State Department officials who briefed Secretary Hillary Clinton on administrative policies and procedures soon after she took office were obligated to inform her of federal laws and regulations requiring her to use an official email account for government business and to inform the national archivist if they believed she was not doing so thereafter.
“I would say the top career officer in that briefing was obligated to make clear what the law requires and then to contact the national archivist at the National Archives and Records Administration,” said American University Professor Daniel Metcalfe Tuesday. “The archivist would then call Hillary Clinton and tell her of the requirements of the law,” he said.
Metcalfe’s comments came during a panel discussion of the controversy that erupted earlier this month when the former secretary of state was reported by The New York Times to have used a private email account to conduct official business throughout her tenure. The panel was hosted by Judicial Watch, a non-profit government watchdog.
Patrick F. Kennedy was under secretary for management during Clinton’s State Department tenure but it is not known whether he conducted the briefing of Clinton or was present during the discussion. He did not respond to a Washington Examiner request for comment.
Other senior officials responsible for the department’s information technology and record-keeping programs may also have been obligated to contact the archivist if they had reason to believe Clinton was not complying with the record-keeping requirements. It is not clear what if any penalties would apply if those officials failed to contact the archivist.
Metcalfe was in charge of the Department of Justice office that administers the Freedom of Information Act by federal departments and agencies for many years before joining the Washington College of Law faculty.
Clinton said during a March 10 news conference at the U.N. that she did so for her “convenience” and that she used a server located in her private residence in Chappaqua, N.Y. More than 62,000 emails to and from Clinton were reviewed after an October 2014 request from the State Department for copies.
About half of the emails dealt with official business and half with personal matters, she said. She has declined to make the server available to an independent third party such as the State Department inspector general, even though she said through her attorney that all of the emails were deleted after the review.
Metcalfe told the Judicial Watch panel that Clinton’s decision to use a private email account instead of an official one was “flouting, if not an outright violation, a blatant circumvention of the Federal Records Act.” He stressed that he is a liberal Democrat and a likely Clinton voter if she is the 2016 Democratic presidential nominee. “I call them as I see them under the law,” he said.
Another panel member, former U.S. Attorney Joseph DiGenova, was blunt in his denunciations of Clinton’s conduct.
“The basic facts call out for a formal investigation by the Department of Justice. This was a brazen decision not to disclose public documents, it was a planned strategy from the very beginning,” he said.
“When she decided she would procure a server, Chappaqua became the Department of State. She moved the secretary’s office from Foggy Bottom to Chappaqua,” he said.
DiGenova agreed that officials under Clinton were obligated to tell somebody about the situation.
“At a certain point, the information technology people at State knew because they knew she didn’t have an official account. It’s just a staggering evasion of responsibility by many people at the State Department,” he said.
Clinton has been asked by the House Select Committee on Benghazi to talk to the panel’s investigators under oath by May 1. Such interviews, which are conducted behind closed doors, usually precede public testimony by committee witnesses.
Nick Merrill, Clinton’s spokesman, did not respond to an Examiner request for comment.
Judicial Watch President Tom Fitton said his nonprofit government watchdog has at least 17 active FOIA suits in the federal courts as a result of State Department failures to provide requested documents, including emails to and from Clinton.
Mark Tapscott is executive editor of the Washington Examiner.
