Hillary & Her Damn Emails

The collective media narrative is that FBI Director James Comey did severe political damage to Hillary Clinton in his public statements explaining why he and his investigators unanimously recommended against pursuing charges against the former Secretary of State. According to the media, his public statement on July 5^th contradicted a number of Mrs. Clinton’s claims and he then provided hours of testimony on Capitol Hill two days later which made her look even worse.

The confluence of politics and the law is a tricky one - optics matter more in the former, facts in the latter. But what the media owes the public is accuracy and conflating Comey’s statements with the idea that Mrs. Clinton’s actions reinforce the belief she is untrustworthy is an editorial decision divorced from the facts in this case. Members of the media like to hide behind the idea that they are simply reporting on what polling or interviews with the public tell them, but this excuses their own responsibility for shaping that narrative.

Comey’s most sensational claim was that classified emails – that were classified at the time they were sent of received – were found on Clinton’s email server. This seemed to contradict Mrs. Clinton’s statement that she neither sent nor received classified email. Here is what Comey said:

From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification …

Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.

Seems pretty scandalous right? But Comey was being a bit of a slippery lawyer. The “very small number” of email that were marked classified at the time turned out to be three – yes, three. Not three thousand, or three hundred, or even thirty, but three. In other words, one one-hundredth of one percent (.01%) of the roughly 30,000 email the FBI reviewed were marked as classified. It was not until two days later at Comey’s Congressional hearing, that we learned the rest of the story:

In short, contrary to State Department policy, which connotes an email’s classification in the header, here, the markings were buried somewhere in the email strings where they could have easily been missed. More importantly, it turned out these three email were improperly marked – a fact shared by the State Department within hours of Comey’s press conference.

So, none of the three email Comey mentioned in his press conference turned out to be classified. But what about the 110 emails that were classified at the time, of which eight were top secret? Again, the colloquy is helpful. None of those email bore markings showing they were classified. In other words, the State Department did not think these email were classified at the time, it was the FBI’s call after-the-fact. As Comey conceded, absent some notation in the heading of an email that the subject matter is classified, the recipient of the email could reasonably conclude it was not classified.

In any event, those eight email (out of 30,000) that were top secret? Seven had to do with drone strikes in countries where their leaders demand plausible deniability yet everyone knows attacks occur (e.g., Pakistan and Yemen). The other email was a run-of-the-mill description of a conversation with the President of Malawi. Yes, Malawi, a country few people even know exists and even fewer could find on a map.

In sum, the “small number” of email that bore classified markings were all in error and none of the other 110 email had markings. Of the eight (out of 30,000) supposedly “top secret” email, seven were on a subject widely reported on but kept secret solely to protect our allies and the eighth had notes on a conversation with a leader of a country no one has even heard of.

The other Comey statement getting a lot of attention is this one:

Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send e-mail on that personal domain. 

This comment seems to contradict one by Secretary Clinton that she used only one device. But here’s the thing. Comey never explained what he meant by “numerous devices.” Apple now has a program that lets you upgrade your iPhone every year. Are you using “multiple devices” when you go from the iPhone 6 to the iPhone 7? It may be that Comey and Clinton are both telling the truth in that she perceived swapping out her phones as using “one device” and he interprets that same action as using “numerous devices.” Is this really grounds for a perjury investigation?

This was bad enough, but Comey layered his own opinions (a real no no for an investigator and something, as a former U.S. Attorney, he should know better than doing) and speculation. There were two particularly egregious examples:

Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.

Here, he engages in rank speculation without any factual support, a cardinal sin that any first-year law student would know not to do.

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

This little nugget ended up being one of Comey’s most quoted lines, but aside from suffering from the same opinion testimony any good prosecutor would know to avoid, taken together with the context of the rest of his statement, it is also untrue. As Comey would later admit, none of the email he considered classified were designated as such at the time and without the markings, a person could infer they were not confidential. So how is it that Secretary Clinton was “extremely careless” when less than 1% of her email were classified (not that she would have known that, as per Comey’s own statement!) and the three (out of 30,000) that had markings turned out not be classified at all. It does not make sense and it also supports Hillary’s statement that she neither received nor sent classified information – the documents Comey said were classified at the time either bore no markings to show that they were or had markings, but turned out not be classified at all.

For Comey, this whole episode is a perfect illustration of why prosecutors typically do not make statements when charges are not filed. We are all entitled to the presumption of innocence and that right is even greater when a criminal investigation concludes without evidence sufficient to charge us with a crime. When a prosecutor decides instead to inject his own opinion it denigrates an innocent person’s reputation for reasons that have nothing to do with a legal determination of their guilt or innocence.

