Thursday, May 26, 2016

This entire issue of records got kind of sticky in 2014. But, there was also Executive Order 13233.

Executive Order 13233 was signed on November 1, 2001 by George W. Bush. 

By the authority vested in me (click here) as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures implementing section 2204 of title 44 of the United States Code with respect to constitutionally based privileges, including those that apply to Presidential records reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President's advisors, and to do so in a manner consistent with the Supreme Court's decisions in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), and other cases, it is hereby... 

That Executive Order defined clearly the Cabinet advisers are in the Executive Branch under the President's Control. I sincerely believe the State Department Inspector General was applying the wrong law in his interpretation of how the former Secretary's records were handled.

President Obama wrote a sunshine law when he first came into office, but, it was to remove the power of the former President's to prevent disclosure of Presidential Records. President Obama changed the part of Executive Order 13233 in regard to the power of former Presidents.

Sec. 2. Notice of Intent to Disclose Presidential Records. (a) When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of the NARA regulations, the Archivist, using any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of executive privilege. However, nothing in this order is intended to affect the right of the incumbent or former Presidents to invoke executive privilege with respect to materials not identified by the Archivist. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative....

In 2011, President Obama wrote an interagency memo regarding transparency. It was dated November 28, 2011. It provided specific times to provide information to the archival department for government records.

Sec2.  Agency Commitments to Records Management Reform.  (a)  The head of each agency shall: (click here)
 (i)    ensure that the successful implementation of records management requirements in law, regulation, and this memorandum is a priority for senior agency management;
 (ii)   ensure that proper resources are allocated to the effective implementation of such requirements; and
 (iii)  within 30 days of the date of this memorandum, designate in writing to the Archivist of the United States (Archivist), a senior agency official to supervise the review required by subsection (b) of this section, in coordination with the agency's  Records Officer, Chief Information Officer, and General Counsel.
(b)  Within 120 days of the date of this memorandum, each agency head shall submit a report to the Archivist and the Director of the Office of Management and Budget (OMB) that:...
...Sec3.  Records Management Directive.  (a)  Within 120 days of the deadline for reports submitted pursuant to section 2(b) of this memorandum, the Director of OMB and the Archivist, in coordination with the Associate Attorney General, shall issue a Records Management Directive that directs agency heads to take specific steps to reform and improve records management policies and practices within their agency.  The directive shall focus on:...
There are only 365 days in a year. This memorandum allows 270 days to meet the requirements that President Obama set down. That means all these new initiatives were being complied and were to come into compliance about the time President Obama was naming a new Secretary of State to replace Secretary Clinton. 
There is just no way former Secretary Clinton falls into any judgement regarding the timeline of her submissions from her private server. There is too much going on here to ever expect anyone, including the Inspector General of the State Department, to come to a decision about the records within the State Department. I'm sorry, but, for all the Executive Orders and Memos and Congressional authority imposing itself on the Executive Branch, the RULES TO FOLLOW were extremely uncertain.
In 2014,  the Legislative Branch muddied up the definition of "separation of powers."

Congress passed this law:

The House voted Tuesday (click here) to pass two non-controversial bills dealing with expanding funding for audits at the Office of Personnel Management (OPM), and modernizing the process for accessing presidential records.

In a 418-0 vote, members passed the OPM IG Act, H.R. 2860. This bill lets OPM's Inspector General use a portion of a revolving fund, which can be used to fund training and other programs, to pay for audits and other investigatory work at OPM.

And in a 420-0 vote, the House passed the Presidential and Federal Records Act Amendments, H.R. 1233. This bill would update rules for securing presidential documents to reflect the latest technology, and sets up a formal appeal process for presidents who object to the release of records....

I think the law is unconstitutional where it applies to the Executive Branch. The underlying authority lies with the Presidential Records Act and has been acted on by Presidents (nearly every one of them) when they feel their power was infringed upon. Then Congress comes up with a joint law.

I realize this seems like trivial pursuit for a President, in this case President Obama, but, I do believe it is his responsibility to test the legislation for separation of powers. The 2014 law does not effect Secretary Clinton, but, that isn't the point.

I think the Clinton campaign has tried to bring the email issues into context for the public, but, the facts regarding the handling of the electronic records of the White House is clear as mud.

I sincerely challenge the efficacy of the Inspector General's report (click here).

I also believe it is high time the FBI report to the public with upcoming party conventions. The FBI said May, it is nearly the end of May.