The Republican investigation into Secretary of State Hillary Clinton's use of private email has begun to focus on whether she appropriately turned over all the emails that she sent or received about government business to the State Department.
“There are gaps of months and months and months,” said South Carolina GOP Rep. Trey Gowdy, the chief congressional Benghazi investigator, on CBS’ Face the Nation Sunday, pointing specifically to an October 2011 trip to Libya when she was photographed using her Blackberry. “And if you think to that iconic picture of her on a C-17 flying to Libya, she has sunglasses on and she has her handheld device in her hand, we have no e-mails from that day. In fact, we have no e-mails from that trip.”
Under Obama Administration policy, officials are told to conduct their business principally on official email. If they use private emails accounts, they are instructed to forward emails that are federal records onto their federal accounts. Clinton opted for a different approach by conducting all her business on private accounts and then selecting those that concerned federal business after she left office and sending them to the State Department.
Experts on federal email record-keeping say that how Clinton handled them is a meaty topic.
“There is an outstanding question, and it is a legitimate question, about whether she has now handed over all records pertaining to government business,” says Jason R. Baron, a lawyer at Drinker Biddle and Reath and former director of litigation at the National Archives and Records Administration. "For example, in the case of an email that is mostly personal in nature but also contains a sentence or paragraph related to government business, then that email is a government record appropriate for preservation at the State Department, and should not continue to be withheld.”
U.S. law gives a broad definition of what constitutes a federal record, including "all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them."
Based on that law, Baron says the timing of when Clinton turned over the emails could matter too.
“In my view Secretary Clinton and the State Department were out of compliance on the day she left office, as federal records created on her private network had not been transferred and preserved in an official recordkeeping system as of that date,” he says. “It appears that she came into compliance only after the State Department requested a return of the government’s records.”
Clinton left the State Department in February 2013 but finished handing over about 55,000 pages of emails in only the past few months. She has since called on the State Department to review those records to determine which are appropriate for release to the public, a process that could take months.
Gowdy, who says he wants "everything" related to Libya and Benghazi, said Sunday that he had “lost confidence” in the State Department to determine what is public record and advocated for “a neutral, detached arbiter” to decide. Some outside experts in federal record-keeping practices agree that an outside review is needed.
“To be fair, as a practical matter, on a day-to-day basis individual employees do make decisions about whether a certain email will be put in a file or whether a certain document is a personal document,” says Doug Cox, a law professor at the City University of New York School. “However the question of the record status of an entire archive of emails sent and received by someone who was the Secretary of State have to be treated differently and especially given the highly questionable, if not illegal, practice of sequestering federal records in a private email system even after leaving the position, I really think there needs to be an independent review of the larger pool of emails, perhaps both by the State Department and the Archivist.”
Even if the Administration doesn’t set up an independent review, Gowdy has done his part keeping the issue in the spotlight, subpoenaing all Clinton emails related to the 2012 attacks on the U.S. consulate in Benghazi over Democratic objections. Robert Luskin, a lawyer who deflected a congressional subpoena request for George W. Bush political advisor Karl Rove under executive privilege concerns, says that an investigation into the former Secretary's personal email account would not be "unprecedented."
"Mrs. Clinton would always be amenable to a subpoena and the separation of powers/executive privilege issues depend upon the substance of what is sought, not who has custody of it," Luskin told TIME. "Obviously, by using a personal email account, she has complicated her life. In the typical case, lawyers for the administration and Congress would fight it out and she would, more or less, be a bystander. Now, she's in the ring."
No matter what happens, the emails will continue to be used as a political cudgel as Clinton weighs a presidential bid. After reports that Gowdy would attend a "Beyond Benghazi" fundraiser this month, Maryland Democratic Rep. Elijah Cummings said in a statement Monday that the select committee on Benghazi "appears" to have become a "surrogate for the Republican National Committee." Gowdy quickly canceled the appearance and his office told reporters that he was "unaware" of the organizers' planned topic.
Republicans continued to keep the pressure on. Michael Mukasey, an Attorney General in the George W. Bush Administration, said Clinton's latest actions reminded him of the Wile E. Coyote cartoon character. “There are people who think that the laws of physics don’t apply to them,” Mukasey told TIME. “The coyote in the Road Runner cartoons—he keeps running after he goes over the cliff and he doesn’t start to fall until he looks down and sees that he’s over the cliff. It’s the ultimate existential animal.”
Nine sitting Cabinet Secretaries and the Attorney General told TIME through spokespersons last week that they use a government email account for official business. Other Cabinet officials did not comment, but Vice President Joe Biden's office did. “The Vice President's emails, like the President's, are subject to the Presidential Records Act,” says a Biden spokesperson. “In accordance with the Act, the Vice President's e-mails are preserved and maintained.”
With additional reporting by Zeke Miller/Washington