The Dispiriting and Corrupt State of Email Public Records, Plus a Good Suggestion That Will Never Be Adopted

By Lambert Strether of Corrente

Every so often, I feel that I have cause to recall the famous New Yorker story about the writer who heard about a bird in the woods, said to be extinct. So he went to report on the story, found the local who thought they’d heard the bird’s song, bought some yellow waders, hired guides and a boat, and set out through the swamps and the Spanish moss and the dripping and the stinging insects in search of the bird. Long-form story short, they never found the bird. So what’s the point of a story where you don’t find the bird?

But now I feel that I’ve ended up writing the same sort of story. I didn’t find the bird. I thought I’d do a survey of other email scandals, and come to some sort of conclusion: That Clinton was uniquely bad or, alternatively, better than expected, or even uniquely good. Or maybe dynasties — Bush, Clinton, Romney — don’t pay a price, and others do. Instead, I just find a chaos of improvisation, with all the players mixing public and private together just as promiscuosly as Clinton did. Of course, just because everybody does it doesn’t make it right.

Anyhow, I’ve summarized my results, in the first section, in the form of a table. In a second section, I’ve included gory detail on each scandal, which you should read, at least for amusement purposes, even though or since it shows how dispiritingly similar the current Clinton email scandal is, in its grimy banality, to past email scandals, even if that’s not the story right now. (Of course, this would imply the suckitude of the press, but then you knew that.) In the final section, I’ll try to put the whole mess in context, and provide a policy suggestion, even if nobody will adopt it.

Summary of Past Email Scandals

I looked at five email scandals, where scandal is defined as either culminating in or commingled with criminal prosecution, or being the subject of a “media firestorm”: George W. Bush’s gwb43.com scandal, Mitt Romney’s email destruction, Scott Walker’s email destruction, John Kitzhaber’s attempted email destruction, and Hillary Clinton’s. Here are the results:

Table I

	Scandal date[1]	Party	Official	Server Location	Server Owner	Messages Destroyed	Public/Private Mix	Political Price
Hillary Clinton	2015	D	Secretary of State	Hillary Clinton’s home[2]	Hillary Clinton	31,830	Y	None
John Kitzhaber	2015	D	Governor	Unknown	State of Oregon	0	Y	None
Scott Walker	2014	R	Governor	Walker’s office	Walker aides	0[3]	Y	None
Mitt Romney	2011	R	Governor	State House	The State, and then Romney aides[4]	100.00%	Y	None
George W. Bush	2007	R	President	Chattanooga, TN	Republican National Committee	22,000,000	Y	None
NOTES
[1] Scandal date refers to when the scandal began, as opposed to when the actions that led to the scandal took place. For example, Romney destroyed his email in 2007 .
[2] This is what people keep saying. But I’ve never seen an original source. This from the (ugh) Daily Caller uses IP geolocation to urge that the server is located in Manhattan. However, I wonder if that’s the backup server. Because surely Hillary’s contractors would have advised off-site backup?
[3] The hard drives holding the server were seized by investigators.
[4] The servers was destroyed and, ingeniously, the aides purchased their laptops from the state.

The essential column is, I think, the rightmost.

The elected officials above aren’t the only ones to have used public email for private purposes; such a list (among the 2016 hopefuls) woud include Jeb Bush, Chris Christie, Bobby Jindal, Martin O’Malley, and Rick Perry. Also too Palin and Cuomo. But using the criteria for scandal listed above, the way they treated their email hasn’t risen to the level of scandal[1].

Gory Details of Past Email Scandals

Here’s the research I did to build the table in the previous section[2]. I’d summarize the salient features as follows:

• Tribalism: “It’s OK when our guy does it!”
• Fear and greed: All players are motivated by the fear of oppo (against themselves) and greed for oppo (against their enemies)
• Uneven tech: Technical skills and approaches vary wildly, from Walker’s aide putting the hard disk in her credenza to Clinton running her own server[3[.

George W. Bush (2007), President of the United States

Summary of Scandal

Wikipedia:

The Bush White House email controversy surfaced in 2007 during the controversy involving the dismissal of eight U.S. attorneys. Congressional requests for administration documents while investigating the dismissals of the U.S. attorneys required the Bush administration to reveal that not all internal White House emails were available, because they were sent via a non-government domain hosted on an email server not controlled by the federal government.

Democratic Reaction

Los Angeles Times:

“This is a remarkable admission that raises serious legal and security issues,” said Rep. Henry A. Waxman (D-Los Angeles), chairman of the House Committee on Oversight and Government Reform.… Waxman said some of the documents suggest White House personnel may have used the political email accounts “to avoid creating a record of the communications.”

