[NOTE: This is cross-posted on the website of the National Association of Scholars, here.]
Over the years the American Historical Association (AHA), the Organization of American Historians (OAH), the Society for the History of American Foreign Relations (SHAFR), and other historical organizations have spent much effort, and funds, successfully establishing that they have standing to intervene in litigation and public controversies about the preservation of government records. Why, then, are they sitting silently on the sidelines in the face of Hillary Clinton’s so far successful attempt to privatize, under her personal ownership and control, large swaths of the history of the State Department under her leadership and her destruction (or attempted destruction) of at least 30,000 emails that she and her staff alone have deemed “private”?
A disclaimer: I have a personal history of involvement with the issue of historians’ access to government records. In a former life as a practicing historian I discovered that an FBI field office had destroyed files after it had received and acknowledged receipt of my FOIA request for them. After a number of other similarly aggrieved individuals and organizations came forward, we filed suit. Historians have traditionally, and frequently, been outspoken in objecting to wanton, unreviewed governmental record destruction, and their standing to do so was given strong support by “the much admired” U.S. District Court Judge Harold Greene in his sweeping decision in our favor in American Friends Service Committee v. Webster, 485 F. Supp. 222 (1980). I have discussed the possible relevance of this case to current controversies in “Is The IRS’s “Routine” Record Destruction Policy Legal?” and “Hillary And The IRS: Birds Of A Feather?”
In one of the cases with prominent participation by historian organizations, Armstrong v. Bush (1991), the U.S. Court of Appeals for the District of Columbia held:
We find that the statutory language and legislative history of [the Federal Records Act and the Presidential Records Act] indicate that one of the reasons that Congress mandated the creation and preservation of federal and presidential records was to ensure that private researchers and historians would have access to the documentary history of the federal government.
As we concluded in American Friends Service Committee v. Webster … , “the legislative history of the [Federal Records Act] supports a finding that Congress intended, expected, and positively desired private researchers and private parties whose rights may have been affected by government actions to have access to the documentary history of the federal government.”
In that case and the related Armstrong v. Executive Office of the President (1993), the National Security Archive, the American Historical Association, the Organization of American Historians, and other plaintiffs successfully opposed the destruction of email and other computer-based records.
In addition to litigation historians have frequently testified and contributed OpEds regarding the preservation of electronic and other documents. Regarding the Bush executive order that prompted the litigation linked above, for example, prominent presidential historian Robert Dallek criticized not only the order but the motive behind it, arguing that it could not have been national security. “If national security is not the motivating force behind Bush’s executive order,” he exclaimed in the Los Angeles Times, “what is? We can only speculate that he is trying to protect members of his administration, who also served under Ronald Reagan, from embarrassing revelations.”
So far as I’ve seen, no similarly prominent historians have been willing to “speculate” about Hillary Clinton’s motives in deciding to conduct all of her State Department business on her private server, and when finally challenged reserving to herself and her staff the prerogative of determining which records were public and which private. A New York Times article two days after Mrs. Clinton’s revelation that she had destroyed over 30,000 emails “about her personal matters” quoted Dallek, who did not question her explanation, her control and disposition of the records she decided were public, or her motives, noting only that “If she becomes president, we would eventually want to have all the intimate details of her life before the presidency. It’s all part of the historical record.”
Another earlier major case in which historians were involved has some eerie similarities to Mrs. Clinton’s privatizing her State Dept. records. “During his years of government service,” The Baffler noted last March,
Henry Kissinger taped all of his office phone calls; and, on government time, using government typewriters and government paper, his government secretaries transcribed them.
There were no private email servers back then, of course, and neither did Kissinger have a million-dollar house in Chappaqua. He did, however, have a powerful friend with a rural estate not far from Chappaqua. And, even more conveniently, that estate had a private vault.
