Clinton Out-Nixons Nixon And Erases The Email

Rose_Mary_Woods

The conventional wisdom is that Richard Nixon would have survived Watergate if he had erased the tapes. Democrats were outraged by the eighteen and a half minutes which were “accidentally” erased by Nixon’s secretary, Rose Mary Woods. In a late Friday news dump we learned that Hillary Milhouse Clinton, who once accused the Bush administration of shredding the Constitution with their use of private email, out-Nixoned Nixon. The New York Times and Politico reported that Clinton has deleted all of what she claims to be private email after October 28 when the State Department first requested that Clinton turn over the email kept on her private server, violating rules in effect as of 2009. The server has been wiped clean.

Clinton had given contradictory answers regarding the email at her news conference, in which media fact checkers found multiple untrue statements. From The New York Times:

At a news conference this month, Mrs. Clinton appeared to provide two answers about whether she still had copies of her emails. First, she said that she “chose not to keep” her private personal emails after her lawyers had examined the account and determined on their own which ones were personal and which were State Department records. But later, she said that the server, which contained personal communication by her and her husband, former President Bill Clinton, “will remain private.” The server was kept at their home in Chappaqua, N.Y., which is protected around the clock by the Secret Service.

Multiple investigations so far have failed to show any evidence for the Republican conspiracy theories on Benghazi, but the disclosure from Clinton on Friday that she has deleted email requested by Congress will only serve to keep the witch hunt alive. While Republicans deserve to be faulted for the witch hunts they are pursuing, this does not excuse Clinton’s actions of using her private server to prevent disclosure of requested evidence to a Congressional committee. Clinton also used her private server to avoid complying with Freedom of Information Act requests for information from the news media.

One of Clinton’s many bogus excuses for failing to follow government protocol in maintaining her email on a government server was that her email would be preserved because of being sent to State Department email addresses. It has since been found that the entire State Department was sloppy in maintaining email. Current Secretary of State John Kerry, who has admirably followed the law in using government email since assuming the post, has asked the Inspector General’s office to conduct “a review of our efforts to date on improving records management, including the archiving of emails as well as responding to FOIA and Congressional inquiries.” There have also been requests from the Republican National Committee and from House Benghazi Committee Chairman Trey Gowdy for the Inspector General to get involved. With the revelations that Clinton has erased the email, it might also be time for a special prosecutor to be appointed to handle the investigation of her actions.

The claim that her email is public due to being sent to State Department or other government addresses is also bogus as not all of Clinton’s email regarding State Department matters was even sent to government addresses. The first reports of Clinton’s private email came when Gawker found the email address on hacked email from Sidney Blumenthal in 2013. Gawker has recently discussed her email further, reporting that “longtime Clinton family confidante Sidney Blumenthal supplied intelligence to then Secretary of State Hillary Clinton gathered by a secret network that included a former CIA clandestine service officer.” The post has further information regarding information sent to Clinton by Blumenthal regarding the situation in Benghazi. At this point it is not known if Clinton responded to Blumenthal while in office or if email from Blumenthal is included in the email she did release.

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Senator Stabenow Takes Legislative Action Against Cotton Letters

debbie-stabenow

Senator Debbie Stabenow of Michigan is taking legislative action to prevent a repeat of the type of letter sent by Senator Tom Cotton, attempting to sabotage diplomatic talks regarding nuclear energy in Iran. She introduced an amendment (pdf here) which would defund “the purchase of stationary [sic] or electronic devices for the purpose of members of Congress or congressional staff communicating with foreign governments and undermining the role of the President as Head of State in international nuclear negotiations on behalf of the United States.”

The letter signed by 47 Republican Senators was highly irresponsible, and it is understandable why Senator Stabenow would like to defund any future such letters. The letter not only interferes with efforts to attempt to prevent Iran from developing nuclear weapons, it undermines the ability of the current and every future president to negotiate on behalf of the United States.

Of course Democrats might also like to keep this issue alive considering how unpopular the letter was with voters. It never hurts to remind the voters of how utterly irresponsible and bat-shit crazy the Republican Party has become.

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Jeb Bush Had Another Secret Email Account And Conservative Group Sues Clintons For Racketeering

Clinton Bush

The Bush family and the Clinton family are tied so closely together, with many predicting, or rather fearing, that we will have another Bush v. Clinton election in 2016. Among their ties is a problem with private email accounts. While I have already noted news media reports of Jeb Bush having his own email problems, yet another problem has arisen. AP reports that Bush had yet another secret email account:

When Bush released thousands of emails from his tenure as Florida’s governor as part of his preparations to run for president next year, he did so from the email account he shared openly, jeb@jeb.org.

