Presumptive Democratic presidential nominee Hillary Clinton escaped a federal indictment by the narrowest of margins. FBI Director James Comey, in an unusual press conference, laid out the reasons the Bureau is not recommending criminal charges against Clinton for maintaining a secret, private email server during her time as Secretary of State – the key reason being that they didn’t find she intended to break the law. Intent matters, but actions matter too and, in his prepared remarks, Comey offered a blistering critique of Clinton’s decision making, saying she and her staff were “extremely careless in their handling of very sensitive, highly classified information.”
While there is no reason to believe that there is anything particularly nefarious in the unrecovered emails, the scolding raises an important question: Is there any good-faith defense of a top-ranking public official operating an email server that makes it possible to destroy public records and avoid oversight?
That’s the question Democrats, who find themselves in the uncomfortable position of trying to acknowledge and move past a near-criminal practice that kept the public in the dark and avoiding public records laws and regulations.
It’s easy to over-contextualize the email scandal by either suggesting that it has been politicized (it has, Clinton is a politician) or that Clinton is the only not-racist major party candidate (she certainly seems to be). But the email scandal is about how Clinton used the technologies she was given. And she used them to eliminate rather than for transparency. The State Department Inspector General’s office report on Clinton’s private server found that Clinton didn’t ask for permission to set up her own private email system and that if she had asked for permission it would have been denied. Clinton herself has referred to the use of a private server as not the best choice, but she’s trying to move on without a full blown mea culpa despite the obvious and significant culpa.
The important thing to remember here is that the Clinton email scandal isn’t simply important because Hilary Clinton will likely be the next President of the United States. It’s significant because she might not be.
In the event that Donald Trump wins the general election, he will of course get to pick a cabinet comprised of top advisors. The Hill floated a few possibilities of who might fill those seats, and it is a group that nobody should want operating with the potential for zero transparency. Maybe Ben Carson will be Secretary of Health and Human Services. Maybe Sarah Palin will be Energy Secretary. Maybe Chris Christie will be the Attorney General and Sheriff Joe Arpaio will head up the Department of Homeland Security.
To acknowledge the obvious, if Donald Trump becomes president, the country will be in unchartered territory. Many commentators on both sides of the aisle have voiced concern about the developer’s lack of restraint and disinterest in following rules. Trump has demonstrated a belief that ends justify means. And that’s concerning especially in light of Hilary Clinton getting off light on the email scandal. If public officials can use server systems to make public documents effectively private, accountability becomes a collective fiction.
One doesn’t have to imagine how Democrats would react in the event that a large trove of emails went missing. In a largely forgotten episode from 2007, a House investigation found that 88 White House officials, including Karl Rove, were given email addresses belonging to the Republican National Committee. The RNC then “oversaw extensive destruction” of the emails.
“This Administration’s penchant for secrecy and disdain for oversight seems to know no bounds,” Sen Patrick Leahy said at the time. It is troubling that so many senior White House officials, including Karl Rove and his former deputy Sara Taylor, were engaging in an effort to avoid oversight and accountability by ignoring the laws meant to “ensure a public record of official government business.”
To bring up this episode is not to offer an equivalency. In Clinton’s case, the FBI didn’t find that any of her emails were deliberately destroyed, a crucial difference. The issue is that excessive secrecy creates doubts among the public about the integrity of public servants.
Technology is hard to understand in a political context. Politics are about promises kept and ignored. Politics are about intention. Politics are, to put it another way, intensely human in the way that servers are not. But servers matter. They matter in the same way that the White House matters. The government is only as effective as the structures in which it operates and many of those structures are digital in nature. What’s important to understand about what Clinton did is just how antithetical it was to the healthy relations of the government to the governed.