Hillary Clinton’s Private Email Server
How Can a Subject Be Exhausted & Yet So Poorly Understood?
I voted for Hillary Clinton for president in November of 2016.
Never have I experienced even a pang of regret. If it were possible to turn back time to election day, I would keep the world frozen, like Groundhog Day, reliving the sequence of events until votes tipped in favor of the Democratic nominee for president.
Like millions of others, I cast my vote for Clinton despite the reservations regarding her politics, both on a policy and a personal level. My guess would be that those like-minded number a majority or near-majority of Democratic voters. Yet we have no prominent voice on a public stage dominated by party establishment figures who regularly misconstrue our votes in favor of Clinton as denial of her several significant failings.
One particularly concerning lapse in judgment was Clinton’s use of a personal email server to host email correspondence while she was Secretary of State. Once a campaign flashpoint, the subject of Clinton’s server continues to evoke churlish discussion and sweeping verdicts. But, despite its prominence, the whole saga of the email server has yet to elicit very much good reporting. We have not exhausted the subject; we’ve succeeded only in making the subject exhausting.
Lacking meaningful clarifications and appropriate context, we are trapped in a Groundhog Day of our own making: an endless loop of ignorant recriminations and pointless asides. All the more reason to set the record straight.
The Federal Records Act and the Presidential Records Act: What Are These Things?
Both the President and the Vice President, as well as certain highly placed officials throughout the executive branch, routinely create documents or other material, or respond to correspondence, that the law deems a “public record.” For the White House, the law governing that designation is the Presidential Records Act (1978). Its predecessor and model, the Federal Records Act of 1950, determines what is an official federal record for all other executive agencies. To the best of my knowledge, every agency subject to the Federal Records Act has a Senior Agency Official for Records Management (SAORM, or some variation of that title) responsible for the initial preservation of federal public records.
Relative to the enormous amount of material produced by any given executive agency, the small number of items designated a federal record would surprise most people. Even more surprising is that most of those items categorized as “federal record” are ultimately destroyed — an unhappy concession, at least for the inquisitive, to the unwieldy terabytes of data and reams of paper the US government produces on a daily basis. In the end, most public records are lost to history.
But not before the SAORM puts a scheduled record preservation and destruction plan in front of the National Archives and Records Administration for review. Significantly, there is an interval of time that falls between the identification of a federal record and its ultimate fate — preservation or destruction. This period of time winds up being crucial, since the determination of what is a “federal record” establishes the universe of material eligible for Freedom of Information Act requests. If public, a record may be obtained by any party filing a FOIA request, unless it meets the law’s definition of information that may be withheld. Much of what can be obtained via FOIA requests will ultimately be destroyed, so it is incumbent upon researchers and advocates to file requests in a targeted and timely fashion.
Likewise, any person who takes a very senior position in a federal agency — like Secretary of State — can expect all government-related emails to be archived, at least initially, as a federal record. If that person chooses to use a personal email (like gmail.com), they should expect that a Freedom of Information Act request, or even a request for information from Congress, will entail the SAORM of their agency retrieving all public records from her account. Hopefully, that senior official complied with archiving guidance by forwarding these emails to their official account and tagging them as “official” in real time. If not, or if there is any dispute over the comprehensiveness of the record, then the SAORM or his or her designees will screen that person’s personal email account to identify and retrieve federal records.
This quote, taken from the FBI’s report on its investigation into the Clinton email server, demonstrates that cabinet-level appointees are acutely aware that doing official business on personal email accounts (including those tied to mobile devices, like a BlackBerry) would render those records “subject to the law.” It is critical to note that former Secretary of State Colin Powell is not warning Hillary Clinton that use of her BlackBerry to conduct State Department business would mean that material on the device would one day be stored at the National Archives. (Personally I would take some satisfaction if government officials feared historians to an extent that required circumspection. But they don’t.) Here Powell is instead cautioning Clinton that her BlackBerry could become subject to a FOIA or congressional request, and that all the material on it would have to be screened for relevance. The operative concern was not posterity, but partisans.
Servers, Domains, and Email Accounts: *Not* The Same Things
It may surprise you to learn that Hillary Clinton has never had a personal email problem. She has had only one problem with regard to public records management and the potential unauthorized transmission or storage of classified information: an email server.
