Thursday, March 05, 2015

Do Hillary Clinton's Defenders Have Any Non-Embarrassing Arguments?

by Neil H. Buchanan

[Update: I have edited the fifth paragraph below to reflect that the Lewinsky scandal grew out of the Republicans' breathless pursuit of the Paula Jones case, not out of the Whitewater investigation itself, even though Kenneth Starr was the Javert-like character in both the Whitewater and Lewinsky investigations.]

While the rest of the legal world chews over yesterday's Supreme Court oral argument in King v. Burwell, I am on vacation.  The other big story that I have been following between tourist stops is the proto-scandal involving Hillary Clinton's emails.  An article in The New York Times broke the story earlier this week, describing how Clinton, when she was Secretary of State, had failed to follow government rules regarding the use of official versus personal emails when conducting government business.

It is too early to know whether this story will end up being huge or a flash in the pan, but I do think that there are a few aspects of the story that are already notable, some (but not all) of which should be very worrisome for Clinton and her supporters.

(1) The biggest long-term damage that this story could inflict might well be its implicit lesson to Republicans that relentless inquisitions work.  That is, the reason that we now know that Clinton's emails were run through a private server, rather than through the government's secure servers, is because of requests for documents made by one of the many committees that Republicans in Congress have set up to inquire into the Benghazi tragedy.

It has long been clear that the Republicans are refusing to drop the Benghazi story (just as they grimly refuse to give up the ghost on the IRS Non-Scandal Scandal) because they simply wish to keep the story going.  It is, in other words, important to them because it is important to them.  Other than the residual possibility (which is present in every situation) that some unknown fact could come to light, however, there is nothing in the Benghazi story that suggests that there was any wrongdoing, much less a scandal, much much less a scandal that would implicate Hillary Clinton.  After much effort, Republicans have turned up nothing, but they have refused to stop.

And now: A Christmas present!  That this new proto-scandal has nothing at all to do with Benghazi makes it all so much worse, because the lesson will surely be that if you keep at it long enough (especially when your target is the Clintons), you will turn up something that will be politically useful. Recall that the Whitewater investigation ended up producing nothing actionable on Whitewater itself, but special prosecutor Kenneth Starr was then redirected to investigate the Lewinsky Affair (which initially grew out of another Republican obsession, the Paula Jones case) and impeachment by the House. This latest turn of events will simply further reinforce the view that investigations against political enemies should be pursued.   Any pretext to unleash inquisitorial power will be used ever more aggressively, in the hope that something will come of it, no matter whether it is germane to the original inquiry or not.

(2) An early take on this story has been that voters probably will not care.  An article in The Times by Brendan Nyhan, published two days after the story broke, nicely describes all of the reasons that the story probably is not a threat to Clinton: it will fade quickly, it looks petty and partisan, and so on.  As usual, Andy Borowitz nailed it with a fake news story about a poll showing that Americans are disappointed in the new scandal, "because it does not live up to the high standards of sordidness set by Clinton scandals of the past."

If all of that is right, then it suggests what might amount to a balancing principle against point (1) above: Even if investigators stumble upon something that might have real content, the content does not matter.  What matters is timing and sordidness.  Moreover, Borowitz's take on the public's possible reaction suggests a closed logical loop that works perfectly for the Clintons: If the scandal is not about sex, then everyone is disappointed and bored.  If, however, the scandal is about sex, then the Clintons and their many defenders will simply say (again) that personal sexual matters are irrelevant to questions of politics.

So, if point (1) is that Republicans win by continuing to do what they love to do, and point (2) is that the Clintons win by continuing to push forward against all attacks, everyone should be happy, right?  Right?

(3) What about the substance?  My initial take on the story was that, although it sounds like a bunch of technicalities regarding the law of archiving (which, it turns out, is actually a thing), the potential damage comes from the possibility that Clinton was putting national security at risk.  It is one thing to say, "Well, she didn't follow some obscure rule that nobody understands or cares about," but it is quite another to ask, "Why is the top foreign policy officer of the United States government communicating with people in and outside of government in ways that are vulnerable to hacking?"

At best, Clinton's deviation from the rules raises questions about her judgment, if she claims that she set up a nongovernmental email server without really stopping to think about the security implications.  At worst, it means that the Clintons' bunker mentality (a mentality that is, we must all admit, the understandable result of being the object of so much hatred by conservatives for so many years) trumped the country's interests in having a foreign policy that is run with appropriate and primary attention to national security, and governed by the rule of law.

Most likely because I am a law professor, I tend to view breaches of procedure with more alarm than most people do.  Even so, I think that it is hardly wishful thinking on Republicans' part that this story could metastasize into something bigger.  I have no basis to predict the likely path that the story could take, but it would be foolhardy to assume that there is zero chance that this could become a real problem for Hillary Clinton's presidential hopes.  I certainly would be taking this seriously, if I were in her camp.

