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That Story About Hillary Clinton's Private Email Account Isn't as Awful as It Seems

Like many of the bombshell news stories we've witnessed in the last couple of years, it all falls apart under the most cursory level of scrutiny.
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Political Twitter is ablaze with outrage over a front page story in Tuesday's The New York Times detailing how Hillary Clinton, while Secretary of State, used a private email account for all of her email correspondence, apparently in violation of the law. Given the statistics, however, roughly 43 percent of the Twitter users debating the story probably didn't read beyond the first couple of paragraphs. If they had, they might not be as outraged.

On the surface it sounds damning. The Secretary of State potentially sent top secret information through her personal account, even though there's evidently a law that says she's not allowed to use a personal account for government business -- sounds outrageous. But like many of the bombshell news stories we've witnessed in the last couple of years, it all falls apart under the most cursory level of scrutiny.

Here are some items from the article (or not) that are either exculpatory or unclear.

1) The article quotes a lawyer affiliated with the National Archives who set the tone for the outrage:

“It is very difficult to conceive of a scenario — short of nuclear winter — where an agency would be justified in allowing its cabinet-level head officer to solely use a private email communications channel for the conduct of government business,” said Jason R. Baron, a lawyer at Drinker Biddle & Reath who is a former director of litigation at the National Archives and Records Administration.

A nuclear winter! Interesting, because the article goes on to note that numerous other State Department and other government officials have used private email accounts, partially or exclusively, including Secretary of State Colin Powell who only used a personal email account.

Mrs. Clinton is not the first government official — or first secretary of state — to use a personal email account on which to conduct official business.


Before the current regulations went into effect, Secretary of State Colin L. Powell, who served from 2001 to 2005, used personal email to communicate with American officials and ambassadors and foreign leaders.

That's a lot of nuclear winters.

2) (See UPDATE below) As you can see, the article notes that Powell used his private email before the law was changed. Indeed, that's true. Comparatively, the article makes it appear as if Clinton violated federal regulations.

Under federal law, however, letters and emails written and received by federal officials, such as the secretary of state, are considered government records and are supposed to be retained so that congressional committees, historians and members of the news media can find them.

The article doesn't say which federal regulation, though. Why? Perhaps because the federal regulations went into effect in late November, 2014 when President Obama signed H.R. 1233, modernizing the Federal Records Act of 1950 to include electronic communications. It was signed two years after Clinton stepped down.

The first statutory change in the law since it was passed in 1950:

--Confirms that federal electronic records will be transferred to the National Archives in electronic form;
--Grants the archivist of the United States final determination as to what constitutes a federal record;
--Authorizes the early transfer of permanent electronic federal and presidential records to the National Archives, while legal custody remains with the agency or the president;
--Clarifies the responsibilities of federal government officials when using non-government email systems;
--Empowers the National Archives to safeguard original and classified records from unauthorized removal, and;
--Codifies procedures by which former and incumbent presidents review presidential records for constitutional privileges, rather than relying on an executive order that may change under future presidential administrations.

The bipartisan law was passed in response to the IRS scandal and the use of a private email account by Lois Lerner. Now, to be clear, this law isn't explicitly mentioned in the Times article (good job?), so it's possible however unlikely another law is being referenced in the report.

3) There's nothing in the article that verifies Clinton didn't use encryption. So, it's entirely possible that any sensitive emails -- or all emails -- were encrypted. We don't know.

4) There's nothing in the article that verifies Clinton sent top secret or sensitive information using that account.

5) The article confirms that Clinton's office turned over "55,000 pages of emails" to the State Department. They allegedly didn't turn over all emails, but 55,000 pages is a lot.

None of this has stopped the Twitter jihad, and especially conservatives on Twitter, from jumping to all kinds of wildly uninformed, unthinking conclusions in spite of the fact that it appears we have yet another dubiously-reported bombshell. It might not be as over-the-top dubious at some of the NSA reporting of 2013-14, but it's definitely in the same territory. No laws were apparently broken, as far as we know, and the article completely fails to show hard evidence of irresponsible email transmissions by Clinton. Should she have used a government email account? Probably. But does this warrant what's surely going to be 20 months of indignation and investigations from both the right -- and the anti-Hillary left? No way.

