Justice Department: Clinton had right to delete personal emails | McClatchy Washington Bureau

The Obama administration has forcefully defended former Secretary of State Hillary Clinton’s right to delete over 31,000 emails from her private server and says the State Department has no obligation to try to recover them.

“There is no question that former 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,” lawyers for the Justice Department’s Civil Division wrote in a federal court brief that drew little notice when it was filed Wednesday.

But Tom Fitton, president of Judicial Watch, one of a number of conservative-leaning groups suing over the emails, said Friday that the Justice Department “is out to lunch” because the emails on Clinton’s account effectively belonged to the government.

“This is jaw dropping,” he said.

At issue is whether Clinton, long considered the front-runner for the Democratic presidential nomination, turned over all of her official emails to the State Department last December after it asked all former secretaries to state to provide such records. At a news conference in March, Clinton disclosed that she had provided the department with 30,490 emails and deleted more than 31,000 others that she said were personal.

That only fueled a rush of Freedom of Information Act suits demanding Clinton’s emails and contesting whether she had surrendered all those related to State Department business.

Most of the furor over Clinton’s emails has revolved around discoveries that scores of them contained classified information, in at least two instances highly classified material.

Justice Department lawyers are opposing Judicial Watch’s request that U.S. District Judge Reggie Walton of the District of Columbia issue a preservation order requiring that Clinton’s emails be preserved wherever they may exist.

Clinton said recently that she entrusted her attorneys to comb through the emails and decide which ones were official. They erred on the side of disclosure, she said, and thus the State Department later returned over 1,200 emails that were determined to be personal.

In their brief, Justice Department lawyers called that an appropriate procedure. They noted that under policies issued by the State Department and the National Archives and Records Administration, the ultimate repository for government records, individual officers and employees may “exercise judgment to determine what constitutes a federal record.”

Further, because personal records are not subject to the Freedom of Information Act, the State Department has no duty to recover the emails, they wrote.

Fitton, however, said that State Department rules prohibited Clinton from taking “records from that system without a document-by-document approval by the State Department. Former officials don’t have the right to go into a system like this and start taking records and keeping them.”

Still unclear is whether Clinton’s personal emails are even recoverable. During her service as secretary of state from 2009 to 2013, Clinton stored her emails on a private server at her home. In June 2013, that job was turned over to Platte River Networks, a Colorado firm.

A spokesman for the firm, Andy Boian, told McClatchy recently that the server was kept in a “locked rack” at a facility in New Jersey until it was turned over in August to the FBI, which is conducting an inquiry to determine whether Clinton’s use of a personal email account breached national security.

Boian declined to say definitely whether the company or anyone else had wiped the server clean, such as by overwriting the content with encrypted data.

As to whether the firm had a backup server, he said: “No backups have ever been located in Denver or in Platte River’s possession at any time.”