New York Times:

We’re learning that off-book communications are being used by these people in the White House by using Republican political e-mail addresses and they say they have not been preserved,” Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee, said in an impassioned speech on the Senate floor. “I don’t believe that! You can’t erase e-mails, not today.

Republican Defense

Talking Points Memo. White House spokesman Scott Stanzel:

In the manual previously, White House manual, there was one paragraph about using your official email account for official business. There were two pages of information about making sure that you do not violate the Hatch Act. That is certainly of concern and we take steps. It’s appropriate to take steps to avoid violating the Hatch Act. There are official business emails, there are political business emails, and then there is also this gray area. And that’s where employees have to make a judgment. And some employees, out of an abundance of caution, could have been sending official business emails on their RNC political account.

So that is the gray area that we’re, in our new policy, working to make sure that staff is clear that they have to retain those. When they have to make a judgment, and they will have to make judgments, they should err on the side of avoiding violations of the Hatch Act, but they should also retain that information so it can be reviewed for the Presidential Records Act

Political Price of Scandal

None.

Mitt Romney (2011), Governor of Massachusetts

Summary of Scandal

Boston Globe:

Just before Mitt Romney left the Massachusetts governor’s office and first ran for president, 11 of his top aides purchased their state-issued computer hard drives, and the Romney administration’s e-mails were all wiped from a server, according to interviews and records obtained by the Globe.

Romney administration officials had the remaining computers in the governor’s office replaced just before Governor Deval Patrick’s staff showed up to take power in January 2007, according to Mark Reilly, Patrick’s chief legal counsel.

As a result, Patrick’s office, which has been bombarded with inquiries for records from the Romney era, has no electronic record of any Romney administration e-mails, Reilly said.

“The governor’s office has found no e-mails from 2002-2006 in our possession,” Reilly said in a statement. “Before the current administration took office, the computers used during that time period were replaced and the server used during that time period was taken out of service, all files were removed from it, and it was also replaced.”

Reuters:

Mitt Romney spent nearly $100,000 in state funds to replace computers in his office at the end of his term as governor of Massachusetts in 2007 as part of an unprecedented effort to keep his records secret, Reuters has learned.

The move during the final weeks of Romney’s administration was legal but unusual for a departing governor, Massachusetts officials say.

The cleanup of records by Romney’s staff before his term ended included spending $205,000 for a three-year lease on new computers for the governor’s office, according to official documents and state officials.

In signing the lease, Romney aides broke an earlier three-year lease that provided the same number of computers for about half the cost – $108,000. Lease documents obtained by Reuters under the state’s freedom of information law indicate that the broken lease still had 18 months to run.

NBC:

It appears it was legal for Mitt Romney’s aides, on their way out of the governor’s office in Massachusetts in 2006, to write personal checks for $65 each to buy the hard drives from their state office computers, taking with them government emails and other records of his administration, including information about the birth of the Romney health care insurance mandate.

It was legal for the Romney administration to spend $97,000 in public money to swap out computers and email servers, making sure that emails never got into the hands of the public, journalists, historians and, not incidentally as Romney himself points out, his opponents in the 2012 presidential campaign.

And the Romney administration got legal permission, Reuters reported Thursday evening, to destroy 150 boxes of government records.

Just because it’s legal doens’t make it right….

Democratic Reaction

NBC:

“Public officials need an attitude adjustment,” said Ken Bunting, executive director of the National Freedom of Information Coalition at the University of Missouri. “They need to recognize that the instruments of the government don’t belong to them. They belong to the people. Self-government doesn’t work without information. Government records, including emails, ought to be available without filing a lawsuit, without any more than a keystroke.”

Mother Jones:

The DNC’s Brad Woodhouse joked this morning, “Just imagine if Richard Nixon had been able to buy the White House taping system and walk out with it.”

But isn’t that exactly what Hillary Clinton did?

Republican Defense

Politico:

Romney spokeswoman Andrea Saul provided additional comment: “The last thing President Obama wants to do is run against Mitt Romney, so his campaign has deployed the Patrick Administration to do their dirty work. In an attempt to distract from President Obama’s terrible economic record, Democrats are resorting to false political attacks. In Massachusetts, documents in the governor’s office are not public documents yet Gov. Romney archived more than 700 boxes of documents which are available for anyone to view. Members of Gov. Romney’s administration provided all documents as required by the law.”

[waves pom-poms.]

Tampa Bay Times’s Politfact:

But, in an interview last week with The Telegraph’s editorial board, Romney said his staff’s actions were legal.

