Hillary Clinton’s Use of Private Email at State Department Raises Flags

[merrily]

108. Yes and no. The law was in place since 1950 (actually much, much earlier, but we are now working

off the 1950 statute, as amended). That would be the Federal Records Act.

The Federal Records Act statute covers federal "records," regardless of the form in which the "records" are embodied. That is the main concept. However, the statute also gives some specific examples, such as books, maps, etc. These are only examples, though. The main concept is bolded below.

As used in this chapter, “records” includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included.

https://www.law.cornell.edu/uscode/text/44/3301

In 1976, an additional example was added, namely machine readable materials (that term is in the section quoted above.) That certainly covers emails. However, even without that additional example, the language of the statute that is bolded above would cover emails.

Other provisions of the statute specify that federal records are to be preserved, etc.

This act is within the province of the National Archives.

In 2014, a group of amendments was passed to specify that emails were federal records. However, that does not mean that emails were not covered by the above bolded language anyway. The amendments also made other changes to the 1950 law. http://en.wikipedia.org/wiki/Presidential_and_Federal_Records_Act_Amendments_of_2014

However, one cannot simply say that those amendments passed in 2014, so Hillary had no responsibilities at all with respect to her emails. She had all the responsibilities the Act contained at the time she was Secretary. To know exactly what those responsibilities were, you have to go back and read the Act as it existed while she was in office.

Or, you could just take the world of Jason R. Baron, now of the law firm Drinker Biddle, est. in 1849, which now employs over 600 attorneys. More on Drinkeer Biddle: http://www.drinkerbiddle.com/about-us Baron is the one who said Hillary violated the Federal Records Act.

Here are just the first bits of his cv.

Jason R. Baron is a member of Drinker Biddle’s Information Governance and eDiscovery practice.

An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration and as trial lawyer and senior counsel at the Department of Justice. In those roles, Jason helped drive the government’s adoption of electronic recordkeeping practices and defended the government’s interests in complex federal court litigation.

As NARA’s Director of Litigation, Jason led NARA’s efforts to provide responsive White House email and other records in the massive U.S. v. Philip Morris RICO lawsuit, and assisted in the defense of lawsuits filed against the Archivist of the United States under the Freedom of Information Act, the Federal Records Act, and the Presidential Records Act in a wide variety of high-profile cases. As a trial lawyer and senior counsel for the DOJ, he appeared as counsel of record in landmark cases involving the preservation of White House email, statistical adjustment of the U.S. census, and early attempts to regulate the Internet.

Thought Leadership. Jason was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context, and served as track coordinator for the first four years of the track (2006-2009). He also founded the international DESI (Discovery of Electronically Stored Information) workshop series, bringing together lawyers and academics to discuss cutting-edge issues in eDiscovery. Since 2007, past DESI workshops have been held in Palo Alto, London, Barcelona, Pittsburgh and Rome, with a related workshop held in Beijing.

Jason is the current Vice-Chair and Chair-elect of the E-Discovery Committee of the D.C. Bar Litigation Section. He is an active member of The Sedona Conference, having served as a Co-Chair of the WG1 Steering Committee and as a member of the Steering Committee from 2008 to 2012. He has also served as an Editor-in-Chief of three Sedona publications: The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (2007 & 2013 editions), The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process (2009 & 2013 editions), and The Sedona Conference Commentary on Finding the Hidden ROI in Information Assets (2011); and also as Drafting Team editor on The Sedona Conference Commentary on Information Governance (2013). Additionally, Jason serves on the advisory board of the Georgetown Advanced Institute on E-Discovery, on the board of advisors for the Cardozo Data Law Initiative, and on ARMA’s governance board for the Information Governance Professional Certification Program.

That is not all of it. More at http://www.drinkerbiddle.com/people/attorneys/baron-jason-r

I think he knows the Act as it existed when Hillary was in office well enough to know if she violated it. And probably knows it a hell of a lot better than anyone discussing this in media this week. And if he doesn't know, probably no one does.