Politics & Policy

What to Make of Hillary’s Latest Excuses for Her Reckless E-mail Conduct?

(Scott Olson/Getty)

Hillary Clinton’s rationalizations for her deliberate circumvention of federal records laws and mishandling of state secrets shift as quickly as they are refuted. Her latest excuses — part of a euphemistically labeled “public education” effort — are as flawed as those that came before, and leave her seeking higher ground in a losing public-relations campaign.

Shortly after the New York Times first broke the news of the e-mail scandal, Mrs. Clinton held a press conference in an attempt to deflect criticism from her decision to conduct official e-mail business exclusively on a private server kept in her Chappaqua, N.Y., home. But virtually everything Mrs. Clinton said at that press conference has since proved false. She first claimed that she “opted for convenience” to use a personal e-mail account, “which was allowed by the State Department,” because she thought it would be easier to carry just one device for work and personal e-mails instead of two. It was reported a few weeks later that Mrs. Clinton frequently used both a Blackberry and an iPad, blowing a hole in that already shaky justification.

Next, she claimed that the vast majority of her work e-mails went to government employees at government addresses, which “meant they were captured and preserved immediately on the system at the State Department.” That explanation immediately sprung leaks when it was reported that the State Department did not automatically archive e-mails during Mrs. Clinton’s tenure. According to a State Department Inspector General report, only about 61,000 of more than 1 billion e-mails from the year 2011 were officially preserved, as required by federal law, because of inadequate training of State Department employees. So even if Mrs. Clinton could pass the buck to others to preserve a record of her communications — a highly dubious proposition under federal law — her post hoc justification couldn’t pass muster.

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Hillary claimed that she had turned over 55,000 printed pages of e-mails to the State Department. She admitted that she destroyed anything that her lawyers deemed personal and private, wiping her server clean of some 30,000 additional e-mails sometime after her production to the State Department in late 2014. Mrs. Clinton neglected to note that she turned over her e-mails to the State Department only after it demanded their return, and after congressional committees discovered the existence of the private e-mail accounts. Her defenders argued that she fully complied with the federal records laws by preserving her e-mails after she left office. But no other employee of the federal government has been allowed to keep his e-mails hidden from public view during his tenure and beyond. State Department regulations require employees separating from service to return all official records in their possession when they leave office. Mrs. Clinton instead reserved for herself the privilege to keep her e-mails private — and thereby outside the reach of congressional investigators, FOIA requesters, and courts — for nearly two years after leaving office. In no sense did she comply with federal records laws.

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Mrs. Clinton and her defenders also relied on the practice of her predecessors to rationalize her actions, arguing that “others had done it.” But only two of her predecessors were in office at a time when e-mail use was ubiquitous. One of those — her immediate predecessor, Condoleezza Rice — did not use e-mail at all during her tenure. The other, Colin Powell, later admitted that he did occasionally use a personal e-mail account. But Powell did not conduct State Department business exclusively on a private server designed to end-run official systems. And, in any event, State Department policy at the time did not plainly foreclose such occasional use.

Finally, Mrs. Clinton claimed from the outset that there was “no classified material” among her e-mails. That whopper was exposed as false by inspector generals for the State Department and the intelligence community, who reported that, even among a tiny sample of 40 e-mails reviewed, at least four contained classified information, with two of those classified as “top secret.” The State Department has subsequently identified more than 300 additional e-mails that potentially contain classified information — with that number expected to rise substantially once it completes its review of the 30,000 e-mails for public release.

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Which brings us to the present. In launching a more “press-friendly strategy,” Clinton-campaign communications director Jennifer Palmieri announced a renewed “public education” effort on what she described as a “very complicated” and “confusing” topic. This campaign put forth two central — and fatally flawed — arguments.

