No, the Secretary of State Does Not Get to Privatize Their Email, Not Even Hillary Clinton

By Lambert Strether of Corrente.

This should be a simple call to make — it’s right in the headline — but apparently the Democratic nomenklatura is having trouble making it, so let me try to help them out.

The email in question was created by a Constitutional officer, the Secretary of State; it was not created by the private person, Hillary Clinton. Therefore, the email is public property, and Clinton doesn’t get it to treat it like private property. The end. It really is that simple.

Of course, this is American electoral politics in the age of imperial decadence, where the only simple thing is obfuscation. So, I’ll go through the issues surrounding the Clinton’s email server; then I’ll list the talking points profferred by the Democratic nomenklatura to explain, or explain away, Clinton’s actions, so you can recognize them in the field; and I’ll briefly conclude with what I see as the way forward.

The Issues

Here’s the scoop, from the Times article that broke the story:

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.

sIt was only two months ago, in response to a new State Department effort to comply with federal record-keeping practices, that Mrs. Clinton’s advisers reviewed tens of thousands of pages of her personal emails and decided which ones to turn over to the State Department.

(I’ll note that the Federal Records Act point is disputed; I’ll discuss that in the “Excuses” section.)

To begin with, this is ClintonWorld, and so right away things get all unique:

“I can recall no instance in my time at the National Archives when a high-ranking official at an executive branch agency solely used a personal email account for the transaction of government business,” said Mr. Baron, who worked at the agency from 2000 to 2013.

To be fair, I’ll note that “exclusive” might be too strong; what does seem clear is that the volume and scope of Clinton’s practice is unique:

And Mrs. Clinton used this private address for everything — from State Department matters to planning her daughter’s wedding and issues related to the family’s sprawling philanthropic foundation.

And it being ClintonWorld — to be fair, behavior like this would be true of any dynasty, whether Clinton, Bush, Romney, Paul, or Kennedy — having an account on the Clinton email server was a mark of status:

Obtaining an account from that domain became a symbol of status within the family’s inner circle, conferring prestige and closeness to the secretary.

Chelsea Clinton was given one, but under a pseudonym, Diane Reynolds, which she frequently used when she checked into hotels. Huma Abedin, Mrs. Clinton’s longtime aide and surrogate daughter, was also given a coveted clintonemail.com address..

Making the “clintonemail.com” domain rather uncomfortably like a clout-signalling coat-of-arms or a sigil, eh? Anyhow, the Game of Thrones aspects of ClintonWorld having been disposed of, let’s move on to more mundane issues: Technical, regulatory, management, and political (as in the nature of the polity we wish to have).

First, the technical issues. There’s certainly a legitimate concern that a small privately operated server might not be as a secure as a government one:

The task of keeping a mail-server secure isn’t one even the average [system administrator] is up to. I’d be shocked if her server was even remotely secure,” said Nate Cardozo, a staff attorney with the Electronic Frontier Foundation.”Clinton’s decision to forgo the State Department’s servers is inexplicable and inexcusable.”

And in fact, Clinton’s server was not secure:

In order to ensure her e-mails were private, Clinton’s system appeared to use a commercial encryption product from Fortinet — a good step, [Alex McGeorge, head of threat intelligence at Immunity Inc.] said.

However, when McGeorge examined the set-up this week he found it used a default encryption “certificate,” instead of one purchased specifically for Clinton’s service… Those defaults would normally be replaced by a unique certificate purchased for a few hundred dollars. By not taking that step, the system was vulnerable to hacking.

“It’s bewildering to me,” [McGeorge] said. “We should have a much better standard of security for the secretary of state.”

Of course, opinions differ:

“Depending on the configuration, there’s no reason a system like that couldn’t be secure, especially since State has been a target of hackers in the past,” said Christopher Cummiskey, a former senior Obama administration Homeland Security official who responded to cyber-attacks against government and contractor networks.

Which is fine in theory, I suppose, but in practice, as we have seen, the “configuration” wasn’t secure.

Next, the regulatory issues. To begin with, Clinton’s team was warned but chose to go ahead:

The [State Department] employee, who spoke on the condition of anonymity for fear of losing his job, said it was well known that Clinton’s emails were at greater risk of being hacked, intercepted or monitored, but the warnings were ignored.

“We tried,” the employee said. “We told people in her office that it wasn’t a good idea. They were so uninterested that I doubt the secretary was ever informed.”

This was certainly against White House Policy:

Former secretary of state Hillary Rodham Clinton appears to have operated in violation of what the White House said Tuesday was “very specific guidance” that members of the Obama administration use government e-mail accounts to carry out official business.

The original Times story claims that Clinton’s practice violated the Federal Records Act; I’ll get to that with the excuses in a note, but for now I’ll note that the Times — Judy Miller, Jeff Gerth — doesn’t have notably clean hands on scoops in general, or Clinton scandals in particular.

And now, the management issue. From Presidential Innovation Fellow Clay Johnson:

I’d imagine Secretary Clinton at some point emailed the White House. I made the mistake of emailing the White House from my personal account once (!) during my term, and managed to get back a nastygram from Counsel about it. How or why didn’t the White House tell Hillary to use her official .gov email account?

Well, yeah. If what Clinton did was right, then why did the the White House say it was against policy? And if what Clinton did was wrong, why didn’t the White House send her a nastygram? Is she special in some way? Or was the White House giving her enough rope? Who knows…

And with that, we get to the real issues: The political ones. Again, Clinton is confusing the public office with the private person. This is wrong. Here’s how the Times explains the issue:

The unusual practice of a Cabinet-level official running her own email server would have given Clinton – who is expected to run for president in the 2016 campaign – significant control over limiting access to her message archives.

The practice also would complicate the State Department’s legal responsibilities in finding and turning over official emails in response to any investigations, lawsuits or public records requests. The department would be in the position of accepting Clinton’s assurances she was surrendering everything required that was in her control.

