March 16, 2015, 12:24 p.m. EDT

Three transparency laws Hillary may have violated: Column

By: Dan Epstein

Six years ago today, then-Secretary of State Hillary Clinton sent a memo on the Freedom of Information Act to the entire Department of State. It stated that “Preserving the record of our deliberations, decisions, and actions will be at the foundation of our efforts to promote openness.”

So much for that. Today, we know that Clinton took extraordinary steps to prevent any record of her “deliberations, decisions, and actions.” During her entire tenure as Secretary of State, she exclusively utilized a private email account run through servers located at her home in Chappaqua, New York. This arrangement prevented the federal government from maintaining any record of her email communications — a slap in the face to anyone who cares about government transparency and an obvious example of hypocrisy given the memo Clinton sent to her staff in 2009.

Clinton has since attempted to address this crisis of transparency by selectively releasing the emails which she claims pertained to her work as Secretary of State. Of the 62,320 emails she has admitted to sending between 2009 and 2013, she has handed over 30,490 — in the form of 55,000 printed pages which may have been edited — to the Department of State. The remaining emails — nearly 32,000 — were apparently destroyed.

This raises obvious questions about whether the former first lady broke federal law. So far, she may have violated at least three laws.

First, she may have violated the Federal Records Act. Even in 2009, this law required Clinton to “ensure that Federal records sent or received” on her private email “are preserved in the appropriate agency record keeping system.” Clinton claims to have fulfilled this law by turning over 55,000 pages of emails to the Department of State, but the full truth cannot be known until and unless investigators are able to access her private email server. The penalties for violating the Federal Records Act include fines, jail time or disqualification from holding any office under the United States.

The second law Clinton may have violated is Section 1924 of Title 18 of the U.S. Code, which forbids federal employees from retaining classified information in an unauthorized manner — such as in a personal email. A 2009 Executive Order by President Barack Obama has a similar ban on such activity. Clinton has sought to address this problem by claiming that her emails never dealt with classified information, yet this is highly unlikely given her role as Secretary of State.

And finally, Clinton may have violated the Freedom of Information Act (FOIA). By utilizing a private email server beyond the control of the State Department, her email records will never be subject to FOIA requests — the most basic tool in keeping Washington transparent. In fact, Clinton may have used a private email server precisely to evade FOIA.

Given Clinton’s intransigence and unwillingness to give investigators access to her private email server, we cannot yet know with full certainty whether she broke these three laws. Fortunately, it is still possible for government watchdogs to obtain relevant records and information that shed light on this issue.

On March 9, Cause of Action — the legal advocacy group for which I am executive director — sent three unique Freedom of Information Act requests to the Department of State, the Department of State Inspector General and the National Archives and Records Administration. Our FOIA requests seek records that may contain answers to five specific questions:

  1. Why did the State Department allow Clinton to use personal devices for official agency business in the first place?
  2. Did Clinton attend training on the proper preservation of records?
  3. Once Clinton’s use of a private email account was discovered, did the federal government seek to preserve the records in her possession?
  4. Was Clinton ever investigated by the inspector general or another federal agency for her email practices?
  5. And did the National Archives and Records Administration know about Secretary Clinton’s emails? If so, why did they not inform Congress, as required by federal law?

The public deserves answers to these important questions — they will give us a more accurate picture of the actions surrounding Hillary Clinton’s use of a private email account. We may not have the answers now, but one thing is still certain: she did not fulfill her own promise as Secretary of State to preserve “the record of our deliberations, decisions, and actions.” Then again, she may never have received that memo in the first place — it might have gone to her non-existent .gov account.

Dan Epstein is the executive director of Cause of Action.