Politics & Policy

Hillary’s Specious Arguments about Her E-mail

In yesterday’s press conference, she shamelessly exploited the public’s unfamiliarity with the rules she broke.

Victor Davis Hanson uses just the right word, “shameless,” for Hillary Clinton’s performance at Tuesday’s press conference — abruptly and conveniently scheduled to take place at the United Nations, ensuring trouble getting credentials for much of the political press.

A few thoughts:

31,830 Withheld E-mails

In her characteristically underhanded way, Mrs. Clinton waited until after she was done “answering questions” to have her lackeys distribute a sheet explaining that she has withheld from the government files and likely deleted from the private servers she refuses to relinquish an astonishing 31,830 e-mails from her time as secretary of state. The icon of the “personal is political” crowd says they . . . were personal. You’ll just have to take her word for it.

#related#“The Process”

Mrs. Clinton kept referring to “the process” that she and her aides went through after the State Department asked for any government records she had retained. No relevant documents were deleted “during the process,” she assured us. But “the process” is neither the only nor the most important aspect of this. She could have deleted documents throughout her tenure as secretary of state, long before the State Department asked her for records two years after she left office. That’s the way she rigged the system.

Presumption against Retention for Mrs. Clinton Only

As others have observed, the private server system Mrs. Clinton designed to evade the government’s e-mail retention and security system made her the sole arbiter of what was “relevant” with respect to nearly all her communications as secretary of state. (I address the exception, involving classified information, below.) At the press conference, she kept portraying this sole-arbiter role as if it were nothing more than the preservation exercise required of all government employees: They must review private account e-mails to make sure that any e-mails related to government business are preserved as government records.

That is absurd. Virtually all government employees are diametric opposites of Hillary: They use their government e-mail accounts for both official business and private, non-government communications — and that means the latter are automatically retained in government systems. For the vast majority of government employees, the presumption is retention. While it is true that all government employees are called on to go through the preservation exercise, for the vast majority of employees this involves only a tiny subset of their communications: the rare (and severely discouraged) situation when they use private e-mail to conduct government business.

Mrs. Clinton, to the contrary, did all her communicating by private e-mail. We are not talking about a small subset of official business conducted by private e-mail. Clinton rigged up a system where the presumption was against retention: She made herself, rather than federal law applied by government record-keepers, the sole arbiter of what the government got to keep in its files.

“My Practice” of E-Mailing .gov Accounts

Mrs. Clinton tries to obscure this egregious departure from law and procedure by claiming that her “practice” was to e-mail people at their government accounts (“.gov” accounts) so records would be automatically preserved. There are several problems with this story:

As Victor notes, it makes searching for her e-mails much more difficult — if there is a Freedom of Information Act request seeking her communications, for example, the government has to search the records of everyone Mrs. Clinton might have e-mailed rather than simply search her e-mail account. She could easily have solved this problem by copying her own .gov account on all e-mail . . . but she elected not to have such an account, a highly unusual arrangement that avoided creating an easily traceable e-paper trail.

Moreover, Mrs. Clinton was secretary of state, not of, say, the Interior Department. There is no department of government that has more communications involving official business with people outside the U.S. government — many, indeed, outside the U.S. period. Those people do not have .gov e-mail accounts. Under Mrs. Clinton’s systematic evasion of U.S. government e-mail systems, none of those communications would have been retained.

Furthermore, despite what she said on Tuesday, Mrs. Clinton undoubtedly e-mailed some government officials on their private e-mail accounts, not their .gov accounts. For example, the New York Times reports that Huma Abedin, Clinton’s deputy chief of staff, had a Clinton e-mail account, just like Hillary. Ms. Abedin has been described as, among other things, a valuable adviser to Mrs. Clinton on Middle East policy — the subject that dominated Clinton’s tenure at State. Yet, if they communicated private-account-to-private-account, none of those e-mails would have been retained in government systems. And, does anyone want to bet that chief of staff Cheryl Mills and other close advisers with whom Madame Secretary was in constant communication used only .gov accounts in communicating with Clinton? I didn’t think so.

In addition, as been known for a couple of years, Clinton had private e-mail correspondence with non-government advisers like Sidney Blumenthal, who provided her with sensitive intelligence (some from former CIA agent Tyler Drumheller) that she certainly used in performing her official duties. Were those preserved?

And if Secretary Clinton’s “practice” was to send official e-mail almost exclusively to .gov accounts, why go through the motions of turning over an additional 55,000 pages of e-mail correspondence? Why didn’t she just say the government already had all her records?

