The Daily Beast and Media Matters on Tuesday pushed back against a New York Times report that suggested former Secretary of State Hillary Clinton may have violated federal law by using a private email address for her official government communication.
The Times on Monday reported that Clinton "did not have a government email address during her four-year tenure at the State Department. Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act." The existence of Clinton's private email address was first reported by Gawker in 2013.
Critics accused Clinton of failing to uphold her commitment to transparency by choosing which personal emails to turn over to the State Department for public record, as well as putting potential high value information at risk to hacking by foreign agents. Former Florida Gov. Jeb Bush (R), Clinton's potential rival in the race for president in 2016, immediately called on her to submit unclassified emails to public record.
A report by Michael Tomasky in The Daily Beast, however, cast a heavy dose of skepticism over the Times' reporting on the regulation that required officials to preserve email communications. A State Department official told Tomasky that employees were told in October 2014 that personal email should generally not be used for government business, but if it is, communications must be forwarded to a government account in order to be appropriately preserved. Clinton left the Department prior to that, in February of 2013, however.
"So if these new regulations went into effect after she left State, then what rule did she violate, exactly? And, if this is true, why did the Times not share this rather crucial piece of information with its readers? No one could possibly argue that this fact isn’t germane to the story. It’s absolutely central to it. Why would the Times leave it out?" wrote Tomasky.
Media Matters, a liberal watchdog group whose chairman David Brock is a top Clinton ally, echoed the sentiment by noting that President Barack Obama only amended the Presidential and Federal Records Act on November 26, 2014. "Among the 'major points' in the 2014 law highlighted by the National Archives was: 'Clarifying the responsibilities of Federal government officials when using non-government email systems,'" the group wrote. Bloomberg also followed up Tuesday, writing that the "measure wasn’t in effect when Clinton served in the administration."
Clinton's email account was hosted on a personalized domain, clintonemail.com, and was reportedly registered on the day of her confirmation hearing in January 2009. While former Secretary of State Colin Powell also used a personal email account to conduct some official business, current Secretary of State John Kerry is the first department chief to primarily use his government account.
Marie Harf, a spokeswoman for the State Department, told Business Insider on Tuesday that Clinton regularly submitted her emails to the Department when requested for proper record preservation.
"In response to our request, Secretary Clinton provided the Department with emails spanning her time at the Department," she said.
But that still doesn't address why, as Tomasky noted, Clinton decided to forgo a government email account entirely. It also fails to allay concerns that Clinton could potentially select which emails to submit for preservation, and therefore which emails to omit, without any transparency.
Reached for comment on Tuesday, a spokesperson for The New York Times pointed to Section 1236.22 of the 2009 National Archives and Records Administration (NARA), which requires the Department to ensure that all communications are adequately preserved even if employees use a "system not operated by the agency," as in Clinton's case.
"Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency record keeping system," the law reads.
Michael Schmidt, the author of the Times story, also said earlier Tuesday that Clinton did violate existing State Department regulations.
“Explicit regulations were in place when Hillary Clinton was Secretary of State that said they had to be retaining her emails on government servers in an active sense,” Schmidt said on MSNBC's "Morning Joe." “The argument that Hillary Clinton’s side makes is, well, she was sending a lot of emails to the State Department so they were being caught. But what they didn’t address was the emails that she may have sent to other government departments, the White House, foreign leaders, friends, other Americans."
The White House on Tuesday argued that the details were best left up to the State Department, as it sets its own rules with respect to record management.
“It is the responsibility of agencies to preserve those records," White House Press Secretary Josh Earnest told reporters at his daily briefing.
Citizens for Responsibility and Ethics in Washington, a liberal watchdog group that previously criticized the George W. Bush administration over missing emails, didn't have anything to say about the prospect of missing Clinton emails during her tenure as secretary of state. The Huffington Post repeatedly attempted to get comment from the group, which is run by Clinton ally David Brock, on Tuesday, but did not hear back after more than 7 hours.
The group felt much more strongly about another case of missing emails in 2007, when it lambasted the White House for failing to properly record email communications as required by the Presidential Records Act. Senior Bush advisers, including messaging guru Karl Rove, allegedly used Republican National Committee email servers for official communication that created a gap of over 5 million emails between March of 2003 and October of 2005 -- a timespan encapsulating Bush's re-election bid. Then-White House press secretary Dana Perino admitted that officials "screwed up" by not requiring the saving of emails sent using GOP campaign accounts.
UPDATE -- 7:41pm: CREW spokesman Stephen Santulli released the following statement Tuesday night, calling the matter a "systemic problem throughout the federal government":
“Today’s New York Times report shines a light on a systemic problem throughout the federal government. Agencies simply do not know how to handle emails from a record keeping perspective. That is why President Obama issued an executive order mandating that all agencies have electronic record keeping systems in place by 2016. But that will take new technology, which means money, which is why the President gave agencies several years to comply.
"Secretary Clinton is not the first agency head to go without an official email account. FOIA requests CREW sent during the Bush Administration revealed that then-Attorney General Michael Mukasey and Secretary of Homeland Security Michael Chertoff did not have official email accounts, and we understand the practice was even more widespread and continues to the present.
"This issue is not unique to any official or agency. It is an ongoing issue that President Obama’s order is designed to address.”