Hillary Clinton’s Secret Email Scandal

Hillary Clinton’s Secret Email Scandal
4
fair to assume you are up to no good. I will defer to the lawyers with us today as to the
nature of the violations of law.
Think of the disruptions to Judicial Watch’s 20 or so cases in federal court. We have
gone to one court asking for another hearing and to a different court to reopen one of the
cases that had been shut down; and we are just one litigant. Think of all the litigations
the State Department is engaged in every year. Think of all the FOIA requests the
administration gets every year, all of which had been distorted and obstructed. Think of
the congressional requests for information and subpoenas that the State Department has
gotten over the years related to Mrs. Clinton’s emails and would have required a search
of those records.
In my view, there is signi
fi
cant criminal liability for Mrs. Clinton, if there were an honest
Justice Department. Congress is unwilling to enforce its powers to obtain these records
and overcome repeated Obama administration obstruction, as is most recently evidenced
by Hillary Clinton’s email scandal.
Now we see the president himself is taking steps to protect his emails from public
disclosure and from questions being asked about them. For 30 years, his Of
fi
ce of
Administration had operated as if it were under the Freedom of Information Act. Then
George Bush decided he didn’t like the questions he was getting about emails, so he
asked the court to rule they are no longer covered. The Obama administration continued
the Bush argument and was successful at the appellate court in getting that done.
Despite the ruling, the Of
fi
ce of Administration maintained regulations covering FOIAs
for another six years. A few days after President Obama disclosed he had communicated
with Mrs. Clinton on her secret email account, however, the Of
fi
ce of Administration
general counsel issued a directive tearing up the FOIA regulations that “may or may not
apply” to the Of
fi
ce of Administration.
Why is the Of
fi
ce of Administration important? Because that would be the agency under
the Freedom of Information Act you would be asking questions about in terms of how
White House emails were being maintained and organized. So the administration cut off
any possibility of questions being asked under a FOIA about the way President Obama
kept his emails.
We need to recognize this is a scandal not just about Mrs. Clinton. It is a scandal
about the State Department. It is a scandal about the Justice Department and about the
Obama White House. It is a scandal about the failures of Congress to conduct effective
oversight. It is also a scandal about the lack of interest by the media and by government
institutions charged with enforcing the law in making sure there is at least enough of
an element of accountability that a Secretary of State would not dare to do what Mrs.
Clinton has done.
With that background, I am going to turn the discussion over to our guests. We are
fortunate to have a former FOIA of
fi
cial with us today who has been in the Justice
Department for many years and is as in
fl
uential in setting up FOIA systems as anyone
living today. We are joined as well by a former prosecutor, an independent counsel,
someone who knows what it is like to ferret through arguments and maneuvering by the
We need to
recognize this
is a scandal not
just about Mrs.
Clinton. It is a
scandal about
the State
Department.
It is a scandal
about the
Justice
Department
and about the
Obama White
House.
Hillary Clinton’s Secret Email Scandal
5
prosecution and overcome obstructions. We also have our Judicial Watch counsel
with us, who is probably the number one FOIA litigator in the country.
First of all, however, I am pleased to
introduce you to Dan
Metcalfe, (
https://www.
wcl.american.edu/faculty/metcalfe), who will lead off. Dan joined the faculty of
American University’s Washington College of Law in 2007 as a faculty fellow in
law and government. Retired from a career in government service that began at
the Department of Justice more than 43 years ago, Dan now heads the Collaboration
on Government Secrecy for the AU law school; a non-partisan educational project
devoted to openness in government, freedom of information, government transparency,
and a study of government secrecy in the United States and internationally.
For more than 25 years, Dan served as founding director of the Justice Department’s
Of
fi
ce of Information and Privacy, where he guided all federal agencies on the
interpretation and government-wide administration of the Freedom of Information Act
and supervised the defense of more than 500 FOIA and Privacy Act lawsuits in district
and appellate courts.
