There has been much chatter about Hillary Clinton relying on a private email account housed on a private server located in her primary residence throughout her tenure as Secretary of State. Some believe she broke the law while others are of the mind that she crossed some ethical line.
There is a fair amount of uncertainty in the law and in Clinton’s actions. The Federal Records Act maintains that government employees cannot destroy records. Strangely, Clinton’s email server has been completed erased just like how Lois Lerner’s IRS emails and records were lost. Although Clinton has selectively handed over thousands of emails and asked that they be made a part of the public record, she has readily admitted that not all emails were shared. There is the possibility that some emails that were not shared have been destroyed. The Freedom of Information Act grants public access to agency records. However, only emails that are in the possession of agencies are governed by this provision. The act does not put the burden on the government or on any individual agency to hunt down all possible emails related to a request for information at any given time. Again, the public will only be privy to the emails that Clinton has shared, which have admittedly been filtered. Although there is no specific law barring the use of a private email account, the National Archives and Records Administration (NARA) regulations do specify that public documents need to be readily available for review at any given time. The fact that the emails were on a private server would suggest that they were not easily accessible. And perhaps of most concern is the possibility that Clinton violated Section 1924 of Title 18, which is the law that governs classified information. This law is perhaps the one with the least uncertainty surrounding it. It makes it unequivocally illegal to store confidential information on an unauthorized server. It is not clear if the State Department had approved Clinton’s server. It is also not clear if Clinton ever sent classified information from the server.
On May 22, 2015, the State Department published 296 of Clinton’s emails that span 2011 and 2012 and relate to the Benghazi incident. The State Department ultimately plans on releasing all the emails that Clinton handed over to them. Note that the emails that she turned over to the department were ones that she personally selected and they were in paper format.
It is important to note that Clinton is not the first Secretary of State to rely on a personal email account. But, she may well have been the first in the era of email to rely on one exclusively. Ultimately, Clinton claimed the personal email and server was used out of convenience.
Possibly most damning is the fact that the server was cleared, and the fact that the server was registered to a pseudonym. It is unknown if the fake name was used for security reasons or for some other ulterior motive.
While it is not entirely obvious which laws Clinton may have violated, most agree that emails she sent and received while serving as Secretary of State should be considered government public records. Unfortunately, due to Clinton’s actions, the public record is presumed to be forever flawed. And we, the people, have lost the transparency that the laws are intended to protect. To add insult to injury, the consensus is that Clinton is unlikely to be prosecuted.