How will FBI Findings impact the Clinton Email FOIA Lawsuits?

Update

I had to link to the piece covering the interview between Andrea Mitchell and former DOJ Matt Miller.

Appreciations to Mr. Miller for calling out Director Comey’s behavior as inappropriate. It was.

Earler

In reading FBI Director’s Comey’s statement I was pleased that the investigation is ended and the FBI has recommended no criminal sanctions. The administrative sanctions he mentioned could consist of demotions, suspensions, or other employment impact, but since Hillary Clinton is no longer a Secretary of State, it doesn’t matter.

It’s likely the DOJ will go along with the FBI finding. So, for those who have stated they know for a fact Hillary Clinton is going to jail, sorry to disappoint, but it isn’t going to happen.

I expected this investigation to focus on the State Department’s handling of email as an agency, but instead, it focused on Hillary Clinton and excluded previous Secretaries of State who also didn’t use State email. Director Comey neglected to mention the fact that a private server doesn’t matter if he is concerned about email being transmitted via mobile devices—security would be compromised just as much if the server was State’s.

He also neglected to separate out those emails that originated with Clinton and those that originated with others. Remember that some of the emails actually contained excerpts from articles at the time, and the article contents were deemed classified or top secret.

As for Director Comey’s chastisement of Hillary Clinton, she’s already accepted that she screwed up with the personal server. I can guarantee you that she’ll not make this mistake, again. But I didn’t like Comey’s tone in his statement. Unless he was willing to broaden his criticism to include Colin Powell, as well as various other cabinet members that have used private email accounts, than his chastisement rings hollow. And more than a little patronizing.

But it’s over and done. Trump will excerpt the bad bits, and mangle them as only he knows how, and we’ll hear about them forever and a day. But I think the majority of Americans are just sick and tired of the topic, so Trump will only hurt himself…something he’s very good at.

The FBI Director’s statement also has, in my opinion, an impact on the FOIA lawsuits. If additional emails were found, they were most likely turned over to State and will be released. But Comey also went into a great deal of explanation as to why they weren’t discovered, and most of that has to do with incorrect searches, and technology. He very carefully noted that the FBI found no evidence of emails being deleted in order to hide their contents.

I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them. Our assessment is that, like many e-mail users, Secretary Clinton periodically deleted e-mails or e-mails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails, so it is not surprising that we discovered e-mails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department.

It could also be that some of the additional work-related e-mails we recovered were among those deleted as “personal” by Secretary Clinton’s lawyers when they reviewed and sorted her e-mails for production in 2014.

The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her e-mails, as we did for those available to us; instead, they relied on header information and used search terms to try to find all work-related e-mails among the reportedly more than 60,000 total e-mails remaining on Secretary Clinton’s personal system in 2014. It is highly likely their search terms missed some work-related e-mails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server.

It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.

We have conducted interviews and done technical examination to attempt to understand how that sorting was done by her attorneys. Although we do not have complete visibility because we are not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.

The FOIA lawsuits imply that material was held back deliberately, and the FBI has basically cleared all personnel of deliberate malfeasance when it comes to document discovery. The department doesn’t think highly of Clinton’s use of a private email server, State’s email systems and handling of classified information, but that’s not a surprise. State itself has noted that it has problems, as evidenced by the OIG report.

My hope is that the FBI Director’s statement will end these absurd FOIA discovery efforts. Unless Judicial Watch, the instigator of most, wants to depose Director Comey or his agents. In which case all I can say is good luck with that one.

The problem of too many requests for information, the State being badly backlogged on FOIA requests, the large number of lawsuits, and the intolerant arrogance of some of the Judges involved in the lawsuits is costing taxpayers millions of dollars and needs to end.

This all needs to end.

If people don’t want to vote for Hillary Clinton because she used a private email server, fine. I’m glad they found the issue that’s of most importance to them. But large chunks of our federal government are being used by Republicans to attack Clinton rather than focusing on the tasks they should be focused on. And there’s better use for the taxpayer money being spent than to fund Judicial Watch and other conservative organizations’ continuous and never-ending FOIA demands.

This Week with the Clinton Email Industry

Vulture flying overhead

The Freedom of Information Act was never intended to be a jobs program for lawyers.

Following up on my previous stories regarding the FOIA lawsuit related to the Clinton emails, earlier this month Judicial Watch  deposed Karin Lang, Director of Executive Secretariat Staff at State, and Ambassador Stephen Mull, currently lead coordinator for the implementation of the Iran Nuclear deal for the US.

With Ambassador Mull, we learned that he really can’t remember an email sent in 2011 related to Clinton’s Blackberry. I don’t know why not. Can’t most of us remember every email we sent five years ago?

