by Amy Cramer and Chris Geidner - BuzzFeed
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 qualified 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.
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 — a more straightforward question has lingered since news of the email account broke in March: Was it a sound decision by Clinton to, without third-party oversight, determine the emails considered work-related, and therefore part of the federal record — and to then delete the rest?
On both counts, the Justice Department lawyers argue in the affirmative.
The attorneys, representing the State Department, filed the brief in response to a proposed “preservation order” by Judicial Watch: essentially a request 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.