been discussed in the news, the argument that Clinton complied with the letter and spirit of the law is unsustainable.” (Politifact, 3/12/2015)
White House spokesperson Josh Earnest speaks on the recent revelation that Clinton used a private email account. “What I can tell you is that very specific guidance has been given to agencies all across the government, which is specifically that employees of the Obama administration should use their official email accounts when they’re conducting official government business. However, when there are situations where personal email accounts are used, it is important for those records to be preserved consistent with the Federal Records Act.” (The New York Times, 3/3/2015)
National Archives and Records Administration (NARA) spokesperson Laura Diachenko says that since 2009, federal regulations have stated that “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 record-keeping system.” (The New York Times, 3/3/2015)
Additionally, the office only found out as part of the House Benghazi Committee’s investigation, which began in mid-2014. This is according to an unnamed person “familiar with the matter.”
According to the Associated Press, “The person said Clinton’s exclusive reliance on personal email as the nation’s top diplomat was inconsistent with the guidance given to [departments] that official business should be conducted on official email accounts.” Once it became clear she wasn’t following proper practices, the counsel’s office asked the State Department to ensure her work-related emails were properly archived. But this person does not specify when that happened exactly. (The Associated Press, 3/5/2015)
BlackBerrys from Clinton’s time as secretary of state can be used for instant messages as well as emails. Bloomberg reports that Clinton’s “top aides frequently used instant text messages to talk with each other, a form of communication that isn’t captured or archived by the State Department. It is not clear whether Clinton herself used her BlackBerry’s instant message service, as her aides did.” (Bloomberg News, 3/5/2015)
She says, “The vast majority of my work emails went to government employees at their government addresses, which meant they were captured and preserved immediately on the system at the State Department.”
But the next day, a State Department inspector general’s report is released which refutes this, showing statistics that far less than one percent of emails were permanently archived. (Politico, 3/11/2015)
Despite the evidence to the contrary, Clinton will continue to make similar assertions. For instance, on September 20, 2015, she will claim that “more than 90 percent [of my emails] were already in the system.” (The Washington Post, 11/9/2015)
On March 10, 2015, Clinton claimed that her decision to use a private email account “for convenience” didn’t interfere with the State Department’s ability to retrieve those emails later. But a March 11, 2015 inspector general report highlights how poorly the department has permanently archived emails.
For instance, in 2011, only 61,156 department emails out of a billion were formally archived, a rate of far less than one percent. In 2013, the number—41,749—was even lower.
The report suggests that most employees “who did not use record emails as intended [said] they were usually unaware of what types of information should be saved as record emails. The department does not give employees adequate training to distinguish between information that should be preserved as records and information that may be discarded.” Furthermore, “Many interviewees expressed a fear that if participants in a debate knew that their opinions would be permanently recorded or accessible in searches, they would not express their opinions in an uninhibited manner.” (Politico, 3/11/2015)
Tom Blanton, director of the government’s National Security Archive, comments, “Just because [Clinton] sent to people at ‘state.gov’ addresses, it’s not at all a guarantee that it’s been preserved.” Additionally, “When an official leaves office, and most of her direct aides in fact have left the State Department, within 90 days the IT [information technology] folks at State wipe out their accounts unless there’s a special intervention.” (National Public Radio, 3/11/2015)
Dan Metcalfe worked in the Justice Department for 30 years, until 2007. He was the founding director of the department’s Office of Information and Privacy, which meant he was in charge of the federal government’s public information disclosure.
In a Politico editorial, he argues that the Federal Records Act, which applies to Clinton, “requires the comprehensive documentation of the conduct of official business, and it has long done so by regulating the creation, maintenance, preservation and, ultimately, the disposition of agency records,” including emails. He says the act allows the use of personal emails for work in some situations, but only if such emails are forwarded into the State Department’s official records system for preservation, which Clinton didn’t do.
He also comments that in this “truly unprecedented” case, “she managed successfully to insulate her official emails, categorically, from the FOIA (Freedom of Information Act), both during her tenure at State and long after her departure from it – perhaps forever.” He calls it “a blatant circumvention of the FOIA by someone who unquestionably knows better.” (Politico, 3/16/2015)
Jason R. Baron, a former director of litigation at the National Archives and Records Administration (NARA), tells the Senate Judiciary Committee that he believes Clinton’s use of a private server was against NARA’s rules. Baron claims that “the setting up of and maintaining a private email network as the sole means to conduct official business by email, coupled with the failure to timely return email records into government custody, amounts to actions plainly inconsistent with the federal recordkeeping laws.” (The Washington Post, 3/27/2016)
He adds that “any employee’s decision to conduct all email correspondence through a private email network, using a non-.gov address, is inconsistent with long-established policies and practices under the Federal Records Act and NARA regulations governing all federal agencies.” (US Senate Judiciary Committee, 5/1/2015)
William Johnson, who was in the department from 1999 to 2011, tells the New York Times, “I was stunned to see that [Clinton] didn’t use the State Department system for State Department business, as we were always told we had to do. If I’d done that, I’d be out on bond right now.” He says someone should be punished—if not Clinton, then officials whose job was to safeguard secrets and preserve public records. (The New York Times)
Her short statement includes this sentence: “I have directed that all my emails on clintonemail.com in my custody that were or potentially were federal records be provided to the Department of State, and on information and belief, this has been done.”
