By Kevin R. Kosar Recent press revelations indicate that Hillary Rodham Clinton likely violated federal law by conducting State Department business via a personal email account. Both Congress and the State Department Inspector General's Office should commence investigations.
The Washington Post shows this was no accidental goof. Clinton, or a member of her team, set up a private domain email account during her confirmation proceedings to become secretary of state. The New York Times reports that she never once used an official State Department account during her four years in the post. This is unacceptable.
Congress enacted the Federal Records Act in 1950. The objective was straightforward: to preserve records of government action for posterity and for public examination. In short, agencies preserve records of historical value, then transfer them to the National Archives and Records Administration, which makes them available to the public.
NARA has issued exacting guidance directing agencies how to discern records from non-records, including how to preserve the former and dispense with the latter. By law, responsibility starts at the top:
“The head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.”
In the case of the State Department, that agency head was Clinton.
Nowhere in NARA’s email preservation guidance does it provide for any government employee, to say nothing of a cabinet head, to use a private email account and walk off with her work missives after leaving the position. On the contrary, all federal employees are obliged to: “review each message, identify its value, and either delete it or move it to a recordkeeping system." While the guidance allows for incidental messages like spam and all-staff announcements to be deleted immediately, it makes clear that any "substantive policy discussions conducted in email" ought to be preserved for several years and ultimately transfer to NARA.
The law rightly provides for harsh penalties for removing federal records. Anyone who intentionally "conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing" covered under the law faces both fines and up to three years in prison.
The affair invokes another possible legal peril in the potential mishandling of classified information. Assorted federal laws and regulations govern how national security information is to be handled and protected. It is inconceivable that none of the tens of thousands of emails sent and received by Clinton transmitted classified information. The behavior detailed in press accounts is at odds with extensive regulations on how classified information must be safeguarded by government officials. Mishandling of classified information also carries serious penalties.
Clinton titled one of her books Living History. Both the State Department Inspector General's Office, and Congress itself, should investigate to see if she compromised history by violating our nation’s records laws.
Kevin R. Kosar is the director of the governance project and a senior fellow at the R Street Institute, a free-market think tank in Washington, D.C. The 114th: CQ Roll Call's Guide to the New Congress Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.