Dan Metcalfe “spent more than thirty years working at the U.S. Department of Justice, at which he served from 1981 to 2007 as director of the Office of Information and Privacy, where he was responsible for overseeing the implementation of the FOIA throughout the entire executive branch. He now teaches secrecy law at American University’s Washington College of Law.” and has been interviewed before as an expert on FOIA and related laws.
Metcalfe made headlines last year with his piece on Politico: Hillary’s Email Defense Is Laughable: I should know—I ran FOIA for the U.S. government. That article, from March 16, 2015, is in fact very well worth reading today with the benefit of hindsight. He was called a “crackpot” by Armando at the time, but his March 2015 piece mirrors nearly everything said in the official OIG report.
It’s also worth stating Metcalfe is an avowed mainstream Democrat and Hillary supporter, and wants to avoid Bernie Sanders as the Democratic nominee at all costs.
With that as context; in his reaction to the OIG report, Metcalfe doesn’t mince words:
No, her self-serving email set-up was not “allowed” under the State Department’s rules. No, she was not “permitted” to use a personal email system exclusively as she did. No, what she did was hardly just a matter of her “personal convenience.” No, there is no evidence that any State Department attorney (other than perhaps Secretary Clinton herself) ever gave “legal approval” to any part of her special email system. No, everything she did was not “fully above board” or in compliance with the “letter and spirit of the rules,” far from it. Yes, she was indeed required by the FRA to maintain all official e-mails in an official system for proper review, delineation, and retention upon her departure. Yes, her private server equipment was in fact the subject of multiple attempted intrusion attempts (i.e., hacks), including by foreign nations. The list goes on and on. (Note that this does not even include Ms. Clinton’s many serious “misstatements” about her handling of classified or potentially classified information.)
In terms of legal consequences, Metcalfe’s analysis is similarly dire:
Secretary Clinton’s intent (known in criminal law as mens rea), or lack of same, is not what matters in this case. Rather, the applicable legal standard is a mere “gross negligence” one, as specified in the standard national security non-disclosure agreement that she signed and its underlying criminal statutes.
And when you marry that to the fact that (among other things) her admitted failure to use the State Department’s special classified email system for classified (or potentially classified) information constituted a clear violation of a criminal prohibition, you start worrying big-time. And this is especially so given that Ms. Clinton did not just violate such laws inadvertently or even only occasionally — she did so systemically. In other words, her very email scheme itself appears to have been a walking violation of criminal law, one with the mens rea prosecution standard readily met."
Again, this is coming from a 30 year DOJ director and lawyer who specializes in secrecy law, and who personally knows some of the cast of characters involved. He believes an indictment will be recommended by Comey:
Those of us who worked under [James Comey] when he was the deputy attorney general during the George W. Bush Administration know him to be an exceptional man of utmost integrity, one who can be counted on to recommend a criminal prosecution when the facts and the law of a case warrant it, regardless of political circumstances. Given that the facts and law are so clear in Ms. Clinton’s case, it is difficult to imagine her not being indicted
Just a bit more quoting of the bio of this “crackpot”, from his University page:
For more than a quarter-century in that position, he guided all federal agencies on the government-wide administration of the Freedom of Information Act, directly supervised the defense of more than 500 FOIA and Privacy Act lawsuits in district and appellate courts, testified before Congress on FOIA amendment legislation and authored Attorney General FOIA memoranda for successive presidential administrations, and met with representatives of nearly 100 nations and international governing bodies as they considered the development and implementation of their own government transparency laws. ...
... On behalf of CGS, he has testified before both the House Committee on Oversight and Government Reform and the Senate Judiciary Committee as an expert on governmentwide FOIA administration and the proper implementation of new FOIA policy. Most recently, he was elected as a Fellow of the National Academy of Public Administration and successfully litigated a Privacy Act lawsuit on behalf of Department of Justice Honors Program applicants who were subjected to a corrupt political screening process during the tenure of Attorney General Alberto Gonzales. Professor Metcalfe has held positions as an Honorary Senior Research Fellow at University College London and as a contributing editor of theAdministrative Law & Regulatory News publication of the American Bar Association's Section of Administrative Law, for which he received its exceptional service award in 2014.