It's the internet and it's social media, so facts and reality are irrelevant in the face of mob justice. Along those lines, it's circulating all around Twitter that Clinton used Gmail. Wrong. Not in the article, just Twitter snark morphing into Twitter fact. Still, I'm constantly amazed at the quaint and uncritical acceptance of every news article as 100 percent accurate, even in the age of clickbait and even among readers who don't actually read what they're outraged about.

UPDATE:Times reporter Michael Schmidt clarified the apparent rule violation on Morning Joe:

“Explicit regulations were in place when Hillary Clinton was Secretary of State that said they had to be retaining her emails on government servers in an active sense,” Schmidt said. “The argument that Hillary Clinton’s side makes is, well, she was sending a lot of emails to the State Department so they were being caught. But what they didn’t address was the emails that she may have sent to other government departments, the White House, foreign leaders, friends, other Americans. Those people didn’t have State Department email accounts, and the emails were not being caught in the State Department’s web because they were elsewhere. So it doesn’t really answer the question.”

Which regulation are we talking about? He's still not clear about that. Schmidt went on to say that Colin Powell, who hasn't turned over any emails from his private account, "isn't running for president," so doesn't warrant scrutiny.

Meanwhile, The Wall Street Journalreported Tuesday:

It is unclear whether Mrs. Clinton’s practice ran afoul of federal laws and regulations governing the retention of official records, which have been changing in recent years.

It's unclear.

Admittedly, the excuse that her emails were sent to government servers and therefore preserved by default is a little thin and, yes, the records should have been archived on a government server for the sake of security.

All-in-all, the "scandal" still seems like a dud.

UPDATE II: Writing for Medium, former Sunlight Foundation director Clay Johnson observed:

I think she was looking for the easiest way to do her job. The one thing you have to understand about people in public service is people down to the lowest levels of public service understand open records laws, and they all know one thing: if you don’t want something on the record, don’t use email. Pick up the phone. Hillary Clinton knows that, too.

Hillary Clinton was trying to use what she wanted to use in order to do her job. As a former fed, I’m empathetic. When you start at the Federal Government, it’s often like stepping in a time machine. You’re handed technology from years ago and (especially at her level) you’re expected to do tomorrow’s work.

Meanwhile, regarding those really, really secure State Department servers, let's flash back to 2010, right in the middle of Clinton's term as Secretary of State:

A vast treasure trove of secret State Department cables obtained by the Web site WikiLeaks has exposed the inner workings of U.S. diplomacy, as well as bluntly candid assessments by American diplomats, according to news organizations granted advance access to the more than 250,000 confidential documents.

So, it's possible that whatever technology Clinton used was more secure than State's.

UPDATE III:The Daily Beast's Michael Tomasky raised a number of serious questions about the Times article, including the following:

1. Clinton was not the first Secretary to use a private email account. In fact, John Kerry is the first Secretary to use “a standard government email address,” according to The Washington Post.

2. Clinton turned over her emails to the State Department. It’s not clear whether her predecessors did the same.

3. The Times article says the “existence of Mrs. Clinton’s personal email account was discovered by a House committee investigating the attack on the American Consulate in Benghazi.” This is incorrect. Gawker reported this first, in March 2013.

4. At the time Clinton was Secretary, the Federal Records Act didn’t require federal employees to use government accounts, only to preserve records of their communications. This, Clinton seems to have done.

UPDATE IV: Regarding reporter Michael Schmidt's assertion on Morning Joe that regulations explicitly require storing the emails "on government servers," here's the apparent regulation about that [pdf, see page 5 top]:

All Government employees and contractors are required by law to make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency (Federal Records Act, or “FRA,” 44 U.S.C. 3101 et seq). In addition, Federal regulations govern the life cycle of these records: they must be properly stored and preserved, available for retrieval, and subject to appropriate approved disposition schedules.

There's nothing explicit about government servers here.