The Unmaking of the President 2016

by Lanny J. Davis

  But then the next day, Newsweek’s Kurt Eichenwald referred to Sullivan’s column and the citation and page number and then quoted from that section of the Federal Register: “ ‘Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.’ ”

  And then he added: “Catch the problem? The regulation itself [cited by Sullivan], through its opening words, ‘specifically designates that employees of certain agencies are allowed to use non-federal email systems.’ And one of those agencies just happened to be . . . drumroll please . . . the State Department. In other words, not only was the use of a personal email account not a violation of the rules, it was specifically allowed by the rules.”

  So I had my answer: Clinton’s private email system had been legal.

  * * *

  However, the emails story quickly morphed into public criticisms about Clinton’s “poor judgment” in using a private system. And that led me, and many others with any logic and nonpartisan intellectual honesty, to wonder why the New York Times and everyone else ignored or downplayed the fact that Colin Powell had also used a private email system outside the State Department system during his tenure as secretary of state from 2001 to 2004. So on the “judgment” issue, the precedent of Secretary Powell should have been given far more attention.

  On March 4, the Associated Press, in a story by Jack Gillum, broke the news that Clinton’s private emails had gone through a private server maintained at her home in Chappaqua and originally set up by Bill Clinton under the supervision of his Secret Service team.

  The Times, to its credit, did mention the Powell precedent in the March 2 story. But it downplayed its significance both in placement as well as in brevity and substance. It was impossible to miss the message that the paper did not consider the Powell precedent to be significant. Its reference to Powell did not occur until the twenty-second of twenty-eight paragraphs in the story and was limited to a single sentence: “Before the current regulations went into effect,” Powell had “used personal email to communicate with American officials and ambassadors and foreign leaders.” That’s it. No mention that Powell had used AOL’s private server to house his personal and official emails. And even that one sentence omitted the fact that the law had changed in 2014, two years after Clinton left office. We can see embedded in this first Times email story the errors, distortions, and half-truths pertaining to Clinton’s use of emails that were then multiplied in the coverage by other mainstream media, especially the often distorted and hyped treatment on the mainstream cable news stations.

  * * *

  By now, everyone knows that the emails issue came to dominate the Hillary Clinton 2016 campaign as coverage of that issue eclipsed attention to her policy proposals to solve America’s problems. There is also no doubt that the emails story was the single most important reason why Clinton’s negative personal ratings by voters increased and positive ones decreased and why as those ratings became more negative, her poll results suffered. One question that correlated well with voter support, certainly in the days before Donald Trump became the Republican nominee, was asking all voters whether they have a “favorable” or “unfavorable” impression of Clinton. Reviewing all the data before and after the March 2, 2015, first Times story on emails, it is clear that the story was the turning point.

  For example, prior to the Times story, nine out of ten favorable-versus-unfavorable polls listed on RealClearPolitics.com from January 1 to March 1 showed net positive impressions. But after the story, the results changed dramatically. Among the twenty-four polls listed between March 2 and June 1, half were net negative impressions of Clinton. And after June 1, Clinton remained net negative on voter impressions in all the RCP polls over the next eighteen months, until Election Day 2016.

  * * *

  On September 8, 2016, just two months before Election Day, Rep. Elijah Cummings (D-MD), ranking member of the House Committee on Oversight and Government Reform, released 2009 emails between Secretary Powell and Secretary Clinton. We learned that Powell had hooked up a personal computer to AOL and used AOL to send and receive his personal and official business emails. We learned from his own emails to Clinton that his purpose was to avoid the State Department system for privacy reasons.

  “I didn’t have a Blackberry,” Secretary Powell said in an email to Clinton in response to her inquiry about whether she could use her BlackBerry for personal and official business communications. “What I did was have a personal computer that was hooked up to a private phone line (sounds ancient). So I could communicate with a wide range of friends directly without it going through the State Department servers. I even used it to do business with some foreign and some of the senior folks in the Department on their personal email accounts. I did the same thing on the road in hotels.”

  Powell seemed to understand, as the AP had reported, that using a BlackBerry would not prevent access to emails under the Freedom of Information Act (FOIA). “However,” he wrote, “there is a real danger. If it is public that you have a BlackBerry and it it [sic] government and you are using it, government or not, to do business, it may become an official record and subject to the law.”

  Also, significantly, it was reported that Powell’s emails had contained classified information, and so too had emails of senior aides to former secretary of state Condoleezza Rice.

  So it took more than sixteen months after the Times’ March 2, 2015, Clinton email story for all the details about Powell’s use of the AOL private server to be reported. The Times also omitted two relevant facts that had already been published. First, on March 13, 2013, it was reported that a hacker who called himself “Guccifer” (a Romanian named Marcel-Lehel Lazar) had successfully hacked into the AOL account of Sidney Blumenthal, a friend of the Clintons who had worked in the White House as a senior adviser to President Clinton in the late 1990s. The Russian-government-controlled TV news organization, RT, first published Blumenthal’s emails to Hillary Clinton at her private account address and posted all of them on March 20, 2013. Thus we also could have learned that Hillary Clinton’s use of a private email address had been known for two years.

