Politics & Policy

Clinton’s Simple, Two-Step George Costanza Defense

(Dominick Reuter/Reuters)
Insist that the rules were unclear and that everyone was breaking them anyway.

In her latest defense of her unlawful e-mail server, Hillary Clinton is following the playbook of Seinfeld’s lovable loser George Costanza. In one memorable episode, Costanza fulfills one of his fantasies with an after-hours romp with a cleaning woman at his office desk. Confronted by his boss after his paramour turns him in — George had tried to buy her silence with a defective cashmere sweater — Costanza insisted that the standards for workplace intimacy were not clear at the time of his indiscretion: “Was that wrong? Should I have not done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here, that that sort of thing was frowned upon, you know, ’cause I’ve worked in a lot of offices, and I tell you, people do that all the time.”

Hillary Clinton did not choose to go full Costanza from the outset. When initially confronted with reports that she had circumvented federal-records laws by maintaining an e-mail server in the basement of her Chappaqua home, Clinton insisted instead that she had faithfully complied with the law. In July 2015, she told CNN that “everything I did was permitted. There was no law. There was no regulation. There was nothing that did not give me the full authority to decide how I was going to communicate. . . . Everything I did was permitted by law and regulation.”

That, of course, was never true, as we explained in these pages shortly after the story broke. And last week, the State Department inspector general utterly rejected her legal analysis, but only after laying out in detail the range of federal law and regulation that Clinton disregarded. The inspector general concluded that “Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.”

In the aftermath of that devastating conclusion, Clinton has adopted George Costanza’s simple, two-step approach to controversy.

Costanza Step 1: Claim that the rules were unclear. Despite insisting for more than a year that her separate e-mail system was “allowed” under then-existing State Department rules — a claim that the inspector general unequivocally rejects — Clinton now insists that the governing rules were simply uncertain at the time. “I thought it was allowed,” she insisted in her post-IG-report spin. The relevant rules and regulations “were not a model of clarity,” Clinton claimed. And they “were not clarified until after I left office.”

Clinton’s exclusive use of a non-departmental e-mail server simply did not comply with State Department policy.

Her campaign spokesman, Brian Fallon, put it in even more laughable terms in an interview with Factcheck.org. Just because the inspector general’s report utterly rejects Clinton’s longstanding reading of governing law, Fallon insisted, that “doesn’t make her statements untruthful.” In a statement that could qualify Fallon for “spin of the year,” he contended that Clinton “believed — past tense” that her private server was allowed under State Department rules. “It did not occur to her that having it on a personal server could be so distinct that it would be unapproved,” Fallon said. “We’re not intending to say post the IG report that her server was allowed.” They are just saying that she couldn’t have known otherwise at the time, and as Clinton campaign chairman John Podesta summarized, in full Costanzan fashion: “Had Secretary Clinton known of any concerns about her email setup at the time, she would have taken steps to address them.”

The inspector general’s report finds no lack of clarity in rules governing record preservation during Clinton’s tenure. “The requirement to manage and preserve emails containing Federal records has remained consistent since at least 1995,” it reads. Similarly, the requirements that State Department employees use State Department IT resources for official business were set forth in writing well before Clinton took office: “The Department’s current policy, implemented in 2005, is that normal day-to-day operations should be conducted on an authorized Automated Information System (AIS), which ‘has the proper level of security control to . . . ensure confidentiality, integrity, and availability of the resident information.’” Clinton’s exclusive use of a non-departmental system simply did not comply with this requirement. And if she had asked, the inspector general notes, the department would have rejected her use of the server for failure to comply with these rules.

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Costanza Step 2: When all else fails, claim that everyone is doing it. This remains a favorite of the Clinton camp. Clinton has long insisted that “previous secretaries of state have said they did the same thing.” Deprived of the defense that it was allowed, campaign spokesman Fallon now claims that all “we’re saying [is that] the use of personal email was widespread.”

The inspector general’s report undermines this ploy as well, finding that only one of Clinton’s predecessors, Colin Powell, exclusively used private e-mail to conduct official business. The report found no evidence that either Madeleine Albright or Condoleezza Rice used any e-mail, personal or official, to conduct official business.

In fact, the report “could only identify three cases where officials used non-Departmental systems on an exclusive basis for day-to-day operations.” Two of those were Clinton and Powell. The third, Jonathan Scott Gration, who was ambassador to Kenya during Clinton’s tenure as secretary of state, resigned before disciplinary proceedings against him were concluded.

#related#As for Powell, the report concludes that State Department IT systems and guidelines were not fully developed during his tenure — something that could not be said for Clinton. Indeed, Internet and e-mail capabilities were not widely available to State Department employees at the time. The Department’s “day-to-day” policy requiring use of official IT systems post-dated his tenure, and the government’s understanding and guidance regarding information security were still evolving. The report does not fully exonerate Powell, who plainly violated records-preservation requirements in failing to preserve copies of official e-mails sent and received on his private e-mail system. But it “acknowledges significant differences in the facts and circumstances” of his use of private e-mail and Hillary Clinton’s.

At the end of the day, George Costanza’s approach to controversy did not work for George Costanza, who was fired on the spot. Hillary might want to look to more successful crisis-management professionals for advice.

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

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