For reporters, this is another in a long litany of examples this campaign season where they went with the sizzle instead of the steak. All of the information I wrote about above was readily available to them if they were doing their jobs and putting this type of context into their stories. Instead, as is more and more common these days, they skipped right past the facts and ran right for the political angle that reinforced their preferred narrative.

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Congress Takes A Vacation

With news that the White House and Congressional leaders have worked out a deal that will raise the debt limit through March 2017, fund the federal government and wrap other important matters like the highway bill into a massive legislative burrito, the passage of any additional, meaningful legislation before the President leaves office in January 2017 has come to an end.

This is quite convenient for incoming Speaker of the House Paul Ryan. He need not sully himself with the messy details of governing or horse trading with the so-called Freedom Caucus over threats to default on our debt or other silliness. He can focus on his primary interests, which appear to be convincing the country that Social Security and Medicare need to be some combination of slashed and privatized while ensuring the wealthiest Americans pay as little in taxes as humanly possible.

More generally, this gives Congress the freedom to do fuck all before Election Day 2016, which I would guess suits the 435 members of the House and 34 Senators who are up for re-election just fine. Without the need to do the basic blocking and tackling of legislating, they are free to raise money and campaign about how shitty their opponents are without fear of having to do any work. In the Senate, any notion of basic governing, like voting on Obama appointees to the federal judiciary or a random Cabinet Secretary (looking at you, soon-to-be Acting Secretary of Education John King, Jr.) are already out the window and with Republicans nursing a small majority that they desperately want to hold on to so they can either ram through a new Republican President’s agenda or get to the business of blocking anything a new Democratic President might do.

This also works nicely for the media. After all, why bother having reporters on Capitol Hill when they can be disbursed to cover the antics of Donald Trump, Ben Carson, and the rest of the crew on the Republican side or hound Hillary Clinton while she waltzes to the Democratic nomination. Campaigns are far more compelling than dreary legislative sausage making or Committee hearings (oh right, we had one of those recently and after drumming up anticipation for months, the media gave a “move along, nothing to see here” sign when Trey Gowdy deteriorated into a puddle of sweat).

I suppose we should not get too upset about this. After all, it is nice that there will be people to inspect our food, investigate criminal activity, and allow us access to national parks, but one wonders whether a bit more should be expected from people making $174,000 a year and who are provided with lifetime health benefits after serving 5 years in office. Of course, since Congress is only in session for about 135 days each year, passing a budget and ensuring that the bills get paid may be the bare minimum of what it can do – the equivalent of getting a D minus grade on an exam in a class you are taking pass/fail. Hoping that Congress would address larger societal concerns like gun safety, climate change, income inequality, or the minimum wage, or would keep the judiciary properly staffed with judges and Cabinet agencies helmed by people who receive Senate confirmation seems to be more than we should expect anymore.

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The Curious Case of the Disappearing Deficit

Buried on page A21 of Friday's New York Times was news that our budget deficit for the fiscal year that ended on September 30th was $439 billion - $44 billion less than the prior year, almost $1 trillion less than its peak during the Great Recession, and a mere 2.5% of Gross Domestic Product (GDP). 

That you may not be aware of this fact is unsurprising. If the "paper of record" deems this story inconsequential, do not hold your breath that the nightly news, the Sunday chat shows, or anyone else in the media will do anything other than make passing reference to this fact. And that too says something. It was not so long ago that the media was obsessed with the budget deficit, egged on by Republicans who pulled out Talking Points 101 from their playbook about the need to slash Social Security and Medicare or fear becoming a beggar nation like Greece. There was breathless coverage of the tick-tock of "grand bargain" negotiations between the President and John Boehner and one of DC's favorite creations, the blue ribbon commission, was formed to provide a blueprint for long-term deficit reduction.

But a funny thing happened on the way to no one remembering Simpson-Bowles and opting against trimming earned benefits like Social Security or Medicare. The budget deficit is no longer a problem. Indeed, not only is the total amount less than what it was before the Great Recession, but because our economy is larger, it is also even less as a share of our GDP. Indeed, at 2.5% of GDP, our current deficit is less than the modern historical average and a half-percent below what economists think appropriate for sound fiscal policy. 

Of course, we have seen this movie before. When Bill Clinton inherited a massive budget deficit after 12 years of runaway deficit spending by Reagan and Bush, he passed a tax increase on the wealthy, reined in government spending, and the economic boom resulted in a flood of tax receipts that left a $236 billion surplus when he left office. Barack Obama and the Democrats passed the American Recovery and Reinvestment Act and the Affordable Care Act, invested in research and development, saw unemployment plummet, and passed a teensy-weensy tax hike on the top 1%. The reductions in health care spending, the increase in tax receipts from an improving economy (and stock market), and marginal cuts to federal spending have all helped drop the deficit by almost 75 percent from its 2009 high. 