That statement is a result of a Freedom of Information Act (FOIA) lawsuit brought by Judicial Watch against the State Department. Additionally, Clinton mentions in her statement that her top aide Huma Abedin also had an email account on her clintonemail.com server that “was used at times for government business,” but another top aide, Cheryl Mills, did not. (The New York Times, 8/10/2015) (Politico, 8/8/2015)
One month later, some more of Clinton’s work emails from her time as secretary of state will be discovered by the Defense Department. (The New York Times, 9/25/2015)
State Department official John F. Hackett reveals to a federal judge that two of Clinton’s aides “used personal email accounts located on commercial servers at times for government business.” Clinton’s chief of staff Cheryl Mills had a Google Gmail account, and Clinton’s deputy chief of staff Huma Abedin had an account on the same clintonemail.com private server used by Clinton. (The Washington Times, 8/14/2015)
Clinton has argued that 90% or more of her emails would have been archived by the State Department since she communicated mostly with other State Department employees. But in fact less than one percent of emails were archived by the department during her tenure there, and she emailed Mills and Abedin more than anyone else. (The Washington Post, 11/9/2015)
In 2012, the news website Gawker filed a Freedom of Information Act (FOIA) lawsuit to get the emails between key Clinton aide Philippe Reines and numerous journalists. Reines was Senior Advisor and Press Secretary for Clinton while she was secretary of state.
However, even though a key part of Reines’ job was emailing journalists, the State Department responded in 2013 that “no records responsive to your request were located.”
Then, after more legal action, on August 17, 2015, the State Department says they found 17,855 emails between Reines and the journalists, which they promise to hand over.
It turns out that, like Clinton, Reines exclusively used a private email for his government work, and, like Clinton, this meant no records were found in any requests for his emails. (US News and World Report, 8/17/2015) (Gawker, 3/3/2015)
John Schindler, a former NSA counterintelligence officer, writes in the Los Angeles Times, “It’s difficult to avoid the suspicion that Clinton, after the scandals that rocked her husband’s presidency during the 1990s, simply did not want to leave behind a paper trail (or e-trail). And so, as secretary of state, she tried to skirt federal records law by employing her own IT systems and servers, and by exclusively using a personal email address. This maneuver, however, created a far bigger problem than the one she intended to avoid, because a large portion of what any secretary of state does is classified to some degree. High-level diplomacy is inherently a secret matter and always has been.” (The Los Angeles Times, 08/25/2015)
Valerie Jarrett, senior adviser to President Obama, is asked if there was guidance from the White House to Cabinet secretaries including Clinton not to use private email accounts. “Yes, there were. Yeah, absolutely. […] Obviously, we want to make sure that we preserve all government records, and so there was guidance given that government business should be done on government emails and that if you did use a private email that it should be turned over.” (C-SPAN, 9/30/2015)
Democratic presidential candidate Senator Bernie Sanders clarifies his remarks made a month earlier about Clinton’s email scandal, in which he said the “American people are sick and tired of hearing about [her] damn emails!” He says that if Clinton avoided public records requests or compromised classified information, that raises “valid questions.” He also says the FBI’s investigation should “proceed unimpeded. […] There’s an investigation going on right now. I did not say, ‘End the investigation.’ That’s silly.” (Politico, 11/5/2015)
Senate Judiciary Chair Chuck Grassley (R) sends a letter to former Clinton aide and lawyer Heather Samuelson. In late 2014, Samuelson led the sorting process through Clinton’s 62,000 emails to determine which ones to turn over to The State Department and which ones to delete. She also worked on Clinton’s 2008 presidential campaign and then was a senior adviser to Clinton in the State Department.
Grassley asks if Samuelson had the security clearance necessary to handle Clinton’s emails, some of which were later deemed to contain “top secret” intelligence. He writes, “It is imperative to understand your background in determining what is and what is not a federal record, since you apparently played a major role in assisting Secretary Clinton in making a decision as to which emails to delete.”
