Unbelievably bad reporting on the Clinton e-mail "scandal"

[BzaDem]

It is amazing (though perhaps not surprising) to see the media's reaction to Comey's announcement today. The media has spent the last year blowing up this story, keeping many people on the edge of their seats. Then, when Comey announces the no-indictment decision that should have been obvious to the media from the beginning, they treat it as some sort of earth shaking announcement.

Why was this outcome so obvious from the beginning? Much of the high drama surrounding this "scandal" has resulted from the conflation of two legally unrelated issues:

1. Clinton's decision to use a personal server for her e-mail communications while secretary of state

2. The presence or absence of classified material on an unclassified server

The open secret is that issue #1 is completely unrelated to the laws of classified information. Quite simply, using a personal server is not against the law, nor could it be the basis of any prosecution. It is illegal to communicate classified information over any unclassified system, including the official State department e-mail system. All classified information can only be discussed over a completely separate classified system.

The law makes no distinction between private servers and unclassified servers run by the government. Comey alluded to this at the end of his press conference, where he said that others today could be face administrative sanctions for hosting a private server. Left unmentioned was any possibility of legal sanctions, perhaps because it simply does not violate the law in any way.

This point doesn't by itself get Clinton off the hook. It just means that the entire "scandal" would have to rest on #2. To put it another way, if Clinton didn't use a private server, and instead used the official State department unclassified e-mail system, her actions would have been identically legal or illegal (and would depend on the content of the mails sent over the official e-mail system). So if one wants an honest evaluation at whether Clinton violated the law, they should evaluate what would happen if there were no private server involved (given its legal irrelevance).

Could you imagine how this "scandal" would have evolved, in a hypothetical world where Clinton didn't use a private server? "Breaking news: of tens of thousands of e-mails HRC sent or received on the official State Department e-mail system, a small number may have had classified information?" Yes, that could conceivably violate the letter of the law. But only in a way that would also apply to nearly every past secretary of state, every high level state department official, and many aides. In such circumstances, this entire "scandal" would have been a nothingburger. Yet because of the distinction of Clinton using a private server -- a distinction that has no bearing on whether Clinton violated the law -- the media breathlessly reports about "possible indictments" for an entire year.

Why didn't Comey just come out and say this? In fact, why didn't he just come out and say this a year ago? The intelligence community has been critical of State Department practices for handling classified information long before Clinton became secretary of state. (Comey alluded to this, with his criticism of the State Department culture.) The intelligence community regularly over-classifies information, and has a long standing beef with other agencies that take the laws of classification less seriously. (Recall that several classified e-mails were classified solely because they mentioned the drone program, which has been common knowledge for nearly a decade.)

My guess is that the "private server" was an excuse that was taken advantage of by people who had long-standing opposition to state department classified information-handling practices. Perhaps the state department should be taking these issues more seriously. Perhaps that is why Comey was so critical of HRC's conduct. But the reason this has been a huge HRC story (rather than a government-turf-war/inter-departmental-disagreement story) is due to a legally irrelevant distinction, taken advantage of by government officials with agendas, and a ratings-obsessed media.

[The_Casual_Observer]

1. The government IT structure sucks. It ought to be investigated

[Surya Gayatri]

2. Massive K & R, if only for this:

But the reason this has been a huge HRC story (rather than a government-turf-war/inter-departmental-disagreement story) is due to a legally irrelevant distinction, taken advantage of by government officials with agendas, and a ratings-obsessed media.

[Her Sister]

13. Am joining y'all with the standing ovation!~

OP was great and knowledgeable!

[betsuni]

3. K&R

[pnwmom]

4. Thank you for a brilliantly written post to which I'd like to add one little point.

I have been trying to explain, again and again, that it didn't matter whether she used a private server at home or a private AOL server -- neither one was the .gov server she was supposed to be using. But I was never able to pull it together as well as you just did. Or to explain why they were probably pushing this irrelevant line of attack. I think you have nailed the reason. Thanks for that.

One point you didn't mention that I learned about just yesterday: Hillary isn't being given any credit for what her private system did so much better than the .gov system. It actually preserved her emails, as it was supposed to do. She was able to produce almost all of them upon request.

Meanwhile, over in .gov territory, virtually none of the official government emails were being preserved. The system wasn't set up to automatically preserve them. So if she had been asked to produce them for the FOIA request, she would probably have had almost nothing to hand over -- through no fault of her own. Just owing to the pathetically bad .gov email system they had in the State Dept. (and in other agencies throughout the government.)

In 2011, for example, according to an OIG report, only about .006% of State dept. .gov emails got properly preserved. About 61,000 of a billion emails.

https://oig.state.gov/system/files/isp-i-15-15.pdf


March 2015
Office of Inspections
What OIG Found

A 2009 upgrade in the Department of State’s system
facilitated the preservation of emails as official records.
However, Department of State employees have not
received adequate training or guidance on their
responsibilities for using those systems to preserve
“record emails.” In 2011, employees created 61,156
record emails out of more than a billion emails sent.
Employees created 41,749 record emails in 2013.
 Record email usage varies widely across bureaus and
missions. The Bureau of Administration needs to exercise
central oversight of the use of the record email function.

