That the cover-up is worse than the crime is a Washington truism I’ve never fully believed. In 2013, Republicans chastised former IRS director Lois Lerner for subjecting groups with the words “tea party” in their name to additional scrutiny when they sought tax-exempt status. Subsequently, conservatives alleged Lerner was covering up her “crime” because emails that could have shed light on the IRS practice had been deleted.

My response was that “tea party” groups are nominally political in nature and most likely do not deserve 501(c) status.  The complaints against Lerner, therefore, did not set forth any wrongful or illegal act for her to hide since the IRS policy was legal and sensible. Simply put, if there’s no crime, there can’t be a cover-up.

Still, legitimate suspicions are raised when a politician refuses to explain actions that may have been innocuous but nevertheless violated applicable laws or regulations. The aggressive response of former Secretary of State Hillary Clinton and her supporters, including David Brock, to a March 2 New York Times story describing her reliance on a private email address rather than a State Department account falls into this category.

Reporter Michael S. Schmidt opens “Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules” with the following two paragraphs:

Hillary Rodham Clinton exclusively used a personal email account to conduct government business as secretary of state, State Department officials said, and may have violated federal requirements that officials’ correspondence be retained as part of the agency’s record.

Mrs. Clinton did not have a government email address during her four-year tenure at the State Department. Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act.

Schmidt’s piece raised hackles in Clinton circles. Clinton herself has not responded to media requests for comment on the email practices she followed while at the State Department except to say that she wants the public to see the emails. Media Matters CEO and Hillary Clinton ally and fundraiser David Brock, however, has been front and center demanding that the New York Times apologize to Mrs. Clinton for wrongly suggesting she violated the law.

Brock makes several arguments: 1) The Federal Records Act (FRA) was amended in 2014 after Clinton left the State Department so the provisions she allegedly violated weren’t in force. 2) Clinton recently provided emails to the State Department upon request. 3) Previous Secretaries of State also used private email addresses so it doesn’t matter that Clinton did. 4) Republican governors like Jeb Bush used private email accounts too. 5) Attorney James Baron, whom the Times relied upon in the story, says that Clinton didn’t violate the law.

After considering Brock’s arguments as well as the relevant facts and law, it is clear the Times is right on all counts:

1) While the FRA may have been most recently amended in 2014, the federal government’s record retention policy was changed in 2009 shortly after Clinton first took the reins of the State Department as follows:

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 record keeping system.

36 CFR 1236.22(b) (Oct 2, 2009) (emphasis supplied).

2) There is no dispute that Clinton did not have, or at a minimum never used, a State Department email account. We know too that she did not ensure that her pertinent emails would be preserved in the State Department’s record keeping since she volunteered emails in her keeping. Had the emails been preserved at the State Department, it would not have needed Clinton to provide them. Additionally, Clinton has not confirmed that she turned over every email that she sent and received while Secretary of State.

3) The practices of previous Secretaries of State are irrelevant to this matter. As noted above, the pertinent regulations were tightened up in 2009 shortly after Clinton took office and after both Colin Powell and Condi Rice had long since left the building. Moreover, any failures on their part wouldn’t excuse Clinton’s rules violation.

4) Likewise, federal records retention rules do not apply to Florida state officials like former Governor Jeb Bush. Additionally, Bush, like Powell and Rice, was out of office before the federal rules were changed.

5) Even if, as Brock claims, Baron did say (and I could find no record of such a statement) that Clinton didn’t break the law, he has been very critical of Clinton’s email practices on several occasions over the past few days.

Brock appears to be playing a role similar to that of the late Geraldine Ferraro during Clinton’s 2008 Presidential campaign. Ferraro tarnished her political legacy as a female trailblazer when, as a Clinton supporter, she made the quasi-racist claim that Barack Obama would not be enjoying as much success if he were white.

Certainly Brock’s recent defense of Clinton doesn’t contain a noxious overlay of racism. But, by feeding wholly absurd arguments to various media outlets, Brock has adopted Ferraro’s persona as an attack-dog for Hillary.

Brock came to prominence as the “Right-Wing Hit Man” whose 1990 book The Real Anita Hill was a series of dubious claims against and outright smears of the government lawyer who alleged Clarence Thomas had sexually harassed her. In the mid-90s, Brock became a Democrat. Since 2004, he has helmed the estimable Media Matters which does essential work documenting the nonstop stream of falsehoods emanating from right-wing hate radio and Fox.

In a July 1997 Esquire article, Brock noted that the more outrageous and unsubstantiated the claims he lodged against Hill the more popular he became among right-wing Republicans. Brock’s combative approach seems to work well with hard-core righties. But he and Clinton (if she’s pulling his strings) have miscalculated here.

Brock and Clinton cannot expect Democratic voters to line up against the New York Times the way most Republicans delighted in his slanderous attacks on Anita Hill. In truth, the paper is viewed with at least as much reverence as Clinton in many progressive circles. Moreover, a significant portion of the Democratic base has never been sold on Clinton. Her failure to follow record retention protocol and the inappropriately aggressive response of an intimate supporter reinforces her image as prickly and defensive.

