The State Department has released the first email associated with former Secretary of State Hillary Clinton's private email account.
But Clinton didn't write it.
Obtained exclusively by VICE News, the email was sent to Clinton at her private email address on Christmas Eve 2010 by then-State Department spokesman Philip J. Crowley under the subject line "WikiLeaks Update."
"Madame Secretary, first of all, Merry Christmas. I trust you, the President and Chelsea will have a special holiday," Crowley wrote, copying Clinton's aides and other top State Department officials on the communication.
The rest of the email is redacted, as is Clinton's private email address. The email was turned over to investigative journalist Alexa O'Brien, who shared it with VICE News. O'Brien, who reported extensively on the court martial of Army Pfc. Chelsea Manning — the intelligence analyst convicted of federal crimes in connection with thousands of classified documents she leaked to WikiLeaks — has active Freedom of Information Act (FOIA) lawsuits against the State Department and other government agencies seeking documents related to internal government discussions about the transparency organization.
The State Department did not include Clinton's response to Crowley if she sent one.
In a declaration submitted in federal court last month in O'Brien's FOIA case explaining the search process and redactions on the Crowley email, John Hackkett, the State Department's FOIA chief, did not identify Clinton by name. The presumptive Democratic presidential nominee was referred to as a "Department employee," and the rationale given for redacting her email address on privacy grounds is that "release of this information could result in unsolicited attention and harassing inquiries."
It is likely that the private email address Clinton used that the State Department redacted is HDR22@ClintonEmail.com; that email account was publicly disclosed two years ago and is no longer active. A hacker gained access to Clinton confidante Sidney Blumenthal's emails and posted screenshots of the emails the former Clinton White House staffer sent her about hot-button issues like the 2012 attacks on a diplomatic compound in Benghazi, Libya.
Clinton's use of personal email to conduct official business during the four years she spent as Secretary of State was first revealed by the New York Times this week, and has snowballed into an epic scandal. It has been widely reported that Clinton's decision to use private email was a means to thwart FOIA requests. Under federal law, Clinton's work-related emails would be considered government records and should be preserved on the State Department's servers in accordance with the Federal Records Act so that journalists, historians, and the public can access them through FOIA.
Additional emails O'Brien received also shows that Harold Koh, the State Department's former legal adviser, and other officials frequently used their private email accounts to discuss official government business. One such email was dated January 8, 2011. It related to a discussion about "comment or guidance" on a subpoena the Justice Department issued to Twitter for information about Julian Assange and certain individuals who supported him and Manning. The sender of the email said later in the email thread that Koh's State Department email should also be copied on the communication. It was initially sent to his private email address.
The email sent to Clinton and senior officials at State shows that numerous people were aware that Clinton used a private email account. According to an Associated Press report, however, the White House Counsel's office did not know Clinton used a personal email account. Nor did a congressional committee investigating the Benghazi attacks, which obtained several hundred of her emails last month.
Reached by email, Crowley said "few" people "at the top level of leadership relied heavily on email to communicate with key staff."
"In the national security business, old-fashioned methods like meetings, phone calls, and memos still predominated because of the hierarchical nature of these bureaucracies," Crowley told VICE News.
He also acknowledged that he received "some" emails from Clinton from her private email account, "though not a lot."
"I saw her multiple times on a typical day, and generally updated her during those meetings and received guidance from her regarding the issues of the day," he said. "During my tenure between 2009 and 2011, her use of a private email was never an issue for me or anyone I interacted with at State. I had a state.gov email address and used that exclusively for official business."
Crowley resigned as head of the State Department's Office of Public Affairs in 2011 following comments he made that were critical of the Pentagon's treatment of Manning.
Nate Jones, a FOIA expert at George Washington University's National Security Archive, said Crowley should have objected to Clinton's exclusive use of private email for official business.
"Hundreds of others at the State Department, including the IT Department, its FOIA shop, and career civil servants had seen and known that the leader of their agency was improperly using a personal email," said Jones, who this week published a lengthy analysis on the Clinton email controversy. "It's upsetting to me that no State Department official — as far as I have seen — alerted the Archivist of the United States or their Inspector General, blew the whistle to congress, or leaked the fact that important State Department records were at risk."