First, Palmieri repeated the claim — echoed frequently by a friendly media — that Mrs. Clinton’s use of her personal e-mail was “permitted” by the State Department. If by “permitted,” Palmieri means that Secretary Clinton unilaterally deemed herself in compliance with department policy while operating a shadow e-mail system, she may be correct. But if she means that Mrs. Clinton was actually in compliance with the department rules, she is plainly wrong. Indeed, even Judge Emmet Sullivan, a Clinton appointee once regaled by Democrats for his rough handling of Bush-administration policies and practices, has flatly rejected such arguments, noting in a recent hearing regarding Hillary Clinton’s e-mails that “we wouldn’t be here today if [Mrs. Clinton] had followed government policy.”

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In fairness, the argument that State Department rules permitted private e-mail use during Mrs. Clinton’s tenure has a kernel of truth to it, but only a kernel. The State Department Foreign Affairs Manual permitted occasional private e-mail use, but only under certain carefully delineated conditions designed to guard against compromise of sensitive government information. Seeking to protect sensitive but unclassified governmental information, the manual has, since 2005 (postdating Secretary Powell’s alleged e-mail indiscretions), declared a “general policy” that “normal day-to-day operations be conducted on an authorized” State Department information system, “which has the proper level of security control to provide nonrepudiation, authentication and encryption” to “ensure confidentiality, integrity and availability of the resident information.”

Only in “the absence of a Department-provided secure method” can State Department employees with a “valid business need” transmit such information outside the official State Department information systems. Even then, the manual warns that employees should take into account that “unencrypted information transmitted via the Internet is susceptible to access by unauthorized personnel” and subject to a “risk of compromise of information confidentiality or integrity.”

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Mrs. Clinton famously reinforced that policy in a 2011 cable to diplomatic and consular officials abroad, directing them to “avoid conducting official Department business from your personal e-mail accounts.” To say that these State Department regulations somehow permitted her to conduct official State Department business exclusively on her own private server turns a blind eye to the letter of those regulations and her own guidance to the State Department officials.

Second, with her claim that no classified information existed on her private server now in tatters, Clinton contends that none of the information or e-mails were classified at the time they were sent. But the State Department and Intelligence Community inspector generals have flatly rejected that claim, concluding that the information at issue was classified at the time and the e-mails should thus have been classified when they were sent to Mrs. Clinton.

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Team Hillary now insists that the State Department disagrees that the information should have been classified. John Fitzpatrick, the director of the National Archives Information Security Oversight Office, which oversees the federal government’s security classification system, told reporters that intelligence agencies are quite concerned that the State Department has not been appropriately protecting classified information in screening Mrs. Clinton’s emails for public release. That State Department bureaucrats would seek to deflect criticism of the department’s wholesale failure to stop Mrs. Clinton’s unlawful practices is not surprising, but it proves precisely nothing. Foggy Bottom is in full bureaucratic “circle the wagons” mode given the embarrassment Mrs. Clinton’s practices have caused it.

Camp Clinton finally retreats to the fact that the e-mails were not marked classified when sent. But any experienced national-security official should know classified information when he sees it. One retired army colonel who served as a senior military adviser and security manager in the State Department under Secretaries Clinton and Rice described this markings argument as “total BS.”

#related#To underscore that point, Reuters reported that at least 30 email threads from documents already publicly released through FOIA contained information provided in confidence to U.S. officials by foreign-government counterparts — the disclosure of which is presumed to harm national security under governing Executive Orders. Those e-mails, containing sensitive discussions about confidential communications with British, German, and other foreign leaders, were presumptively classified under federal law from their inception. But whether or not formally classified at the time, Mrs. Clinton surely knew that discussions regarding various global flashpoints should be handled with more care than her homebrewed server could provide.

As the controversy continues to unfold, Clinton defenders cast about for other plausible explanations. But it is difficult to explain the inexplicable. Mrs. Clinton flouted the law and recklessly exposed our most sensitive national-security information to our enemies throughout the world. Her judgment on this matter is fair game in deciding who will be our next president.

Shannen W. Coffin — Shannen W. Coffin is a contributing editor to National Review. He practices appellate law in Washington, D.C.

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