Former FOIA Overseer Calls Hillary’s Email Defense ‘Laughable’

Writing at Politico, 30-year Justice Department veteran and former Freedom of Information Act overseer Dan Metcalfe pronounces Hillary Clinton’s excuses for her private email server “laughable,” taking particular care to distinguish between the occasional use of private mail by government officials and Clinton’s unbelievably brazen scheme to route all of her official correspondence through a secret box where data could be deleted at her whim:

First, while it is accurate for Secretary Clinton to say that when she was in office there was not a flat, categorical prohibition on federal government officials ever using their personal email accounts for the conduct of official business, that’s a far different thing from saying (as she apparently would like to) that a government official could use his or her personal email account exclusively, for all official email communications, as she actually did. In fact, the Federal Records Act dictates otherwise.

That law, which applies to all federal agency employees who are not within the White House itself, requires the comprehensive documentation of the conduct of official business, and it has long done so by regulating the creation, maintenance, preservation and, ultimately, the disposition of agency records. When it comes to “modern-day” email communications, as compared to the paper memoranda of not so long ago, these communications now are themselves the very means of conducting official business, by definition.

During the early days of the scandal, this was the key point Clinton defenders sought to obscure. They wanted us to think critics were overreacting to a few personal mail messages here and there.  As Metcalf explains, even if that was Clinton’s situation – and it most certainly was not – she would still have been obliged by the Federal Records Act to promptly forward official correspondence sent through a personal account to the State Department for preservation. Instead, she slipped every single email into her virtual lockbox and sat on them for years, compromising national security in the process. It’s as if she set out to demonstrate exactly what every federal transparency and security law was written to prevent. She could be used as a bad example in State Department orientation sessions for a generation to come.

Metcalfe also hits the point inadvertently conceded by overheated Clinton henchman James Carville on Sunday-morning television: Hillary’s email scheme was obviously, primarily intended to evade oversight. In order to comply with either the letter or spirit of the Freedom of Information Act, disclosure must be both thorough and timely:

Second, the official availability of official email communications is not just a matter of concern for purposes of the Federal Records Act only. It also makes an enormous (and highly foreseeable) difference to the proper implementation of the Freedom of Information Act (known as the “FOIA” to its friends, a group that evidently does not include Secretary Clinton).

That is because the starting point for handling a FOIA request is the search that an agency must conduct for all records responsive to that request’s particular specifications. So any FOIA request that requires an agency first to locate responsive email messages sent to or from that agency’s head, for instance, is necessarily dependent on those records being locatable in the first place.

And an agency simply cannot do that properly for any emails (let alone all such emails) that have been created, and are maintained, entirely beyond the agency’s reach. Or, as it sometimes is said somewhat cynically in the FOIA community, “You can’t disclose what you can’t find.”

That’s why it was so insanely disingenuous of Clinton to chirp that she’s directed her people to hand over everything now. Even if that was true – and it isn’t, not by a long shot – it wouldn’t mitigate her offense, because she kept that information buried for years. There is every reason to suspect some of it has been buried in unmarked digital graves forever, blasted off her sealed private server.

But then Metcalfe caps it off by saying he’d still vote for Hillary anyway.

The aristocratic privilege of our above-the-law Ruling Class has never been made more explicitly clear. There are no “laws” binding them, because breaking a law means trial and punishment. No legal consequences means no law – it’s all just a series of polite fictions designed to fool Americans into thinking their rulers are far more honest and accountable than they actually are. Political remedies are insufficient for enforcing important laws, especially since they’re so uncertain. Plenty of corrupt politicians would cheerfully act as Hillary Clinton did, even if they thought they would be barred from holding future office in years to come if they got caught. Having a good shot at winning office despite the offense reduces the concept of “accountability” to an unfunny joke.

Saying you’ll vote for Hillary even after you’ve picked apart a ridiculous pack of lies designed to shield her from oversight means you won’t even apply voluntary political consequences for the violation of important rules. It is an act of submission unworthy of any free American. We could have stuck with the British crown if we wanted to be ruled by unaccountable potentates. Besides, why does anyone think a slippery character who thinks nothing of risking the security of the nation to keep her dealings secret would make a trustworthy or prudent president?

National Journal’s Ron Fournier touched on that issue of trustworthiness when commenting that James Carville “sold her out” by admitting Clinton’s objective was the evasion of congressional oversight. He speculated that she would put on a big show of “transparency” during her 2016 campaign to wipe the story away, placing a not-unreasonable bet on the short attention spans of American voters. Maybe she’ll lose that bet, especially since she doesn’t have a lot of personal magnetism to charm the non-robotic portions of the electorate into giving her a fresh start.

Carville probably wasn’t deliberately throwing Clinton under the bus. He was trying to denigrate the entire concept of congressional oversight and transparency laws, in the middle of an anti-Republican rant: “I suspect she didn’t want Louie Gohmert rifling through her emails.”

It’s not news that the increasingly despotic Democrat Party thinks representative government should be done away with, replaced by a single election every four years to empower a unitary gridlock-free imperial executive. The emperor, or empress, can’t be distracted by peasants who forget their place and file Freedom of Information Act requests, either.

We are told to accept mere democracy – not even small-r republican representation, but a mass popularity contest to choose or confirm a single paramount leader who will impose the tyranny of the majority – as the only practical limit on power.

But how can even that paltry, insufficient limitation be meaningful, if the truth can be sealed away in private computer systems until such time as our rulers see fit to divulge it? “Choice” based on deception is but the illusion of freedom, and not a very convincing one at that. Hillary Clinton certainly doesn’t appear to see herself as humble before the strength and wisdom of the American people, any more than Barack Obama did. Very few of us have anywhere near the amount of money required to get her attention.


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