The Secretary Actually Disobeyed NO Applicable State Department Policy, Let Alone Any Law
The author, an expert in corporate governance, is dismayed by the Inspector General's recent report finding that Secretary Clinton disobeyed formal State Department policies regarding the Department's unclassified email system -- dismayed as well by the drumbeat of media coverage that has gotten much of the Report exactly wrong. Notably, while the IG claims no violations of law on Ms. Clinton's part regarding her handling of unclassified emails -- importantly, the IG investigation does not address classification issues -- even the IG's conclusions as to policy transgressions are belied by many other facts that emerged from its investigation.
It is little known that, under the Inspector General Act of 1978, the mandate of the Inspectors General who oversee the administration of every Executive branch agency is to improve government business processes as much as to ferret out wrongful or illegal behavior. In the context of an IG Report finding that Secretary Clinton's email practices violated no laws but only State Department policy rules, the IG tellingly concludes:
Longstanding, systemic weaknesses related to electronic records and communications have existed within the Office of the Secretary that go well beyond the tenure of any one Secretary of State.
Review of the IG Report's eight "Recommendations" for improving the State Department's regulation of electronic records further confirms that the Department's "longstanding systemic weaknesses" in its handling of such records, and going back to the beginning of the century, is the only meaningful charge to be found here. It is also a charge for which a Republican Congress shares much blame, as having not only refused to increase the State Department's operating budget, as requested, during Secretary Clinton's tenure--but having actually cut that budget.
The IG's "Recommendation 8" is especially revealing: it now recommends--in May 2016--that the Department institute penalties for employees who fail to use only authorized information systems to conduct day-to-day operations. Of course this means that to this day there is no mechanism in place for enforcing IT policy guidance in this area--and a policy without an enforcement mechanism reflects a set of rules that was simply not taken seriously by either managers or human resource officers...or obviously, by just about anyone else at the Department.
Treatment by the media and press
Meanwhile, over-the-top news reports ignore the overall slant of the Report--again, hardly focused on Clinton alone--as well as many factual revelations, some buried deep within the Report:
-- That no previous Secretary of State had an email address on the State Department system;
-- That using a personal email account for official business was absolutely the norm for at least one previous Secretary (Colin Powell);
-- That when one of Secretary Clinton's senior officials suggested in 2010 that she should have an email address on the State Department system, the Secretary responded that she was entirely amenable to receiving such an address as long as there wasn't "any risk of the personal being accessible."
-- The Report's hard-to-believe conclusion that during her tenure from 2005 to 2009, former Secretary Condoleezza Rice "did not use either personal or Department email accounts for official business" (raising the question as to just how she communicated with others, many years into the current millennium);
-- That no seminal moment is reflected in the IG Report (because no such moment in fact occurred) wherein the Secretary decided to "go underground" with her own email address and server, but rather this practice merely continued email protocols she had employed in the Senate and on the 2008 campaign trail--and about which hundreds of her colleagues were obviously aware during her time as Secretary;
--That, in the words of a senior career official at State, "there was no requirement for [Secretary Clinton] to be connected to our system."
The senior official in question was Lewis Lukens, the non-political career veteran who directed the Department's Executive Secretariat, responsible for overseeing the broader office of the Secretary of State. Notably, Mr. Lukens reportedly found nothing unusual about either Ms. Clinton's electronic absence from the State Department system or the fact that she used an outside service for her communications.
Mr. Lukens was probably nonplussed because, again, the Department's IT systems during Ms. Clinton's time in office were so poor and antiquated that foreign service officers, high and low, routinely used personal emails to get their work done and ensure messages were sent and received in a timely manner. Of course, the State Department's unclassified servers were surely no more secure--and given the massive Chinese hacking of Government IT systems revealed in 2015, perhaps even a good deal less secure--than a private server residing in a suburban New York basement.
Long-standing practice a legitimate guidepost for informing Secretary Clinton's behavior
There is one other reason the systemic weaknesses of the State Department's IT systems is the only meaningful charge in this Report: from a corporate governance standpoint, it is well settled that an organization's unwritten practices and policies may well override written, formal policies regulating the same behavior. For example, there is a strong and formal rule that says government workers and contractors using government furnished equipment in the workplace may only use such property for official, government purposes--and many private sector organizations have similar rules. The reality, of course, is that government workers routinely use their equipment to write personal emails, and to make social appointments and reservations. This is an understandable and accepted practice that, at the lower level of rules and norms, effectively revises the formal policy rule to allow reasonable personal use of government resources.
Similarly, the reverse situation of Secretary Clinton using non-Government resources for her work-related communications, no matter what formal policies they may have arguably infringed, was a long-standing, recognized practice that effectively carved an exception out of general Departmental policies. As a result, there is no other conclusion to reach here but that Secretary Clinton's handling of emails and email systems during her time at the State Department was within the norms of accepted practice--as carried out by former Secretaries and low-level foreign service officers alike.
CORRECTION: This post has been updated for clarity.