“I fully complied with every rule that I was governed by.”
— Former secretary of state Hillary Rodham Clinton, news conference, March 10
Hillary Rodham Clinton’s news conference March 10 left many questions unanswered, and so we were reluctant to fact check it immediately. But enough information has emerged in recent days to at least take a preliminary step at annotating some of her key points. We aim to update this as additional information emerges.
At this point, given the fluid situation, we are holding off on issuing a Pinocchio rating but we may do so in the future. Certainly, her claim that her e-mails were immediately preserved has now been called into question — as has her statement that she complied with every rule in place at the time.
We have chosen to focus on the key points of her introductory statement, as well as two comments she made in response to reporters’ questions.
“There are four things I want the public to know. First, when I got to work as secretary of state, I opted for convenience to use my personal e-mail account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal e-mails instead of two. Looking back, it would’ve been better if I’d simply used a second e-mail account and carried a second phone, but at the time, this didn’t seem like an issue.”
Perhaps this was the actual reason, but it’s worth noting that secretaries of state are always accompanied by staff who carry purses, briefcases and so forth. It would have been up to the staff to keep track of the devices, not Clinton.
Clinton has not disclosed who at the State Department approved the use of a personal e-mail account, with its own server, instead of a government account. One would expect there is a paper trail that would explain how and why approval was granted. (The technology for one phone to handle two email accounts was fairly nascent back in 2009.)
“Second, the vast majority of my work e-mails went to government employees at their government addresses, which meant they were captured and preserved immediately on the system at the State Department.”
The State Department on March 13 acknowledged this was not the case. State Department spokeswoman Jen Psaki told reporters that not until this February were such e-mails automatically preserved. The system depended on individual officials deciding whether the e-mail met the definition of an official record that should be preserved. It is quite possible that if other officials were the recipients of an e-mail, rather than the originator, then they may not have understood that Clinton assumed they would be responsible for preserving the records.
Moreover, even if the State Department system was working as efficiently as Clinton claimed, her statement doesn’t address the fact that she e-mailed government officials who did not work at the State Department. Those e-mails also may have been lost unless the recipient decided to preserve them, depending on the procedures in place at that particular agency.
Clinton’s arrangement also would have made it difficult for the State Department to respond to Freedom of Information Act requests since a primary source — Clinton’s e-mail outbox — would not exist within the government systems.
“Third, after I left office, the State Department asked former secretaries of state for our assistance in providing copies of work-related e-mails from our personal accounts. I responded right away and provided all my e-mails that could possibly be work-related, which totaled roughly 55,000 printed pages, even though I knew that the State Department already had the vast majority of them.”
The State Department’s letter actually appears to have been prompted by the discovery that Clinton had used a personal e-mail account for her State Department work, as officials were unable to locate e-mails in response to queries from the House Select Committee on Benghazi. The letter was generated after at least two months of discussion between the State Department and Clinton aides. But Clinton and the State Department have suggested this was a routine bookkeeping memo not aimed specifically at Clinton.
Update, Sept. 22: The State Department formally confirmed that it was the discovery of Clinton’s e-mail account that prompted the request.
“We went through a thorough process to identify all of my work related e-mails and deliver them to the State Department. At the end, I chose not to keep my private personal e-mails — e-mails about planning Chelsea’s wedding or my mother’s funeral arrangements, condolence notes to friends as well as yoga routines, family vacations, the other things you typically find in inboxes. No one wants their personal e-mails made public, and I think most people understand that and respect that privacy.”
Information contained in a Q&A provided by Clinton aides suggests the “thorough process” consisted of looking for keywords and names of possible recipients, not specifically reviewing the e-mails to see whether they contained information that would be covered by the Federal Records Act. The search consisted of looking for e-mails sent to people with a “.gov” account, the first and last names of 100 government officials, and terms such as “Libya” or “Benghazi.” This yielded approximately 30,500 e-mails, which were turned over to the State Department. The other 32,000 e-mails in her possession were deemed “personal” and destroyed. (Update: In a statement issued March 15, Clinton spokesman Nick Merrill said “the fact sheet should have been clearer every email was read.”)
Moreover, as our colleagues at FactCheck.org pointed out, the State Department foreign affairs manual says “no expectation of privacy or confidentiality applies” to e-mails that are sent on government e-mail accounts, even if they are personal in nature. The Clinton Q&A claimed that “government officials are granted the privacy of their personal, non-work-related e-mails, including personal e-mails on .gov accounts. Clinton exercised her privilege to ensure the continued privacy of her personal, non-work-related e-mails.” But that statement is not accurate.
“Fourth, I took the unprecedented step of asking that the State Department make all my work-related e-mails public for everyone to see. I am very proud of the work that I and my colleagues and our public servants at the department did during my four years as secretary of state, and I look forward to people being able to see that for themselves.”
While Clinton touts her “unprecedented” step, her use of a personal e-mail account for all work correspondence also appears unprecedented, at least in the first term of the Obama administration. A survey by the Wall Street Journal found that no other Cabinet official used a personal e-mail account, on a private server, for work-related e-mails. Some officials, such as Attorney General Eric H. Holder Jr. and Kathleen Sebelius, former health and human services secretary, had a personal and work account — but used a second device.
“I did not e-mail any classified material to anyone on my e-mail. There is no classified material.”
[Update, August 12: This statement turned out to be incorrect. The Inspector General of the Intelligence Community sent a letter to Congress, saying that at least two emails contained classified information at the email was created. It’s unclear if this information was contained in an email that Clinton sent or in an email that she received.]
Although Clinton stressed she sent no “classified” information in her e-mails, the State Department has another category called “sensitive but unclassified.”
As of 2005, the State Department Foreign Affairs manual has stated that “sensitive but unclassified” information should not be transmitted through personal e-mail accounts. “It is the Department’s general policy that normal day-to-day operations be conducted on an authorized AIS [Automated Information System], which has the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of the resident information,” the manual says.
While the sensitive-but-unclassified category includes a number of technical items, such as design of embassies and payroll information, the State Department also lists “Inter or intra-agency communications, including emails, that form part of the internal deliberative processes of the U.S. Government, the disclosure of which could harm such processes.”
It’s unclear whether Clinton’s e-mail account was conducted through a secure system that would meet the State Department’s requirements.
“I fully complied with every rule that I was governed by.”
This appears increasingly debatable.
The Fact Checker covered most of these rules in our timeline about the Clinton controversy. Certainly, the law became clearer after Clinton stepped down. But even when Clinton was secretary, the State Department emphasized that a personal e-mail account was not a preferred mode of communication — and that it was the responsibility of officials using a personal e-mail account to make sure that “federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.” A cable was even issued under Clinton’s name that warned: “Avoid conducting official Department business from your personal e-mail accounts.”
The White House has said Obama issued “very specific guidance” that officials should use government e-mail accounts for official business.
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