Email may not be Hillary's undoing, but it may be the straw that breaks her campaign's back

Presidential email expert David Gewirtz looks critically at the Clinton email situation, explores how the Bill Clinton administration felt about email, and prognosticates on the survival of Hillary Clinton's candidacy based on her current situation and long history with disruptive news items.
Written by David Gewirtz, Senior Contributing Editor
Here's what we think we know. An email server operated on behalf of the Clintons was picked up by the FBI from Platte River Networks Inc., a small IT shop in New Jersey. Prior to leaving office, Secretary Clinton's server was operated out of her home in Chappaqua, NY.

We know that a thumb drive containing work-related email messages which once resided on that server was turned over by Clinton attorney David Kendall to the FBI. If that name is familiar to you, it's because Mr. Kendall also advised President Clinton during the former president's impeachment trial back in the 1990s.

We know that Secretary Clinton reported that she turned over 32,000 email messages from the server to the State Department and deleted another 30,000 messages that were personal in nature. Eventually, more than 55,000 pages of email messages were released by the State Department to the public.

We have various reports that the personal server contained email messages of a classified nature. The Clinton campaign has stated that the messages were on topics classified after they were sent, but according to the Washington Post, "a top intelligence official whose office has been reviewing the emails" has found two messages with classified information in a mere 40 that were examined.

The Washington Times ups the number quite a bit (and this is the number hitting the front page of blogs everywhere), claiming more than 300 messages contained classified information. It should be noted that the Washington Times is not a credible source. It was founded and is owned by Sun Myung Moon (who was sentenced to 18 months in federal prison for tax evasion) and has a declared editorial slant.

Analysis also shows Secretary Clinton most likely used Google and MX Logic to provide some backup and spam filtering, respectively.

In summary, Mrs. Clinton's private email server is being investigated by the State Department and the FBI, was turned over reluctantly but voluntarily by Clinton personnel, and there may have been some messages with classified information on that private email server.

Presidents and email disclosure

As part of my investigation into the President George W. Bush email scandal, I also dug deeply into historical precedent. Previous presidential administrations, upon leaving office, were extremely reluctant to turn over their email records to the National Archives.

In fact, destroying email is nothing new. The teams working for Presidents Reagan, Bush, and Clinton argued strenuously for the right to destroy email records. A last minute judicial order prevented the Reagan administration from destroying all its records.

On the night before President Clinton's inauguration, President George H.W. Bush's people conducted a midnight raid removing 4,852 boxes of tapes that would otherwise have gone to the National Archives and Records Administration. They managed to do this with the approval of the Archivist of the United States, Donald W. Wilson, who, three weeks later showed up to his new job as Executive Director of the Bush Presidential Library Center.

When Bill Clinton came into office, he not only upheld the previous administrations' attempts to destroy email, but tried really hard to redefine the National Security Council as something other than an "agency." That's because those federal organizations called "agencies" are subject by law to the Federal Records Act, but if the NSC could be de-agency-ized, then those records would not be considered federal records, would not be subject to the FRA, and would not have to be disclosed subject to the Freedom of Information Act.

It didn't work. Federal judge Charles Richey was displeased, stating, "arbitrary and capricious...contrary to history, past practice, and the law."

But if you really want an insight into how the Clintons felt about disclosure of email records, here's all you need to know.

From my book on the topic:

Clinton administration Senior Advisor on Policy and Strategy George Stephanopoulos is quoted in the May 18, 1993 issue of The Washington Post as saying "Like Bush's White House, the Clinton White House does not want a succceeding, potentially unfriendly administration pawing through its computer memos."

And yet, today, Mrs. Clinton's "computer memos" have paw tracks all over them.

The law and Secretary Clinton's email

We know Mrs. Clinton operated a private email server. We know there were likely some classified messages stored there. And we know the Clintons aren't fond of the entire subject.

But did Secretary Clinton do anything wrong? What does the law say?

The law, in fact, requires federal officials to use outside mail services. This isn't optional. It isn't the result of a desire of our leaders to hide their email. The law, in the form of the Hatch Act of 1939, officially "An Act to Prevent Pernicious Political Activities," specifically prevents the use of federal resources (originally, specifically postage) for political activities, and email is now considered one of those resources by the Justice Department.

Here's how that works. Let's say that while Secretary Clinton was in office, she wanted to talk to Bill about whether Chelsea would make a great president one day. That's a political activity. If that message were sent using government email services, it would violate the Hatch Act. Even if Mrs. Clinton sent that message to James B. Steinberg, who was her Deputy Secretary of State, it would violate the Hatch Act.

She could send it to Mr. Steinberg via Gmail or AOL. That would be legal. But to send it (or any other political correspondence whatsover) via federal email systems is a crime.

That means federal officials almost always have one or more personal accounts. George W. Bush had GWB43.com, which was operated by SMARTech Corporation in Chattanooga, Tennessee. In fact, in my book, I estimated that 103.6 million email messages were sent by the Bush administration via the SMARTech infrastructure and were never recorded or preserved.

