The Obama administration will soon find itself in court having to explain to federal judges why it never told anyone former Secretary of State Hillary Rodham Clinton used a secret email address, potentially spoiling dozens of open records requests, experts said Wednesday.
And Mrs. Clinton could face up to three years in prison per message if she is found to have broken her word and handled classified information on the secret account, one open records expert told The Washington Times.
The legal challenges have already begun, with The Associated Press filing a federal lawsuit saying the State Department has foiled five years’ worth of requests for Mrs. Clinton’s emails, but never told them or the court that she kept her own server — meaning that her emails weren’t being searched.
Meanwhile, the White House tried to keep Mrs. Clinton at arm’s length, insisting she alone can answer questions about what she did, and saying that none of Mr. Obama’s aides were involved in helping her decide which emails to turn over to the State Department and which to delete.
Mrs. Clinton’s office remained silent a day after the former first lady and potential 2016 presidential candidate held a press conference admitting she kept a private email server out of “convenience,” belatedly went through and found public records among her emails and then deleted nearly 32,000 emails she and her lawyers deemed private.
The moves have raised a number of questions about her potential legal jeopardy amid arcane and somewhat outdated open records rules.
“Officials are not allowed to do this, but if they do, they’ll get away with it,” said Christopher Horner, a researcher who has regularly battled the Obama administration over open records laws. “It is a matter of agency self-enforcement. If the agency head is doing this, good luck with self-enforcement.”
Mr. Horner, the man who exposed former EPA Administrator Lisa P. Jackson’s use of fake email alias “Richard Windsor,” said Mrs. Clinton’s chief legal problem could come if someone can prove she handled classified material on her private account. But since she controlled all access to her emails by running her own private server, it will be difficult to prove — unless another party in the email exchanges comes forward.
“So long as she retains possession, sole custody, of her server, which obviously was the point of the server, she has greatly reduced her exposure to legal jeopardy unless or until anyone at the other end of correspondence comes out,” Mr. Horner said.
He said it was “implausible” Mrs. Clinton didn’t handle classified information on her account, but in her press conference Tuesday, she said that was the case.
“I’m certainly well aware of the classification requirements and did not send classified material,” she said.
Tom Fitton, president of Judicial Watch, which for years has battled for access to State Department records, said they are already preparing to ask several federal courts to review whether the Obama administration was skirting the law by not including Mrs. Clinton’s email server in its searches for documents.
“We had hundreds of requests. The State Department knew from the beginning these records weren’t being searched, and no one told us about it, no one told the courts about it,” Mr. Fitton said.
Mrs. Clinton said she created and exclusively used a personal email account out of “convenience,” saying she didn’t want to carry two devices around with her. She said she believed by trying to mail her fellow government workers at their official addresses, most of her government business communications were being captured, so that took care of her open records requirements.
When the State Department last year, prodded by Republicans investigating the 2012 Benghazi terrorist attack on her watch, asked her for her emails, she said she found 62,320 messages that had been sent from her private account during her time in office. She deemed 30,490 of those to be public and turned them over, and deleted the 31,830 she and her lawyers deemed private.