Why Trump advisers using private email is a ‘very bad idea,’ according to an ethics lawyer

Politics

JUDY WOODRUFF: Private e-mails are back in the news this week, after multiple news reports disclosed that at least six advisers to President Trump have used them to discuss government business.

Of course, Hillary Clinton's use of a private e-mail server was one of the most frequent points of attack for the Trump campaign in the 2016 election.

PRESIDENT DONALD TRUMP: People have been — their lives have been destroyed for doing one-fifth of what you have done, and it's a disgrace. And, honestly, you ought to be ashamed of yourself.

This is bigger than Watergate. This is bigger than Watergate, in my opinion.

(CHEERING AND APPLAUSE)

VICE PRESIDENT MIKE PENCE: It's a serious mater, and we commend the FBI for reopening the case and following the facts, because, in America, no one is above the law.

JUDY WOODRUFF: Joining me now discuss these latest revelations is Richard Painter. He served as the chief ethics lawyer for President George W. Bush.

Richard Painter, welcome back to the program.

We should say that an investigation by the Justice Department was closed with regard to Hillary Clinton's use of a private e-mail server.

But now, with regard to this new information, what does the law say about the ability of people working in the White House to use their own private e-mail accounts?

RICHARD PAINTER, Former Associate Counsel to President George W. Bush: Well, they are not supposed to. And that's a violation of White House policy going back to the Clinton administration in their White House staff manual.

And in our staff manual, we made it clear, I made it clear, the Bush White House, that you're not supposed to do it. But people did. A number of political people were using Republican National Committee e-mail, and we got in trouble for that, got a lot of grief from the House Oversight Committee over that.

And there was a big flap. None of it was criminal. No one brought in the FBI.

And then Hillary Clinton made the same mistake, had her own personal e-mail server. And I think that was a stupid mistake. It wasn't criminal. That was blown way out of proportion, the Clinton situation.

Some people sent some classified stuff to her, and that's one of the risks you take when you use a personal e-mail, but, once again, no precedent for prosecuting somebody. And that was foolishness to blow that that far out of proportion. I don't know why the FBI took so long with it.

And now, of course, we see what's happening in the Trump administration. It's the same thing. It's a foolish thing to do.

This is not something that calls for criminal investigation, but it really is atrocious that we went through a whole election season trying to make a high crime or something out of what Hillary Clinton had done with her e-mail, which everybody else in the administration is well aware of, because they were receiving e-mails from her on a personal server.

It's a very bad idea. They shouldn't be doing it, but we shouldn't be accusing people of crimes and say, well, lock her up, and these political rallies where they're screaming and yelling, as if they're in Nuremberg, Germany, in 1933 or something.

It really is embarrassing for our country, how far this thing has been taken.

JUDY WOODRUFF: Richard Painter, remind us why these rules are in place saying to government officials, White House officials that they shouldn't use their private account.

RICHARD PAINTER: Well, there are two problems.

One is, you could lose the records. And the Presidential Records Act require the records to be retained. Now, since 2014, Congress has amended the statute, and it's now required that if you do use another account, you must copy an official United States government account, so the record is retained.

And that was after the Clinton episode. That's one problem.

The second problem is that someone might send you something that is classified. It's very foolish to send somebody something that's classified. It never crossed my mind that that would have happened in the case of Karl Rove's e-mail or any of the e-mail situations we had at the Bush White House, where personal or Republican National Committee e-mail was used.

But that's a big risk that you take if you are doing official business on a personal e-mail server.

JUDY WOODRUFF: The point you're making, among others, is that this is not a criminal act. It's not a legal problem.

So, given that, how serious are these disclosures, do you think?

RICHARD PAINTER: I think it shows the continuing disregard for standards of good judgment in this administration.

There are — there is evidence of some serious crimes in this administration, obstruction of justice and lying about contacts with the Russians, that I'm a lot more worried about than Jared Kushner's e-mail.

But, once again, I think that the attack on Clinton, particularly after the election, and what happened at that rally in Huntsville, Alabama, last week, that's a fundamental threat to our democracy, and we ought to be thinking about that and the totalitarian rhetoric, rather than worrying about the e-mail.

JUDY WOODRUFF: Well, and you're referring, of course, to the investigation into acts, alleged acts, that are under investigation by the special counsel, Robert Mueller.

It looks, Richard Painter, as if this new information has come out because Mr. Mueller and his team are asking the White House to turn over all communications, all the documents they have that could in any way be connected the this Russia investigation.

If it weren't for that, do you think it's possible this could have stayed secret for a long time?

RICHARD PAINTER: Oh, it could have.

I mean, as I say, we have had people use their personal e-mail in prior administrations. No matter how many times the ethics lawyers tell them not to do it, they go ahead and do it, and despite all of these risks.

But I have to say, once again, on the scale of things, this is not the big deal in terms of potential criminal activity in this administration. I think the sheer hypocrisy of it is important to note. But, once again, I don't think hypocrisy is anything new in politics, and certainly not for this administration.

But the Mueller investigation is, I think, going to uncover a lot. They have consistently lied about collaboration with the Russians, and it's clear they were collaborating with the Russians. We just need to find out whether that was legal or illegal. Now, if they're using personal e-mail, by the way, to cover up their illegal activity, that's a whole 'nother ball game.

But we don't know at this point that that's what they were doing.

JUDY WOODRUFF: And, again, all that is under investigation.

But, just finally, do you think this should be covered by a law, that it should be against the law to use private e-mail communications once someone works in government at any level?

RICHARD PAINTER: I think we should probably tighten up the law even further.

In 2014, after the Clinton episode, they did require you to copy the government e-mails. So, that is the law. It's not a criminal law, once again, but it is the law. And that's what they are supposed to do.

I hope that these six people did that, copied the United States government e-mail at the time they sent the e-mail. But we perhaps ought to tighten up the law even further, although I continue to emphasize that the whole e-mail thing for the past couple of years has been turn into a lot bigger deal than it really ought to be.

JUDY WOODRUFF: Well, Richard Painter, thank you for joining us once again.

RICHARD PAINTER: Thank you.

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