Clinton Emails: FOIA is not the Federal Records Act

Line of mail boxes

Update

Bloomberg is probably the only news organization expressing the same concerns I have expressed related to this FOIA lawsuit, and the Judge’s decision to allow questioning of Hillary Clinton.

The court said yes again. Here’s where the case — and the court — began to go seriously off track. A FOIA suit seeks information from the government, not from its former officials. The State Department didn’t thwart the law, surely. And even if Clinton wanted to avoid disclosing documents, that’s not an issue for the court in this FOIA case. FOIA provides for no remedies for failure to comply, other than a court order to do so.

Good stuff. But then it turns around and says, well it’s partially Clinton’s fault because she had the server.

No, it’s not Clinton’s fault. Her having private email is no different than Colin Powell having private email and probably 100s of government officials having private email. Having private email is not a valid reason for a Federal Judge violating the parameters of his duty. Or for Judicial Watch making a livelihood out of FOIA requests.

Earlier

I’m still bugged by Judge Emmett Sullivan’s recent decision in one of Judicial Watch’s Freedom of Information Act (FOIA) lawsuits. He should never have allowed Judicial Watch to submit written questions to Clinton.

It’s a given that Clinton will respond with yet another reply of, “It was for convenience”. Tt’s also a waste of everyone’s time. More importantly, Sullivan had no justification acceding to Judicial Watch’s demand. His decision was an abuse of judicial discretion.

There’s a great deal of confusion about what the FOIA really is, and does. Its purpose is to increase government transparency. The mechanism for doing so is a FOIA request. There are rules related to how a request is answered, what material is exempt, and timelines for a response, etc. If you’re an organization like Judicial Watch, which makes a living related to its FOIA requests, you can also sue if the government doesn’t drop everything and respond immediately.

However, the FOIA is only related to a government’s search of existing records. It has nothing to do with ensuring that records are maintained.

Clinton Was Not Involved With the FOIA Request

The only justification for allowing depositions in a FOIA lawsuit is if the Judge believes the answering organization is attempting to thwart a FOIA request. The State Department has already established it didn’t initially search Clinton’s records in response to the original request  because it didn’t have access to those records. When Clinton turned her emails over, State voluntarily agreed to re-open the FOIA lawsuit and search the newly obtained emails.

The State Department is also searching the records recently discovered by the FBI. That it didn’t do so earlier is because the new records were either deleted as personal (or inconsequential) or are records pulled from other people’s email accounts. At no time did State attempt to hide the records, or deliberately thwart an attempt to recover the documents.

To establish that State was not thwarting the FOIA request, the only appropriate people who should have been deposed were those directly related to the FOIA search.

Hillary Clinton is not involved in the State Department’s FOIA search. She’s no longer a State Department employee. And from a FOIA perspective, it doesn’t matter, at all, why she used a personal email server. Not one bit.

Clinton Did Not Violate the Federal Records Act

Now, the storage of records is related to the Federal Records Act. Did Clinton violate the Federal Records Act? No, she didn’t.

She never removed records from the State, as the emails were never stored at State. She used a personal email account, but that’s not a violation of the Act. The only individuals forbidden in using a personal email account are the President and Vice-President and their immediate staff.

And she turned the records over to State as soon as she realized she was supposed to turn the records over to State.

Again, to emphasize the point, why she used a personal email address is irrelevant, even to the Federal Records Act.

It’s All About Optics

Clinton’s lawyers could have appealed Judge Sullivan’s decision, and I strongly suspect they would have won. Of course, they didn’t because everyone would clamor, incessantly, about what does Clinton have to hide, why is she against transparency, and so on.

However, if Judge Sullivan had demanded that Clinton be deposed, then they would have appealed. Judge Sullivan likely knew this, which is why he limited Judicial Watch to written questions.

That Judge Sullivan took a less controversial approach to Judicial Watch’s request doesn’t alter the fact that the law has been abused in this case. Judicial Watch has not once in all of its depositions established that the State Department was deliberately attempting to thwart the FOIA request. There is no justification—none—for not denying Judicial Watch’s obviously politically-motivated request.

Judge Sullivan should never have granted Judicial Watch’s request. By doing so, he’s unnecessarily adding to State’s FOIA burden. And he’s arbitrarily inserting himself into this year’s Presidential election.

All of this is moot. The State Department just filed a status update, stating that it has searched the new records and found nothing related to Judicial Watch’s FOIA request.

Photo by Sam Javanrouth, used under CC License, modified by cropping

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.

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.