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Sunday, March 8, 2015

Has Hillary Clinton Done Something Wrong?

 A definitive answer is difficult to determine, because definitions of "wrong" can vary. The dictionary (American College Dictionary) defines wrong in several different ways: 1) not in accordance with what is morally right and good, 2) deviating from truth or fact; erroneous, 3) not correct in action,, judgment, opinion, method, etc. as a person; in error 4) not in accordance with requirements, 5) to do wrong to; treat unfairly or unjustly; injure or harm. And then, we find this definition related to Law: 6) an invasion of right, to the damage of another person. Let us hold those definitions in abeyance, and explore what has happened in brief.

Here is a timeline of Hillary Clinton's history with email, the federal guidelines that theoretically applied to her when she took office, and the events of this week, according to ABC, with some comments included from CNN:

2000

Hillary Clinton was videoed at a fund-raiser telling a donor that she didn't like using email for fear of leaving a paper trail.

"As much as I’ve been investigated and all of that, you know, why would I?-- I don’t even want-- Why would I ever want to do e-mail?" Clinton said. One can understand her reluctance after all she has been through, but that doesn't satisfy her critics who believe she is paranoid and inherently evil. But then, that's the accustomed way those critics deal with everyone whose political views do not match their own.

2005

The Foreign Affairs Manual (FAM) was codified by the State Department, which ruled in 2005 that employees could use private email accounts for official business if they turned those emails over to be entered into government computers.

ABC News has reported that a Senior State Department official told them that under rules in place while Clinton was secretary of state, employees could only use private email accounts for official business if they turned those emails over to be entered into government computers. They were also forbidden from including 'sensitive but unclassified' information on private email, except under some very narrow exceptions.

This policy is still in place, according to the Department. Until any private emails are entered into government computers, the official says, an employee is in violation of the rules.

Clinton used a private email account for her entire tenure as secretary -- and did not even have a government-issued email. She only turned over some 55,000 pages of emails to be entered into government computer systems late last year, nearly two years after she stepped down from the State Department., and so may still be out of full compliance with this rule. If Clinton has now turned over all emails related to official business, she would be in compliance with State Department rules, an official said. But there is no way to independently verify that she has done that. Clinton’s spokesman said earlier this week that she has turned over about 90 percent of the emails she wrote as secretary of state, withholding only those that were strictly personal and not covered by the policy.

CNN reports further that "Clinton aides and department officials stressed this week that the former secretary of state did not violate State policy when she exclusively used a private email account for government work. However, it is currently unclear whether Clinton broke a State guideline dating back to 2005 that suggested "normal day-to-day operations be conducted on an (authorized information system), which has the proper level of security control. Those guidelines were filled with exemptions that could allow Clinton to use a private account."

 It is also possible that some of Mrs. Clinton's emails contained information "sensitive but unclassified" as defined by the federal government, a senior State Department official acknowledged, in potential violation of the 2005 department regulation as codified in the Foreign Affairs Manual (FAM).

"Reports claiming that by using personal email [Clinton] is automatically out of step of that FAM are inaccurate," the official told ABC News in a statement.

The Inspector General has warned that the use of non-governmental email accounts “increases the risk” of security breaches and the “loss of official public records as these systems do not have approved record preservation or backup functions.”

Clinton is believed to have established her own private email network based out of her Chappaqua, New York, home, where aides say she has personally preserved all messages before turning them over.

2007

In the midst of the 2008 presidential race, Clinton took a jab at the Bush administration's use of non-governmental email accounts. "Our Constitution is being shredded. We know about the secret wiretaps. We know about secret military tribunals, the secret White House email accounts," Clinton said in a 2007 campaign speech. According to CNN, "charges of hypocrisy have surfaced in the present given that an inspector general's report from 2012 - while Clinton was secretary - repeatedly cited Ambassador to Kenya Scott Gration's use of "commercial email for official government business" saying it was against policy to do so "except in emergencies," which created morale problems, "confusion and discouragement within the embassy community. At the time, Clinton was using her own personal email account to conduct official business."

