The Obama administration told a federal court Wednesday that former Secretary of State Hillary Rodham Clinton was within her legal rights to use of her own email account, to take messages with her when she left office and to be the one deciding which of those messages are government records that should be returned.
In the most complete legal defense of Mrs. Clinton, Justice Department lawyers insisted they not only have no obligation, but no power, to go back and demand the former top diplomat turn over any documents she hasn’t already given — and neither, they said, can the court order that.
The defense came as part of a legal filing telling a judge why the administration shouldn’t be required to order Mrs. Clinton and her top aides to preserve all of their emails.
“There is no question that 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,” the administration lawyers argued. “Under policies issued by both the National Archives and Records Administration (‘NARA’) and the State Department, individual officers and employees are permitted and expected to exercise judgment to determine what constitutes a federal record.”
The legal brief said that means employees are required to “review each message, identify its value and either delete it or move it to a record-keeping system.”
It’s unclear whether Mrs. Clinton’s review process, which she said involved her lawyers making determinations, qualifies.
Judicial Watch, which had at least 16 active open-records lawsuits against the State Department seeking emails from Mrs. Clinton or her top aides, said the administration is ignoring its own guidelines in trying to clear Mrs. Clinton.
“Indeed, the State Department’s own rules specify that personal records of a departing presidential appointee may not be removed from the government until the State Department ‘records officer in cooperation with the S/ES or appropriate administrative office’ approves of the removal, a process which ‘generally requires a hands-on examination of the materials,’ ” Judicial Watch said in a reply brief.