Had Hillary Clinton simply used a personal email account for public business while serving as Secretary of State, she would have been in violation of explicit State Department policy, but any meritorious legal request for documents would be served to the company hosting her email service. At that point, a SAORM or other third party would filter through her email and identify responsive records. Likewise, any concerns regarding the potential transmission of classified information, intentional or otherwise, would involve obtaining and identifying classified information from the same universe of records, as well as uncovering any security breaches via inspection of that company’s log-in records or a potential phishing scams.
Naturally, Secretaries of State and others with classified clearance are not supposed to use anything but official channels with secure protocols to send and receive classified information. By all available evidence, Secretary Hillary Clinton was a responsible custodian of classified protocols. Nevertheless, mistakes happen. A staff person may send an email outside secure channels citing a news article that relies on classified information, for example; or an email may contain information that is classified after-the-fact. None of these present dire ramifications, nor do minor incidents like this trouble any reasonable person.
On the other hand, a server is a different from an email account. It is a physical piece of hardware that can be configured to host one or more domains that can in turn serve as host to an email service. Clinton did not simply have a private email account; she had her own server — with several domains, including a couple intended for President Bill Clinton and his staff. That server (and its retired predecessors) has never been in the hands of an SAORM or other public official, including the FBI, prior to being wiped of information by Clinton’s tech team. Using its own technical capabilities and some secondary sources, the FBI recovered some information from those servers. They did not get it all, and no one ever will.
By intentionally destroying all independent routes of access to the server, and all remaining emails, Clinton and her surrogates acted as judge and jury in what was in effect her own trial. Such a preemptive use of power could never happen in a case of personal email use, and the (annoyingly) frequent analogies to such cases are inapt. For example, one commonly cited scenario compared to Clinton’s server came in 2007, when it became known that some Bush administration advisers used an email domain hosted by the Republican National Committee for what they deemed “political” (not official) business. Contrary to that justification, they did in fact discuss official matters in this venue, some of which fell under the Presidential Records Act. When Congress demanded that the White House surrender all emails that qualified as public records from the RNC accounts, the White House claimed to have lost many of them as a result of improper archiving. The Obama administration searched a little harder, prodded by a lawsuit inherited from the Bush era, and ultimately found the missing emails on “recovery tapes.” As far as I know, the National Archives is still in the process of screening the data source for public records. This time-consuming process, while frustrating, is notably superior to the RNC, or Karl Rove, determining what does and does not qualify as a public record, and then destroying whatever remaining records they deemed “private.”
If public business is conducted on a personal account, a private domain, or a private server, and those exchanges are not disclosed, archived, or handled properly, then it is obvious — to all but Clinton and her devoted defenders — that the National Archives or a SAORM, with no partisan axe to grind, should sort out the remainder of material. Naturally it is also self-evident that such material be preserved until that sorting takes place. In fact, if any unvetted items happen to be federal records, it is against the law to destroy them (18 U.S.C. Section 2071).
What Exactly Did Hillary Clinton Do?
Around the time she was sworn in as Secretary of State in January of 2009, Hillary Clinton directed her aides to configure a domain on her husband’s server, located in the basement of their New York home. This allowed her to send and receive emails on her BlackBerry device without going through a major provider (like Cingular, or AT&T Wireless, which held her previous accounts). Secretary Clinton told the FBI this shift to a completely private technical architecture within her control was a matter of “convenience.”
It’s hard to understand what Clinton gained in terms of convenience by shifting networks from a major company to a small tech team under contract to the Clintons. But the move to a personal server did give her the ability to control how she would comply with a legal request for information, so it is fair to assume that obtaining precisely that kind of power was chief among her motivations.
In this one extraordinary move, Secretary Clinton entrusted essentially two random IT guys with some of the most high-level communications of the United States government. A fair reading of available evidence suggests this was her sole — and quite significant — security indiscretion. Although Clinton faithfully observed rules for passing classified information on separate, dedicated, and secure channels, not all exchanges that deserve first-class security protection fall under the category of “classified.” Outsourcing responsibility for the security of her emails to an elite team for a commercial account, like Google for “gmail,” would have been a more responsible decision — but that would have entailed losing control of record production in the event of a legal request.
