Subject: Buzzfeed | Justice Department Lawyers: Clinton Had Authority To Delete Personal Emails
From: Adrienne Elrod <[email-masked]>
To: Adrienne Elrod <[email-masked]>
Date: Fri, 11 Sep 2015 17:35:09 -0400

Justice Department Lawyers: Clinton Had Authority To Delete Personal Emails

*Buzzfeed/**Ruby Cramer*

In a little noticed brief, filed on Wednesday to a federal court,
Department of Justice lawyers outlined a comprehensive defense of the
contentious decision by Hillary Clinton to wipe the private email server
she used as secretary of state: The attorneys assert that, regardless of
whether she used a personal or government account, Clinton was within her
legal right to handpick the emails that qualify as federal records — and to
delete the ones she deemed personal.

“There is no question that former Secretary Clinton had authority to delete
personal emails without agency supervision — she appropriately could have
done so even if she were working on a government server,” write the Justice
Department attorneys, representing the State Department in the brief
<https://assets.documentcloud.org/documents/2401598/state-objections.pdf>.

The lawyers add that under policies issued by the State Department and by
NARA, the National Archives and Records Administration, government
employees “are permitted and expected to exercise judgment to determine
what constitutes a federal record.”

The filing is the latest in a long-running fight between the State
Department and the conservative public interest group, Judicial Watch, over
public records related to Clinton’s tenure in the administration. The brief
this week, as first reported by *the Washington Times*, concerns Clinton’s
personal emails in particular.

Late last year, in response to an administration record-keeping request,
Clinton and her attorneys conducted a review of four years’ worth of email
from her personal account, which she used to conduct government business as
secretary of state. And in December, Clinton sent the State Department
copies of emails she identified as work-related. The 31,830 remaining
emails, described as strictly personal, were deleted.

In all the complexity of the email controversy — involving a tangle of
concerns about server technology, anachronistic record-keeping practices,
and the government’s oblique classification system — one of the more
straightforward questions has lingered since news of the email account
broke in March: Was it sound for Clinton to determine, without supervision,
the emails she considered work-related, and therefore part of the federal
record, and to then delete the rest?

The Justice Department lawyers argue in the affirmative on both counts.

The attorneys, representing the State Department, filed the brief in
response to a proposed “preservation order”
<https://assets.documentcloud.org/documents/2401596/jw-proposed-order.pdf> by
Judicial Watch: essentially a request
<https://assets.documentcloud.org/documents/2401597/jw-notice-of-order.pdf>
that
the State Department obtain and/or preserve the 31,830 emails not turned
over in December “until the court can fully brief and consider relevant
questions of law.” The sought preservation order, proposed to the federal
court last week, is part of a Judicial Watch Freedom of Information Act
case, re-opened this spring following the disclosure of Clinton’s personal
email server. (Of the 30 outstanding FOIA suits relating to Clinton’s
tenure at the State Department, Judicial Watch has filed 16.)

The group’s preservation order would also ask that Clinton, her lawyer, and
her IT company “confirm in writing under penalty of perjury” whether they
or anyone else still hold the emails from the server not already turned
over to the State Department.

In the response from the Justice Department, attorneys state that, first
and foremost, they cannot comply with the proposed order because there is
no legal basis under FOIA law for access to a federal employee’s personal
records.

The Justice Department also stated that Clinton had the authority to
determine what constituted her own personal and federal records — just as
she would have were she working on a government email account.

For those reasons, the Justice Department argued, there is no legal basis
for the preservation order.

In the brief, the Justice Department lawyers note that the State Department
— as with other government agencies that task employees with managing their
own emails — requires individuals to “review each message, identify its
value, and either delete it or move it to a record-keeping system,”
according to NARA rules.

As such, the attorneys state, “there is no question” that Clinton was
legally permitted to delete correspondence she considered personal. Because
State Department employees “may delete messages they deem in their own
discretion to be personal,” the briefing reads, the Judicial Watch argument
“reduces to an unsupported allegation that former Secretary Clinton might
have mistakenly or intentionally deleted responsive agency records rather
than personal records.”

The administration attorneys’ argument amounts to one of the most
definitive government statements that Clinton was not in violation of the
law in deciding to sort and delete the emails herself.

The back-and-forth over the preservation order, as part of a narrow FOIA
case, does not address the classification issues that still command
sustained political coverage about Clinton.

But in terms of the email submission itself, the lawyers argue that,
without reason to believe that Clinton was not honest and forthcoming in
selecting and turning over her federal records, no government agency would
be required to “recover deleted material based on unfounded speculation
that responsive information had been deleted.” Such was the case with
Clinton, the lawyers say.

The Department of Justice also now possesses Clinton’s email server, which
she handed over this spring amid an FBI inquiry into the security of the
setup. At the time, a report suggested
<http://www.msnbc.com/msnbc/fbi-optimistic-it-can-recover-some-data-clinton-server>
that
investigators might attempt to recover some deleted material. Asked to what
end the Justice Department remains in possession of the server — and
whether the officials have reason to believe that responsive information
had been been deleted — a spokesman declined to comment.

The Clinton campaign did not return a request for comment.

Judicial Watch has since replied
<https://assets.documentcloud.org/documents/2401595/jw-reply.pdf> to the
Department of Justice brief. The court had yet to rule on the order.

-- 

Adrienne K. Elrod
Spokesperson
Hillary For America
*www.hillaryclinton.com <http://www.hillaryclinton.com>*
@adrienneelrod