HRC EMAILS: Federal officials voiced growing alarm over Clinton’s compliance with records laws, documents show
During Clinton’s final days in office, Paul Wester, the director of Modern Records Programs at NARA – essentially the agency’s chief records custodian – privately emailed five NARA colleagues to confide his fear that Clinton would take her official records with her when she left office, in violation of federal statutes.
"[W]e need to discuss what we know, and how we should delicately go about learning more about…the transition plans for Secretary Clinton’s departure from State," Wester added. He did not specify why the situation required “delicate” handling, but added that colleagues had “continued to invoke the specter of the Henry Kissinger experience vis-à-vis Hilary [sic] Clinton.”
That was a reference to how the secretary of state during the Nixon and Ford administrations, preparing to leave office in January 1977, stashed large segments of his classified papers on the upstate New York estate of his friend, Vice President Nelson A. Rockefeller. It wasn’t until 2001 that Kissinger relented to demands from scholars and the U.S. government and made the documents available for research.
Under the Federal Records Act, NARA is entrusted with official oversight of Executive Branch agencies and their employees, aimed at ensuring that the records they generate in the discharge of their official duties are being properly preserved and stored.
The Wester email and 72 other internal documents released by NARA and the State Department earlier this month show NARA officers repeatedly expressed concerns that Clinton and her office were not observing the federal laws and regulations that govern recordkeeping – but that NARA never did much about it.
The 73 documents from NARA and State were turned over to Cause of Action, a non-partisan government accountability watchdog that had filed a Freedom of Information Act request in March, after the New York Times revealed that Clinton had exclusively used a private email server and domain name during her tenure as secretary of state. Cause of Action shared the documentswith Fox News on an exclusive basis, ahead of Senate testimony by the group’s executive director, Daniel Epstein.
“Given NARA’s stated concerns,” Epstein said in written testimony submitted this week to the Senate Homeland Security and Governmental Affairs Committee, “it either was aware of the failure to preserve Mrs. Clinton’s emails or was extremely negligent in its efforts to monitor [the preservation of] senior officials’ emails.”
The alarm bells sounded fairly early in Clinton’s tenure at Foggy Bottom. In a November 2009 email, written when Clinton had not yet completed her first year on the job, NARA archivist David Langbart wrote to his colleague, Michael Kurtz, about a “huge issue on which there has been little progress” – namely, the proper preservation of “high-level memos” generated by employees at “S/ES.” That is the abbreviation for the office of the secretary of state within the State Department’s Executive Secretariat.
“[Members of a task force] are still working with the Executive Secretariat on the high-level memos issue,” Langbart wrote on November 2. “Earlier it sounded like S/ES was going to relay on SMART [an updated recordkeeping program for the State Department] but it now appears that they will be establishing their own recordkeeping system…”
Previously unpublished notes taken at a conference of NARA and State Department officials in July 2014, after Clinton had left the government, reflect continued concern that recordkeeping practices at Clinton’s agency had never met federal standards.
The handwritten notes, turned over to Cause of Action, refer to employees at State “using gmail with no r/k [recordkeeping] system,” and lamenting the “total disaster” that had apparently occurred when the Department of Interior had adopted a Google app for government use. The notes show the officials discussed “targeting senior leaders” at the State Department, in part by having assistant secretaries of state at each of the department’s bureaus establish “Bureau Records coordinators.”
The notes show that the officials considered starting such procedures with a test run at the Bureau of International Narcotics and Law Enforcement Affairs (INL), which was thought to be an “easy” venue for such trials, then moving to the Bureau of Diplomatic Security (DS) and then “into the Office of the Secretary w/ Principles [sic]” on the “7th Floor” – where the secretary’s office suite is housed.
The most recent private expressions of concern by NARA officials came after Michael Schmidt, the New York Times reporter who broke the Clinton private emails story on March 2, began making inquiries at NARA a few days before his story ran. “I’m working on a story about government employees who use their personal email addresses to conduct government business,” Schmidt wrote, without disclosing initially that his focus was on Clinton, in a February 27 email to NARA general counsel Gary Stern.
Within about two hours, Stern secured approval from NARA Chief Operating Officer William Bosanko (“No objections from me”) for Stern to speak with Schmidt. The two connected on Sunday, March 1, after which Stern privately emailed the National Archivist himself, David Ferriero, and Wester, the agency’s chief records custodian, who had two years earlier expressed fears about Clinton unlawfully taking her records with her when she left office.
“As Paul surmised,” Stern wrote, Schmidt “has learned that when Hillary Clinton was Secretary of State, she apparently used a personal email account to conduct government business.” Stern, who has served as general counsel at NARA since 1998, added: “NARA does look into allegations of this type, with our interest being to ensure that the agency recovers any alienated [withheld] records and has policies in place to ensure prevent such events from occurring again. This case, if true, would present a concern.”
Particularly stung by the Times’ bombshell was James Springs, the acting inspector general at NARA, who responded to the story with an agitated March 3 email to Wester that asked: “Were we aware the gov[ernment] email system was not being used by Ms[.] Clinton. [sic] If we were not aware why not. [sic] What checks and balances do we have in place to ensure the gov email systems are being used. [sic]”
Wester forwarded Springs’ email to seven NARA colleagues, stating only: “I will talk to James, hopefully later this afternoon or tomorrow.”
Wester did not respond to a message left on his office voice mail by Fox News. Appearing at a National Press Club panel discussion in April, Jason Baron, the attorney who formerly served as the director of litigation at NARA, expressed amazement that NARA officials had not done more to discharge their supervisory duty over Clinton’s recordkeeping practices.
“I remain mystified by the fact that the use of a private e-mail account apparently went either unnoticed or unremarked upon during the four-year tenure in office of the former secretary,” said Baron, now in private practice at the firm of Drinker Biddle & Reath.”Simply put, where was everyone? Is there any record indicating that any lawyer, any FOIA officer, any records person, any high-level official ever respectfully confronted the former secretary with reasonable questions about the practice of sending e-mails from a private account? It is unfathomable to me that this would not have been noticed and reported up the chain.”
Clinton has disclosed that late last year she turned over 55,000 pages of emails to the State Department, printed out, and unilaterally deleted another 30,000 emails she deemed “personal.” Her spokesman, Nick Merrill, told reporters when the controversy first erupted that the secretary had obeyed the “letter and spirit of the rules.”
James Rosen joined Fox News Channel (FNC) in 1999. He currently serves as the chief Washington correspondent and hosts the online show "The Foxhole."