In other words, public ownership of Clinton’s email is only nominal, because in practice her staff controls what the public can see. Here’s what the process was when Clinton was forced to disgorge some mail:

“Her staff did the sorting, but what the law requires is for a government official to do the sorting,” said Tom Blanton, the head of the National Security Archive, a group that uses FOIA requests and lawsuits to uncover government actions. “There are other motivations going on here, and she should have been on notice.”

And Clinton’s staff wouldn’t even explain what the sorting rules were:

At the request of the State Department, Mrs. Clinton turned over about 50,000 pages of emails from clintonemail.com related to the government issues late last year. But her aides have declined to describe the process by which they selected which emails to hand over and which to hold back, and public records experts have expressed alarm that Mrs. Clinton’s correspondence was not being preserved as part of the State Department record-keeping system while she was in office.

“It seems her intent was to create a system where she could personally manage access to her communications,” said John Wonderlich, policy director of the Sunlight Foundation, a nonprofit organization that advocates transparency in government.

Nor have Clinton’s staff been especially responsive:

Meanwhile, the AP said it was considering legal action under the U.S. Freedom of Information Act against the State Department for failing to turn over some emails covering Clinton’s tenure as the nation’s top diplomat after waiting more than one year. The department has never suggested that it doesn’t possess all Clinton’s emails.

In fact, because Clinton mixed “personal” with public mail, it’s even possible that none of it will be discoverable:

“The law is clear, however, that agencies do not — merely by way of the employer/employee relationship — gain ‘control’ over their employees’ personal e-mail accounts,” U.S. District Judge Gladys Kessler ruled Tuesday in the case brought by the Competitive Enterprise Institute. “That is precisely why agencies admonish their employees to use their official accounts for government business.”

WaPo’s Barton Gellman nails it:

Summing up: We’ve got Secretary of State putting public property — the email they sent in their capacity as a Constitutional officer — under private control — their server. When when they leave office, that public property is still on that server, under their private control, and is released only as staff determines, under a process that is not explained, and cannot be verified. If that isn’t converting public property to private use, it’s hard to see what else it would be. Leaving aside the good governance issues — that the American people have no way of holding their officials accountable, because the public record is radically incomplete — is the brute fact of converting public property to private use a good thing? Is it what we expect and demand of a high official? Is it what we expect and demand of a President?

The Talking Points

Already, the Democratic nomenklatura and its media allies have propagated a remarkably large number of excuses; I’ll list as many as I can, in order of decreasing badness, or worst first. First, I’ll give a list; then I’ll look at each one. There’s nothing exculpatory about #1 – #6, which are one and all deflections. #7 is off-point; #8 is wrong as a matter of policy; and #9 is seemingly exculpatory, but begs the question.

  1. It’s Legal
  2. It’s Old News
  3. Everybody Does It
  4. Voters Don’t Care
  5. The Press Hates Her
  6. But Mean Republicans
  7. The Records Were Retained By Others
  8. But State’s Email Isn’t Secure
  9. Clinton Also Had A Classified Email Account

And to the detail:

1) It’s Legal, says Media Matters:

The New York Times accused Hillary Clinton of potentially violating federal law pertaining to the preservation of e-mail records while acting as Secretary of State, but requirements to maintain such records did not exist during her tenure.

Just because it’s legal doesn’t make it right (and opinions differ on the legality[1]). Clinton is treating public property as if it were her personal, private property. That’s wrong.

2) It’s Old News, say Democrats:

The president’s Principal White House Deputy Press Secretary Eric Schultz pointed to the hack when Business Insider emailed to ask whether the White House was aware of Clinton’s use of a personal address.

“This was public years ago,” Schultz wrote.

He included a link to a Gawker article about the hack.

“So I guess every reader of Gawker was aware too!”

Just because it’s old news doesn’t make it right. And again, if a White House Innovation Fellow gets a nastygram for doing just once exactly what Clinton did thousands of times, and Clinton (that we know of) didn’t, isn’t that now “new news,” and not old?

3) Everybody Does It

Well, if not everybody, at least Jebbie, says MSNBC:

Privately, Democrats have been quick to point the finger at Bush for using a personal email as Clinton has come under scrutiny for not having a government email address when she was Secretary of State. Republicans argue the two situations are far from the same.

The existence of Bush’s private email address was widely known to the public and to the press when he served as governor, and he routinely fielded public and press inquiries himself using the address

Under Florida’s sunshine law, Bush was required to release the emails that related to conducting state business. Those emails are available online. A Bush aide said there was a process in place to decide which emails fell into that category and that Bush staffers and his general counsel’s office decided which ones to release.

Just because everybody does it, that doesn’t make it right. (I mean, come on Democrats. We’re making Jeb Bush, the guy who knocked thousands of black voters of the rolls in Florida 2000, the baseline for exemplary behavior? What’s wrong with you people?)

4) Voters Don’t Care, urge Democratic thought leaders. Brendan Nyhan:

The actual public response to the controversy is likely to be a combination of apathy and partisanship. Few Americans are paying attention to any aspect of the campaign at this point. Those who do notice will most likely divide largely along partisan lines, with Democrats interpreting her actions more charitably, especially once they see Republicans attacking Mrs. Clinton on the issue.

Just because the voters don’t care doesn’t make it right.

5) The Press Hates Her, argues Digby. And what’s more, they’re recycling old material:

Villager handwringing over how it doesn’t really matter if it’s true or not because “it’s out there” and it “exposes her character”, is cheap and shallow journalistic masturbation. What these scandals inevitably reveal is the character of the American press corps more than anything else.

Now, to be fair, Digby is correct that our lazy political press corps (the “scorps,” as Joke Line Joe Klein has the “Stantons” dub them in his roman a clef, Primary Colors) endlessly recycles stale narratives and tropes; the Daily Howler is master of this domain. However, just because the press hates Clinton doesn’t make it right. Digby’s argument is also a fine example of the genetic fallacy.

6) But Mean Republicans

They’re already fundraising on another scandal! Digby again:

But this is a patented pseudo-scandal planted by the Benghazi bullshit squad and I’m not jumping on the bandwagon.