Pretty quickly the personal IT team of the Clintons cycled through an Apple server (never recovered). In time, they would retire one other server as well (stored and still functioning in a datacenter warehouse in New Jersey — and, like its successor, wiped of information before FBI agents could inspect it). At the end of Secretary Clinton’s tenure at State, the Clintons decided to change servers once again, though the process took more than six months to complete. As a result, the final server the FBI spent so much time and effort probing was, from a public records or classified information standpoint, important only because information from the old server was transferred to it. It was not functioning for the Clintons during the time when Clinton was Secretary of State.
Was data actually transferred to it in full? Later recovery efforts suggest the answer to this question was yes. Was either the old or new server backed up? Also yes: a device made local copies of both servers, and held them for sixty days before expunging. When it was discovered that back-ups also appeared in a “cloud” center (off-site data storage) kept by the company executing the back-ups, the cloud back-ups were eliminated, per Clinton instructions.
In 2009, Clinton’s first year at State, the IT department introduced “SMART” (“State Messaging and Archive Retrieval Toolset” ), basically a tagging system meant to preserve emails as official records. If using a personal email — which State employees were urged, by Secretary Clinton, not to do, for fear of security breaches — State officials with federal record obligations were to forward these emails to their State Department accounts and tag them accordingly. Though SMART was intended for the entire department, and the Office of the Secretary certainly qualifies as among the most important for record preservation, Hillary Clinton’s aides asked that the Secretary and her suite be the last to receive SMART. Ultimately, the Secretary suite never received SMART while Clinton served at State, an omission or implementation failure that must be viewed as intentional.
A pattern of behavior emerges from both the State Department’s Inspector General report and the FBI investigation: Clinton and her team avoided the obligations of the Federal Records Act, and the IT department of State chose to remain submissive and silent. The Inspector General found evidence that when subordinates raised concerns about Clinton’s email and record preservation practices in 2010, the Director of State’s IT department declared that Clinton’s email had been “reviewed and approved by Department legal staff” (the Director may have been told this, but State IG found no evidence of a review and approval) and that “the matter was not to be discussed further.” A staff member recalled that the Director articulated the department’s mission as “support the Secretary” and “instructed the staff never to speak of the Secretary’s personal email system again.”
In actual practice, Clinton’s jerry-rigged email configuration wrought a sometimes comical level of confusion, as when her emails failed to reach their intended recipients, routed to “spam” as the result of originating from an unknown and obscure address. Longtime Clinton aide Huma Abedin, then serving as Deputy Chief of Staff at State, suggested releasing Clinton’s email address to the State Department so that it could be “recognized.” Clinton refused, claiming that she did not “want any risk of the personal [email] being accessible .” At another point her staff discussed replacing a malfunctioning BlackBerry with a State Department model, but backed off when the IT staff made it clear that a device furnished by them would be subject to FOIA requests.
Clinton managed to leave the State Department without ever being asked to comply with the Federal Records Act (required by law as a component of separation), or turn over access to her email account or personal server (required by law and State Department guidelines). This seemed to attract little notice at the time. In fact, most State Department officials were not even aware that she used a personal email account for official business, and those who were — by virtue of having received emails from Secretary Clinton herself — described a return address that simply said “H__”, or some other formulation that gave no hint of a unique, private domain, much less a personal email server.
But then came the Benghazi investigation, and with it congressional requests for information.
The first of these requests came in October 2012, but none entailed Secretary Clinton’s personal communications until the following June, months after she had left government. Once a State Department official discovered a relevant email chain which included Clinton’s personal address, the agency launched an internal discussion. From the evidence, little came of it, not even the required notification of NARA of potential loss of federal records.
Not surprisingly, the volume of documents requested by Congress increased substantially after the House voted to establish a House Select Committee in May of 2014, and the State Department reached an agreement with that committee on the production of federal records several weeks later. As the agency sought to comply, it became clear from internal discussions that State’s IT department and SAORM had dropped the ball, and not just with Clinton. In October and November of 2014, the State Department requested that all email-using former Secretaries turn over any federal records in their possession. Through representatives, Madeline Albright responded that she did not use email; Condoleezza Rice said that she never used a personal account for public business. Clinton and Powell admitted using a personal account for official business; in Colin Powell’s case, he used a commercially available email domain on a computer linked to a private telephone line. He provided no copy or access to his personal emails.