Those emails also include references to another email address, jeb@gencom.net. Bush said through a spokeswoman that he was unaware of the account, although records showed that people wrote to him there more than 400 times between 1999 and 2004.

The same records show no replies from Bush coming from that address. Instead, when Bush responded, he did so from his more well-known email address. Writers sometimes also reached the governor at jeb@jebbush.org or jeb@myflorida.com.

Bush’s spokeswoman, Kristy Campbell, said Bush had no knowledge of the other email account. “He doesn’t know what that email address is,” she told The Associated Press Tuesday…

Though Bush said he knew nothing of that address, the emails clearly reached him: Bush often wrote back from his other account. In 1999, a writer corresponded with Bush about appointments to Brevard Community College. The email chain includes a reply, “Please respond to jeb@jeb.org.”

Hillary Clinton once again might be aided by conservative over-reach with her email problems:

The conservative group Freedom Watch has filed a racketeering lawsuit against former Secretary of State Hillary Clinton that accuses her of failing to produce documents under the Freedom of Information Act (FOIA).

The civil suit, filed Wednesday in the U.S. District Court for the Southern District of Florida, argues that Clinton used her private emails to sell access to other officials in return for donations to the Clinton Foundation.

It alleges that, during her tenure, Clinton withheld documents requested under FOIA regarding State Department waivers given to businesses or individuals doing business with Iran, possibly undermining U.S.-imposed sanctions.

The complaint, which lists Bill and Hillary Clinton and the Clinton Foundation as defendants, alleges the Clintons sold access to other U.S. government officials in return for donations to their organization, which they concealed, allegedly, by using a private computer server for her emails operated from their home in Chappaqua, New York.

While it has been established that Clinton violated the rules in effect when Secretary of State, and that she used the private server to improperly evade Freedom of Information Act requests, it is different matter to prove such racketeering. I fear that this will create yet another distraction, as with Benghazi, which prevents examination of the real issues regarding government transparency. Conservatives will fail to prove their case once again, and then Clinton apologists will use this to deny what Clinton has actually done wrong.

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Hillary Clinton Jokes About Her Problems With The Media

Clinton Media

Hillary Clinton spoke at the Toner Prize for Excellence in Political Reporting Monday night, and I do give her points for both humor and self-awareness:

“I am well aware that some of you may be a little surprised to see me here tonight,” she said. “My relationship with the press has been at times, shall we say, complicated.”

“I am all about new beginnings: a new grandchild, another new hairstyle, a new email account,” she quipped, “Why not a new relationship with the press? So here goes. No more secrecy. No more zone of privacy.”

So far not bad. I heard more of her speech last night and had to go through several media accounts until I found one which included a reference one of the best lines: “Before I go any further, if you look under your chairs, you’ll find a simple non-disclosure agreement. My attorneys drew it up.”  As I said, she showed self-awareness.

As is typical for Clinton, she also refused to take questions, but Dan Baltz, who won this year’s award, did offer to yield some of his time if Clinton would take some questions. She did not accept the offer.

This was a far better appearance for Clinton than her book tour or her press conference after the email scandal broke. It is questionable whether this will really repair her problems with the press. Joking around with the press hardly makes up for using her private server to block Freedom of Information Act requests for information from the media.

Clinton at least showed a better connection to reality than Breitbart which covered her speech in this manner:

“We need more than ever smart, fair-minded journalists to challenge our assumptions, push us towards new solutions, and hold all of us accountable,” she reportedly told mainstream media reporters who notoriously protect Democrats like Clinton.

I don’t think Clinton believed she was receiving any protection from the mainstream media when she received well-deserved criticism in the past month because of the email scandal from mainstream media sources such as The New York Times, NPR, AP, NBC News, MSNBC, and The Guardian. Plus there was the Boston Globe pushing for Elizabeth Warren to run against her, and far more scathing criticism from many liberal publications.

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PolitiFact Shows Facts On Health Care Reform, Debunking Republican Claims

PolitiFact has looked at the data available so far on the Affordable Care Act. They confirm what I’ve said in many posts on health care reform. ObamaCare is leading to more people being insured, lower costs, and a reduction in the deficit. The various Republican predictions of doom have failed to come about. The one area in which the law failed to meet expectations was the number of people covered due to Republican-controlled states which do not participate in the expanded Medicaid program. Thank-you Republicans for once again showing that you are the anti-life party.

Here is a summary of what PolitiFact has reported:

In 2010 it was projected that by 2019 32 million people would gain insurance, leaving 23 million uninsured (with the uninsured including illegal immigrants who, despite that email from your crazy Republican uncle, are not covered under ObamaCare.) It is now projected that by 2019 27 million will gain insurance, leaving 26 million uninsured. This is largely due to those not receiving access to the expanded Medicaid program in Republican-controlled states.