Just because Republicans are mean doesn’t make it right. And again, this the genetic fallacy, as above; Digby seems to be reacting tribally rather than analytically. And finally, the ZOMG Benghazi!!!! crowd aren’t the only people concerned by this as we have seen; and personally, I’m on the record as saying that Benghazi is a hairball that I’ve tried to understand and can’t. So, no bandwagon here.

7) The Records Were Retained By Others

With this talking point, we move away from the sort of thing a parent tells a teenager every day (“Just because ____”) and closer to the realm of the exculpatory. The Times once again:

http://www.nytimes.com/2015/03/03/us/politics/hillary-clintons-use-of-private-email-at-state-department-raises-flags.html?_r=0s

Mr. Merrill, the spokesman for Mrs. Clinton, declined to detail why she had chosen to conduct State Department business from her personal account. He said that because Mrs. Clinton had been sending emails to other State Department officials at their government accounts, she had “every expectation they would be retained.”

But that’s nutty. Suppose I want to FOIA something from State, but I can’t FOIA Clinton because those records don’t exist. How am I supposed to FOIA her correspondents, when I don’t know who they are and can’t find out? What’s the point of retaining records that can’t be retrieved? And then there’s this:

He did not address emails that Mrs. Clinton may have sent to foreign leaders, people in the private sector or government officials outside the State Department.

That is, Clinton’s correspondents may have their own (even lawful, even possinbly good) reasons for not turning over email that Clinton sent them, even if they do get a request.

8) But State’s Email Isn’t Secure. Finally, we move into the realm of the exculpatory. From Al Jazeera:

Clay Johnson, a former presidential innovation fellow and a former director of the open-government technology nonprofit Sunlight Labs, suggested Clinton may have used private email because she was advised the state.gov email service wasn’t secure enough. In 2010, during the second year of her tenure, thousands of state.gov emails were posted online as part of the WikiLeaks revelations. He noted that no Clintonemail.com messages were among them.

“It’s very plausible to me that someone walked up to Hillary Clinton and said, ‘The State Department’s mail server is compromised. It has been for years. For right now, use your email address for communications,’” said Johnson, now CEO of the Department of Better Technology, a company that provides software to government agencies.

This, to me, is the best explanation for how this situation came to be — strange to think of Julian Assange’s actions ricocheting through the tech world out to the political world and, to say the least, causing trouble for Clinton — but I don’t think it’s exculpatory. First, no “advisor” has stepped forward. Second, Clinton is famously wonky on policy. If what Johnson suggests is true, the solution was and is not a homebrew email server in Chattaqua or Wherever the Heck; the solution is an interim but secure solution under government auspices, with a policy and a plan to move toward a permanent solution. And Clinton has the stature, the clout, the position, the personal network, and the policy chops to get that done. Instead, she mixed public property with private property and then privatized it all. That’s wrong, because she doesn’t own public property. We, the American people, do.

9) Clinton Also Had A Classified Email Account. AP:

State Department spokeswoman Marie Harf said Clinton as Cabinet secretary never used a government email account on the agency’s separate network for sharing classified information, which Clinton would have been prohibited from forwarding to her private email account.

“She had other ways of communicating through classified email through her assistants or her staff, with people, when she needed to use a classified setting,” Harf said.

On its face, this is partially exculpatory. But not completely! The article goes on to say:

The most likely security risk in Clinton’s emails was the possibility of what the intelligence community calls “spillage,” the inadvertent leakage of classified information in exchanges, paraphrases and shorthand.

“It’s what would happen when classified references are unintentionally introduced into an unclassified email system,” Leonard said. “That would be an obvious question with Secretary Clinton’s network. The sheer volume of those emails would certainly carry that risk.”

One of those “Whoopsie! There goes the PDF with the launch codes!” moments; we’ve all had them. But seriously folks, this talking point is partially — but because of spillage, only partially — exculpatory. My main concern has not been the security issue, but the political issue: Do we really want a polity where officials can freely convert public property to private property? Isn’t that the very definition of corruption? Why is what Clinton did right? Not legal or illegal, not secure or insecure, not pragmatically justified or not justified, but right?

Conclusion

Hillary Clinton has tweeted on this matter:

That’s disingenuous. As we have seen, the email and the servers are not under State’s control. They are privately held by ClintonWorld. State can’t release what it doesn’t have, and even if it cobbles together a few megabytes of mail from people Clinton CC’ed, the public has no way of knowing how complete that release is because there’s no access to the total archive. NC commenter Jim Haygood has the right of it:

[That’s] no excuse for public property (official correspondence) to be held offsite in a private server. The mission is to confront the problem head on, not resort to personal, unauthorized workarounds.

Exactly. “The mission is to confront the problem head on,” which Clinton did not do, despite (again) having the stature, the clout, the position, the personal network, and the policy chops do it. Even if this was not a “3AM moment,” it was a “9 to 5” one, and Clinton’s instinct was not to consider public purpose, but to privatize; a “personal, unauthorized workaround.” Fresh from her assault on corrupt Democrat Andrew Cuomo, Zephyr Teachout:

“She shouldn’t have done it,” Teachout said. “She should come forward and give a press availability on it. Just as a matter of leadership she should address it directly.”

Cllinton delivered a high-profile speech in Washington, D.C. Tuesday night, at the Emily’s List 30th anniversary gala. Speaking to the supportive crowd, she did not address the issue dominating the headlines.

“This is why we need a primary, to force debate both about policy and leadership style,” said Teachout.

What Teachout said.

NOTES

[1] Opinions differ on the legality of what Clinton did. Above, Media Matters claims, and offers backup for its claim, that what Clinton did was legal under the Federal Records Act. Here is an opposing view. Reuters:

Jason R. Baron, a lawyer at Drinker Biddle & Reath who is a former director of litigation at the National Archives and Records Administration, said he believed “the sole use of a private email account by a high-level official to transact government business is plainly inconsistent with the Federal Records Act and longstanding policies of the National Archives.”

