The Scandal Over Clinton’s Emails Still Isn’t a Scandal

06_02_Hillary_Clinton
Democratic presidential candidate Hillary Clinton speaks on national security in San Diego, California, United States June 2, 2016. Mike Blake/Reuters

I really don’t want to write this column. I know that just from reading the headline, a large number of people will immediately start wailing that I’m a Hillary Clinton partisan, and they won’t bother to read even this first paragraph. I also know that plenty of journalists paralyzed by groupthink will attack what I have to say.

Ah, to hell with it. Here’s the point: The recent report released by the inspector general of the State Department shows that, on the topics it analyzes, there is no Clinton email scandal. (The report doesn’t deal with classification issues.) And all the heavy breathing in news reports that there is something important here is bunk. Yes, the report shows that Clinton, former Secretary of State Colin Powell and the senior staff of former Secretary of State Condoleezza Rice used personal email accounts for daily work communications. (Rice didn’t use emails at all.) And yes, it shows plenty of people in Democratic and Republican administrations made some mistakes in following protocol for emails. But once you start digging deeper, what’s clear is that the State Department’s management of the email systems and procedures was a long-standing Keystone Kops operation, which is why so many intelligent people on both sides of the political aisle screwed up—but screwed up in ways that largely do not matter.

Before getting into details of what the 79-page report actually says, I need to make a few appeals to reason. Does anyone really believe that a senior government official is going to come into office and read the volumes of entries in the Federal Register, manuals and memos on emails, computers and document preservation, and then make decisions on which procedures to implement? To give a sense of scope, the primary document dealing with functions and administrative issues at the State Department is the Foreign Affairs Manual, a 16-volume doorstop that is rarely read without using an online agency search engine because of its size. Based on results from that search engine, the manual discusses email issues 346 times in 13 different volumes, and that makes up just a tiny percent of the total information it contains.

Does anyone truly think that the first thing the person charged with managing all foreign relations for the United States will do is spend a few months reading the equivalent of an encyclopedia for administrative and technical rules, rather than expecting the staff members charged with those responsibilities to handle it? (Also note that because of the amount of information involved, those duties are divided up among a large number of offices in the department.) Do people believe these officials are sophisticated enough to know anything about email other than how to type? (Clinton is a notorious technological imbecile, and Powell still has an AOL email account.) The absurdity of this belief—which Democrats seem to believe only applies to a Republican and Republicans seem to believe only applies to a Democrat—is so self-evident that it is astonishing there are people who espouse it with such vehemence.

Second, does anyone really believe voters will base their decisions at the ballot box on whether the documents in question were preserved strictly following the mandated procedures? Will anyone except partisans really care about a technical error that created no harm and had no nefarious motive? Would this column or an article declaring the email imbroglio to be a massive scandal actually change a vote?

Third, does anyone—including the inspector general—read the many documents that have already been released regarding this topic? A lot of the information in the new report was disclosed in a February letter by the IG—a fact not mentioned in most of the current news articles—and answers to questions the IG said it could not resolve are in documents disclosed by congressional investigators last year.

And finally, why do partisans waste time on nothing-burger Clinton “scandals”—emails, Benghazi—when there are actual issues about her that are so deserving of criticism, such as the disastrous Libya policy she championed as secretary of state? Is it simply that “email” and “Benghazi” fit on bumper stickers, while “substantive negative consequences and regional chaos from the intervention in Libya” can’t even be limned in a tweet? Or is it that many of the people frothing about Clinton are so uninformed that they don’t even know the administration got involved in the Libyan civil war, much less the result?

Here’s what this new inspector general’s report shows: When senior State Department officials swam in the deep pool of email rules, there were basically no lifeguards on duty. The office for ensuring compliance with the federal rules on communications—staffed by the people who were supposed to be reading all the Federal Register procedures and policy statements—has been a horrifically underfunded, understaffed and ineffective group for many years, starting long before Clinton arrived at the State Department. As the report says, “Longstanding systemic weaknesses related to electronic messages and communications have existed within the Office of the Secretary that go well beyond the tenure of any one Secretary of State.… The Department generally and the Office of the Secretary in particular have been slow to recognize and to manage effectively the legal requirements and cybersecurity risks associated with electronic data communications.’’  

That means there were problems—lots of them. Many employees at the State Department not only used personal email accounts, they refused to use their government-issued laptops because they were lousy. A 2011 email cited by the report underscored this point. Written by the department’s former policy planning director and sent to Clinton, it said, “State’s technology is so antiquated that NO ONE uses a State-issued laptop and even high officials routinely end up using their home email accounts to be able to get their work done quickly and effectively.”

With out-of-date equipment and poor support, plenty of mistakes were made. A good example is when Powell had a private internet line installed in his office so he could use his personal email account on his home laptop. Under the rules, the new line shouldn’t have been put in, but it was. Powell, like every other secretary of state, never read the entire Foreign Affairs Manual; he dealt with foreign crises, wars and international diplomacy while depending on the relevant staff to determine whether it was appropriate to put a jack in his wall.

Clinton’s personal email process was a far less clear-cut as a potential violation—and may not have been at all. The Foreign Affairs Manual allowed for the use of personal email accounts under certain conditions, but never described what those conditions were. (That is why one of the recommendations from the inspector general’s report is for the State Department to issue “enhanced and more frequent guidance on the permissible use of personal email accounts to conduct official business.”)

