Rep. Trey Gowdy (R-S.C): “I have not heard anyone other than you ever cite that figure. Who told you that 90 to 95 percent of your e-mails were in the State Department system? Who told you that?” 

Former secretary of state Hillary Rodham Clinton: “We learned that from the State Department and their analysis of the e-mails that were already on the system. We were trying to help them close some gaps that they had.”

— exchange during a hearing before the House Select Committee on Benghazi, Oct. 22, 2015

A number of readers have asked questions about Clinton’s assertion that 90 to 95 percent of the e-mails were in the State Department system. On several occasions, especially in the evening session of the 11-hour hearing, Clinton suggested this figure came from the State Department. (For instance: “The State Department was beginning to turn over to this committee my e-mails because they had between 90 and 95 percent of all my work-related e-mails in the State Department system.”)

But the next day, a State Department spokesman indicated that the number did not come from any State Department analysis but was a calculation made by the Clinton campaign–a fact later confirmed by the Department.

Moreover, as part of the exchange with Clinton, Gowdy referenced an inspector general’s report that “less than one percent of State Department emails” were captured.

What’s going on here?

The Facts

First of all, the State Department is correct. The “90 to 95 percent” figure comes from the Clinton campaign. There has never been a calculation made by the State Department of the 55,000 pages of the e-mails provided by Clinton from her private e-mail account. So Clinton got that wrong.

“Of the more than 30,000 e-mails that Secretary Clinton provided to the State Department last year, more than 90 percent were sent to or from a state.gov e-mail address,” a Clinton campaign spokesman said. “That is observable by looking at the e-mails that were provided for release by the department. These messages would have been captured in the State Department’s record system. It has since been learned that the State Department’s archiving system did not maintain every e-mail, but that does not change that these messages were captured by State’s system and thus should have been available.”

Let’s unpack that statement. Essentially, Clinton’s lawyers looked through the e-mails and found that at least one person in the e-mail chain — either sending an e-mail to Clinton or receiving it — had a state.gov e-mail address. So in theory, if a search was requested of the e-mails of person who corresponded with Clinton, Clinton’s e-mails would have shown up.

This is how Clinton has explained this in past, minus the assertion that it was a State Department calculation. Here’s a comment from Sept. 20 on CBS’s “Face the Nation:”

“What I did was to send e-mails to people at their government accounts, which I had every reason to believe would be captured on the government systems. And when we were asked to help the State Department make sure they had everything from other secretaries of state, not just me, I’m the one who said, okay, great, I will go through them again. And we provided all of them. And more than 90 percent were already in the system.”

The Clinton campaign, in a Q&A on the e-mail controversy, worded it even more carefully:

“Clinton’s practice was to email government officials on their ‘.gov’ accounts, so her work emails were immediately captured and preserved. In fact, more than 90% of those emails should have already been captured in the State Department’s email system before she provided them with paper copies.”

The problem is, of course, that a requested search of Clinton’s e-mails would have turned up nothing, because she did not maintain a state.gov account. That’s why the State Department had trouble finding her e-mails in response to congressional and Freedom of Information Act (FOIA) requests in the first place.

But it’s also not unreasonable for Clinton to assert that most of these e-mails resided somewhere in the State Department’s systems. Gowdy referenced an 2015 inspector general’s report concerning poor e-mail retention at the State Department, but that report concerned the e-mails of lower-level officials, under a system known as SMART (State Messaging and Archive Retrieval Toolset). A footnote in the report makes that clear: “These assessments do not apply to the system used by the Department’s high-level principals, the Secretary, the Deputy Secretaries, the Under Secretaries, and their immediate staffs, which maintain separate systems.” (A statement from the National Archives also emphasizes that high-level memos are not captured by SMART.)

What systems are used to capture high-level communications? There are actually four that track the records of the Office of the Secretary of State, according to the State Department:

  • The Secretariat Tracking and Retrieval System (“STARS”), an automated system used to track, control, and record documents containing substantive foreign policy information passing to, from, and through the offices of the Secretary of State, the Deputy Secretary of State, and other principal officers.
  • Secretariat Telegram Processing System (“STePS”), an electronic system designed to distribute cables among the Department’s principals.
  • Cable Archiving Retrieval System (“CARS”), an electronic system designed to provide access to a contemporary portion of the Department’s telegram archive.
  • Top Secret files

So, when the State Department received a request for e-mails concerning 2012 Benghazi attacks, officials used those systems to search the records of three people who were closest to Clinton then: Chief of Staff Cheryl Mills, Deputy Chief of Staff Jake Sullivan and Deputy Chief of Staff Huma Abedin, according to a declaration filed in federal court by John F. Hackett, director of the Office of Information Programs and Services, concerning a lawsuit by Judicial Watch. Officials searched their records for terms containing words such as “ambassador,” “attack,” “Benghazi,” “Libya” and “talking points.” Any document that contained these terms would be returned as possibly responsive to a FOIA request.

This search turned up four documents. After the State Department obtained Clinton’s e-mails on her personal server, the same criteria was used to search them and no documents were deemed relevant. Interestingly, after the department asked Mills, Sullivan and Abedin to search their personal e-mails, Hackett said that one of Sullivan’s personal e-mails helped officials realize that a Clinton e-mail previously deemed as not relevant actually concerned the infamous Benghazi talking points. But that wasn’t previously clear in the e-mail chain contained in Clinton’s records. (Sullivan had not forwarded that part of the message to Clinton.)

Under FOIA, agencies are not necessarily expected to find every record; rather, they are expected to produce records based on a “reasonable search” of what’s in its custody and control at the time. So at the State Department, FOIA searches are generally custodian-based, which means that individuals and offices are tasked with FOIA requests. Each custodian is responsible for producing any responsive records they have — regardless of medium (e-mail, paper or other electronic records). Since the Clinton e-mail issue emerged, though, the State Department says it is now automatically preserving the records of Secretary of State John F. Kerry and his senior aides.

Update, May 25, 2016: The State Department Inspector General, in a scathing report on Clinton’s e-mail practices, said that sending emails from a personal account to State Department accounts is not an appropriate method of complying with federal record-keeping rules.

The Pinocchio Test

Clinton clearly erred in saying that the “90 to 95 percent” figure was from the State Department. This is her own staff’s calculation, and she should correct the record.

While not all of the e-mails she submitted to the State Department have been released, what has been made available so far suggests that a substantial majority are to and from at least one “state.gov” e-mail address. It is not an unreasonable assumption that these e-mails are contained somewhere within the bowels of the State Department. But Clinton cannot make a definitive statement and certainly cannot attribute that to the State Department.

In the interest of precision, Clinton would do better to say that “my staff has calculated that 90 percent were sent to or from a state.gov e-mail address” rather than “90 percent were already in the system.”

Three Pinocchios

 


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For more fact checks on this issue:

Is Hillary Clinton a ‘liar’ on Benghazi?

Hillary Clinton’s incomplete timeline on her personal e-mail account

Hillary Clinton’s claim that ‘everything I did [on e-mails] was permitted’