And the Sunlight Foundation:

Even as federal electronic record keeping is widely considered abysmal, there is shock at what Secretary Clinton did because the most likely explanation of her intent seems clear — she created a system designed to avoid accountability, potentially in violation of the law.

Exactly. I’m not without shock myself!

NOTE

If you want to see how bad Democratic tribalism is, just take a look at the gwb43.com scandal. White House emails on an offsite, private server owned by the RNC, with official business conducted using that server’s domain, and not available to Congressional investigators. Also too, Karl Rove. Same deal.

Big scandal for Democrats then, but swap the “R” jersey for a “D,” and everything’s jake. Oddly, or not, the Republicans destroyed a lot of their mail. And we know ClintonWorld didn’t, how exactly? (I’m saying “ClintonWorld” to cover the well-known “overzealous staffer” scenario.)

UPDATE More on State’s “release” of the emails. AP:

State Dept. will review Clinton emails for possible release

The State Department agreed Thursday to review thousands of messages from a private email account that former Secretary of State Hillary Rodham Clinton used for official government business, but it cautioned that the process will move slowly and perhaps take months.

The department announced its action just after midnight…

It was not immediately clear what procedure or protocols the State Department was using to review Clinton’s emails, or what U.S. laws or rules might prohibit Clinton from releasing her own emails by herself immediately. Clinton’s current spokesman and the State Department have said she never received or transmitted classified information on her private email account, so there should be no such concerns that disclosure of her messages could compromise national security.

Under the Freedom of Information Act, the government can censor or withhold emails and other records under nine categories intended to protect information that would hurt national security, violate personal privacy or expose business secrets or confidential decision-making in certain areas. But it wasn’t clear whether the State Department would automatically apply those provisions to its review of Clinton’s emails, or whether it would invoke its legally authorized discretion to release even emails that might be covered under those exemptions. Under the open records law, withholding emails merely because they might be embarrassing or expose government incompetence or malfeasance is not permitted.

Lots of process detail quite unclear, including the hand-off from ClintonWorld to State, and how State would verify that nothing had been deleted prior to the transfer.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.

75 comments

  1. Fair Economist

    And it’s a good thing her emails were on a private server, because otherwise they’d have been Wikileaked.

    1. jrs

      I certainly think you can’t have it both ways and say that emails on a private server are insecure AND that the public has no way of knowing about them. Please, please, pretty please will someone please DUMP THE DOCS from Hillary’s private email server communication.

      I realize the goal is controlled release of information, not willy nilly, but only in response to a FOIA request. And maybe if we had a good government that might make sense. But our murderous ruling class. I think not.

  2. Praedor

    I was giving this a pass until more details were forthcoming. Now it does seem enough detail has come forth to make a judgement. Her official emails are not her’s to do with as she wants. Period. Her PERSONAL emails for non-official business are her’s to protect as she desires. The rules for releasing emails to the public and to official records should be pretty simple: any email sent or received in any official capacity as Secretary of State must be surrendered. Period. Any personal emails are nobody’s business. Simple.

    Colin Powell used a personal email account during his tenure. He didn’t run a personal email server but he did use a personal email. Jeb Bush, as the story notes, did precisely what Clinton did as Governor of Florida, likely for the same reasons as Clinton did it. His emails as Governor are not his private property either.

    Finally, she did what I’ve long considered doing (and am re-reconsidering now): setup a personal email server that is ALL mine in my own home. I’ve done it on a test basis before and know what is needed (I used postfix on a linux system) and it is what is needed that usually gives me pause: the server must be up 24/7 and that means constant energy use and requires absolutely reliable internet service. For a low, or fairly low, traffic email server the latter may not be a killer – but it would cause all kinds of problems if your net service is down for some reason (lightening strike, trencher cuts a buried line, tornado wipes an above-ground line, etc) and someone sends you an email…can’t imagine how Clinton managed to guarantee absolute connectivity at all times day-in, day-out. Her private system would NOT have been low load compared to Joe Schmoe like me or you, plus its emails would be of critical importance. Even with just half-a-dozen people on it, one being SecState, others being staffers and the like – important/heavy use that REQUIRES reliable uptime.

    1. Nathanael

      This is correct.

      Everyone remember what Scott Walker did: set up a secret email system using government funding on government property so that government officials could use government time paid for by the government to run his private campaign (and incidentally run a child pornography ring and defraud veterans’ charities).

      That was 20 kinds of illegal. At the moment it looks like he’ll get away with it because he’s purchased the state supreme court.

      At some point we have to start talking about overthrowing dictators.

  3. Jim Haygood

    Nice work, Lambert. +1 for ‘sigil.’

    ‘I want the public to see my email.’

    HA HA HA HA!

    As likely as claiming that ‘I want the public to see my stool samples. I asked my doctor [who sent them to the lab and doesn’t have them anymore] to release them.’

    This is vintage Clinton effrontery. When caught red-handed, claim high-minded public purpose for obviously squalid, self-serving, borderline illegal behavior. Then blame the accusers for pointing it out.

    If Clinton becomes president, prepare to hear Talking Points 1-6 above as a daily mantra. Same old, same old; and deja vu all over again too. Feeling ennui yet?

    1. MyLessThanPrimeBeef

      She is secretive and people want answers, like the Republicans of the early 90s.

      “What is she hiding?”

      “How did she do it?”

      “Why don’t things add up?”

  4. mad as hell.

    Can’t we go straight to the Coronation and skip all these useless temporary distractions.

    You people !

    She declared.

  5. Eureka Springs

    Adding….. Huckabee upon leaving the Governors office destroyed all hard drives with email on them. Arkansas D’s howled over that for years as if they had been shot in the foot while watching their puppy being run over by a Koch Brothers bus. I fell for it then, but long since abandoned any and all discussion with AR D’s because of their hypocrisy.

    As for the Teachout quote:

    “This is why we need a primary, to force debate both about policy and leadership style,” said Teachout.

