Glenn Harlan Reynolds

Hillary Clinton’s problem is that she isn’t as smart as Henry Kissinger. And I’m not talking about her performance as secretary of State (though I could be) but rather about how she got into her festering, possibly criminal mess with insecure emails and an unauthorized private server.

Henry Kissinger is smart. When he left as secretary of State, he wanted to make sure that his communications (it was phone records then since email didn’t really exist) weren’t available to political enemies under the Freedom of Information Act. That was tricky, since FOIA is supposed to be biased in favor of disclosure, with the presumption being that anything that isn’t exempt by law must be turned over on request, with close calls going to the requester.

To defeat this, Kissinger — without consulting the National Archives or a similar office at the State Department — removed his phone call records from the State Department to the Nelson Rockefeller estate; less than two months later he donated them to the Library of Congress, under agreements that the records would not be made public for many years without the consent of the other parties to the calls, which was unlikely to be forthcoming.

Several Kissinger critics, including New York Times columnist William Safire, and the Reporters’ Committee for Freedom of the Press, filed Freedom of Information Act requests aimed at obtaining these materials.

To make a long story short, the Supreme Court eventually held that when someone files a Freedom of Information Act request with an agency, the agency only has to furnish documents that are in its custody. Since the records were no longer in the hands of the State Department, it didn’t have to comply. And since the Library of Congress, as part of Congress, was not covered by the Freedom of Information Act, it didn’t have to furnish the documents either.

So Henry Kissinger is smart. And Hillary probably thought she was being smart by setting up a private email server outside the federal government’s control. People who filed Freedom of Information Act requests with the State Department would have no access to her emails because they weren’t “agency records.” Instead, they were Hillary’s private emails, on Hillary’s private server, over which the State Department had no control. (What was she trying to hide? Sleazy money-laundering deals involving the Clinton Foundation and foreign leaders? Buckraking for Goldman Sachs? We don’t really know, but the answer is probably: Everything.)

As Austin Bay notes: “Clinton lied when she told the American people she had permission to operate a private email system. She didn’t and she never sought permission. She tried to hide her personal server system because its entire purpose was evasion — evading federal record retention laws that promote government accountability and transparency. As for her claim that previous secretaries of State did the same thing? The report doesn’t find any indication that Madeleine Albright and Condi Rice made more than incidental use of personal email for government business.

The problem is, Hillary isn’t as smart as Henry Kissinger. She flat-out refused to use State.gov email despite repeated instructions to do so, and the recent State Department Inspector General’s report was damning. As intelligence expert John Schindler writes: “Any foreign intelligence service worth its salt would have had no trouble accessing Ms. Clinton’s emails, particularly when they were unencrypted, as this column has explained in detail. Yet, Hillary was more worried about the American public finding out about what she was up to via FOIA than what foreign spy services and hackers might see in her email. What she was seeking to hide so ardently remains one of the big unanswered questions in EmailGate. Hints may be found in the recent announcement that Virginia Gov. Terry McAuliffe, the former head of the Democratic National Committee and a longtime Clinton intimate, is under FBI investigation for financial misdeeds, specifically dirty money coming from China.”

But whatever Clinton may have been hiding, the hiding itself was likely a violation of laws governing handling of classified information. The FBI is currently investigating that behavior as well although Clinton and her allies are trying to obfuscate — Hillary's campaign called it a “security inquiry” rather than an investigation, leading FBI Director James Comey to say that no, it’s an investigation. The result is that Hillary, still fighting hard for the nomination against Bernie Sanders, has a potential indictment hanging over her head. The damage may wind up costing her the White House.

I’m not particularly a fan of Kissinger’s record as secretary of State, but nobody denies that he’s a smart man. My advice to everyone else: If you think you’re as smart as Henry Kissinger, think again. And that goes double if your name is Hillary Clinton.

Glenn Harlan Reynolds is a University of Tennessee law professor and the author of "The New School: How the Information Age Will Save American Education from Itself."