— Sen. Charles E. Schumer (D-N.Y.), CBS “Face the Nation” interview, March 8, 2015
Two Democratic lawmakers defended former secretary of state Hillary Rodham Clinton on Sunday talk shows after a week of scrutiny over her use of private e-mails. Clinton largely has remained mum on the issue, except for this tweet:
The New York Times initially reported that Clinton exclusively used her personal e-mail account, and may have violated federal requirements for retaining public records. Clinton has turned over 55,000 pages of personal e-mails to the State Department for recordkeeping.
Schiff and Schumer noted that she was the only secretary of state to produce so many records. Schumer also mentioned her production of e-mails as a transparent act that is unprecedented compared to her predecessors. Are these characterizations accurate?
Lawmakers and open-records advocates have criticized Clinton’s exclusive use of personal e-mails following the Times report. While the use of a private e-mail account is not prohibited by federal law, questions remain over the circumstances. Among them: Did Clinton’s staff appropriately comb through all records that would qualify as matters of public business? Why did Clinton not turn over records of her own accord, prior to the State Department’s request? What are the legal ramifications, if any, of her use of private e-mails?
Staffers for Schiff and Schumer pointed to the State Department’s announcement that Clinton was the only secretary who turned over records for the agency’s archiving update. National Archives and Records Administration guidelines require public officials to make such e-mails available so they can be archived.
In October 2014, the State Department sent a letter requesting former secretaries of state to provide records for archiving purposes, department spokeswoman Marie Harf said during a March 3 press briefing. The New York Times reported that after the letter was sent, Clinton in December provided 55,000 pages of personal e-mail records. The current secretary, John F. Kerry, is the first to “rely primarily” on a state.gov e-mail account, Harf said.
The fact that Clinton turned over 55,000 pages in response, and was the only one so far to provide records, may sound like an impressive feat. It is portrayed as one among her supporters. But there is important context missing: the circumstances of her tenure compared to her predecessors’.
Clinton has served in a much more e-mail-savvy time than her predecessors and has immediate access to her records. (The “Texts from Hillary” meme has gone viral among her supporters using the popular photo of her on her BlackBerry, wearing shades.) The State Department is now working with previous secretaries about whether they have any records that can be made for archiving.
Multiple news outlets have reported that Condoleezza Rice, Clinton’s immediate predecessor as secretary of state, did not use her personal e-mail for official communication — and did not use e-mail much in general. The State Department also confirmed that this was the case. So it would not be fair to compare Clinton’s e-mail usage to Rice’s e-mail usage.
When Colin L. Powell served as secretary of state from 2001 to 2005, he did use his personal e-mail address for official business, as Schumer noted. He is known as the first secretary to modernize the agency’s computer system and use of technology. But Powell said during a March 8 interview on ABC News’ “This Week” that he “retained none of those e-mails.” His e-mail account from 10-plus years ago has been closed for years.
“I don’t have any to turn over. I did not keep a cache of them. I did not print them off. I do not have thousands of pages somewhere in my personal files,” Powell said on the show. “In fact, a lot of the e-mails that came out of my personal account went into the State Department system. They were addressed to State Department employees and the state.gov domain. But I don’t know if the servers at the State Department captured those or not. And most — they were all unclassified and most of them, I think, are pretty benign, so I’m not terribly concerned even if they were able to recover them.”
NARA confirmed to The Fact Checker that it opened an inquiry into locating Powell’s e-mail records. Given that he is unable to immediately provide the records, it is not an accurate comparison to Clinton’s situation. Her e-mails were accessible enough to turn over to the State Department soon after the agency requested them. (Indeed, according to the Times, Clinton’s staff had been negotiating about the return of the e-mails since August, two months before the letter was sent.)
In addition, electronic record archiving regulations were clearer and more modernized by the time Clinton took office than when Powell did. In 2005, after Powell left office, the State Department updated the Foreign Affairs manual to say that day-to-day operations should be conducted on the authorized system. (Click here for a full timeline of the Clinton e-mail controversy and evolution of State Department rules.)
In 2009, the year Clinton became secretary, federal regulations codified what experts say was a long-held assumption that a contemporary transfer to archives is required of personal e-mails used for official business. (A November 2014 law created new federal definitions for electronic records and set a 20-day limit for producing them.)
[Update: Madeleine Albright, secretary of state from 1997 to 2001, did not use personal or professional e-mail while in office, Albright Stonebridge Group LLC spokesman Ben Chang told The Fact Checker.]
Schumer’s spokesman, Matt House, noted that the National Archives has always required the secretaries to preserve their records regardless of the format, and the same requirements applied to Powell and Clinton. Powell is “a perfect comparison to Clinton. Neither were prohibited from using personal e-mail. Both were supposed to preserve their records. Both likely have the vast majority of their records preserved anyway because they sent them to and got them from state.gov accounts where someone else preserved them. However, in one instance (Clinton), she kept her records and has been able to turn them over to State. And in Powell’s case, whatever unique records he had were ultimately destroyed.” (Our friends at PolitiFact rated Schumer’s statement Mostly False.)
Schiff’s spokesman, Patrick Boland, pointed out that Schiff acknowledged each secretary must be judged on the circumstances. Indeed, Schiff said later in the CNN interview: “As a matter of law, we have moved as of last year to a requirement that official e-mails be used for official business. But we have to evaluate and consider the secretary under the standard of what was the law at the time. And the law at the time was she could use her personal e-mail as long as she preserved it.”
The Pinocchio Test
Clinton supporters’ defense that she is the only secretary of state to turn over records is one of those technically correct but fundamentally misleading statements.
This talking point applies a direct comparison between Clinton and her predecessors. We focused on her two immediate predecessors who were in office the past 14 years, when e-mail usage became more widespread. Albright did not use personal or professional e-mails. Rice rarely used e-mails while secretary. Powell did use his personal account on the job, and by his own admission no longer has access to the account he used then. The State Department, NARA and Powell’s staff are now working to figure out what e-mails need to be, or could be, retrieved.
By the time Clinton took office, federal expectations for archiving electronic records were clearer than they were under Powell’s tenure. That does not absolve Powell for not being able to locate his records a decade later, or for not turning them over to National Archives back then. But it does mean that Clinton was held to a more definitive standard. Moreover, this common defense among her supporters is used to deflect the central issue: that Clinton exclusively used a personal account, and did not provide records until she was requested to, after she left office. That is the most relevant point, so the Democrats earn Three Pinocchios.
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