The National Archives' Unique Role in Resolving the Clinton Email Case

With the State Department set to release the final batch of Hillary Clinton emails on Monday, the agency charged with enforcing federal records management policy is continuing its own probe of the matter.  

The National Archives and Records Administration included Clinton’s case on its annual listing of “alleged unauthorized disposition of federal records” as of the end of fiscal 2015, which the agency included in this month’s fiscal 2017 budget submission. Among three unresolved State Department items is the March 2015 listing for Clinton’s emails described as “pending agency response or follow-up.”

An Archives official told Government Executive on Monday that his agency has made records requests to State and that documents are being reviewed as part of an internal investigation. “We’re not ready to close down the case,” said Laurence Brewer, acting chief records officer for the U.S. government at the Archives.

Investigations of the national security ramifications of presidential candidate Clinton’s use of a private email server while secretary of State are under way by the FBI and State’s inspector general. The Archives’ internal investigations focus less on law enforcement than on cooperation and training at agencies, though the agency won new authority under the 2014 Presidential and Federal Records Act Amendments, which require that any official email designated officials send on an unofficial account be re-routed to a government account within 20 days.  

Archives’ latest list of questionable disposal of documents—updated quarterly for management—includes some cases dating back to the late 1990s at the Interior and Treasury departments, though most are from the past several years. Of the 52 cases open at the end of fiscal 2015, four involve ongoing litigation and three cases are under investigation by the Archives, the budget document stated, leaving 45 cases open and under investigation.

Among those cases listed are a 2011 incident involving Lt. Gen. Stanley McChrystal’s emails at the Defense Department and a March 2015 report that since-departed leaders of the Chemical Safety Board used private email to conduct business.

A separate table on cases closed in 2015 includes an allegation that Health and Human Services Secretary Kathleen Sebelius failed to turn over private account emails, a 2013 charge determined to be unfounded.

 “It does take a long time, particularly if the Justice Department is involved” with litigation that goes on for years, Brewer said. “For any credible allegation, via the press, or sometimes self-reported by agencies, or heard when our staff goes out to agencies, we open a case and ask the agencies to report.” Under the Code of Federal Regulations, agencies are required to report to Archives on whether the records can be recovered, with documentation on how, or if, the documents cannot be recovered, how the agency is revamping its procedures to avoid recurrences.

Brewer stressed that the Archives’ enforcement role is “much stronger than advisory. We are an oversight agency, and we take our role seriously.” Title 44 Chapter 33 of the U.S. Code provides statutory authority for the Archivist of the United States as well as for the attorney general, he said, “though we haven’t used it very often because we’ve had success working with agencies to resolve things cooperatively.”

Such success is clear from a look at tables from the past decade showing cases moving off this list as agencies determine whether lost documents can be recovered or “whether new policies and procedures need to be put in place,” Brewer said. “Agencies are generally cooperative.” Strengthening existing protocols involves training.

One of the continuing mysteries of the Clinton email dispute—one not likely to be resolved by the court-ordered release of the final batch of recovered and redacted emails—is whether the FBI and technicians can recover the nearly 30,000 emails that Clinton herself ordered deleted because they were “personal.” Tom Fitton, the president of the conservative legal group Judicial Watch, which has filed suit to obtain Clinton’s records to depose her staff, told The Hill on Friday that he thinks the 30,000 will be recovered.

Archives, meanwhile, has made it clear to State that it wants to see copies of the expected final inspector general’s report on the Clinton situation, Brewer said, and to make sure that State receives all relevant past records.