The Crowley/Clinton email the State Department turned over to O'Brien, however, indicates that the State Department should be able to locate emails officials at State sent to Clinton, along with emails those officials received from her in response to Freedom of Information Act (FOIA) requests.
A review of the State Department's FOIA logs, which summarize records requests the agency receives, shows that no one has filed such a specific request. State has received requests from journalists and watchdog groups dating back to 2010 for Clinton's emails — several of which are still open. One filed by Gawker, for "correspondence" between Clinton and Blumenthal, was closed due to the fact State claims it could not locate any responsive documents. There is no indication that the State Department even attempted to ask Clinton or any of her advisers to conduct a search of her private emails in order to fulfill FOIA requests.
Ryan James, a former State Department attorney who worked on FOIA cases there and is consulting on O'Brien's lawsuit, told VICE News that if the State Department believed that Clinton's emails were not subject to FOIA, then the "proper course of conduct was to seek confirmation from the Office of the Legal Adviser," which was headed by Koh during most of Clinton's tenure as Secretary. The legal adviser would issue a written opinion directed to the Secretary of State's office.
"If this was done, given the importance of the issue, it is highly likely that the opinion was cleared, if not signed, by Koh himself," said James, who added he was unaware that Clinton used a private email address during his tenure at State, which ended last year when he returned to private practice. The personnel in [Clinton's] office would be obligated to follow whatever recommendation or direction was given by the Office of the Legal Adviser."
(James is representing me in four FOIA lawsuits I filed against the State Department, including one for Clinton-related documents and her emails.)
A State Department spokesperson did not respond to questions about the existence of such a memo. Koh, now a law professor at Yale University, also did not respond to requests for comment.
James said when the State Department's FOIA office receives a request, it is assigned to a FOIA officer. The FOIA officer is then responsible for determining which bureaus and offices can reasonably be expected to have responsive records, and tasks each office with conducting a search. Each office that receives a FOIA "tasker" is responsible for conducting the search and sending all records that are potentially responsive to the request back to the FOIA officer, along with a certification that the search was properly performed.
"Therefore, when a FOIA officer determines that the Office of the Secretary should be searched, that officer would issue a tasker," James said. "The Office of the Secretary would assign responsibility for complying with the tasker to one or more employees within that office, who would then certify that all records within that office were searched, and provide any potentially responsive records to the FOIA officer."
The email Crowley sent to Clinton was located when a State Department employee searched the classified and unclassified email account of a former official using specific keywords.
Still, even if some responsive emails are located, there are inadequate safeguards in place to ensure any search is comprehensive, James said. This can occur due to the deletion of emails and a lack of training. Emails deleted by individual State Department employees will not be found when a search is conducted, and IT is generally not contacted to perform a back-end search of those emails.
"The FOIA officer relies entirely on the tasked offices to ensure the search conducted is comprehensive; I am unaware of any independent or third-party oversight of this process, and have seen several situations where additional records were found in an office that had previously certified that the search had been completed," James said. "In my experience, this is due to a lack of training within the department about how to access and search archived material, and a failure to search emails of persons no longer with the department."
Clinton has since called on the State Department to publicly release 55,000 emails covering her tenure as Secretary of State. Her staff first reviewed these emails and then turned them over to the State Department last year. On Friday, State Department spokeswoman Marie Harf said the Department will apply FOIA standards to review Clinton's emails and determine what should be released and what should remain secret. Presumably, that means Clinton's private email address will be redacted on privacy grounds--one of nine FOIA exemptions--just as it was in the Crowley email turned over to O'Brien.
Meanwhile, O'Brien's attorney Jeffrey Light — he also represents me in more than a dozen FOIA lawsuits — intends to make a case that Clinton's personal email cache should be searched in order to locate records responsive to O'Brien's FOIA request on WikiLeaks if the State Department declines to voluntarily conduct such a search.
"I'll echo the testimony of a State Department official at Chelsea Manning's court martial who said that the Secretary of State's official records have an obvious public and historical value whether they find their expression in my own research as a journalist or in the accounts of the Foreign Relations of the United States," O'Brien said. "If it was Clinton's personal email server that captured those official records, instead of the State Department central filing system, then those records are subject to my March 2013 Freedom of Information Act Request."
This story has been updated.
Follow Jason Leopold on Twitter: @JasonLeopold