Hillary Clinton’s response to reports that she has violated the Federal Records Act at her recent press conference have been throughly debunked by media fact-checkers. The Canadian Press has also discussed this with Daniel Metcalf. He is described as, “The senior-most freedom-of-information official in the executive branch of the United States government for over a quarter-century, whose job it was to help four administrations — including the Clinton White House — interpret the Freedom of Information Act, offer advice, and testify before Congress on their behalf.”
Daniel Metcalfe doesn’t buy her explanation. In fact, he calls it laughable.
“What she did was contrary to both the letter and the spirit of the law,” says Metcalfe, the founding director of the Justice Department’s Office of Information and Privacy, which advised the rest of the administration on how to comply with the law. Metcalfe ran the office from 1981 to 2007.
“There is no doubt that the scheme she established was a blatant circumvention of the Freedom of Information Act, atop the Federal Records Act.”
Metcalfe says he doesn’t have any partisan axe to grind. He’s a registered Democrat, though steadfastly non-partisan. He says he was embarrassed to work for George W. Bush and his attorney general, and left government for American University, where he now teaches government information law and policy…
Metcalfe examined a transcript of her press conference, provided by The Canadian Press.
And he dissected it Wednesday, point by point, annotating it in 23 places where he called her statements “deceptive,” “grossly misleading” and impossible to verify.
His overall conclusion from her public appearance: “Her suggestion that government employees can unilaterally determine which of their records are personal and which are official, even in the face of a FOIA request, is laughable.”
Time calls this The Clinton Way in an upcoming cover story with a subtitle, “They write their own rules. Will it work this time?” Some excerpts, trying to limit to current news and leave out the past history discussed in the full article:
The Clintons play by their own set of rules. And in this case, the former Secretary of State explained, those rules bless her decision to erase some 30,000 emails from the family server despite knowing that the emails had become a subject of intense interest to congressional investigators. These were merely “private personal emails,” Clinton averred, “emails about planning Chelsea’s wedding or my mother’s funeral arrangements, condolence notes to friends as well as yoga routines, family vacations, the other things you typically find in inboxes.” After she finished taking questions, Clinton’s staff disclosed that no one actually read through those 30,000-odd documents before she “chose not to keep” them…
Still, Clinton’s failure to defuse the email issue, along with a growing list of questions about the family’s relentless fundraising and her husband’s choice of companions, has revived hopes among erstwhile rivals in the Democratic Party that the Hillary dreadnought might actually be sinkable. Backbiting inside the Clinton campaign–a hallmark of her failed 2008 presidential effort–has begun to leak into the political press. Republicans who were morose over their presidential chances mere months ago have a spring in their step…
In her press conference, Hillary Clinton described the private email account on the server inside their New York home as a matter of convenience only. “I thought it would be easier to carry just one device for my work and for my personal emails instead of two,” she said. “Looking back, it would’ve been better if I’d simply used a second email account and carried a second phone, but at the time, this didn’t seem like an issue.”
That explanation was not exactly robust. The Q&A had hardly ended before Clinton’s critics unearthed an interview Hillary had given a few weeks earlier with Re/code co-founder Kara Swisher. “I have an iPad, a mini iPad, an iPhone and a BlackBerry,” Clinton said. So much for simplicity. Others remarked on a matter of timing: Clinton did not carry out her business on an existing personal email account. She specifically set up a new private address–firstname.lastname@example.org–instead of using a government account. This happened on the very day the Senate Foreign Relations Committee held its first hearing on her nomination as Secretary of State.
As for why this might “seem like an issue,” the answer is not complicated. All federal employees have a legal obligation to preserve their work-related email–and the White House advises appointees to accomplish this by using official government addresses. Email sent to and from .gov accounts is generally archived. In this way, a consistent level of security is maintained. The nation’s history is preserved. Open-records laws are honored. And transparency gets a leg up on “Trust me.”
All this once made sense to Clinton. As a candidate for President in 2008, she included “secret White House email accounts” as part of her critique of the Bush Administration’s “stunning record of secrecy and corruption.” Now, however, Clinton is leaning heavily on “Trust me.” For more than a year after she left office in 2013, she did not transfer work-related email from her private account to the State Department. She commissioned a review of the 62,320 messages in her account only after the department–spurred by the congressional investigation–asked her to do so. And this review did not involve opening and reading each email; instead, Clinton’s lawyers created a list of names and keywords related to her work and searched for those. Slightly more than half the total cache–31,830 emails–did not contain any of the search terms, according to Clinton’s staff, so they were deemed to be “private, personal records.”
This strikes experts as a haphazard way of analyzing documents. Jason R. Baron, a former lawyer at the National Archives and Records Administration who is now an attorney in the Washington office of Drinker Biddle & Reath, says, “I would question why lawyers for Secretary Clinton would use keyword searching, a method known to be fraught with limitations, to determine which of the emails with a non-.gov address pertained to government business. Any and all State Department activities–not just communications involving the keywords Benghazi or Libya–would potentially make an email a federal record. Given the high stakes involved, I would have imagined staff could have simply conducted a manual review of every document. Using keywords as a shortcut unfortunately leaves the process open to being second-guessed.”