So what could Clinton have done differently? She could have forthrightly admitted her failure to follow federal regulations. Several very plausible explanations come to mind. She could point out that the regulations were changed after she took office and had set up and was using her private account. She could note further how busy she was with the seemingly endless number of international crises that marked her term as Secretary of State. Accordingly, she relied on subordinates for the less emergent task of archiving records.

If it’s true, Clinton could say, despite her faith in the State Department’s email servers, she had reason to believe that a system outside the Department might be more likely to avoid the notice of cyber-attackers. Again if it’s true, Clinton could say that she did comply with the spirit of the rules by maintaining every email she sent while Secretary of State and by transferring control over all of them, including purely personal ones, to the State Department as soon as she realized the rules required the State Department to keep them.

Clinton may prefer not to divulge personal correspondence. Giving records to the State Department, however, isn’t tantamount to publication. Obama administration attorneys will presumably protect Clinton’s interests by holding back from the public or Congress embarrassing but irrelevant documents. Clinton could even petition for the right to have her counsel review her emails before any are publicized beyond the State Department. A transparently honest course of action would look far better than an aggressive secretive one.

My guess is that Clinton is not trying to hide anything. I doubt she’d leave a smoking gun in an email. But by breaking rules and then attacking the messenger, Clinton is raising anew questions about her honesty and temperament.

Hillary Clinton remains the prohibitive front runner for the Democratic nomination and her Presidential ambitions may yet be realized. It’s possible that this latest bump in the road will have no lasting effects. But it ain’t gonna help.

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12 Responses to HillarEmail

  1. Not a big deal,who cares! Hillary is another corporate Democrat. More of the same, progressives don’t want her and with another Bush “Jeb” running on the other side it makes me think voting is a waste of time, the elections are rigged and only favor corporate America.

  2. Shade says:

    I suspect your “Shades of Grey” fantasy about having Hillary on the ropes has you drooling & all wet over nothing. Don’t get me wrong here, I’m no Hillary apologist. I would prefer to see the populism of Bernie Sanders & Elizabeth Warren catch fire with the public. Given the right circumstances & timing, I think this could happen. My concern is that if Hillary goes down on ArchiveGate, then so too might this entire Democratic administration (as many from the President on down would almost surely also be implicated to some degree). I don’t think either of us would like the consequences of that.

    I can think of several legitimate reasons for the Dept of State pulling archives of Hillary’s emails directly from her server instead of from a seemingly more legit source. For one, it may turn out that Hillary’s server (& thus the archives stored there) actually belong to the government. Although at first glance this might seem odd, one needs to consider the ongoing need to securely communicate with this couple. But beyond this, there is even a more likely scenario. It may be that more traditional Dept of State archives do exist, but they are stored in a manner that would make an en masse recovery of just Hillary’s emails require extensive manpower and time. Think magnetic tape backups physically stored offline on shelving racks, each tape covering perhaps a one-week period of time. It is my understanding that such tape is still in use by some government agencies.

    Here is a common scenario that govt agencies face. There are new mandates every year, but there is often not any additional funding with them. Typically an agency is forced to do more with less manpower & resources every year. Every time the law changes, the govt can’t go out & buy new equipment & software to help them comply. Instead, the IT department gets tasked to patch existing systems in a way that will meet the new minimal requirements. In this case, the storage of additional email archives, not being directly related to the agency’s primary tasks & goals, likely got short shrift from an already struggling IT department. Many in the IT department probably never really expected that their patch would ever be fully put to the test, but if it was, the data was preserved and they would deal with the situation then.

    Unfortunately, when it comes to efficient usability, “on-the-cheap” patches often aren’t user friendly or money-saving at all. Eventually old systems do get replaced, though given the massive scale of govt operations, by the time new systems & software gets funded, ordered & installed, the new system is obsolete by current standards. Just saying. I have a bit of experience in this area & have seen some of what occurs.

    At this point none of us know where ArchiveGate will ultimately lead us. However, Gabby wasn’t that far off the mark about computer files never completely disappearing. What Gabby doesn’t understand is that computer files you want to save do sometimes completely disappear due to hardware failures and/or human error (though if you spare no expense and know where to look, it is amazing what forensic labs can recover from a harddrive’s magnetic residual sidetrack margins, even if the data has been overwritten).

    What is difficult to eliminate is all data that you are trying to hide. Like a bad penny, such data invariably comes back to haunt you at an inopportune time. If Hillary is hiding something, I can just about guarantee that this data has been stored in many other places besides Hillary’s server, and over time that information will eventually leak out. I for one though suspect there is only data out there that would prove embarrassing, not criminal.

    One other thought. I am all for transparency in govt. However, I’m not quite sure why it is that an agency’s email by law must be archived, but telephone conversations are considered private. Email reader apps and voicemail further blurs this distinction. While I understand there is potential for abuse by those in positions of governmental power and the needs of historians, I also feel there are email conversations that should be allowed to occur in private in order to facilitate the people’s work (without all parties feeling threatened that something will later come out that is perhaps out of context or embarrassing for some relatively innocuous reason).