In 2010 it was predicted that the Affordable Care Act would decrease the deficit by $143 billion between 2010-19. In 2014 the projection was updated to reducing the deficit by $152 billion between 2015-24.

In 2010 the cost was projected to be $710 billion between 2015-19. The updated projection is $571 billion. The lower estimate is due to both reductions in health care costs and decreased spending on the expanded Medicaid program.

PolitiFact debunked that Republican claims that the Affordable Care Act is a jobs-killer.

PolitiFact debunked the Republican predictions of a death spiral in which premiums would become more expensive and younger, healthier people would not purchase insurance: “About 28 percent of customers during the 2014 enrollment period were ages 18 to 34. And there were 70 more insurance companies participating in the 2015 marketplaces than the previous year…”

PolitiFact debunked Republican predictions of increasing premiums, noting a decrease in health care spending. It is not clear to what degree this can be attributed to the Affordable Care Act versus other factors. One aspect that is not measurable is the way in which the culture in health care has changed since Obama began speaking about health care reform, leading health care professionals to utilize resources more economically.

The Affordable Care Act was introduced as incremental legislation which would both increase access to care and reduce costs. It was never expected to lead to universal coverage without further expansion of the plan. PoltiFact looked at those projected to remain uninsured:

Who makes up this group of persistently uninsured? About 30 percent are illegal immigrants, which the law specifically does not apply to. But about 40 to 45 percent are people who will choose not to purchase insurance offered to them either through the marketplaces or through an employer, in many cases because they still can’t afford it. The law exempts people from paying a penalty who have incomes so low they don’t file tax returns.

There is also a coverage gap unintended by those who wrote the law: People who live in states that didn’t accept Medicaid expansion. The law essentially required states to expand eligibility and agreed to pay 100 percent of the expansion for the first three years, declining to 90 percent in 2020 and beyond.

One goal for the future is to provide assistance for those denied care due to living in Republican-controlled states. Further review of the law is needed regarding the 40 to 45 percent who are projected to remain uninsured due to choosing not to purchase insurance offered through the exchanges or employers. Some people are not obtaining coverage due to believing false information spread by Republicans and this problem will hopefully decline as more people see the success of the law. Some were unaware of the tax penalties as they will not experience them until paying taxes due this April 15. This might provide further motivation to obtain insurance.

The biggest concern are those who remain unable to purchase insurance due to the cost. As I previously noted, eighty-three percent of enrollees qualified for subsidies in 2013. Those who qualified payed an average of $82 per month in premiums. Those obtaining Silver plans paid an average of $69 per month. Those not obtaining coverage due to the cost are probably people at the upper income range for receiving subsidies and not receiving sufficient subsidies to afford insurance, or those who just miss out on qualifying. This situation might be improved with further reductions in costs but expansion of the subsidies might be needed to get closer to universal coverage.

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No, Hillary Clinton Is Not Going To Send You Off To “Camp”

Clinton Camp Speech

I have been critical of Hillary Clinton for her secrecy and poor history on government transparency, her neoconservative foreign policy views, her conservative views on social issues, her mismanagement of health  care reform, and her overall poor judgement. I am not going to defend her just because she has a D after her name, or because she is a female candidate.

There are plenty of attacks from the right which Clinton does deserve defending on, even if Clinton does often deflect from liberal criticism with all the bat-shit crazy attacks coming from the right. Conservatives have spoken of being taken off to FIMA Camps since that Muslim, Socialist, Marxist (in their view) Barack Obama took office. It didn’t come to pass, but now watch them twist a speech given by Clinton to actual camp owners into something equally menacing.

The Daily Caller wrote:

As I have gotten older, I have decided we really need camps for adults,” she said to laughter. “And we need the kind of camps you all run.”

“None of the serious stuff, not of the life-challenging stuff; more fun!” Clinton continued. “I think we have a huge fun deficit in America. And we need to figure it out how to fill that fun deficit, certainly for our kids, but also for the rest.” (RELATED: RNC Releases Satirical Emails From Hillary Clinton)

In these camps, Clinton wants Americans to really concentrate on the important things. “We need some reminder about life skills from time to time, maybe some enrichment, certainly some time outdoors.”

On an entirely unrelated note, “joycamp” was the Newspeak term for forced labor camps in George Orwell’s “1984.”

Hopefully this was written tongue in cheek, but I bet it won’t be long until your crazy Republican uncle cites this speech in their anti-Clinton email.

Several news reports also predict this will be her last paid speech, anticipating that Clinton will announce her candidacy in early April. Federal campaign finance laws to provide incentives to declare early in a quarter, to maximize reports of fund raising for each quarter. Clinton would be smart to formally get in the race and speak out on issues. Lying about her email didn’t  help her, but speaking out on issues might result in the media devoting more coverage to this and less to her scandals.

