Monday, May 30, 2016

Everything You Wanted To Know About Hillary’s Email That The Media Refuses To Tell You

Official Washington loves few things more than a heavily annotated investigative report and it is even better when there is a political slant to it. The recently released report by the Office of the Inspector General (OIG) at the Department of State meets both criteria. At 83 pages, it appears to have heft (even though the report itself is only 42 pages, the rest is an appendix of old memos and guidance documents) and its tsk-tsking of Hillary Clinton’s use of a private email server fits with the media’s narrative that she is untrustworthy. 

The breathless reporting portrayed Clinton as a rogue actor, flagrantly violating the law while dissembling in her after-the-fact excuses. But if you read the report and ignore the political spin, you find a much more nuanced story. For example, a former Secretary of State connected a private laptop to a private Internet connection to conduct government business and never attempted to store or retrieve the emails sent that way, but that person was Colin Powell, not Hillary Clinton. The archiving rule at the center of one of the two complaints against Clinton could have been levied at dozens of other people who failed to print out every email they sent or received and store the paper copies (the so-called “print and file” system.)  

For all the sturm und drang, the OIG criticizes Secretary Clinton for two things - first, for failing to comply with the ridiculous “print and file” archiving requirement that OIG itself admits few people follow; and second, conducting government business on private email connected to a personal server. What the report reveals however, (and what was unreported in the press) is that Secretary Clinton was hardly alone in these supposed “violations.” The IG notes that nearly 90 senior aides to Secretaries Powell and Rice used personal email. (IG report at 20). Secretary Powell himself not only used a personal email account, he connected a private laptop to the Internet through a “private” connection in his office, sidestepping the State Department’s portal (which was itself a violation of State Department rules). (IG report at 3, 21, 31). And when contacted by the IG during the pendency of their investigation, Powell, along with aides to Rice, ignored the IG’s entreaties to determine whether the email they sent via personal email could be retrieved. (IG report at 21-23). 

The IG concluded that “Secretary Powell did not comply with Department policies that were implemented in accordance with the Federal Records Act.” (IG report at 22). The IG made the same finding with regard to Secretary Clinton with one important caveat: her submission of 55,000 pages of emails “mitigated her failure to properly preserve emails …” (IG report at 23, emphasis added). Powell not only failed to comply at the time, but snubbed a request from the Department that he contact his ISP to determine if his records were retrievable. (IG report at 22). Even so, the “file and print” requirement is only followed “sporadically.” The Department’s internal guidelines contain “no explicit penalties for lack of compliance” and the Department “has never proposed discipline against an employee [for failing to comply.]” (IG report at 14). 

Ironically, had Hillary done as those 90 staffers and Secretary Powell had done and simply used a personal email account instead of her own server, it is unlikely any of her records could be retrieved. Instead, the State Department (and ultimately the world) got to pour through 55,000 pages of email, the vast majority of which was the boring work of government with some cherry picked threads of gossip and other click bait ephemera the media loves to focus on. Conversely, email Powell and his and Rice’s aides sent while we were at war in two countries and attacked on September 11th, 2001 are lost to history. 

So, on the first point - failing to properly archive her records, no one has ever been punished for not following the rules and Hillary complied after the fact. But what about the dreaded private server? Well, the server is really a red herring. The issue here is corresponding over a system without proper security features - whether that is done using a gmail account or your own private server is incidental. But here’s the thing: not only was using personal email not prohibited when Clinton was Secretary, it still is not prohibited. While the federal record keeping law was amended in 2014, it did not prohibit the use of private email for official purposes, it simply required that a person who did so copy her official email account or forward a copy of the email to that account within 20 days. (IG report at 9). And the Department’s most recent guidance, issued in 2015, says that the use of personal email is “discouraged” except “in very limited circumstances.” The Department does not articulate what those circumstances might be. (IG report at 32). 

Oddly, the conclusory nature of the IG’s findings (and those most heavily reported by the media) contain no substantiation. For a report with an average of four footnotes per page, the determination that Secretary Clinton had “an obligation” to discuss her email use is simply stated as fact without citing to any internal guidance, regulation or law. It is curious that such a finding was made, particularly since the report itself acknowledges that personal email use was not then and is not now, prohibited. 

Surely, if Secretary Clinton ran afoul of Department guidelines, so too did the 90 staff members who worked for Secretaries Powell and Rice, along with what I have to assume are many other anonymous employees in a Department of thousands who probably use their personal email accounts from time to time. And the concern over the security of Clinton’s server is a fortiori for servers run by Google, Microsoft, and ISPs that are targets of daily hacking attempts. And it is not like government servers are bastions of security. The Office of Personnel Management was hacked last year, resulting in the theft of more than 10 million social security numbers of current and former federal employees dating back to 2000.

If you want to point a finger, look at the records management at the State Department - it is a total shit show. Some archived email cannot be retrieved because much of it is corrupted, password protected or contains no information (IG report at 15), the integrated archiving system did not come online until this year (IG report at 15), and the Department broke its own rules by failing to archive the email of 50 top political appointees (IG report at 16). Even if the Department wanted to determine the frequency or volume of personal email use by its employees, it “currently lacks the resources” to do so. (IG report at 19).

This is another tempest in a teapot that ignored context such as the fact that close to 100 former senior officials were also known to have used private email and that many senior officials under prior Secretaries of State (and Secretary Powell himself) ignored requests to turn over their records. The archiving rule Clinton supposedly violated was also violated by Secretary Powell, is without sanction and has never been used to discipline anyone. Unlike Secretary Powell, Secretary Clinton complied with this rule after the fact. Hardly the crime of the century, but an easy way for a media hell bent on reinforcing its preferred narrative that Hillary thinks the rules do not apply to her.

If you want to read the report for yourself, it can be found here:

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  1. If thy name be Hillary The Media will hate thee.

  2. Thanks, SLG, for this careful reading of the actual report and your reasoned assessment. I agree this has been overblown, but what else is new? I get so frustrated by spin in the usual "news" channels. If you both watch Fox News and read the NYT on any given political story, between the two, *maybe* you can figure out what's actually going on.

    I think it's funny how Clinton supporters say *THE MEDIA* is out to get her, while Sanders supporters say it's *THE MEDIA*'s fault he never got a real shot because they are secretly promoting Clinton. Meanwhile, Trump hasn't stopped whining about reporters the entire campaign.

    Wake me when November ends.