With Director Lang, we discovered it was the viral photo of Secretary Clinton in sunglasses that sparked a discussion about Clinton’s email, but we don’t know when the discussion occurred, or with whom. She also confirmed that none of the prior Secretaries of State had a government email address, so Secretary Clinton not having one was not unusual.

In addition, in a flurry of filings demanded by Judge Emmet Sullivan, Bryan Pagliano’s lawyer filed a copy of Pagliano’s limited immunity agreement with the DOJ, as well as an argument for him being able to plead the Fifth in a civil lawsuit. The immunity agreement was filed under seal, meaning only the Judge can see it.

To paraphrase Pagliano’s lawyer, pleading the Fifth in a civil lawsuit is not only allowed, but an accepted practice if the witness had concerns about future action related to the topic at hand. Since we already know the FBI is investigating Clinton’s email server—in some regard—the lawyer asserted that Pagliano’s concerns were reasonable.

Judicial Watch filed motions disagreeing with keeping the immunity agreement under seal, as well as Pagliano having the right to plead the Fifth.

The DOJ also filed a motion about keeping the immunity agreement under seal, as it is associated with an ongoing investigation. Pagliano’s lawyers filed a motion concurring with the DOJ. They also gently reminded Judge Sullivan that the only issues pending are whether Pagliano’s deposition is videotaped and if the DOJ immunity agreement is kept sealed. Pagliaono’s right to invoke the Fifth is without question, contrary to Judicial Watch’s attempts to compel Pagliano’s testimony.

Judge Sullivan agreed, for the most part, with Pagliano. He denied Pagliano’s request not to videotape the deposition, probably because all of the videotapes are being kept confidential. But he granted Pagliano’s request to keep the immunity letter under seal. That Pagliano can plead the Fifth is a given.

Now, all of that’s behind Door Number One.

Behind Door Number Two…Another Judicial Watch Lawsuit Against State

I noticed that Judicial Watch’s filings for this case have a sort of breathless quality to them. And no wonder. While it was busy filing motions in the Honorable Judge Emmet Sullivan’s court, it was also filing motions for another FOIA lawsuit against State in another court, under the Honorable Judge Royce Lamberth.

In that case, which is based on an original FOIA request for information related to Benghazi talking points, State is exerting a greater deal of pushback against Judicial Watch’s demand for discovery, because Judicial Watch got too greedy trying to set the discovery parameters:

Now, for the first time, in its proposed reply, Judicial Watch attempts to justify these discovery requests about not just the search for records responsive to this narrow FOIA request, which sought documents within the Office of the Secretary regarding certain talking points about the Benghazi attacks, but for all searches conducted for emails related to the Benghazi attacks. Plaintiff improperly seeks discovery on topics far beyond the scope of its FOIA request, including but not limited to searches for records for the Accountability Review Board, searches in response to congressional inquiries, in preparation of Secretary Clinton’s testimony before Congress, and searches for records responsive to other much broader FOIA requests. The attempt is far too late. Notably, even this belated attempt fails to offer any actual explanation as to the need for discovery ranging far beyond the searches conducted in response to the FOIA request at issue here. Judicial Watch simply asserts, without additional explanation or the necessary attestations, that discovery about unrelated searches “go[es] to the heart” of the Court’s Order.

I believe that “go[es] to the heart” is equivalent to, “We wants it, Precious”.

But Wait…There’s More

The two lawsuits I just described aren’t the only lawsuits Judicial Watch has going related to FOIA requests. According to information in the FOIA Project, and data I pulled from PACER (the federal court system database), Judicial Watch has filed nineteen FOIA lawsuits since January 1. This is in addition to prior year lawsuits still being litigated, like the two I just mentioned. From what I’ve been able to discover, Judicial Watch has at least 17 active FOIA lawsuits in the District of Columbia federal court; the vast majority are related to the Clinton emails.

They must be on first name basis with everyone in the court. Perhaps the Judicial Watch lawyers join the federal court employees in a weekly poker game.

Judicial Watch isn’t the only organization filing these lawsuits. According to one of the motions filed by State in the Lamberth court case, there are currently sixty  FOIA lawsuits pending in court related to the Clinton emails.

Sixty. That’s enough for an entire industry made up of lawyers, legal assistants, law clerks, and FOIA researchers. Let’s hope we never have another former cabinet member run for President: the government couldn’t afford it.

Generations of Workers For One FOIA Request

The Republican National Committee has filed at least seven FOIA lawsuits related to Clinton or the Clinton emails.  The State has worked with the RNC to meet the demands in most of the lawsuits. In one, though, the State asked to have the case dismissed because, according to it, it would take generations of workers in order to meet the demand.

