The Clearest Part of the Clinton E-Mail Story So Far

There's a paradox in the former secretary of state's request that her former department release her emails.

on November 21, 2014 in New York City.

Photographer: Spencer Platt/Getty Images

There has been no shortage of disagreements over whether Hillary Clinton was justified in using a private e-mail account to conduct official State Department business, nor theories on whether doing so violated the Federal Records Act. There are some things we know, including that Clinton handed over 55,000 pages worth of electronic correspondence to the State Department, and things that we don't, including the number of messages from her account that were not included in that trove.

For all that has been written about the e-mail controversy, there is one thing we know for certain: There will be no final moment of closure on the issue.   

Since Clinton set up her own "homebrew" server, and sent e-mails from a private account, there is no way for an outsider to tell whether someone deleted messages deemed too secretive to see the light of day. Nor is there any way to tell whether those messages are gone forever, since they were received by another person.  Many of the 55,000 pages of electronic correspondence Clinton says she has turned over to the State Department were sent to agency employees, meaning they have been recorded on the government server, but many were not. Even when it comes to the correspondence archived on the State Department server, many will remain redacted or withheld for a variety of security and privacy considerations, forever ensuring that a window of doubt will remain open as to what they contain. 

Adding fuel to the conspiratorial fire, our current secretary of state, John Kerry, rolled his eyes Thursday at the prospect of sorting through the e-mail dump. 

"I think we have all the ones that are state.gov, which are appropriately the ones in the purview of the department, but let me check on that when I actually have time to pay attention to such an important issue when I get home," Kerry said while in Riyadh, Saudi Arabia. 

That isn't to say that partisan critics and non-partisan watchdog groups demanding answers from Clinton are not justified. It's that they may never be fully satisfied. 

While seasoned political advisers like David Axelrod may be right when he states that Team Clinton is “allowing this story to fester in ways that are unhelpful,"  the reality for the former secretary of state is that by opting for a private e-mail operation, she has not only appeared to violate State Department rules in place since 2005, she has left herself open to endless conspiracy claims. 

The Sunlight Foundation, a non-profit that promotes government transparency, has a number of questions for Clinton on the process she employed in reviewing her e-mails and deciding which ones to turn over to State. 

How many advisers worked on this project? What are the names of these advisers? Who chose them? What are their backgrounds? What qualifications do they possess that made them suited to this task? Are they familiar with the provisions of the Federal Records Act, and the responsibilities of officials covered under the act?

What criteria where they given for determining whether an e-mail should remain secret or be turned over to the State Department? Were these written criteria, and if so, will they be made public?

For every answer to those valid questions, however, 10 more are likely to spring up.  And while the House Select Committee on Benghazi may claim it is looking for a smoking gun that proves Clinton attempted to cover up her department's response to the Benghazi attacks, it may or may not actually exist. 

Is Clinton the first secretary of state to use private e-mail and, as a result, control what messages he or she hands over for review? No. But that fact does nothing to minimize the skepticism that something is being hidden from view. "The last time we saw a high government official seeking to edit their own responses was President Nixon, and at least then he enjoyed the benefit of executive privilege," Representative Peter Roskam, an Illinois Republican and a member of the committee, told reporters Thursday. 

While Clinton may attempt to shift responsibility for releasing the e-mails to the State Department, as she did with Wednesday night's tweet, the fact remains that State has received what had already been filtered by the prospective presidential candidate's staff. 

Just like that, Clinton's Twitter icon has been inverted—from a hipster meme to a political liability and ever-present reminder of questions still outstanding about her obsession with privacy. 

Adding to what has, at times, felt akin to one of Zeno's paradoxes, is the question of who owns the e-mails sent on behalf of the government on a private e-mail account that utilized a private server. 

“There really is not a way to force an agency to turn those over, because they are not under the agency’s control,” Patrice McDermott, executive director of OpentheGovernment.org, told Bloomberg Business this week. “They are not government records until they are turned over.” 

In the end, absent the stray, unfiltered e-mail that actually proves something about Benghazi or some other topic still off the political radar, the scandal that Republicans will want to keep on the boil, and that Democrats will wish would disappear will have no actual end, because there is always the chance that an incriminating document was lost, or trashed, along the way. 

Just as it was  during the Whitewater investigation in the 1990s, the viability of a Clinton presidency will depend less on evidence of actual wrongdoing greater than having violated protocol than on a matter of trust. 

Before it's here, it's on the Bloomberg Terminal.
LEARN MORE