“I’ve seen the authorities in my career in the House and Senate, I’ve seen federal authorities do their jobs regardless of political machinations and political pressure sometimes. I fully expect them to. And I think there won’t be an indictment. And I think that means she did what many secretaries of state have done in the past. She released more emails and more pages of emails and more records than any of her predecessors of secretary of state, even before she was actually running for president.”

— Sen. Sherrod Brown, (D-Ohio), interview on ABC’s “This Week,” July 3, 2016

In a recent interview, Brown used a common claim by supporters of Hillary Clinton about the email records she produced in comparison with her predecessors. Brown’s answer was in response to ABC’s Martha Raddatz’s question about the 30-minute meeting between Attorney General Loretta Lynch and President Bill Clinton on an airport ramp in Phoenix, while an FBI investigation into Clinton’s private email use was underway.

While the quote above is by Brown, the comparison of Clinton to her predecessors is widely used by her supporters and allies and by Clinton herself. It is something many readers have asked about this week in light of the FBI’s decision not to recommend criminal charges against Clinton. So we are highlighting Brown’s comment as an example.

Last year, when the Clinton email controversy erupted, we looked into this talking point and awarded Three Pinocchios with the information we had available at the time. The State Department Office of Inspector General released a report in May 2016 that described in greater detail how secretaries of state since Madeleine Albright used email communications, and whether they retained records. So we took a renewed look.

The Facts

From the beginning of the email controversy, many Democratic lawmakers have defended Clinton by saying she turned over more records than any other prior secretary of state. Rep. Adam Schiff (D-Calif.), who defended her using this talking point then, continues to compare Clinton and Colin Powell. FactCheck.org found Schiff twisted the facts in his most recent iteration of the talking point.

The inspector general found that the requirement to manage and preserve emails has been consistent since at least 1995, but specific policies relating to record retention methods have evolved over time. Brown’s staff pointed out that the inspector general concluded “Longstanding, systemic weaknesses related to electronic records and communications have existed within the Office of the Secretary that go well beyond the tenure of any one Secretary of State.”

The report explores in detail the practices of Clinton, Condoleezza Rice, Powell and Albright, as well as the current secretary of state, John F. Kerry, and the regulations under each.

Technology has evolved quickly since Albright was secretary of state, and so have department policies. The State Department’s leadership has been generally “slow to recognize and manage effectively” the risks and requirements for electronic communications.

Clinton’s case is not an apples-to-apples comparison to her predecessors for two major reasons: She was the only one to have operated solely on a private email server, and she has access to more electronic records than her predecessors.

Albright never used email for work. Rice did not use personal email for work, and did not use much email in general. So it’s completely misleading to compare Clinton to Rice or Albright, who didn’t even have an email account until she left the State Department.

So that comes down to a singular predecessor, Powell. He was the only other secretary of state to regularly use email — in fact, he used a personal email account from a commercial Internet provider.

Clinton has produced more emails than Powell. According to the State Department, Powell’s representative confirmed in March 2015 that Powell did not retain his emails or make printed copies before his tenure ended in 2005. Powell’s staff has said the account has been closed, and that Powell does not have access to it anymore.

“The account he used has been closed for a number of years. In light of new policies published in 2013 and 2014 and a December 2014 letter from the State Department advising us of these polices, we will be working with the department to see if any additional action is required on our part,” Powell’s staff said in a statement to Politico last year.

The State Department requested Powell’s staff to check with his Internet service or email provider to his former account to see if they can retrieve any emails from 2001 to 2005. But Powell’s staff had not provided any records as of May.

The inspector general specifically called out Clinton, Powell and Scott Gration (ambassador to Kenya under Clinton in 2011 and 2012) for exclusive use of private emails. In addition to sharply criticizing Clinton’s use of a private server (saying she had not cleared it with the State Department and would not have been approved had she asked), the inspector general also was critical of Powell’s exclusive use of personal email.

