HILLARY STONEWALLS THE FREEDOM OF INFORMATION ACT (FOIA)
THE WALL STREET JOURNALClinton’s Information Lockdown
The private email server was only semiprivate: Putin likely has everything.
Hillary Clinton in Philadelphia, July 8. PHOTO: ZUMA PRESS
Lyndon Johnson did his best to block the Freedom of Information Act, but public opinion forced him to make government records available. The question now is how FOIA, which LBJ signed 50 years ago this month, survives the precedent Hillary Clinton set with her basement server intended to keep her emails hidden from public view.
Bill Moyers, LBJ’s press secretary at the time, recalled in a 2003 broadcast how FOIA nearly didn’t become law: The president “hated the very idea of a Freedom of Information Act, hated the idea of journalists rummaging in government closets, hated them challenging the official view of reality.”
LBJ relented and signed what he called “the damned thing” on July 4, 1966, but insisted on no fanfare. In the decades that followed, FOIA became an essential tool for government accountability.
No public official since LBJ has gone as far as Hillary Clinton to evade public-disclosure laws. In 2010 her adviser Huma Abedinrecommended that she use a government email account, as the State Department required. “I don’t want any risk of the personal being accessible,” Mrs. Clinton responded in an email that has since come to light. She used a private email server for all her communications because this kept both official and personal communications off government servers, where they would have been subject to disclosure under FOIA.
FBI Director James Comey concluded that Mrs. Clinton’s mishandling of classified information in her emails didn’t meet the legal test for a crime because he couldn’t prove that she intended to disclose national secrets. But Mr. Comey testified to Congress last week that the FBI determined that Mrs. Clinton did violate the Federal Records Act, which makes his legal analysis of her intent incomplete. Her most relevant intention was to defy disclosure laws. Her actions had the incidental effect of mishandling confidential communications.
Mrs. Clinton stonewalled FOIA requests for years with her keep-no-records, produce-no-records strategy. In a deposition last month in a civil lawsuit challenging her personal email server, the State Department said its staffers in charge of records didn’t realize until 2014 that its former boss had used private email.
Appropriately enough, Mrs. Clinton’s explanation that she used a private email server to keep her records secret only became public in a lawsuit challenging the State Department’s insistence that it couldn’t respond to FOIA requests because it couldn’t locate her emails on its .gov server.
The State Department’s inspector general in May ruled that Mrs. Clinton broke record-keeping laws such as those requiring compliance with FOIA requests, never got permission for her home server and ignored numerous security warnings.
President Obama came to office pledging that his administration would be “the most open and transparent in history,” but instead allowed Mrs. Clinton to operate above the disclosure laws. The federal appeals court in Washington this month reprimanded the administration for ducking a FOIA request by arguing that the official being questioned at the White House Office of Science and Technology Policy used a private email account, so the emails weren’t in government control. In words that could equally apply to Mrs. Clinton’s conduct, the judges said evading government servers is no defense against a FOIA request:
“If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served,” the judges wrote. “It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”
Most ominously, Mr. Comey confirmed that foreign intelligence agencies have more access than Americans to what Mrs. Clinton hid on her home-brew computer. The FBI confirmed that foreign hackers almost certainly raided her unsecure server to get the nation’s top secrets. This includes all 60,000 of her emails—not just the 30,000 she chose to disclose.
Mrs. Clinton’s missing 30,000 emails could still become public. Recent reports indicate that Russian agents hacked the servers of the Clinton Foundation and the Democratic National Committee.Vladimir Putin can now triangulate information from the Clinton emails, the Clinton Foundation and the DNC. He could launch an October surprise to affect the U.S. election by disclosing information Mrs. Clinton tried to keep hidden. Or he could keep the information for himself as a sword over the head of a potential next president.
In this Facebook era of aggressive personal transparency, voters will have to decide what to make of Mrs. Clinton’s going to such lengths to keep her communications secret. Her behavior is a powerful reminder that the need for FOIA disclosure about government officials has only grown over the past 50 years.
