Originally published by ANewDomain:

Will the revelation that Hillary Clinton used a personal email account – that, indeed, she never even had a .gov email account – derail her chances of being elected president next year?

Maybe.

How Hillary Messed Up

Under the Federal Records Act of 1950, which has been amended several times, “all government employees and contractors are required by law to make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.”

During his first full day as president in January 2009, President Obama directed federal agencies to preserve all emails relating to government business so that agencies could add them to paper and other non-digital records requested as part of Freedom of Information Act requests, subpoenaed by judges for judicial reasons, and for eventual transfer to the National Archives for study by historians.

Clinton served as Secretary of State between 2009 and 2013. So clearly her emails fell under the purview of the law.

It is difficult to imagine that, as a high-level politician and recent presidential candidate, Clinton was unaware of this requirement.

In 2007, the scandal over the Bush administration’s dismissal of eight US attorneys centered around precisely the same issue: the destruction of up to 5 million emails authored by Bush Administration and Republican Party officials, which were either lost or intentionally deleted because they weren’t sent using government email accounts.

Upon taking charge of the State Department, Clinton made the same exact move as the Bush people caught up in the US attorney scandal two years before.

Whereas Bush and Republican party operatives created a private domain, gwb43.com, in order to keep prying Democratic and journalist eyes out of their correspondence, Clinton’s staff registered the domain that she used, clintonemail.com, on January 13, 2009. That was one week before Obama’s inauguration, on the day of her confirmation hearings.

Millions of Americans go to work at new jobs where, as part of the standard human resources package, they receive a new company email account. This happens at countless federal, state, and city government agencies as well.

For some reason, however, Hillary Clinton not only never used her state.gov email address – she was never issued one.

Today the New York Times is reporting that:

… an examination of records requests sent to the department reveals how the practice protected a significant amount of her correspondence from the eyes of investigators and the public. Mrs. Clinton’s exclusive use of personal email for her government business is unusual for a high-level official, archive experts have said. Federal regulations, since 2009, have required that all emails be preserved as part of an agency’s record-keeping system area in Mrs. Clinton’s case, her emails were kept on her personal account and her staff took no steps to have been preserved as part of State Department record.”

In effect, she has erased a significant portion of the history of the foreign policy of the United States of America.

As a result, reports the Times, “political groups and news organizations said that requests for records related to Mrs. Clinton have repeatedly gone unanswered.”

Hillary’s Defenders’ Talking Points

Clinton surrogates took to relatively friendly airwaves on MSNBC and elsewhere yesterday to try to deflect accusations that range from the generally unpleasant – she is sneaky, has something to hide, and/or thinks that she is not subject to the same laws as other Americans – to the downright conspiratorial – somewhere in those deleted private emails is the smoking gun of the 2012 attack on the US consulate at Benghazi, Libya.

Talking Point 1: Clinton did provide more than 55,000 pages of emails in response to congressional and Freedom of Information Act requests.

My take: not terribly convincing.

Though an impressive number, most Americans will think about it a second before realizing that they themselves generate thousands, if not tens of thousands of electronic communications per year, and that a high-powered Secretary of State like Hillary Clinton is no doubt responsible for many more times than that. The question isn’t how many emails she has turned over, the question is, where are the rest of them?

Talking Point 2: She cc-ed her staffers on many of the emails, and those staffers had government email accounts whose records were preserved.

My take: totally unconvincing.

At best, this looks like sloppy disregard for the historical record and the letter of the law, not to mention the understanding that she is a public servant who works for the public, and that the public has the right to know what she was up to during her tenure in office. At worst, it comes off as a disingenuous ploy to cherry pick what she reveals and what she chooses to hide.

Talking Point 3: Secretary of State Colin Powell, her predecessor under George W. Bush, also used a private email account.

My take: lame, but might be enough to convince some.

Powell served between 2001 and 2005, ancient history in the timeline of technological development. By 2009, even insulated, relatively elderly people like Clinton were routinely using email and were aware of the rules and regulations surrounding it. Besides which, as pointed out earlier, federal regulations changed in 2009.

Talking Point 4: Both the Daily Beast and the Democratic media watchdog Media Matters criticized the New York Times, claiming that the Federal Records Act wasn’t formally amended to include email until Obama signed a change in 2014, which was also when the State Department told its employees to preserve all their emails.

My take: if anything can save Clinton, this is it.

Complicated scandals have trouble gaining traction with a distracted citizenry. It’s hard to take on a politician with something like Iran-Contra, which involved money laundering and the Sultan of Brunei. Breaking into Democratic Party headquarters and lying about it, on the other hand, was something that the American people could understand. If Clinton’s defenders managed to muddy the waters by turning this into an arcane debate over the difference between a federal regulation and a federal law, and what qualifies as notification, people may soon get bored and turn to something else.

What Happens Next Year

It is beyond difficult to imagine that the Democratic Party will consider an alternative to Hillary Clinton as its 2016 presidential nominee. At this late date, it would be close to impossible for a rival – currently, no serious contender has presented himself or herself – to raise the money and builds the brand awareness necessary to go against the Republicans in the general election in the fall. So unless this turns really worse really fast, she probably doesn’t have to worry about a fellow Democrat.

One caveat: the real shocker here is that someone with so much political experience, especially fending off political attacks directed at her and her husband, allowed herself to play fast and loose with even the appearance of an ethical or legal breach.

As political experts say, this betrays a surprising lack of discipline. That’s the part that is shocking the establishment. In other words, if this could happen, what else might occur between now and the end of the year?

Assuming that Clinton weathers the storm, the real implications here are for her fall 2016 challenge from the Republican nominee, whoever that is.

Clinton will already be carrying the burden that is also her great advantage: her surname. Presidential elections are always about looking forward; electing another Clinton would be about restoring the past. Further complicating the challenge for her and her political team is that, as a Democrat, making the small-c conservative case for her – be afraid of the Republican, I won’t be as bad – doesn’t come naturally to the party’s liberal base voters.

And those liberals aren’t excited about her in the first place, due to her pro-Republican votes on free trade and the Iraq war, among other things.

The big trouble for Hillary is that Emailgate feeds into an existing negative narrative: that she feels entitled, that she is sleazy, that she is hiding something, that this is about her and not about us, that she is above the rules. Forget Benghazi: this is serious scandal gold for the Republicans.

If I Were Hillary

If I were advising Clinton, I would get ahead of this.

Even if she’s right – that no one told her, and she had no idea that, she was supposed to preserve her emails – she shouldn’t say so. What she should do is issue a semi-apology: “Honestly, I’m not really sure whether I was supposed to save all those emails or not. My top priority was security; I didn’t want hackers to get into national security secrets. But the main point is, public records belong to the public and need to be preserved whether they exist in analog or digital form. I will work with my staff and with federal officials to try to find every single email I wrote during my term as Secretary of State, and of course turn them over to the National Archives. I am proud of my record, so of course I have nothing to hide.”

It might not hurt to show a sense of humor that also might shore up her liberal base. Something along the lines of “maybe I’ll ask my friends at the NSA whether they kept any of my stuff.”