It was lost amid news of President Obama's Iran deal, but this week Hillary Clinton released a 3,500-word explanation of her secret email system. While it is by far the most extensive statement the Clinton campaign has made on the issue, the explanation does not touch what has become a key question, if not the key question, of the email affair: Did Clinton withhold information from Congress?
The statement is in question-and-answer form. In it, Clinton asserts that she carefully followed every law and regulation that applied to her emails as secretary of state. She did absolutely nothing wrong, she says.
One of the questions asked is: "Did Clinton delete any emails while facing a subpoena?" Clinton's answer is no, she did not. According to the Clinton campaign: "The emails that Clinton chose not to keep were personal emails — they were not federal records or even work-related — and therefore were not subject to any preservation obligation under the Federal Records Act or any request. Nor would they have been subject to the subpoena — which did not exist at the time — that was issued by the Benghazi Select Committee some three months later."
The subpoena to which Clinton referred was issued March 4, 2015, after the committee learned that Clinton kept her emails on a separate, secret server. Clinton seems to be confirming that she destroyed her email records (and all backups, according to her attorney) in early December, which would be three months before the Benghazi committee subpoena. So Clinton's argument is: There's no way I was subject to a subpoena because I destroyed everything before the subpoena was issued.
Putting aside the question of whether Clinton's emails were already covered by an earlier subpoena — Benghazi committee chairman Rep. Trey Gowdy maintains they were — there is still the question of whether Clinton, all along, had a legal obligation to preserve her emails and hand them over to Congress. And on that question, there seems no doubt Clinton was legally required to do just that — and despite that obligation destroyed the emails anyway.
On September 20, 2012, nine days after the terrorist attack in Benghazi, Libya, the House Oversight Committee's Subcommittee on National Security, Homeland Defense and Foreign Operations sent a letter to then-Secretary of State Clinton asking for "all information … related to the attack on the consulate." The letter told Clinton, "In complying with this request, you are required to produce all responsive documents that are in your possession, custody, or control, whether held by you or your past or present agents, employees, and representatives acting on your behalf." The letter specified emails as documents covered by the request.
The letter was clear. In response, the State Department produced not a single email to or from Clinton. The world now knows, of course, that Clinton did in fact possess emails covered by the request and did not turn them over.
How does Clinton's new explainer explain that? It doesn't. The campaign's new statement simply ignores that 2012 congressional letter demanding documents.
Beyond that, the explainer's wording is highly misleading. Look at the paragraph quoted above. The emails Clinton "chose not to keep" were "personal emails" and therefore "were not federal records or even work-related." But we know from Clinton's lawyers that she "chose not to keep" — that is, she destroyed — all of her emails, both work and personal, after printing out some and sending them to the State Department. For Clinton to argue that her "personal" emails were "not subject to any preservation obligation…or any request" is a non sequitur because the congressional request, beginning in 2012, was always for Benghazi- and Libya-related documents. Clinton had them and did not turn them over.
The Clinton explainer says that on December 5, 2014, she sent the State Department "30,490 copies of work or potentially work-related emails" from her time as secretary. But the Libya-related portion of those materials didn't make it to the Benghazi committee until recently, and even now a few documents are being withheld on some sort of claim of executive privilege.
Given all that, it seems beyond dispute that Clinton withheld Benghazi-related information from Congress beginning September 20, 2012. There are laws that govern such behavior. To give two examples: 18 U.S. Code 1505 says that anyone who "obstructs, or impedes or endeavors to influence, obstruct, or impede … the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House, or any joint committee of the Congress" could face a five-year prison term, while 18 U.S. Code 1001 states that anyone who "falsifies, conceals, or covers up by any trick, scheme, or device a material fact" in the course of "any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress" could face a prison sentence of up to eight years.
That's not to suggest Clinton should be charged with a crime for withholding information from Congress, although others have been prosecuted for that at times in the past. But it does suggest Trey Gowdy has good reason to keep investigating. In light of Clinton's record over the last few years, why should the chairman believe anything she says now?