Columns » Ernest Dumas

Email gotchas



Electronic mail was just being invented when President Richard Nixon resigned, so he at least escaped whatever humiliation the revelation of his private thoughts to Bebe Rebozo or Henry Kissinger might have heaped upon him. The president's correspondence today would be exempt from the Freedom of Information Act, but Democrats or the Russians would hack Nixon's account and the Washington Post would carry the texts, including the bleeps that filled the Nixon tape transcripts.

Only recently have emails become the principal gotcha of politics and of litigation arising from political rivalries. Now they are the substance of every day's news, the intensity heightened by the celebrated troubles of Hillary Clinton.

Last week, lawyers representing two former allies of New Jersey Gov. Chris Christie who are facing trial for their roles in the George Washington Bridge scandal in 2013 dropped a bombshell on the court: the emails of a Christie staff aide to a campaign official expressing horror that the governor was "flat-out" lying at a press conference when he denied that he and his senior staff and campaign manager knew about plans to close bridge lanes and cause a colossal traffic jam to punish a mayor for not endorsing him.

A staff aide named Christina Renna sent the email to a Christie re-election official who had said Christie was handling himself well at the news conference. "Yes," she fired back, "but he lied. And if emails are found with the subpoena or emails are uncovered in discovery, if it comes to that, it could be bad." It has come to that. Christie escaped prosecution by insisting that he was unaware of his office's plot.

Here in electronic Arkansas, emails are again tormenting state Treasurer Dennis Milligan. Last week, a federal judge called a mistrial in a defamation lawsuit involving the Republican treasurer and his chief deputy, Jim Harris, after Harris clutched his chest like he was having a heart attack during some unfavorable testimony and went away in an ambulance. The plaintiff's lawyer said Harris faked the attack to get jurors' sympathy.

The trial evolved from a Harris email suggesting that an employee Milligan fired was mentally ill. Milligan's deputy told a television reporter to make an FOI request to Milligan for emails about the employee, which would turn up his email accusing the employee of mental health problems. If the reporter demanded the emails, then he and Milligan could not be accused of spreading the gossip.

Emails have been Milligan's political stock in trade. He beat Duncan Baird in 2014 partly by claiming that FOI'd emails indicated that Baird and other legislators pressured the Capitol night crew to allow a Capitol rooftop visit after a midnight legislative session. Milligan then had an exchange of messages with Baird threatening to expose the fact that a young woman was in the rooftop crowd with Baird. Harris, brother-in-law and former aide of Gov. Mike Huckabee, was in on that, too.

Huckabee worried about email disclosures, although the working-papers exemption of the FOI protected him. With a Democrat succeeding him in 2007, Huckabee took care that none of his office emails ever got revealed. He smashed all the computer hard drives in his offices. Hillary Clinton couldn't have gotten away with it.

In George W. Bush's day, they didn't yet need to. Secretary of State Colin Powell, like Clinton, used a private email server, as did top aides of Secretary of State Condoleezza Rice. A State Department audit showed that confidential documents moved over the servers. But that was perfectly legal as long as they didn't intentionally share top-secret missives with unauthorized people. Rice herself had both private and departmental email accounts but she said she rarely used them, instead using that ancient and torturous way of communicating with colleagues, the telephone. Telephones, as we know, are no more secure than emails or cables. The Russians or any shrewd and diligent technician can hack them like private or departmental servers, but revelation is harder.

Powell said he used the private server for the same reason Clinton claimed — convenience. But if both were honest they would admit that they did it for privacy from nosy reporters and nefarious political enemies invoking the FOIA. She should have admitted that she hated the idea that her bête noires, The New York Times and Washington Post, and her enemies might rake through her emails, as they had sought to do with her billing records, futures trades and travel-office doings.

Every law firm and smart business has an email policy: Don't utter a word you wouldn't want to see in the newspaper. If you want to be frank, pick up the phone.

Hillary Clinton now knows — maybe — that if she had been as shrewd as Condoleezza Rice she would be 65 percent in the polls.

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