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Democratic Support Falls For Hillary Clinton Even Prior To Yet Another Clinton Scandal

Hillary Clinton speaks at the Clinton Global Initiative in New York

There is yet another scandal involving Hillary Clinton, with the latest Reuter’s poll showing a drop in Democratic support for Clinton even before today’s scandal broke. First the latest scandal, then the poll.

Barack Obama came into office promising greater transparency. This included changing email practices following the abuses under George Bush–abuses which Hillary Clinton referred to as shredding the Constitution. We now know that Clinton violated the rules. Obama also wanted greater transparency regarding contributions to eliminate concerns that members of his administration were serving interests other than the interests of the voters. Reuters found that Clinton violated promises made upon taking office regarding disclosure of contributions:

In 2008, Hillary Clinton promised Barack Obama, the president-elect, there would be no mystery about who was giving money to her family’s globe-circling charities. She made a pledge to publish all the donors on an annual basis to ease concerns that as secretary of state she could be vulnerable to accusations of foreign influence.

At the outset, the Clinton Foundation did indeed publish what they said was a complete list of the names of more than 200,000 donors and has continued to update it. But in a breach of the pledge, the charity’s flagship health program, which spends more than all of the other foundation initiatives put together, stopped making the annual disclosure in 2010, Reuters has found.

In response to questions from Reuters, officials at the Clinton Health Access Initiative (CHAI) and the foundation confirmed no complete list of donors to the Clintons’ charities has been published since 2010. CHAI was spun off as a separate legal entity that year, but the officials acknowledged it still remains subject to the same disclosure agreement as the foundation.

The finding could renew scrutiny of Clinton’s promises of transparency as she prepares to launch her widely expected bid for the White House in the coming weeks. Political opponents and transparency groups have criticized her in recent weeks for her decision first to use a private email address while she was secretary of state and then to delete thousands of emails she labeled private.

The two scandals very well might be connected. While there is no way to prove this after Clinton destroyed some of the email, members of the news media have suggested that if Clinton was hiding anything, it was most likley regarding contributions to the Foundation, as opposed to any smoking guns related to Benghazi. This includes liberal columnist Frank Rich, along with Ron Fournier, who wrote:

“Follow the money.” That apocryphal phrase, attributed to Watergate whistle-blower “Deep Throat,” explains why the biggest threat to Hillary Rodham Clinton’s presidential dreams is not her emails. It’s her family foundation. That’s where the money is: corporate money, foreign money, gobs of money sloshing around a vanity charity that could be renamed “Clinton Conflicts of Interest Foundation.”

Despite all the evidence that Clinton broke the rules in effect when she took office, many Democrats will continue to defend her because of her name and gender. Some Democrats would continue to defend Clinton even if we had  incontrovertible evidence that she kicks puppies and bar-b-que babies. While maybe exaggerating, it seems that there is no crime which will cause some Democrats to question Hillary Clinton–even if it is something they previously attacked Republicans for. So much for consistency or adherence to principle.

Fortunately this does not apply to all Democrats. A new Reuters/Ipsos poll does show support for Clinton to be softening:

Support for Clinton’s candidacy has dropped about 15 percentage points since mid-February among Democrats, with as few as 45 percent saying they would support her in the last week, according to a Reuters/Ipsos tracking poll. Support from Democrats likely to vote in the party nominating contests has dropped only slightly less, to a low in the mid-50s over the same period.

Even Democrats who said they were not personally swayed one way or another by the email flap said that Clinton could fare worse because of it, if and when she launches her presidential campaign, a separate Reuters/Ipsos poll showed.

The polling showed that nearly half of Democratic respondents – 46 percent – agreed there should be an independent review of all of Clinton’s emails to ensure she turned over everything that is work-related.

The bigger problem is that while Democrats might stick with her and give her the nomination, by November 2016 a majority of the voters will have had enough of what could be a constant stream of revelations about Clinton. Giving Hillary Clinton the Democratic nomination increasingly looks like a death wish on the part of Democrats.

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Great News For Late Night Comedians: Donald Trump Appears To Actually Be Running This Time

Donald Trump

Donald Trump spoke of running for president before but many did not take him seriously, seeing it as a publicity stunt or ego boost. Earlier this year he claimed he was serious but few believed him, with most assuming he would continue with The Apprentice. The New Hampshire Union Leader now reports that Trump is dropping The Apprentice and is setting up an exploratory committee:

Donald Trump will launch a presidential exploratory committee Wednesday, the eve of the business mogul’s return to New Hampshire.

A senior adviser tells the New Hampshire Union Leader that Trump will not be renewing his contract with NBC for the reality television “Apprentice” series.

