Hillary Now Blames Her Lawyers

By Shannen W. Coffin

Monday, September 28, 2015

With polls showing that a majority of Americans believe that she is lying, Hillary Clinton has been more aggressive in addressing questions about her private e-mail server. But with each new appearance, more questions are raised than answered. Her latest interview with Meet the Press’s Chuck Todd is no exception.

For months, Mrs. Clinton has insisted that she, and she alone, had the power to determine whether her e-mails were required to be preserved as federal records. In her initial press conference at the United Nations in March, she explained that “for any government employee, it is that government employee’s responsibility to determine what’s personal and what’s work-related.” Her campaign website reinforces that contention, arguing that the “Federal Records Act puts the obligation on the government official to determine what is and is not a federal record.” And the Department of Justice recently told a federal judge the same thing: “Under policies issued both by the National Archives and Records Administration and the State Department, individual officers and employees are permitted and expected to exercise judgment to determine what constitutes a federal record.”

Despite months of consistent reliance on this defense, Hillary now admits that she never exercised any judgment to determine what constitutes a federal record. Instead, somewhat astonishingly, Hillary didn’t review a single e-mail to determine what she had to preserve and what she could delete. When asked by Todd whether she could say with 100 percent certainty that she didn’t delete anything that she was supposed to preserve, Mrs. Clinton responded: “All I can tell you is that when my attorneys conducted this exhaustive process, I [did] not participate. . . . I didn’t look at them.”

Clinton’s contention about the role of federal employees in record preservation always had a grain of truth to it. Given the sheer volume of documents created by the federal government, the Federal Records Act depends on individual officers and employees to make the initial determination of whether a particular e-mail or document created or received by them qualifies as a public record. Hillary Clinton never made that determination while she was secretary of state, instead removing all of her e-mails en masse upon her resignation. Now we know that she didn’t make that determination even after she left the State Department.

Whatever the responsibility of a federal employee to determine which records are official, then, Hillary Clinton did not exercise that responsibility. She asked her lawyers to do so. That explains why Mrs. Clinton could not swear to a federal court that all of her official records had been returned to the State Department, instead merely asserting “on information and belief” that her lawyers had complied with her instructions. Even giving her the benefit of all doubts, Hillary Clinton can’t tell the American people whether she returned all of her official e-mails to the State Department, because she simply doesn’t know.

Or does she? Missing from Clinton’s 30,000 returned e-mails were at least 15 e-mails with Sidney Blumenthal that Blumenthal provided to congressional investigators. Clinton has never explained this discrepancy. Add to that a recent Associated Press report that another tranche of previously unidentified e-mails — this one a series of exchanges with David Petraeus, then head of U.S. Central Command, between January and February 2009 — were recently turned over by the Defense Department to the State Department inspector general.

Rather than explain the latest gap, Mrs. Clinton remarkably cites it as evidence of her compliance with the law. Brushing aside her e-mails with Blumenthal, Tony Blair, and other contacts outside the U.S. government, Clinton speciously told Todd: “All of the e-mails that I sent were intended to be in the government systems if they were work-related. That’s why I sent them to people at their work addresses.” The whole reason we know about the e-mail chain with General Petraeus, she claimed, “is because it was on a government server.”

The real reason we know about the e-mail chain with General Petraeus is that someone at the Defense Department blew the whistle on Clinton’s public claims of full transparency. It is not because Clinton complied with federal law; her compliance has been woefully inadequate. By relying on officials outside the State Department to preserve her e-mails, Clinton failed in her basic duty under the Federal Records Act to “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.”

The law did not place upon General Petraeus a duty to preserve the records of the State Department. It placed that duty squarely on Hillary Clinton. Her claims of 90 percent success — “that 90 percent of my work-related e-mails” were on State Department servers — hardly allay any doubts. Were such a “success” rate evidence of complete transparency, the State Department would not still be producing documents to the House Select Committee on Benghazi. Yet as recently as last Friday, it produced more than 900 additional Clinton e-mails. “Close enough for government work” isn’t a defense that inspires confidence in a presidential candidate.

More questions are likely to come from Mrs. Clinton’s latest explanations. She told Todd, for instance, that she “do[es] not communicate with the [Clinton] foundation.” Reports that Sidney Blumenthal was being paid $10,000 a month by the Clinton Foundation while surreptitiously advising Hillary Clinton would seem to directly contradict her claim. And it is hard to believe, more generally, that Mrs. Clinton had no communications with a foundation run by her husband and daughter while she was serving in government. Should the FBI be able to recover her deleted emails, as recent leaks suggest, Mrs. Clinton will have even more questions to answer.

The “drip-drip” of which Mrs. Clinton complains is fast becoming an open spigot. She’s done very little of late to stop the flow.