The Unmaking of the President 2016

by Lanny J. Davis

  In fact, the judgment regarding those four emails was disputed by experts at State. Some reports had State disputing all four—i.e., none of them contained classified information at the time they were transmitted to Clinton and that is why they were not marked and not transmitted through secure channels. This dispute between the Intelligence Community, which has a record of overclassifying, and the State Department, which leans in the direction of transparency, is long-standing and not surprising. For example, the media later reported that the ICIG claimed that an email that included published reports in the New York Times “should have been” marked classified. A published report available online immediately should have been marked classified, according to ICIG McCullough? Seriously? Therefore, just because someone in the Intelligence Community claims a document meets the standards of classification status doesn’t make it so. Far from it. This point was almost always missed by mainstream media headlining that Clinton’s emails contained “classified” information.

  The source close to McCullough said that McCullough recognized there could be good faith disagreements in classification judgments—that such judgments were an “art, not science.”

  Jeffrey Toobin, in an August 18, 2015, commentary in the New Yorker titled “Hillary’s Problem: The Government Classifies Everything,” referred to the great New York senator Daniel Patrick Moynihan and his book Secrecy: The American Experience to make this point about the Intel Community’s tendency to overclassify: “Classified information is supposed to be defined as material that would damage national security if released,” Toobin wrote. “In fact, Moynihan asserted, government bureaucracies use classification rules to protect turf, to avoid embarrassment, to embarrass rivals—in short, for a variety of motives that have little to do with national security. As the senator wrote, ‘Americans are familiar with the tendency to overregulate in other areas. What is different with secrecy is that the public cannot know the extent of the content of the regulation. Thus, secrecy is the ultimate mode of regulation; the citizen does not even know that he or she is being regulated!’ ”

  McCullough’s public statement went on to say that “the ICIG made a referral detailing the potential compromise of classified information to security officials within the Executive Branch. The main purpose of the referral was to notify security officials that classified information may exist on at least one private server and thumb drive that are not in the government’s possession.”

  The word “potential” means exactly that. So does “may.” There was no finding that the “classified information” had in fact been “compromised” when it was transferred to a “private server” or to a “thumb drive.” The former is a clear reference to Hillary Clinton’s private server. The latter refers to a small memory device containing Clinton’s thirty thousand emails, in the possession of Clinton’s personal attorney, David Kendall, at the distinguished Washington law firm of Williams & Connolly. No one has ever suggested there was anything improper in Kendall, a highly respected attorney, retaining copies of all his client’s emails on a thumb drive that he kept under lock and key at his law offices. Yet this seemed to trouble ICIG McCullough enough that he mentioned it both in the July 23 memo as well as in the public statement issued the following day. Why?

  As to Clinton’s private server, we know from Comey’s press conference a year later, on July 5, 2016, that an extensive FBI technical/forensic investigation found “no evidence” of any successful hacking or compromise of Clinton’s server. Yet even in the absence of such evidence, ICIG McCullough rang the alarm bell of a “compromise” requiring an interagency “counterintelligence” “security referral.” Why?

  Then the two IGs addressed the key question—did either make a “criminal referral” to the FBI about Clinton’s email practices? The answer, unequivocally, was no.

  An important distinction is that the ICIG did not make a criminal referral [to the Justice Department]—it was a security referral made for counterintelligence purposes.

  This is the most crucial sentence in the entire document—the one that contradicted and embarrassed the New York Times. And this was the key sentence, according to the source familiar with McCullough’s thinking, that McCullough and Linick knew had to be issued immediately to quell the “shit storm.”

  The ICIG is statutorily required to refer potential compromises of national security information to the appropriate IC security officials.

  This appears to be a reference to the referral McCullough had made to the FBI two weeks before. As we shall see in the next chapter, this “noncriminal” referral by McCullough was referenced as a possible basis for the FBI to open a “full” criminal investigation of Clinton’s handling of emails. However, the source close to McCullough stated that it was never McCullough’s intent to initiate a criminal investigation of Clinton. In fact, he did not know that such a criminal investigation of Clinton had been opened until he read about it in the media months later.

  Here is the only sentence in McCullough’s July 23 memo to the congressional intelligence committees that contains a reference to a referral to the FBI:

  As my office’s limited sampling identified four emails containing classified IC information, I referred this matter to counterintelligence officials at State and within the IC, including the National Counterintelligence and Security Center and the Federal Bureau of investigation.

  Note that there is no word “criminal” in this sentence.

  This is probably the sentence that the leaker of the McCullough July 23 memo to the Times either misunderstood or intentionally mischaracterized—i.e., wrongly inferring that since there was a reference to the FBI in the memo, that must have meant that McCullough was making a “criminal referral.” Wrong. In fact, the sentence includes not only a reference to the FBI in its noncriminal counterintelligence role to review documents for possible classification status, but also to the State Department and the National Counterintelligence and Security Center as well—omitted by the Times in its erroneous reporting.

