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The moves have raised a number of questions about her potential legal jeopardy amid arcane and somewhat outdated open records rules.
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“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.
Sen. Charles E. Schumer, a New York Democrat who served eight years with Mrs. Clinton in the Senate, said he thought she “dealt with it well” at her press conference.
“It’s a hiccup. In six months nobody will remember it very well,” said Mr. Schumer.
Mr. Fitton, though, said the courts will have to grapple with the issue, and he challenged Mrs. Clinton’s claim that her email account was private, saying that since she set up the server to handle State Department business, he considers the email a government account.
“If there is any advice I would give to the media, do not use the word ‘private’ with respect to her email accounts, because whether they’re private or not is frankly a question for the courts to decide,” he said.
Jerome Reisman, a government ethics expert, said the missing emails are the equivalent of Rose Mary Woods, the secretary who was blamed for deleting more than 18 key minutes of tapes from President Nixon’s collection.
“Is this anything different? She deleted more than 30,000 emails,” said Mr. Reisman, a partner at Garden City, New York, law firm Reisman, Peirez, Reisman and Capobianco. “Her entire email system, her server, should all be turned over to the Department of State, who can review it and let them decide what is personal and what’s not personal.”
Mrs. Clinton has refused that, saying that the server is her property, and she has fulfilled her legal duties under the law by searching for public emails and providing them, albeit years after she left her government job.
“That’s the genius of the server,” Mr. Horner said. “It’s the Clinton way: ‘You’ll have to spend years and millions of dollars to pry it out of our hands.’”
A recent court decision could also boost Mrs. Clinton’s case after a federal judge last week ruled that the White House science office can’t be forced to turn over emails from its director’s personal account.
Mr. Horner and his colleagues at the Competitive Enterprise Institute sued to try to force the agency to produce the emails, but the judge said they aren’t under the control of the government, so nothing can be done. The judge said it’s up to agencies to police their employees.
Mr. Horner said that’s a problem when the chief officers in the agencies are the ones shielding their emails. And he said Mrs. Clinton’s situation is even worse because she solely conducted business on a private server she maintained — and she was the one who searched to determine what emails she deemed public.
“These records [are] required to be under the federal government’s custody and not an individual,” Mr. Horner said. “The federal government is at least far less conflicted than an individual who, let’s face it, is the most affected party who could conduct a search.”
The Associated Press filed a lawsuit Wednesday that could test the limits of the government’s ability to go after emails. Despite five years of questions, the State Department never said it didn’t have control over Mrs. Clinton’s emails, the AP said, suggesting that officials were breaking the spirit of open records when they said they were conducting searches for records.
“State’s failure to ensure that Secretary Clinton’s governmental emails were retained and preserved by the agency, and its failure timely to seek out and search those emails in response to AP’s requests, indicate at the very least that State has not engaged in the diligent, good-faith search that FOIA requires,” the news organization said in its lawsuit, filed in federal district court in Washington, D.C.
White House press secretary Josh Earnest said it’s up to Mrs. Clinton now to explain her decisions.
“Frankly, the secretary’s handling of her own personal email and the maintenance of personal email inbox is something that I’m not going to comment on and [am] not particularly interested in,” he told reporters.
But he could not say whether the administration is sure Mrs. Clinton saved all emails related to government business.
“The federal government did not review Secretary Clinton’s personal email. Her team did,” he said. “If you have questions about the process they went through to catalog that email, you should direct them to them.”
• S.A. Miller and Ben Wolfgang contributed to this article.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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