    This is simply the kind of big lie that infuriates me about so-called third/alternate parties perpetuate. There is no primary debate in our society. The Emily’s list gala mentioned in the post – primary time or nay is a perfect example! I say that as someone who ran for office at the ripe old age of 19 long ago. Even running door to door, there is no debate. Sure I had a platform, but I felt compelled to listen, to be prepared to represent, much more than debate or give a speech from on high. I’m not even sure we should expect political debate of the nature this line usually implies in a campaign. If we are at all interested in having representation…. policy should not be up for debate among the “representatives” but among the people before and at platform time. Either way, American politicians do not debate. They are afraid of it, cowards, or they don’t know how or have contempt for the very idea of debate. Perhaps some like Teachout simply don’t know what it means.

    1. Praedor

      I would like for Warren to run and primary Hillary. Warren, barring some horrible fail would get my vote, period. She would also force a true discussion on policies (economic and foreign) that an uncontested Hillary will be free of. Same goes for Bernie Sanders. What I would absolutely be opposed to, however, is either Warren or Sanders primarying Hillary, losing, and being subsumed into the Hillary ticket as VP. Both are far better able to serve the people and as a foil to Hillary’s neoliberal/neocon tendencies (economic and foreign policy, respectively) in the senate rather than silenced and controlled as a VP (or SecState, SecTreas, etc).

    2. diptherio

      Podemos in Spain has been experimenting with a bottom-up approach to politics, using the on-line tool Loomio in conjunction with meet-ups IRL to enable the membership to determine policy platforms directly. The Reinvent Democracy project is also working along similar lines with their Interactive Voter Choice System (IVCS) which

      enables voters to insert a new layer of voter-controlled voting blocs, political parties, and electoral coalitions into electoral and legislative processes.

      How It Works

      IVCS agenda setting, political organizing and consensus building tools enable voters across the political and ideological spectrum to join forces online to take control of elections and legislation:

      Voters build online voting blocs, political parties, and electoral coalitions (BPCs).

      BPCs surmount partisan differences and legislative deadlocks by setting transpartisan legislative agendas.

      BPCs nominate transpartisan slates of candidates and elect them to office by building winning transpartisan electoral bases larger than the electoral base of any single political party.

      BPCs use their agendas to provide legislative mandates to their elected representatives.

      BPCs hold their representatives accountable at the ballot box for their track records in implementing BPC mandates.

      We now have the tools (and are quickly gaining experience in using them) to make direct democracy a real possibility.

      1. hunkerdown

        Not really. We don’t have universal, binding popular recall. Without that, all we’re doing is locking people in a money booth for 2-6 years at a time and praying like the pathetic infantile rubes we are that the people we’ve paid in advance have ANY REASON AT ALL to deliver on ANYTHING. In other words, basically the same problem we have now: no meaningful recourse, no meaningful control.

        Firestone et al don’t seem to have much to say about what to do when IVCS is just another disposable platform plank for a rogue to get into office, take what they can over the course of their term, and abscond. What do we do about them? The system is designed to protect itself against the popular will (what do people think “outside of politics” means?!), and no advisory poll will change the core power relationships that make it perfectly rational, reliably profitable and unimpeachable for an official to use their term to take the money and never, ever have any need or reason to come back to submit to the judgment of the looted?

        IVCS is not a solution to the principal-agent problem that was designed into the Constitution from the beginning. (10th Am = trickle-down rights) Without, first, candidate officials who are willing to be bound by force from the citizenry; second, a Constitution that allows and admits of such force from the citizenry; third, a citizenry not mentally addled by the conquistador pathologies of Augustine of Hippo and Saul of Tarsus; and fourth, an end to all this gaslighting that the USA is, was, or under the present charter even can be a “democracy” when the charter was written in the very same spirit as the oligarchs doing the looting God’s work today and the system is obviously not plumbed and wired that way, IVCS will only make matters worse and discredit itself.

  6. ScottW

    You nailed it.

    Would Hillary have allowed her underlings to set up private email accounts? Would she recommend that every cabinet level official do so? Was she setting up a model of transparency for others to follow, or following a model of secrecy and concealment set up by the bottom feeding politicians in the Bush admin.?

    Hillary retained the ability to not only conceal from the public information, but also to forever delete that information, something a public official should never do. She craved secrecy and control over transparency which is an essential element of democracy.

    Ultimately, Dem voters may not really care, desperate for a candidate who can beat the evil Republican. But consciously setting up a private email account tells us a lot about her character, or lack thereof.

    1. Praedor

      She cannot forever delete inconvenient emails even with control of her own email server. She sent emails to other people and they were not running their own private servers (most likely). She received emails from people not using private email servers (most likely) so all the correspondence still exist even if she wipes them from her server. It’s getting to them (or knowing about them) that gets tricky.

      1. Katniss Everdeen

        It’s already happened. She was, apparently, e-mailing one Sidney Blumenthal, who “worked as a senior adviser to Hillary Clinton’s 2008 presidential campaign and has remained one of her closest confidants,” extensively. The hacker, code name Guccifer, “specifically zeroed in on Blumenthal’s extensive correspondence with Hillary Clinton, sorting Blumenthal’s account so as to single out all e-mail sent to Clinton.”

        http://www.thesmokinggun.com/documents/sidney-blumenthal-email-hack-687341

        ” A majority of these breaches have involved AOL e-mail accounts.”

        A. O. L.

      2. jrs

        And of course the NSA probably has them and definitely the metadata. But it’s not going to release them just because the public wants to know. Ok she may have encrypted the message content (not the metadata) although with flaws. But isn’t the NSA “in on” many encryption algorithms, or is that just what they tell us proles, to make us afraid, very afraid? And yea it’s not encrypted end point to endpoint.

        1. hunkerdown

          They’re in on certain encryption implementations ($10mm to RSADSI for compromising BSAFE, probably moles in many others) — and some algorithms such as RC4 are as good as tissue paper — but, as Snowden did suggest early on, when you have a specific target in mind, the endpoints are often a much softer target than the ciphertext, so they generally favor infiltration over cryptanalysis.