In this particular request, the RNC asked for all emails, to and from, for Cheryl Mills, Jacob Sullivan, Patrick Kennedy, and Bryan Pagliano. Even after the search was limited the government discovered the result would be a burden:

Even after applying the search terms and date limits (to the extent possible given
technological limitations), there remained approximately 450,000 pages of documents that are potentially responsive to the Mills, Sullivan, and Kennedy requests. To be more specific, there are about 100,000 pages potentially responsive to the Mills request, 200,000 pages potentially responsive to the Sullivan request, and 150,000 pages potentially responsive to the Kennedy request. Moreover, the State Department considers the documents responsive to these requests to be complex because they include classified documents and interagency communications that could have to be referred to other agencies for their review.  Given the Department’s current FOIA workload and the complexity of these documents, it can process about 500 pages a month, meaning it would take approximately 16-and-2/3 years to complete the review of the Mills documents, 33-and-1/3 years to finish the review of the Sullivan documents, and 25 years to wrap up the review of the Kennedy documents – or 75 years in total (without considering the requests for the Pagliano records).

Can you imagine having a job whose sole purpose is to process these email requests?

“Hey Sally, how was work yesterday?”

“Pretty good. We had four redactions.”

“Four! Wow, must have been exciting.”

“Yeah, we all went out for a beer after work to celebrate.”

At least Judicial Watch is a pro when it comes to FOIA requests. It knows to keep requests sized so they’re not rejected outright as being a burden. Still, in my opinion, and backed by data, Judicial Watch is the organization putting the most demand on State and other agencies. It’s requests are smaller, but it files new ones on a frequent basis, barely pauses for the agencies involved to process the requests, and then files a lawsuit demanding a response.

How much does this all cost?

Agencies must maintain employees who respond to FOIA requests. The State Department has had to hire at least 50 new employees, just to handle the increased number of FOIA requests. At the end of 2015, it had 21, 759 FOIA requests still pending. This, on top of the 20,000+ FOIA requests it expects to get this year, all under a 15% budget cut from Congress.

In addition, every FOIA lawsuit takes time and money, both in the courts, and in the Department of Justice, which defends the lawsuits.

Most people probably expect these costs. What they may not expect is that the government agencies may also have to foot the bill for the lawyers and legal costs of the FOIA lawsuit plaintiffs.

President George Bush signed the Open Government Act, which amended the FOIA. Among the new additions were provisions making it easier for FOIA lawsuit plaintiffs to obtain legal fees when they “substantially prevail” over the government agency. In addition, a provision also changed the funds for such fees, so that they now came directly out of the agency’s operating budget.

Even without the amendments, organizations could win legal fees for cases against government agencies. In 2004, in a lawsuit against the Department of Commerce, Judicial Watch was awarded close to $900,000. It was only on appeal that some of the award was reversed, because the Judge had awarded Judicial Watch fees for its discovery disputes with third parties who were outside of the DOC’s control.

Discovery disputes like the one related to Bryan Pagliano.

Checking into the Department of Justice records for closed FOIA cases in 2015, for the most part legal fees are not awarded. However, the government agencies still footed the bill for over 2 million in lawyer fees and court costs.

The costs associated with FOIA litigation isn’t in the attorney fees, though. It’s in the court’s time, and the DoJ’s time, and in the agencies time to make additional or expanded FOIA searches. For instance, in 2015, decisions were rendered in 36 Judicial Watch cases, but only one had court and attorney fees awarded.

Keeping Lawyers Gainfully Employed

Judicial Watch isn’t the only organization filing FOIA lawsuits but it is, by far, the most active. From every indication, this is all the organization does.

It discovers a tidbit of information, or hears of something in the newspaper, and then files multiple FOIA requests. In most cases, the agencies respond. If they don’t respond in 2-4 months, though, Judicial Watch files a lawsuit. And why not? It has a staff of lawyers, and it only costs $400.00 to file a lawsuit.

Since the majority of information it seeks is related to Democratic leaders and/or causes, Judicial Watch uses the results of its effort as fund raisers in the conservative community. And it ensures a steady stream of support by how it presents the data it finds.

As an example, the latest Judicial Watch release was related to a lawsuit seeking documents under the FOIA regarding waivers to access web email for officials in the Department of Homeland Security. Judicial Watch presents the data in the worst possible light:

Jeh Johnson and top officials at Homeland Security put the nation’s security at risk by using personal email despite significant security issues,” said Judicial Watch President Tom Fitton. “And we know now security rules were bent and broken to allow many these top Homeland officials to use ‘personal’ emails to conduct government business. This new Obama administration email scandal is just getting started. If the waivers were appropriate, then they wouldn’t have been dropped like a hot potato as soon as they were discovered by the media.

