Tag: Clinton

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Documents Political

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

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Media

Fact-Checking PolitiFact’s Clinton Email Fact-Check

I had an email exchange with Gene Emery of PolitiFact about a couple of its fact-checks related to the Clinton emails. PolitiFact just tweeted that it updated the ratings for one of them.

I have to give PolitiFact a Pants on Fire for its tweet…and for its rating.

First of all, that False rating is what the story had at the time of my and Emery’s email exchange. Checking in with the Wayback Machine, the rating was False when the story was first released.

So, no, PolitiFact, you didn’t re-rate this item. You said False on the 6th, and you still show False.

You did post a note following FBI Director Comey’s testimony in front of Congress when he clarified that none of the emails had a classified header, and only three emails had the insider markup (c) denoting classified material in the body of the email.

As I wrote back to Emery, to the average person, (c) means copyright. And I also expected PolitiFact would upgrade their rating following the Editor’s Note. After all, why insert an Editor’s Note if it wasn’t because PolitiFact needed to modify its rating?

But the rating hasn’t changed, and all PolitiFact has reluctantly done is add the note.

Let’s look at this rating, then. As Clinton has stated, over and over and over again, she did not send email that was marked classified. And none of her email showed a classified header, required for classified material.

At most, at most, three emails had the little (c) marking embedded in the email. Three out of 30,000+ emails. And yet PolitiFact, rated what Hillary Clinton has said as False.

Says she “never received nor sent any material that was marked classified” on her private email server while secretary of state. False.

This following the PolitiFact Editor’s Note:

The day after we published this fact-check, Comey testified before the House Oversight and Government Reform Committee on July 7. Comey said he believes three emails on Clinton’s server contained information labeled classified at the time they were sent. This information was not properly marked in that the emails did not have a classification header, even though a “(c)” immediately preceded text in the body of the emails, designating confidential information. Without the clear classification header, it’s reasonable to infer that Clinton did not realize these three emails contained classified information, he said.

Couldn’t we also reasonably infer that PolitiFact would update its rating to Mostly True, or even True, based on this Editor’s Note, and Comey’s statement?

Of course not. Because after all…Clinton…emails…All reason goes out the window. Along with fairness, and perspective, and bluntly, honesty.

Your butt’s on fire, PolitiFact.

Originally published at Crooks & Liars.

Categories
Political

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.