In the Two Minute Drill, we explain complex issues in politics in 500 words or less (roughly the amount of words it takes the average adult two minutes to read on a monitor). Politics just isn’t always that complicated. Without the fluff and partisan bias, even the most complex of our political differences can be explained succinctly. This week: taking a look at the Clinton email controversy and the definition of “federal records” under applicable federal law. This is The Two Minute Drill for April 10, 2015.
In March, Hillary Clinton came under fire after reports revealed that she exclusively used a personal email account during her time as secretary of state. Did Clinton do anything wrong? As of now, there’s no evidence that Clinton violated any State Department rules. Although a 2005 State Department policy encourages employees to conduct “normal day-to-day operations” through the State Department’s official email system, the department does not prohibit the use of personal email address to conduct official government business. Further, both of Clinton’s predecessors, Colin Powell and Condoleezza Rice, had (and used) private email accounts during their time at the helm of the State Department. But did Clinton violate any federal laws?
The Explanation (500 or Bust)
No, there is no evidence that Clinton violated federal law.
Under the Federal Records Act of 1950 (FRA), Congress deemed federal records worthy of preservation for their “informational value,” and also because they document “the transaction of public business” and the “organization, functions, policies, decisions, procedures, operations, or other activities of the Government.” In general, the FRA requires executive branch departments and agencies to collect, retain, and preserve – or dispose of – these records.
However, not every “record” created by the federal government is covered by the FRA. The FRA only applies to “federal records,” a term with a specific meaning. The FRA does not, for example, apply to presidential records (these are covered by the Presidential Records Act) or the records of Congress, or to “library and museum material made or acquired and preserved solely for reference or exhibition purposes.”
The definition of a “federal record” has changed over time. Previously, the statutory definition of record included references to certain types of materials or platforms on which records could be created or captured, such as “books, papers, photographs,” and “machine-readable formats.” But then, on November 26, 2014, Congress passed and the President signed into law P.L. 113-187, the Presidential and Federal Records Amendments Act of 2014. Among the bill’s provisions was language amending the definition of a federal record.
Rather than including references to certain types of materials or platforms, the amended definition refers more generically to “recorded information.” According to the congressional reports that accompany P.L. 113-187, the amended definition of federal record seeks to “shift the emphasis away from the physical media used to store information to the actual information being stored, regardless of form or characteristic.”
P.L. 113-187 expressly empowers the Archivist of the United States, in cases where there is a disagreement over whether particular materials constitute a federal record, to determine “whether recorded information, regardless of whether it exists in physical, digital, or electronic form, is a record” for purposes of the FRA and states that his determination “shall be binding on all Federal agencies.” Since P.L. 113-187’s passage, the Archivist has stated that the system used to create the record should not effect an agency’s determination as to whether the information qualifies as a federal record.
That statement is directly applicable to the controversy over the use of personal emails. It makes clear that, when federal employees use personal e-mail to conduct official business, the communication is considered a federal record. That would seem to implicate Clinton. But here’s the kicker: Clinton stepped down as secretary of state on February 1, 2013, nearly two years prior to the passage of P.L. 113-187.
Despite that, Clinton’s decision to use a personal email account stored on her own private server raises questions, at best. Particularly when you’re (likely) running for president.
Word Count: 465
THE FIVE: Here are the five best things we’ve read all week.
- Saving Sergeant Bergdahl. “He was one of the finest int he platoon, two of them told Newsweek, and he was meticulous about the gun-cleaning, field-manual-memorizing details of military life. He and his buddies liked to spend nights drinking chai with the Afghan National Police officers stationed up on a dusty hill. He smoked a pipe.” From Michael Ames in Newsweek: Untangling the Mysteries Behind Bowe Bergdahl’s Rescue Mission.
- Troll. “The Internet Corporation for Assigned Names and Numbers, or ICANN, on Thursday sent a letter to the U.S. Federal Trade Commission and Canada’s Office of Consumer Affairs to see if the actions of company Vox Populi Registry Ltd. are illegal. . . . [If Canadian or U.S. regulators find the actions illegal], it could declare the company in breach of its contract and seek to change the registry’s behavior.” From the Associated Press: Internet Naming Body Moves to Crack Down on “.Sucks”.
- Informant. “‘You’re lying to me,’ the man said. Carlos Toro took a gulp of wine and tried to maintain his composure. For years, he had dreaded hearing those words.” From Nick Wing in Gawker: A Former Medellin Cartel Official Has Been a DEA Informant for 27 Years. Now He Wants Out.
- Extinction Event. “Marine animals whose skeletons are comprised of calcium carbonate – and that’s a lot of them (think snails, coral), which form a crucial part of the food chain – dissolved or couldn’t form in the first place. And that is what’s happening today.” From Brian Merchant in Vice: The Last Time Oceans Got This Acidic This Fast, 96% of Marine Life Went Extinct.
- Apple a Day Part Deux. “Finally now, for the first time in two years, I feel light, creative and inspired. I am again an individual with my own creative ideas, perceptions, values and beliefs. It may take me a while, but from what I believe – I’m now able to express such beliefs again. I am no longer part of the collective iCult machine . . . .” From Nomatic_Rambler on Road Less Travelled: What Really Goes on at Apple.
And in case you missed it, check out The Weekly Column. This past week took a look at right-to-work laws. Read the Column for April 7, 2015 – Right-to-Work Laws, Explained.