The controversy regarding Hillary Clinton’s use of a private email server while serving as Secretary of State has largely centered on any effects it may have had on the Benghazi inquiry. For the most part, Clinton and the State Department share common cause in rebutting irresponsible allegations and politicized oversight about Benghazi. However, there is also a subtle set of tensions between Clinton and the State Department that can be gleaned from public statements and correspondence. It is clear that some important executive branch interests do not necessarily align with those of Clinton or the Clinton campaign.
There has been contested public negotiation about Clinton’s next appearance before Congress. Congressional investigators want to conduct a nonpublic transcribed interview of Clinton, whereas she has repeatedly offered to appear at a public hearing. Benghazi Committee Republicans see significant advantages to a transcribed interview, in which they can control the atmosphere and tone. Committee investigators can be much more aggressive with — or abusive to — Clinton in an interview without the risk of public blowback from a releasable video of their session. Clinton’s camp surely sees public discussion as a means of mitigating the Republicans’ tone and providing her allies with opportunities to react with outrage at perceived mistreatment.
News of Clinton’s email practices gave Republicans an opening to shift from a faltering substantive investigation of the Benghazi attacks into a meta-investigation of obstruction of the congressional investigation. Last week, Benghazi Committee Chairman Trey Gowdy (R-SC) sent Clinton’s personal attorney, David Kendall, 136 questions, of which only eight went to the substance of Benghazi allegations. The remaining 128 questions were all focused on email practices.
This is a classic partisan confrontation taking place in clear public view. The lines of tension between Clinton and the State Department are a bit less visible.
From the perspective of the Clinton campaign, the quicker she can debunk allegations of a cover-up, the better. Assuming that there are no Benghazi bombshells in the documents, it is in Clinton’s interest to release them publicly, in their entirety, as soon as possible. On March 5, just after public disclosure of her use of a private email account, Clinton tweeted that she wants “the public to see my email” and that she “asked State to release them.” Five days later, her office released a Q&A document emphasizing that she “asked the Department to make the emails she provided to the public.”
The State Department surely shares the view that it would like to release innocuous emails to put to bed suspicion. However, the Department has numerous equities — and confidentiality interests — in Clinton’s emails, which are almost entirely unrelated to Benghazi. The State Department would obviously be most concerned with any classified information, although I have seen no reports that her emails contained any. But there are other categories of information that could be problematic to release: information that is not classified but nonetheless diplomatically sensitive, information about employee performance and other personnel actions, information about contract awards and performance, information about policy deliberations, information about unrelated criminal or inspector general investigations, information about congressional responses, or information implicating other due process and privacy rights (e.g., passport and visa applications, sanctioned individuals, arms control violations, treaty violations, and terrorism lists). Further, the White House or other executive branch departments could have equities in the Secretary’s email communications. The political and legal environment has clearly deteriorated for the Department to withhold documents, but the Department has an obligation to the rest of the executive branch to act in a principled and orderly manner.
Moreover, while there may be legitimate, even substantial, congressional need for access to information about the Benghazi attacks, there is no such need for unrelated communications. Even if 1,000 pages of the relevant emails are related to Benghazi, there is no investigative basis for Congress to review the remaining 54,000 pages, notwithstanding any unorthodox or problematic record management. The Department is free to engage in discretionary releases of some — perhaps the bulk — of the information. However, where implicated, important executive branch confidentiality interests should trump a congressional fishing expedition as well as Clinton’s desire to release information in her public defense.
Notwithstanding public pressure and Clinton’s request, the Department appears to be undertaking a comprehensive legal review of the documents. In March (on the same day Clinton’s office released its Q&A document) then-State Department spokeswoman Jen Psaki indicated that the Department would prioritize review of the 900 or so Libya-related emails for potential release but that the review would cover “national security, personal privacy, privilege, and trade secrets, among others.” She suggested the review of the remaining documents would take several months. In response, Secretary Clinton said she was glad to hear there might be an initial release “because I want it all out there.”
Correspondence also demonstrates this dynamic. Last month, Under Secretary of State Patrick Kennedy sent Kendall a letter authorizing her to retain copies of some 55,000 pages of email she produced last December to the Department from her privately-maintained email server. These are emails Secretary Clinton’s legal team had determined are potential federal records. In it, he states:
Secretary Clinton may retain copies of the documents provided that: access is limited to Secretary Clinton and those directly assisting her in responding to such inquiries; steps are taken to safeguard the documents against loss or unauthorized access; the documents are not released without written authorization by the Department; and there is agreement to return the documents to the Department upon request.
The letter concludes by indicating that, should Clinton wish to release any of the documents, “the Department must approve such release and first review the document for information that may be protected from disclosure for privilege, privacy or other reasons.”
There are always areas of divergent interests between agencies and their former heads. In a previous post, I criticized former Defense Secretary Bob Gates for his disclosures of potential confidential executive branch information in his memoir Duty. His book was merely one example of what has become an unfortunate routine for departed high profile cabinet secretaries. Kennedy’s letter directly targets the same issue: department control of the release of department information, even when in the hands of its former secretary.
Related Freedom of Information Act (FOIA) cases, most of which I discussed previously, may not alter the substance of the State Department’s production but they will probably drive the Department’s pace. Statutory exemptions will assuredly prevent release of documents containing important confidential information. However, last week, after Larry Klayman argued that the Department had acted in bad faith with respect to Clinton’s email, the D.C. Circuit reminded the Department it “may choose of its own accord to release the emails to the public at large, it has a statutory duty to search for and produce documents responsive to FOIA requests ‘in the shortest amount of time.’” On April 28, in Leopold v. Department of State, Judge Rudolph Contreras ordered the Department to provide a schedule of production of the entire set by May 19.
Given the overall substantive alignment between the Department and its former Secretary regarding the awful attacks in Benghazi and the political opportunism of their critics, I do not anticipate any open rifts between the Department and the Clinton camp. However the institutional tensions are unmistakable if one reads between the lines. And it is precisely the space between the lines that allows the daylight between the Clinton and the State Department pass through.