  Second, a week later, on March 20, it was reported that Guccifer had hacked Secretary Colin Powell’s AOL account. At the very least, if the references to the Powell precedent, his emails to Clinton, and the fact that his AOL server had been hacked had been included high up in the first March 2 Times story, the negative political impact on Clinton as the email story unfolded would have been much less.

  In fact, the argument that Secretary Powell didn’t have a private server that might have been hacked, as Secretary Clinton did, could have and should have been, “Yes, he did—but it was owned and controlled by AOL, and, unlike Clinton’s private server, it was, in fact, hacked.”

  Such a response would have been a persuasive defense against accusations that Secretary Clinton had used “poor judgment.” In fact, if the highly respected Colin Powell had used the same judgment, but on a private server that was hacked, then Hillary Clinton should not be criticized for poor judgment when there was no evidence that her private server had ever been hacked.

  But the obvious point, rarely mentioned by the media, was that Clinton’s private server seemed more secure than the State Department server that Republicans and media critics insisted she should have used. The AP reminded readers in its story that the State Department server had been a victim many times of Russian and Chinese hackers.

  It is unclear why the Times missed the issue of the private server. Perhaps they didn’t consider it significant. They also later missed the fact that more than 90 percent of the emails Clinton sent and received contained the state.gov address—they were between her and other State Department officials. Thus, these were automatically captured on the State Department server.

  Another relevant fact was no
t definitively supplied until July 5, 2016, when FBI director James Comey stated that after an extensive FBI investigation, including forensic technical examinations of the hard drive of the server and all other indications that would show a successful hack or intrusion, there was “no evidence” that any successful hack had occurred—in contrast to the State Department’s server. But that news came much later, and in most respects too late for Hillary Clinton.

  * * *

  After the Times story broke (and then was corrected by the Wall Street Journal and on CNN’s Smerconish show), I underestimated the tendency of partisan Republicans who didn’t particularly care about the facts and the presumption of innocence when it came to Hillary Clinton to inflate the significance of something the Times described as only “possibly” a rules violation. The no-fact-all-speculation negative coverage of her supposed wrongdoing regarding her use of a private email system continued for weeks, then months. As usual, the talking heads recycled the trite word “narrative”—that these private emails were consistent with her “penchant for secrecy”—with the same hype and repetition of the word “scandal” as seen during the Whitewater “scandal.” The “coverage” was filled with sound and fury, signifying nothing.

  It amazed me how few of the TV reporters even remembered Whitewater, much less knew that it was a classic example of a nonscandal that began that way and ended that way, notwithstanding the media hype, partisan attacks on both Clintons, and a criminal investigation lasting seven years, conducted by an independent counsel with an unlimited budget. Would they never learn the lesson of the dangers of getting ahead of the facts? Or didn’t it matter, so long as column inches mounted in news stories and clicks and ratings stayed high to measure readers and viewers?

  The hypercoverage was not dampened at all even after Clinton’s tweet on the evening of March 4, 2015: “I want the public to see my email[s]. I asked State to release them. They said they will review them for release as soon as possible.”

  On the following Tuesday, March 10, Clinton made a brief statement to the assembled media after a meeting at the United Nations. There were the usual revved-up cameras, lights, working reporters crowding to get to the front and shouting questions about the emails. Clinton restated what she thought was the most important point—her commitment to transparency: She was the only secretary of state who had turned over all her official business emails to State (fifty-five thousand pages, which turned out to be about thirty thousand separate State Department–related business emails) and that, what she and her campaign thought was significant, in her tweet the previous week she had asked all to be released to the public as soon as possible. Then she had to move on to her next event, given her tight schedule.

  With the wisdom of hindsight, this might have been the tell-all moment, like the pink press conference open-to-all event, when she responded to what she thought were all questions about Whitewater, as her advisers had promised her, that would finally put the nonscandal “scandal” behind her.

  She might have taken more time to respond and explain everything she could on the emails—to get “all the facts out” then and there, such as a full explanation of why she chose a private server; that she had relied on advice from and the precedent of the respected former secretary Colin Powell, who also used a private server outside the State Department; that the vast majority of the thirty thousand emails had been sent to and received by State Department officials with state.gov addresses, thus contradicting the notion that she was attempting to avoid FOIA or, for that matter, that her private email address was intended to be kept secret; and she might well have explained that since these thirty thousand emails were sent to her by senior department officials and diplomats through unsecure channels, without any classification markings, she had had no reason to view them as containing classified information any more than did all the officials and diplomats who had sent them to her through unsecure channels.