    One last thought. Be careful of biting the hand that feeds you. Jeremy’s appearance on your show each Thursday is quite an honor for your fledgling Internet show with such a small audience. If I was you, I’d back off your aggressiveness against Media Matters on such a small issue, unless other information comes to light that shows actual misconduct on Hillary’s part (and Media Matters inappropriately continues to defend her).

  3. halginsberg says:

    Thanks Shade. It’s always great to have Jeremy and we will be able to survive this tiff. As I point out in the post, my beef with Clinton is not so much her failure to comply with the rule it’s that she, as she has so often in the past (think Kosovo flight, “free trade”, and vote to authorize Iraq war), responds to a revelation of clear wrongdoing by engaging in a pattern of denial and combativeness.

    • Shade says:

      From above: “It may be that more traditional Dept of State archives do exist, but they are stored in a manner that would make an en masse recovery of just Hillary’s emails require extensive manpower and time. Think magnetic tape backups physically stored offline on shelving racks, each tape covering perhaps a one-week period of time.”

      The decision to pull Hillary’s emails from her archives may be a decision that the President & current Secretary of State made, & Hillary is simply being cooperative. I have yet to see any definitive evidence of wrongdoing on Hillary’s part in this matter. There is a lot we don’t yet know, but if there was actual wrongdoing on Hillary’s part, it will eventually come out.

      I suspect that Hillary is at least a bit more socially Liberal than you think. Unfortunately, unlike Bernie Sanders and Elizabeth Warren, she doesn’t always seem to have the courage of her convictions. Hillary is a political animal, and her decision-making is definitely done with her finger in the wind (& her eye on her political & personal pocketbook).

      That said, unlike Sanders & Warren, Hillary has successfully placed herself as the front-runner in the next election. In my eyes at least, Hillary and her wing of the Democratic party would be much better than another Bush and his ilk. At this point, I fear Hillary is likely our best shot at maintaining a Democrat in the Whitehouse and I don’t want to see us “eat our own” by making the perfect the enemy of the good.

  4. RJB says:

    Good article, Hal. I will be checking back here for more. I first saw it at Dagblog.com where there is also good blogging on politics as well as other subjects along with spirited discussions among well informed people.

  5. halginsberg says:

    There was wrongdoing as Clinton did not comply with the regulations in place regarding records retention. The wrongdoing may not be serious but her reaction is problematic.

    • Shade says:

      You don’t get it. Just because Dept of State asked Hillary for her archives from her server doesn’t mean that the Dept of State doesn’t already have possession of those same emails themselves somewhere. The issue may only be who has the easiest access.

      On Clinton’s server, the requested emails would be all together in one place. On the Dept of State servers, they are likely spread across hundreds of backup tapes, each that covers a specific period of time (& that are currently sitting on a shelf somewhere). If this is in fact the case (as I suspect), the letter of the law was met in that the archives were preserved. The law didn’t say the archives needed to be accessible in real time (w/o an extraordinary expenditure of manpower and time on the part of the Dept of State to reconstruct what Hillary can still provide by one simple upload to OneDrive, Amazon S3, Dropbox, or whatever cloud service the Dept of State is currently using).

      The above manner of tape storage (that I suspect) would have required the Dept of State make but a slight modification to their existing backup procedure already in place to meet the new requirement to archive email. Thus the additional cost for the Dept of State would be virtually nothing. The decision to archive the emails in this way would have been an IT decision made while Hillary was in charge, but I doubt she was such a micro-manager that she was actually involved (except to ensure that archives were kept).

      You worked for the D.C. govt. How is it that you don’t understand how limited the resources of govt are, and how everything gets done with old equipment & old software “on the cheap” (because there is no funding to make what would ultimately be better choices)?

  6. Shade says:

    OK, I can’t find anybody else online with a similar interpretation of what may have occurred, so likely I’ve stuck myself out on a limb and guessed wrong. What got me here though was your glee in immediately accusing Hillary of wrongdoing before there was time to discover more. I thought my explanation was at least possible, and there is still an outside possibility that I’ll be proven right.

    It is difficult to believe that Hillary would be allowed to exclusively send email from her own server without any governmental support. The thought boggles the mind due to the security risks from hacking that is involved. One has to suspect that Hillary was more fearful of internal leaks in the State Dept than she was about foreign hackers. Perhaps that risk was acceptable to her because she only used email for things like her itinerary & for personal affairs (that might at times be personally embarrassing if made public). Time will tell.

    It is the aspect of who was aware of his situation and when that I think may have the most legs. Hillary herself may be able to skate, as apparently while she was in office it was never stated how much time she had to forward her mail to govt servers for archiving. Very Clintonesque. Hillary can argue that she has (now) complied with the law and no archives have been lost. (Under new law passed after she was in office, she would be allowed only 20 days after each email was sent.)

    How could Obama not know what was going on, given the email sent him was coming from clintonemail.com? One has to think that he and Hillary discussed this at some point, especially since they are both Blackberry fans & they both had similar obstacles to overcome so as to be able to use these devices securely. Big red flags all over. I didn’t want to think the scandal could involve so many in the current administration. There is definitely more to the story, but who knows how fast this all will come out and what the net effect may be.

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