A week later, Politico will try to contact Samuelson and the Clinton campaign about Grassley’s questions but got no response. After that there will be no news reports indicating if Grassley ever gets a reply. Earlier in 2015, Samuelson moved from Washington to New York with plans to work in Clinton’s presidential campaign headquarters there. But she never started the job, due to the controversy over her role in sorting Clinton’s emails. (Politico, 11/23/2015)
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)
The State Department’s Office of Inspector General releases a report with the title “Evaluation of Email Records Management and Cybersecurity Requirements.” The 83-page report is the main headline at the New York Times, the Washington Post, and elsewhere, because it sheds new light on Clinton’s email scandal. The Post calls it “a highly critical analysis of Hillary Clinton’s email practices while running the department, concluding that Clinton failed to seek legal approval for her use of a private server and that agency staff members would not have given their blessing if it had been sought because of ‘security risks.’”
The report did not cover the classified content of some of Clinton’s emails due to the on-going FBI investigation and instead focuses mainly on record management issues for Clinton as well as the four previous secretaries of state. The office’s inquiry was initiated by a request from Secretary of State John Kerry in 2015, and was led by Inspector General Steve Linick, who was appointed by President Obama in 2013. The report reveals:
- There were “long-standing systemic weaknesses” in the State Department’s recordkeeping. Department officials were “slow to recognize and to manage effectively the legal requirements and cybersecurity risks” of widespread email use. This problem went “well beyond the tenure of any one secretary of state,” but most of the report focuses on Clinton’s tenure.
- Former secretary Colin Powell is singled out for violating department policy by using a personal email account while in office, as Clinton did. But the report notes that in the four years between the end of Powell’s tenure and the start of Clinton’s, the department’s warnings about the “obligation” to mainly use government email accounts for work matters had become more detailed and frequent.
- Dozens of department employees sometimes used personal email accounts for work matters. But only three were discovered who used such accounts exclusively: Clinton, Powell, and Scott Gration, who was US ambassador to Kenya in 2011 and 2012. Gration faced an internal rebuke for doing so and was forced to resign. Clinton was the only one to use a private server as well.
- Clinton “had an obligation to discuss using her personal email account to conduct official business” with security and records management officials, but investigators “found no evidence” that she had requested or received approval from anyone to conduct work matters mainly by personal emails. Furthermore, department officials “did not—and would not—approve her exclusive reliance on a personal email account to conduct Department business.”
- Similarly, Clinton had not sought permission to use a private email server, and would not have received it if she had.
- Clinton was required to demonstrate to security and records management officials that both her server and her mobile devices “met minimum information security requirements,” but she never did so.
- Clinton should have handed over copies of her work emails immediately upon stepping down in February 2013. Failure to do so violated department policies and the Federal Records Act. Instead, she provided only some work emails, and those only in December 2014, nearly two years later, after the Republican-led House Benghazi Committee began asking for some of her emails.
Clinton has claimed she effectively left copies of her emails with the State Department because she mainly emailed other department officials. However, the report says that was an inappropriate form of preservation. Additionally, four of her closest aides, whom she exchanged emails with most often, also made “extensive” use of personal email accounts, so none of those emails would have been preserved in State Department records just by being received by those aides.
- There was “some awareness” of Clinton’s email account among senior department officials. But there also appear to have been efforts to keep her use of a private server a secret. For instance, in 2010, when two department computer technicians raised concerns that her server might not properly preserve records, a higher official told them her setup had been reviewed by lawyers and warned them “never to speak of the Secretary’s personal email system again.” Furthermore, no evidence of such a legal review has been found.
- Clinton has claimed she exclusively used a private email account for “convenience.” However, this claim is belied by Clinton’s response to an email from Huma Abedin, Clinton’s deputy chief of staff, in November 2010. When Abedin prodded Clinton about “putting you on State email or releasing your email address to the department […] ,” Clinton replied that she would consider a |separate address or device, “but I don’t want any risk of the personal being accessible.”
- Clinton turned over 30,000 work-related emails in December 2014, while deleting another 31,000 emails she said were personal in nature. However, the report claims her email handover was “incomplete,” and there are gaps and missing emails. For instance, the above-mentioned November 2010 email was not handed over by Clinton but was found through other means.
- Several incidents were uncovered in which Clinton or some of her aides worried that Clinton’s private server had been hacked. For instance, a January 2011 email to a Clinton aide said Clinton’s server was shut down because “someone was trying to hack us.” It is unknown if the server actually was broken into at that time. However, Clinton and her aides failed to alert department computer security personnel to the hacking attempts, as required by department policy.
- Clinton, as well as nine of her former top aides, refused to be interviewed for the report. By contrast, the four previous secretaries of state, as well as current Secretary of State John Kerry, were interviewed.
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