Combined with staff hires, Trump’s announcement that he will form an exploratory committee for the first time is a sign the billionaire is seriously considering running for the Republican nomination.

Trump as released this announcement:

I have a great love for our country, but it is a country that is in serious trouble. We have lost the respect of the entire world. Americans deserve better than what they get from their politicians – who are all talk and no action! I have built a great company, created thousands of jobs and built a tremendous net worth with some of the finest and most prestigious assets in the world – and very little debt! All Americans deserve the same opportunity. Our real unemployment rate is staggering while our manufacturing base is eroding on a daily basis. We must rebuild our infrastructure, control our borders, support local control of education, greatly strengthen our military, care for our veterans and put Americans back to work! We must stop other countries from totally taking advantage of our representatives who are being out-negotiated at every turn. I am the only one who can make America truly great again!

This reminds me of what Andy Borowitz once said: “If Trump can do the same magic that he did for NBC, the USA will be the #4 country in the world.”

To his credit, Trump was often critical of George Bush, but during the Obama presidency his political views aligned with the extreme right. He has provided far more material for comedians than serious political comment. He was a strong Birther, claiming Obama was not born in the United States. Jimmy Fallon was among the late night comedians who mocked Trump on this: “Hey, Congratulations to Donald Trump, who just welcomed his fourth grandchild! You could tell it was Trump?s grandchild because as soon as it came out, it demanded to see its own birth certificate.” Jimmy Kimmel quipped, “President Obama celebrated Passover with a Seder at the White House. This morning, Donald Trump demanded to see Obama’s Bar Mitzvah certificate.” Conan O’Brien added, “On Fox News, Donald Trump said Obama’s birth certificate could indicate that he’s a Muslim. Trump said he doesn’t trust anyone with a foreign-sounding name, and neither does his daughter Ivanka.”

Obama mocked him at the 2011 White House Correspondents’ Dinner:

“Donald Trump is here tonight,” the comedian in chief said, grinning. “Now, I know that he’s taken some flak lately, but no one is prouder to put this birth certificate to rest than The Donald. Now he can get to focusing on the issues that matter. Like, did we fake the moon landing? What really happened at Roswell? And where are Biggie and Tupac?”

Seth Meyers also joked about Trump at the dinner, including one joke which also mocked John McCain’s choice of Sarah Palin as running mate. He noted that Trump owns the Miss USA Pageant, “which is great for Republicans because it will streamline the search for a vice president.”

David Letterman mocked the idea of a Republican race with both Donald Trump and Sarah Palin in it in 2010:

Sarah Palin says she’s going to run for President in 2012. 2012. Donald Trump said he’s going to run for President in 2012 against Sarah Palin. Nice to know there will somebody equally unqualified…Now that would be some presidential race. You’ve got Donald Trump and Sarah Palin and the debates. Get there early and get some seats down front for those debates. ‘You’re fired, you becha.’

Trump later canceled an appearance with David Letterman in 2011 after Letterman mocked Trump’s attacks on Obama, saying they “smack of racism.”

Trump joined the Global Warming denialists by asking, “It’s cold outside…so where’s the global warming?” He changed from pro-choice to opposing abortion. “People change their positions all the time, the way they change their wives,’’ according to the executive vice president of the Trump Organization.

Donald Trump will clearly  make the Republican circus more amusing.

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FOIA Official Confirms Clinton Broke Rules But Two Conservative Charges Against Her Look Dubious

Clinton Email

If the old political adage is true that the cover-up is worse than the crime, there is a corollary that denying the acts are a crime can be nearly as bad. When news first broke that Hillary Clinton used a private server for her email the reaction was generally that she acted unethically, foolishly, and possibly in violation of the rules. Then Clinton gave a news conference in which she basically insulted the intelligence of the press and all thinking people watching her who retain any objectivity. She claimed that she did not violate any rules, and the fact checkers got hard to work to show that, despite her denials, Clinton clearly did violate the rules. Instead of burying the story as she hoped, her dishonesty has kept talk of the issue going.

Clinton apologists came out with several attempts to obfuscate the issue. They quoted the 2014 changes in the Federal Records Act, arguing that they were passed after Clinton left office, but ignored the 2009 changes in the rules, along with directions within the Obama administration in 2009 and 2011 to improve transparency in government. They say that Colin Powell did the same, ignoring the rules changes which didn’t come into effect until 2009. Sure other Republicans have had comparable problems with their email, but it is hardly a good defense to show that Clinton is acting like a Republican. They move the goal posts and argue that there was no law against using private email. The issue is not the use of private email but that it did violate the rules in using private email exclusively. More seriously, she violated rules requiring that when private email is used it be archived on government servers. She also violated the rules when she deleted email, and when she used her private servers to avoid Freedom of Information requests from the press.

