Thursday, May 26, 2016


Political Mayhem Thursday: The Clinton Emails Loom Larger

Just as Hillary Clinton appears to be the presumptive nominee, the issue regarding her use of a private email server as Secretary of State is back in the news-- an for good reason.

Yesterday, the State Department's Inspector General-- an Obama hire and employee-- issued his report on the issue. Two clear findings were that (1) Clinton did not have authorization to use the server and (2) if she had sought such authorization, it would have been denied.

According to the New York Times:

The report, delivered to members of Congress, undermined some of Mrs. Clinton’s previous statements defending her use of the server and handed her Republican critics, including the party’s presumptive nominee for president, Donald J. Trump, new fodder to attack her just as she closes in on the Democratic nomination.

The inspector general found that Mrs. Clinton “had an obligation to discuss using her personal email account to conduct official business” with department officials but that, contrary to her claims that the department “allowed” the arrangement, there was “no evidence” she had requested or received approval for it.

And while other senior officials had used personal email accounts for official business, including Colin Powell when he was secretary, the rules made clear by the time she became the nation’s top diplomat that using a private server for official business was neither allowed nor encouraged because of “significant security risks.”

And if that is what the pro-Clinton Times is saying, you can imagine what more conservative media outlets are making of this.

As I have said before, this is a serious issue, and a serious failing. A desire for secrecy that is so strong it leads to this kind of behavior is a real negative in a prospective president.  Clinton's attempts to laugh it off or "spin" it by pointing fingers elsewhere just makes things worse. She may have to say it a thousand times, but she just needs to say it was a mistake, and a serious one, that won't be repeated.

Do you think it matters?

She did that already!
Sadly, yes it matters. Just added fuel to the Trump fire that is raging out of control. If she talks about Trump's record on women, they just talk about Bill and her standing by her man. Nothing good will come out of this for her.
How does your time as a Federal Prosecutor inform your views on this Mark?

I'm thinking of the classified angle as well as the record keeping angle. As one news report summarized: "Under Title 18, Section 1924, of federal law, it is a misdemeanor punishable by fines and imprisonment for a federal employee to knowingly remove classified information “without authority and with the intent to retain such documents or materials at an unauthorized location."

How would you describe the political pressure in the office on a case like this? How do you think decisions being made within the DOJ?
Thinking about David's question, I am certainly interested in your answer, Mark. But as a non-lawyer I am developing a seriously cynical attitude to federal crimes, starting to believe that the powers that be (regardless of party) can and do charge anybody for anything if there is a political will to do so--and vice versa (which is perfect fodder for the Trump movement--BTW). But, even bigger than the possible indictment (which seems unlikely), the question you pose seems more relevant. Does her penchant for secrecy offer up a red flag? Should her penchant for assuming she plays by a different set of rules bear on Decision2016? As for politics, the latter question provides another element that surely complements the Trump argument that "we need to through all these bums out on their ear."
This article detailing why she will not be prosecuted seems persuasive. Though it is based on what we know. At present there is a fair amount of information we don't know.
David, I think there is a good chance-- maybe not a probability, but a good chance-- that she will be charged with something. It may be that misdemeanor. The political process will not be a big factor-- the people involved are pretty straight shooters.
I do think it matters, especially because her explanation of why she used a private server--because it was more convenient--sounds so shallow. If that is the real reason, it sounds selfish and petty and really dumb, and not befitting one of the top public servants in the country. It seems like a weird blind spot, for someone so smart. It does call into question her judgment, for me, although I have trouble translating that particular action into an action she would take as president.

What's just as bad -- maybe worse -- is how she's handled it. She should have said at the outset that using a private email server was a mistake and she regrets doing it. She could admit the mistake now, but she's spent such energy defending herself for so long that an apology now might not help much, in the face of what Trump will do with it. I hate it when people don't take responsibility for their mistakes, and that's what bothers me more.

I really hate to admit to anyone (but especially to myself) that now when I hear a statement like "politics won't impinge on the process because these are all good people" I just chuckle to myself or roll my eyes or emit a heavy sigh. Very sad. I feel sad to be in such a place.

I will try to snap out of it:
WF-- You have to admit, politics did not seem to matter much to the Inspector General!
I hear you, Mark. I defer to your expertise in this area, but my sense is that the IG dynamic (a fairly new idea) is specifically designed to be as impartial as possible within our political system. And it certainly seems like the IG system has done some yeoman work over the past few years. But my understanding is that the IG does not have the power to indict or prosecute. Is that right? Can they do more than refer potentially criminal activity to Justice?

And, again just a lay perspective, "prosecutorial discretion" in this age is fast becoming a phrase that evokes more cynicism than confidence in my mind. So, I think the IGs are often good folks who do a nice job of separating their work from the grinding of their various political axes (and, of course, you know my admiration for James Comey, FBI Director, from Day One and even before that for his courage in the face of administration power), but all of the independent reporting and honest investigations all eventually bottleneck in the extremely political DOJ. And, no slight against President Obama here, Justice is, of course, intensely political (if not by design at least in practice over the course of decades and decades of precedent). The Attorney General over the years is someone very close to the President (best friend, partisan political ally, literally blood brother, and/or someone who is wholly devoted to pursuing the President's political interest and programs).

So, back to my original point, when it comes down to Hillary Clinton (because there really is, in fact, great latitude within ethically informed prosecutorial discretion), I think the ultimate decision on indictment will be well within the bounds of legal ethics and public propriety but also conform to the President's political interest.

NOTE: For the record, just to be clear, I fully understand that the latest IG report covers an issue related but significantly unconnected to the FBI investigation.
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