2016 Postmortem
Related: About this forumClinton: Not a Scandal, Yet. But… - By Michael Tomasky
The Times was sloppy, and the Beltway overheated as usual. But even if this story floats away, Clinton needs to learn some lessons from it.So by now weve read every possible interpretation of why Hillary Clinton used a personal email account to conduct her State Department business. Theres a lot that isnt clear, and a lot we still dont know. The main thing we know that is the original Times story that broke the news was really slipshod, staggeringly so for such a major story in Americas best newspaper. After I and others noted this, you could tell the Times acknowledged as much, because the papers Day Two follow-up didnt really have any new news, just facts and dates that should have been in the original article to begin with. It took reporters the better part of the day Tuesday to figure out exactly which regulation the Times piece was accusing Clinton of potentially violating.
Even Mark Halperin, nobodys idea of a Clintonista, slammed the original article. There are things in the Times story that if theyre not flat out wrong are really misleading and unfair to the Clintons, he said on Bloomberg TV.
The Times overheated sloppiness does not mean, however, that Clinton is totally in the clear here. I didnt say that (Clinton still has some questions to answer, I wrote Tuesday). The citizens on whose behalf she was conducting business obviously have the right to hear her explain why she opted to use a private account. And we have the right to know whether the private server was more secure than States or less, and whether any classified information was electronically transported across this server. (You may think it implausible that a private server could have been more secure than States, but remember, Wikileaks didnt seem to find the State systems too impenetrable, and it is after all the federal government were talking about.)
If the answers to any of these questions turns out to be alarming, this could become a legitimate scandal. And of course, depending on the content of the emails, we may well be in for another, related Clinton scandal. She doesnt have to have said anything self-incriminating in these emails. The way the other side is out to get her, one ill-considered verb could end up being hung around her neck for days or weeks.
more
http://www.thedailybeast.com/articles/2015/03/06/clinton-not-a-scandal-yet-but.html
BeyondGeography
(39,393 posts)Christ, hire a modern day Chuck Wepner or the Washington Generals, I don't care. Change the narrative, at least for Democrats. Absent a real primary season, it will be the death by a 1,000 cuts that Biden's pal spoke about yesterday.
hedgehog
(36,286 posts)from the Right, we need someone focused on fighting for us.
Jackpine Radical
(45,274 posts)"The way the other side is out to get her, one ill-considered verb could end up being hung around her neck for days or weeks."
Thsi is classical conditioning at work, in the best Luntz style. First you find something that produces reactions of disgust in people. Benghazi, for example. This is your unconditional stimulus. Then you just find ways to keep pairing it with Hillary. There needn't be a logical connection, just the repetitive pairing. Eventually Hillary takes on the unsavory valence of the unconditional stimulus, so that any time the recipients of the training hear her name or think of her, that is sufficient to elicit the negative emotional response. And of course people "vote their guts."
MBS
(9,688 posts)http://www.washingtonpost.com/opinions/hillary-clinton-is-yet-again-her-own-worst-enemy/2015/03/03/02bc9c7c-c1cb-11e4-9ec2-b418f57a4a99_story.html
While this issue festers, it robs the Democrats of ammunition to criticize the various (and much worse) acts of malfeasance of potential Republican rivals. Fair or not, HRC really is going to have to address some of these questions delineated by Ruth Marcus (below) sooner or later (preferably, sooner rather than later) so that her campaign can move on to important issues like, for instance, the future of our country and on implementation of a top-flight political strategy to win this very important 2016 election and save us from a terminally rightwing Supreme Court.
To be clear, I am not trying here to pile on or to repeat RW talking points. Instead, I am pleading with both the Clinton campaign (and I assume that it is a campaign) and the Democratic party to get their respective acts together, for the sake of 2016, and our country. Here is Ruth Marcus in today's Washington Post:
http://www.washingtonpost.com/blogs/post-partisan/wp/2015/03/05/thirteen-or-so-questions-for-hillary-clinton/
Why did you make the decision to use a personal email account rather than government email upon becoming secretary of state?
