So as the dust begins to settle just a bit in the email scandal, the standard, agreed-upon line here is something like: The Clintons have one rule for themselves, and one rule for everybody else. Whatever people think about Hillary Clinton’s degree of culpability here, this is the point in the conversation when the heads on cable television usually nod in unqualified agreement.
But is it really true, with regard to the specific question of email use? That’s not so clear. We know, for example, that Secretary of State Colin Powell didn’t turn over any emails to the department once the new law took effect in 2014, when Clinton handed over her 30,000 or so. So with respect to Powell, Clinton’s conduct was more forthcoming.
But Powell isn’t running for president, and he’s out of public life except as a very occasional Official Voice of Reason. So fine, forget him. More saliently, let’s compare Clinton to some other people who are in her position—that is, in all likelihood running for president. Let’s look specifically at Jeb Bush and Rick Perry, both former governors of large states that had decent freedom of information laws. And the comparisons, especially in Perry’s case, don’t mark Clinton’s behavior out as uniquely egregious.
Bush, as we know, released a huge tranche of emails back in February from his time as governor. He did this not under any intense public microscope, certainly not after the appearance of an A1 Times story compelling him to do so. As such, he got points for transparency. In addition, he was known, when he was governor, for being pretty accessible via email to state officials and even to regular citizens. So he got credit for that, too. Fair enough.
But there are two specific ways in which Bush’s conduct was no different from Clinton’s. First, he, too, owns his own email server, as MSNBC reported, which hosts the personal address (not official state government address) on which he conducted much official, political, and personal business. The same thing many are saying now about Clinton’s private set-up—that it could insulate her from subpoenas and freedom-of-information requests—would have been true of Bush’s situation as well.
But second and more important, Bush and his staff decided which emails to make public, just as Clinton and her staff did. As Barbara Petersen of the Florida First Amendment Foundation told me: “He did the same thing Hillary did. Either he or his staff or he and his staff went through all of these emails and decided which were public record and which were not public record.”
Now let’s move to Perry. The former Texas governor employed a very interesting email “retention” policy when he was in office—all emails were automatically deleted after seven days. Joseph Larsen, a Houston attorney and a board member of the Freedom of Information Foundation of Texas, told me Wednesday that he had long believed that Perry’s policy was in violation of the retention requirements of the state’s Public Information Act. In 2007 and 2008, he worked with a citizen-activist in Wisconsin of all places to try to force Perry to change the policy.
Larsen filed a complaint with the office of the state attorney general—at the time, it was Republican Greg Abbott, who is now the governor. In June 2008, Larsen got a letter back from a deputy of Abbott’s informing him that it was the AG’s view that the governor was in full compliance with state law. Larsen shared the letter with me. Let’s just say that if Clinton or her surrogates had tried some of these lines in the last few days, they’d have become instant SNL material: “Absent a mechanism to discard non-critical information, the State of Texas would be overcome with its own records which must be maintained at taxpayer expense.” And: “A review of the Governor’s Office records retention schedule shows that ‘email’ is not a specifically delineated records retention series.” Ah, the meaning of “email,” kind of like the meaning of “is.” But let’s not be too hard on Abbott. When he became governor, he changed Perry’s policy. Now, emails aren’t deleted until after 30 whole days!
“I’m appalled by what Clinton has done here,” Larsen said to me. “But she’s hardly alone.”
People might be right to be up in arms about Clinton’s judgment. Certainly, the selective retention issue is a real one. It’s not an unreasonable expectation that she should have realized this and taken steps at the time to preempt such questions—asked a third party to decide what was and wasn’t official business, maybe.
But if you’re going to be up in arms about Clinton’s practices, then shouldn’t you be maybe a little bit up in arms about Bush’s and Perry’s? Bush, as we saw above, had some habits that were better than Clinton’s, but at the end of the day, when it came time to turn emails over, as Barbara Petersen notes, he did the same self-sorting Clinton did. And Perry just dumped emails after seven days. Imagine if Clinton had done that! We’d be hearing wall-to-wall denunciations that this was such a crisis that she should stand down from the presidential race.
People can parse all the differences they want, and I’ll grant that there may be legitimate differences. The main one being that as secretary of state, Clinton was conducting sensitive business on behalf of the entire American people, whereas being a governor, even of a big state, doesn’t raise those kinds of questions, and most people don’t care much about anything governors do.
But that’s not really what this is about to most people who are rabid about it. This is about two things. To Republicans, it’s about trying to find something on her on Benghazi. They’re terrified—with good reason—that she’s going to win 350 electoral votes and be the president for the next eight years, and they’re grasping at anything they can that might block that from happening. And to the media, it’s about their idée fixe that the Clintons are uniquely corrupt—in some (not all) mainstream media quarters, there’s a 23-year-old emotional investment in this notion, buttressed by the conviction that the only reason that the most investigated couple in American political history isn’t in jail is that they merely haven’t yet been probed in quite the right way.
But really. Hillary operated under her own set of rules here? Funny. The Bush and Perry rules look awfully similar.