THE BLOG
02/01/2016 11:16 am ET Updated Feb 01, 2017

The Public Policy Implications of Clinton's Emailgate

In the current frenzy to either bring Hillary Clinton down or hold her up, depending on which side you are on, the public policy implications of her email scandal ("Emailgate") are being ignored: how to prevent government officials from using private rather than government email systems for government business.

The Incentives for Secrecy
By using private rather than government email systems, Clinton and other high-level government officials seek enhanced control of public records concerning their job performance. This control prevents potentially embarrassing work emails from becoming public.

Such control can be attained either by using an independently hosted email server, such as Gmail or Outlook, or, as Clinton used, a self-hosted email server. Using an independently hosted email server is much more widespread because of its greater convenience and lower cost. But both types of server can be equally effective in selectively shielding work emails from public scrutiny.

Clinton's Emailgate scandal hasn't spurred open government reforms because such reforms aren't in either political party's interest. Incumbent officials regardless of party have a shared interest in preserving email practices that give them control of their records. Asking officials to make potentially controversial emails public elicits a response like asking them to run naked down Main Street.

The Current Framing of the Issue
The great irony of Clinton's Emailgate is that in seeking to hide information from American citizens she made the information more accessible to America's enemies. It is this secondary effect of Emailgate that Clinton's enemies have chosen to focus on. This narrow focus is smart politics for several reasons:

First, only a very small percentage of public officials have access to top secret information, so few are implicated in this framing, especially outside national security agencies. Most important, the target, Democratic presidential candidate Clinton, is well covered by this framing, so expanding it would merely create needless opponents.

Second, America's laws regarding secrecy are highly asymmetric: whereas the penalties regarding hiding information from the American public are weak and rarely enforced, the laws regarding hiding information from America's enemies are strong and often enforced. (As for me, I'd make the penalties symmetrical, which would entail a complete reconceptualization of America's open government policy.) In other words, whereas it is hard to imagine Clinton getting indicted for hiding information from the American public, it is relatively easy to imagine her getting indicted for not hiding information from America's enemies.

Alas, this narrow framing won't significantly reduce, let alone eliminate, government officials' current incentives for Clintonesque email secrecy, which is the root problem that caused Emailgate.

To be sure, the open government as opposed to national security implications of Emailgate haven't been totally ignored. But even when they haven't been ignored, we have had another type of politicized framing. The Republicans have been endorsing an open government double standard: one standard of email transparency for Clinton and another for other government officials. In contrast, the Democrats have been endorsing the current "don't ask; don't tell" status quo.

The Ubiquity of the Problem
Many high level government officials engage in Clintonesque email secrecy. "Using a private server... is a terrible practice," observes Thomas Blanton, director of the National Security Archive at George Washington University. "The problem is that everybody does it." Blanton can name dozens of Federal level officials who have engaged in such practices. Among them are dozens of White House officials in the previous Bush administration, former U.S. secretaries of state, and current U.S. cabinet officers.

Not to be ignored are government officials at the local level, where the problem is likely much worse. In my local public school system (Anne Arundel County, Maryland), which has a billion dollar budget and more than 10,000 employees, centralized backups of emails are deleted every 30 days (which places controversial emails out-of-reach of the public records law), employees have an implicit fiduciary duty to delete controversial emails from government (but not private) email systems in response to a public records request for them, and no credible independent enforcement agent--such as the FBI, U.S. State Department Inspector General, or U.S. House Oversight and Government Reform Committee--exists with either the expertise or motive to investigate such deletions, including the transfer of government email to private email systems after a public records request has been made.

In the same county in Maryland, one chair of an election commission appointed by former Governor Martin O'Malley used four private email accounts and no government email account to conduct his official business. At the state level, the same governor, now running against Clinton for the Democratic presidential nomination, used private email for work purposes while governor. All this was legal. In response to my Baltimore Sun op-ed on this subject, legislation has been introduced in the current session of Maryland's General Assembly (HB0492 and SB0155) to at least partially address such abuses.

Recommendations
Congress and state legislatures should embrace a new enforcement paradigm--regardless of whether the law being violated concerns making government more open or secret. Enforcement currently centers on the email sender rather than recipient. But the key to effective enforcement is to improve the recipient's as well as the sender's incentives.

For example, it was easy for Clinton to hide her private email account from the public during her four years as an executive branch official and for several years afterward as long as her dozens of trusted correspondents, who received at least 27,000 emails from within the U.S. State Department alone according to Clinton's own estimates, had no incentive to enforce the law. Those correspondents should have been ethically and legally liable for receiving and replying to such emails over an extended period of time. They should also have been able to report the abuses to an independent enforcement agency with effective investigative powers and a credible commitment to protect their identities. If her correspondents had credible incentives to whistle blow, Clinton would have been deterred from the abuses that got her into trouble in the first place.

Among Clinton's email correspondents was President Obama, with whom at least 18 emails were exchanged via Clinton's private email account. Presidential email correspondence is exempt from public disclosure except for posterity long after a president has left office. But President Obama (and his trusted aides who presumably carefully filter his email) should have understood that it was improper for Clinton to violate his administration's own email policies by corresponding with him via a private email account.

Among the excuses used to justify Clinton's handling of classified emails is that they were sent to her. "It has never made sense to me that Secretary Clinton can be held responsible for email exchanges that originated with someone else," argued Senator Diane Feinstein after Clinton's latest batch of emails was publicly released. "The only reason to hold Secretary Clinton responsible for emails that didn't originate with her is for political points, and that's what we've seen over the past several months." I agree with the premise of Senator Feinstein's argument that senders and receivers should have different levels of culpability. But there are two unmentioned corollaries to her argument. First, that those doing the sending, including to Clinton, should be held responsible; that is, if Clinton isn't at fault, then somebody else should be. Second, that those doing the receiving and not reporting the violations, including Clinton, should also be culpable, albeit to a lesser degree.

Much of law and ethics enforcement has relied on motivating witnesses and co-conspirators to whistle blow, partly by providing them with some immunity for doing so. It is long past time when this principle should have been applied to curb the abuses of powerful government officials at all levels of government who use private email systems to shield their official work from appropriate public scrutiny.