“In government, we should follow the law,” Romney said in the November 20, 2011 interview.

“There has never been an administration (in Massachusetts) that has provided to the opposition research team, or to the public, electronic communications,” he said. “So ours would have been the first administration to have done so.”

With his usual tin ear, Romney’s got it. Clinton doesn’t want to hand anything over to Republican oppo either.

Political Price of Scandal

None.

Scott Walker (2014), Governor of Wisconsin

Summary of Scandal

HuffPo:

But Walker previously ran Milwaukee County as chief executive using a private email system, which Walker and aides used to discuss government business, campaign fundraising and politics. Two of the aides were eventually convicted for campaigning on government time as part of an investigation that resulted in disclosure of thousands of emails generated on the initially secret system.

Bloomberg:

When [a related] story broke, Walker’s deputy chief of staff, Kelly Rindfleisch, quickly dismantled a private Internet router set up in her office, which was twenty-five feet away from Walker’s. During her few months on the job, she had been using the secret router and a laptop—both separate from the regular county system—to trade electronic messages with Walker’s campaign staff and raise money for state Representative Brett Davis, a GOP candidate for lieutenant governor. With attention suddenly on Wink, who had also used the router, Rindfleisch stuffed the device into a credenza in her office.

Wisconsin State Journal:

The emails showed blurring of campaign and official business by Walker during his time as Milwaukee County executive when he was running for governor in 2010.

Democratic Reaction

WISN:

Democratic National Committee Chair Debbie Wasserman Schultz of Florida, in a conference call with reporters, attempted to link the Walker investigation with scandals that have hit Republican New Jersey Gov. Chris Christie and Virginia Gov. Bob McDonnell.

“If these ethical scandals are the way (Republican governors) lead, that’s got to be something we all make sure voters pay attention to,” Schultz said.

Journal-Sentinel:

“It defies reasonable belief that Scott Walker was completely ignorant of the fact that he was surrounded by people committing criminal acts in his office as county executive,” Wisconsin Democratic Party Chairman Mike Tate said Monday. “It is not believable. If true, it raises serious questions about his management ability, including who he chooses to surround himself with.”

Republican Defense

Wisconsin State-Journal:

“What’s happening,” [Kelly] Rindfleisch and others claim, is that Wisconsin’s Democrats have successfully leveraged the Milwaukee County DA’s office and the state John Doe law [used to seize the email] to conduct opposition research into political opponents.

Milwaukee County Sheriff David Clarke has criticized the investigations and the prosecutors of partisanship.

“It appears to me that the prosecution out of Milwaukee County is becoming weaponized for political purposes,” Clarke has told Wisconsin Reporter.

Journal-Sentinel:

“Oftentimes, there’s not a distinction between asking a political question in the official office and the campaign office,” Walker said. “All those things are things that need to be coordinated. There’s nothing wrong with that.”

Political Price of Scandal

None so far, at least by Walker.

John Kitzhaber (2015), Governor of Oregon

Summary of Scandal

From Willamette Week, which broke the story:

Gov. John Kitzhaber’s office last week requested state officials destroy thousands of records in the governor’s personal email accounts, according to records obtained by WW and 101.9 KINK/FM News 101 KXL.

Records show the request to destroy Kitzhaber’s emails came from Jan Murdock, Kitzhaber’s executive assistant. She wanted all emails from Kitzhaber’s personal email accounts removed from state servers.

The request from Murdock was described in a Feb. 5 email. “Governor’s office wants anything that is in the email account [Kitzhaber’s account] removed from archive,” wrote Tracy Osburn, a field technician in the DAS Technology Support Center, wrote in the email obtained by WW and 101.9 KINK/FM News 101 KXL.

Personal emails of public officials can be subject to the state’s open records laws if they are used to discuss public business. Earlier documents previously released by the governor’s office show Kitzhaber used both his personal and state email accounts to communicate with his aides and discuss state business.

The records indicate that state employees refused to carry out the request from Kitzhaber’s assistant to destroy emails.

Since Kitzhaber resigned shortly thereafter, and this scandal was a minor part of the larger scandals that engulfed him, I’m not going to give Republican and Democratic talking points. Howevever, kudos to the state employees, who behaved as we expect public officials to behave!

Political Price of Scandal

Little, since Kitzhaber was going down anyhow.

Hillary Clinton (2015), United States Secretary of State

Summary of Scandal

My summary is here. Quoting the Times story that broke the scandal:

Hillary Rodham Clinton exclusively used a personal email account to conduct government business as secretary of state, State Department officials said, and may have violated federal requirements that officials’ correspondence be retained as part of the agency’s record.