Why did you believe this approach was necessary and/or preferable to using an official e-mail account? Did others working for you at the State Department use personal e-mail for government business? If so, please identify them and explain whether their correspondence has been transferred to the State Department. Would it have been appropriate for others working for you at the State Department to use personal e-mail for official purposes? If not, why does a different standard apply to the secretary?
What steps did you or others working on your behalf take before making this decision to determine whether it complied with applicable laws and regulations, and whether your communications would be adequately secured? Specifically, did you consult with officials at the State Department, the White House, or other government agencies to determine whether this approach was permissible?
If not, why not, given the obvious questions about compliance with federal disclosure laws and concerns about cybersecurity?
If you did consult with officials, what were you advised? . . .If you were advised that applicable laws and regulations did not permit and/or counseled against the use of private e-mail, why did you decide to proceed with that plan?
Please explain how the decision to rely on personal email and not to provide the records until after your departure and after being requested complies with, as your spokesman has said, the letter and spirit of the rules. Specifically, C.F.R. 1236.22, which dates from 2009, provides that agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system. What steps did you take to comply with this requirement?
When e-mails were turned over to the State Department last year, who in your office determined what e-mails constituted official business and what standards did they use to make that determination? Did anyone from the State Department oversee or vet this process to ensure that all relevant e-mails were supplied?In 2007, criticizing the George W. Bush White House during the controversy over fired U.S. attorneys, you decried the use of secret White House e-mail accounts to conduct government business. Please explain how your use of personal e-mail differed.
All of this could have been avoided had her team put a little more thought into the political consequences of setting up her SoS email correspondence in this way.
leveymg
(36,418 posts)Last edited Sat Mar 7, 2015, 05:10 PM - Edit history (15)
attention away from the actual violation of law by Mrs. Clinton.
Here's the problem with the narrative that Michael Tomasky laid out the day this story broke in the NYT. Many of us have swallowed and made Tomaskys narrative our own. Quite suitably his column in The Daily Beast is called, Nothing to See Here. http://www.thedailybeast.com/articles/2015/03/03/hillary-email-scandal-not-so-fast.html
Tomasky claimed that The NYT misled its readers when it printed an article Monday that Clinton had apparently violated the Federal Records Act. He responded that Clinton had only broken a rule that came into effect after she left office, and had not violated law. But that is simply false.
The NYT actually stated the violation of the Federal Records Act was in Clinton's failure to reveal the existence of her private email set up to conduct official business. Furthermore, the Times reported, Clinton had not taken steps to backup that data or protect it on government servers, information that wasn't revealed until two months ago when she was pressed by the Department to account for her email produced while in office. Mrs. Clinton resigned in February 2013. Tomasky wrote:
The (Times) article says that there were new regulations that Clinton was supposed to abide by.
Here, Tomasky committed the classic deception of seizing on an irrelevant point -- in this case, 2013 regulations that mandate official email use - as Tomasky labors to tell us, that rule postdated Secretary Clinton's departure from the Department. If that was all there was to it, Tomasky would be right and the Times would have committed an enormous "fishy" error.
What Tomasky did not explain, however, is that the controlling statute, the Federal Records Act, dates back to 1950 and it applies to all heads of federal agencies. The relevant part of that act was amended in 1976 (when Hillary was barely out of Law School). The original Act stated that all records must be preserved and conveyed to the National Archives. The mid-70s amendment specifically added "machine-readable documents" to the definition of record. That amendment as it stood while HRC was Secretary of State mandates that no records or official communications "regardless of form," -- including "machine readable" documents -- may be destroyed or altered, and that they must all be preserved and handed over to the Archivist. The statute imposes that affirmative duty on all heads of agencies.
The Records Act statute is binding, even without the later regulation. Failure to comply is and has always been unlawful. So why did the Bush Administration get away with erasing nonofficial emails, as was discovered in 2007? They could without mandatory penalty, and so they did. So did Hillary, who along with her lawyers undoubtedly learned something from that episode. There are no stated penalties for violation by the head of the agency, they have no incentive (other than possible political consequences) to comply. If you can delay the public learning about the breach of law long enough, the political reaction will be muted because there is little or no chance of criminal prosecution. http://www.archives.gov/about/laws/fed-agencies.html#unlawful
(a) FEDERAL AGENCY NOTIFICATION.The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed from that agency, or from another Federal agency whose records have been transferred to the legal custody of that Federal agency.