When you look through the emails, though, you realize that personal email access wasn’t a nefarious plot to skirt open records laws, or undermine the security of our nation. It’s just people wanting to access their personal email via web application, because they can’t use their smartphones while on the job.

A mistake in judgement, perhaps. End of the world? Nope.

All of this—the never-ending FOIA requests and multitudes of related lawsuits, in addition to fishing-expedition discovery— is perfectly legal. It may even seem to be a goodness… except the agencies are so tied up responding to organizations like Judicial Watch that other requests, from individuals or smaller organizations without lawyers permanently ensconced at the DC court, end up waiting months, perhaps even years, for a response. And we can’t afford to file a lawsuit in order to ensure our requests go to the top of the heap.

I currently have one request into the DOJ for a lawsuit completely unrelated to Clinton’s emails. I did receive an acknowledgement of my request. However, I would surprised if I receive the documents I’m after before next year. And it’s not because the DOJ is being a slackard. It’s because of organizations that have turned the FOIA into a money machine. Organizations, like Judicial Watch.

Writing at Crooks and Liars

Bird in a tree

I have been writing some pieces at Crooks and Liars, primarily to extend my audience reach. My poor little weblog just doesn’t have the oomph it once had—probably because I write on such an odd mix of topics.

About my pieces at Crooks and Liars…

I’m a Clinton supporter, but even if I weren’t, I’d be unhappy at the obvious attempt to turn her use of a personal email server into the next Apocalypse. That the hysteria about her use of a personal server is manufactured is obvious. The problem is compounded by a media that has done a poor job of covering the story, aided and abetted by the GOP. Sadly, their efforts have also been helped by Bernie Sanders and his supporters. Yes, Bernie says he doesn’t want to get into the Clinton email server, but he always manages to insert an aside about “how serious this situation is” in some form or another.

He’s been in DC for decades, he knows this ‘scandal’ is engineered. Why can’t he just say so, and then go on to the issues?

I’m also unhappy about the continued abuse of the FOIA by groups like Judicial Watch and the Competitive Enterprise Institute. So it was natural for me to follow the FOIA lawsuits associated with the Clinton emails, especially when I discovered one was being presided over by Judge Emmet Sullivan—not my favorite federal judge.

Judicial Watch, CEI, and others like them make most of their income trolling through public records. They make sweeping and broad FOIA requests to agencies already maxed to the limit with trying to support open records requests. Then, when the agencies don’t respond in a fairly short time, or respond in the way they want (and they’re seldom happy with the results of a search), they file a lawsuit.

What most people don’t know, is those lawsuits cost the American taxpayer money. Judicial Watch got close to a million dollars in legal fees with one lawsuit, $330,000 in another, and that’s just a start. I suspect all of Judicial Watch’s efforts have cost taxpayers millions, if not tens of millions of dollars.

The agencies do make good faith efforts to find records, such as the State Department made a good faith effort to find Clinton emails. But State also has to respond to an average of 20,000 or so FOIA requests in a year, with a budget that’s been decreased 15% by the Republican-dominated Congress.

That Clinton’s emails weren’t found is more a result of confusion about what’s stored than not. From all of the emails I’ve looked at, she either responded to someone with a State email address, or forwarded the email to someone with a State email address. Everyone seemed to assume that all emails in a State email account were automatically saved, and searchable by FOIA. Of course, from the recent OIG report, we know this isn’t true. Does that make State negligent and Clinton criminal?

Of course not.

When Clinton did give her backup of the emails to State, they put everything online. Everything. No one individual ever working for any government agency has ever had this much exposure of their emails.

State had had to hire 44 more people, just to handle FOIA requests, primarily related to Clinton.

Despite that, Judge Sullivan and Judge Lamberth, another judge who demonstrates some of the same characteristics as Sullivan, are allowing Judicial Watch to do discovery in their FOIA lawsuits. It’s absurd. FOIA is administrative law. If the Judge decides that the agencies didn’t do enough to fulfill a request, they can sanction the agency, and order it to pay legal fees. But discovery?

And the direction of the discovery in the Sullivan case is disturbing. State offered to bring in  personnel responsible for FOIA requests to be deposed, but no, Judicial Watch wanted people that Clinton had on her staff, such as Cheryl Mills. These are people that had, at most, a remote connection to anything to do with the emails, but oh, they know a lot about Clinton. Judicial Watch wants to depose Bryan Pagliano, the person who set up her server, but he’s demonstrated since the beginning of this fiasco he wants nothing to do with it, and now that’s caused even more issues.