Mrs. Clinton did not have a government email address during her four-year tenure at the State Department. Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act.

It was only two months ago, in response to a new State Department effort to comply with federal record-keeping practices, that Mrs. Clinton’s advisers reviewed tens of thousands of pages of her personal emails and decided which ones to turn over to the State Department.

Tampa Bay Times’ Politifact has the best summary of the legal and ethical issues I’ve seen:

At a March 10 press conference, Clinton said, “I fully complied with every rule [nicely eliding legal, ethical, customary, by protocol] I was governed by.”

Let’s cut to the chase: We interviewed several experts on government transparency and records preservation. While Clinton might be able to put together a case that she “complied” with the rules, experts said her actions are nevertheless hard to defend.

We decided not to put Clinton’s claim on the Truth-O-Meter, because there are a lot of unknowns. But we still wanted to bring out as many facts as possible.

“While Clinton may have technical arguments for why she complied with each of these and the other rules that have been discussed in the news, the argument that Clinton complied with the letter and spirit of the law is unsustainable,” said Douglas Cox, a law professor at City University of New York who studies records preservation.

Cox said the fact that Clinton’s staff — rather than a State Department federal records officer — chose which emails to destroy is “honestly breathtaking.” Her private employees don’t have the authority to decide what does or doesn’t count as a federal record. Further, when she was making these choices, she was acting as a private citizen, not a government employee.

And as far as the Federal Records Act:

“Anyone at [the National Archives and Records Administration] would have said you can’t use a personal email account for all of your official business,” said Metcalfe, who held his position in part during former President Bill Clinton’s administration.

Which is just what Clinton did.

Republican Reaction

Fox:

“If she had an ounce of respect for the American people, she would have apologized for putting our national security at risk for ‘convenience,'” Priebus said. “She would’ve agreed to hand over her secret server to an independent arbiter. And she would’ve reassured the nation that her influence is not for sale to foreign governments. She did none of that.”

Politico:

“We are not ruling out any options at this point,” said Michael Steel, a spokesman for [House Speaker] Boehner. “Secretary Clinton must turn over the server to a neutral arbiter who can inventory the records, make a complete, thorough accounting and impartial determination of which emails and records are official and the property of the federal government.”

“Those official records must be turned over,” Steel added. “The Congress – and the American people – have a legal right to these official records, and her current position is unacceptable and unsustainable.”

Democratic Defense

I have a summary of Democratic talking points here, but these two seem to have survived the shakeout. First, “I trust Hillary.” New York Daily News:

“In the end, you either trust the Clintons or you don’t trust the Clintons,” said Sen. Chris Murphy (D-Conn.). “And I fundamentally trust her.”

James Madison must be rolling in his grave.

Second, “Everybody does it.” Media Matters, by this time, with James Carville, a Democratic house organ in appearance as well as reality:

And so here’s why Jeb Bush’s name is conspicuously absent from the current coverage: He did the exact same thing. Like, the exact same thing.

From the Tampa Bay Times [emphasis added]:

The former governor conducted all his communication on his private Jeb@jeb.org account and turned over the hand-selected batch to the state archives when he left office. Absent from the stash are emails the governor deemed not relevant to the public record: those relating to politics, fundraising and personal matters while he was governor.

And again here, the Tampa Bay Times reported Bush, “hand-picked emails from his time as governor to help build his case for a 2016 primary run for president.”

Who decided which emails were “relevant to the public record”? Jeb Bush.

Obviously if journalists consistently include that nugget it deflates the Clinton narrative, especially the one about her being uniquely secretive. If Jeb Bush, who might be the Republican nominee for president, went through half-a-million private emails from his days as governor and self-selected which one’s he’d let the public see and which one were truly private, that completely diminishes the media’s preferred narrative that Clinton went rogue and somehow broke all the rules.

Of course, just because everybody does it doesn’t make it right.

Political Price of Scandal

None so far.

One detail that does stand out: Romney was brilliantly ruthless: He clearly had the sort of plan one would expect of a high-grade consultant, and the idea of having his aides privatize their own data by purchasing their hard drives as surplus equipment shows the type of lateral thinking one seeks in a President. However, Clinton’s concept of privatizing the entire server from the beginning is even more brilliant, and even more ruthless. By contrast, Bush, Walker, and Kitzhaber don’t seem to have had any disaster planning in place, and improvised what to do with the hardware and the data only after the scandal broke. However, the blurred lines between public and private apply in each of these scandals, and in all the email episodes that don’t rise to the level of scandal.