  * * *

  Meanwhile, what did the Times do after it realized that the two IGs had publicly contradicted its reporting by midafternoon on July 24? One would have expected the Times to publish a “clean-up” version that was strictly factual and balanced. Such a report would have described the full context of the ICIG’s July 23 memo—specifically, the preceding six memos between McCullough and the State Department IG and the State Department, primarily about FOIA disclosure issues. Three memos from the two IGs out of the total of six mentioned “FOIA Processes” in the subject line. In short, the Times could have amplified the meaning of a “security referral,” explaining that this was mostly about a typical FOIA dispute between the Intel Community and the State Department, in which the FBI was playing a noncriminal, “security referral” role, and that would have been the end of that.

  Instead, the Times ran a story on the afternoon of July 24 with this headline: “Hillary Clinton Emails Said to Contain Classified Data.” Note that the headline does not specify that the classified data was not labeled as such. Then came the first sentence to support the headline: “Government investigators said Friday that they had discovered classified information on the private email account that Hillary Rodham Clinton used as secretary . . .”

  The article went on to discuss classified information, but it wasn’t until the seventh paragraph that we learn the significant fact that Clinton’s emails were “not marked classified.”

  The article continued: “The two investigators did not say whether Mrs. Clinton sent or received the emails [that contained classified information]. If she received them, it is not clear that she would have known that they contained government secrets, since they were not marked classified.”

  Finally, toward the end, the reporters seemed to imply that Clinton was guilty of something: “Irrespective of terminology, the referral raises the possibility of a Justice Department investigation into Mrs. Clinton’s emails as she campaigns for president. .
. . Mishandling classified information is a crime. Justice Department officials said no decision has been made about whether to open a criminal investigation.”

  There are no new facts here, just innuendo—“raises the possibility” is a classic example. This on the same day as the Justice Department and the two IGs had contradicted the Times report that the two IGs had made a “criminal referral.”

  What are we to make of the reminder that “mishandling classified information is a crime”? Well, of course it is. “Mishandling” by definition means sending clearly marked “classified” documents through unsecure channels, whether using the unsecure state.gov emails system or a private server. But since the story already stated that so far none of Clinton’s emails reviewed were marked, then what was the purpose of this gratuitous statement?

  And then the next sentence, that the Justice Department had said “no decision has been made” whether to open an investigation. What is the point of reporting what the Justice Department has decided not to do yet? It is hard to avoid the conclusion that this final July 24 Times story seemed to be more about vindication and argument than straight fact reporting, with the overall effect to suggest that, well, we might have been wrong about Hillary Clinton being under criminal investigation now, but . . . just wait . . . it won’t be too long.

  It was almost as if the Times was predicting something. Little did the paper’s editors and reporters know that something already had happened—but nobody in the public knew about it until after the 2016 presidential election was over.

  * * *

  A number of media observers and even some other newspapers expressed concerns about the Times’ coverage of the Clinton campaign emails. It wasn’t just that the stories on March 2 and July 23 seemed almost overanxious to push the negative side of the envelope. It appeared the Times was ready to ignore positive facts and, as seen in the July 24 story, went out of their way to include negative implications about Clinton even at the expense of omitting positive facts contained later.

  Josh Marshall, whose Talking Points Memo is one of the best and most thoughtful blogs, wrote this about the Times on the evening of July 24, reacting to the paper’s July 23 story and the events of July 24:

  As I noted this afternoon, a lot of this has a disturbing similarity to the Times’ Whitewater coverage—which dominated much of the Clinton presidency and turned out to be either vastly over-hyped or in numerous cases simply false. And this is the Times! What’s supposedly the best paper in the country.

  Does this happen because reporters get too in the habit of accepting opposition research leads and leaks and the stories are just too good to be true? Is the hunger for the big blockbuster too great? These are genuine hypotheticals because the reporters on this story are not hacks by a longshot. But the errors in this story seem so dramatic and so easily checkable that I feel like there’s something up at the Times. Not something nefarious, I don’t think. But some unexamined institutional bias, some over-haste to push out stories based on leaks from interested parties. Something. Because as it stands, it’s not just that the story doesn’t add up. We know that. They’ve admitted that. How this mistake got made doesn’t add up either.

  There are legitimate questions raised by Josh Marshall’s comment about an unconscious Times mind-set when it comes to Bill and Hillary Clinton over more than two decades. Was anything learned from all the time and attention and energy devoted by the Times and the other mainstream media to reporting on the Whitewater “scandal”?

  Apparently not. As noted, the incessant, largely inaccurate, and innuendo-laced coverage of Clinton’s emails drove up her personal negatives among many voters beginning with the first Times story in early March 2015. This occurred across all mainstream media—print, Internet, and especially cable news (where the hype and ratings-chasing, breathless BREAKING NEWS alerts were probably worse than elsewhere).