  Finally, most important by far, this could have been the occasion to make the crucial distinction, which was soon missed and confused and blurred by the media, between emails properly marked, as the classification manual required, by a header with conspicuous lettering stating the level of classification status of the email versus emails that had no such header/labels at all.

  This distinction was crucial because it was the classified markings that made the difference between legal and illegal—indeed, between not criminal and criminal. It is a simple fact, confirmed by FBI director Comey in his press conference of July 5, 2016, that in the absence of appropriate classified markings that were ignored by Clinton, there could not be a finding of criminal intent and, thus, no reasonable prosecutor would bring a case against her.

  But to repeat: Only with the wisdom of hindsight can we see that the occasion of the UN press conference, one week after the March 2 Times story on “possible” rules violations, or shortly thereafter, was important. The truth is that at the time, neither I nor any other Clinton supporter I knew could take this emails story or controversy too seriously. Legal practices, with Colin Powell as precedent? Seriously? I certainly couldn’t imagine this issue might last more than a few weeks. How wrong I was.

  Yet for the next four months into the summer of 2015, it looked as if the emails story had gone away, fed only by the same old Hillary-hating Republican congressional partisans and far-right fringe. But then came the evening of July 23, with a new story on the front page of the New York Times. And everything changed.

  CHAPTER THREE

  * * *

  The Times Gets It Wrong Again

  At 10:31 P.M. on Thursday, July 23, 2015, the Times posted a lead story on its website with the headline “Inquiry Sought in Hillary Clinton’s Use of Email.” The story had been written by reporters Matt Apuzzo and Michael Schmidt.

  The first paragraph stated that “two inspectors general* [one from the Intelligence Community,† called the ICIG, and the other from the State Department] have asked the Justice Department to open an investigation into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state.”

  The story was based on a July 23, 2015, memorandum that the Times was told by a leaker came from the two IGs recommending a “criminal referral” concerning Hillary Clinton’s mishandling of her private emails. The memo was actually sent just by the Intelligence Community inspector general, I. Charles McCullough III—not also sent by the State Department inspector general, Steve A. Linick, as the Times wrongly reported. McCullough wrote the memo but personally signed it and sent copies to the two chairs of the House and Senate Intelligence Committees and the director of national intelligence (DNI). The full July 23, 2015, memo appears on pages 33–34.

  There were actually two documents created by McCullough that had significant ramifications for Hillary Clinton and her presidential campaign. The first, not publicly available or even known to exist until two months after the 2016 presidential election, was sent to the FBI on July 6, 2015. The second was the July 23, 2015, McCullough memo to Congress and the DNI. According to a source close to McCullough,‡ this July 23 memo was virtually identical to the July 6 “referral” McCullough had secretly made two weeks before to the FBI.

  It was this July 23 McCullough memo sent to Congress that was leaked to the New York Times reporters—but not the actual document itself, as the reporters subsequently admitted; just a characterization of it by someone, presumably a congressional staffer or member shortly after the document was delivered to the two intelligence committees. Mischaracterization, as we shall see, is the more accurate word.

  At about seven that evening, Apuzzo had called the Justice Department to see whether it would confirm that it had received such a “criminal referral.” Sometime in the next hour or so, Apuzzo received a call back from the Justice Department official he had talked to and received a confirmation. The Times called others at Justice and obtained other confirmations. Based on those confirm
ations, the Times posted the story on its website that night and on its front page the next morning, July 24.

  News that Hillary Clinton was under criminal investigation because of her emails was a big deal. The story spread rapidly across the Internet that night. It dominated coverage on front pages across the nation and lead stories on news websites. It went viral on Twitter and other social media. It led all the morning TV shows, with the inevitable BREAKING NEWS crawling across the screens of cable news shows. However, by midday on Friday, Justice shocked everyone. It withdrew its prior “confirmations” to the Times and other news organizations it had made only a few hours earlier. It stated that there had not been a “criminal referral” as they had previously stated, but rather a “security referral”—without explaining what that latter term meant.

  Then something even more unusual happened. The two inspector generals, McCullough and Linick, who rarely spoke to the media at all, issued a joint public statement echoing the Justice Department’s contradiction of the Times story that they had made a “criminal referral” about Hillary Clinton and her private email system. They made the same distinction—there was no “criminal referral,” but rather a “security referral.”

  The Washington Post immediately posted a story explaining what a “security referral” was—a routine dispute between agencies as to what Clinton emails should or should not be released under the Freedom of Information Act (FOIA). The Post reported: “McCullough [the ICIG] said he also recommended that freedom-of-information officials at the State Department implement ‘a dispute resolution process [involving the Intel Community, State, and the FBI] in regard to differences of opinion about classification levels and exemptions.’ ”