Dan also served as an advisor for numerous other government agencies, including
DHS [Department of Homeland Security], the Of
fi
ce of Director of National
Intelligence, and the National Security Council. He testi
fi
ed on behalf of the
Collaboration on Government Secrecy before the House Committee on Oversight and
Government Reform and the Senate Judiciary Committee. We are fortunate to have
Dan share his expertise with us.
Also joining us is Joe diGenova (www.digenovatoensing.com) who is a founding
partner of the Washington, DC law
fi
rm of diGenova & Toensing, which represents
individuals, corporations and other entities before the federal courts, Congress, U.S.
cabinet departments and agencies on criminal and civil administrative investigative
matters. He and his wife, Victoria, who is an attorney in the
fi
rm, have done great
work — often
pro bono
— on behalf of government whistleblowers.
Joe possesses extensive experience, both as a litigator and investigator, having served as
a U.S. attorney for the District of Columbia, where he managed more than 400 federal
attorneys, and as an independent counsel in the Clinton passport
fi
le search matter.
In 1997, the U.S. House of Representatives named him special counsel on the
Independent Review Board for the International Brotherhood of Teamsters; and 10
years later, he was retained by the state of New York to investigate then Governor
Eliot Spitzer in the “Troopergate” matter. Joe also has extensive experience on
Capitol Hill, having served as chief counsel and staff director of the Senate Rules
Committee and Counsel to the Senate Judiciary, Governmental Affairs and Select
Intelligence Committees. We are fortunate to have Joe’s expertise in matters of
investigations and prosecutions and in issues of government corruption.
Paul Orfanedes (http://www.judicialwatch.org/about/board-of-directors/) heads
Judicial Watch’s litigation department and has been with Judicial Watch since its
inception. Paul is a distinguished civil litigator and has argued in front of the Supreme
Court and in multiple federal appeals courts on behalf of Judicial Watch and its clients.
Hillary Clinton’s Secret Email Scandal
6
As a director of litigation, he has been an effective spokesman for Judicial Watch as
well, with his legal commentary appearing in major media and print publications, and
he is responsible for managing Judicial Watch’s legal department.
Paul is a member of the board of directors of Judicial Watch, and without his legal
expertise, Judicial Watch would not have the successes we have today. Paul graduated
from the University of Illinois at Urbana Champaign in 1986 and received his J.D.
from American University in 1990.
Daniel Metcalfe
© JUDICIAL WATCH
Introductory Comments by Panelists
Daniel Metcalfe.
Thank you, Tom. I should say three things preliminarily. The
fi
rst is
that I became involved in analyzing this current fact pattern with respect to Secretary
Clinton at the request of some journalists who had participated in my academic
programs over the years.
The second is that the expertise I have is under the Freedom of Information Act. I
know a good deal about the Federal Records Act, but I don’t claim to have any
expertise whatsoever with respect to criminal law and whether something is a violation
of law or illegal in the way that the average person on the street thinks of those words.
So when I talk about something being unlawful or in violation of law, I am speaking
about civil statutes, not criminal statutes, for which there could be a criminal sanction.
I will defer to former U.S. Attorney diGenova with respect to that aspect of the law.
My third initial comment is that I am going to base my remarks heavily – if not
exclusively — on what has been admitted either by Secretary Clinton publicly at a
press conference on March 10th or on her behalf by her counsel and her of
fi
ce and
statements that have been issued.
There are at least four time junctures involved here: one, when she began in 2009 as
Secretary of State; two, when she departed four years later in
2013; and three, when she did whatever she did in 2014 in
response to the request that came from the State Department.
Four is currently what she is saying, or not saying, at her
press conferences and in any other remarks that are made on
her behalf.
At the outset, in January 2009, she would have had, as a
new secretary of a cabinet agency a brie
fi
ng with the top
administrative people at her agency. Very likely, although
I don’t know this for certain, she would have met with the
Undersecretary for Management at the State Department and
perhaps others. They would have covered the basic “do’s
and don’ts”, the “ins and outs” of administrative things like
federal ethics standards, the requirements of the Federal
Records Act, the Freedom of Information Act, the Privacy
Act, procurement matters, and things like that.
