“It was fully above board. Everybody in the government with whom I emailed knew that I was using a personal email.”
–Former secretary of state Hillary Rodham Clinton, interview with the Associated Press, Sept. 7, 2015
Clinton may have finally apologized for her private e-mail arrangement, but readers continue to have questions. What does she mean when she says the system was “fully above board”? How widely known was it that she used a private account?
The Fact Checker has dealt with some of these issues in the past, and Clinton’s talking points often are so rigid that it is difficult to find new material to check. But let’s examine this quote. The phrase “fully above board” has been used in at least three recent interviews.
The Clinton campaign provided a number of quotes, mainly from spokespeople for the State Department, to support the notion that the use of personal e-mail was “fully above board.” Here’s one from John Kirby on Aug. 25: ”It is not prohibited to use private email. It is discouraged, obviously, and we recognize there are instances when there may be no other choice, as long as the records are being preserved and recorded.”
Note that Kirby said that the practice of using nongovernmental e-mail was discouraged. The big difference for Clinton, of course, was her exclusive use of a private e-mail system for State Department business. This was not an occasional usage when there was no other choice. As we have noted previously, “Clinton’s decision to use a private e-mail system for official business was highly unusual and flouted State Department procedures, even if not expressly prohibited by law at the time.”
Our colleagues at FactCheck.org have cited a lengthy statement to the Senate by Jason R. Baron, a lawyer at Drinker Biddle and a former director of litigation at the National Archives and Records Administration (NARA): “The setting up of and maintaining a private email network as the sole means to conduct official business by email, coupled with a failure to timely return email records into government custody, amount to actions plainly inconsistent with the federal record-keeping laws.”
Baron added that “any employee’s decision to conduct all e-mail correspondence through a private e-mail network, using a non-.gov address, is inconsistent with long-established policies and practices under the Federal Records Act and NARA regulations governing all federal agencies.”
As for the recording-keeping requirements, Clinton’s lawyer David Kendall has argued that Clinton’s practice of copying and forwarding e-mails to individuals on the State Department system — combined with her production in 2014 of some e-mails that were not captured — was how she complied with this provision. (The Foreign Affairs Manual, however, makes it clear that before a senior official, such as a Senate-confirmed presidential appointee, departs government service, he or she must prepare an inventory of personal papers that are proposed for removal.)
Baron, in his statement, said that the fact that an e-mail was sent to or received from a “.gov” address “does not automatically ensure” that e-mail would have been archived for preservation in an official recordkeeping system.
Clinton’s claim that her system was “fully above board” appears to be a twist on the claim that what she had done was permitted, while also suggesting a degree of openness about the arrangement.
This brings us to the question of whether “everyone” knew Clinton was using a private e-mail system. As phrased, Clinton sidesteps the question of whether people knew she was exclusively using a private system. (Even President Obama has said he was unaware that Clinton did State Department business only from a private system.)
Still, “everyone” is a sweeping phrase. One would presume that people receiving her e-mails would recognize it was from a private account. But at least one e-mail released by the State Department suggests a senior official was out of the loop.
In a Feb. 27, 2010, e-mail exchange between Clinton and her aide Huma Abedin, it was revealed that a senior official named Judith (possibly Judith McHale, then the undersecretary of state for public diplomacy) had contacted the State Department IT help desk because an e-mail she had sent to Clinton had bounced back. Clinton was wondering why she received an e-mail from a State Department technician asking whether she had received a message.
“What happened is Judith sent you an email. It bounced back. She called the email help desk (I guess assuming u had state email) and told them that,” Huma wrote, using email abbreviations. “They had no idea it was YOU, just some random address so they emailed.”
The email exchange is embedded below:
The Pinocchio Test
Clinton’s careful language once again obscures some basic truths about her decision to only use a private e-mail system for government business: it was unusual and it skirted the edge of the rules.
Declaring that “everyone” she e-mailed understood she was using a private system appears undercut by the Abedin comment that “Judith” contacted the State Department help desk thinking Clinton was using a government e-mail account.
Clinton obviously received e-mails from hundreds of people who realized she was using a private e-mail address. But whether they understood it was her only means of electronic government communication is another question.
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