Why the Beltway media continues to fall for the Republican trope that they are the fiscally prudent party while the Democrats are shameless spendthrifts is beyond me. We now have 35 years and five Presidents of proof that Republican Presidents spend like teenagers with their parents' credit card and leave it to Democratic Presidents to pay the bill. 

But the ho-hum, Obama-cut-one-trillion-from-the-deficit shoulder shrug emoji from the Beltway media is really disappointing.

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Speaker Ryan

The Beltway media has found its new obsession. The implosion of the House Republican conference that began with John Boehner's announcement that he was stepping down as Speaker went thermonuclear when Kevin McCarthy, his presumed successor, bowed out of the race. The internecine war within the House GOP has become a full-fledged crisis that laid bare a years-long descent into blind governmental obstruction that included hundreds of Senate filibusters, a government shutdown, and more than fifty fruitless attempts to repeal Obamacare. 

While the media has, until now, been wary of pointing a finger solely at the GOP (the preferred "both sides do it" trope is so ingrained at this point, you wonder whether it's taught in J school), journalists are slowly coming around to the idea that it is not President Obama's failure to invite Republicans to the White House for drinks that is to blame for Washington dysfunction, but rather, the nihilistic streak infecting the House Republican caucus. Their timing could not be worse - the country will hit its borrowing limit in less than a month and the government is running on a continuing budget resolution that expires in two. 

Of course, as is the media's wont, the focus is on process and personalities - can Paul Ryan be cajoled into accepting this thankless job? Did McCarthy bow out because of rumors circulating in the right-wing blogosphere? Might Newt Gingrich return to save the day? (not making this one up). This plays to the preferred narrative that has turned politics into some combination of soap opera and professional wrestling, and it surely fills hours on cable news and column inches in newspapers, but lost in this is the fact that paying the country's bills and passing a budget that funds everything from the FBI to food safety, is the bare minimum of what any Congress should be able to do. It is the equivalent of waking up and brushing your teeth in the morning. 

That the Beltway media characterizes raising the debt ceiling and passing a budget as burdens, not requirements of government is embarrassing. Instead of shaming Republicans for failing to achieve even this minimum threshold for governing, journalists view these issues through a purely political lens that simply considers how John Boehner might ease Paul Ryan's ascension to Speaker by getting these pesky pieces of business out of the way. And if the media wants to focus on Ryan's viability, it would be great if they spent a bit more time picking through his radical policies like privatizing Medicare and transferring trillions in tax dollars to the wealthy and what it would say about the Republican party if their public face supported such extreme positions than whether or not he is BFFs with his own caucus.

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Getting Real About Gun Violence After Charleston

Just a few days after the massacre in Emanuel AME Church in Charleston, 1 person was killed and 9 injured when a gunman opened fire on a house party in a low income area of Philadelphia. The only thing that stopped that shooting from being far worse was bad aim. Unsurprisingly, this incident did not rate any coverage outside the Philadelphia media market, probably because that type of violence is commonplace in our country and addressing it is far more complicated than a simple sound bite or segment on a cable news chat show. 

On the other hand, the coverage of the Charleston massacre has been wall-to-wall for days, but, predictably, continues to miss the mark when it comes to addressing gun violence in our nation.  Do not get me wrong. What happened in Charleston was an awful tragedy, a hate crime, and, arguably, an act of domestic terrorism, but focusing attention on whether or not the Confederate flag should be taken down (it should, clearly) or on the mental faculty of Dylann Roof misses the forest for the trees if you are interested in the topic of what to do to reduce gun violence in our country. Indeed, attempting to create policy off of "black swan" mass shooting events while ignoring the everyday gun violence that is taking places on the streets of so many of our cities is political and journalistic malpractice. 

Sadly, "gun violence" is actually quite predictable - it occurs disproportionately in cities, is associated with things like domestic violence, drugs, and gang activity, with weapons that are used by people who acquire them illegally. This is an important point because the idea that strict, state-level gun laws in and of themselves will reduce gun violence is a fallacy. In New Jersey, where I live, the Brady Campaign rates our gun control laws as the third strictest in the nation - we require people to obtain licenses to purchase guns, we do background checks, closed the "gun show" loophole, and have a waiting period between when you get your gun license and when you can purchase a gun, and on and on, but that has not stopped Camden, to take one example, from consistently being at or near the top of the list of the most dangerous cities in our country. Other cities, like Newark, Trenton, and Paterson also experience a per capita murder rate far greater than the national average and just six cities in New Jersey account for the more than 340 shooting murders that occur in our state each year. 

