She was well aware that everything she did would be leaked if her right-wing adversaries and haters had a chance; even her most personal and private messages would appear not just on the front pages of tabloids but maybe also on the front page of the New York Times. Thus she decided to use a private email address and her husband’s private server at their home in Chappaqua, New York. It was physically protected by the former president’s ongoing Secret Service detail and had been established with multiple security systems to prevent hacking. She knew that all of her official business emails from or to members of the State Department had to be preserved as official documents under the law and all would also be recoverable under Freedom of Information Act requests since the State Department sender or receiver had the state.gov email address.
She and her advisers might not have realized the significance of using two BlackBerrys to differentiate official from personal messages. They all should have known that when it came to official messages appropriately marked with some level of classification, it didn’t matter what the email address was or whom it was to or from; it had to be communicated through a secure communications channel.
It didn’t matter because if the email was designated as classified as the classification manual required—in a conspicuous header that could not be missed, with the specific level of classification stated—then it had to be sent through special secure channels from a special secure device in a Sensitive Compartmented Information Facility, a special room that was impervious to interception or hacking. That was a given.
So in a discussion about using a private email address from her BlackBerry and housing those messages on a private server, the reaction by Hillary Clinton and her advisers just might have been: no reaction. It just didn’t seem at the time to be a big deal.
One BlackBerry was fine. Better. More credible. More convenient. That must have been everyone’s good-faith conclusion.
So, hypothetically, shortly after she was sworn in as secretary, just suppose high in the air en route to someplace far away, let’s say fifty thousand feet over Afghanistan on her way to Japan, in the middle of the night for her but perhaps while her husband and family and friends back home were just waking up, she received an urgent email message on her BlackBerry asking her a question that she believed could best be answered by someone else at State on the 24/7 desk for that particular region of the world about which the question was asked.
What did she do? Perhaps she just hit Send and forwarded it to the desk officer. She must not have thought anything about it being risky or illegal—because it was neither. There was no classified designation on the email, for it had been sent through unsecure channels by a State Department official who knew the difference between classified and unclassified, and she knew it would be preserved in two places—on her own private server in her home and on the state.gov server.
Still, Clinton and some of her senior aides must have wondered whether there was any precedent for using a private email system on another server outside the State Department address and server. After all, emails had become common and BlackBerrys were ubiquitous, and commercial email systems, such as AOL and CompuServe, were widely used back then. So they might have wondered whether other secretaries of state had made the same choice to use a single personal device outside the official communication system for emails not marked classified—for the same two reasons: convenience and privacy.
Several months later, they learned the answer. Yes, there was a precedent for using an outside private server, not the State Department server: former secretary of state General Colin Powell. At a dinner party several months after she became secretary, Clinton heard General Powell describe his own system when he was secretary from 2001 to 2004, similar to what she had decided to do several months before. He decided on using a desktop personal computer to send both personal and official business emails through a system outside the State Department server. He used AOL’s email system and its private server. At the turn of the twenty-first century, the BlackBerry was still in rudimentary form.
Powell reminded Clinton that his reasons would be true for her too—to preserve privacy. Being Hillary Clinton, there was a real possibility that her personal emails would end up all over the Internet. He figured the emails he sent to State Department officials on the state.gov server would be preserved for posterity, as the law required, and those regarding State Department matters could be retrieved from AOL’s server.
Of course, Powell said, when the emails were labeled classified, he used classified, secure channels. And that is what Hillary Clinton did as well. In any event, General Powell’s comments at the dinner party confirmed for Clinton that it was okay to continue to use a single device to send her official and personal emails and to store them on a private server. Like Secretary Powell, she saw no serious security risks doing so for emails that were not marked as classified. So Clinton used her BlackBerry, never suspecting what was to happen as a result.
CHAPTER TWO
* * *
The Times Gets the Story Half-Wrong
Late in the evening of Monday, March 2, 2015, I got a call from someone in the Clinton campaign giving me a heads-up about the leading story just posted on the New York Times website, to be on the front page of the next morning’s edition. It was about Hillary Clinton using a private email address.
The front page of the Times was (and is) by definition a big deal. All the news organizations, morning TV shows, and 24/7 cable news programs would be running the story as a lead or major topic for at least the next day or so.
I was told to be ready to be on TV news shows the next day, so I started to do some quick homework. When I found the story, however, I was not too concerned. The headline read, “Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules.”
Here is what the well-respected Newsweek columnist and former Times reporter Kurt Eichenwald subsequently wrote about this Times story:
[The] highly touted article about Hillary Clinton’s use of a personal email account . . . was wrong in its major points. The Times’s public editor defended that piece, linking to a lengthy series of regulations that, in fact, proved the allegations contained in the article were false. While there has since been a lot of partisan hullaballoo about “email bogus-gate”—something to be expected when the story involves a political party’s presidential front-runner—the reality remained that, when it came to this story, there was no there there.