(4) Speaking of Clinton's camp, The Times ran another interesting story about how the many, many Democrats who have been backing her candidacy have been caught flat-footed, wondering where the vaunted Clinton counter-attack machine has gone.  Clinton loyalists have found themselves fumbling, with no storyline to follow from the not-really-yet-existing Clinton campaign, which leaves them to change the subject when asked questions about the emerging story.

One of the most stunningly inane political moments that I have seen in years, however, actually did not involve a Clinton loyalist who was hit with unexpected questions about the story.  Rather, it was an embarrassing performance by a semi-official spokesperson for the Clinton campaign, Jennifer Granholm.  I do not normally watch Lawrence O'Donnell's show on MSNBC.  (In fact, despite my political leanings, I find nearly every non-Maddow aspect of MSNBC to be ridiculous.)  Last night, however, I was channel-surfing at 10pm, and I thought I would take a moment to watch some reactions to the King v. Burwell arguments.

To my surprise, however, the Clinton email story opened the show.  O'Donnell led with some updates to the story, and then he turned to one of those ridiculous segments in which various politicians and talking heads yell at each other.  Granholm, the former two-term governor of Michigan and the current co-chair of a pro-Clinton superPAC, was the designated Defender of Hillary.  My very positive long-term impression of Granholm evaporated within seconds.

Not surprisingly, Granholm ultimately went with the line that "this is only interesting to Beltway insiders."  That is a weak reed, but it is standard fare.  It was her two attempts at making actual arguments, however, that stunned me.  I will describe the less egregious argument first.  (The transcript is not yet available, but the video is available here.  I will not try to directly quote Granholm's or O'Donnell's words, because I am working from memory.)

Granholm repeatedly claimed that there really was no problem, because Clinton has provided 55,000 pages of emails to the Benghazi committee.  O'Donnell pressed her, asking how we are supposed to know that there is not more information being withheld, but Granholm simply returned to the claim that Clinton has released 55,000 pages of emails.  (Later, on "The Daily Show with Jon Stewart," another Clinton spokeswoman was shown making the same claim, in an even more pitiful fashion.)  Would Granholm accept this kind of answer from, say, Dick Cheney or George W. Bush?  "We have given the committee a lot of information.  Now go away!"

But the jaw-dropping moment was actually Granholm's answer to O'Donnell's first question.  He asked her why Clinton had not complied with the rules for email use at State, and Granholm said that Clinton had followed the rules that previous Secretaries of State have followed.  When O'Donnell pointed out that the Obama Administration had tightened the rules in early 2009, which is when Clinton took office at the State Department, Granholm blithely replied that Clinton was simply following tradition and precedent.

To his great credit, O'Donnell was having none of that nonsense.  He laughed openly and said that, for example, if tax rates are increased, a person is not allowed to pay at the old rates, merely because that is what people did in the past.  After he regained his composure and stopped laughing, he gave Granholm every opportunity to dig herself out of her hole, but she had nothing to say.  From then on, it was all about the 55,000 emails and the dismissive inside-the-beltway line.

Again, I have no special expertise or predictive abilities that allow me to say whether this proto-scandal will inflict meaningful long-term political damage on Hillary Clinton.  What I do know is that it is "not nuthin'," and it suggests that the people who support Clinton need to stop thinking that she is inevitable and unstoppable.  There is no way to know when or if the public's general reaction will move from "Oh, that's just another partisan attack on Clinton" to "Wow, all of that old stuff about the Clintons is not looking so old anymore."

It means a lot when all of a person's arguments are extraordinarily weak.  While it might be true that "if you're explaining, you're losing," that merely means that having the better of the argument does not necessarily guarantee political success.  But having a non-embarrassing argument is always a better place to start.

15 comments:

David Ricardo said...

To succeed in politics one does not have to be smart or do smart things. One has to not be stupid and not do stupid things. Ms. Clinton has never learned this.

With respect to the title of Mr. Buchanan's piece, the answer is 'no'.

matt30 said...

I don't know how convincing I find the security argument.

Even today non-White House government officials are permitted to use personal email so long as they copy the message to thier government account for record keeping. The Federal Records Act of 1950 is obviously targeted at preserving history rather than as some kind of security measure.

The State Department spokesperson said the other day that it's up to the person using the communication systems to choose the appropriate one for classified information. She explained that even regular government emails weren't equipped to deal with classified information.

As far as the 2009 amendments to NARA are concerned, I understand the argument that "records" can be an ambiguous term. That's only supported by the fact that it had to be amended in 2014 and clarified by a National Archives bulletin. But that's definitely a stretch and not the most natural reading of the law cira 2009. I'm less inclined to see this as a personal failing of Clinton so much as a failing of the legal staff at State. Though I suppose it reflects on Hillary since she chooses her staff and personal advisors.

