You know a conservative’s getting a bad rap when a major paper like WaPo feels compelled to ride to his defense. Go read this sensible reply by Amber Phillips to last night’s Pence scoop by the Indy Star, which revealed that he used a private email account as governor. Nothing wrong with that per se — in fact, Indiana law requires officials to use a private account to conduct political, rather than state, business — but it’s bad practice at best for an official to discuss government matters on his private account, as Pence did in a few instances (e.g., receiving an update from DHS on arrests related to terrorism).
The reasons, as always with this sort of thing, are security and transparency. Security: A private account is more easily hacked than a state-secured one, as Pence found out firsthand when … his AOL account was hacked last year. Any government business discussed via a private server is at grave risk of ending up on some nefarious stranger’s hard drive. In fact, some of the emails on Pence’s AOL account were sufficiently “sensitive” that the current governor refuses to release them even now. Transparency: Email on a state-secured server is automatically preserved as part of the official record to make it accessible by the public. State business conducted on a private server isn’t unless the official takes steps to preserve it, which they don’t always do, whether inadvertently or deliberately. Pence says he hired a lawyer to review his AOL emails and to transfer any involving official business to the state archives, but that leaves the ball in his and his lawyer’s court to disclose what they see as relevant. With a state-secured server, disclosure is automatic.
So yeah, this is bad form by Pence. But there’s a reason people separate offenses into categories like “misdemeanors” and “felonies,” and I use the word “felony” here advisedly in reminding you what Hillary Clinton did. Phillips:
Similarity No. 2: Both politicians point to the fact that their predecessors used private emails for work
But: Clinton exclusively used her private email account for work, something no secretary of state had done before. There’s no evidence Pence exclusively used his private email account for work, nor that his use of it was any more or less than past governors of Indiana…
When Clinton was asked to hand over her private emails to the State Department, she withheld some 50 percent because, she said, they were personal in nature. But an FBI investigation found “several thousand work-related emails” were not among the batch she handed over to the State Department.
The transparency and security issues in Clinton’s case were egregious, beginning with the fact that as a cabinet member she was dealing with actual U.S. state secrets. She didn’t just use a private email account, she set up a private server to make sure that her control over correspondence from that account would be total. That meant, at least in theory, that she could withhold any correspondence she wanted from public disclosure. And, go figure, the entire server ended up being wiped after public controversy about it had erupted, forcing the FBI to recover material on it — which included thousands of emails that turned out to be work-related but hadn’t been disclosed earlier by Clinton. (Of those thousands, three were classified.) The server wasn’t very secure either. James Comey couldn’t prove that it was hacked but allowed that it was possible. Less cautious experts claimed it almost certainly had been. Of the 30,000 private emails Clinton eventually turned over to State, eight email chains contained Top Secret information, 36 chains contained Secret info, and thousands of emails contained classified information. Comey famously acknowledged last July that Clinton and her team had been “extremely careless” in handling classified info the way they did, a standard that was enough to warrant prosecution for a felony.
Oh, and of course, she lied about what she’d done, again and again and again.
Simply put, Clinton gambled with far more dangerous information than Pence had access to and she did it systematically, for the apparent purpose of deliberately shielding all of her official communications from public scrutiny. Which, of course, goes back to the great mystery of Comey’s decision not to recommend prosecution. There was no intent to mishandle classified information, he insisted in explaining why he wouldn’t endorse filing charges, dismissing the fact that the statute didn’t require intent. It was carelessness, albeit of an extreme variety. If you set up your own server for official communications, though, and you take no apparent measures to make sure that exceptionally sensitive information doesn’t end up on it, how is that not intent? Trey Gowdy had a memorable exchange with Comey about that at a House hearing last year, wondering if, by the FBI’s reckoning, the only way to prove intent would be if Hillary were caught on tape announcing “I hereby intend to mishandle classified information.” Intent is inferred based on one’s actions, and everything in Clinton’s case pointed to it. Virtually nothing points to intent to mishandle information of far lesser sensitivity, at least based on what we know, in Pence’s case. That’s the difference.