We now know that the FBI does not recommend that Hillary Clinton be prosecuted for using private email servers with respect to government communications while she was the Secretary of State. At the same time, though, the FBI has concluded that Ms. Clinton’s handling of government communications was extremely careless. Meanwhile, the State Department may begin its own investigation with respect to EmailGate.
From the outside, it does not appear that Ms. Clinton acted with malice when using private email servers regarding her government communications as Secretary of State. Nevertheless, it is critically important that government records be maintained as government records so that the public has an opportunity to review those records when appropriate.
The Freedom of Information Act is in place for an important reason. For democracy to work, it is imperative that those who govern be accountable to the governed. The Freedom of Information Act allows the public access to government records and communications to find out and monitor what the government is up to, unless one of several specific and narrow exemptions applies. And when the government withholds information pursuant to an exemption, enough identifying information must be provided so that the requester may challenge the withholding of information.
Obviously, when government records are maintained in a private fashion, they may escape potential review by the public. This could have negative consequences in certain circumstances. One would like to think that this never was Ms. Clinton’s intent.
Apparently, Ms. Clinton does not represent the first government official to use private means of communications with respect to government matters. Nevertheless, that does not make it right.
Now that the FBI has come forward by not recommending criminal prosecution, reports suggest that the State Department will now conduct its own investigation. It is possible that the State Department could issue reprimands, some of which might preclude certain individuals from having access to classified information. If the State Department determined that Ms. Clinton is not suitable for having access to classified information, that would be extremely awkward, given that she is running for and may soon become President of United States.
Plainly, Ms. Clinton has incredible experience that makes her a very strong candidate for President, including her time as Secretary of State and as a United States Senator. She works hard, she is very educated and listens to and learns about the issues, and she seems to care deeply about our country. No candidate is perfect, and clearly the handling of emails while she was Secretary of State was not her shining moment.
Does this one failing mean that she should not become President? Many would say no, she should be President, especially when she is running against Donald Trump, who is very controversial and has no government experience whatsoever.
Probably, those who do not support Hillary Clinton would look for any potential dirt to throw at her, and email-gate is where they may find most of their criticism of her.
While we are in an election year, and this issue has become very political, it still is important not to lose sight of the fundamental point — the people need to have access to government information to make sure that our democracy is working the way it was intended. Ms. Clinton likely knows that, and most likely regrets that in an effort for convenience, she short-circuited the process of maintaining government records. One safe bet is that she will not make this mistake again.
Now, with this lesson learned, let’s get on with government affairs and the upcoming election and may the truly best candidate win.
Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.