If Clinton’s account arrangement for nonclassified emails did not fit within the confines of that rule, none of the experts told her so. Clinton had groups of people responsible for overseeing her email operations, including one specifically dedicated to the job with the title "Special Adviser to the Deputy Chief Information Officer." He worked for Clinton throughout her entire term as secretary of state. In addition, the chief operations officer knew about the account, as did the deputy chief of staff for operations.

Then there was the division specifically charged with overseeing all communications systems for the Office of the Secretary and Its Executive Secretariat, or S/ES in State Department lingo, which included Clinton and all of her direct staff. The group responsible for email, computers and the like is called S/ES Office of Information Resources Management, better known as S/ES-IRM. As the report makes clear, officials in S/ES-IRM knew about Clinton’s email arrangement and were in frequent contact with the official directly in charge of maintaining security on Clinton’s private server. Near the beginning of her time in office, the division prepared memos about her use of a private server, which was in the basement of her guarded home. S/ES-IRM staff met multiple times with the special adviser in charge of the private email account and server, and sent emails to Clinton’s senior staff describing technical issues that arose with the system and the actions taken to resolve them. The special adviser also met with the department’s Cyber Threat Analysis Division to discuss the email system and security issues. The bottom line is that Clinton’s email arrangement was not some dark secret—the staffers who spent their careers learning the sections of the Foreign Affairs Manual that relate to emails knew all about it. And the report cites nothing to suggest Clinton or her staff were told by the experts that there was any reason she shouldn’t use the system.

That doesn’t mean there were not concerns. In particularly telling incidents depicted in the inspector general's report, two staff members of the S/ES-IRM met at separate times with the division’s director to discuss problems they anticipated regarding Clinton’s email system. In one meeting, one staff member expressed worries that information on Clinton’s account could contain records that needed to be preserved to meet federal requirements. (It did—more on that later.) According to the report, the director replied that the personal system had been reviewed and approved by department legal staff and that the staffer should not discuss it anymore. (The report says there is no evidence that the department’s lawyers reviewed the system.) The second staff member who met with the director raised concerns about the server; the staffer’s boss replied that the division’s job was to support the secretary of state and that the topic should not be discussed again.

Should someone around Clinton have been told about these concerns? Probably. Was anyone told? Nope—at least not based on the information contained in the report. The inspector general writes that Clinton never sought permission from legal counsel for the email arrangement, nor did Powell or Rice's senior staff. After all, when you go to a new job and the technology specialists set up your systems, do you then run to the company’s lawyers to make sure what they are doing complies with the rules? Or do you depend on them to tell you if there is a problem with the system?

Then there is the issue of security. The one thing that seems clear from the report is that Clinton’s email system was more secure than the one at the State Department. Before delving into that, though, one of the biggest misconceptions about this email “scandal” has to be dispelled: Neither Clinton nor any other senior official cleared for dealing with classified information has only one email system. One is used for workaday business—memos, drafts, information to department employees, questions and answers between individuals—and that is the type used by Clinton, Powell, and Rice’s senior staff that has been reviewed by the inspector general. The second email system, for materials designated as classified, has nothing to do with this controversy. It uses a highly restricted, compartmented information facility, or what is known in intelligence circles as a SCIF. Most senior officials who deal with classified information have a SCIF in their offices and their homes guarded 24 hours a day by physical and technical security teams. In other words, this widely held belief that Clinton and Powell were emailing information classified as top-secret on personal accounts is hooey. (Yes, some emails not marked as classified have been retroactively deemed as such; this happens all the time.)

As for the department’s unclassified system, the inspector general's report demonstrates that it was horribly insecure, and that hackers obtained terabytes worth of documents out of it; on the other hand, Clinton’s email system was quite secure and, when evidence emerged that someone was trying to hack in, the security officer overseeing the server immediately shut it down, then notified the relevant officials at State. In other words, while boxcars of documents were digitally pulled out of the agency, there is no evidence a single email was snagged out of Clinton’s server. So it could be the Clinton arrangement didn’t follow the security procedures laid out in the federal regulations—the inspector general did not reach a conclusion as to whether it did or not—but, as often happens, private security contractors did a better job than the government.

The final issue is document retention. Under federal rules, all government documents must be preserved, although there are a variety of ways that could have been done in the last decade. (Powell preserved nothing from his personal email account, so those records are lost forever.) To comply with the rules, Clinton could have sent her emails to a preservation system notorious for being time-consuming and unnecessarily complex, or she could have printed them out and turned them over to the department before she left. She didn’t do that—instead, she printed them out and turned them over to the department after she left. And from that we get a scandal?

Finally, the report suggests that emails from Clinton’s personal account sent in the earliest days of her tenure have been lost forever, since none could be found. Even without a day’s worth of work—and the inspector general seems to have spent far more than that on this topic—anyone keeping up with this email mess would know that they never existed. As documents released by congressional investigators last year showed, Clinton used her Senate email address for personal communications when she first started as secretary of state. They exist, and Clinton should turn them over, if she hasn’t already.

And that’s why the Clinton email scandal isn’t a scandal. Underfunded, understaffed offices responsible for compliance didn’t do a great job, leading to potential mistakes by many senior State officials who were in office long before Clinton; poorly written rules allowed for the use of personal email accounts; the experts were fully aware of the arrangements but raised no concerns to her or her staff; documents were preserved but not in the precise way dictated by the rules. Can this rationally be called an issue in this presidential campaign? No. But in our hyperpoliticized world, reason doesn’t matter. So let the attacks on this column begin.