We’ve already seen Judicial Watch blast through the narrow confines Sullivan set for discovery. They do so with impunity, because they know Sullivan, like I know Sullivan: once you trigger Sullivan the Crusader, say good-bye to Sullivan, the thoughtful and balanced jurist.

All combined, I’m going to continue to write about the FOIA lawsuits. Unless Crooks and Liars tells me enough already with the FOIA lawsuits and depositions, I’m going to continue covering them at the publication, but may start duplicating them here, for those of my regular readers who might be interested.

My most recent piece for Crooks and Liars is not on FOIA lawsuits, but was a direct response to  recent interviews Susan Sarandon did with MSNBC and Young Turks (I originally saw the interview in Salon). In a piece at The Hill, we read:

Sarandon, who supports Bernie Sanders for president, said Trump’s ideas are too implausible to be dangerous.

“This is what we’re fed — ‘he’s so dangerous, he’s so dangerous,’ ” she said. “Seriously, I’m not worried about a wall being built and Mexico paying for it.

“He’s not going to get rid of every Muslim living in this country. Has he made it the norm to be racist and vent these kinds of things? Yes. But seriously, I don’t know what his policies are.”

She basically dismisses all the appalling statements Trump has made, as if they’re inconsequential because everyone knows they won’t happen. This is the exact same rhetoric we’ve started to see from the GOP this week: oh, don’t worry, Trump can’t do any of that stuff, so you can elect him President. Congress will control him.

Sarandon then accuses Hillary Clinton of being more dangerous. Trump wants to ban Muslims, build a wall, threatens a federal judge, seems to see the Presidential role as a personal perk, has disdain for Constitutional separation of powers, wants to play patty cake with the leader of North Korea, is bellicose about China, Japan, Mexico, NATO, and every single one of our allies…and Clinton is more dangerous!?

Sarandon also used the opportunity to chastise the media for not covering Clinton’s upcoming indictment, which, according to her is a certain thing:

“Nobody’s even talking about this indictment,” she told MSNBC. “What happens with that, besides the trust issue of catching her in so many lies?”

“Well, there has been no indictment,” Chris Jansing responded.

“No, but there’s going to be,” responded Sarandon. “I mean, it’s inevitable.”

I answer her “it’s inevitable” at C & L, but a short summary: what a crock.

In my opinion, if Sanders doesn’t get the Democratic nomination, Sarandon wants Trump to win.  She once slipped and said she thought it would shake things up, but then disclaimed the statement. But I truly believe she thinks this. And she’s encouraging other Bernie supporters to think the same.

“Well, you know, some people feel Donald Trump will bring the revolution immediately,” Sarandon told Chris about why she’d vote for Trump. “If he gets in, then things will really explode. The status quo is not working. I think it’s dangerous to think that we can continue the way we are … to think you can’t do something huge to turn that around, because the country is not in good shape if you’re in the middle class.”

My piece may seem over the top, but it’s relatively restrained considering what I really wanted to write.

My Crooks and Liars pieces:

I’m still writing here and my other sites. Still writing about tech. Still writing about all the other stuff I write about.

 

 

 

 

 

Media’s Epic Email Fail

The media continues to output articles with fantastic titles such as “Hillary Clinton’s private server doesn’t look like honest mistake”, “The Origin of Key Clinton Emails From the Inspector General Report Is a Mystery”, and my personal favorite, “Hillary Clinton Wasn’t Adept at Using Desktop for Emails, Inquiry is Told”.

(Perhaps in the next debate, we can ask our candidates to demonstrate their ability to send an email via a laptop to determine whether they’re qualified to be President. Well, except if the debate is between Trump and Sanders. They don’t have to prove their ability. After all, everyone knows men are born knowing how to use computers.)

Since we’re now looking at weekly releases of deposition transcripts related to the emails, courtesy of Judge Emmet Sullivan (about which I’ll have more in a follow-up post), it’s important that people have a solid understanding of what the OIG Evaluation Report on State’s email retention and security really means. This means cutting through the many misunderstandings: both inside the report, and among the media’s interpretations of the report results.

First, it’s essential that people realize the OIG report is an evaluation, not a formal OIG investigation. This means that the OIG was looking for general patterns of failure related to the focus of the evaluation, rather than looking for specific instances of deliberate wrong doing. As such, the OIG effort wasn’t exhaustive.

Specifically, the OIG report notes that their fact-finding was limited because of faulty memory, or lack of responses from those people who have already left the department, and didn’t return any of the questionnaires:

In addition, OIG was unable to reconstruct many events because of staff turnover and current employees’ limited recollections of past events. These problems were compounded by the fact that multiple former Department employees and other individuals declined OIG requests for interviews, and OIG lacks the authority to compel anyone who is not a current Department employee to submit to interviews or to answer questions.