I consider that to be one of the greatest losses of historical documentation the U.S. has yet suffered.

Therefore, the fact that Mrs. Clinton had a mail server in Chappaqua is not surprising. In fact, given the Hatch Act, a substitute email solution would have been required.

What about the classified email?

Ah, that's where things start to get problematic for Secretary Clinton. Classified is classified and even one classified message released in an unclassified manner is a very big thing under the law.

It is understandable, however. We talk about BYOD challenges all the time here at ZDNet. How many of you have to carry more than one phone with you at all times? How often do you get flummoxed when switching between the two? Are you on the work phone or the personal phone? Where did this conversation start? It can be maddening to keep track of it all, especially on busy days in busy jobs.

So over the 1,472 days Mrs. Clinton held the office of Secretary of State between January 21, 2009 and February 1, 2013, the probability that she might have confused one window for another or gotten a message on one account for the other is pretty much one hundred percent.

This is why I have strongly insisted that to preserve national security, senior federal officials must be required to use only federal email services to communicate and not be allowed to use personal email. Sadly, the Hatch Act and Congress seem to disagree.

In any case, though, while it's understandable that some classified traffic got into her personal email records, it's still a violation and that's a problem for Mrs. Clinton.

Holding Mrs. Clinton to a higher standard

As it turns out, Hillary Clinton really, really wants to be President of the United States. Violating the rules of classified material protection may get in the way of that dream.

Article Two of the United States Constitution creates the Executive branch, and in doing so sets out powers and responsibilities of the president. Now, we all know about "preserve, protect, and defend the Constitution of the United States."

But not everyone is familiar with what Constitutional scholars call the Faithful Execution Clause. Article II, Section 3 states, among other things, that the president "shall take Care that the Laws be faithfully executed."

That brings us back to Secretary Clinton. If she has shown that she hasn't taken care with something as critical and potentially damaging as loose classified information, can we really be sure she'll take Care that the Laws be faithfully executed?

Yeah, this is going to be a problem.

Is President Hillary Clinton better for the US or better for Hillary Clinton?

There is no doubt that Hillary Clinton wants the presidency very, very much. And that's fine. Many of us have been told as children we have the chance grow up and become president. That dream is important as a principle of our democracy.

But here's the thing. Hillary Clinton has a lot of baggage. We need a president who comes into office and can put the interests of America first. We need a president who can inspire and lead.

I know, that's an odd thought with the Republicans and Democrats gumming up the works, but it's what we need.

We need a president who has at least a chance of working across party lines, of working with Congress, and appealing to a broad portion of the electorate.

And, despite my overwhelming desire to see Bill Clinton as the First Gentleman (remember, I'm a political commentator, so I live for good material), the baggage that Hillary Clinton would bring into the Oval Office on Day One does not bode well for America's next four years.

Here's just a short list of topics that are sure to come up during the campaign (and if she's elected, haunt her entire presidency): Mrs. Clinton's email, questions about possibly illegal fundraising for Bill's foundation while she was in office, and, of course, everything Benghazi. There's more, but that will do.

Well, maybe not. We're sure to hear about the Whitewater land deal, White House counsel Vince Foster's suicide while in office and subsequent missing files, the White House travel office controversy where Mrs. Clinton made factually false statements to an independent counsel, the missing and then magically appearing Rose Law Firm billing records, the Lincoln Bedroom for contributors controversy, the presidential pardon of convicted fugitive tax evader (and big Clinton contributor) Marc Rich, and even the "I misspoke" claim by Mrs. Clinton that she was under sniper fire in a Bosnia airport when that was claim was verifiably untrue.

I could go on. There are all the various foreign contributors that have shown up in news about the Clintons over the years. And, of course, there's Bill and his Little Bill.

Should Mrs. Clinton exit the campaign?

Yes. Unequivocally, yes. The Clintons are experts at taking media sniper fire and living through it, but we as a nation don't need to be dragged along for the ride.

At this point, it's assumed she will get the Democratic nomination because, after all, she's Hillary Clinton. She's got the machine and she's got the money. She's also sucking the air out of the chances for other good candidates (like these strong women leaders) to get in the race.

While some think her star power, her support, and her general unstoppability will get her to the nomination and beyond, the baggage she carries is overwhelming. No other current presidential candidate (no, not even The Donald) has that much baggage.

Hillary Clinton has had an amazing career and has been an amazing American. She was First Lady of the United States, Senator from New York, and Secretary of State. She could retire from public life now as a true success.

Or she could go down in flames and leave as her legacy not a litany of her accomplishments, but all that baggage and a never-ending stream of punch lines.

One final note: I am not a Democrat or Republican. I'm pretty much fed up with both parties. I consider myself an American first and foremost, and will vote for the candidate I think will do the best for America. I recommend you do the same.

By the way, I'm doing more updates on Twitter and Facebook than ever before. Be sure to follow me on Twitter at @DavidGewirtz and on Facebook at Facebook.com/DavidGewirtz.

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