During the Obama presidency we’ve gotten used to a Justice Department that makes all their decisions on what’s best for the President Obama and the Democratic Party. Many of us however though things would change now that Eric Holder has been replaced by Loretta Lynch–no such luck.  On Wednesday the Justice Department old a federal court that Hillary Clinton was within her legal rights to use of her own email account, to take the messages with her when she left office and to be the one deciding which of those messages are government records that should be returned.

According to the Washington Times:

In the most complete legal defense of Mrs. Clinton, Justice Department lawyers insisted they not only have no obligation, but no power, to go back and demand the former top diplomat turn over any documents she hasn’t already given — and neither, they said, can the court order that.

The defense came as part of a legal filing telling a judge why the administration shouldn’t be required to order Mrs. Clinton and her top aides to preserve all of their emails.

“There is no question that Secretary Clinton had authority to delete personal emails without agency supervision — she appropriately could have done so even if she were working on a government server,” the administration lawyers argued. “Under policies issued by both the National Archives and Records Administration (‘NARA’) and the State Department, individual officers and employees are permitted and expected to exercise judgment to determine what constitutes a federal record.”

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The legal brief said that means employees are required to “review each message, identify its value and either delete it or move it to a record-keeping system.”

The Justice Department didn’t mention whether they are allowed to delete those messages after  they are under subpoena, or the U.S. Code of federal regulations on handling electronic records as updated in 2009 “Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.” The responsibility for making and preserving the records is assigned to “the head of each federal agency.” 

The head of that agency which just so happened to be Hillary Clinton was supposed to “ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.” In other words there needed be a back up copy of everything collected by the state department.

Judicial Watch filed a brief opposing the DOJ’s claim

“Indeed, the State Department’s own rules specify that personal records of a departing presidential appointee may not be removed from the government until the State Department ‘records officer in cooperation with the S/ES or appropriate administrative office’ approves of the removal, a process which ‘generally requires a hands-on examination of the materials,’ ” Judicial Watch said in a reply brief. 

To say that Hillary Clinton got to decide what was business and what was personal on her personal server is 100% true under federal regulation, however the head of the agency (Hillary Clinton) was charged with ensuring that there was a backup for the federal records. And if that backup contained personal records, well she should have had a personal account for her personal emails. Other than her disregard for the classification of the emails on her insecure sever, the only legal exposure for Ms. Clinton involves when she “wiped” her server clean.  If it was done after the subpoena for the emails was issued it may be a problem.

Of course none of this changes the fact that she spent months lying about her server and/or that she had three different versions of the classification story

  1. I did not send or receive classified information.
  2. I did not send or receive emails that were classified at the time they were on the server.
  3. I did not send or receive emails that were marked classified at the time they were on the server.

In the end truth about how she treated classified information will determine if she is the 2016 Democratic standard bearer and if she is will she be a damaged candidate in the general election.