Hillary Clinton’s Secret Email Scandal
7
Evidently, out of that meeting or series of communications, she began to use a personal
email account exclusively for all of her of
fi
cial business. Doing so, I must say, is
atypical, because the rule under the Federal Records Act and the longstanding practice
under the statute and the National Archives and Records Administration implementing
policies and practices is that it is not absolutely prohibited to use a personal email
account in the conduct of of
fi
cial business.
If you are a busy Secretary of State and you are responding to crises around the
world in the middle of the night and you reach for a device, and it is a personal email
account, no one is going to tell you, “Stop; you can’t address the problems of the world
and represent the United States, because you’re holding the wrong piece of equipment
in your hand.”
Further, the National Archives and Records Administration recognizes that the
Federal Records Act, as a practical matter, allows for occasional use of a personal
email account under exceptional circumstances. When that is done on an exceptional
business, then, the staff assistant, or whoever is designated with that responsibility,
is to transmit the communication in the form of electronic mail into the State
Department’s record keeping system, where it would have been located otherwise.
However, Secretary Clinton says quite clearly that she did not begin to use or ever use
an of
fi
cial State Department email account. She used only the personal email account.
Moreover, during her tenure, she never took the additional step required, as near as I
can tell from the public record, with respect to any of her communications.
Also relevant is that rather than have her personal email account handled through an
Internet service provider, such as Google or Yahoo, she made use instead of a private
server at her home. What that means is during the four years of her tenure, all of her
of
fi
cial communications were outside of the of
fi
cial channels of the State Department,
at least at her end as the sender and recipient, and resided purely under her personal
control or ownership.
When government of
fi
cials leave, especially high-level ones, it is commonplace to
have special attention paid to them, particularly for purposes of records management
and archival activities. I had it, even when I left as a mere career appointee at the ES-5
level. This is done so that a proper delineation is made between what is personal and
what is of
fi
cial and within the of
fi
cial category, what is a record and what is a non-
record. Some records will need to be preserved for posterity through the archives, and
some will not. Apparently that did not take place with regard to Secretary Clinton’s
communications and
fi
les.
Then, in 2014, according to Secretary Clinton and statements that have been made on
her behalf, she responded to a special request by the State Department. While what
actually happened is a bit fuzzy, she evidently undertook the step of dealing with the
emails that were on her personal server. I am going to use round numbers here.
I believe she says there were roughly 60,000 emails — not to be confused with pages;
that’s a different means of measurement. So there were reportedly somewhere between
60,000 and 62,000 emails, with approximately some 31,000 or so deemed by her to
Hillary Clinton’s Secret Email Scandal
8
be personal in nature. She then supposedly took action with respect to what was on
the of
fi
cial side of her delimitation, and that amounted to some 55,000 pages from the
roughly 31,000 or so emails.
She produced them not in an electronic form with any metadata that might enable
ef
fi
cient searching for FOIA purposes, but instead sent them in paper form to the
State Department, with the rest being destroyed, as she said during her March 10th
press conference. Now the question becomes were they were really deleted or were
they completely destroyed. She has apparently said, or someone has said to a House
committee or subcommittee on her behalf, that the emails deemed personal were
“deleted in their entirety.”
What this amounts to is a
fl
outing, if not an outright violation, of the Federal Records
Act, because the Federal Records Act basically says to all agencies and all federal
agency employees, “You have an obligation to take some steps to preserve things for
posterity; and you cannot preserve something that doesn’t exist to begin with.” So the
fi
rst obligation under the Federal Records Act is to memorialize agency action.
Today, electronic mail is itself the vehicle of agency action. It is not just
memorialization; it is one step removed; it is how business is done. Secretary Clinton
did not just use her personal email for of
fi
cial business on an exceptional basis; she
had no of
fi
cial account at all, which is utterly contrary to the Federal Records Act.
Reportedly, until this surfaced, there had been no contact regarding Secretary
Clinton’s emails between the State Department and the National Archives under
which responsibility for the Federal Records Act falls. I have learned, though, that the
National Archives has since sent a formal request to the State Department for a report
on “how this all happened.” I don’t believe there has yet been a response.