Clinton and many of her previous staff have been condemned for not “cooperating” with the OIG evaluation. However, an FBI investigation takes precedence over any other investigation—especially a non-time critical effort such as an OIG evaluation of State’s email retention and email cybersecurity procedures. As noted in a Wall Street Journal article:

Within the federal government, criminal investigations commonly take precedence over noncriminal probes. The State Department will assess how to proceed after the FBI has concluded its investigation, Ms. Trudeau said. A separate probe by the State Department’s independent Office of Inspector General is ongoing, said Doug Welty, a spokesman for that office.

Brian Fallon, a spokesman for Mrs. Clinton’s presidential campaign, said the State Department took “a prudent step.”

“The State Department’s Inspector General should follow suit,” he said.

The Clinton folks are correct: the OIG should have paused its efforts until the FBI investigation is complete, especially since they must have been aware that the key people they needed to interview were not going to participate until after the FBI finished.

While the FBI is investigating, you limit what you say. That’s “No Brainer” 101. Only the naive believe that “if you’re innocent, what’s the harm?” Even the most innocuous utterance could be enough to trigger another five months of FBI investigation, especially when you have an FBI Director who is as obsessive-compulsive as Comey.

(I shouldn’t have to remind anyone about the FBI’s attempt to force Apple into creating backdoor software, making every iPhone vulnerable, just so they could crack the work cellphone for one of the San Bernadino terrorists.)

Why didn’t the OIG wait on the FBI investigation? Most likely pressure from Congress. The same Congress that has permanently enshrined Benghazi into the Congressional infrastructure. And, from the OIG’s perspective, it was able to obtain enough information to note general problems in the State Department and issue relevant recommendations. Ultimately, that was supposed to be the evaluation’s primary purpose.

Incomplete reports mean incomplete conclusions

But the very incompleteness of the OIG’s fact finding mission undermines many of the statements made in the report. For instance, the OIG report mentions that it could not find evidence that Clinton’s personal system had been reviewed:

According to the staff member, the Director stated that the Secretary’s personal system had been reviewed and approved by Department legal staff and that the matter was not to be discussed any further. As previously noted, OIG found no evidence that staff in the Office of the Legal Adviser reviewed or approved Secretary Clinton’s personal system.

However, if key people who were employed by State at that time were not interviewed, we can’t know for sure that no review was done. In addition, the OIG also admits to lack of success discovering records…hence the OIG evaluation.

Then there’s the seeming conflicting information in the report, again related to the vetting of Clinton’s system. For instance, the following paragraph implies that Clinton or her people never asked for a solution from IRM (Bureau of Information Resource Management) regarding her email server:

During Secretary Clinton’s tenure, the FAM also instructed employees that they were expected to use approved, secure methods to transmit SBU information and that, if they needed to transmit SBU information outside the Department’s OpenNet network on a regular basis to non-Departmental addresses, they should request a solution from IRM. However, OIG found no evidence that Secretary Clinton ever contacted IRM to request such a solution, despite the fact that emails exchanged on her personal account regularly contained information marked as SBU.

Yet the same report contains the following footnote, related to Brian Pagliano (Senior Advisor), who maintained Clinton’s server:

At that time, S/ES IRM staff met with the Senior Advisor, who accessed the Secretary’s email system and looked at its logs. The issue was ultimately resolved and, on December 21, 2010, S/ES-IRM staff sent senior S/ES staffers an email describing the issue and summarizing the activities undertaken to resolve it. On another occasion, the Senior Advisor met with staff within CTAD and received a briefing on cyber security risks facing the Department. A third interaction took place on October 30, 2012, during the period when Hurricane Sandy disrupted power in the New York City area. An email exchange between Deputy Chief of Staff for Operations and another member of the Secretary’s staff revealed that the server located in Secretary Clinton’s New York residence was down. Thereafter, the Senior Advisor met with S/ES-IRM staff to ascertain whether the Department could provide support for the server. S/ES-IRM staff reported to OIG that they told the Senior Advisor they could not provide support because it was a private server.

Even in the convoluted parlance of government-speak, how can you reconcile “never contacted IRM and asked for help” with “contacted IRM and asked for help”?

Despite these obvious contradictions and important provisos, the media has been slamming Clinton nonstop since the report released. And some of the outrage is just plain silly.

Media-manufactured outrage? Yes.