I have previously quoted Dan Metcalfe, who ran the Freedom of Information office for the Justice Department, explaining how Clinton violated the rules. Since that interview, he has written an article explaining yet once again how Clinton violated the rules:

We now have former Secretary of State Hillary Clinton being revealed as someone who took the unprecedented step of arranging to use her personal email account for all of her official email communications. What’s more, she decided to use her own email server equipment, rather than a commercial Internet service provider, so that the records of her email account would reside solely within her personal control at home. And if that were not enough, she then proceeded blithely—though not uncharacteristically—to present herself to the public, at a press conference held on March 10, as if there were really nothing “wrong” about any of this at all.

Well, as the saying goes, “reality is not her friend.”

For anyone considering this sad tale carefully—including the media, members of Congress and the public at large, whether from “inside the Beltway” or not—some basic points of both law and reality should be borne in mind.

First, while it is accurate for Secretary Clinton to say that when she was in office there was not a flat, categorical prohibition on federal government officials ever using their personal email accounts for the conduct of official business, that’s a far different thing from saying (as she apparently would like to) that a government official could use his or her personal email account exclusively, for all official email communications, as she actually did. In fact, the Federal Records Act dictates otherwise.

That law, which applies to all federal agency employees who are not within the White House itself, requires the comprehensive documentation of the conduct of official business, and it has long done so by regulating the creation, maintenance, preservation and, ultimately, the disposition of agency records. When it comes to “modern-day” email communications, as compared to the paper memoranda of not so long ago, these communications now are themselves the very means of conducting official business, by definition.

To be sure, this cannot as a practical matter be absolute. When Obama administration officials came into office in 2009, the Federal Records Act certainly allowed room for the occasional use of a personal email account for official business where necessary—such as when a secretary of state understandably must deal with a crisis around the world in the middle of the night while an official email device might not be readily at hand. That just makes sense. But even then, in such an exceptional situation, the Federal Records Act’s documentation and preservation requirements still called upon that official (or a staff assistant) to forward any such email into the State Department’s official records system, where it would have been located otherwise.

This appears to be exactly what former Secretary of State Colin Powell did during his tenure, just as other high-level government officials may do (or are supposed to do) under such exceptional circumstances during their times in office. Notwithstanding Secretary Clinton’s sweeping claims to the contrary, there actually is no indication in any of the public discussions of this “scandal” that anyone other than she managed to do what she did (or didn’t) do as a federal official.

Second, the official availability of official email communications is not just a matter of concern for purposes of the Federal Records Act only. It also makes an enormous (and highly foreseeable) difference to the proper implementation of the Freedom of Information Act (known as the “FOIA” to its friends, a group that evidently does not include Secretary Clinton). That is because the starting point for handling a FOIA request is the search that an agency must conduct for all records responsive to that request’s particular specifications. So any FOIA request that requires an agency first to locate responsive email messages sent to or from that agency’s head, for instance, is necessarily dependent on those records being locatable in the first place. And an agency simply cannot do that properly for any emails (let alone all such emails) that have been created, and are maintained, entirely beyond the agency’s reach. Or, as it sometimes is said somewhat cynically in the FOIA community, “You can’t disclose what you can’t find.”

In this case, which is truly unprecedented, no matter what Secretary Clinton would have one believe, she managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it—perhaps forever. “Nice work if you can get it,” one might say, especially if your experience during your husband’s presidency gives you good reason (nay, even highly compelling motivation) to relegate unto yourself such control if at all possible.

Third, there is the compounding fact that Secretary Clinton did not merely use a personal email account; she used one that atypically operated solely through her own personal email server, which she evidently had installed in her home. This meant that, unlike the multitudes who use a Gmail account, for instance, she was able to keep her communications entirely “in house,” even more deeply within her personal control. No “cloud” for posterity, or chance of Google receiving a congressional subpoena—not for her. No potentially pesky “metadata” surrounding her communications or detailed server logs to complicate things. And absolutely no practical constraint on her ability to dispose of any official email of “hers,” for any reason, at any time, entirely on her own. Bluntly put, when this unique records regime was established, somebody was asleep at the switch, at either the State Department or the National Archives and Records Administration (which oversees compliance with the Federal Records Act)—or both.

Now, what Secretary Clinton would have one believe is that this is all just a matter of her choosing one available email option over another, that she really did nothing that her predecessors had not done before her and that she can be trusted to “have absolutely confidence” that what she did “fully complied with every rule that [she] was governed by.” In other words, the thrust of her March 10 press conference was: “Everything was fine, nothing to be seen here, so let’s all just move along.”