Now we come to the Freedom of Information Act. As you know, requests can be made
to the State Department under the Freedom of Information Act for emails to and from
Senator Clinton
From what I gather, there has been a resounding silence with respect to those requests
because they haven’t existed in her of
fi
ce or on her of
fi
cial computer. The most that
might exist is if Mrs. Clinton had sent an email to someone else in the Department and
it is on the recipient’s computer; but as a practical matter, that would not be a search
viable under the Freedom of Information Act. So that is why I believe she is in blatant
violation of the Freedom of Information Act.
I suppose the other ingredient that I should add on top of that is that I know enough to
know that Secretary Clinton has indeed knowledge of how the Freedom of Information
Act works. I have worked with folks in the White House, including brie
fl
y, Cheryl
Mills, on related matters. There is no doubt in my mind, based upon my
fi
rst-hand
experience, that she knew full well exactly how it all worked and what she was doing.
I am going to suggest to you that for a moment, you imagine that every of
fi
cial email
Secretary Clinton either sent or received during her tenure, including attachments,
were piles of paper on this desk. Let us assume there are at least eight piles on this
What this
amounts to is
a
fl
outing, if
not an outright
violation, of
the Federal
Records Act ...
Hillary Clinton’s Secret Email Scandal
9
desk. The
fi
rst would be the outgoing emails she sent to
people in the State Department. They would exist at the
State Department at the recipient level, so to speak, and as
such, would be subject to FOIA requests that could never
be adequately searched for, given the practicalities of
trying to
fi
gure out what’s what in that respect.
The next pile would be communications from other people
in the Department, so, in other words, State Department
people, piles one and two. The third pile would be people
who are federal employees but not at State. She was a
little bit fast and loose on that at her press conference.
She had it kind of both ways, but she did ultimately
acknowledge there were other federal employees at other
federal agencies — say the Department of Defense — who
were at least recipients, if not senders to her. So that’s
piles three and four — sender, recipient, federal, non-State.
Then, the next set of piles would be emails to and from
people who exchanged correspondence with her who
were not feds: State employees, U.N. employees, other
people, whatever that would mean. When she had
We cannot have
our government
systematically
attacking and
trying to repress
points of view
it doesn’t agree
with.
Hillary Clinton
her press conference, she placed emphasis on the fact that the vast majority of her
correspondents were within the State Department. Well, what about the vast minority?
Those are piles
fi
ve and six.
Then I am going to suggest that piles seven and eight are what she has determined
to be personal,what she sent, and what she received. I don’t think anyone doubts or
quarrels with the fact that there can be some things that are properly in that category.
It is unfortunate that it was on a personal email account that also handled of
fi
cial
business, but that is entirely legitimate. There is nothing, per se, suspicious or bad
about that, although one could say that if 50 percent of her emails were personal, the
communications actually probably took up much less of her time: a quick note to a
friend, a hair appointment, etc. How it got to be 50/50 in her case would provide some
basis for suspicion right there.
Then, there is the possibility of what I call the mysterious ninth pile. I will leave you
with this thought: what would the ninth pile be? What I’m about to tell you, I don’t
know
fi
rsthand. I only know what I have read online, and it is this: it has been reported
that her three top aides, especially two of the three — one of them was Cheryl Mills —
used either her personal account or their own personal accounts at the State Department
— where they communicated with one another. I would suggest that that is a distinct,
potential pile that ought to be a matter of distinct focus and concern in this case.
Let me say this by way of a concluding statement. I have no axe to grind with respect
to Hillary Clinton. I am a registered Democrat, and a self-described liberal. I don’t
even use the word “progressive.” I have amazed some people by saying, if she is a
Democratic nominee next year, I am going to vote for her. I am not going to vote for
the Republican — apologies to those who are present on that. I am just calling it as I
AP
Hillary Clinton’s Secret Email Scandal
10
see it under the law.
Tom Fitton.
Thank you, Dan. It is good that you are retired, because I am sure the
Justice Department would be unhappy with your analysis, if you were an employee.
Dan Metcalfe.
Well, I was somewhat constrained in the past, but you would be
surprised at how candid I was even before I retired.