(b) ARCHIVIST NOTIFICATION.In any case in which the head of the Federal agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action described in subsection (a), or is participating in, or believed to be participating in any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.
§ 3107. Authority of Comptroller General
Chapters 21, 25, 27, 29, and 31 of this title do not limit the authority of the Comptroller General of the United States with respect to prescribing accounting systems, forms, and procedures, or lessen the responsibility of collecting and disbursing officers for rendition of their accounts for settlement by the General Accounting Office.
Here are the operative definitions:
The statutory definition or records in the Federal Records Act (per the latest version shown at https://www.law.cornell.edu/uscode/text/44/3301:
As can be seen, the definition is based on the anything made or received by a federal agency in connection with the transaction of public business, regardless of physical form. The specific things mentioned, like books and maps, do not limit that broader concept.
If you click on the notes tab, you find that "machine readable materials" was added in the 1970s. Again, though, the specific form in which data is embodied is not important. Here's that amendment in the attached Note:
44 U.S. Code § 3301 - Definition of records
Current through Pub. L. 113-296, except 113-287, 113-291, 113-295. (See Public Laws for the current Congress.)
US Code
Notes
Authorities (CFR)
Source
(Pub. L. 90620, Oct. 22, 1968, 82 Stat. 1299; Pub. L. 94575, § 4(c)(2),Oct. 21, 1976, 90 Stat. 2727.)
Historical and Revision Notes
Based on 44 U.S. Code, 1964 ed., § 366 (July 7, 1943, ch. 192, § 1,57 Stat. 380).
Amendments
1976Pub. L. 94575 expanded records to include machine readable materials.
Regardless of what the underlying law actually stated, Tomasky wrote the original NYT story that reported that Hillary Clinton had set up her own email system was "fishy", and that Times reporters and editors didn't know what they were doing:
The article says that there were new regulations that Clinton was supposed to abide by.
So, a key question would seem to be this: When did the new regulations go into effect? If 2007 or 2008, then Clinton would appear to be in direct violation of them, depending on what precisely they said. If later, it gets a little murkier.
Oddly, the Times article doesnt say. It doesnt pin the new regs down to a specific date or even year.
Now, I know enough about reporting to know how this works. If youve got an airtight case, then you lay it all out there. You include the date. Indeed you emphasize the date, you put it high up in your story. The fact that its not in there is a little fishy.
Well, this might be the explanation: The new regs apparently werent fully implemented by State until a year and half after Clinton left State. Heres the timeline: Clinton left the State Department on February 1, 2013. Back in 2011, President Obama had signed a memorandum directing the update of federal records management. But the National Archives and Records Administration (NARA) didnt issue the relevant guidance, declaring that email records of senior government officials are permanent federal records, until August 2013. Then, in September 2013, NARA issued guidance on personal email use.
So if these new regulations went into effect after she left State, then what rule did she violate, exactly?
A senior State Department official emailed me to say that in October 2014, a Department-wide notice was sent out which explained each employees responsibilities for records management. Consistent with 2013 NARA guidance, it included instructions that generally employees should not use personal email for the transaction of government business, but that in the very limited circumstances when it is necessary, all records must be forwarded to a government account or otherwise preserved in the Departments electronic records systems.
So if these new regulations went into effect after she left State, then what rule did she violate, exactly? And, if this is true, why did the Times not share this rather crucial piece of information with its readers? No one could possibly argue that this fact isnt germane to the story. Its absolutely central to it. Why would the Times leave it out?
The answer, Mr. Tomasky, is that NYT reporters and editors left out reference to the 2013 regulations because they aren't relevant to the fact of violation of law, even if that law has no teeth. That says a lot about the actual weakness of the rule of law that supposedly guides high public officials in the United States. Both the Bush Administration and Secretary Clinton were counting on the absence of criminal penalty when they violated that law.
But, that doesn't mean there should be no consequences, even merely political, when law breaking is finally revealed to the public.