In a new report about the FBI's investigation into the security of the private server Hillary Clinton used as secretary of state, Politico briefly mentioned the fact that the Department of Justice confirmed in a legal brief that Clinton had the authority to review and delete her personal emails. But Politico incorrectly went on to claim that the brief “stopp[ed] short” of confirming the appropriateness of such actions after Clinton left the State Department -- a claim contradicted by the brief itself.
The Department Of Justice Has Confirmed That Clinton Acted Appropriately When She Deleted Personal Emails
Clinton Explained That “After [She] Left Office,” She Went Through Her Emails At The Request Of The State Department. As Clinton first explained during a March 10, 2015 press conference, after the State Department asked former secretaries of state to provide “copies of work-related emails from our personal accounts,” Clinton and her attorneys reviewed her emails. After the work-related emails were located and delivered to State, the personal correspondence was deleted. From Clinton's remarks:
[A]fter I left office, the State Department asked former secretaries of state for our assistance in providing copies of work- related emails from our personal accounts. I responded right away and provided all my emails that could possibly be work-related, which totalled roughly 55,000 printed pages, even though I knew that the State Department already had the vast majority of them. We went through a thorough process to identify all of my work- related emails and deliver them to the State Department. At the end, I chose not to keep my private personal emails -- emails about planning Chelsea's wedding or my mother's funeral arrangements, condolence notes to friends as well as yoga routines, family vacations, the other things you typically find in inboxes.
No one wants their personal emails made public, and I think most people understand that and respect that privacy. [Transcript of Hillary Clinton's press conference, 3/10/15, via Time.com]
In A Legal Brief Filed On September 9, 2015, DOJ Confirmed That Clinton “Had Authority” To Conduct Such A Review And Delete Personal Emails. In a Freedom of Information Act (FOIA) case currently being litigated, the Department of Justice objected to the unjustified breadth of a conservative advocacy group's request for the preservation of records connected to the former secretary. As reported by the Associated Press, the “filing puts the Justice Department's approval on Clinton's claim” that she “had the right under government rules to decide which emails were private and to delete them” :
Former Secretary of State Hillary Rodham Clinton had the right to delete personal emails from her private server, the Justice Department told a federal court.
Lawyers for the government made the assertion in a filing this week with the U.S. District Court in Washington, part of a public records lawsuit filed by Judicial Watch, a conservative watchdog group that seeks access to Clinton's emails.
She has said that she sent and received about 60,000 emails during her four years in the Obama administration, about half of which were personal and deleted. The others were turned over to the State Department.
The FBI has been investigating the security of Clinton's email setup, which she said she used as a matter of convenience. She has since acknowledged that her use of a private email server to conduct government business was a mistake and apologized this week.
Clinton asserts that she had the right under government rules to decide which emails were private and to delete them. This week's filing puts the Justice Department's approval on Clinton's claim.
“There is no question that former Secretary Clinton had authority to delete personal emails without agency supervision -- she appropriately could have done so even if she were working on a government server,” attorneys from the Justice Department's civil division wrote. [Associated Press, 9/12/15, via Media Matters]
Politico Now Claims That The Justice Department “Stopp[ed] Short” Of Legitimizing Her Actions As A “Former Government Employee”
Politico: The Department Of Justice Only “Backed Clinton - To A Point.” A September 23 article in Politico about the current FBI investigation into the security of Clinton's private server claimed that the DOJ's legal brief made a distinction about Clinton's authority to review and delete emails as a former employee:
At a hearing earlier this month in another case, U.S. District Court Judge Reggie Walton seemed uncomfortable with the idea that Clinton and her attorneys had the final call in determining that over 31,000 emails from her private account were purely personal.
“We're not sure exactly what type of evaluation was made of that 31,000 messages,” the judge said.