        2. Praedor

          The NSA isn’t “in” on GPG/GnuPG. If I were setting up my own mail server for security from the prying eyes of the NSA or FBI or others, I wouldn’t use a commercial encryption system in any case. GnuPG would be it. Open source, no propriatory code included by which to hide backdoors or intentional flaws.

  7. Jill

    Lambert,

    The office of Secretary of State is not part of the government so get off it with all your factual analysis.

    Sincerely,

    Dick Cheney

  8. mad as hell.

    Can’t we go straight to the Coronation and skip all these useless temporary distractions?

    You people !

    She declared.

    1. MyLessThanPrimeBeef

      Are kings and queens required to use public email accounts?

      Does it depend on the country, or rather, the kingdom you are in?

  9. Vatch

    This reminds me of the home computer scandal involving former CIA Director John Deutch:

    Deutch left the CIA on December 15, 1996[1] and later that year it was revealed that several of his laptop computers contained classified materials designated as unclassified.[clarification needed] In January 1997, the CIA began a formal security investigation of the matter. Senior management at CIA declined to fully pursue the security breach. Over two years after his departure, the matter was referred to the Department of Justice, where Attorney General Janet Reno declined prosecution. She did, however, recommend an investigation to determine whether Deutch should retain his security clearance.[8] President Clinton pardoned Deutch on his last day in office.

    http://www.cbsnews.com/news/senate-committee-targets-deutch/:

    CBS News has learned Deutch had dozens of classified documents on his computer. Among them: memos to President Clinton and other information that was so top secret that special security clearance was needed to see them. All this on a computer that was used to visit what the CIA calls “high risk sites” on the internet, including porn sites.

  10. Pepsi

    I appreciate the post, Lambert. I was really disappointed to see handwaving dismissals of this from some ‘progressive’ websites. Vote Hillary, for an even more Imperial Presidency

  11. Pepsi

    If she was willing to publicly brag about having a head of state murdered by islamist thugs and absolutely destroying a prosperous country, what was she keeping secret?

  12. RUKIdding

    Thanks, Lambert. Great factual analysis.

    PS In case you missed the neat feint ‘n dodge done around the good General Petraeus (boy does he owe us big time now!!!! woot!), laws are for you rubes, not for the likes of those of us who run this show. Get real and get over it.

  13. Rosario

    If only we could have two presidents in office simultaneously! Imagine the endless humor provided by a Hillary Clinton/Jeb Bush presidency. Might as well laugh while the house burns down.

    1. hunkerdown

      The split ticket was a useful point of leverage from us rubes against the party system. That’s why they had to stop it.

  14. Jill

    Petraeus just got a fine and probation for turning over classified documents in the form of a hand written black book.

  15. Jim McKay

    Mr. Merrill, the spokesman for Mrs. Clinton, declined to detail why she had chosen to conduct State Department business from her personal account. He said that because Mrs. Clinton had been sending emails to other State Department officials at their government accounts, she had “every expectation they would be retained.”

    But that’s nutty. Suppose I want to FOIA something from State, but I can’t FOIA Clinton because those records don’t exist. How am I supposed to FOIA her correspondents, when I don’t know who they are and can’t find out? What’s the point of retaining records that can’t be retrieved?

    A well configured email server (sys admin for email and far more much of what I’ve done last 20 years) should be easily searchable across every State email account for Hillary as sender. I’d bet it’s same email server across all WH/cabinet level agencies.

    After GWB’s gutting of rather progressive/sophisticated email system (e.g.: IBM NOTES) in it’s day, w/little evidence it has ever been fixed/rebuilt, hard to know if this very basic configuration is even in place.

    As far as FOIA’s go, my experience (mostly w/EPA) is… even when it’s known pertinent FOIA’ed emails exist, more times then not there are either not released or redacted to the point of being useless.

    These firestorm food fights (this email “scandal”) this early, made into to such an all encompassing “moral compass” issue… I don’t know, a bit depressing. Given massive problems for years, unresolved and getting worse, this strikes me as missing forest for the trees.

    I can’t imagine why she’d want to run again. Few people I can think of in major national political limelight in last 20 years have been more falsely kicked in the gut… repeatedly, then her.

    1. Lambert Strether Post author

      I disagree. I think the boundaryless mixing of public and private interest is what the Clinton Dynasty is all about.

      We are seeing this play out on a small canvas but that does not mean it’s not a big theme.

      1. jonf

        Man, do you not see this as about what they all do and worse? I know, I know,. but you caught her right? Send her straight off to jail I say.

        1. jrs

          If she was a poor black in the ghetto would she be sent to jail for a minor crime? (if not killed) Send the whole ruling class to jail.

          1. John

            Someone I know just told me about a friend of theirs who was arrested for,
            wait for it….STEALING AN ORANGE.

            Every single elite in this country should be in prison. For life.

      2. ian

        I find it appropriate that she used the .com domain for her email for government business.

  16. steelhead23

    Please, please, please, let this doom her shot at the White House. My guess is that the Repubs will try to subpoena her server to get all the Benghazi poop. That would be high kabuki and I might just cheer them on. My guess as to what she is hiding would be her emails to high roller campaign contributors and who knows, there may just be a tad of quid pro quo in there.

    1. jonf

      Maybe there’s some dirt in there about a three way or something. Either that or the republic will fall any minute now.

  17. diptherio

    Teachout should run against Clinton on an anti-corruption platform. That might actually get me to vote in a national election again…

  18. Jim Haygood

    Critiquing the Clintons for bad behavior is like swatting a puppy for lunging at a rabbit.

    As sociopaths, the Clintons do not understand ‘wrong.’ They only feel confused, hurt and angered when people get on their case for behavior they regard as natural (‘everybody does it’) or even admirable (‘I want everyone to read my email.’)

    Like the errant puppy, by tomorrow the Clintons will have forgotten all about the incident and moved on.

