For anyone considering this sad tale carefullyincluding the media, members of Congress and the public at large, whether from inside the Beltway or notsome basic points of both law and reality should be borne in mind.
First, while it is accurate for Secretary Clinton to say that when she was in office there was not a flat, categorical prohibition on federal government officials ever using their personal email accounts for the conduct of official business, thats a far different thing from saying (as she apparently would like to) that a government official could use his or her personal email account exclusively, for all official email communications, as she actually did. In fact, the Federal Records Act dictates otherwise.
That law, which applies to all federal agency employees who are not within the White House itself, requires the comprehensive documentation of the conduct of official business, and it has long done so by regulating the creation, maintenance, preservation and, ultimately, the disposition of agency records. When it comes to modern-day email communications, as compared to the paper memoranda of not so long ago, these communications now are themselves the very means of conducting official business, by definition.
To be sure, this cannot as a practical matter be absolute. When Obama administration officials came into office in 2009, the Federal Records Act certainly allowed room for the occasional use of a personal email account for official business where necessarysuch as when a secretary of state understandably must deal with a crisis around the world in the middle of the night while an official email device might not be readily at hand. That just makes sense. But even then, in such an exceptional situation, the Federal Records Acts documentation and preservation requirements still called upon that official (or a staff assistant) to forward any such email into the State Departments official records system, where it would have been located otherwise.
This appears to be exactly what former Secretary of State Colin Powell did during his tenure, just as other high-level government officials may do (or are supposed to do) under such exceptional circumstances during their times in office. Notwithstanding Secretary Clintons sweeping claims to the contrary, there actually is no indication in any of the public discussions of this scandal that anyone other than she managed to do what she did (or didnt) do as a federal official.