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.