By now, everyone’s heard the news that during her time as Secretary of State, Hillary Clinton conducted all business through a personal email account. Whether that’ll hurt her in the upcoming election she hasn’t announced she’s running in is for others to decide. The question is: did she break the law or just the rules?
Although The New York Times broke the news of the email issue late Monday night, writers have been skirting the issue of whether or not Clinton broke any laws when she used her social media account. Headlines state she may have “possibly” broken rules or that she “may have violated federal requirements,” but no one will go as far as to say that laws were officially broken.
Basically because no one seems to know for sure. If Clinton were serving as Secretary today she would certainly be in violation of the law President Obama signed in 2014, modernizing the Federal Records Act (which hadn’t been changed since it was passed in 1950). But before this law, most agree that the definition of what records were (and whether they extended to emails) was murky at best. That said, it didn’t stop White House Press Secretary Jay Carney from stating that all employees were to use government email accounts. As ABC News Reports:
REPORTER: What is the U.S. government’s policy towards personnel having private Gmail accounts?
CARNEY: Well, the U.S. government policy — certainly, the administration policy that is effective here is that we — all of our work is conducted on work email accounts; that’s part of the Presidential Records Act. So the issue in terms of, as I mentioned, our work accounts, we have no evidence to suggest that any of those accounts were accessed or compromised.
Clinton’s representatives have, of course, noting that she followed both the “letter and the spirit” of the State Department rules on personal emails. Any email she sent to officials or staff with a .gov email would be retained, but that doesn’t address what became of the emails sent to those outside the domain.
Other officials have noted that it was something of an open secret in Washington, especially after Clinton’s emails were hacked in 2013 after she left the State Department. Additionally, Hunter Walker of Business Insider has multiple sources who say there are other legitimate reasons Clinton might use a personal account aside from some sort of malicious practice:
The two former officials said efficiency was one reason Clinton set up her own address. At the time, State Department policy would not have allowed her to have multiple email addresses on her Blackberry. Because of this, the officials said, she opted to have one address for both personal and governmental communications. They echoed Merrill’s statement and said Clinton took care to correspond with other State officials exclusively on their governmental addresses. The officials said this meant all of her emails and those sent to her were immediately preserved on government servers.
According to the two officials, regulations discouraged the use of personal email but did not prohibit it.
…Indeed, Clinton is not the first secretary of state to use personal email. Former Secretary of State Colin Powell used a private address while he held the job from 2001 until 2005. Harf, the State Department spokeswoman, said Clinton’s successor, John Kerry, was “the first Secretary of State to rely primarily on a state.gov email account.”
Whether or not that’s a good enough reason is left up to the reader, but it’s fair to say that Clinton’s practices do represent an ambiguous choice: at worst she intentionally sought out a gray area of the law and at best Clinton could be read as consistently failing to make her digital presence part of the record.
The Obama administration had made itself clear that federal employees should be backing up their emails, right down to a memo issued while Clinton was still serving. Any similar email snafus in the past have been part of a larger scandal, which clearly Clinton’s doesn’t quite measure up to. However, many argue that means Clinton should’ve known better, and as Max Fisher writes for Vox, Clinton’s “refusal” to use a government address in early 2009 when she took office is even more shocking given the context of the Bush administration’s email gaffes:
The scandal began in June 2007, as part of a Congressional oversight committee investigation into allegations that the White House had fired US Attorneys for political reasons. The oversight committee asked for Bush administration officials to turn over relevant emails, but it turned out the administration had conducted millions of emails’ worth of business on private email addresses, the archives of which had been deleted.
…That scandal unfolded well into the final year of Bush’s presidency, then overlapped with another email secrecy scandal, over official emails that got improperly logged and then deleted, which itself dragged well into Obama’s first year in office. There is simply no way that, when Clinton decided to use her personal email address as Secretary of State, she was unaware of the national scandal that Bush officials had created by doing the same.
That she decided to use her personal address anyway showed a stunning disregard for governmental transparency requirements. Indeed, Clinton did not even bother with the empty gesture of using her official address for more formal business, as Bush officials did.
For now, we’re left speculating to exactly what extent Clinton didn’t abide by State Department protocol, and some are likely to be more lenient than others. So far nothing from her camp has allayed worries that her emails could be more selectively archived than others’.