The Chicago Tribune writes, “Origin of key Clinton emails from report are a mystery”. What emails? The ones from her IT person to her staff expressing concerns that the server might be under attack and he was taking measures to prevent it, and the one related to whether Clinton should get a State email account or not, because her emails weren’t being answered.

Of course, the “attack” emails weren’t to Clinton, or from Clinton, but by golly, they should have been in the emails Clinton turned over! As for the email related to the State email account, if this was one of the emails from Clinton’s first few months transitioning into her position as Secretary (and by its nature, I’m assuming it is), she’s already stated she doesn’t have these emails. I think since Secretary Powell didn’t turn over any of his emails during his entire tenure, or Secretary Rice’s staff didn’t turn in all of theirs, we can cut Clinton some slack for not turning over about two months of emails, during a time when she was trying to figure out how everything worked. Can’t we?

Speaking of these particular emails, the Chicago Tribune writes, “Hillary Clinton’s private server doesn’t look like an honest mistake.” No, she deliberately hid her server because she wanted it to bite her in the butt when she ran for President.

One of the Tribune’s concerns seems to be the email describing how the server may have been under attack, but they didn’t report the attack. But again, how do we know it wasn’t reported? Several of the relevant people are no longer in State, and declined to be interviewed. And how do we know that Clinton or her staff even knew that this was the procedure to follow? After all, the whole point of the OIG report was discovering problems within the State’s handling of emails, including cybersecurity. There is an assumption that all of these people knew all of the arcane rules and regulations associated with systems in the State department, when there’s no clear indication that this was so.

You can check out just some of the procedures and regulations, yourself. Now ask yourself: how long would it take to become proficient enough with these types of rules, so that you could remember them enough to deduce the procedure to follow implicit in the rules?

Some media stated that Clinton should have used the State Department’s SMART system to back up her email. What the same media doesn’t know is that the SMART system wasn’t meant for State Department executives, such as Clinton. The SMART system was for rank-and-file State employees. The only preservation system Secretary Clinton had at the time was to print out each email, and then file it.

Even if Clinton tried to use the SMART system, she most likely would have failed. The OIG did a evaluation of the SMART system last year, and found that, for the most part, those who were supposed to use the system were not using it. Why? They didn’t have the proper training, and the system was too hard to use.

I can relate to that.

Clinton was Secretary of State, not a State secretary

There’s one more article from the media I want to address, and that’s the Washington Post’s editorial titled “Clinton’s inexcusable, willful disregard for the rules.” They wrote:

The department’s email technology was archaic. Other staffers also used personal email, as did Secretary Colin Powell (2001-2005), without preserving the records. But there is no excuse for the way Ms. Clinton breezed through all the warnings and notifications. While not illegal behavior, it was disturbingly unmindful of the rules. In the middle of the presidential campaign, we urge the FBI to finish its own investigation soon, so all information about this troubling episode will be before the voters.

All I have to say to the Washington Post Editorial board is: how dare you?

How dare you undermine Hillary Clinton’s tenure as Secretary of State? How dare you imply that all she had to do during her tenure as Secretary was discover the rules and regulations related to her email server and ensure her staff followed them. That she had nothing else of importance to do.

In her first year in this position, Secretary Clinton made 52 official State Department trips. She attended UN sessions, sessions with NATO, met with world leaders, and attended ceremonies as official United States representative. Whether you agree with her actions during the events or not, that same year she helped re-establish more cordial relations with Russia (the Russian Reset) and established first overtures to Iran that eventually led to the Iran nuclear deal implemented this year. The Honduran crises also happened in 2009, becoming a major focus of State Department effort that year..

And you’re fussing about Clinton not taking the time to discover the email system rules she should be following?

The Washington Post editorial board has one woman in the nine-member board, Jo-Ann Armao. Perhaps she can help her fellow board members understand the difference between being an office secretary, and being Secretary of State.

This isn’t an episode of Mad Men, and Hillary Clinton isn’t Joan Harris. She wasn’t a secretary in the secretary pool, she was Secretary of State of the United States of America…one of the most powerful and important positions in the world. And the OIG report, and the media stories like the Washington Post editorial, are faulting her for not taking the time to discover the minutia of intra-agency policy regarding her email system.

Unbelievable.

A Broken System

That Clinton did not throw her staff under the bus, and accepted responsibility for the email server is commendable. I don’t know of many other candidates for President who would be this fair. And I want to be clear: her direct staff wasn’t at fault. It was up to career State employees to ensure all the proper steps were taken regarding Clinton’s email and email server. I am astonished, and frankly, more than a little disgusted, how few media professionals have realized this.

That procedures at State regarding email were not clear, or well known, just drives out the necessity of the OIG report. Though it isn’t as comprehensive, or as balanced, as one would hope, the report did cover what State needs to do to ensure the events related to Clinton’s emails don’t happen again.