  The Washington Post’s editorial of September 8, 2016, eloquently foresaw the possible consequences of this overhyped and disproportionate coverage of the Clinton emails (addressed not just to the New York Times but also to all the journalists who had been covering the emails during the campaign):

  Judging by the amount of time NBC’s Matt Lauer spent pressing Hillary Clinton on her emails during Wednesday’s national security presidential forum, one would think that her homebrew server was one of the most important issues facing the country this election. It is not. There are a thousand other substantive issues—from China’s aggressive moves in the South China Sea to National Security Agency intelligence-gathering to military spending—that would have revealed more about what the candidates know and how they would govern. Instead, these did not even get mentioned in the first of 51/2 precious prime-time hours the two candidates will share before Election Day, while emails took up a third of Ms. Clinton’s time.

  Sadly, Mr. Lauer’s widely panned handling of the candidate forum was not an aberration. Judging by polls showing that voters trust Donald Trump more than Ms. Clinton, as well as other evidence, it reflects a common shorthand for this election articulated by NFL quarterback Colin Kaepernick last week: “You have Donald Trump, who’s openly racist,” he said. Then, of Ms. Clinton: “I mean, we have a presidential candidate who’s deleted emails and done things illegally and is a presidential candidate. That doesn’t make sense to me, because if that was any other person, you’d be in prison.”

  In fact, Ms. Clinton’s emails have endured much more scrutiny than an ordinary person’s would have, and the criminal case against her was so thin that charging her would have been to treat her very differently. Ironically, even as the email issue consumed so much precious airtime, several pieces of news reported Wednesday should have taken some steam out of the story. First is a memo FBI Director James B. Comey sent to his staff explaining that the decision not to recommend charging Ms. Clinton was “not a cliff-hanger” and that people “chest-beating” and second-guessing the FBI do not know what they are talking about. Anyone who claims that Ms. Clinton should be in prison accuses, without evidence, the FBI of corruption or flagrant incompetence.

  Second is the emergence of an email exchange between Ms. Clinton and former secretary of state Colin Powell in which he explained that he used a private computer and bypassed State Department servers while he ran the agency, even when communicating with foreign leaders and top officials. Mr. Powell attempted last month to distance himself from Ms. Clinton’s practices, which is one of the many factors that made the email story look worse. Now it seems, Mr. Powell engaged in similar behavior.

  Last is a finding that 30 Benghazi-related emails that were recovered during the FBI email investigation and recently attracted big headlines had nothing significant in them. Only one, in fact, was previously undisclosed, and it contained nothing but a compliment from a diplomat. But the damage of the “30 deleted Benghazi emails” story has already been done.

  Ms. Clinton is hardly blameless. She treated the public’s interest in sound record-keeping cavalierly. A small amount of classified material also moved across her private server. But it was not obviously marked as such, and there is still no evidence that national security was harmed. Ms. Clinton has also admitted that using the personal server was a mistake. The story has vastly exceeded the boundaries of the facts.

  Imagine how history would judge today’s Americans if, looking back at this election, the record showed that voters empowered a dangerous man because of . . . a minor email scandal. There is no equivalence between Ms. Clinton’s wrongs and Mr. Trump’s manifest unfitness for office.

  Esquire’s Charles Pierce wrote on September 9, 2016, an article about this editorial, headlined “The Washington Post Just Declared War on The New York Times.” Then on April 18, 2017, Pierce added these comments about the Times’ history of critical coverage of Bill and Hillary Clinton:

  The fact is that the Times and the Clintons have been locked in this solipsistic dance of destruction ever since Jeff Gerth wrote the first botched story [in
March 1992] about Whitewater during the 1992 presidential campaign. It has defined the newspaper and the family, one to another. Somehow, Being Tough on the Clintons has become one of the ways the Times has tried to prove its journalistic bona fides to the country and the world. . . .

  The dysfunction has gone on so long that hardly anyone remembers how it began—which was the aforementioned Whitewater story and everything that came after it, including some truly odious work by the late William Safire, who beat his little tin drum not only on Whitewater, but on TravelGate, FileGate, and whatever other fantasies he was fed by the Republicans in Congress and by the sieve that was Ken Starr’s office.

  In one 1996 column, Safire memorably called HRC “a congenital liar,” and in January of 1997, he assured his readers that indictments were imminent on the FileGate story. They were not, but Indictments Are Imminent became a genre of the Times’ Clinton coverage unto the most recent campaign, as we shall see.

  I am not suggesting that the New York Times was knowingly biased against Hillary Clinton. The Times remains one of the world’s greatest news organizations, and its current generation of reporters live up to that standard and surely should not be blamed for the over-the-top coverage of Whitewater in the 1990s or the apparently unedited bile of Maureen Dowd on the editorial pages. But the objective facts are that the Times emails coverage, and all the other media’s coverage of the Clinton emails, is fairly subject to challenge—and, as predicted by the Washington Post’s editorial board, holds some responsibility for the election of what we now know is a dangerous man to the White House. However, it is also fair to note that the Times editorial board endorsed Hillary Clinton’s candidacies in her races for the Senate in 2000 and 2006 and her presidential campaigns of 2008 and 2016.