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.)


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