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Hey Hillary-Haters, What About That Other E-Mail Scandal You’re Ignoring?


hillary-email-2-350x234-2As much as “but Hillary…” is the lamest of lame responses to everything from “aren’t you disturbed by Trump’s sexual assault history” to “do you really think it’s appropriate for our president to boast about grabbing women’s vaginas,” one thing is clear. Americans from all portions of the political spectrum are deeply disturbed by Hillary Clinton’s mishandling of classified information. One doesn’t need to be a right-wing conspiracy theorist to be concerned that our likely next president exercised practices deemed “extremely careless” by the director of the FBI.

Most of us have, prior to this election cycle, gave little thought to the kinds of servers that are maintained by government officials; now, though, we’re united in our resolve to at least pay attention to the information-management skills of our government. Emails and servers may not have been a political thing before, but they sure are now, so let’s do it right.

It makes little sense to condemn Hillary Clinton for the email saga without establishing some context. A good place to start with that context is with George W. Bush. As it turns out, the second President Bush had something of an email problem on his hands too. Weirdly, that “scandal” while far broader in scope, was subject to far less media scrutiny. If my own prior ignorance of Bush’s e-woes is any indication, most of us have been in the dark about what the White House has been doing with emails for quite a while.

Like Hillary Clinton, the Bush White House used a private email server. Unlike Hillary Clinton, who used her family’s personal server, the Bush email server was owned by the Republican National Committee. So that’s a little different. But before we march further down the road of “wow, that seems a lot more suspicious,” let’s get some background on the legal requirements for presidents and emails.

In 1978, Congress passed the Presidential Records Act (PRA), which mandated that all presidential and vice presidential records created after January 20, 1981 be preserved, and that the public (not the president) owned those records. The following year, the Reagan administration installed the White House’s first email system. For those keeping score at home, the PRA applies to presidential and vice presidential records – not department of state records. But again, let’s shelf that for now.

Despite the PRA being on the books, and the increased use of email by every administration following its passage, the White House developed some bad habits. Neither the Reagan nor the George H.W. Bush administrations maintained email records, despite hundreds of millions of emails being produced during their time in the executive branch.

In 1989, several groups (including the National Security Archive, a notable government watchdog organization) looking to shine a light on Cold War history sued the first Bush administration for failure to comply with its obligations under the PRA. The immediate result of that lawsuit was a court order, issued during the final hours of the first Bush presidency, that prevented 6,000 White House email backup tapes from being erased. That all seems very 24 and Jack Bauer.

George H.W. Bush struck a partial deal with the plaintiffs of the lawsuit, and the deal was later supported by Bill Clinton (who also wanted to keep his emails personal). Later, the Clinton Administration inherited and shortly thereafter, agreed on a resolution to the rest of the lawsuit by adopting a new information management system. That system would (theoretically) archive all emails subject to the PRA and create pop-up notifications for users to prevent accidental deletion of emails. Cut to 2003, when a whistleblower from the George W. Bush administration got word to one of the ’89 plaintiffs (the National Security Archive) that White House had stopped saving its emails.  Apparently the automatic email archive that had been adopted by Bill Clinton’s administration had been shut down. The Bush White House’s explanation was that it had switched to a new server, and in the process, was unable to maintain an archive. As the story went, three months worth of White House emails were lost due to this problematic new server.

The lost emails weren’t just random communications, by the way. As it turns out, they would have been helpful in a few high-profile cases. For one, some of the lost emails are thought to have been sent by Dick Cheney’s aides regarding a diplomat who disagreed with the administration’s position on weapons of mass destruction in Iraq. For another, a Congressional subcommittee could have used some of those emails when investigating the wrongful termination of nine U.S. attorneys by Bush’s attorney general, Alberto Gonzalez.   Sure, the timing of the email vacuum might be a coincidence, but given that President Bush refused to comply with a Congressional subpoena on the subject, the “lost” emails seem incredibly timely and convenient.

Ultimately, in 2009, computer technicians were able to recover about 22 million emails dating from 2003 to 2005 that had been deemed “lost” by the Bush Administration. That’s right. 22 million.

When this mess landed on the desk of the Obama Administration, those emails were re-characterized from “lost” to “mislabeled.” The recovered emails were then turned over to the National Security Archive; then, on December 14, 2009, the twenty-year old lawsuit was finally put to bed for good. But under applicable law, the emails won’t be made available to the public until 2021.

What’s truly noteworthy about this entire subject is that while over 560,000 articles have been written in the last eighteen months mentioning Hillary Clinton’s emails, almost no media attention was focused on the prior email problem, which spanned three presidential administrations. Furthermore, the mishandling of electronic data that occurred during the George W. Bush administration may well have obscured information relating to American response to the 9/11 attacks and the war in Iraq – among the all-time most controversial topics for public comment.  Now, for the side-by-side.  Hillary Clinton’s private email server and mishandling of classified information continues to be touted as the mother of all malfeasance.  Yet, the loss of a far more staggering number of emails sent during a far more politically-sensitive time frame has been almost totally ignored.

The point is not that Hillary Clinton is beyond reproach because George W. Bush also handled data inappropriately. The point is that if we are going to scrutinize any person’s behavior, we should do it properly, with informed context and relevant comparison. There is significant indication that four consecutive administrations have failed to comply with the letter and spirit of the law with regard to transparency in communications. The only reasonable interpretation of the facts is that this isn’t a Hillary problem – but rather, a government problem.


This is an opinion piece. The views expressed here are those just of the author.

Follow Elura on Twitter @elurananos

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos