Hillary Clinton asked the public to trust her during a recent press conference at the United Nations, when she stated that she has already complied with transparency laws by turning over all public records she generated as Secretary of State.
She had no business making that claim. A Time magazine report about the process used to identify public records in her possession shows that she cannot possibly know if she is in compliance with the law. And juxtaposing her process with the words used in her press conference shows her core claim to be misleading.
To understand the impression Hillary Clinton created at her press conference, before additional facts were available, it is best to begin with her words. What follows are the parts of the event where she characterized the emails she has turned over.
... after I left office, the State Department asked former secretaries of state for our assistance in providing copies of work-related emails from our personal accounts. I responded right away and provided all my emails that could possibly be work-related, which totalled roughly 55,000 printed pages, even though I knew that the State Department already had the vast majority of them. We went through a thorough process to identify all of my work-related emails and deliver them to the State Department.
A reporter at the press conference followed up, asking, "Can you explain how you decided which of the personal e-mails to get rid of, how you got rid of them and when? And how you’ll respond to questions about you being the arbiter of what you release?"
In going through the e-mails, there were over 60,000 in total, sent and received. About half were work-related and went to the State Department and about half were personal that were not in any way related to my work. I had no reason to save them, but that was my decision because the federal guidelines are clear and the State Department request was clear. For any government employee, it is that government employee’s responsibility to determine what’s personal and what’s work-related. I am very confident of the process that we conducted and the e-mails that were produced.
Later still, she added, "I have absolute confidence that everything that could be in any way connected to work is now in the possession of the State Department."
And she said this:
... my direction to conduct the thorough investigation was to err on the side of providing anything that could be possibly viewed as work related. That doesn’t mean they will be by the State Department once the State Department goes through them, but out of an abundance of caution and care, you know, we wanted to send that message unequivocally. That is the responsibility of the individual and I have fulfilled that responsibility, and I have no doubt that we have done exactly what we should have done. When the search was conducted, we were asking that any email be identified and preserved that could potentially be federal records, and that’s exactly what we did ... I trust the American people to make their decisions about political and public matters. And I feel that I’ve taken unprecedented steps to provide these work-related emails.
To review, she asserted 1) a thorough investigation that included "going through" roughly 60,000 emails; 2) a standard of erring on the side of disclosing "anything" that could "possibly" be viewed as work related; 3) a "thorough" process robust enough to warrant "absolute confidence" in its results; 4) a process to turn over emails that could plausibly be characterized as "unprecedented."
Nearly everyone listening to these assurances came away with the impression that a person or team of people went through those 60,000+ emails and sorted them into two categories: work or personal. On The Daily Show, Jon Stewart mocked the notion that sorting through tens of thousands of emails was more "convenient" than maintaining both work and personal email accounts. Most criticism of the approach focused on the fact that Hillary Clinton confidantes, rather than neutral arbiters, were making the judgment calls about these 60,000+ emails.
But it turns out that no one was "going through" each email to sort work from personal correspondence or to error on the side of disclosure when the line was blurry.
According to David Von Drehle of Time, the process used was actually as follows:
She commissioned a review of the 62,320 messages in her account only after the department—spurred by the congressional investigation—asked her to do so.
And this review did not involve opening and reading each email; instead, Clinton’s lawyers created a list of names and keywords related to her work and searched for those. Slightly more than half the total cache—31,830 emails—did not contain any of the search terms, according to Clinton’s staff, so they were deemed to be “private, personal records.”
The idea that such a process could produce "absolute confidence" that all public records were identified is as curious as the notion that Bill Clinton never inhaled.
Here is a made up email to illustrate the point:
To: Bill Clinton
From: Hillary Clinton
Assume you saw the latest. This could blow up in our faces if we don't get out in front of it ... and frankly, the WH isn't helping matters much. I'm tempted to reverse course but wonder if it would affect your latest ask. What does SB think?
A keyword search would not flag messages where (for example) official business is rendered in pronouns, "White House" is rendered as an abbreviation, and "Sidney Blumenthal" is rendered in shorthand. Or consider an email that concerns Benghazi, but that was typed on a smart phone in a moment of distraction, causing an unintententional misspelling: "Benhgazi." A key-word search would miss that email. The process described would label it a "private, personal record."
As for creating a list of names, that would doubtless flag a lot of relevant work emails, but no busy professional remembers the name of every person who emails them for work over a multi-year period encompassing tens of thousands of messages.
And those problems apply even if we assume that Team Clinton made an earnest effort to use search terms that would flag all relevant emails, while it could be the case that they knew what they hoped to hide and crafted the search accordingly. Had the technology existed in an earlier era Richard Nixon's attorneys presumably wouldn't have included "Watergate" or "burglary" in the search terms.
This revelation ought to harm Hillary Clinton insofar as it shows her earlier statements to be misleading. It also suggests what question she ought to be asked next: What list of names and key words were included in the email-archive search? It's easy to imagine search terms that would suggest an earnest effort at identification, the shortcomings of the method notwithstanding, and equally easy to imagine search terms so self-evidently inadequate or with such glaring omissions that, like the private server itself, they suggest that official business was being hidden.
Even if Hillary Clinton's server was wiped clean and her email archive is unrecoverable, she can further reveal the specific details of her inadequate process.