Let’s start with her opening sentences of the press conference: “First, when I got to work as secretary of state, I opted for convenience to use my personal email account, which was allowed by the State Department….”
This statement, right off the bat, gives a false impression, through two key words that are used and one that is missing. Her use of “opted” (which, incidentally, was readily accepted by her first questioner) strongly implies that she actually had a choice under the Federal Records Act; she did not. And the word “allowed” likewise connotes that what she did was permissible as a matter of law. It was not. It obviously was “allowed by the State Department” in one sense because it did proceed to happen; no one tackled her in the hallway before she could do it. But that does not mean that it was properly allowed, which is what she repeatedly implies. The missing word, of course, is “exclusively.” Officials were not absolutely barred from ever using their personal email accounts. But again, that is a far cry from what this answer falsely implies—that the law and regulations, either back then or now, allow the use of a personal email account exclusively. She never should have been using a personal account exclusively for her email correspondence. That’s the key ingredient that made her email setup contrary to policy, practice and law.
Let’s take, as another example, her claim that what she did was in compliance with law because “the federal guidelines are clear.” OK, please now tell us, Secretary Clinton, exactly which “federal guideline” (even one will do, notwithstanding your claim of plurality) makes it “clear” that you can unilaterally decide, dispositively and with such finality, which of your work-related records are “personal” and which ones are not, even with FOIA requests pending? Years ago, I worked on a case in which a presidential appointee—who shall remain nameless though not blameless—after becoming caught up in an especially controversial matter, intransigently declared that all of the records on a credenza behind his desk were “personal” and thus were beyond the reach of the FOIA (and that of the agency FOIA officer, whom he physically prevented from going back there). This official was severely castigated by a federal judge after it was found that he was, in no small part, quite mistaken about both things; the judge’s opinion was so pointed that we used the case regularly in our FOIA training programs. So yes, Secretary Clinton’s suggestion that federal officials can unilaterally determine which of their records are “personal” and which are “official,” even in the face of a FOIA request, is laughable.
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