The Laughable Security Argument

Retention for government record-keeping and transparency is just one salient reason why the law and regulations direct government employees to use government e-mail. Security is at least as important as retention. Government communications systems are layered with extraordinary protections against outside intruders. Obviously, if retention were the main reason for corresponding on .gov e-mail, all government employees could use private e-mail accounts for official business as long as they copied their .gov addresses on correspondence. Private e-mail use is severely discouraged because it would make government communications vulnerable to hacking.

Against that background, consider what was perhaps the most ludicrous argument Mrs. Clinton made at her press conference: Because the Clintons have Secret Service protection, the private Clinton server system was physically protected by federal agents. So what? The Clintons could have had the entire United States Marine Corps on scene and it wouldn’t have made a difference. We’re not worried about someone busting in with a sledgehammer to wreck the server. We’re worried about cyber espionage.

Classified Documents versus Classified Information

Mrs. Clinton stressed that she never stored classified documents on her private e-mail system. To the uninitiated, this sounded like the strongest point in her defense. Mostly, however, it is a red herring, exploiting the public’s unfamiliarity with how classified information works — and fueling no small amount of irresponsible speculation over the last few days about how the nature of her responsibilities meant classified material must have been stored on her private system.

In the government, classified documents are maintained on separate, super-highly secured systems. Yes, if security gets lax or you have a determined Ed Snowden type with sufficient expertise, the protections can be defeated. But in general, Mrs. Clinton would not have been able to access classified documents even from a .gov account, much less from her private account — she’d need to use the classified system. In fact, many government officials with security clearances read “hard copies” of classified documents in facilities designed for that purpose rather than accessing them on computers.

That said, there are two pertinent caveats. First, since we’re dealing with Clintonian parsing here, we must consider the distinction between classified documents and classified information — the latter being what is laid out in the former. It is not enough for a government official with a top-secret clearance to refrain from storing classified documents on private e-mail; the official is also forbidden to discuss the information contained in those documents.

The fact that Mrs. Clinton says she did not store classified documents on her private server, which is very likely true, does not discount the distinct possibility that she discussed classified matters in private e-mails. We would not be able to judge that absent reviewing the e-mails. If any of the 31,830 withheld e-mails from the private, non-secure system — involving America’s top diplomat who was in constant discussions with other important diplomats, top military and national-security officials, her trusted advisers, and even the president of the United States — touched on classified matters, that could land Mrs. Clinton in very hot legal water. It would be a powerful incentive to hit the “delete” key.

Overlooked: “Sensitive But Unclassified”

Second, most of the important but mundane information exchanged in government is not classified. It is a truism that too much information in Washington is classified. Still, it is also true that, for government officials, dealing with classified information is very inconvenient — you are usually not allowed to read it on your office computer, certainly not on your personal computer, not while commuting to work, not at home, etc. Thus, much of the information that government officials deal with is categorized as “sensitive but unclassified” (SBU).

To listen to the commentary over the past week, and to listen to Mrs. Clinton yesterday, one would think there are only two realms of government information: something is either a national defense secret or the seating chart for Chelsea’s wedding reception. Most information, though, is neither classified nor private.

When I was a federal prosecutor, for instance, the SBU information I routinely dealt with included: grand-jury transcripts, the secrecy of which must be maintained by law; investigative reports by the FBI, DEA, NYPD, and other investigative agencies; wiretap affidavits that disclosed that investigations were underway, the suspects, the evidence, the wiretap locations, and the identity of government undercover agents, informants, and witnesses; memos outlining investigative or litigation strategies to deal with organized crime and terrorism organizations; plans to orchestrate arrests in multi-defendant cases where flight risk was a concern; financial information of subjects of investigations; personal information (sometimes including family financial and medical information) of lawyers and staff whom I supervised; contact information (including home addresses) of agents with whom I worked on cases often involving violent crime and public corruption; contact information (including home addresses) of judges in the event it was necessary to get a search warrant after hours; and so on. None of that information was classified. I was permitted to — and needed to — have it ready to hand, but it was also my duty to maintain it in a secure, responsible manner . . . a duty that became even more important once I was a boss and was expected to set an example for junior lawyers and staff to follow.

And mind you, I was just a government lawyer. I was not the secretary of state.

The inadvertent or unauthorized disclosure of SBU can do enormous damage. It can even get people killed. That is why the State Department has elaborate rules about SBU — rules that include instructing State Department employees to conduct their e-mail business via government e-mail accounts on government communications systems that have “the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of resident information” (U.S. Dept. of State, Foreign Affairs Manual, vol. 12, sec. 544.3 ).

As Fox News relates, it was on the basis of these concerns that Mrs. Clinton, as secretary of state, directed State Department employees in June 2011 to “avoid conducting official Department [business] from your personal e-mail accounts.”

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