Proposal and Conclusion

Zephyr Teachout knows a thing or two about corruption, and has this to say:

Corruption exists when institutions and officials charged with serving the public serve their own ends.

And that’s why we should avoid mixing public and private communications together when doing email as official business. Again:

Corruption is about greed and private interests put ahead of the public good.

And that’s exactly what privatizing email is all about. If the person who owns the server determines what the public can see, how is the public to be certain that the public good has not been placed second to private gain?

{et’s take the Clintons out of the equation and consider a scenario that doesn’t involve the “national security” red herring.[4]

Scenario I: The Secretary of the Treasury

Secretary of the Treasury Timmy Geither sets up a server that he owns in the basement of his own house and does all his official business on it. (Just like Clinton). When people — whether the press or investigators — ask him what’s on the server, he releases the material that he claims is public, and destroys the material that he claims is private. (Just like Clinton.)

Here’s what Timmy was doing on his server: He was front-running the stock market based on announcements for which he, as Secretary of the Treasury, controlled the timing and the content. He placed his orders using email from the server, and routed his gains to an offshore account, also using the server.

Of course, that’s corrupt: Timmy is using his public position to enrich himself. But if we apply “the Clinton Rules” to his server, we will never know.

Scenario II: The Secretary of Defense

Secretary of Defense Donald Rumsfeld sets up a server that he owns in the basement of his own house and does all his official business on it. (Just like Clinton). When people — whether the press or investigators — ask him what’s on the server, he releases the material that he claims is public, and destroys the material that he claims is private. (Just like Clinton.)

Here’s what Rummy was doing on his server: Running his own personal foreign policy by hiring mercenaries — snipers, especially — to whack public figures he’s taken a dislike to, giving them their targets via email, and paying them with software on his server.

That’s corrupt in a different way: Rummy gets to whack people, since that’s what the DOD does, but based on some semblance of public purpose, not because he dislikes them. But again, if we apply “the Clinton Rules” to his server, we will never know.

Yes, James Madison is shaking his head. Federalist 51:

But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

And, as I hope the Scenarios above show, if “The Clinton Rules” apply to official business done via email and servers, there are no checks. We have to “trust,” as Christ Murphy said of Clinton. But surely we have “the necessity of auxiliary precautions”?

Incredibly, the Clinton email saga has thrown up a good suggestion to restore the checks. I’m not going to cite the sources, but they’re above;

[H]and over her secret server to an independent arbiter

And:

[T]urn over the server to a neutral arbiter who can inventory the records, make a complete, thorough accounting and impartial determination of which emails and records are official and the property of the federal government

I think these are good suggestions, and should be applied at all levels of government — if we think it’s important that the system of checks and balances function, or be restored to a functional state. As it turns out, we have an entire profession — the archivist — devoted to independent arbitration like this, and we have two strong institutions, the Library of Congress and the National Archives and Records Administration, to implement the proposal. And we should admit that the same proposal and standard should have been applied to George W. Bush, Mitt Romney, Scott Walker, and John Kitzhaber, because they are all doing the same thing.[5]

Of course, this will never happen. For one thing, it’s too sensible. For another, I fear that Franklin was right — “if you can keep it” — and we are far too Late Roman Republic for such a solution to take root. I mean, what’s the business model? The business model of political corruption is quite clear, but what’s the business model for making sure the public — the sovereign people — can always see what elected officials claim to be doing in their name?

NOTES

[1] Another bird I didn’t find is what makes some email privatization and destruction scandalous, and some not, since plenty of political figures have privatized their email. It’s not that they’re Democrats or Republicans, and it’s not that they’re running for President. For all I know, it’s that our famously free press hates them; certainly true for Clinton, and they certainly didn’t like Romney. On the other hand, Jebbie got out in front of his email problems — even though he, too, used a private server, and he, too, determined what to make public and what not to make public — and the press doesn’t hate him.

[2] The research was not so easy. For one thing, there’s been a lot of link rot. For another, Google’s increasingly present-ist orientation makes it difficult to find material even as recent as 2007, even when I know it exists.

[3] One might wonder what the famously technical Obama White House will do with it email, when the time comes.

[4] Since nobody can talk about corruption, they pound the table about “national security” (itself corrupt) instead. But seriously: Hillary Clinton, hate her or not, is a serious, diligent person. She’s not going to have a “Whoops! Sent the PDF with the launch codes!” moment. Na ga happen.

[5] While we’re at it, we should get rid of the loathesome and unseemly Presidential Library system, and put them under the aegis of NARA or the Library of Congress, as well.