You see, strict gun laws in New Jersey do nothing about the lax gun laws in places like Virginia, North Carolina, or Georgia, three states where a large number of the "crime guns" recovered in New Jersey are originally purchased. In fact, roughly 80% of the guns used in the commission of crimes in New Jersey were bought somewhere outside of New Jersey and trafficked here to be used for illegal purposes. If it is easy to acquire guns in one place and traffic them into another place without much fear of apprehension or prosecution and is also very profitable for the people doing the trafficking, cutting off that pipeline will do a lot more to have a meaningful impact on gun violence than taking down a flag. 

Another talking point you hear a lot about is the the need for mental health screening, but that story is also mixed. First, there is no test or diagnosis that can accurately predict who may "go postal" and even if there was, research shows that people with mental illness are more likely to be the victims of crime, not the perpetrators. 

Moreover, there is already a way to determine whether a person is disqualified from buying a gun based on a mental defect, but the data is incomplete. In early 2008. some guy named George W. Bush signed an amendment to the Brady Act requiring states to submit mental health records to the National Instant Criminal Background Check System (NICS). This amendment was passed after a gunman killed more than 20 people at Virginia Tech University and was supposed to ensure that people who were prohibited from buying a gun due to a mental health disability were not allowed to do so, as the gunman at Virginia Tech was. Before the law was signed, only 22 states turned over such information voluntarily, and even since the passage of the 2008 Brady Act Amendment, many states are not in full compliance with its requirements. In fact, the law provided financial incentives to try to speed the process, with mixed results - as recently as last month, DOJ was still putting out grant funding to get all states up to date. 

Lastly, "straw" purchasers, people who are not legally prohibited from buying guns and do so and then sell (or give) those guns to others, need to be made a priority by the Department of Justice and laws need to be strengthened to stiffen the penalties for making straw purchases, up to and including allowing prosecutors to charge straw purchasers with the same crime as those charged for the crime in which the straw purchased gun was used. 

Of course, adding prosecutors to go after straw purchasers and traffickers or making sure that all states are current in transmitting mental health records to NICS costs money and lord knows how friendly this Congress is toward giving more money to the federal government to discharge its duties. And such efforts do not even scratch the surface of the deeper questions of how to bring economic opportunity, better educational outcomes, and greater safety to cities where most of the gun violence is taking place in our country. But in the meantime, it would not kill the people who report on these issues to do a little digging to better understand the nature and reality of gun violence in America so they can start pressing our leaders to do things that will actually make a difference. 

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Mr. Brady Fights Back

President Obama’s recess appointment of Richard Cordray as Director of the Consumer Financial Protection Bureau, as well as three members of the National Labor Relations Board got me thinking about a classic Brady Bunch episode.  In A Fistful of Reasons  (Season 2, Episode 8), Cindy is teased by a bully named Buddy Hinton because of her lisp[1].  When older brother Peter tries to mediate, Buddy gives him a black eye.  When Mr. Brady counsels Peter to attempt “calm, cool reasoning” with Buddy, it does not work and Mr. Brady’s attempt to get Buddy’s dad to get Buddy to stop is similarly unsuccessful.  So dismissive is the Hinton clan that Peter is finally told he needs to fight back, which he does, knocking one of Buddy’s teeth loose and subjecting him to the ridicule and scorn of his classmates[2].

I have often thought that President Obama has been leading with a mini Mike Brady on his shoulder, constantly whispering “calm, cool reasoning” into his ear on everything from health care to financial reform, from the debt ceiling debate to the federal budget.  For all of Mr. Obama’s attempts at conciliation, he’s gotten beat up a little worse each time he attempts to avoid a fight.   Part of it probably had something to do with the President’s 2008 campaign, and his desire to lower the partisan rancor once he was elected.  Another part may simply be his natural inclination toward compromise (not necessarily a bad thing, mind you) and a desire to find a middle ground solution that respects disparate views and differing opinions.  Whatever the reasons, it seems clear that the President is done turning the other cheek. 

Bullies only respond when you punch back, and the President is punching back.  For nearly three years, Republicans in Congress have done everything in their power to stop the President from implementing his policies.  The record is replete with examples from meaningless procedural votes to stall legislation to holding up confirmations of senior executive branch officials for months on end only to have those holds removed and the nominees approved by overwhelming majorities.  As I discussed in a prior post, President Obama and the Congress of Doom, important pieces of legislation that keep the government running and our ability to borrow to pay (past) bills, are now subject to “hostage taking” tactics that imperil the government’s ability to function and are only resolved when substantial concessions Republicans would not otherwise be able to achieve through the normal legislative process, are granted.

