On paper, New Jersey Governor Chris Christie and former Secretary of State Hillary Clinton could not be more polar opposites. Yet when it comes to their personal cyber-space etiquette, they have a lot in common. Both Christie and Clinton have used private communications like texts and emails to conduct government business and in the process looped their top aides into the dubious practice.
In business, keeping two sets of books is usually illegal. Should governing be different?
In deciding to use private email and text accounts, both Christie, Clinton and their staffs hoped to retain command and control of their story line. Who wouldn’t want to be able to edit your own narrative? But it's trusting in the judgment of others, like the press and the public, that is the distinction between history and vanity.
New Jersey and the United States have pretty robust laws crafted to promote official document retention and government accountability and transparency for the public and the press. The Federal Freedom of Information Act , passed in 1996, and New Jersey’s Open Public Records Act , passed in 2002, were both rooted in the core democratic principle that government had a moral obligation to retain its records documenting its deliberations and that the public had a right to access them.
In the case of former Secretary of State Clinton, who exclusively used a private e-mail account and server, it was entirely up to the former Secretary, and those in her employ, to decide after she left government service just what she wanted preserved as a retrievable public document.
After Clinton’s disclosure. Congressman Trey Gowdy (R-SC), who chairs the House Select Committee on Benghazi, requested the former Secretary of State turn over her private server to a “neutral, detached and independent third party” to identify which e-mails were responsive to Gowdy’s subpoena.
After granting Clinton a two week extension to respond, Politico reported her Attorney David Kendall let Gowdy know that the hundreds of pages already in his Committee’s possession would have to suffice and that the entirety of Clinton’s e-mail on her private server from her period as Secretary of State had been deleted.
“While it is not clear when Secretary Clinton decided to permanently delete all e-mails from here server it appears she made that decision after October 28, 2014 when the State Department asked her to return her public record to the Department,” wrote Gowdy in a statement.
While tactically the decision by Secretary Clinton to maintain an iron grip on her electronic communications gave her exclusive control over them, it now has the political debate fixated on her past behavior and what, if anything, she might be hiding as opposed to what kind of future a Clinton Presidency might mean for the nation and the world.
For Governor Christie the deletion of a string of private text exchanges he had with top aide Regina Egea on December 9, 2013 at the height of the Bridgegate intrigue has been under-reported on, by comparison. WNYC reported the deletions were missed entirely by outside counsel Randy Mastro retained by Christie to internally “investigate” Bridgegate.
At the time of the generation of the now disappeared text exchanges, Egea was monitoring what turned out to be the blockbuster testimony by Port Authority officials in front of the state legislative committee investigating the George Washington Bridge lane closures that caused a traffic coronary in Fort Lee. Senior Port Authority officials testified under oath that, contrary to past representations made by Christie’s Port Authority point men Bill Baroni and David Wildstein, and Christie himself, there was never an actual traffic study being conducted at the time of the lane closures.
Under oath Egea told a legislative panel that she had texted the Governor once during that explosive Port Authority testimony but said she could not recall if the Governor responded. The AT&T metadata obtained by the legislature shows not just one text but a dozen exchanges between the Governor and Egea.
While the internal probe of Bridgegate performed by Mastro for Christie offered the Governor an ‘exoneration’ it remains a flawed investigation that did not include interviews with the key players like Bridget Kelly and David Wildstein whose private e-mails presaged the traffic tie-ups in Fort Lee.
But the Mastro report did call out the alleged GWB plotters for using their personal e-mail and texts “in order to conceal their acts.” Moreover, Mastro noted that his investigation showed “that the use of personal e-mail accounts to conduct and to discuss official government business was fairly routine” in the Christie Administration.
“The use of personal e-mail accounts and electronic communications presents a host of legal and practical challenges,” the Mastro report warned. Such practices Mastro warned “could circumvent OPRA” and would “risk breach of security and confidentiality.”
When asked recently about the mysterious Christie and Egea text deletions the Governor’s press office had no direct response but forwarded an exchange Governor Christie had with a reporter during his last monthly call in radio program. Christie was asked to comment on the controversy over Clinton’s use of private e-mail by public officials.
“You know fact is there is always going to be a story out there about folks— Secretary Clinton or others. My answer is that people should follow the law,” said Christie.
Later in the same interview the Governor said “there’s no law that requires you to do state business on a state email account.” But Christie added, based on recommendations from outside counsel Mastro, state employees had been instructed to forward whatever private e-mails they generate involving the public’s business to their state e-mail account.
Experts say that’s what they should have been doing all along.
“We have no idea how big the universe is of private e-mails and texts exchanged by the Christie inner circle that would be relevant to our inquiry,” says Assemblyman John Wisniewski who chairs the New Jersey Legislative Select Committee on Investigation. “There is no justifiable reason to use private e-mail to do official business. This is a core part of the debate over Bridgegate.”
“The use of personal e-mails used during normal business hours to discuss political matters was meant to conceal what they were actually doing while working on the taxpayers time,” says Wisniewski.
Ed Barocas. legal director with the American Civil Liberties Union of New Jersey says the use of private e-mail and texts by state officials conducting state business remains “contrary to the spirit of our Open Records Act” and can’t help but result in “violations of the Act and public record retention requirements.”
“This had been an issue for years and Bridget Kelly brought it to a head,” Barocas says noting the retention of public records can really break down when someone that has been using private e-mail to do public work leaves government service. “Did the Christie Administration ask Bridget Kelly before she left if she had any additional private e-mails that needed to be turned over as part of the public record?”
The Christie press office did not respond to that specific question.
“Having public officials use private e-mails puts archivists and keepers of the public record who are responsible for responding to open record requests in a very difficult position because they have no way of knowing what these officials are doing,” says Adam Marshall, an attorney with the Reporters Committee for Freedom of the Press. “Can you imagine Washington or Jefferson saying lets burn these years of records?” asks Marshall. “When people don’t have access to what’s going on they lose faith in the government.”
Yet so far it appears cheating history this way is not a chargeable crime.