One half of the Smart Guys, Erwin, a man of the left, is very troubled by the news of 50,000 emails, and wants an explanation for why she violated the law.
HH: Joined now by Erwin Chemerinsky, dean of the University of California, Irvine law school, half of the Smart Guys, John Eastman unavailable today. Erwin, welcome, it’s always good to talk to you. The big story of the afternoon, of course, is former Secretary of State Hillary Clinton avoiding the Government Records Act for four years, sending 50,000 emails that were in a private account. What questions does this raise in your mind?
EC: I think it raises serious questions. There’s a federal law there. It’s a federal law that’s really important. It’s how we assure that matters are public record, and that they’re available at the time and also for history. And I think there needs to be some good explanation for why she violated the law here.
HH: Now Loretta Lynch’s nomination is pending before the Senate. Would it be appropriate, in your view, if a Senator were to put a hold on that nomination pending the reopening of her hearing to get her commitments as to the investigation of these emails?
EC: I don’t think so, because I don’t think this has anything to do with Loretta Lynch. And I don’t think that holding up her confirmation is appropriate. I think that the Senate and the House have their own power to investigation the State Department, and to investigate what Hillary Clinton has done here. And I also think it’s something that’s going to get a great deal of media attention. I wouldn’t tie the attorney general confirmation to that.
HH: Do you think a special prosecutor is necessary?
EC: I don’t know enough. I believe in special prosecutors. I believe that they’re very important in terms of independence of investigation. This was the Secretary of State under this President. My presumption would be if there is evidence of a crime, then I think there should be a special prosecutor. But I don’t want to make that judgment without knowing more than I do at this stage.
HH: Now Erwin, prima facie, if you don’t have any official emails, and you’ve got 50,000 unofficial emails, what does that suggest to you? Again, you’re not rendering a judgment or anything like that. But just what does that suggest to you?
EC: It’s enormously troubling. I think this is one where you and I would be in agreement. I really believe in the laws that require that everything be a matter of public record, subject to necessary exceptions. It’s essential for freedom of information, it’s essential in terms of historical research. I want to know why was it that she didn’t comply with this law. I want to know more about this law as well in terms of what the criminal penalties are before saying there should be a special prosecutor. But it sure raises the strong presumption of something was done wrong.
HH: Are you glad, then, Erwin, that the Benghazi Select Committee was in fact empaneled and endures, because absent their work on the Select Committee, we would not have had this come to light.
EC: Well, I think the Benghazi investigation was largely misguided. I don’t believe that there was wrongdoing done there. But I think it is something that is good that has come to light, and so if this is how it came to light, I’ll praise that aspect of the investigation.
HH: Now obviously, she sent a lot of emails to a lot of people. And you know and I know when we get an email, if it says Chapman.edu or if it says UCI.edu, we know where it’s coming from. Everyone at the State Department that didn’t get, you know, State.gov, knew she wasn’t using State Department email. Do you think they are part of the question path here as to find out why no one threw a flag and said hey, Madame Secretary, you’ve got to serious?
EC: Well, I want to know much more about what the law requires here. I want to know much more about why she chose not to use government email. I’m a government employee. I know that anything I do on my UCI email is a matter of public record through the California Public Records Act, it’s available unless it fits into one of the exceptions. I also have a private email that I use for personal things, which I’m allowed to do, of course. I wouldn’t use it for school business. But I would imagine that any government employee would know this.
HH: And I would imagine that if in fact there were no Erwin Chemerinsky emails, none, zero, how long have you been dean, Erwin?
EC: I’ve been dean, this is my seventh year.
HH: And so if there were no Erwin Chemerinsky emails for seven years, we would have to conclude you’d set out to purposefully evade the Public Records Act of California, wouldn’t we?
EC: No, but there’s a difference. There’s no requirement that I know of in California that requires me to use UCI email. Now once the email is there, it’s a matter of public record. But I don’t know of any law that says I have to use the UCI email system. It may be different here, from what I understand, from federal law. Now I do use the UCI email, and I’m glad for my email to be public record unless it’s about personnel matters or things like that. But I think there’s a difference in terms of the historical records requirements at the federal level compared to what’s imposed on state employees.
HH: And a national security side. Encryption is very necessary for the secretary of State, and we’ll leave that for another day.
EC: Oh, of course.
HH: Let me ask you about the Supreme Court arguments today. Did you draw any conclusions from the reports of what happened before the Court?
EC: I have not had a chance to look at the transcript. I don’t think that we can tell what the Court’s likely to do about this. I think one of the most important reasons is that Justice Kennedy, who is always the swing justice, asked questions that could point in each direction. One the one hand, he asked questions that seemed to indicate that he was focusing on the plain language of the statute, which says if it’s a tax credit if it’s a state-established exchange. On the other hand, he was very concerned about the consequences of that, what it would mean for millions of people who would then be without health insurance, and what it would mean for the state governments that would have to pick up the cost. Justice Alito said couldn’t we assume that Congress will do a fix? Justice Scalia even said it would be likely that Congress would do a fix. I don’t know if the Supreme Court can ever base its decisions on that. And in this context, that seems unlikely and unrealistic.
HH: I also caution some of my conservative friends, Erwin Chemerinsky, and I’d like your reaction to this, that Justice Kennedy, though he voted to strike down Obamacare as unconstitutional, now has a burden of stare decisis upholding the law two years in. Do you think that will matter at all rather than some people who expect he will vote to hurt the law in any way because he wanted it struck down originally?
EC: I don’t think you can predict anything from his vote in 2012 for how he’s going to vote on this issue. That was a Constitutional question about whether the individual mandate was within the scope of Congress’ power. This is a statutory question. Can people who purchase insurance through a federally-created exchange get a tax credit? They’re so different, I don’t think you should predict one to the other.
HH: But you don’t think in the back of the minds of the four justices who voted to strike it down there isn’t at least an obligation to explain to the public how they could say a law was unconstitutional and yet rule that it was statutorally written so badly that they’ll repair it immediately?
EC: I think that’s going to vary among the conservative justices. I would expect that some of the conservative justices would be very happy to see the law gutted, which would happen if those tax credits aren’t available to those who purchased through the federally-created exchanges. I read Justice Alito and Justice Scalia’s questions, it’s clearly pointing in the direction that’s where they want to go. I think Justice Kennedy, though, is much more concerned about the practical consequences of that, and the question will be how does that influence his vote.
HH: 30 seconds, Erwin, the Chief Justice said nothing today. Are you surprised by that?
EC: I am, especially because he was the pivotal vote in upholding the Affordable Care Act three years ago. It’s obvious he’s holding his cards even closer to the vest here than ever before.
HH: Erwin Chemerinsky, dean of the University of California, Irvine Law School, thank you, and fascinating conservation about both the Emailgate, or what I’m calling E-Pot Dome, and the case today in front of the Supreme Court. Thank you.
End of interview.