FactCheck: More spin on Clinton emails
Hillary Clinton directly addressed questions in recent interviews about her exclusive use of a personal email account and server to conduct government business as secretary of state. But her answers only reveal part of the story:
The Democratic front-runner for her party's presidential nomination addressed the email controversy in interviews on Sept. 4 with MSNBC's Andrea Mitchell and again on Sept. 7 with the Associated Press. The subject has been dogging Clinton ever since the New York Times reported on March 2 that she exclusively used a personal email account and computer server to conduct official government business. The article also reported that, at the State Department's request, Clinton on Dec. 5, 2014, gave the department just over 30,000 printed copies of work-related emails.
Clinton previously addressed the email issue in her first national interview with CNN in early July, but a lot has happened since then. The inspector general of the intelligence community said her emails contained classified information and made a "security referral" to the Justice Department in late July. Clinton directed her campaign in mid-August to turn over her computer server to the FBI, which is now investigating.
Mitchell told MSNBC colleague Rachel Maddow that she believes she got the interview because the campaign needs to "reset" on the issue. "The campaign needed to do a serious interview on the subject," Mitchell said.
'Allowed by State Department'
Let's look at some of the statements that Clinton made in her interviews, beginning with whether her unusual email arrangement was "allowed by the State Department."
Clinton, Sept. 4: I know why the American people have questions about it. And I want to make sure I answer those questions, starting with the fact that my personal email use was fully above board. It was allowed by the State Department, as they have confirmed.
Clinton Sept. 7: I understand why people have questions and I'm trying to answer as many of those in as many different settings as I can. What I did was allowed by the State Department. It was fully above board.
The campaign cites a rule issued by the National Archives and Records Administration in October 2009 — eight months after Clinton became secretary of state — that said federal agencies may allow the use of personal emails under certain circumstances.
National Archives, Oct. 2, 2009: 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.
At a March 3 press briefing, State Department spokeswoman Marie Harf also cited the 2009 NARA rule in saying Clinton apparently complied with the rules.
"As I said, there's no prohibition on using this kind of email account as long as it's preserved," Harf said. "She has taken steps to preserve those records by providing the State Department with the 55,000 pages, so – I'm not a NARA expert, but certainly, it sounds to me like that has been completed."
Harf is admittedly no NARA expert, but Jason R. Baron is.
Baron, a lawyer at Drinker Biddle and a former director of litigation at the National Archives, told the Senate Judiciary Committee in May that "any employee's decision to conduct all e-mail correspondence through a private e-mail 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."
Also, as we have written, Clinton should have turned over her emails before she left office, but she didn't.
NARA regulations require federal agencies to maintain an NARA-approved schedule for the disposition of federal records. The State Department Records Disposition Schedule says "incoming and outgoing correspondence and memorandums on substantive U.S. foreign policy issues" should be permanently retained "at the end of the Secretary's tenure or sooner if necessary."
Clinton left office Feb. 1, 2013. She did not turn over her emails to the State Department until Dec. 5, 2014, and only after the department in October of that year requested the emails in part to respond to the congressional requests for documents related to the Benghazi attacks on Sept. 11, 2012.
The Clinton campaign has said that she complied with NARA regulations because "more than 90% of those emails should have already been captured in the State Department's email system before she provided them with paper copies."
But that assumes that the people receiving an email from Clinton properly preserved the record. Baron, the former director of litigation at NARA, told us for a previous story that Clinton "basically offloaded her burden to others" to preserve her emails. He told us Clinton was out of compliance with the regulations the day she left office.
One last point: The Washington Post Fact Checker wrote that when she was secretary in June 2011 "a cable went out under her signature warning employees to 'avoid conducting official Department business from your personal e-mail accounts.' "
The Clinton campaign noted that that cable was sent after Google disclosed that the Gmail accounts of some government employees were being targeted by hackers originating in China — a situation Clinton described at the time as "very serious." The cable did not say that the advice was limited to those with Gmail accounts. Asked if the campaign was suggesting that it applied only to Gmail users, Clinton spokesman Josh Schwerin said he was offering "important context" given that the department has said personal email use was permitted under certain circumstances.
Transparency and Clinton's Server
In her interview with Mitchell, Clinton took responsibility for her decision to use a private email account. She also took some credit for being "as transparent as I could" in handling the email controversy.
Clinton, Sept. 4: I take responsibility. I should've had two accounts — one for personal, one for work-related — and I've been as transparent as I could, asking all 55,000 pages be released to the public, turning over my server, looking for opportunities to testify before Congress. I've offered for nearly a year.
It's true that she asked the State Department to release her emails on March 5, but the request came three months after she gave the emails to the department and three days after the New York Times broke the story that she exclusively used a personal email system to conduct official business.
As for her server, Clinton initially rejected suggestions that she turn it over to an independent third-party. At a March 10 press conference, Clinton said all personal emails were deleted from her server, and she rejected the suggestion that she turn her server over to an "independent arbiter" to prove that she did not destroy any work-related emails.
Clinton, March 10: The server contains personal communications from my husband and me, and I believe I have met all of my responsibilities and the server will remain private, and I think that the State Department will be able, over time, to release all of the records that were provided.
Five months later, on Aug. 11, Clinton directed her legal team to turn over her email server and a thumb drive containing copies of her emails to the Justice Department. "Clinton has pledged to cooperate with the government's security inquiry," the campaign said.
The Justice Department review was triggered by I. Charles McCullough III, the inspector general of the intelligence community, who made a "security referral" to the department for "potential compromises of national security" after a small sampling of Clinton's emails found four that contained classified information. None of them had classification markings. Clinton has described the situation as a typical "disagreement among various parts of the government" over whether certain parts of her email correspondence material should or should not be made public.
The Clinton campaign told us there was no point in turning over the server earlier because there were no longer emails on it and the State Department had printed copies of all the work-related emails. The FBI security review is different, it said, because the review is a security issue. The campaign referred us to a Sept. 3 Bloomberg News story that said the FBI is examining the server for signs of security breaches.
There is a difference, but she cannot delete emails, refuse to allow her server to be examined by an independent third party, and then accurately claim she is being "as transparent as I could."
Clinton also told Mitchell and the Associated Press that her use of a personal email account was "fully above board," because everyone who received an email from her knew that she was using a personal account.
Clinton, Sept. 4: The people in the government knew that I was using a personal account … the people I was emailing to on the dot gov system certainly knew and they would respond to me on my personal email.
Clinton, Sept. 7: It was fully above board. Everybody in the government with whom I emailed knew that I was using a personal email, and I have said it would have been a better choice to have had two separate email accounts.
What she says is accurate, but incomplete. Those who exchanged emails with Clinton undoubtedly knew she had a personal account, but how many knew that she used it exclusively for government business? President Obama, for one, did not.
On March 7, CBS reporter Bill Plante asked Obama when he first learned "that Hillary Clinton used an email system outside the U.S. government." He replied, "The same time everybody else learned it through news reports."
Two days later, White House spokesman Josh Earnest expanded on the president's answer. He said of course he knew her email address. "But the president was not aware of the fact that this was a personal email server and that this was the email address that she was using exclusively for all her business," he said.
In minimizing her unusual email arrangement, Clinton glosses over the big difference between those who knew she had a personal email account and those who knew she was using it exclusively for government business. She has used variations on this theme — claiming, for example, that previous "secretaries of state" did the "same thing," but as we have written before only Colin Powell used personal email for official business and there's no evidence that he maintained a personal server.