When I first read the story, I came to the same conclusion. There were only three questions that interested me, substantively and politically: Was Clinton’s use of private emails legal? Did she have any significant precedent of one or more prior secretaries of state who made a similar judgment that it was okay to do so? And was there any evidence of hacking or interception of her official emails by foreign adversaries such that national security had, in fact, been harmed?
The headline said only that rules had been “possibly” violated by Clinton’s private email system outside the State Department. That certainly was an odd word to use in a headline, much less a front-page story. It seemed irresponsible to me, journalistically speaking. Why would the paper run a story about something “possibly” being illegal with such serious personal and political ramifications? Why not wait to see if it was, or was not, illegal?
Then came the first paragraph:
March 2, 2015, WASHINGTON—Hillary Rodham Clinton exclusively used a personal email account to conduct government business as secretary of state, State Department officials said, and may have violated federal requirements that officials’ correspondence be retained as part of the agency’s record.
I noticed the word “may.” It weakened a declarative statement. Eichenwald seemed to agree in a Newsweek column he posted the following week, on March 10, titled “Why Hillary Clinton’s ‘Emailgate’ Is a Fake Scandal.” Here is what he wrote: “There is a term in journalism for the word may. It’s called a weasel word, which helps readers
gloss over what the story is really saying: That the Times doesn’t know if the regulations were violated, but it sure sounds good to suggest that they could have been.”
Then I looked at the last phrase in the paragraph about what “requirements” were “possibly” violated. Later on in the story, those requirements were further defined: “Regulations from the National Archives and Records Administration at the time required that any emails sent or received from personal accounts be preserved as part of the agency’s records.”
Then I was surprised to see a flat-out statement from the Times of a violation of these regulations by Clinton and her aides: “But Mrs. Clinton and her aides failed to do so.”
What exactly had Mrs. Clinton and her aides failed to do in violation of that regulation? If they “retained” or “preserved” the records, was there a specific requirement that the records had to become part of the agency’s records immediately? In other words, was there a specific time period in the Federal Records Act or in the regulations the Times referred to?
When I served as special White House counsel, from 1996 to 1998, we were briefed on the Federal Records Act (FRA), which required the preservation of all our official-business-related written notes and emails (in those days, there was an email system only within the White House complex, not to external individuals, so they were automatically preserved). I also had an early model of a PalmPilot—which was then called a personal digital assistant. I used it to keep telephone numbers, make appointments, and write reminder notes and telephone calls I needed to return each day.
I recalled asking an associate White House counsel who briefed us on the FRA whether I needed to immediately turn over whatever notes or records I was keeping on my PalmPilot. He said no, as long as they were preserved on the PalmPilot, I could turn them over in electronic or printed form after I left the White House. There was no time period specified in the Federal Records Act for doing so—just that they had to be “preserved.”
In the third paragraph of the article, I learned that in December 2014, Clinton had turned over “55,000 pages of emails” as a result of a “new State Department effort to comply with record-keeping practices.” The word “new” caught my attention. I vaguely recalled reading that the FRA had recently been amended. So I googled it and discovered that in November 2014, almost two years after Clinton had left office, the act was amended and enacted into law. The new rules set, for the first time, a specific time period after an executive official leaves office—sixty days—to turn over all official records. Prior to that, when Clinton was secretary of state, there was no official deadline.
* * *
Strange. The Times had omitted the rather important fact that a time period had been imposed two years after Secretary Clinton had left office. This apparently made the difference between legal and illegal conduct at the time she was secretary, since she had waited more than sixty days after she left office to turn them over to State.
Why hadn’t the Times disclosed this change in the law in the article? I still figured there would have to be some legal expert to back up the paper’s assertion that “Clinton and her aides” had “failed” to comply with the “requirements.”
Aha. There it was: a quote from a Washington, DC, attorney, Jason R. Baron, described as having previously served as the director of litigation at the National Archives and Records Administration, which supervised and implemented the Federal Records Act to be sure federal official records were preserved for posterity and which had promulgated regulations on this issue in 2009.
“It is very difficult to conceive of a scenario—short of nuclear winter—where an agency would be justified in allowing its cabinet-level head officer to solely use a private email communications channel for the conduct of government business. . . . [Hillary Clinton’s] exclusive use of her private email, for all of her work, appears unusual,” Baron said.
What? That’s a dramatic quote, I thought, and it caught my attention. But Baron had said “unusual,” not “illegal.” Similarly, another quote from him farther down in the story: “I can recall no instance in my time at the National Archives [2000–2013] when a high-ranking official at an executive branch agency solely used a personal email account for the transaction of government business.”
