On Monday night, the New York Times dropped a bomb: As secretary of state, Hillary Clinton didn’t use her government email address. She didn’t even have one. Her entire correspondence—from notes to staff to talks with diplomats—was done by private email. “Her aides,” notes the Times, “took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act.”
According to one former official for the National Archives, Jason Baron, this was an extraordinary act of rule breaking. “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,” he said.
It didn’t take much to see the danger. Transparency aside, if Clinton was working with an unencrypted email address, she may have put a whole host of official communications at risk of foreign surveillance. And politically, it seems to stand as one more example of Clinton’s secrecy and furtiveness. It’s why, at the Washington Post, Chris Cillizza declared, “This is a bad story for her and her presidential campaign because it reinforces many things people already don’t like about the Clintons.”
Or does it? For as much as this is grist for Hillary critics, on closer examination, the Times bomb was a dud. As per the story, at least one of Clinton’s recent predecessors, Colin Powell, also used personal email to conduct official business. But this wasn’t a particular problem, which raises an important question: What were the rules when Clinton entered office as secretary of state? If the regulations for email preservation changed before 2009—or during her tenure—her use of private email looks terrible. But if the rules weren’t in place—if they postdate her time at the State Department—then this isn’t as serious as it looks.
In the Wall Street Journal, we learn the answer is in Clinton’s favor. When she began as secretary of state in 2009, email wasn’t a part of federal recordkeeping rules. Later that year, this changed when the National Archives and Records Administration issued regulations “allowing employees to do official business on nonofficial email accounts,” as long as they preserved records in “the appropriate agency recordkeeping system.”
The next round of guidance came in September 2013, well after Clinton had left the State Department. In those rules, writes the Journal, the National Archives “said federal employees generally shouldn’t use personal email accounts to conduct official business, except in limited situations, such as during emergencies when an official may not be able to access an official account.” And to that point, Secretary of State John Kerry, confirmed that year, is the first secretary to conduct all of his work over official email.
The actual law for email and federal records changed in 2014 by way of the Federal Records Act, which required government agencies to preserve records—including email—documenting the “organization, functions, policies, decisions, procedures and essential transactions.” What’s more, the fact of its comprehensiveness serves as an incentive for officials to use government email—if you’re in the system, you don’t have to work hard to keep records.
All of this should help Clinton; she didn’t break the law, she had precedent, and at most, she was slow to comply with 2009-era rules about storage and archiving. But it won’t. Not because journalists are all out for the presumptive Democratic nominee, but because even if she didn’t break the letter of the law, she certainly ignored its spirit.
Look at this story again. Clinton didn’t just use a private email account because it was convenient, she specifically registered a new email domain—clintonemail.com—a week before her confirmation hearings. Rules or not, odds are good she wanted to avoid as much transparency as possible, hence her slow move to comply with guidance from five years ago. As one conservative analyst said on Twitter (in somewhat uncharitable terms), “[Clinton] simply valued total and complete control over her image and information with such paranoid fervor that the law was [a] secondary issue.”
The problem is that this doesn’t work. Far from protecting her fortunes, Clinton’s secrecy will harm them. By refusing to share information, even when it’s innocuous, Clinton loses the benefit of the doubt. And instead of stopping scandals, she makes them worse, turning small issues into frenzies of comment and condemnation. If, from 2009 to the end of 2012, Clinton had her eye on the presidency, then she should have been more open with her communications; she should have worked harder to comply with the rules as they stood.
No, the heightened scrutiny isn’t fair: Together, the Clintons have dealt with a lifetime’s worth of bogus scandals. Despite this, the political world is loath to give either a chance before assuming the worst. But deserved or not, those are the breaks.
For as long as she’s a national figure—and especially when she runs for president—Hillary Clinton will get more scrutiny than anyone else in the field. The best response—the only response—is to do better: to be more open and transparent than all of her competitors. From here on, Clinton has to be twice as good, lest she end her career as just another presidential also-ran.