    1. NotTimothyGeithner

      You have to consider the future size of the dog when dealing with puppies. A Yorkie can be picked up when it gets out of hand, not so much with a Rottweiler. This issue isn’t just about Hillary but her underlings. It’s best to have discipline now rather than later. Look at Chicago and Rahm. Rahm behaved no differently than should have been predicted, but he wasn’t stomped back in ’94 when he was a major player in Team Blue’s election efforts.

  19. NOTaREALmerican

    Can’t we just move beyond all this nit-picking and realize that some mistakes were made, and – really – it’s time to just move-on to the important issues that matter to this great nation during a time of great danger from extremists who hate us for our freedoms.

  20. jonf

    Geez given all the trouble in the country and world this ranks down around 98 or so. Must we really? Suppose I don’t give a damn what she does with her e mail, does that matter?

    1. ian

      No, personally, I don’t really care what was in the emails – but this is serving as a reminder of the past and a taste of the future if she gets elected.

      1. Ziontrain

        If the electorate does not care that official communications of the nation’s leading “public servants” be documented and archived, then I suggest that we forgo the entire election and electoral college pretence and expense and save the money to hold a coronation ceremony for her. Because that’s about what it would mean if we dont care.

        1. hunkerdown

          But they’re independent contractors! That’s what freedom is supposed to be like, isn’t it?

        2. ian

          When I said I didn’t care, it was with a sense of resignation. The same MO that was employed in 90s would be used: drag her feet for any requests for information, giving plenty of time to destroy/alter evidence, dump whats left friday afternoon at the end of a news cycle, then announce to the world “see, there’s nothing to these baseless accusations!”. I felt like my intelligence was being insulted so many times back then and the whole shtick got tedious.

          Bottom line: this is what we are going to get more of if she is elected president.
          Is this what we really want?

  21. JTFaraday

    Well, thank goodness the NSA is storing all our communications so we don’t have to

  22. Pat

    One thing that the last seven years have taught me is that double standard is alive and well and SOP for the majority of Democrats. And the last day or so has expanded that beyond my comprehension. As in listening to people who would be screaming about this at the top of lungs or commenting ability if this was someone named Bush, Baker, Powell, etc say this is all the Republicans being mean, and hey it wasn’t illegal.
    Look I’m still willing to cut Bill a break on Lewinsky even if it was stupid. It had nothing to do with his official duties, and his partner was not just willing but eager. It should not have meant legal actions. I merely am disgusted. But I would also say the same if it had been George H. W. Bush.
    My mantra now is: if you would not accept the excuse if this was about Bush/Walker/Huckabee/Santorum etc, you do not begin to get to use it for Clinton or Obama.

  23. ian

    Here we go again. It’s like a return to the 90’s – and she isn’t even an official candidate yet!

    I think the Democrats are going to have a ‘come to Jesus’ moment. Do they really want a candidate where this kind episode is the norm? If not, she’s going to have to be stopped, and pretty soon.

  24. TG

    It’s like Joseph Heller’s “Catch 22B”

    “They can do anything that you can’t stop them from doing.”

    Give work permits to illegal aliens? Bail out wealthy bank CEO’s with taxpayer funds? Tear up union contracts for average workers? Bomb any damn country they feel like? Arrest anyone taking pictures of the US border? Break the law by wiretapping US citizens without a warrant?

    Yes, what Hilary did is not trivial. But. This has been a long time building.

  25. Jess

    Sanders is going to run as a Democrat and I, for one, think the Dem establishment is going to be shocked at the numbers he rings up early. (Similar to the shock when Eugene McCarthy took 43% of the vote in the 1968 NH primary.) This is not to say that I fall for Bernie’s line of BS but I do think he would be better than anyone else in the field and it would be fun to see him rock the foundations of the comfy Vichy Dems.

  26. Ziontrain

    …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….

    First of all this stinks – its a red flag of a person with A LOT to hide.

    But never mind how this “looks” – shouldn’t this action in any case be a fireable offence, or in her case at least an official sanction and stripped of any additional benefits in the pension scheme? Because any of her employee at State who did this would surely at least face the former, if not the latter.

    Instead, in reflection of imperial America today, our nation hails her and she is seen as a respectable inheritor of the head of state position that her husband once held?

    Amidst all this, we somehow see ourselves as “better” and “more honest” than banana republics and desert petty dictatorships?

    1. hunkerdown

      It’s all “competition”, which we are all indoctrinated to pursue as our very purpose in life. Notwithstanding the compassionate core of the little people keeping themselves alive to glorify their lord, inequality is a core American value. I don’t think anything short of the total expurgation of Protestanism from US public culture, or a complete redoing of a Constitution designed to enshrine and preserve that very inequality, can change the ways and means by which the American project is animated.

  27. kevinearick

    The Next Silicon Valley

    If your neighbor prints a $20 bill and offers it to you for your labor, under what conditions do you accept?

    If your neighbor offers the $20 to another neighbor for one hour of his work and tells him that he can redeem it for 2 hours of your work, under what conditions do you accept?

    If a majority government votes to print money against your labor, under what conditions do you accept?

    Who is really the bank?

    Let the critters print all they like, and discount to the gravity needed.

    Now, a few black guys printing billions to play a child’s game, rigged at that, are teaming up with political females playing a rigged game, for an equal right to print; the nation/state gets dumber every day, and America is no exception. The majority is always in a prison, of its own creation.

    Money, debt, is a poor substitute for natural wealth, which is why the majority always votes to take your children, in a police state, normalized with public education. Train your children accordingly, to give the empire an identity to track (residence, job, blah, blah, blah), with no more than 10% of their time.

    The Fed is fubared, which is what I told the Greenspan crew, when it contacted me for employment, the same thing I told those morons from Navy HR in Virginia, offering non-recurring prizes in a rigged lottery to accept best business practice, equal rights and affirmative action for feudalism, with Silicon Valley IPOs. Hillary is welcome to it.

    Same Question: Just who the F do you think you are?

    Same Answer: Labor, which doesn’t compete for capital, or negotiate, because it chooses whether or not the bills get paid, and builds economies accordingly.

