It is with regret that your blogger here must report that he was correct as far back as early-April 2015 in predicting that the private email scenario surrounding Hillary Clinton would be a real threat to her efforts to gain the White House. Indeed, in a podcast of April 9, 2015 this blogger described the problem as a “hornet’s nest” that would be the “Achilles’ Heel” of the Clinton presidential campaign.
As revelations of Ms. Clinton’s use of a private email server for government affairs while acting as Secretary of State first emerged, she attempted to deflect and then minimize the problem. Later, when Emailgate would not disappear, Ms. Clinton admitted that she had made a “mistake” and that if she had it to do over again, she would not have handled government emails in a private fashion.
The April 9, 2015 podcast and contemporaneous writings by your blogger made plain that government records must be treated as such so that they are available for public review. For example, under the Freedom of Information Act, the public is entitled to seek information in terms of “what the government is up to,” as has been held by the United States Supreme Court.
Why? For democracy to work, those who govern must be accountable to those who are governed, and therefore, government cannot operate in secret. Yes, the Freedom of Information does contain some exemptions to allow the government to shield certain records (such as to protect national security interests), but those exemptions are construed narrowly and the presumption is that government information must be available for review. But if government records are maintained in private, the purpose of the statute is thwarted.
During the campaign, Donald Trump supporters chanted “lock her up, lock her up” in response to Trump’s many statements that Ms. Clinton had violated the law and that she should be prosecuted. But in July, FBI Director James Comey, while faulting Ms. Clinton in terms of how she handled government emails in private, stated that no reasonable prosecutor would bring an action against Ms. Clinton. It seemed then that the email problem largely was behind Ms. Clinton.
Of course, there were many warts that plagued the presidential campaign of Donald Trump. And when the election was close approaching, the national discourse mostly was focusing on allegations that Trump previously had groped women against their will.
But less than two weeks before the election, FBI Director James Comey dropped a bombshell by reporting that the private laptop of disgraced Anthony Weiner potentially contained emails between Hillary Clinton and his ex-wife and Clinton aide Huma Abedin. There was not any confirmation at all that such emails would shed any further light on Emailgate, but the genie was back out of the bottle.
Once again, the chants of “lock her up, lock her up” grew louder and louder. The entire narrative of the presidential campaign changed in the waning days from Trump’s alleged, improper sexual predatory conduct back to Emailgate. A reasonable mind certainly could ask why the FBI Director came forward at all so close to the election with news that really was not news but that was very inflammatory.
Then, two days before the election, FBI Director Comey surfaced again to say that nothing contained on Weiner’s laptop warranted changing his July conclusion that no legal action should be taken against Ms. Clinton. By this point, many people already had voted by absentee ballots. And we know that voter turnout was low, and very possibly potential voters who were considering voting for Ms. Clinton decided that she just could not be trusted after all; this was the theme played by the Trump campaign with respect to the email problem, and they did not show up in support of her at the polls.
This blogger believes that Emailgate was a substantial reason why Ms. Clinton is not the President-elect. One of Trumps campaign promises was that he would seek to put Ms. Clinton “in jail” if he were elected. Now questions are being asked whether he will follow through.
In a recent 60 Minutes interview, Trump said that the Clintons are “good people” and he does not want to “hurt” them. Hopefully, that is the case. Trump soon will ascend to the White House, and one would like to think that he has better things to do than to try to arrange for the prosecution of his political opponent, especially when the FBI Director concluded otherwise. But some of Trump’s supporters truly hate the Clinton machine, and they may be out for more than an election victory. Again, hopefully that is not the case.
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 firstname.lastname@example.org 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.