Hillary Clinton lawyer defends private email system as Biden mulls 2016 bid

Updated

Hillary Clinton is stepping up her defense of her use of a private email server amid reports that Vice President Joe Biden, responding to growing unease among the Democratic frontrunner’s backers, is considering a presidential bid of his own.

RELATED: Why Biden can’t overlook Iowa or New Hampshire

In a letter sent late Friday to the State Department’s undersecretary for management, obtained by NBC News, Clinton’s lawyer writes that her use of a personal email account for conducting State Department business followed both federal rules in place at the time and the practice of some of her predecessors. 

“Secretary Clinton’s use of personal e-mail was consistent with the practice of other Secretaries of State and was permissible under State Department policy in place during her tenure,” attorney David Kendall writes.

The deepening controversy over Clinton’s email has continued to throw up stumbling blocks for the Democratic candidate, prompting renewed interest in a primary challenge by Biden, the sitting vice president and a potentially formidable challenger should he decide to run. According to Politico, Biden met Thursday with advisers who are gaming out a possible last-minute entry into the presidential race should Clinton’s campaign implode. 

On Saturday, Biden met privately with Sen. Elizabeth Warren in Washington, D.C., an aide to the vice president told NBC News. Warren, an influential progressive voice whose endorsement could impart crucial grassroots credibility, has not yet given her blessing to any candidate – including Clinton.

“Secretary Clinton’s use of personal e-mail was consistent with the practice of other Secretaries of State and was permissible under State Department policy …”
David Kendall, Clinton attorney
The message Friday from Clinton’s lawyer, though styled as a letter to the State Department, amounts to a response to a comment Thursday from a federal judge during a hearing over a lawsuit to obtain government records.

“We wouldn’t be here today if this employee had followed government policy,” said Emmet Sullivan, a federal district court judge in Washington, referring to Mrs. Clinton.

The court hearing involved a side issue in the e-mail controversy – a Freedom of Information Act request for records detailing an arrangement that allowed top Clinton aide Huma Abedin to do outside consulting while working at the State Department. 

In his letter, Kendall quotes from a memoir by former Secretary of State Colin Powell who wrote that he used his personal e-mail account for messages to “principal assistants, to individual ambassadors, and increasingly to [his] foreign-minister colleagues.”

Mrs. Clinton’s use of her personal account was also permitted by federal regulations, Kendall says, including rules issued by the National Archives to implement a federal law on record preservation.

In 2009, Kendall says, the rule explained the practice to be followed when federal agencies “allow employees to send and receive electronic mail messages using a system not operated by the agency.”

In that event, the employee must ensure that a record of the e-mail is obtained in a government system.  “Secretary Clinton followed that regulation through her practice of communicating with other Department officials on their state.gov e-mail accounts,” Kendall’s letter says.

By forwarding and copying messages to department employees at their government addresses, her emails were preserved in the State Department system, he said.

Kendall also said Mrs. Clinton followed government regulations in deciding which emails in her personal accounts were private and which involved official business.

Both federal regulations and the State Department’s Foreign Affairs Manual contemplate that kind of review by employees. The Manual, Kendall notes, offers guidance “to direct the preservation of those messages that contain information necessary to ensure that departmental policies, programs, and activities are adequately documented.”

Mrs. Clinton provided the State Department printed copies of 30,490 emails from her personal account last December. Roughly 90% of them were sent to or received by a government employee with a state.gov address, Kendall said. 

Of the rest, Kendall says, “we anticipate that many” will prove to have been of a personal nature that did not need to be preserved.

In March 2015, the Government Accounting Office found that the State Department’s archiving system was seriously flawed and that only a small percentage of emails were actually saved during the period in question.

But Clinton campaign officials have said that if not for her private email system, many of the messages she sent during that period might not have been saved if she had used a state.gov account.

“That’s one of the ironies here,” a campaign official said Saturday.  “If not for the records now available from her personal accounts, many of the e-mails she sent during that period would not have been archived.”

Hillary Clinton

Hillary Clinton lawyer defends private email system as Biden mulls 2016 bid

Updated