    Yellen isn’t lying about not being able to recognize a bubble before it pops, because the Fed has no idea what labor is going to do next.

    Set yourself up structurally as if you already have children, to be successful, regardless of what the nay-saying fools do. No job in the empire is worthwhile without a family to show for it, and there are only a handful of jobs remaining returning wages 4X rent, keeping pace with rent inflation, and the path to them is not equal rights granted by government. Marry first, because you will not have the patience to deal with empire stupidity otherwise.

    1. hunkerdown

      You can keep talking up the 70-year debts you’ve placed on everyone else’s environments as if they somehow make you a better person. And I can still mock the belief that the narcissistic arrogance of reproducing oneself makes one a “better” person, rather than a net drain on any number of already strained resources.

  28. Michaelc

    Lambert, excellent analysis. The privatizion of public service Hillary has pulled off makes every other revolving door player look like a piker.
    She’s broken new ground demonstrating that its far more profitable (and powerful) to be a private contractor Cabinet member than just being the garden variety top government official type.
    IIRCC State is a key govt ministry. When did we agree to outsource management of that office to Chappaqua (or agree to mix it up w a former presidents philanthropic/cash cow fovors machine/party fundraising apparatus/wedding planning business)

    1. hunkerdown

      “Headquarters in the saddle.” -General Hooker
      “The trouble with Hooker is that he has his headquarters where his hindquarters ought to be.” -attributed to Abraham Lincon

  29. Mattski

    If this really could end her candidacy, I’d be enthusiastic. A wide-open primary season in which issues actually got discussed would be amazing. But the fix, I fear, is long since in. Instead, in the kind of 48, 49-51, 52% horserace scenario that our rigged national elections tend to be it will be just enough to get us Jeb as president. I’m not (of course) advocating that this kind of creepy malfeasance shouldn’t be roundly condemned (either she’s the craziest kind of insouciant narcissist-idiot or straight up flouting, and flagrantly, here). But in a climate in which the oligarchy/kleptocracy triumphs in either scenario. . . the jousting over this one issue could take up all the campaign time, leaving even less space for the issues. Hell, she might even PREFER it to that, and no doubt the Republicans would.

    1. Lambert Strether Post author

      “The jousting over this one issue could take up all the campaign time” It won’t. Anyhow, “converting public property to private use” is a frame that works in a lot of ways. After all, it’s enclosure; it’s the essence of neo-liberalism, Hillary’s primitive accumulation of data :-)

      1. Mattski

        Agreed as to her appropriation of the commons. And I may have overspoken re: the controversy dominating completely. But both sides are often very happy to play whack-a-mole with each other’s (many) past lapses, engaging in the most superficial and sensationalist critiques, while the deeper issues go unaddressed.

  30. Emma

    What interests me is the role of NARA and their lack of governance in such an incident. Obviously switching from Lockheed to IBM for IT cloud support has some other purpose when your head’s already in the clouds….. Complaints were made with regards to the Bush/Emails, but clearly the situation hasn’t been remedied with even a half-baked attempt for a quick fix. One could conclude that anyone in a position of power within Government is oddly reluctant to enforce their own rules and regulations upon themselves. When this occurs with growing frequency, surely a sense of entitlement becomes epidemic and detrimental to any pre-existing form of fragile democracy in place? It only exacerbates both social and economic dislocation. Absolute power too, which clearly finds common ground in a pseudo two-party rule.

  31. David Smith

    Come on, let’s have possessive pronouns in headlines agree in number with their subject.

    1. Kokuanani

      That will happen shortly after commenters correctly use “it’s” – “its” and eliminate the non-existent “her’s”.

  32. NoBrick

    George Carlin was joking when he said something like “If the vote changed anything, “they” wouldn’t let us vote”
    Then again, we’ll see who the E-Collage “elects” to be the next “put-on”…

  33. Jason Ipswitch

    I’m no fan of Clinton, and I’m horrified by officials using private email for public business. But there appears to be a fundamental conflict between what the NYT is reporting, and what the State Dept is saying. The NYT reported

    “At the request of the State Department, Mrs. Clinton turned over about 50,000 pages of emails from clintonemail.com related to the government issues late last year. But her aides have declined to describe the process by which they selected which emails to hand over and which to hold back, and public records experts have expressed alarm that Mrs. Clinton’s correspondence was not being preserved as part of the State Department record-keeping system while she was in office.”

    Meanwhile, the State Department said at its press briefing of March 3rd,

    “QUESTION: Sorry, so just one more – so those records would not include a personal email to a personal email account?

    MS. HARF: The 55,000 that we have today absolutely would.

    QUESTION: They would include that?

    MS. HARF: Correct. What we were saying was before the 55,000 pages were turned over to the State Department, anything to and from a state.gov address would already have been part of our record, right? So those already would’ve been part of the record. The entire 55,000 – those to and from state.gov and those to other people that weren’t state.gov – are now all part of our record because she has turned them over.”

    They cannot both be completely truthful. Either Hillary Clinton, via her staffers, turned over all her email (as the State Dept. implies), or she didn’t (as the NYT implies). At least one party is being misleading. The black genius is that because of how Clinton chose to set up her email, there doesn’t seem to be any way to tell which claim is true unless the Times has a source they haven’t revealed yet.

  34. optimader

    Two points stick in my craw.
    1.) The real deal would be a FBI search warrant w/chain of custody seals and a handoff to a forensics team to pick the drives apart, kinda fck her if she has personal email that spills out –that was her choice comingling email I PARTIALLY OWN AS A CITIZEN w/ personal noise.

    2.) BS rhetoric like 50,000 or 55,00 pages is thrown against the perception wall to imply voluminous and complete.
    How do her employers (The Citizens) know the entire record isn’t 100,000 pages?
    Apologies if someone upthread already covered this.

    Last point more my own physiological curiosity. Do the Clintons suffer some deep deep rooted Jonah Complex –(Maslow’s version of Fear of Success) that they insist on taking personal interest in compromising their own dearly held desires by doing reeeally ignorant stuff?

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