In contrast to Powell, Clinton dispatched a legal team to sort through and turn over emails on her personal server. But, as Clinton’s chief of staff Cheryl Mills made clear in her letter of transmittal, the department already had these emails, because they were captured on the government domains (.gov or .mil) of recipients.
However, Mills knew that this was not correct, as she had herself overseen the process of extracting more than just .gov or .mil email from Clinton’s server. Note that the search and identification criteria used by the staff person in charge (see photo) would exclude many potentially relevant records, but would capture all those sent or received by someone outside the closest circle of Clinton aides. For Hillary Clinton, transparency meant disclosing what outsiders could discover via other sources, and only that. In December of 2014, the Clinton team handed their records over to the State Department; the department subsequently began their own review to determine what was responsive to Congress as well as any FOIA requests.
On March 2, 2015, The New York Times publicly disclosed the existence of the private server. Given what followed, it’s hard to exaggerate the importance of this article.
Officials at NARA, who regard the loss or “alienation” of federal records as a grave concern, promptly requested that the State Department contact the internet providers for both Secretaries Clinton and Powell and begin the process of record recovery. (As of May 2016, the time of the State Department’s Inspector General Report, Powell’s representatives had not responded.)
By this time, the State Department had also realized that the 30,000 some odd emails surrendered by Clinton represented an incomplete record. For one thing, the collection had no emails dating from her few months in office. State requested additional records. In November of 2015, Clinton’s team responded that they turned over all that they had, and helpfully added that, “in the event” they came across previously un-surrendered material, they would “immediately” provide it to State.
It is precisely in this time range — from December of 2014 to November of 2015 — where the Clinton story completely breaks down, and any defense of her actions becomes untenable. While Clinton’s representatives presented a picture of compliance to the State Department, steps had been taken to wipe all sources of information and destroy any recovery of emails from Clinton’s server. The obliging note sent in November of 2015 constitutes, in effect, a lie. Immediately following the production of emails to the State Department in December of 2014, the Clinton team (Mills and Samuelson) used “Bleachbit” to erase all emails from their laptops. After The New York Times story appeared, the House Select Committee on Benghazi followed up with a letter to Clinton’s legal team requesting that all federal records from the server be preserved and produced. The Clinton team’s response was to allow their tech person to delete the email archive on the current server and BleachBit the exported files, an action that he undertook in direct defiance of the Federal Records Act, a congressional request, and by this time a congressional subpoena as well. His explanation, provided after-the-fact to the FBI, was that he was belatedly executing a previously disregarded instruction from the Clinton team to delete this material, one that predated The New York Times story and ensuing uproar. He described this to FBI investigators as his “oh shit” moment, as in: “Oh shit. I forgot to erase all that stuff they asked me to erase earlier and it is now being sought by legal authorities. I better erase it now.”
But the “oh shit” moment was instead a “bullshit” defense, a flimsy pretext intended to provide cover for the intentional erasure of federal records following a congressional request, sparing Cheryl Mills or anyone else plausibly implicated of criminal charges. The FBI also found that the tech in question also manually deleted the server back-ups stored “in the cloud.” In fact, all hardware associated with Clinton’s email archive (including laptops used to transfer material) disappeared or was expunged of records.
A person might reasonably make any and every generous assumption regarding confusion over how to properly manage and archive official emails sent from a personal account during a period of transition and change. But not a single one of these applies to the destruction of data. These actions violate federal law, and necessarily raise suspicions regarding un-surrendered information left behind on the server.
Why Did She Do It?
For Clinton and her acolytes, the information left behind on her server, much of it now lost, was nothing but innocuous. The Secretary herself has promised that she made an effort to be “as transparent as” she “possibly can.” Her lawyers emphasize that in producing a large dataset of emails for the State Department, Clinton followed essentially the same process as others who forward personal emails to official accounts for preservation. They neglect to mention that others exercising the same discretion use commercial servers accessible to legal requests for information, or that once discovered improperly handling emails, they must surrender all information to be sorted by a third-party (or both).
