THE BLOG

Hillary and Her Emails: Another View

03/10/2015 11:53 am ET | Updated May 10, 2015
Paul Morigi via Getty Images

Public service is a noble calling. But at what price? It's bad enough if historians pick over your bones for years after you're dead and gone. But what about now -- when you're alive, well and trying to not only do your job, but do it in such a way that you will not be precluded from seeking higher office. In other words, do you want the world looking at every email, or "note-to-self" that you sent as an email, that you wrote before you went to sleep? Or those to staff members who screwed up, or when you screwed up? Should the world get to see the "first draft" of your every thought that you yourself had the sense to abandon once you reviewed the "draft" in the cool light of day? How valuable, ultimately, after all, is total transparency -- given the direction in which the world is going?

Here's the reality: thirty years ago, your "things to do" list, your "notes," your "first drafts" shall we call them -- they were kept on a note pad. It was on your night table when you slept so that you could quickly jot down your middle-of-the-night "brilliant" ideas to staff. You know, the ones that make no sense in the morning. Those notes got torn up, thrown out with your morning coffee grinds. Like a thought communicated verbally, they had no permanent, demonstrable afterlife.

But things are different today, and public servants know it. Emails, electronic notes sent via email -- they are here and, frankly, it is difficult to do business without them. Particularly if your business spans every time zone. What do public servants do? Governor Cuomo directed an auto-delete of State government emails after three months. So, if his midnight ideas turn out to be unworkable, or just not well thought through, a prosecutor, a reporter and the public would only have 90 days to seize the moment. This assuming the prosecutor or FOIA requestor armed with a court order can't get some computer archaeologist equipped with technology to dig up remains that somehow were not really deleted.

Secretary Clinton had a different idea; an idea that everyone she emailed with -- including heads of state, congress, senators and the President (although he recently denied it -- had to know about. She simply didn't use the government system to send and receive emails. Now, to be sure, there's a risk there; meaning, her official emails wouldn't have the security of a State Department account. Putting aside whether she was breaching a regulation by, presumably, communicating sensitive State Department business on a non-secure computer line, her actions were likely not as egregious as the sins of CIA Director David Petraeus (showing "black book" documents to his girlfriend/biographer), CIA Director John Deutsch (taking and maintaining highly classified information on an unsecured computer after he left the government) or NSA Advisor Sandy Berger (removing and destroying a classified document about the Clinton administration's record on terrorism). All of these men, incidentally, pleaded guilty to misdemeanors, notwithstanding their extremely valuable careers in public service.

We will likely never know from her the real reason why Secretary Clinton used a non-government email account. We can only presume she was trying to make sure that certain emails would never see the light of day in the first place, aside from the parties to the email communication. In other words, was she attempting to treat her emails as written notes she would have kept in olden days, i.e., before the internet?

And if that is what she was trying to do, who can blame her? Would you want the opposition party's legislators bent on trying to tear you (and the President) down -- as they have basically acknowledged -- in a position to scavenge their way through every unfiltered government-related email you ever wrote or received during your tenure as Secretary of State, even if written in "short hand" or in haste, or in pique, without forethought? And what about those personal emails you may have written to your husband, forgetting to go to your private account in the middle of an over-the-top day? I mean, how many secretaries of state have a spouse with a security clearance? Which brings us to this -- we are talking about Hillary Clinton; a woman who is a lightning rod. Unlike Madeline (Albright), unlike Condi (Rice) -- Hillary is a former first lady with boundless ambition. And as first lady, she was no Jackie Kennedy. She is so loathed -- perhaps, so feared -- that when her husband cheated on her, she was lambasted for tolerating it as a career move!

But back to the emails. Clearly, the answer isn't to conduct business over a non-secure line, in violation of government regulations and guidelines -- the email account she used was a private account, although not one commercially available (which accounts can and should be used for personal communications). Parenthetically, or maybe not, Secretary Colin Powell reportedly used a non-State Department account, although the regulations appear to have not yet been existent during his tenure. ABC News reports that, in fact, John Kerry is the first in that position to rely primarily on a state.gov account; Kerry is also the first Secretary to sit since the Federal Records Act was amended in 2014 to now place explicit limits on using private email accounts.

Nor is the answer to have that public servant turn over the emails "she believes" are relevant after her tenure, as Mrs. Clinton did. So how do we get valuable people to yield the privacy of their electronic communications in the name of public service? Maybe, just maybe, we need to create a zone of privacy that will encourage public officials to communicate their candid thoughts over email while in office -- given that conducting business without email is simply no longer a tenable option -- by ensuring that the email exchanges will have some protection from publication.

How do we do that? Is it possible to turn back the clock -- to allow government employees to be secure in the knowledge that one can give and receive candid advice without fear that the unfiltered comment won't end up before a Senate committee or on the front page of a tabloid? Diplomats, heads of state and the Secretary of State without question cannot do their jobs well unless they can freely speak their minds. Indeed, in conducting diplomatic negotiations it may actually be necessary to tell one side one thing and the other side another. Imagine how that would play out in the public arena.

Perhaps, instead of the current FOIA protocol or the ability of legislative committees to demand full access, why not create a mechanism to ensure that the public official, in this case the Secretary of State, have a level of privacy in her communications, while at the same time ensuring that the other branches of government and the press (assuming security protocols are met) have access to what is relevant or of import. In other words, create the role of a "filter" -- call him an ombudsman, or whatever -- who when a legislative or FOIA request for government-employee emails is made, reviews the materials in the first instance to determine not only the relevance of the emails, but also their substantive value. Meaning, if the Secretary and her Chief of Staff were to have electronically communicated an idea or thought that is rejected and never implemented, does the world really need to know about it?

If we have a high ranking public official concerned that her emails are up for grabs because the opposition party seeks to undermine her and the president she works for, she will (perhaps should) do what is necessary to protect her immaterial, unfiltered thoughts that made their way into emails. But if she knows a responsible, non-political figure with the mindset of an impartial judge stands as a guardian against the release of those emails, won't society be better served because thoughtful public officials will be willing to step into the breach knowing that their unfiltered, irrelevant words won't be used against them in the future?

Looking back through history, when President Lyndon B. Johnson signed the Freedom of Information Act, he acknowledged its pros and cons. Yes, it was important that secrecy be lifted so that the public could have information but, there were some secrets that were just as important: "Officials within Government must be able to communicate with one another fully and frankly without publicity. They cannot operate effectively if required to disclose information prematurely or to make public investigative files and internal instructions that guide them in arriving at their decisions."

Perhaps these were the "secrets" Secretary Clinton (and apparently many before her) were trying to keep.