When Hillary tried the eminently sensible “I was following precedent” defense, Politifact dinged her answer as “mostly false” on the grounds that while Powell did use a personal email account, he didn’t use a private email server.
This distinction has attracted a lot of attention. And it’s proven politically damaging — because while lots of people maintain two email addresses and sometimes do work stuff on their personal email, very few Americans use a private email server as opposed to relying on a commercial email service. But legally speaking, this is completely irrelevant. As the State Department inspector general concluded in its report on Clinton’s conduct, the guideline Clinton violated was a principle that “normal day-to-day operations should be conducted on an authorized Automated Information System.”
Using a private server violates that rule, but so would using a Gmail address or simply checking your State.gov email address from your personal laptop rather than a Department-issue one.
But while the use of a private server is legally irrelevant, it’s certainly unusual. And it leaves people wondering: Why did Clinton go out of her way to set up a private server?
Clinton, as you may have heard, is married to former president Bill Clinton, who stepped down from office in January of 2001. Clinton was in the White House throughout the 1990s when the rest of us were being bombarded with AOL signup CD-ROMs, so he didn’t have a personal email when he left. Gmail didn’t exist back then, and his new job was, in effect, running a Bill Clinton startup. He launched a charitable foundation, he established his presidential library, and he made big bucks on speaking tours. He had a staff and he needed IT infrastructure and support. So he paid a guy to set up an email server that he could use.
Hillary Clinton — who is, again, his wife — also set herself up with an account on the same server. This is a bit unusual, but a lot about being married to a former president is unusual. What it’s not is suspicious.
The private server was not a transparency dodge
It’s become a bit of an article of faith among journalists frustrated with public officials’ constant FOIA-dodging that this is all obviously dissimulation and Clinton was really trying to evade the Freedom of Information Act.
Many people, for example, point to the fact that Clinton would routinely travel with multiple digital devices as debunking her supposed convenience argument. But this is silly. I’ve been known to travel with an iPhone, an iPad, a Kindle, and a laptop all at once. That doesn’t mean needing to carry two separate iPhones (one to check my work email and one to check my personal email) wouldn’t be inconvenient. After all, what if I was replying to a work email while a text came in to my personal phone and I wanted to check it.
I’d be left juggling phones and looking like an idiot, exactly how federal employees tended to look in the heyday of the double-fisting phones era.
I would not want to do that. Colin Powell did not want to do that. Hillary Clinton did not want to do that. Because that would be terrible.
By contrast, it’s a terrible solution to a desire to avoid having your emails disclosed to the public via FOIA. One way you can tell it’s a terrible solution is that Hillary Clinton’s work emails have been disclosed to the public. You can read them right here.
The specific timeline is that the House Select Committee on Benghazi requested Clinton’s emails in the summer of 2014, at which point the relevant State Department personnel realized they did not have the emails because Clinton had been using her personal address. State asked Clinton for the emails, and she handed them over later that year. It was only in March of 2015 that the New York Times broke the story of Clinton’s private server in a scoop by Michael Schmidt, which reported that the emails had been handed over to the State Department “two months ago.”
This is fairly clearly not an optimal approach to government record-keeping, as Thomas Blanton of the National Security Archive at George Washington University told Schmidt at the time:
It’s a shame it didn’t take place automatically when she was secretary of state as it should have. Someone in the State Department deserves credit for taking the initiative to ask for the records back. Most of the time it takes the threat of litigation and embarrassment.
According to the Inspector General’s report, Clinton “should have preserved any Federal records she created and received on her personal account by printing and filing those records with the related files in the Office of the Secretary.”
There are two possible interpretations here. One is that Clinton hatched the private email account plan as an elaborate dodge of federal record-keeping laws, but then months before the public became aware of the server’s existence complied with requests to turn them over. The other is that the federal records rule on the book was antiquated and a bit absurd, requiring officials to turn over paper copies of emails for no good reason, and simply got ignored out of sloppiness.
But she deleted 33,000 emails!
Suspicion at this point is then supposed to focus on the fact that she had her lawyers delete more than 30,000 emails from her server.
After Hillary left office, the State Department told her she had to turn all her work-related emails over to them, so she tasked a legal team with determining which emails were work emails and which were not. She turned the work emails over because that’s what she was legally required to do. She deleted the others, presumably because she did not want Trey Gowdy and Jason Chaffetz to rummage through her inbox leaking whatever they happened to find amusing to area journalists.
Now, is it possible that Clinton’s legal team simply decided to entirely disregard the law and delete work-related emails?
In some sense, sure. But there’s no evidence that this happened. Generally speaking, in life we assume it would be moderately difficult to hire a well-known law firm to destroy evidence for you without someone deciding to do the right thing and squeal.
Besides which, it would be almost comically easy to catch Clinton in the act of systematically destroying relevant emails. The vast majority of the work-related email correspondence of an incumbent secretary of state, after all, is going to be correspondence with other government employees. Maybe she shoots a note to the Pentagon about Benghazi, or circulates ideas for a speech draft with her communications team. Any message like that, by definition, would exist on a government server as well as on her private one. This means it would be fully accessible via FOIA and also means that if Clinton’s copy were found to not be in the pile of emails she turned over, she’d be caught red handed.
I feel utterly foolish (to be correct, I voted for Sanders in the primary, and he won my state WI)
