The Corner

This Clinton Scandal Is Simple … and It’s Not Primarily About the Law

Hillary Clinton systematically evaded federal recordkeeping and disclosure requirements. This is very straightforward – indeed, the purpose of evasion is the only logical reason for setting up a complex, alternative, extra-governmental communications system. Predictably, Clinton sympathizers are trying to complicate and obfuscate something that is really very simple.

In a nutshell, Mrs. Clinton’s scheme was the antithesis of the system set up by federal law. Under the latter system, government officials must conduct even trivial government business on government facilities. A governmental system serves the imperatives of security and accountability: (a) it is built with extraordinary protective layers to ward off spies and hackers; (b) the communications transmitted and stored are readily available for disclosure to Congress, the courts, and the public. Most significantly, it puts the law in charge of decisions about what communications should be maintained or disclosed in the event a government official contends his or her communications should be withheld on grounds of privacy or privilege.

By contrast, Mrs. Clinton set up an alternative system under which she, a top official who engaged in crucial government business, conducted that business on private facilities that she controlled. The Clinton system undermined security and accountability: (a) it was highly vulnerable to spies and hackers; (b) the communications transmitted and stored were shielded from disclosure to Congress, the courts, and the public. Most significantly, it put Mrs. Clinton, not the law, in charge of decisions about what communications should be maintained or disclosed in the event she did not wish to maintain or disclose them.

In a lawfully functioning governmental recordkeeping framework, the government, applying the law, tells government officials what they may withhold from disclosure.

In the Clinton recordkeeping framework, Mrs. Clinton, applying her preferences, tells the government what the government may have access to for purposes of disclosure.

Shannen and I have raised the certainty that records laws and regulations were violated, as well as the strong possibility that criminal laws were violated. As Charles Krauthammer points out, this tees up the classic Clintonian scandal: an ever more abstruse debate over legal technicalities – watch for “what is a ‘government record’?” to become the latest “It depends what the definition of ‘is’ is.”

There is, however, a huge difference. During the exhausting eight-year pattern of scandal and hyper-technical rationalizations of scandal, Bill Clinton was president of the United States. As we’re now seeing yet again, the public does not like to confront the fact that a rogue president may be unfit for office. Therefore, perhaps understandably, the public and the political class that responds to public sentiment are sure indulge all manner of mental gymnastics and looking-the-other-way in order to avoid the excruciating prospect of removing a president from power.

It is very different with someone who merely aspires to be president. With Mrs. Clinton right now, the burning question is not whether she has committed law violations and crimes, let alone high crimes and misdemeanors. It is whether she so sees herself as a law unto herself, and whether she has so little regard for the important democratic interests in security and accountability, that she is not worth the trouble she portends.

It is a lot easier to say, “I don’t want to go through that mess again,” than it is to take the hard steps necessary to get out of the mess once you’re in it.

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