There's a famous line in politics that gets attributed to Massachusetts ward boss Martin Lomasney: never write if you can speak; never speak if you can nod; never nod if you can wink.
In light of the Federal Records Act, this saying deserves an addendum: never email from an official account if you can email from a personal account.
There looks to be little doubt that Hillary Clinton violated the spirit of the Federal Records Act, if not the letter of it, by forgoing an official email address and exclusively using her "homebrewed" address. But Clinton's real sin here might be clumsiness: that legislation, and similar efforts to ensure transparency, are violated all day, every day. Clinton simply dispensed with the illusion of compliance.
The case of Jeb Bush is a helpful counterpoint here: he turned over tons of emails from his time as governor of Florida. But he also, through that period, used Jeb@Jeb.org for personal, political, and fundraising matters — and he didn't turn over all of those emails. Who knows what lurks among them? Clinton's case is unusual, but Bush's is not — and it speaks to the gaping holes in our transparency laws.
Politicians always find ways around transparency laws
The federal government is rife with rules meant to increase transparency that merely lead to more inefficient secrecy. The Federal Records Act is one of them. As every reporter knows, when official sources want to tell you something particularly delicate, they email you from a personal account — or, much more often, they call.
A lot of my reporting happens by email. But virtually none of my reporting with the White House happens by email. There, emails for clarification, or comment, quickly lead to phone calls. The reason — unsaid but obvious — is that phone calls don't leave an official record. White House officials can talk freely on the phone in a way they can't over email.
Similarly, the White House keeps a visitor's log. If you make an appointment to meet with someone, your entrance and point of contact are recorded for posterity and searchable online. When someone who shouldn't be meeting with you wants to meet with you, they tend to suggest an off-site location: a restaurant downtown, or a nearby coffee shop. Peet's Coffee doesn't keep a list of everyone who walks in or out.
We shouldn't fool ourselves into believing that government officials with voluminous email trails are actually abiding by the Federal Records Act. Most simply avoid disclosure in a more targeted fashion than Clinton: they use their official email for routine business and anodyne communication and they use in-person meetings, cell phone calls, and private email accounts for more sensitive discussions.
The result is transparency theater: the trappings of full visibility obscuring the realities of continued secrecy.
This isn't an easy problem to solve
Officials are always going to look for these workarounds. The alternative to secrecy is often silence, and silence, in most jobs, isn't really an option. People — even politicians — need to be able to voice thoughts in private they they don't want to see become public. When a smoke-filled backroom becomes a non-smoking lobby, politicians find a new backroom. They always will.
This isn't to excuse Clinton. She should have used an official email address, and she didn't. But if she had used an official email address for her banal communications while carefully hiding her more impolitic missives, few would know to fault her, but the cause of transparency would not be much better served.
As a reporter and a citizen, I want to see more transparency. I want to know what public officials are doing at all times. But as someone who sees these laws in action on an almost daily basis, it's not clear that all this transparency theater is leading to nearly as much actual transparency as we like to think, and it is clear that it comes at a cost to the quality of internal communications in the government.
This is the part of the column, I guess, where I offer some solutions. But I don't know how to solve this problem. We can make politicians and key officials turn over their electronic communications. But that just ensures their most important communications won't be electronic. These transparency efforts can even become a blockade against more efficient use of digital communications — they give a bureaucracy that already struggles with technology adoption another reason to remain analog.
Clinton deserves the opprobrium she's getting. But she's just an extreme example of a widespread problem.