Republican U.S. House Speaker John Boehner joined calls for Hillary Clinton to turn over her private e-mail server to an outside arbiter, saying the “American people deserve all the facts.”
Boehner said an outside review is the only way to determine if congressional investigators into the deadly 2012 attack on the U.S. consulate in Benghazi, Libya, have what they need.
“That’s why it’s so important for Secretary Clinton to turn over her personal server to a neutral third party,” Boehner said Tuesday after a closed-door meeting with House Republicans. “That is the fairest way to make sure we have all of the documents that belong to the public, and ultimately all of the facts.”
Clinton, secretary of state from 2009 until early 2013, used a private e-mail address and a home server while in the job. Her office said March 10 she gave 30,490 work-related e-mails to the State Department, which is reviewing them for public release. Another 31,830 e-mails, which Clinton said involved personal matters such as wedding planning or yoga routines, were deleted.
Lawmakers could subpoena her computer equipment to find out if she withheld messages containing government business, which could trigger a legal battle.
“There’s no reason why the House can’t subpoena a former official for records that are in her possession,” said Aziz Huq, a professor at the University of Chicago who teaches and researches constitutional law.
As long as it’s an issue of legislative business or connected with congressional oversight, the Republican-led House has wide leeway to vote to authorize a subpoena for Clinton’s e-mails and the contents of her server, Huq said. The House Oversight & Government Reform also could issue subpoenas, but courts give greater weight to those issued from the full congressional body, he said.
In response to demands from Republicans seeking access, President Barack Obama could seek to claim executive privilege, an argument weakened but not entirely undermined by the fact that the e-mails are from Clinton’s private system on her property in New York, said Mark Rozell, a George Mason University professor of public policy.
“The burden would be on the president and administration to make the case that the release of the e-mails would hurt the national interest,” Rozell, author of a book on executive privilege, said in an interview. “There may have to be some process where the e-mails are reviewed in private.”
Representative Jason Chaffetz, chairman of the House’s oversight panel, has said he would prefer not to subpoena Clinton but his panel is looking into the issue of her communications.
The Benghazi committee, led by South Carolina Republican Trey Gowdy, has already subpoenaed the State Department for materials and sent letters to Internet service providers to preserve any records they may have.
At the request of Clinton’s lawyers, the committee on Tuesday extended the deadline by two weeks for her to respond to a March 4 subpoena seeking communications related to Libya. The new deadline is March 27.
Gowdy granted a “reasonable extension because this is not about politics, it is about getting all relevant documents,” committee spokesman Jamal Ware said in an e-mail.
Gowdy has said that the panel lacks authority to issue a subpoena for the Clinton server, and a vote by the full House may be needed to get the equipment.
“He still believes the best option for Secretary Clinton is to turn over he server to a neutral arbiter to independently determine what should be in the public domain,” Ware said. “The committee has no interest in her personal e-mails.”
Clinton spokesman Nick Merrill didn’t respond to a request for comment Monday on the possibility of a subpoena. In a press conference last week, Clinton balked at handing over the unit.
“The server contains personal communications from my husband and me, and and I believe I have met all of my responsibilities and the server will remain private,” she said.
In a separate action Tuesday, the Republican National Committee requested from the State Department copies of the documents signed when Clinton left office asserting she handed over all official communications. The committee also sought records related to the configuration, vetting and encryption of Clinton’s personal BlackBerry.
“Hillary Clinton clearly violated the spirit of the ‘Separation Statement’ that she compelled all other Department personnel to sign,” committee Chairman Reince Priebus said in a statement. “While the State Department has failed to answer whether she signed the agreement herself, it cannot ignore a request under the Freedom of Information Act.”
During the closed-door meeting of Republicans, Boehner emphasized that Chaffetz and Gowdy weren’t leading a “witch hunt,” Representative Dave Schweikert of Arizona said.
Schweikert and Representative Steve Pearce of New Mexico said Boehner offered no schedule for potential subpoenas.
“Boehner said we are just looking for the truth,” Pearce said.
The speaker said the investigating work of the committees is unchanged and both will pursue gaining access to the documents.
“We have rigorous oversight activities at both the Benghazi committee and at the Government Reform Committee, and I don’t think there’s any changes that need to be made,” Boehner said.
Representative Elijah Cummings of Maryland, top Democrat on the Oversight and Benghazi committees, said in an interview Monday that he didn’t know what the Republican lawmakers plan to do. He said Gowdy probably will focus on Benghazi and “Chaffetz will deal with a much broader field -- the server and all of that.”
“I think it’s overkill,” Cummings said. “I think it’s unprecedented.”
Cummings said that in 2007, when Democrats controlled the House, they sought documents related the dismissal of eight U.S. attorneys while Republican George W. Bush was president. In the probe, he said they learned some e-mails were sent using a server run by the Republican National Committee, not from a government computer.
Instead of issuing a subpoena, Cummings said the former Oversight Committee chairman, Henry Waxman of California, negotiated with Republican National Committee lawyers.
“I think that this is an appropriate way to try to address that, if it’s going to be addressed,” Cummings said.
Cyber security experts say that it’s possible even deleted messages could be recovered. Standard deletion would likely leave most or all of the contents stored somewhere on the computer system, allowing recovery with forensic tools, Ken Westin of Tripwire said in an e-mail. There might also backup copies somewhere, he said.
“If she just deleted them, they will probably still be present and recoverable,” said Eric Fiterman, a former FBI agent and cybersecurity expert. “But if she hired someone who specializes in data recovery and forensics to make data disappear, then odds of recovery are low.”
And recovery can only happen if a forensic expert can gain the authority to try and recover the data. With Clinton objecting, Congress or the courts would need to try and force that action.
Given these files were created while Clinton was the nation’s top diplomat, “there are all kinds of legislative purposes they could come up with to go after them,” said Josh Chafetz, a professor of law at Cornell Law School in Ithaca, New York, who studies constitutional law and legislative procedure. “There’s no reason why the House can’t subpoena a former official for records that are in her possession.”
Still, without any details of what kinds of information are on that computer, a subpoena for the server or an image of its contents, would be a venture into uncharted waters, said Peter Shane, a law professor at The Ohio State University, who has written about the separation of powers.
“This would be absolutely new territory,” he said. “Asking for her server is like asking for her file cabinet.”
Whatever the legal arguments, Shane and other experts expect the final resolution to come down to a negotiation between Republican lawmakers and Clinton, each driven by their political calculations. Clinton won’t want to seem to be keeping secrets, and lawmakers won’t want to seem to be bullying her, he said: “Both sides have a political problem.”
(A previous version of this story corrected the total number of personal Clinton e-mails that were deleted.)