Maybe Hillary Clinton should never have left the Senate.
For days, the media has been dissecting Clinton's email habits from her tenure as secretary of State, with commentary from countless pundits, outrage from Republicans and nervousness from Democrats over their nominee-in-waiting.
If she were still a member of Congress, it would all be a moot point.
That's because lawmakers have nearly full control over who sees their emails. There's no legal recourse for the public to obtain these documents, as the Freedom of Information Act doesn't apply to the legislative branch. Emails sent by presidential hopefuls Ted Cruz, Rand Paul, and Marco Rubio in the Senate likely won't ever see the light of day.
The rules on lawmakers' email accounts that do exist focus more on their official addresses than on their personal, and they have little to do with transparency. House or Senate.gov accounts can't be used for campaigning or raising charitable donations, or other business or employment purposes, according to the House Ethics Manual.
"A member can use their official resources, including personal email, if they choose to for official House purposes at least as a general matter," said Rob Walker, former chief counsel for both the House and Senate ethics committees. "These are the differences, and I think when one steps from one world into the other you have to be careful to make sure you know that different rules may apply."
Clinton has come under fire in recent weeks for exclusively using a personal email address linked to a "homebrew" server for her work during her four-year tenure as secretary of State. When she assumed the post, her work emails became subject to public disclosure, obtainable through FOIA.
Some Clinton defenders have fired back by suggesting that the GOP members of Congress who have criticized her should avoid hypocrisy charges by releasing their own emails. Unsurprisingly, none have done so.
A select few Hill emails could reach the public's eye. At the end of each congressional session, committee chairs and elected officers of the House—such as the clerk, chaplain and sergeant-at-arms—are required to turn over "any noncurrent records made or acquired in the course of the duties of such officer," which go to the National Archives, according to the Rules of the House of Representatives. The two chambers govern just what exactly is kept and sent over to the Center for Legislative Archives at the National Archives, according to Richard Hunt, the center's director.
For at least 20 years, the Senate's records are kept closed. For at least 30 years, the House's records are kept closed. And that means most electronic records still are under wraps, making it impossible for the public to see just how many emails have been sent to the National Archives. Hunt says the center has more than 56 terabytes of data, which likely includes word processing documents, emails, and spreadsheets.
House and Senate members can generally use their personal accounts as they please. And sending emails on an official account for personal reasons must be for a minor, incidental purpose, like telling a spouse "I'll pick up the milk on the way home," Walker said.
Yet, the rules can be different when a member is under investigation. The Justice Department can attempt to acquire congressional emails, though it doesn't always work.
In 2006, Rep. William Jefferson of Louisiana, was embroiled in an investigation for allegedly accepting bribes. One Saturday night, the FBI conducted a raid of his office inside the House's Rayburn building, taking papers and electronic documents. Experts were split on the legality of the raid, The Washington Post reported.
"In the Jefferson case, that process [of obtaining emails] was taking place," Elliot Berke, who was counsel to House Speaker Dennis Hastert and helped lead the chamber's position on the Jefferson case, wrote in an email. "The Justice Department simply got tired of waiting for the process to work itself out, and staged the raid "“ which was ultimately determined to be unconstitutional."
The Jefferson case was complex because members are protected under the Speech or Debate Clause, which shields them from arrest related to their legislative work in office, except in cases of treason, felony, or a breach of the peace.
But Walker, formerly of both congressional ethics committees, has a best-practice strategy for members: Use official email for official business. It's clearer for the recipient. It's likely more secure. And it's protected under the Speech or Debate Clause.
"I think it would be prudent for member to use their official emails for official purposes," Walker said, "but I don't think it's absolutely required to be done all the time."
This article is from the archive of our partner National Journal.