[brer cat]

5. If nothing else,

this long probe has shined a light on the inadequate and antiquated systems used by our some of our top government agencies. The point you make here reveals that very well. Thanks for adding this to the thread.

[pnwmom]

7. The R's deliberately withhold the money needed to update key IT systems

and then bleat about the work-arounds. Typical.

[brer cat]

8. Yes, and it needs to be shouted out

but it doesn't have the appeal or ratings of a Clinton "scandal." The Rs and complacent media are masters at deflection, viz., Benghazi.

[Hortensis]

21. Not "complacent" media, COMPLICIT media.

All these technical explanations are fine, and interesting, but crooked media created this "scandal." Even the lavishly funded Judicial Watch generates phony information on phony scandal after scandal to provide to the media. No coverage, no phony scandal.

And even Judicial Watch passed on many things not too low for hostile media, like Christmas 2000's little Condom-gate when Hillary decorated the White House Christmas tree with condoms. Of course, that one would have not have lent itself to a year of groundless Freedom of Information Act requests to confuse the public and keep the accusations of wrongdoing alive. People understood that widely disseminated lie in their guts immediately -- perverted, sick, intensely un-American.

These days, so many of the major media have become committed to dishonest coverage that in a strange switcheroo the best, most honest coverage of Hillary Clinton is often found on the opinion pages.

[BzaDem]

12. What makes this even more ridiculous is that Comey blamed Hillary's server for a lack of archiving

Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails, so it is not surprising that we discovered e-mails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department.

All I can say is:

[brer cat]

6. Excellent, BzaDem!

K&R

[ismnotwasm]

9. K&R

[treestar]

10. If security was what they really cared about

they'd be investigating Kerry's to make sure it is up to par.

Problem with these "scandals" is they are desperate attempts to pin something on Hillary. There never was an honest concern about it.

[Her Sister]

15. Yep, it was all done in "bad-faith! That's actually my word/term of the day!

and they were banking on it being a "game-changer".

[Lord Magus]

20. They'd also mention that Hillary's home server was MORE SECURE than the State Dept server.

That's not to say that her server was anything great in terms of security, just that the government server they lambast her for not using was a complete sieve. Foreign governments breached it effortlessly on a routine basis.

[MaggieD]

11. Excellent post - K&R

[Bill USA]

14. Corporate media is, for all practical purposes, a wing of the GOP.

http://www.democraticunderground.com/?com=view_post&forum=1251&pid=2241615

[Her Sister]

16. Great great post! Thanks for taking the time to share your knowledge and take on the whole she-bang!

Wondering your take on these two articles posted elsewhere in DU that add to what you're saying:

Some Bullet Points about the Email

I’m a Federal government employee, a lawyer, and a former intel analyst for the military. (It should be noted that I blog here in my personal capacity as a private citizen and speak only for me.)

I have a few points to make about this whole shit show of a fake scandal:


Continues with many bullet points: http://www.dailykos.com/stories/2016/7/5/1545413/-Some-Bullet-Points-about-the-Email

and:

Here’s Why Hillary Clinton Isn’t a Liar and James Comey Needs to Shut the Entire F*ck Up


http://thedailybanter.com/2016/07/heres-why-hillary-clinton-isnt-a-liar-and-james-comey-needs-to-shut-the-entire-fck-up/

[BzaDem]

17. Both articles make great points.

The first article discusses at length how if ANY other high level state department official (or high-level officials of many other departments) had the same scrutiny, they would be looking just as "bad." It is also notable how bad the security/retention is of the official system. I recall Kerry at one point saying how they all just assume the Russians are reading everything they put on their own unclassified system.

As for the second article... I knew there was something fishy about Comey not giving an exact number of e-mails actually marked classified. He talks about how the distinction doesn't really matter as far as the law goes, but it certainly matters as far as HRC's credibility goes. She limited her statements to e-mails that were marked classified, which was sensible given the tens of thousands of e-mails in question, and how ambiguous classification can be. When he gives an exact number of every other type of mail (broken down by classification levels and time of classification), but simply says "a very small number" for the actual question that goes to her credibility, he's likely hiding something.

And sure enough, it turns out the "very small number" was 2! 2 mails that were improperly marked with merely a (c), classified at the confidential level (which apparently any phone number would be classified at).

I could imagine that some of the coverage yesterday would have been different (at least on the point of her credibility), if he was as specific about that as he was about every other numerical detail.

[Her Sister]

18. BzaDem Thanks again for your thoughtful opinions and take ons!

Very interesting! Yes, Comey used those 15 mins to try to pull some kind of indictment of sorts. Not cool! The media acting clueless!

[Her Sister]

19. KnR