Hillary Clinton’s use of private email not unusual, but still raises questions

Hillary Rodham Clinton in Washington in 2012.
(Alex Brandon / Associated Press)
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Hillary Rodham Clinton’s use of personal email accounts as secretary of State mimicked her predecessors but drew attention to her penchant for secrecy as she begins what appears to be a second presidential run.

Clinton turned her personal email over to the State Department last year so it could be saved for history, following “both the letter and the spirit of the rules,” Nick Merrill, a spokesman for the presumptive Democratic candidate, said in a statement Tuesday.

Yet many of her emails became part of the record only when Clinton messaged State Department employees at their official addresses, he said, a practice that stops short of ensuring that every email Clinton wrote made its way into federal archives. The explanation left out what happened to her emails to foreign officials or others outside the government and what security concerns were raised by her use of a private email account.


Clinton’s allies defended the practice, with one liberal group labeling questions about it a “right-wing attack.” Merrill cited former secretaries of State of both parties who did the same thing.

“Like secretaries of State before her, she used her own email account when engaging with any department officials,” Merrill said. “For government business, she emailed them on their department accounts, with every expectation they would be retained.”

The Clinton camp’s response recalled earlier instances of her political instinct for privacy and protection, honed over years in public life. As first lady in the early 1990s, for example, the secrecy surrounding the closed-door healthcare reform negotiations that she spearheaded for President Clinton helped contribute to their failure.

Now, with Clinton widely considered the front-runner for her party’s presidential nomination even though she has yet to declare her candidacy, her team is facing questions about her high-profile role as the nation’s top diplomat during President Obama’s first term.

“If the secretary was doing what she was supposed to do under the law, why would the State Department have to ask her for her emails back?” asked Republican Rep. Trey Gowdy of South Carolina, the chairman of a House select committee looking into the attacks on a U.S. diplomatic compound in Benghazi, Libya, that happened while Clinton ran the department. Four Americans were killed, including the ambassador.

Word of Clinton’s private email account, first disclosed by the New York Times, put pressure on the White House to answer questions about an administration that Obama long has promised would be the most transparent in history. His team is supposed to conduct business on government email, yet some officials apparently exchanged messages with Clinton at one or more private email addresses when she was secretary of State.


The top White House spokesman said he wasn’t sure whether anyone in the West Wing suspected Clinton wasn’t using an official email address like everyone else.

“I’d be surprised if anybody did,” Press Secretary Josh Earnest said, while asserting that Clinton complied with the law.

Federal law has long required agency directors to preserve documents generated in the course of business. The legal rules governing preservation of work emails from non-work accounts wasn’t explicit in the law until November, however, more than a year after Clinton left the administration.

Clinton wouldn’t be the first digital-age official to steer carefully through the law to try to keep some control over correspondence. Republican former Florida Gov. Jeb Bush, himself a likely presidential candidate, has controlled what messages might become public.

Obama’s former Environmental Protection Agency director, Lisa P. Jackson, had an email account in the name of “Richard Windsor.” In the midst of an inquiry at the Internal Revenue Service, emails from the former agency administrator temporarily went missing.

Clinton turned over some of her messages at the State Department’s request last year, which in turn released about 300 of them to Gowdy’s committee.


Gowdy said the panel learned last summer that Clinton had used a personal account for official business. More recently, it learned she had exclusively used private email accounts — more than one — in lieu of an official one.

Gowdy said State Department officials could not certify they had produced all of Clinton’s emails “because they do not have all of Secretary Clinton’s emails, nor do they control access to them.”

“You do not need a law degree to have an understanding of how troubling this is,” he said.

Democrats downplayed the significance of the private accounts, saying Clinton’s use of personal email has been public knowledge for years and follows a pattern of previous secretaries.

Rep. Elijah E. Cummings (D-Md.), the top Democrat on the Benghazi committee, said the panel received Clinton’s emails relating to the 2012 attack last month. He called on Gowdy to “make them available to the American public so they can read their contents for themselves.”

Gowdy is part of the “right-wing attack apparatus,” said Isaac Wright, executive director of Correct the Record, an arm of the liberal group American Bridge.

“Like the secretaries of State before her, they were from a private email account,” Wright wrote in an email. “Will congressional Republicans show an equal interest in transparency in their own party?”


The Federal Records Act requires that, day in and day out, Clinton or someone on her behalf assist in preserving emails, said Daniel J. Metcalfe, the founding director of the Department of Justice Office of Information and Privacy, who is now a teacher of secrecy law at American University’s law school.

“If there is official government activity, it ordinarily should be memorialized in a record. She can’t just be freewheeling all over the place with these communications and not worry about memorializing them or maintaining them,” he said.

A decision not to set up a government account undermines a commitment to preservation, Metcalfe said. The most reliable way to generate a record would be with such an account.

But there may be legitimate reasons to make some use of private email, he said.

“If you’re the secretary of State and you’re responding to crises around the world 24 hours a day, sometimes you might not have your government phone handy,” he said. “Sometimes you’ll just have your personal phone. There should be some flexibility.”