Then, in the future, we won’t be subjected to what we’re being subjected to now: story after story after story about Clinton’s emails—the majority of which are either deliberately incendiary or confused. Instead, we could be focused on more important facts. Facts, like how on earth could someone like Trump become an actual Presidential nominee.

Originally published at Crooks & Liars.

Inspector General’s Report On Clinton’s Email Greatly Exaggerated By Media Outlets

The Office of Inspector General (OIG) released its anticipated report on the State Department’s handling of email and cybersecurity. The report covers Hillary Clinton’s use of a private email server, but also includes an examination of other State employees use of email, including Colin Powell’s use of a private email service.

Almost immediately, the media was full of headlines such as “State Department report slams Clinton email use” from CNN, “State Dept. inspector general report sharply criticizes Clinton’s email practices” from the Washington Post, and “IG: Clinton didn’t want emails ‘accessible'”, from The Hill.

Lost in the hyperbole is the fact that the OIG report was meticulous and thorough, but also dispassionate, just like any other OIG report I’ve read. There was no direct criticism of Clinton, sharp or otherwise. The OIG was examining the State Department’s practices, not specifically investigating Clinton’s actions.

Reading the various media stories on the report, I found other misrepresentations. For instance, The Hill claims that Clinton didn’t want her email to be “accessible”. In actuality, what the report stated was that Clinton didn’t want her personal emails being accessible:

In November 2010, Secretary Clinton and her Deputy Chief of Staff for Operations discussed the fact that Secretary Clinton’s emails to Department employees were not being received. The Deputy Chief of Staff emailed the Secretary that “we should talk about putting you on state email or releasing your email address to the department so you are not going to spam.” In response, the Secretary wrote, “Let’s get separate address or device but I don’t want any risk of the personal being accessible.”

The Washington Post article stated:

The inspector general, in a long awaited review obtained Wednesday by The Washington Post in advance of its publication, found that Clinton’s use of private email for public business was “not an appropriate method” of preserving documents and that her practices failed to comply with department policies meant to ensure that federal record laws are followed.

First of all, a lot of people and organizations got a copy of the report, WaPo. You’re not special.

Secondly, Clinton did take action to preserve her emails, as the report notes. On Page 66 of the report, Janice Jacobs, the State Departments Transparency Coordinator, specifically addressed Clinton’s handling of the emails:

In addition the Department had already received Secretary Clinton’s emails and undertook to release 30,000 of them to the public. The National Archives and Records Administration concluded that our efforts with respect to Secretary Clinton and her senior staff mitigated past problems, as has a federal district court in a suit brought under the Federal Records Act. As you note in your report, you concur with this conclusion. (emph. added)

The State Department, the OIG, and NARA all concurred that Clinton’s actions in turning over the emails she had, in addition to others the State Department was able to discover, did mitigate not following proper procedures (i.e. printing out each email and filing it). It’s true that in the beginning of Clinton’s tenure as Secretary of State, during the first two months transition period, some emails were lost. However, there was no indication that an attempt was made to deliberately hide these emails from a salivating public: it’s technology; stuff happens.

Lastly, I can almost hear the calls of “criminal Hillary” from a certain party who shall go nameless. Note, though, as the report mentions, there were no administrative penalties in place—either about the use of a private email server, or not following the established procedures for preserving emails—at the time Clinton served as Secretary of State. Moreover, there is no indication that she was even aware of the requirements.

Although the Department is aware of the failure to print and file, the FAM contains no explicit penalties for lack of compliance, and the Department has never proposed discipline against an employee for failure to comply. OIG identified one email exchange occurring shortly before Secretary Clinton joined the Department that demonstrated a reluctance to communicate the requirement to incoming staff. In the exchange, records officials within the Bureau of Administration wondered whether there was an electronic method that could be used to capture the Secretary’s emails because they were “not comfortable” advising the new administration to print and file email records.

State Department personnel were discouraged from using their private email, but not explicitly forbidden from doing so. As quoted in the CNN story—the one where Clinton was purportedly “slammed’ by the OIG—the State Department spokesman concurred:

State Department spokesman Mark Toner briefed reporters Wednesday: “While not necessarily encouraged, there was no prohibition on using personal email. The only requirement is that — and the regulations do state this, that these records need to be preserved.”

To repeat what I wrote earlier, the OIG report was focused on the State Department’s procedures in place for emails; it’s not specifically focused on Clinton. It may be more titillating to say that the OIG is “slamming” Clinton, or that the OIG report was “sharply critical of Clinton”…but it’s also inaccurate, and misleading.