So all the Times could come up with was that what Clinton had done, according to its own quoted legal expert, was “unusual”—but nothing more, no conclusion of illegality.
I was growing increasingly suspicious that the Times couldn’t find anyone to confirm their view that Clinton had violated a law. The next day, in a post dated March 3, 3:40 -P.M., I saw a headline on the Wall Street Journal website. It answered my question—and filled in the blanks that the Times had omitted. The headline: “Hillary Clinton’s Personal Email Came Before Recent Rule Changes, Amendments to Federal Records Act Passed Last Year.”
In the third paragraph, Journal reporter Brent Kendall noted that the 2014 overhaul postdated Clinton’s tenure at the State Department, and he quoted from the General Services Administration rules on records management: “The law placed explicit limits on agency officials using private email accounts for official business. The new law said agency officials can’t create or send a government record on a private account unless they also copy or forward the email to their official government email address.”
I vividly recalled my days at the Clinton White House working with the press corps and the rivalry between the New York Times and the Wall Street Journal. Both papers liked nothing better than to one-up each other if they discovered something off in a story the other had gotten first by then writing a “gotcha” correction story. This is what it seemed the Journal’s Brent Kendall had done.
* * *
Coincidentally, I got my definitive answer in person from—of all people—the very expert on whom the Times had relied for a supportive quote. I met Jason R. Baron, the Archives Administration legal expert quoted in the Times story, in the greenroom at CNN on Saturday morning, March 7. He came over to introduce himself. He was scheduled to go on the influential Michael Smerconish show to discuss the emails.
“You are the attorney quoted in the Times story on Clinton’s emails?” I asked.
“Yes, I am,” he said.
“I read your quotes. I saw that you considered Clinton’s use of private address emails unusual, but what is your opinion on whether they were legal or illegal?”
“Oh, no question about that. As of the time she was secretary of state, her emails using a private address were legal.”
I was stunned.
“Well, why didn’t you give the Times that quote to use in the story? That could have changed the headline that what she did was ‘possibly’ or ‘may be’ a violation of rules or requirements. You could have said that while it was ‘unusual,’ it wasn’t in violation of the regulations or the then existing version of the Federal Records Act. Am I right?”
“I don’t think the reporter ever asked me that specific question.”
I asked him whether, when he wrote the 2009 regulations on the subject of records retention, there was any time specified for turning over preserved records after leaving office. And whether the law’s 2014 amendment added a specific time period.
“Yes, that’s right. Before then there was no time period specified in the 2009 rules to turn over the official records. After the 2014 amendments, the period was specified as sixty days.”
I was amazed.
“Do you think you could clarify this and state what you just told me to Smerconish, who I am pretty sure is going to ask you about the legal issues involving Mrs. Clinton?”
“Sure,” he replied, “if I am asked.”
Here is what happened when Smerconish, a former practicing attorney, interviewed Baron a little while later:
SMERCONISH: What I think I’m hearing you say is that this is very unusual, but doesn’t represent a violation of law. And if I misunderstood, by all means correct me.
BARON: The fact is t
hat the 2009 regulations did not set an express deadline [to turn over emails written outside of the State Department to the department]. That deadline of twenty [he meant sixty] days to forward e-mails from a private account to an official recordkeeping system was only made part of the Federal Records Act, the statute, in 2014 after Secretary Clinton left office.”
I thought that should settle the ambiguity in the Times story. I was confident that once Baron’s conclusion on CNN that Clinton’s emails were legal got picked up by other cable shows and the Internet, it would be a big story correcting the misimpression left by the Times story.
But that never happened. It was lost in the weekend noise and absence of media interest. Certainly, CNN didn’t blast out a headline, “Times Key Source in CNN Interview Contradicts Times Story on ‘Possible’ Legal Violation by Hillary Clinton on Emails.” Indeed, CNN never reported on anything other than the story raising questions about the legality of Clinton’s private email system—along with every other mainstream media paper and TV outlet. Of course, partisan congressional Republicans immediately called for an “investigation” of Clinton. I remembered the early stages of Whitewater. As Yogi Berra is said to have said, it was déjà vu all over again.
The day after the Smerconish interview, on Sunday, March 8, the Times’ public editor, Margaret Sullivan, weighed in. Surprisingly, since her role as a public “ombudsman” was usually to write critiques of Times articles that contained factual flaws, in this column she mostly defended the article from critics, whom she broadly disparaged as Clinton partisans. Indeed, to back up the reporting that Clinton’s use of private emails had “possibly” violated federal “requirements,” she cited the specific regulation—“section 1236.22b”—and even the specific page, “p. 51050.” Impressive, I thought.
The Unmaking of the President 2016 Page 2