Tom Fitton.
I have a feeling that is probably true. Thank you. Joe diGenova is, as I
said in my introduction, a force to be reckoned with on these areas of law and scandal
in the sense of how institutions in Washington respond to evident violations of law by
high-level government of
fi
cials and the trouble involved in holding those of
fi
cials to
account. His experience is hard to match in that area.
Joseph diGenova.
Thank you, Tom. One hardly knows where to begin in this matter.
The vast array of targets for legitimate inquiry is truly astounding. After 30 years
of increasing accountability, transparency, and openness, this incident involving the
Secretary of State’s email has stopped the clock on accountability. This is the end
of the road for all the people out there who care about getting information from their
government.
As someone who has investigated organized crime, espionage, insider trading, and a
host of corrupt activities and conducted congressional investigations of the Teamsters
and other organizations, the basic facts in this case cry out for a formal investigation
under the law, not just by Congress, but also by the Department of Justice. Let us take
a look at what Dan just said.
What you have here is a brazen decision to prevent the disclosure of public
information to the press, the Congress, the courts and the American people. It was
a deliberate, planned legal strategy from the beginning of her tenure as Secretary of
State. I will ask this question to both Dan and Paul as a
rhetorical question, but I don’t think it’s going to be that:
What if, in fact, the State Department from day one was
the one that put the server in Chappaqua? Frankly, I think
they did; and they have known about this before they ever
told anybody about it. I believe that to be the case, and I
believe it will be proven.
Investigation: How you do them and what the process
is. The investigation of Benghazi, one of the “phony
scandals,” as has been described by the White House,
began with three committees in the House — Armed
Services, Foreign Affairs, and Intelligence — and then
with a fourth committee, Oversight, doing a generic
investigation.
One of the things that you learn as an investigator is
you create opportunities for the people you are looking
at to make mistakes. You give them a rope; and one
Joseph E. diGenova
© JUDICIAL WATCH
Hillary Clinton’s Secret Email Scandal
11
of the ways you do that is you issue subpoenas. You don’t send letters asking for
information. You send subpoenas, which have the force of law. In a minute, I will
explain to you why that is important and give you an example from our Teamsters
investigation in the 1990s. The reason you send a subpoena is that it creates a legal
duty, an obligation to comply, whether it is to a committee, a court, or a grand jury...
or in a civil case, where you are asked to produce evidence.
The House committees, with the limited exception of the House Oversight
Committee, conducted three of the most incompetent, unsuccessful, and unproductive
investigations of a major public policy question in the history of the House of
Representatives. It is hard to describe how incompetent they had to be to not know
Hillary Clinton had a private email account from which she conducted all of her
business, personal and public.
Can you imagine three committees and a fourth conducting investigations for over
a year and a half, and not one of them found out she had that server? You cannot
imagine the conversations that are going on inside and outside law enforcement and
among people who have worked on permanent subcommittees in the House and
Senate. The incompetence of the Republican investigations is staggering.
How do you get to the bottom of things? When you’re a prosecutor, you don’t have a
problem; you have search warrants; you have got subpoenas; you can get stuff. When
you are in the House, it is not the same. You may be a public “grand jury” in the sense
of an investigating committee, but you can’t arrest anybody. (While the House does
have the authority to arrest someone and put them in the well of the House and hold
them in contempt, this has not been done since the 1800s.)
So you may not have the same legal remedies as a federal prosecutor, but you do have
options. You can go to court and get a contempt ruling. You can litigate the issues,
and you can make a problem exist in a bigger way by issuing subpoenas, something
those committees did not do until the very end of their investigations, which was an
embarrassment and a mistake.
I will tell you what we did in the Teamsters investigations in 1997. We were investi-
gating a corrupt union from top to bottom run by Ron Carey. It was outrageous what
was going on. So Congress decided to hold hearings. We were retained to be special
counsel to the House of Representatives by Speaker Newt Gingrich and we began an
investigation. By the way, the process ended with Carey being thrown out of of
fi
ce,
and a reform president, James Hoffa, was made president of the union by election. He