Last edited Sat Mar 7, 2015, 05:10 PM - Edit history (15)
attention away from the actual violation of law by Mrs. Clinton.
Here's the problem with the narrative that Michael Tomasky laid out the day this story broke in the NYT. Many of us have swallowed and made Tomasky’s narrative our own. Quite suitably his column in The Daily Beast is called, Nothing to See Here. http://www.thedailybeast.com/articles/2015/03/03/hillary-email-scandal-not-so-fast.html
Tomasky claimed that The NYT misled its readers when it printed an article Monday that Clinton had apparently violated the Federal Records Act. He responded that Clinton had only broken a rule that came into effect after she left office, and had not violated law. But that is simply false.
The NYT actually stated the violation of the Federal Records Act was in Clinton's failure to reveal the existence of her private email set up to conduct official business. Furthermore, the Times reported, Clinton had not taken steps to backup that data or protect it on government servers, information that wasn't revealed until two months ago when she was pressed by the Department to account for her email produced while in office. Mrs. Clinton resigned in February 2013. Tomasky wrote:
I am, however, saying this: You have to know how to read these things, and if you do know how to read them, there’s a big question here that could—potentially—exonerate Clinton to some or maybe even a considerable extent.
The (Times) article says that there were “new” regulations that Clinton was supposed to abide by.
Here, Tomasky committed the classic deception of seizing on an irrelevant point -- in this case, 2013 regulations that mandate official email use - as Tomasky labors to tell us, that rule postdated Secretary Clinton's departure from the Department. If that was all there was to it, Tomasky would be right and the Times would have committed an enormous "fishy" error.
What Tomasky did not explain, however, is that the controlling statute, the Federal Records Act, dates back to 1950 and it applies to all heads of federal agencies. The relevant part of that act was amended in 1976 (when Hillary was barely out of Law School). The original Act stated that all records must be preserved and conveyed to the National Archives. The mid-70s amendment specifically added "machine-readable documents" to the definition of record. That amendment as it stood while HRC was Secretary of State mandates that no records or official communications "regardless of form," -- including "machine readable" documents -- may be destroyed or altered, and that they must all be preserved and handed over to the Archivist. The statute imposes that affirmative duty on all heads of agencies.
The Records Act statute is binding, even without the later regulation. Failure to comply is and has always been unlawful. So why did the Bush Administration get away with erasing nonofficial emails, as was discovered in 2007? They could without mandatory penalty, and so they did. So did Hillary, who along with her lawyers undoubtedly learned something from that episode. There are no stated penalties for violation by the head of the agency, they have no incentive (other than possible political consequences) to comply. If you can delay the public learning about the breach of law long enough, the political reaction will be muted because there is little or no chance of criminal prosecution.
http://www.archives.gov/about/laws/fed-agencies.html#unlawful
§ 3106. Unlawful removal, destruction of records
(a) FEDERAL AGENCY NOTIFICATION.—The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed from that agency, or from another Federal agency whose records have been transferred to the legal custody of that Federal agency.
(b) ARCHIVIST NOTIFICATION.—In any case in which the head of the Federal agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action described in subsection (a), or is participating in, or believed to be participating in any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.
§ 3107. Authority of Comptroller General
Chapters 21, 25, 27, 29, and 31 of this title do not limit the authority of the Comptroller General of the United States with respect to prescribing accounting systems, forms, and procedures, or lessen the responsibility of collecting and disbursing officers for rendition of their accounts for settlement by the General Accounting Office.
Here are the operative definitions:
The statutory definition or records in the Federal Records Act (per the latest version shown at
https://www.law.cornell.edu/uscode/text/44/3301:
As used in this chapter, “records” includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included.
As can be seen, the definition is based on the anything made or received by a federal agency in connection with the transaction of public business, regardless of physical form. The specific things mentioned, like books and maps, do not limit that broader concept.
If you click on the notes tab, you find that "machine readable materials" was added in the 1970s. Again, though, the specific form in which data is embodied is not important. Here's that amendment in the attached Note:
› Title 44 › Chapter 33 › § 3301
44 U.S. Code § 3301 - Definition of records
Current through Pub. L. 113-296, except 113-287, 113-291, 113-295. (See Public Laws for the current Congress.)
US Code
Notes
Authorities (CFR)
Source
(Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1299; Pub. L. 94–575, § 4(c)(2),Oct. 21, 1976, 90 Stat. 2727.)
Historical and Revision Notes
Based on 44 U.S. Code, 1964 ed., § 366 (July 7, 1943, ch. 192, § 1,57 Stat. 380).
Amendments
1976—Pub. L. 94–575 expanded “records” to include “machine readable materials”.
Regardless of what the underlying law actually stated, Tomasky wrote the original NYT story that reported that Hillary Clinton had set up her own email system was "fishy", and that Times reporters and editors didn't know what they were doing:
I am, however, saying this: You have to know how to read these things, and if you do know how to read them, there’s a big question here that could—potentially—exonerate Clinton to some or maybe even a considerable extent.
The article says that there were “new” regulations that Clinton was supposed to abide by.
The article says that there were “new” regulations that Clinton was supposed to abide by. It notes that one past secretary of state, Colin Powell, who served from 2001 to 2005, sometimes used his personal email account “before the new regulations went into effect.”
So, a key question would seem to be this: When did the new regulations go into effect? If 2007 or 2008, then Clinton would appear to be in direct violation of them, depending on what precisely they said. If later, it gets a little murkier.
Oddly, the Times article doesn’t say. It doesn’t pin the new regs down to a specific date or even year.
Now, I know enough about reporting to know how this works. If you’ve got an airtight case, then you lay it all out there. You include the date. Indeed you emphasize the date, you put it high up in your story. The fact that it’s not in there is a little fishy.
Well, this might be the explanation: The new regs apparently weren’t fully implemented by State until a year and half after Clinton left State. Here’s the timeline: Clinton left the State Department on February 1, 2013. Back in 2011, President Obama had signed a memorandum directing the update of federal records management. But the National Archives and Records Administration (NARA) didn’t issue the relevant guidance, declaring that email records of senior government officials are permanent federal records, until August 2013. Then, in September 2013, NARA issued guidance on personal email use.
So if these new regulations went into effect after she left State, then what rule did she violate, exactly?
A senior State Department official emailed me to say that “in October 2014, a Department-wide notice was sent out which explained each employee’s responsibilities for records management. Consistent with 2013 NARA guidance, it included instructions that generally employees should not use personal email for the transaction of government business, but that in the very limited circumstances when it is necessary, all records must be forwarded to a government account or otherwise preserved in the Department’s electronic records systems.”
So if these new regulations went into effect after she left State, then what rule did she violate, exactly? And, if this is true, why did the Times not share this rather crucial piece of information with its readers? No one could possibly argue that this fact isn’t germane to the story. It’s absolutely central to it. Why would the Times leave it out?
The answer, Mr. Tomasky, is that NYT reporters and editors left out reference to the 2013 regulations because they aren't relevant to the fact of violation of law, even if that law has no teeth. That says a lot about the actual weakness of the rule of law that supposedly guides high public officials in the United States. Both the Bush Administration and Secretary Clinton were counting on the absence of criminal penalty when they violated that law.
But, that doesn't mean there should be no consequences, even merely political, when law breaking is finally revealed to the public.
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