In early 1976, it emerged that Kissinger had been shipping his NSC telephone conversation transcripts — the “telcons,” as they would later be known — to Kykuit, the Pocantico Hills, New York, family estate of his old retainer Nelson Rockefeller, installed as Gerald Ford’s vice president in 1974….
It would later come out that Kissinger had been stashing official documents in the Rockefeller vault for years, including a whopping thirty-crate consignment in 1973. Kissinger brought them back to State Department headquarters later that same year, after he was informed that placing government documents in a non-government facility was, in fact, illegal.
Mrs. Clinton entered public life working as a Congressional staffer on the impeachment of Richard Nixon. Ironically, one of her best chances to beat the rap that she has appropriated public records for her own private use will be to repeat the legal arguments of Nixon’s Secretary of State. In Kissinger v. Reporters Committee for Freedom of the Press (1979), a cramped majority opinion by Chief Justice Rehnquist held that the State Dept. could not be held responsible for not releasing under FOIA material not physically under its control.
That opinion, however, may offer Mrs. Clinton only limited support. “Even the Court’s opinion implies,” Justice Brennan wrote in a blistering dissent, “as I think it must that an agency would be improperly withholding documents if it failed to take steps to recover papers removed from its custody deliberately to evade an FOIA request.”
Brennan went further, adding: “Indeed, … if the purpose of FOIA is to provide public access to the records incorporated into Government decisionmaking [citations omitted], then agencies may well have a concomitant responsibility to retain possession of, or control over, those records.” Justice Stevens agreed in a separate dissent: “if the agency is unable to advance a reasonable explanation for its failure to act, a presumption arises that the agency is motivated by a desire to shield the documents from FOIA scrutiny.”
Has Mrs. Clinton yet offered “a reasonable explanation” of why she insisted on maintaining personal control of all her communications as Secretary of State?
Mrs. Clinton hardly needs a lesson in chutzpah, but Mr. Kissinger does provide one, as related by the historian Theodore Draper in a Spring 1980 review in Dissent of the first volume of Kissinger’s memoirs. (That review is here, behind a pay wall; the following is from a William Burr letter in the New York Review of Books that appeared in a dispute with Mr. Kissinger.)
Mr. Draper observed that Dr. Kissinger’s use of classified documents was “nothing less than scandalous” because his book “contains literally scores of direct references to and textual quotations from documents obviously of the highest classification… I wondered how Kissinger could make use of classified documents on such a large scale and of such recent vintage. If they had been declassified for him, could I or any other scholar have access to them? Could one check up on how he used these documentary sources?” Draper found that the answer was no. “In effect, only quotations were declassified, documents were not. By means of this dodge, no one else can gain access to these documents to determine how faithfully Kissinger made use of them.”
I do not mean to suggest that all historical organizations have been completely silent regarding Mrs. Clinton’s State Dept. records. Last March the National Coalition for History, an umbrella group of 50 or so historical and public access organizations, signed on to a letter to Secretary of State Kerry and David Ferriero, Archivist of the United States, asking them to “verify that Secretary Clinton’s emails containing federal records are transferred to the Department of State in their original electronic form, so that all such emails may be accessible pursuant to the Freedom of Information Act.” According to Lee White, the executive director, no response has been received. In reply to my question about whether I had missed other statements or actions by historical organizations, he replied that he has received no requests for litigation (a number of cases, such as this one, are pending) or additional action from any of the organizations of historians, though he insisted that it would be a mistake to assume they weren’t interested in this issue.