Perhaps the final straw for the President was the filibustering of the Public Printer (GAO) or the denial of an up or down vote on Caitlin Halligan’s appointment to the D.C. Circuit Court of Appeals, but the shenanigans and non-sense that Republicans have thrown out there is no longer being humored by the President.  Firm pushback will be needed for the legislative battles to come, as 2012 will see the expiration of all the so-called “Bush Tax Cuts,” the 2013 federal budget and the potential sequestration cuts that target the Department of Defense and other agencies.  On a more granular level, the President needs to force Senate Republicans to honor the “Gang of 14” compromise and no longer filibuster judicial nominees and, if necessary, Senator Reid needs to move for changes to the cloture process to stop these stalling tactics. 

For the mainstream media, this sudden dust-up is just another narrative that they insert into the “conflictinator” framed as a Presidential “declaration of war” on Congress or a sign that the President is ready to “do battle.”  Of course, this media narrative has both the advantage of sensationalism and the disadvantage of being factually incorrect[3].  Republican use of the threat of the filibuster has been invoked in more instances than at any other time in the modern history of the Senate.  The blocking of Mr. Cordray, as some, to their credit have noted, had nothing to do with his qualifications, but rather, after-the-fact changes Senate Republicans wanted to the law creating the CFPB itself – a rationale never before used in the history of that august institution to block a nominee from serving.  That this level of intransigence is somehow transformed into the common meme of “Washington dysfunction” does the body politic great harm because it suggests that both sides are at fault, when in fact, the President’s judicious use of the recess appointment (now 32 times, compared to more than 170 under George W. Bush and 243 under Ronald Reagan) speaks to the caution and deference he has attempted to employ in dealing with the Senate. 

Of course, asking the mainstream media, which has largely morphed from a news gathering and reporting entity into a stenographic pool for political talking points, to accurately report this information is probably asking too much.  When stories are written about a lagging job market, rarely do you hear that stimulative measures like infrastructure funding are being bottled up in Congress or that private sector growth is not what is dragging down the recovery, but rather, that the historic number of public sector job losses[4] are helping to keep our unemployment numbers high.  Other stories having to do with the regulatory light hand the Obama Administration has used[5] are either limited to coverage in the liberal blogosphere or ignored entirely when politicians appear on cable news talk shows railing against the overly burdened private sector.  To suggest that there are provable right or wrong answers to questions would crater the current political atmosphere that feeds entirely on conflict and a “he said/she said” discourse that refuses to acknowledge the accuracy or falsehood of one side’s claims.

As for the President, I encourage him to continue fighting back against the entrenched opposition on Capitol Hill.  Polls consistently show not only the popularity of policies the President is advancing[6] but also an understanding that Congressional Republicans are largely at fault for Washington gridlock.  Instead of timidly negotiating, the President needs to stay on the offensive.  Politicians have a strong survival instinct, and Republicans on the ballot this year understand that lockstep opposition to politically popular ideas is a losing proposition.  Small fissures are already being seen.  For example, Senator Scott Brown chastised his own party for blocking Cordray’s nomination, and, with regard to the payroll tax cut, a number of House and Senate Republicans in difficult re-election races came out in support of the compromise before Speaker Boehner finally capitulated.  Ultimately, if the President turns the heat up on job creation, infrastructure spending and tax policy that benefits the middle class, Republicans in tight races will do the political calculus and understand they do not want to be vulnerable to charges that they are impeding nascent economic growth or raising taxes on middle class families but protecting the wealthy. 

So fire away, Mr. President.  Calm, cool reasoning has not worked, no one will begrudge you taking a big old swing at the loyal opposition.

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[1]   Viewers may recall Buddy’s signature line “Baby talk … Baby Talk .. It’s a wonder you can walk.”

[2]   Although Peter, to his credit, tells the students to knock it off.

[3]   Sadly, the latter does not seem to matter much to journalists these days.

[4]   Nearing 1 million in the last two years.

[5]   Obama has approved fewer regulations than President George W. Bush had at the same point in his presidency and the cost of regulations is half of what they were at their peak, under President George H.W. Bush.http://news.yahoo.com/blogs/ticket/obama-approved-fewer-regulations-bush-greater-number-expensive-145552280.html

[6]   To take just one example, a December 2010 CBS News poll indicated that 60% of all Americans, and 43% of Republican primary voters, supported raising taxes on millionaires. http://www.cbsnews.com/8301-503544_162-57345810-503544/poll-most-back-raising-taxes-on-millionaires/