by Neil H. Buchanan
The Hillary Clinton email story broke two weeks ago. As is now well known, the former Secretary of State exclusively used a private email account during her four years as the nation's top diplomat, and there is continuing uncertainty about whether she has complied with record-keeping laws and other seemingly dreary aspects of public bureaucratic life. Because we are talking about Hillary Clinton, this was big news.
Here on Dorf on Law, I offered some musings about the story three days after it hit the headlines. Professor Dorf followed with some further thoughts last Monday. In my post, I made the rather obvious stipulation that there was no way to know where the story would fall on the spectrum between full-on scandal and one-day story. Two weeks on, what do we know? Here, I will offer some thoughts on the substance of the scandal, along with some further thoughts about the political implications of the story.
To state the obvious, the story remains at least intriguing enough for me to revisit it. There are plenty of topics on which to write, but this one is still interesting and potentially important enough that it seems worth devoting one of my two weekly posts to discussing it further. But why? Given that this is clearly not (and almost surely will not become) a story that will end Hillary Clinton's career, what is it about the story that seems to matter? There appears to be just enough of a hint of wrongdoing, combined with a strong dose of classic Clintonian drama, that the story appears to have real staying power.
As to the wrongdoing, in my March 5 post I suggested that one of the substantive issues that the story raises relates to national security. If Clinton's four years at State were designed to do anything for her politically, it was surely to make her look like a world leader who knows how to keep the nation secure. Anything that tarnishes that image is important to her politically, of course, but it is also worth remembering that national security itself is just a little bit important as a substantive matter on its own merits.
Whereas I had simply argued that there was reason to suspect that there might be national security implications, while noting that I was not drawing any definitive conclusions one way or the other, some people dismissed the national security concern outright. A commenter on my post provided links to two analyses (here and here) that mocked the very idea that Clinton's emailing decisions could have raised national security concerns.
Those analyses essentially boiled down to the idea that everything email-related is vulnerable to hacking, government systems most definitely included. Therefore, the argument continues, she might have been doing the right thing by choosing something more secure. One of the writers further argued that Clinton is smart enough to know that you never do anything important in terms of diplomacy (or anything else, for that matter) via email, because everyone knows that the serious stuff is better handled in person (or, at least, by phone).
Although there is obviously some truth to those claims, the argument overall strikes me as being a bit too similar to the argument that locking one's car doors is a waste of time. Why? Because everyone knows that a truly determined car thief is always going to be able to steal a car, and standard car locks are mere toys that cannot possibly protect against such expertise. Therefore, any smart person also knows never to leave anything truly valuable in a car. Simple.
The problem, of course, is that there are less skilled would-be thieves who would be stymied by something short of a perfect security system. Less-than-perfect security measures, while not reducing the threat to zero, certainly do reduce the overall risks. Moreover, we know that people do in fact become complacent, leaving items of value in their cars, either because they momentarily underestimate the risks, or because they simply forget about it in the rush of other matters. Despite the well-known admonition that email is like a postcard (easily read by anyone who cares to try), people still regularly send personal financial information and security codes via email.
I thus remain unconvinced by the notion that Clinton could not possibly have made decisions on the margin that could have national security implications. Moreover, the evidence is still lacking to be able to conclude that the security gaps in the government's systems are worse than those in any other system. Again, I do not know (and, so far as I am aware, no one yet knows) whether there was a national security breach as a result of Clinton's use of a private server. The "nothing to see here" arguments, however, are far too pat.
In Professor Dorf's post, he offered a sincere defense of the idea that Clinton might have chosen a less-buggy nongovernmental email system, simply to do her job better. Indeed, he notes that it is possible that she knew that the State Department's email system is decidedly less secure than the system that Clinton and her husband installed in their suburban home. However, he followed up that argument with the following devastating question: "What steps, if any, did Clinton take to improve the performance and
security of State Department communications during her tenure--a period
that included the Wikileaks release of over 250,000 diplomatic cables?"
To date, nothing that Clinton or her defenders have offered has come close to answering the questions that I have described here, including Professor Dorf's question. The most important substantive questions, then, have barely been addressed. Instead, the drip, drip, drip of coverage about the story has been focused on questions of style and politics.
In particular, when Clinton finally held a news conference to try to tamp down the story, the response among the pundit class was barely concealed glee. For example, New York Times columnist Maureen Dowd devoted her Sunday op-ed this past weekend to discussing the politics of the story. Dowd, of course, has a long record of attacking Hillary Clinton in ways that amount to a Mean Girl level of viciousness. One would not expect her to say anything positive about Clinton's self-defense, no matter what.
In a way, however, that makes Dowd's column even more important, because Clinton had made Dowd's job so easy. Dowd did, in fact, offer a bit of substance, linking to a Wall Street Journal news article that, apropos of the questions that Professor Dorf and I have discussed, described worries among Bill Clinton's advisors that the Clintons' home email system was especially prone to hacking and technical overload.
Even so, those substantive questions were most definitely not Dowd's focus. She did not have to stretch to make the email story fit into a decades-long story arc about the Clintons, referring back to the Monica Lewinsky scandal and all of the dirty laundry (literal and figurative) with which we are far too familiar. Dowd dismissed Clinton's claim that the email account was a matter of "convenience," asserting that it was really "expedience," and offering a long riff on "a Clintonian tradeoff" that always involves having people accept the Clintons' "blurred lines and fungible ethics and sleazy associates" in exchange for promises of making the world a better place. Dowd's overall theme was to claim that Hillary Clinton feels entitled and believes that the world owes her something.
Again, Maureen Dowd is a particularly harsh critic of Hillary Clinton. Dowd has written plenty of baseless nonsense about Clinton over the years, and I usually come away from those op-eds wondering where the deep animosity comes from. The point here, however, is that Clinton's self-defense failed to put out the fire on the email story, and instead ended up providing sustenance for those who suspect that Clinton is hiding something, or at least that her response to even reasonable questions is to go into lock-down mode and play the victim. She is a victim of much unfair criticism, of course, but that arguably makes it all the more important not to act like one.
One of the stories that The Times ran in the last two weeks (for which I cannot currently find the link) is that the Democratic Party and its largest funders are already so completely in the tank for Hillary Clinton's presidential run that there is simply no alternative to a Clinton nomination. The probability is not 100%, of course, but the facts do sadly suggest that only a complete meltdown by Clinton would prevent the inevitable. If so, then Dowd's op-ed is useful for another reason. Her argument that the Clintons always demand fealty from their friends, even as they put those friends into increasingly difficult situations, suggests that the real lesson from the email story is that Democrats need to accept an important fact: Nothing has changed, and nothing will ever change, when it comes to the Clintons.
Since these discussions are often carried on in terms of "relationships," perhaps the best way to describe this lesson is with the best relationship advice that I have ever heard: "Don't marry someone thinking that you can change them into someone you could love. If you're going to be with someone, do so because you love them as they are, and you'd better accept that they are almost certainly not going to change."
Personally, I was disappointed to learn that there really is no alternative to Hillary Clinton as the Democratic nominee. Now, however, I am adjusting my expectations to expect more of the same from her. I will surely vote for her against any opponent in the general election, but I will also plan on four or eight years of unnecessary and destructive Clintonian drama, center-right policies dressed up with liberal-sounding rhetoric, and hours spent trying to figure out the difference between attacks from the (very real) "vast right-wing conspiracy" and legitimate criticisms of what will surely be a deeply compromised presidency.