This story becomes more egregious, in my mind, if it's shown that the email system was set up this way to deliberately hide things from FOIA requests and the like. But that seems like such a trivial benefit for the large potential downside.

Paul Scott said...

I do not like Hillary Clinton. I will, of course, vote for her over whatever candidate the GOP puts forth, but she would be in the running for "the last person I would want as President (among those person for whom I would vote). I did not care for her husband as President either.

I introduce my comment this way because I am really trying to understand if my very strong negative reaction to this news was because I don't want her as our next President. To me this seems like a very big deal and I have not understood the general media downplay.

I am with Matt on security (in thinking it is probably not a big deal), though I lack sufficient knowledge to delve too far either way on that issue. To me it is the "privileged person" issue that bothers me so much and about which I want to learn more.

My assumptions work a bit like this:

1. She was certainly offered a government email, but turned it down.

2. Surely that was not the end of it because rejecting a government email must be really odd. I cannot imagine going to work for any place - private or government - and telling the IT staff "No, I don't need an @myworkplace.com/org/gov email; I will just use my personal email." That just seems completely off.

3. This means it was not a minor thing, but one that Clinton probably had to force; possibly involving a conversation with the President at some point.

And all of the above is what I am most interested in. If it turns out that this is just commonplace - people in the State Department (or any cabinet department) just typically keep using whatever email system they want - well then ok, this is a non-story other than that our Federal Government behaves in a very odd manner.

If, otoh, it turns out the Clinton was the exception and actually had to push a bit to get her way on this issue (which is where my assumptions lay), then I think this speaks volume on her judgement and character.

RustyB said...

Which rules? Can you please link to the rules she violated, or quote + cite them? I'm not saying you're wrong, but the reporting on this issue has not made it very clear (to say the least) what might have been illegal, and under what rule or statute, so I'm hoping some legal blogs can fill the gaps. The post here repeatedly refers to the rules ("failed to follow government rules," "deviation from the rules," "not complied with the rules," "tightened the rules," etc.) without clarifying which rules it's talking about.

matt30 said...

@RustyB

There are two laws and one regulation that are applicable as of 2009.

44 USC 3101 et seq--"The head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities."

44 USC 3301--"As used in this chapter, “records” includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them."

36 CFR 1236.22(b)--"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."

RustyB said...

Thank you matt30! Very helpful. Assuming this is comprehensive, it looks like 36 CFR 1236.22(b) is the crucial provision. And it doesn't seem like a slam dunk that she violated that provision if she eventually sent over the files. This regulation, explicitly allowing for non-agency email systems, does not appear to provide clear guidance on when and how and through what processes the preservation of such emails must take place. So legal fights over these nuances may ensue. I would not be shocked if Clinton relied on a highly technical and nuanced parsing of the regulation's wording to say that what she did was perfectly legal. (And as a legal matter, she could be correct.)

Joe said...

I'm not a big fan of HC & really rather someone else run. And, I'm inclined -- living thru the '90s and her run in '08 -- to think it credible that she might have somehow cut corners here or did something that makes her look bad.

But, there seems to be a reasonable grounds to using the email esp. as a comment notes she provided files per the rules.

http://thinkprogress.org/election/2015/03/04/3629650/hillary-clintons-private-email-tells-us-antiquated-government-technology/

I have not gotten into the weeds of the rules here so I'm agnostic about if something fishy went on. I have seen enough with BenGAZI and the IRS thing etc. to doubt these red flags by now have much there there.

matt30's citation of the rules is helpful. Too often we get vague references in these accounts & I have to do research to fill in the blanks. See here:

http://balkin.blogspot.com/2015/03/the-secretary-of-states-e-mails.html

Neil H. Buchanan said...

Thanks to all for the interesting comments, and to matt30 for providing the background research.

I certainly did not mean to say that I know for sure that there is a national security problem inherent in what Clinton did. (I will say that I am wholly unconvinced by the Think Progress post and the Balkinization post, linked in the comment just above this one, which argue that there is definitively nothing to worry about.) If national security is potentially implicated, however, that is an especially big issue for Clinton, because her 4 years at State were all about proving that she is a world leader. Doing anything to harm your "ready to lead" brand is a big problem.

As Paul Scott suggests, there are other ways in which the story could end up mattering to people, one of which is the "rules don't apply to us" meme that one sees so often with the Clintons. There are more facts to be unearthed, and maybe still other concerns will arise. Or maybe not. The point is that this is a moment in which Clinton and her followers are showing again their amateurism, trotting out ill-considered responses and acting as if they can bluff their way through yet another controversy.

Joe said...

There can be "non-embarrassing arguments" here [some have been made] and still be proof of "amateurism, trotting out ill-considered responses and acting as if they can bluff their way through yet another controversy."

Joe said...

An update after her comments might be useful.

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