But having spent a quarter-century at the forefront of the government’s administration of the FOIA, including its transition to electronic records and its involvement in so many Clinton administration “scandals du jour,” I know full well that both what Secretary Clinton arranged to do and what she now has said about that are, to put it most charitably, not what either the law or anything close to candor requires. At a minimum, it was a blatant circumvention of the FOIA by someone who unquestionably knows better and an attempted verbal “cover” of the situation (if not “cover-up”) that is truly reminiscent of years past.

And I say that even as someone who, if she decides to run for president and is the Democratic nominee, will nevertheless vote for her next year.

I cannot tell you how many times, during the eight years of the Clinton administration, I heard someone say, “The cover-up is worse than the crime.” For those of us who knew what most of the alleged record “cover-ups” actually were, even if not the full extent of each “crime,” I can tell you that this sometimes was true—but not always. In fact, the exact phrasing of the public explanations given, with their sly connotations versus denotations, could make all the difference.

Let’s start with her opening sentences of the press conference: “First, when I got to work as secretary of state, I opted for convenience to use my personal email account, which was allowed by the State Department….”

This statement, right off the bat, gives a false impression, through two key words that are used and one that is missing. Her use of “opted” (which, incidentally, was readily accepted by her first questioner) strongly implies that she actually had a choice under the Federal Records Act; she did not. And the word “allowed” likewise connotes that what she did was permissible as a matter of law. It was not. It obviously was “allowed by the State Department” in one sense because it did proceed to happen; no one tackled her in the hallway before she could do it. But that does not mean that it was properly allowed, which is what she repeatedly implies. The missing word, of course, is “exclusively.” Officials were not absolutely barred from ever using their personal email accounts. But again, that is a far cry from what this answer falsely implies—that the law and regulations, either back then or now, allow the use of a personal email account exclusively. She never should have been using a personal account exclusively for her email correspondence. That’s the key ingredient that made her email setup contrary to policy, practice and law.

Let’s take, as another example, her claim that what she did was in compliance with law because “the federal guidelines are clear.” OK, please now tell us, Secretary Clinton, exactly which “federal guideline” (even one will do, notwithstanding your claim of plurality) makes it “clear” that you can unilaterally decide, dispositively and with such finality, which of your work-related records are “personal” and which ones are not, even with FOIA requests pending? Years ago, I worked on a case in which a presidential appointee—who shall remain nameless though not blameless—after becoming caught up in an especially controversial matter, intransigently declared that all of the records on a credenza behind his desk were “personal” and thus were beyond the reach of the FOIA (and that of the agency FOIA officer, whom he physically prevented from going back there). This official was severely castigated by a federal judge after it was found that he was, in no small part, quite mistaken about both things; the judge’s opinion was so pointed that we used the case regularly in our FOIA training programs. So yes, Secretary Clinton’s suggestion that federal officials can unilaterally determine which of their records are “personal” and which are “official,” even in the face of a FOIA request, is laughable.

It is not at all uncommon for the average federal employee on a day-to-day basis to bear the responsibility of “separating the wheat from the chaff” under the Federal Records Act, as well as when that employee departs from federal service. Even relatively high-level employees such as myself (as an ES-5 in the Senior Executive Service) often are able, as a practical matter, to determine such things, just as I did when I retired from the Justice Department eight years ago. But I certainly could not have taken with me the sole copy of any agency-generated document, nor could I have properly stymied any pending FOIA request—not even for a record in my office that I was convinced was 100 percent “personal.” In fact, at Justice we created a formal process to govern things that departing officials sought to “remove.” The first official to which the policy was applied, at her own insistence, was Attorney General Janet Reno, at the end of the Clinton administration. (This stood in stark contrast with the sad case of Attorney General Edwin Meese, who was so overreaching upon his departure that we had to scour his garage in Virginia to retrieve about a dozen boxes of records that he wrongfully took with him in violation of the Federal Records Act, among other things.) One cannot help but wonder how Secretary Clinton’s departure process was handled.

Metcalfe went on to criticize Clinton for the security risks in the manner in which she handled sensitive and possibly classified information.

While criticism of Clinton from the left has been over concerns for honesty and transparency in government, criticism from the right has often been over other matters. For example, The Wall Street Journal ran an opinion piece from Ronald Rotunda, a professor at Chapman University’s Fowler School of Law, arguing that Clinton committed obstruction of justice in destroying some of the email:

The law says that no one has to use email, but it is a crime (18 U.S.C. section 1519) to destroy even one message to prevent it from being subpoenaed. Prosecutors charging someone with obstruction don’t even have to establish that any investigation was pending or under way when the deletion took place. As T. Markus Funk explained in a journal article for the National Association of Criminal Defense Lawyers, the prosecutor “need only prove that the defendant shredded the documents, at least in part, to make life more difficult for future investigators, if and when they eventually appear.”