In fact, we know for certain that Clinton did not turn over to State all of her emails which qualified as federal records; the FBI has told us as much in their report. But we hardly needed their technical review, given the gaps in her record production. Can these federal records be recovered, as Cheryl Mills suggested, by searching the recipient’s email account on the State Department’s own servers? The process may be tedious, but at least it’s not a lost cause.
What Mills failed to mention when she made this remark is that both she and Huma Abedin had email accounts on Clinton’s personal server while working alongside Clinton at the State Department. By design, there existed a closed system of communication between and among the Secretary’s closest advisors, an interior channel that obviously involved discussion of official business. In fact I would go so far as to suggest that for Clinton, any email she sent to or received from a .gov or .mil address was, by her calculation, already public-facing, and she would not care if each and every one was recovered and made public. It is the emails circulated among her inner circle that accounts for all the “bleaching” of servers, lost laptops, and “oh shit” moments.
What did these emails concern? Despite some recoveries, we cannot make a definitive statement. I would wager with no real trepidation that the bulk of them discussed Secretary Clinton’s big side hustle: the Clinton Foundation. I would place a smaller bet that some entailed transparent political calculations and disparaging discussion of fellow politicians, including President Obama. Possibly both of these subjects, but almost certainly the first, were discussed in emails that would count as “federal records.”
The Side Hustle
(& I’m Sorry If Your Job Entails You Denying How Unsavory This Is)
It may surprise you to learn that Hillary Clinton worked a part-time job while she served as Secretary of State, and it kept her quite busy. It was a family business.
From (somewhat) humble beginnings as a fundraising mechanism to construct a presidential library, Bill and Hillary Clinton built the “The Clinton Foundation” into a massive enterprise. In 2005 they formed the “The Clinton Global Initiative,” a “networking platform” for the foundation. The foundation collected donations and implemented its own programming — rather than, for example, passing along contributions to worthy charities. By 2016, the Foundation had received close to $2 billion in donations, many of them from corporate donors, and a number from foreign governments and investors. (The Washington Post analyzed the “Clinton donor network” here.) When Hillary Clinton became Secretary of State, she promised the Foundation would disclose all foreign government donations, so that any decision that she made as Secretary might be judged against a potential conflict of interest.
Except the Foundation didn’t. As The New York Times reported in 2015, a Canadian partnership forged with longtime Clinton patron Frank Giustra, a billionaire mine investor (interested in potential mining sites all over the world) operated as an off-shore bundler to the Clinton Foundation. In exchange, he received Clinton-brokered access to political leaders in a position to approve his investment bids (whether the president of Kazakhstan, as reviewed in the Times piece, or the president of Colombia, as discussed in The New York Review of Books). When approached by the Times to explain why this arrangement was concealed and donors remained anonymous, the Foundation spokesperson claimed it was done in observance of Canadian tax laws — an assertion that the Times demonstrated to be false, in a number of ways.
Unlike the email server, plenty of good reporting exists on the Clinton Foundation, starting with Alec MacGillis, who coined the pithy phrase “Clinton Inc.” in 2013. Jonathan Katz produced a vivid and disturbing portrait in his in-depth look at the Clinton operation in Haiti published by Politico in 2015. High-profile Clinton surrogates have rebutted characterizations of the Foundation as a sprawling influence-peddling operation by pointing to its charitable works. Still, it is hard to generate a credible defense of Clinton that can account for CGI’s disbanding in the wake of her election loss, and the loss of major donors to the Foundation itself. Nothing about charity has become less urgent since the election of Donald Trump; only Clinton’s access to government decision-making has changed.
Despite ongoing interest in the Foundation, serious treatment has yet to be given to the connection between it and the Clintons’ email server. In part this is because we simply don’t have those emails. Added to that, what the American public did learn through internal Clinton communications discussing the Clinton Foundation came via the Russian hack into John Podesta’s emails released by Wikileaks shortly before the election. This confused, and for some conflated, two separate streams of emails, leading some to conclude that Americans had no business accessing emails from Clinton’s private server — when in reality, she had no business erasing them.