Clinton's lawyers have argued that government employees generally have the right to determine whether emails or other records are personal and delete them. The Justice Department backed Clinton -- to a point -- in a recent legal brief, while stopping short of saying that a former government employee such as Clinton has the right to independently make such a determination nearly two years after leaving the government. [Politico, 9/23/15]
But The Entire Brief Represents An Evaluation Of Clinton's Actions -- Including The Deletion Of Emails -- Taken When She Was A “Former Government Employee”
The Department Of Justice Brief Is An Examination Of Clinton's Actions After, Not While, She Was Secretary Of State. The legal brief is an evaluation of actions taken by Clinton between November 2014 and August 2015, a time period during which Clinton was a former government employee and the State Department requested copies of her work emails (emphasis added):
As the attached documents demonstrate, former Secretary Clinton directed her attorneys to identify all documents that were work-related and potentially work-related and to provide those documents to the Department. The Department has received approximately 55,000 pages of emails from former Secretary Clinton, and has also received federal records from several other former employees who at times used non-state.gov accounts. To date the following actions and/or steps have been taken to preserve all of these documents:
a. In November 2014, the Department sent a letter to former secretaries of state, including former Secretary Clinton, requesting that if former Secretaries or their representatives were “aware or [were to] become aware in the future of a federal record, such as an email sent or received on a personal email account while serving as Secretary of State, that a copy of this record be made available to the Department. . . if there is reason to believe that it may not otherwise be preserved in the Department's recordkeeping system.” (attached as Ex. 5).
b. In December 2014, former Secretary Clinton's representative responded to the above-referenced letter and provided to the Department paper copies of approximately 30,000 e-mails, comprising approximately 55,000 pages. (attached as Ex. 6).
c. In Judicial Watch v. State, Civ. Action No. 15-688 (RC), Counsel for the Department of Justice, referring to the documents provided to the Department by former Secretary Clinton stated on the record that “the government will preserve every record in its possession that relates to this and all other requests.” Transcript of July 9, 2015 Status Conference at 15-16 (attached as Ex. 7).
d. On August 8, 2015, former Secretary Clinton declared under penalty of perjury, “I have directed that all my e-mails 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.” See Declaration of Hillary Rodham Clinton dated August 8, 2015. (attached as Ex. 8). [Defendant's Objection to Plaintiff's Proposed Preservation Order, 9/9/15]
During This Time Period, The Department Of Justice Brief Unequivocally States: “There Is No Question That Former Secretary Clinton Had Authority” To Delete Emails. As confirmed by the Department of Justice, the independent review of emails and deletion of personal messages Clinton undertook as a former government employee after November 2014 was appropriate “without agency supervision” and would have been so “even if she were working on a government server” (emphasis added):
There is no question that former Secretary Clinton had authority to delete personal emails without agency supervision - she appropriately could have done so even if she were working on a government server. Under policies issue both by the National Archives and Records Administration ( “NARA” ) and the State Department, individual officers and employees are permitted and expected to exercise judgment to determine what constitutes a federal record. See NARA Bulletin 2014-06 ¶4 (Sept. 15, 2014) ( “Currently, in many agencies, employees manage their own email accounts and apply their own understanding of Federal records management. This means that all employees are required toreview each message, identify its value, and either delete it or move it to a recordkeeping system.” ); 3 Department of State Foreign Affairs Manual, 5 FAM 443.2(b) ("[t]he intention of this guidance is not to require the preservation of every E-mail message.") (attached as Ex. 1)
Second, because personal records are not subject to FOIA, and State Department employees may delete messages they deem in their own discretion to be personal, Plaintiff's preservation argument reduces to an unsupported allegation that former Secretary Clinton might have mistakenly or intentionally deleted responsive agency records rather than personal records. But Plaintiff offers no support for such a theory, and government agencies are not required to take steps to recover deleted material based on unfounded speculation that responsive information had been deleted. Indeed, in the absence of information to believe that information was in deleted in bad faith after a FOIA request was received, an agency is under no requirement to take steps to recover removed or deleted information. McGehee v. CIA, 697 F.2d 1095, 1103 n. 33 (D.C.Cir.1983); accord Chambers, supra.
Here, there is no reasonable basis to believe that any agency records responsive to this request were deleted, let alone in bad faith, and Plaintiff has cited none. The evidence, if anything, demonstrates that the former Secretary's production was over-inclusive, not under-inclusive. [Defendant's Objection to Plaintiff's Proposed Preservation Order, 9/9/15]