Legal commentators call this “anticipatory obstruction of justice,” and the law punishes it with up to 20 years imprisonment. The burden of proof is light. The Justice Department manual advises that section 1519 makes prosecution much easier because it covers “any matters” or “’in relation to or contemplation of’ any matters.” It adds, “No corrupt persuasion is required.”

An opinion from another law professor would be needed to verify this, but I would think that for this to apply there would need to be reason to believe that Clinton had committed a crime she was covering up. While destruction of the email did violate the Federal Records Act, I would doubt that it goes as far as to constitute obstruction of justice without such evidence of a crime. The preservation of email is important with regards to maintaining government transparency and preserving the historical record, but beyond that there is no evidence of any larger crimes being committed by Clinton. Of course conservatives are likely to counter by saying she would not have destroyed email if she didn’t have something to cover-up, and admittedly there is no way to prove this wrong beyond a presumption of innocence which it is not clear Clinton deserves.

Conservatives have also been obsessing over whether she signed form OF-109, in which an official leaving the government certifies that they surrendered all official records. It now appears that she did not. The whole issue of the OF-109 seems like a petty distraction. The real issue is whether she violated the rules, as she did, not how or whether she completed a form regarding compliance with some of the rules. Besides, it looks like it is quite common for public officials to fail to complete this, with no penalty for not signing. Leave it to conservatives to look beyond the real issues and concentrate on trivialities.

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Al Gore As The Liberal Alternative To Hillary Clinton

Al Gore

With many liberals concerned about the prospect of Hillary Clinton walking away with the Democratic nomination there has been increased talk of other potential candidates. Joan Walsh listed several in a recent article at Salon. Although I thought it is purely coincidence, I recently noted speculation in light of Al Gore’s planned visit to Iowa this spring. Despite what many political pundits believe, some people do go to Iowa or New Hampshire for reasons other than to launch a presidential campaign. Ezra Klein is now writing that Al Gore should run for president.

He is pushing for Gore to run largely because of climate change, arguing both the importance of the issue and pointing out that this is an area where a president can take action with executive agencies even with the opposition of Congress. While I agree, I’m more interested in Gore because of the strong commitment to liberal positions and the forward looking thinking he has expressed since leaving office. As Klein wrote:

Single-issue candidacies rarely go far in American politics, but then, Gore need not be a single-issue candidate. Indeed, the rest of his positions are closer in line with Democratic Party activists than, say, Clinton’s. He opposed the Iraq War and endorsed single-payer health care, for instance. His Reinventing Government initiatives, mixed with his Silicon Valley contacts and experience, look pretty good for a post-Healthcare.gov era.

And there’s a lot more on Gore’s mind. His most recent book, ambitiously titled The Future, runs through the six forces he believes are changing the world: a globalized network of governments and corporations he calls “Earth, Inc.”; worldwide communication technologies that are leading to the emergence of a “global mind”; massive shifts in power from West to East and from government to corporations; an economic system that too often devastates natural resources; revolutions in genomics, biotechnology, and other life sciences; and, perhaps most optimistically, the beginnings of a revolution in energy and agriculture.

The book has been blurbed by everyone from conservative economist Arthur Laffer (“transcends ideology while turning our attention to big issues, big ideas, and big solutions”) to internet hero Tim Berners-Lee (“If you are concerned about the massive changes the world is just heading into, then you should read this book. If you aren’t, then you must read it!”).

You can believe Gore a visionary or you can believe him a blowhard, but he’s offering a very different, and much more radical, vision of what politics should be about than even Elizabeth Warren, to say nothing of Hillary Clinton.

Gore also has the experience, name recognition, and the resources to launch a campaign, while other candidates would be overshadowed by Hillary Clinton. He has even won the popular vote for president once, and could have won the electoral vote if a full recount was held in Florida, or if not for the butterfly ballots.  It sounds like a great idea except for one major problem. I doubt that Gore has any interest in getting back into politics.

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In follow-up of other recent items, White House Press Secretary Josh Earnest was asked about the story in The New York Post which claims that Valerie Jarrett leaked the information regarding Clinton’s email. He called the report “utter baloney.” Of course those who believe the story will probably not believe his denial.

Dvorak, a tech blog, has discovered more information on how insecure Hillary Clinton’s private server was. He found that Clinton used an outside spam filtering service and that people working there could have reviewed any sensitive email going through her system. The author, who has supported Clinton in the past,  pointed out that “this is one of many reasons they have a rule at the State Department that you have to use their servers.” (Noncompliance with this policy was cited by the Inspector General as one of the reasons for firing an ambassador under Clinton.) The article also showed that security was relatively weak on the system. The author has a response for those who excuse Clinton’s actions because Republicans did it too: “Are you F…ing kidding me!”

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