Another minor peep interrupting the sounds of silence coming from historians who in the past were always angry and often litigious when confronted with federal mangling of the historical record was an OpEd in the New York Times by Matthew Connelly, a professor of history at Columbia, and Richard H. Immerman, a professor of history at Temple and chairman of the State Department’s Historical Advisory Committee, “What Hillary Clinton’s Emails Really Reveal,” that appeared two days after the initial article in the Times revealing the existence of her private server. Although the professors did note, somewhat gingerly as I wrote here, that the revelation that Mrs. Clinton “used only a personal email account when she was secretary of state and did not preserve her emails on departmental servers seems to reflect a troubling indifference to saving the history she was living,” their primary concern was what they called a “bigger problem” — namely, “that the government produces an astounding volume of email, much of it classified, and the public doesn’t get to see it unless archivists can preserve and process it.” In other words, Mrs. Clinton may have cavalierly flouted the Federal Records Act and departmental and National Archives regulations and made the Freedom of Information Act a dead letter with regard to her tenure as Secretary of State, but the “bigger problem” is the amount of electronic data being produced.
Most of the currently boiling controversy over Mrs. Clinton’s emails concerns whether she violated laws governing the handling of classified information. But it appears that she may well have violated other laws and regulations as well, and most of those are in the areas policed in the past — but now, not so much — by vigilant historical organizations determined to preserve and promote access to the historical record. Former Attorney General Michael Mukasey recently discussed a number of them here, and law professor Ronald Rotunda discussed others here. An evenhanded discussion of some of the legal questions can be found here.
Also worth mentioning, the National Archives, which Judge Greene raked over the coals in AFSC v. Webster, linked above, for not providing agency supervision and which came in for continued criticism in later cases, now addresses the specific rogue behavior personified by Mrs. Clinton. Its Agency Record Keeping Requirements: A Management Guide states unequivocally that
Federal records in electronic form should not be maintained solely on a staff member’s computer hard disk, diskettes, or directories assigned only for an individual’s use. This would be the electronic equivalent of maintaining agency paper records in an individual s locked desk drawer.
Finally, at least for today, is the fairly obvious conclusion that at least a part — probably a very large part — of Mrs. Clinton’s purpose in dodging all the troublesome laws and regulations was to protect “her” files from forced exposure under the Freedom of Information Act. On that issue we should pay particular attention to an expert witness, Dan Metcalfe, who wrote for Politico that “Hillary’s Email Defense Is Laughable.” The subtitle of that article: “I should know — I ran FOIA for the U.S. government.” When he retired from the Justice Dept. in 2007, Metcalfe explains, “I had spent more than a quarter-century as founding director of the Justice Department’s Office of Information and Privacy, effectively serving as the federal government’s chief information-disclosure ‘guru.’” Regarding Mrs. Clinton’s defense last March of her peculiar style of records management, Metcalfe was scathing.
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….
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….
Third, there is the compounding fact that Secretary Clinton did not merely use a personal email account; she used one that atypically operated solely through her own personal email server … [with] absolutely no practical constraint on her ability to dispose of any official email of “hers,” for any reason, at any time, entirely on her own. Bluntly put, when this unique records regime was established, somebody was asleep at the switch, at either the State Department or the National Archives and Records Administration (which oversees compliance with the Federal Records Act) — or both.
“Having spent a quarter-century at the forefront of the government’s administration of the FOIA, including its transition to electronic records,” Metcalfe concludes, “I know full well that both what Secretary Clinton arranged to do and what she now has said about that are, to put it most charitably, not what either the law or anything close to candor requires.”
But if Mrs. Clinton’s management of State Department records has been so egregiously, uniquely horrible, we are left with the question with which I began: Why have normally hair-trigger historians been, so far at least, keeping their powder dry, sitting for the most part silently on the sidelines?
I do not know the answer to that question, but perhaps Dan Metcalfe inadvertently suggests a possibility. As the very last sentence of his chapter-and-verse damning indictment of Hillary, he states that “And I say [all] that even as someone who, if she decides to run for president and is the Democratic nominee, will nevertheless vote for her next year.”
Perhaps the conspicuous silence of the historians in the face of these Clintonian transgressions, at least so far, is their manner of casting a secret ballot for the Democratic candidate on behalf of their largely Democratic membership.
UPDATE 21 August
Thanks to Powerline for including this post as one of its “Picks” of the day.