Judicial Watch, a conservative “watchdog” group with a maniacal obsession with the Clintons, filed suit to obtain all (recoverable) federal records from Huma Abedin’s private emails (huma@clintonemail.com). Last June, they released a tranche that revealed, first and foremost, that Clinton did not turn over all material that qualified as a federal record to the State Department (as we already knew); and second, that Clinton made a habit of sending her daily schedule to Clinton Foundation officials. Specific exchanges recovered by Judicial Watch involve exactly the kinds of conflicts-of-interest most reasonable people feared when the Clintons decided to keep their Foundation going during Clinton’s tenure as Secretary of State. Clearly, the Department of Justice recovered a substantial number of federal records from the FBI’s investigation that did not pertain to classified information but nonetheless belong in the public domain. It is incumbent upon them to furnish them to NARA for classification and eventual release.
The importance of doing so extends beyond rectifying gaps in the public record. In terms of financial scale and global reach, Bill and Hillary Clinton effectively forged a new political model by virtue of leveraging a myriad of interpersonal connections with points of government influence and decision-making. We have every reason to assume that aspects of it will be replicated, and further impair our system of government. In fact, the move by Ivanka Trump and Jared Kushner to configure a private email domain (on what I believe is a yet-to-be-identified server), made in conjunction with Ivanka Trump’s decision for form a private fund to benefit women entrepreneurs, must be judged in light of its resemblances to “Clinton Inc.” — though, as this analysis points out, we have yet to learn of any clear transgressions of the Presidential Records Act in this latest installment. Still, politicians of various stripes have clearly made up their minds to profiteer in the vast expanse that separates the reach of US global power from the closely watched subjects of interest to the American media. In this way, the Clintons are pioneers of profit in what might be called America’s global attention deficit, and their dedicated private email server is a slightly esoteric but still integral part of this story.
What Did the FBI Do?
A few months after The New York Times report that revealed the existence of Clinton’s private server, the Inspector General for the US Intelligence Community directed the FBI to investigate whether classified documents or information had been handled improperly by Secretary Clinton. By necessity, parts of the FBI’s report refer to federal records and the Federal Records Act, but the preeminent concern was whether Clinton exposed classified data to any person not entitled to see it.
Why did the FBI place its focus here, and why did Republicans in Congress decide to do the same?
Clearly the FBI had little choice in terms of who directed them to launch the investigation, and why. As for Republicans, I can only assume they wanted to focus their attention on what they gambled was a major violation of criminal law. To be clear, contrary to some reporting I’ve read, some aspects of mishandling federal records can be criminally charged, like unauthorized disclosure of personally identifiable information. But most penalties, criminal or not, apply to a current federal office-holder. The assumption that infractions will be discovered while a person is still in office is a major failing of the both the Federal Records Act and the Freedom of Information Act.
In contrast, mishandling classified information can be indicted and criminally charged at any point. Perhaps most important in the eyes of Republicans, the crime can be judged according to a “gross negligence” standard that absolves a prosecutor from proving intent.
But there is a serious question as to how such a standard would be applied in Clinton’s case. Not long ago, revelations that General David Petraeus provided classified documents to his mistress prompted the General, then serving as director of the CIA, to resign. Facing a potential felony prosecution, Petraeus signed a plea-agreement that the Department of Justice accepted (probably with some considerable internal dissension, given that what Petraeus did was intentional, and that he lied to the FBI about it). Ultimately the General was sentenced to probation and a $100,000 fine; a slap on the wrist.
With that case serving as the most immediate and relevant precedent, the Republican preoccupation with Clinton’s handling of classified material is truly puzzling. No serious person can dispute that the case against Clinton was far less incriminating, if even a case at all. There was no intentional mishandling classified information, and her culpable carelessness involved information moving along what was already a non-classified channel. Many IT professionals would jeer Clinton’s decision to place confidential conversations on a server in a basement in Chappaqua, New York. I share their derision, but confidential is not the same as classified.
In obsessing over classified material, Republicans launched themselves on a futile journey: lots of intrigue, little of substance. What’s worse, they fundamentally distorted the “harm” committed by Clinton’s server. Secretary Hillary Clinton did not render the Intelligence Community more vulnerable; by violating laws intended to serve the public, she made the American people less powerful.
