A simple point, echoed elsewhere in print this afternoon: A public servant can’t have the final say on which of her e-mails is work-related and which is “personal.” There has to be a way to check her work if necessary. Your must-read of the day comes from Dan Metcalfe, who led the DOJ’s FOIA compliance department for 25 years and who calls Hillary’s defense to her e-mail concealment “laughable” and “unprecedented” in the lengths to which she went to put her correspondence beyond the feds’ reach.
Says Metcalfe, I “weathered many a Clinton records scandal during the 1990s—about two dozen, all told, including two that amazingly have still never become public.” Hmmmm.
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.
It is not at all uncommon for the average federal employee on a day-to-day basis to bear the responsibility of “separating the wheat from the chaff” under the Federal Records Act, as well as when that employee departs from federal service. Even relatively high-level employees such as myself (as an ES-5 in the Senior Executive Service) often are able, as a practical matter, to determine such things, just as I did when I retired from the Justice Department eight years ago. But I certainly could not have taken with me the sole copy of any agency-generated document, nor could I have properly stymied any pending FOIA request—not even for a record in my office that I was convinced was 100 percent “personal.” In fact, at Justice we created a formal process to govern things that departing officials sought to “remove.”
What’s unprecedented, he explains, is her use of a private server to ensure that she had total control over the disposition of all e-mails. Lesser criminals would have tried to avoid accountability by using Gmail, not realizing that Google could retrieve even “deleted” messages from the cloud when compelled by subpoena. Hillary, anticipating a presidential run in 2016, knew she couldn’t take that chance so she resorted to an in-house system despite the enormous security risks it posed. The only way to stop State or DOJ auditors from sifting through her “personal” e-mails in response to a subpoena or FOIA request and deciding independently whether they were truly personal was to route them — and then delete them — through her own personal server. That’s where Boehner comes in: Maybe the “deleted” e-mails are still somewhere on the server, recoverable by experts just as deleted Gmail is recoverable by Google. And if so, says law prof Ronald Rotunda, if it turns out that so much as a single message that rightly should have been produced in response to a subpoena has been “deleted,” Hillary’s guilty of anticipatory obstruction of justice. Punishment: Disbarment for attorneys and/or up to 20 years in prison. For normal people, I mean; no member of America’s royal ruling class as prominent as a Clinton will ever face charges.
In fact, as a perverse punchline to all of the above, after dismantling her defense on the e-mails and all but calling her corrupt, Metcalfe makes a point of saying that he’ll vote for her if she’s the Democratic nominee. Consider that today’s harbinger of American decline circa 2015.
Exit question: Will Boehner move to subpoena Hillary’s server via a floor vote of the entire House when she inevitably refuses to turn it over? Or would the ensuing court battle be too much of a distraction from Congress’s important work of passing nothing and rubber-stamping Obama’s power grabs?