Technologist - The FindLaw Legal Technology Blog

Emailgate -- Here We Go Again!

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

Long before votes were cast for the 2016 Presidential election, this blogger discussed how Hillary Clinton's government-related emails that were sent and received on private servers could become a thorn in her political side.

Why?

Because government records must be maintained as government records so, among other reasons, they can be open and available to public review. Indeed, laws like the Freedom of Information Act maintain that to have a vital and truly functioning democracy, those who govern must be accountable to the governed; the workings of government must be transparent pursuant to "sunshine" laws. Sunshine is the best disinfectant when it comes to government affairs.

Emailgate Part 1

When the workings of government are kept private, then it becomes less possible for the citizens to know, as they are entitled to know, "what the government is up to," as has been held by the United States Supreme Court.

In the wake of revelations that some of Hillary Clinton's emails pertaining to her work as Secretary of State were sent and received on her private email servers and not through official government channels, there was a tremendous outcry by her opponents. They seized on this email controversy, and at some rallies there were chants of "lock her up, lock her up."

In response, Candidate Clinton ultimately apologized, she turned over tens of thousands of emails from her private servers, and she also said that her practice actually was a practice that had been utilized by others who had proceeded her.

No presidential candidate is perfect, and Candidate Clinton's supporters argued that the email controversy was a tempest in a teapot, that Ms. Clinton performed very well as Secretary of State and as a United States Senator, and that she certainly deserved to be elected President. They also argued that this particular controversy paled in comparison to the many suggested scandals surrounding the opposing presidential candidate.

Ultimately, that opposing candidate, Donald Trump, became President, and Ms. Clinton did not. Even though she had won the popular vote, he had earned the requisite number of Electoral College votes.

Ms. Clinton has not been locked up in the wake of her email problem, but recent reports have surfaced that President Trump had wanted her to be prosecuted after he was elected. Reports state that others in the administration prevailed such that prosecution efforts were not initiated.

End of story? No!

Emailgate Part 2

As it turns out, recent reports also have uncovered that Ivanka Trump, the daughter of the President, sent and received government-related emails while working in the White House and while using a personal email account.

Indeed, according to the Washington Post, "Ivanka Trump sent hundreds of emails last year to White House aides, Cabinet officials and her assistants using a personal account, many of them in violation of federal records rules, according to people familiar with a White House examination of her records ..." Continuing, "Some aides were startled by the volume of Ivanka Trump's personal emails -- and taken aback by her response when questioned about the practice. She said she was not familiar with some of the details of the rules, according to people with knowledge of her reaction."

Of course, ignorance of the law is not an excuse. Plus, it is hard to imagine ignorance given the level of condemnation of Ms. Clinton's email practices by Ms. Trump's father.

When interviewed, Ms. Trump sought to excuse her email practice by stating that she had not deleted any of the subject emails, while Ms. Clinton had delete some of her emails. Yes, to the extent emails that pertain to government affairs are deleted, that is not good. But that still does not explain away what now seems to be the fact that like Hillary Clinton, Ivanka Trump utilized private email to conduct government business. This is beyond ironic, given the prior "lock her up chants" by Ms. Trump's father's supporters.

The bottom of line of this particular blog is not to favor one side or the other here. The point is to underline, underscore, and highlight that government records must be treated as government records across both sides of the aisle. And, political dialogue should become more civil and less acrimonious, especially when politicians should be living in glass political houses. Government affairs should be transparent -- and condemning one side for practices that occur by both sides ultimately will have a ricochet effect.

One final obvious point - politicians are entitled to use personal email to communicate about private matters. They are entitled to private lives. The foregoing relates to government-related communications.

Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Related Resources: