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Why reporters won't find anything damning in Hillary Clinton's emails

Network cables are plugged in a server room on November 10, 2014 in New York City.
Network cables are plugged in a server room on November 10, 2014 in New York City.
Michael Bocchieri/Getty Images

Every month through January, the State Department will release a fresh batch of Hillary Clinton's emails under the order of federal judge. Reporters will scan them for damning evidence that she shouldn't be president. Republicans will say they smell smoke, even if there's no visible fire. Democrats will look other way and pray their favorite for the 2016 presidential nomination is clean enough.

But it's all a shell game. If there are damning missives in Clinton's files, they're not likely to be found among the handpicked emails Clinton's team gave the State Department.

Don't get me wrong. There were lots of fun finds in a tranche released Tuesday: Clinton still used fax machines, top White House officials knew she used a private email address even though they said they didn't, and her reaction to a big Senate cloture vote on the Affordable Care Act was "Finally!!!"

There were also a few more disturbing nuggets, most of which center around who sought and got access to Clinton, or who tried to get access to her. In one note, Cherie Blair, wife of Tony Blair, tries to broker a meeting between Clinton and a senior Qatari official.

But don't expect anyone to find a needle of serious wrongdoing in the haystack of 55,000 pages of Clinton emails that State is making public. I don't say that because Clinton is above reproach. I say it because these emails are a distraction, a haystack from which any needles may already have been removed.

There's another set — or at least there was — on a private server at Clinton's house. Clinton unilaterally decided which of her emails belonged in the public domain and which were personal. Then she wiped her server clean. You can almost imagine Clinton having a good belly laugh at the scores of reporters who are now poring through the documents she handed over without a fight. Sometimes, we can't tell the difference between steak and a chew toy.

Back up a minute. Explain this whole email server controversy to me. I couldn't hear the news over the commotion of Killer Mike endorsing Bernie Sanders.

The email controversy boils down to one central question: Did Clinton keep personal control of her work email — and wipe her server — to hide anything that would have hurt her legally or politically? Related questions about her handling of email have been raised, but that's the heart of the issue.

It's instructive to lay out the basic components of the story before rendering judgment.

Shortly before she went to work in the Obama administration, Clinton decided to use a personal email account connected to a server at her private home in upstate New York. It's not unusual for federal officials to maintain both government and personal accounts. But Clinton chose not to use a government account at all. Both her official and private correspondence went through her personal account. That effectively prevented the State Department from having access to her email.

In October 2014, State sent a letter to former secretaries of state asking them to turn over personal email related to official business. Clinton complied, at least in part, early in 2015, sending 55,000 pages of email to the department.

In March 2015, the New York Times reported that Clinton had exclusively used her personal email account. That helped explain why Freedom of Information Act requests from Gawker and other media outlets seeking Clinton emails, including some that already had been revealed by a hacker, were rejected on the basis that State didn't have them.

The system Clinton set up was unorthodox, to say the least, and some experts on federal public records laws and regulations believe that, even if Clinton didn't break the rules, she skirted them, as Politifact reported.

"While Clinton may have technical arguments for why she complied with each of these and the other rules that have been discussed in the news, the argument that Clinton complied with the letter and spirit of the law is unsustainable," said Douglas Cox, a law professor at City University of New York who studies records preservation.

Federal officials don't always hit the mark perfectly, but the basic firewall separating government business from personal affairs is not a hard concept to grasp. In the past, Congress has investigated federal officials who were accused of playing games with their email to avoid having communications archived in public records. For example, top White House aides in the Bush administration used email accounts hosted on a server owned by the Republican National Committee and got in hot water for it.

(For that reason, the irony of the RNC attacking Clinton over her personal email server is pretty rich.)

The press conference that raised more questions than it answered

After the Times report and follow-up stories by other news outlets, Clinton held a press conference at the UN headquarters in New York. There, she said that she had turned over all of her work-related email to the State Department and wiped her server of emails she described as personal in nature. She was the arbiter, then, of what belonged in the public domain and what did not.

Since then, the House Select Committee on Benghazi has been trying to show that she didn't actually give State all of her work-related email in an effort to open up the question of what was destroyed and whether there's any way to see it restored.

Last week, the State Department acknowledged it did not have in its files all or part of 15 documents produced for the committee by Sid Blumenthal, a Clinton friend who emailed her memos about the state of affairs in Libya. The Blumenthal emails that State didn't have in its records were pretty similar in nature to others that Clinton gave to State and that State gave to the committee. But, the discrepancy raised the question of whether Clinton had withheld work email.

Her spokesman, Nick Merrill, reiterated that Clinton had given all of her emails concerning official business to the State Department.

The Republicans can't be trusted wrong. Clinton can't be trusted. We need a ref.

Like most Washington controversies, the Clinton email case can be impenetrable. But there's an easy solution to this one: Clinton should give her server and any other relevant material to an independent third party to review if any of the information can be salvaged and if any of it truly belongs in the public domain.

I have no idea what was withheld. Maybe there's stuff that's damaging. Maybe there's stuff that's just embarrassing. Maybe both, maybe neither. All we know is that Clinton went to some pretty extreme lengths to preserve her ability to separate the piles without interference from civil servants. She set up a unique system for handling email before she started her job. And she knows better. She graduated from Yale law, worked on a committee that investigated Watergate and survived the document-production bonanza of the Clinton White House years. She understands the legal view of spoliation of evidence: if you destroy something, it is presumed that it was detrimental to your case.

And yet it's hard to blame Clinton for being a bit paranoid about her paper trail. It turns out — gasp! — that Republicans in Congress are out to get her. They've set up a whole special committee to investigate her while she runs for president. It was created under the auspices of a probe into the 2012 terrorist attacks in Benghazi but has mainly focused on trying to hurt Clinton and the Democratic Party heading into the 2016 election. She was right to anticipate that someone would come looking for her records, and that they would be motivated more by politics than the public interest.

The result is Clinton and the Republicans are trapped in a poisonous, self-perpetuating cycle. Republicans believe Clinton is secretive and withholding so they launch endless fishing expeditions to catch her in scandals, Clinton protects herself by doing things that make her look secretive and withholding and further inflame Republican conspiracy theories about her. Rinse, repeat.

But for Republicans, the strategy is paying off: most Americans now say they don't believe Clinton is honest and trustworthy.

Republicans can't be the arbiters of which of Clinton's communications belong in the public domain — an exercise that would surely be used to wreak political damage rather than serve the public interest. Benghazi Committee Chairman Trey Gowdy already has proved himself to be a partisan middleweight and a legal lightweight. Neither should Clinton be the one to decide which of her emails are public. She's leaned far too heavily against disclosure and compliance, both as first lady and as secretary of State.

At best, Clinton created a political maelstrom for herself — and for a Democratic Party that seems inclined to nominate her for president. At worst, she robbed the public of information that could be used to evaluate her merits and deficiencies as a candidate. It's entirely possible that she did both. And none of that bodes well for transparency in the presidency if she's elected.

The answer is for Clinton to hand any remnants of the second set of documents to a disinterested third party to determine what belongs to her and what belongs to us. Gowdy's committee doesn't deserve her records, but the public does.

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