But the inspector general also found the State Department’s “technology and information security policies were very fluid during Secretary Powell’s tenure.” After Powell left office in 2005, and through 2011, the State Department’s guidance for private email use was “considerably more detailed and more sophisticated.”

In 2002, there was a new requirement for email users to “determine the significance and value of information created on e-mail systems [and] determine the need to preserve those messages that qualify as records.” Rules for nongovernment information systems for the State Department were established in May 2004, toward the end of Powell’s tenure.

Clinton’s email use should be evaluated in the context of the clearer guidance under her tenure, and the various memorandums “specifically discussing the obligation” for officials to use department systems in most circumstances, the report said. “Secretary Clinton’s cybersecurity practices accordingly must be evaluated in light of these more comprehensive directives,” the report said.

Regarding Brown’s quote in the ABC “This Week” interview, his spokeswoman Jennifer Donohue said the senator was comparing Clinton’s track record of releasing records — email and otherwise — compared to her Republican rival, Donald Trump. In the context of the entire interview, during which Brown highlighted policy differences between Clinton and Trump, Brown was making the point that Clinton has been more forthcoming about federal tax returns and policy details than Trump, and was citing her email release as an example, Donohue said.

“It has been widely reported that Secretary Clinton released thousands of pages emails and former Secretaries of State did not. The fact is the public, the press and historians will have information available about Secretary Clinton’s work at the State Department that is not available for past Secretaries,” Donohue said. “But the most important point Senator Brown made on Sunday is that when it comes to transparency, the American people know far more about Hillary Clinton than they do about Donald Trump. … Donald Trump has relied largely on rhetoric in the absence of substantive policy proposals.”

[Update, Sept. 8, 2016: House Democrats released a new email that shed a new light on Clinton’s comparison to one predecessor: Colin Powell. On Jan. 23, 2009, Clinton emailed Powell to ask about the restrictions he had on his BlackBerry, and whether he used it as a personal device. Powell’s answer suggests he set up his private email to evade public records disclosure. Powell explained he had a “personal computer that was hooked up to a private line … so I could communicate with a wide range of friends directly without it going through the State Department servers.”

He continued: “There is a real danger. If it is public that you have a BlackBerry and it it [sic] government and you are using it, government or not, to do business, it may become an official record and subject to the law. … Be very careful. I got around it all by not saying much and not using systems that captured the data.”

This email shows that the comparison to her predecessors may not just be a matter of political spin, but rather rooted in this conversation. Clinton consulted Powell, a predecessor, about his personal email use, and sought advice as to “how to bring along State Dept.” to keep her BlackBerry. However, Clinton went beyond Powell’s advice and set up a private server, which remains unique to Clinton. This new evidence does not warrant a change in rating, which will remain at Three Pinocchios.]

The Pinocchio Test

The comparison that Clinton allies and supporters make about the number of emails she turned over compared to her predecessors is misleading, and lacks significant context. This talking point assumes a direct comparison between Clinton and her predecessors, but that is not applicable.

The inspector general report confirmed that Clinton should be judged based on the circumstances and rules applied to her at the time she was secretary, as the rules were much clearer and more sophisticated under her tenure. Albright didn’t have email until she left office. Rice rarely used emails while secretary. So by definition, those two have far fewer — in Albright’s case, zero — email records to turn over.

The only person who regularly used emails is a singular predecessor, Powell. Powell did use his personal account on the job, and by his own admission no longer has access to the account he used then. So while Clinton did turn over more email records than he, she was the only one uniquely in position to do so upon the State Department’s request. This does not absolve Powell for not being able to locate his records a decade later, but the rules for private email retention and non-department email use in general were less clear under Powell.

Further, Clinton was the only secretary of state to conduct her official business solely with a personal private server, which makes her case that much more unique and incomparable to those who came before her. We award this comparison Three Pinocchios.

Three Pinocchios

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