The Daily Banter

We Finally Know the Not-So-Harrowing Regulation Hillary Clinton Allegedly Violated

Written by Bob Cesca

Throughout most of Monday night and all of Tuesday, those of us who weren't automatically kneejerking and garment-rending about Hillary Clinton were scratching our heads in an attempt to determine what specific law, if any, the former Secretary of State had actually violated with regards to her email account. And now, 24 hours after The New York Times' bombshell article hit newsstands, there's been a minor clarification from the reporter of the story, Michael Schmidt.

Before we continue, let's recap.

Bear in mind what the article said. Clinton "may have" violated regulations by not storing records from her private email account on government servers.

Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act.

Naturally, many of us stumbled onto the law that was cited by name in the article: the Federal Records Act of 1950, which was amended by Congress and the president in late 2014, nearly two years after Clinton stepped down.

After extensive research to discover a key fact that should've been in Schmidt's article, we learned that during Clinton's tenure, the Federal Records Act didn't outlaw the use of private accounts and, prior to the 2014 update of the law, didn't require the storage of private account email records on federal government servers. This State Department excerpt from the Foreign Affairs Manual (FAM pdf page 5) also outlines the proper use of email by department employees. While it defines emails as "federal records," the October 1995 guidance doesn't explicitly require the archiving emails on federal government servers, nor does it forbid the use of private email accounts. Clinton clearly retained an archive of her emails per the law and State's guidance, but she apparently didn't copy her emails onto the department's archive (until last year, that is).

Finally, after too many hours of guesswork about something that should've been in the article in the first place, Schmidt revealed to Politico the alleged violation, which turned out to be a line from the U.S. Code of Federal Regulations (CFR):

According to Section 1236.22 of the 2009 NARA requirements, which Schmidt provided in an email, "Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system."

First of all, why wasn't this in the original article? Regardless, we checked it out and sure enough it was right there in the CFR... CONTINUE READING