All the more surprising then, that FBI Director James Comey decided to disrupt an imminent presidential election with more of the same obsession over classified material. While political interference of this kind is normally regarded as taboo, Comey did not impose a particularly high threshold of evidence to overcome scruples. In late October of 2016, he notified Congress that a laptop obtained through investigation of Huma Abedin’s ex-husband might contain information pertinent to the FBI’s Clinton inquiry, which the agency had previously declared “closed.” Since that time, Comey has justified his bad judgment by speculating that information found on the laptop might have captured some of the earliest emails sent by Clinton as Secretary of State, perhaps revealing a motivation behind the move to a private server. In order for this sort of disclosure to have bearing on the FBI’s probe, it would need to illustrate a desire to move classified material via unauthorized channels, supplying the elusive component of intent — for a crime that the evidence shows Clinton just did not commit. Or perhaps we should assume that Director Comey held out a possibility that Clinton would express an intent to be grossly negligent. Either scenario seems highly improbable.
More absurd than the flimsy rationales was Comey’s insistence that notification of Congress was required before evidence was in hand, simply because he was told it was uncertain that the new material (some 650,000 emails, most of them duplicates) could be searched prior to the election. Not a single responsible data scientist would support this contention. In fact, none has.
The misguided obsession with classified material not only substantially misstated what was at issue with Clinton’s email server, it enabled a reckless violation of political norms that quite likely cost Clinton the presidency. Comey’s “October surprise” is the biggest, and certainly the most consequential, “bullshit” moment of the whole saga.
What Does it All Mean?
Because our conversation on the Clinton email server is so very bad, we have mischaracterized fault, and mislaid blame. For example, many public references to the graph below, produced as part of scholarly analysis comparing election-season news coverage of Clinton to Trump, insist that it shows why Clinton lost the election.
I agree. But it is not, as most who point to it claim, because of profound media bias. It is because Donald Trump’s signature policy proposal — the “wall,” and all the ethno-nationalist, anti-immigrant fervor it invoked and embodied — shaped media coverage of his campaign. Clinton had no analogous core message. She did not dominate the news; the news dominated her.
Another troubling dimension to this graph is that, despite the extraordinary number of “sentences” dedicated to Hillary Clinton’s “email,” much of what is contained in the above review will be news to most people. Notable exceptions exist, most of them outside mainstream media. But knowledgeable contributions never got the same attention as ill-informed defenses of Hillary Clinton’s conduct (some notable instances of which were discussed here by Marcy Wheeler), nor did the “straight reporting” of this issue ever really amount to a serious effort of doing just that. After “emails” claimed so much time and attention from the apparent gatekeepers of our political culture, ignorance and distortion should not still characterize so much of what is said.
Media incompetence, more than media bias, is one important reason why Donald Trump was elected president. That it is only one, albeit one of the most alarming results of the decline in our public discourse owing to a monopolized corporate structure that is addicted to “content,” but hostile to substance.
Another distressing aspect of the Clinton email server saga that has by and large escaped attention is the role Congress has played in jeopardizing both public records and classified material. By imposing rigorous standards of information storage and transmission without enhancing capacity, Republicans in Congress apply a series of unfunded mandates across the federal government, leaving responsible officials working in executive agencies wondering how best to fail, rather than deciding which way to succeed. During Clinton’s tenure at the State Department, for example, the IT requirements and classified protocols in place amounted to a choice between evasion of certain rules, or an obstacle to work. In this way, violations of guidelines, if not laws, become an unspoken norm, leaving enforcement against infractions as an inherently selective and, on some level, essentially political exercise.
Our own ignorance reinforces this capricious application of power. Instead we should demand diligence, and reclaim the discussion of how to handle property that belongs to us, the members of the public, and what constitutes a secret worth keeping from our view. We have delegated much to political insiders like the Clintons, as well as a national security apparatus, elements of which operate in a rogue and partisan fashion. To steward the public interest, we have relied on captious partisans like Republicans in Congress, and a news media that fails to provide meaningful accountability. Who owns our democracy? That is the crux of the Clinton server debacle, applicable to multiple dimensions of the story. That the question goes unasked means that, right now, the answer is: certainly not the American people.