Politico reports that the White House frets return of ‘Clinton Way’
They thought she’d changed. They thought maybe she’d picked up a little bit from them about how people respond to awkward secret arrangements and contrived ways of not telling the full story.
This has been a surprising two weeks for aides in President Barack Obama’s orbit as they’ve watched Hillary Clinton’s email mess unfold…
With so much on the line, with so much time to prepare, she’s back to classic Clinton? She’s flubbing a campaign kickoff eight years in the making because she somehow thought that no one would ever care that she set up a secret email server? That anyone would then accept her word that it was OK that she deleted 30,000 emails even though the State Department had been asking for some of them? And then go silent again?
After all, 2008’s “Change you can believe in” campaign slogan wasn’t just a reference to George W. Bush. It was also about her, and the uneasy feeling many people had that with Clinton, something else was always going on.
Obama aides had had that feeling themselves, even after she joined the administration and their staffs tried following Obama’s and Clinton’s leads in building mutual trust, almost to the point of suspension of disbelief.
“You never feel like you’re quite getting the full story, because everyone’s got some side deal or some complicating factor,” said one former Obama aide, reflecting on dealing with Clinton and her circle. “I don’t think there was a conscious effort to watch out for scams. It was more just, you know who you’re dealing with.”
Obama put the priority on keeping clear records when he issued guidelines about using official email accounts, one White House aide noted after Clinton’s news conference, while obviously the former secretary of state determined her priority was something else…
A lot of this has to do with what Obama aides refer to as a culture clash. The Clintons look for loopholes, they say, while Obama takes a special pride, particularly on transparency issues, in sticking to the letter of the law: a combination of cockiness that he’s right, so why not let everyone see how he got there, as well as a background awareness that any scandal would be a scandal for the first African-American president.
“The president has been willing to say and implement provocative policies to shake up Washington,” said one current White House aide. “Willingness to send those signals is a good way to make clear to people that this is the way we’re going to do business: differently.”
…What’s confusing to them is how she didn’t acknowledge that herself, or care. They don’t like to admit it around the West Wing, but as a former first lady and Obama’s main opponent in 2008, Clinton did get more latitude than other Cabinet secretaries in all sorts of decisions, from staffing on down. They’re just hoping that this email server — “the president 100 percent would not have done it this way,” the former aide said, “this is such a clearly nontransparent way of going about it” — is the extent of the latitude she took that they didn’t know about.
Then again, the White House didn’t know she deleted 30,000 emails until they watched her announce it at her news conference on Tuesday. And aides acknowledge that they don’t know how much more they don’t know.
It is a legitimate fear that “the extent of the latitude she took” when Secretary of State exceeds what we know about. My bigger fear is the latitude she would take as president.
Frank Rich compared this to an episode of Veep in which the vice-president announced plans to release her correspondence, and points out that Clinton’s explanation “didn’t pass the smell test.”
That it took Clinton as long as it did to respond to the rising chorus of these questions, and that she did so as defensively and unconvincingly as she did, is yet more evidence that she’s not ready for the brutality of a presidential campaign. This hastily called, abruptly truncated press conference was reminiscent of the mistakes she made last year in her ill-fated book tour. She didn’t schedule yesterday’s appearance until after the most senior of Democratic senators, Dianne Feinstein, essentially demanded that she speak up.
Some of what Clinton said didn’t pass the smell test. It reminded me of an episode in the first season of Veep where the vice-president announces she will release all her internal office correspondence to quell a controversy and then instructs her staff to make sure it’s “Modified Full Disclosure Lite.” That’s what we got here. Why, for instance, would Clinton say that she “didn’t see any reason to keep” her personal emails? Those are precisely the emails that every American keeps.
If she doesn’t become more forthright and less defensive when she’s under fire, this is going to be a very long campaign for her. Though we keep being told that she and those around her are determined not to repeat the mistakes of 2008, so far there’s no evidence of that. And the much tougher questions — starting with those about the donors to the Bill, Hillary and Chelsea Clinton Foundation — are yet to come.
While a growing number of Democrats are starting to worry about her ability to run a presidential campaign, she maintains the front runner due to lack of serious opposition. For example, Dana Milbank writes that Hillary Clinton has little to fear from Martin O’Malley. I don’t think that the speculation on Al Gore entering the race, which I discussed yesterday, is very likely.
I agree with Jonathan Bernstein, who debunks the claim that the Democrats have no bench. The problem is that so far Hillary Clinton has taken all of the air out of the Democratic nomination battle. If we had an open and competitive primary, more people might run, and some would ultimately look like viable presidential candidates. We would be in a situation comparable to 1992 when several candidates ran until one (in that case Bill Clinton) emerged. A candidate who is victorious in such a primary battle will be taken seriously as a presidential candidate. Democrats do not need to settle for a candidate as flawed by Hillary Clinton due to thinking she is the only choice. Nominating someone lacking so lacking in judgment and ethical character as Hillary Clinton will greatly increase the risk of a Republican being elected president in 2016.