- The Washington Times - Monday, March 23, 2015

Hillary Rodham Clinton’s email practices are now becoming a legal headache for the Obama administration, which for the first time has admitted to a court that the former secretary of state withheld her emails.

Administration attorneys are now scrambling to contain the damage by promising to redo what eventually could be hundreds of open records searches that were tainted by Mrs. Clinton’s email practices and those of her top aides, who, according to a New York Times report Monday, also occasionally used private emails to communicate.

The government attorneys, however, insist that the officials didn’t break the law or act in bad faith by not revealing to anyone that it never searched Mrs. Clinton’s emails, despite hundreds of requests for her electronic communications that were unable to be completely fulfilled because the department didn’t gain access to her messages until late last year.

“It’s a con game. They’ve been caught in a con,” said Tom Fitton, president of Judicial Watch, a conservative public interest law firm that filed 160 open-records requests that could have been tainted by Mrs. Clinton’s email practices. “The concern is there’s been misconduct and misrepresentation and fraud on the courts, and certainly on Judicial Watch.”

His organization has asked a court to reopen one case seeking Mrs. Clinton’s emails, saying the State Department couldn’t have completed a search last year because it never had her emails in the first place.

Justice Department lawyers defending the State Department told Judge Royce C. Lamberth that while the government didn’t get Mrs. Clinton’s emails until last year, they have since searched the 30,000 or so messages to determine whether any of them should be released in response to Judicial Watch’s request. The lawyers promised to share the results of their search next month.

“Those documents were not in [the State Department’s] possession and control when the original search was completed,” the lawyers told U.S. District Court for the District of Columbia. “Once those emails were provided to the department and thus entered the department’s possession and control the department, on its own initiative, searched them for records responsive to the [open-records] request.”

The attorneys said the fact that they didn’t disclose that Mrs. Clinton’s emails weren’t searched “was neither a misrepresentation nor a material omission” because the government didn’t have control of them.

But the revelation that other top Clinton aides may have used personal addresses to communicate with Mrs. Clinton or with one another creates a bigger headache for the department, opening a number of other potential searches.

Gawker Media sued earlier this month seeking access to emails from Philippe Reines, a top aide to Mrs. Clinton. Gawker was stunned when the State Department earlier said it couldn’t find any Reines emails on a particular topic, even though another news outlet confirmed that Mr. Reines emailed on the subject.

“Based on the facts known thus far the developing story appears to be that the use of personal e-mails by Secretary Clinton and members of her senior staff may have been a deliberate attempt to shield communications from capture by governmental systems and the public’s eye, for reasons yet unknown,” Gawker’s attorneys told the federal court.

The New York Times on Monday reported that Mr. Reines and at least three other top Clinton aides, Huma Abedin, Jake Sullivan and Cheryl Mills, occasionally used private emails to communicate with Mrs. Clinton.

Mrs. Clinton’s office told the paper that her aides rarely used their nongovernment email accounts to conduct business, amounting to “the tiniest fraction of the more than one million emails they sent or received.”

The State Department this month asked Mrs. Clinton’s team whether any members still have emails on their personal accounts that should be considered public business.

The White House and State Department have tried to keep the controversy at arm’s length, saying the law made it Mrs. Clinton’s responsibility to follow email guidelines and regulations. They have directed questions on the matter to her.

Open-records laws require that communications involving government business generally be stored — though the laws leave a good deal of discretion to agencies and to the individuals creating the records. Official email accounts are usually automatically cataloged and stored, but those who use nonofficial accounts are supposed to forward messages involving government business to their official accounts to ensure that they, too, are collected.

Mrs. Clinton instead relied on her own email account and a private server kept at her home in New York for all business during her time in the administration. She said it was more convenient than having a personal and a work account.

Nearly two years after she left office, and after a congressional probe learned about her account, she turned over about 30,000 messages to the State Department but said she didn’t keep another 32,000 messages she deemed private business, not government-related.

The State Department didn’t respond to a request from The Washington Times on Monday, and spokeswoman Marie Harf refused to comment at the department’s daily press briefing about reports that top Clinton aides also used private accounts.

Mr. Fitton said the Obama administration is trying to keep the courts from delving too deeply into the situation, but he said plenty of unanswered questions pose tricky problems for the administration and for Mrs. Clinton, who is expected to announce a bid soon for the Democratic presidential nomination.

“We still don’t know who has separate email accounts, who had these alias accounts, how many records there are, were records destroyed, who was responsible for these records legally, who in the agency knew about these records, when did the Justice Department know about these records, why wasn’t Judicial Watch aware of these records, why wasn’t the court aware of these records?” Mr. Fitton said.

If Mrs. Clinton were a CEO or some other private individual whose records came under scrutiny, Mr. Fitton said, the FBI would have rushed to secure the records and ensure they weren’t being destroyed. The government then would try to recover any lost or deleted records.

One legal hurdle for those seeking to pry into the emails is a federal judge’s ruling this month that courts cannot compel agencies to dig into their employees’ private email accounts to dig up messages dealing with government business. The court ruled that it is up to agencies to police themselves, not for judges to intervene.

Mr. Fitton, though, said Mrs. Clinton’s situation goes beyond an employee occasionally using a private account, and he said it’s wrong to describe Mrs. Clinton’s emails as private because the server and account were set up to handle government business.

“This is an unprecedented case. This is the head of an agency setting up an email specifically to make sure that no one could search and review that material as the law requires,” he said.

A House investigative committee has requested that Mrs. Clinton’s emails be turned over to an independent third party such as a retired judge or inspector general, but the documents could end up in front of an active judge or inspector general. Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, which oversees open-records laws, has asked the State Department’s inspector general to take a look at the department’s email rules and Mrs. Clinton’s behavior and to report back on what the next steps should be.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• S.A. Miller can be reached at smiller@washingtontimes.com.

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