Previously published at WGBHNews.org.
No doubt Bernie Sanders spoke for many last October when he said he was sick of hearing about Hillary Clinton’s “damn emails.” But if Clinton wins the Democratic presidential nomination, you can be sure we’re going to hear more—much more. Indeed, the ongoing saga of why Clinton used a private email server for official government business when she was secretary of state is likely to emerge as her biggest obstacle in the general election campaign this fall.
With an eye toward settling in my own mind whether or not the email story—I hesitate to call it a scandal—could derail her candidacy (or worse), I spent some time on Monday reading two in-depth accounts of exactly what occurred and whether it could lead to legal trouble. The whodunit, a 5,000-word piece that was published in The Washington Post on Sunday, was reported and written by Robert O’Harrow Jr., an investigative journalist. The only-slightly-shorter legal analysis was written by former Department of Homeland Security lawyer Richard O. Lempert and appears in The American Prospect.
I wish I could tell you that I now understand what happened. In fact, I don’t, although I know more than I did before. According to the Post, it all began when Clinton, as the new secretary of state, made it clear that she wanted to keep using her BlackBerry. The State Department was against it because of security concerns, but technology officials helped her do it anyway—apparently without realizing she was routing all her email through a private server in the basement of her home in Chappaqua, New York.
Clinton’s goal appears to have been convenience rather than anything nefarious. At the same time, though, she ignored warnings that what she was doing could prove dangerous even after “a note went out over Clinton’s name urging department employees to ‘avoid conducting official Department business from your personal email accounts.’” And no, her Republican predecessors, Colin Powell and Condoleezza Rice, did not engage in similar practices despite many reports to the contrary. O’Harrow writes:
From the earliest days, Clinton aides and senior officials focused intently on accommodating the secretary’s desire to use her private email account, documents and interviews show.
Throughout, they paid insufficient attention to laws and regulations governing the handling of classified material and the preservation of government records, interviews and documents show. They also neglected repeated warnings about the security of the BlackBerry while Clinton and her closest aides took obvious security risks in using the basement server.
By contrast, Lempert focuses on the narrower, simpler issue of whether Clinton broke the law. On that matter, we are able to come to something approaching a definitive answer: No. (Well, OK. Probably not.) The reason Clinton is almost certainly in the clear is that, under most circumstances, mishandling classified information is not a crime unless it’s done “knowingly and willfully.” Lempert explains:
To violate this statute, Secretary Clinton would have had to know that she was dealing with classified information, and either that she was disclosing it to people who could not be trusted to protect the interests of the United States or that she was handling it in a way (e.g. by not keeping it adequately secure) that was at least arguably prejudicial to the safety or interest of the United States.
In other words, her apparent ignorance of technology should serve as an adequate—if not impressive—defense.
Lempert also goes deep on what kind of information is classified, what should be classified, and how information becomes classified. A lot of it is eye-glazing, but here’s a fact that made me sit up and take notice: as secretary of state, Clinton had the ultimate power to classify and declassify information produced by her agency. That wouldn’t be the case with information originating with the president, of course, or with other agencies. That’s why her handling of CIA documents has come under scrutiny. But the question of whether classified State Department documents passed through the basement of her home may prove to be the ultimate non-issue.
In addition, Lempert raises the possibility that Clinton’s private server may actually have been more secure than the government’s, since hackers presumably would not have known about her unusual arrangement.
Into the midst of this uncertainty comes Jill Abramson, former executive editor of The New York Times, who, in a commentary for The Guardian, writes that she considers Clinton to be “fundamentally honest and trustworthy”—two qualities not normally associated with her, or at least not with the caricature of her that now stands in as a substitute for whoever the real Hillary Clinton might be.
So where does that leave us regarding the emails? The story, broken by the Times, has been with us for more than a year now, and we don’t seem to be any closer to the whole truth now than we were then. It’s like Benghazi—casting shadows on Clinton’s judgment, but no more than that.
Finally, a caution for the media. Merely passing along the pronouncements of Republican frontrunner Donald Trump that Clinton “shouldn’t be allowed to run” because of the way she handled her email is a disservice to the public. (Then again, taking anything Trump says at face value is a disservice to the public.)
The Washington Post and The American Prospect articles demonstrate that the truth is elusive, nuanced, and not all that exciting. Unfortunately, the chances that this story won’t be boiled down to a soundbite—simple, understandable, and wrong—are virtually nil.