• Politics

The Problem With Hillary Clinton’s Email Record Search

4 minute read

A top expert on federal record-keeping policy criticized the method Hillary Clinton’s lawyers used to determine which emails to forward to the State Department for archiving.

Jason R. Baron, a lawyer at Drinker, Biddle and Reath and former director of litigation at the National Archives and Records Administration, said that Clinton’s team should have manually reviewed every email she sent on a personal email account to find which ones pertained to government business.

Instead, as Clinton revealed Tuesday, her attorneys searched the trove of emails for certain email addresses and subjects. Baron argued that raises the possibility that they missed some emails that should have been saved for the public record.

“There is an outstanding question, and it is a legitimate question, about whether she has now handed over all records pertaining to government business,” Baron says. “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.”

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On December 5, Clinton’s office submitted printed copies of 30,490 work-related emails to the State Department in response to an October records request issued to four former Secretaries of State. The correspondence, which amounted to some 55,000 printed pages, represented less than half of the 62,320 emails sent and received from Clinton’s private email account during her tenure in Foggy Bottom from March 2009 to February 2013. Clinton said during a press conference at the United Nations Wednesday afternoon that the remainder of the emails were personal in nature and thus did not have to be turned over.

As part of a nine-page statement released after the former Secretary’s press conference at the United Nations Wednesday afternoon, Clinton’s office detailed the “multi-step” process her counsel used to determine which emails it was required to submit to State. “Secretary Clinton directed her attorneys to assist by identifying and preserving all emails that could potentially be federal records,” her office said.

First, the lawyers searched all emails with a “.gov” email address in any address field, which yielded 27,500 emails—more than 90% of the total correspondence ultimately provided to State.

Next they searched for the first and last names of more than 100 State Department and other U.S. government officials. “This included all Deputy Secretaries, Under Secretaries, Assistant Secretaries, Ambassadors-at-Large, Special Representatives and Envoys, members of the Secretary’s Foreign Policy Advisory Board, and other senior officials to the Secretary, including close aides and staff,” Clinton’s office says. Then they sorted and checked for “misspellings or other idiosyncrasies” to locate documents the search might have missed.

Finally, they performed a search for specific keywords, including “Benghazi” and “Libya.” It is not clear how many such terms were used as filters.

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Clinton’s office said the method was exhaustive. “These additional three steps yielded just over another 2,900 emails, including emails from former Administration officials and long-time friends that may not be deemed by the Department to be federal records,” it said in the statement. “And hundreds of these emails actually had already been forwarded onto the state.gov system and captured in real- time.”

But Baron argues that using keywords as a shortcut raises the possibility that some work-related emails slipped through the cracks. “I would question why lawyers for Secretary Clinton would use keyword searching, a method known to be fraught with limitations, to determine which of the emails with a non-.gov address pertained to government business,” he says. “Any and all State Department activities, not just communications involving the keywords ‘Benghazi’ or ‘Libya’, would potentially make an email a federal record.”

“If the lawyers had more than a few days to conduct a search, given the high stakes involved and the fact that only on the order of 30,000 emails with non .gov addresses remained to be reviewed after clearly .gov federal records were separated out, I would have imagined staff could have simply conducted a manual review of every document,” Baron adds. “Using keywords as a shortcut unfortunately leaves the process open to being second-guessed.”

Read next: Transcript: Everything Hillary Clinton Said on the Email Controversy

See Hillary Clinton's Evolution in 20 Photos

Hillary Rodham Clinton
Teenager: Hillary Rodham poses in her 1965 senior class portrait from Park Ridge East High School in Illinois. AP
Hillary Rodham Clinton
Law School Student: Bill Clinton and Hillary Rodham pose for a snapshot at Yale Law School in 1972. They married in 1975.Clinton Presidential Library
Hillary Rodham Clinton
Mother: Clinton poses with her husband, Bill, then in his first term as governor, with their week-old daughter, Chelsea, on March 5, 1980.Donald R. Broyles—AP
Hillary Rodham Clinton
Campaign Companion: Clinton celebrates her husband's victory in a Democratic runoff in Little Rock, Ark. on June 8, 1982.AP
Hillary Rodham Clinton
Arkansas First Lady: Clinton is seen in her inaugural ball gown in 1985. A. Lynn—AP
Hillary Rodham Clinton
Political Wife: Clinton celebrates her husband's inauguration in Little Rock on Sept. 20, 1991.Danny Johnston—AP
Hillary Rodham Clinton
Dignitary: Clinton receives an honorary law degree from Hendrix College in Conway, Ark., on May 30, 1992.Chris Ocken—AP
Hillary Rodham Clinton
Campaigner: Clinton speaks at a meeting during the presidential campaign for her husband in Buffalo, N.Y., on April 4, 1992.Bill Sikes—AP
Hillary Rodham Clinton
First Lady: Clinton appears at the MTV Inauguration Ball at the Washington Convention Center on Jan. 20, 1993. Shayna Brennan—AP
Hillary Rodham Clinton
Second-Term First Lady: Clinton attends the Inaugural Ball after her husband was sworn in to a second term on Jan. 20, 1997. Brooks Kraft—Corbis
Hillary Rodham Clinton
New York Senator: Clinton speaks at a press conference with female Democratic senators in Washington on June 21, 2006. Brooks Kraft—Corbis
Hillary Rodham Clinton
Committee Member: Clinton listens to the testimony of Lt. General David Petraeus to the Senate Armed Forces Committee at a hearing on Capital Hill in Washington on Jan. 23, 2007. Brooks Kraft—Corbis
Hillary Rodham Clinton
Candidate: Clinton holds a a campaign event in Portsmouth, N.H., while running for the Democratic presidential nomination on Sept. 2, 2007. Brooks Kraft—Corbis
Hillary Rodham Clinton
Campaigner: Clinton speaks at a campaign stop in Cedar Rapids, Iowa on Jan. 2, 2008. Brooks Kraft—Corbis
Hillary Rodham Clinton
Secretary of State: Clinton kisses President Obama at a joint session of Congress in Washington on Feb. 24, 2009. Brooks Kraft—Corbis
Hillary Rodham Clinton
Witness: Clinton joins Chairman of the Joint Chiefs of Staff Admiral Michael Mullen and Secretary of Defense Robert Gates before the Senate Foreign Relations Committee on Dec. 3, 2009. Brooks Kraft—Corbis
Hillary Rodham Clinton
Witness: Clinton testifies before the Senate Foreign Relations Committee hearing on the deadly attack on the U.S. diplomatic mission in Benghazi, Libya, on Jan. 23, 2013.J. Scott Applewhite—AP
Hillary Rodham Clinton
Author: Clinton attends a signing memoir, "Hard Choices," at a Costco in Arlington, Va., on June 14, 2014. Brooks Kraft—Corbis
Hillary Rodham Clinton
Grandmother: Clinton holds her granddaughter Charlotte Clinton Mezvinsky at Lenox Hill Hospital in New York City on Sept. 27, 2014.Office of President Clinton/AP
Hillary Rodham Clinton
Once and Future Candidate: Clinton speaks at Iowa Senator Tom Harkin's annual Steak Fry in Indianola, Iowa, on Sept. 14, 2014. Brooks Kraft—Corbis

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