2008

Much of the mystery surrounding Clinton’s emails came from the fact that an IP address associated with the clintonemail.com domain she is believed to have used was registered to a person named Eric Hoteham on Feb. 1, 2008. No public records matching that individual can be found and it is possible that it was simply a misspelling of the name Eric Hothem, a former aide to Clinton while she was first lady. The IP address for clintonemail.com, along with others registered in Hoteham’s name, are all connected to the Clinton’s address in Chappaqua, New York.

2009

Justin Cooper, a longtime aide to former President Bill Clinton, registered the clintonemail.com domain on Jan. 13, a little more than a week before Hillary Clinton took office as secretary of state on Jan. 21. This was also a year when another rule went into place regarding the use of private email. According to the U.S. Code of Federal Regulations in 2009, if an agency allows its employees to use a personal email account, it must ensure that the emails are “preserved in the appropriate agency recordkeeping system.”

Questions remain about what the National Archives considers an “appropriate agency recordkeeping system” and if they believe Clinton, who did not hand over any emails until last year, was in compliance with it.

2012

As mentioned above, in a 2012 report by the Office of the Inspector General, then-Ambassador to Kenya, Scott Gration, was reprimanded for using private email and other issues. The report suggested his "use of commercial email for official government business" amounted to a failure to "adhere to department regulations and government information security standards."

2013

Clinton stepped down from the State Department on Feb. 1.

Later that year, the National Archives updated their guidelines to say that agency employees should generally only use personal email accounts in “emergency situations.” If an employee does use a personal account, all of the emails must be preserved in “accordance with agency recordkeeping practices.”

2014

President Obama signed the Federal Records Act into law in late November, requiring the head of each agency to "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency."

The realization that Clinton’s emails were not recorded at the State Department appears to have surfaced in two steps. According to the New York Times, first, the Congressional Committee investigating the Benghazi attack asked the State Department for all relevant emails. Second, that prompted the State Department to ask Clinton to turn over all of her non-personal emails from her time as secretary. She handed over 55,000 pages of emails late in 2014. The State Department also asked other former secretaries of state to turn over their government-related emails for preservation.

2015

 The New York Times reports that, in mid-February, Clinton handed over more than 300 emails to the House committee investigating the Benghazi, Libya consulate attack. Clinton’s use of a private email address did not become public knowledge until the New York Times reported on it Tuesday, March 3.  After growing pressure, Clinton asked the State Department to release all her emails.

I hope the ABC Timeline and brief commentary are as helpful to you as they have been to me in sorting out the circumstances of this political football. What follows now are some of my comments on this situation.

1). The fact that Hillary had a private email account from which she sent emails containing official business is not uncommon among private or public executives and managers. Part of the reason for public workers to have such accounts may extend to the fact that the government is often 'behind the times' as far as being equipped with up-to-date technology or with the restrictions that need to accompany it. But in Hillary's case, it sounds from her own 2008 comments that she had a particular interest in privatizing her emails - she was weary and wary of those who had made things difficult for her in the past by distorting information they had gotten in emails or other documents.

2).  The most we can say about Hillary's actions at this point would be to say that she may have been out of compliance with a 2005 rule in a department of State Manual that essentially suggested (or perhaps encouraged) state employees to use a federal government-issued account for emails having to do with government business. Indeed, she may still remain out-of-compliance with that 2005 rule and with the Federal Records Act of 2014.

However, this chatter about emails being hidden or kept back from the government is nothing more than speculation. There is no evidence that such has actually taken place -- no one knows yet. CNN reported on this by saying: "Clinton's use of private email was never hidden from anyone, according to a former State Department official. The former secretary of state sent thousands of employees messages from that account and in her four plus years at the State Department, nobody raised a red flag to say that she couldn't conduct her email communication in the manner she was conducting it, the former official adds."

"There were no big internal discussions among State Department lawyers, either, about Clinton's use of private email. The former official said it was simply accepted as her form of communication.

Clinton's exclusive use of a private email system has quickly ballooned this week into a controversy for the presumed Democratic frontrunner for president in 2016. Experts have said it doesn't appear Clinton violated federal laws, but that hasn't stemmed the issue that has become more about bad politics.

3).  Hillary may have been out of compliance with a state department rule, but she was not disobeying any law in existence before she retired Feb. 1, 2013. For one reason, Congress rarely makes laws before facts, circumstances and events require their promulgation. Rather, Congress is most always playing catch-up as far as technology is concerned. They haven't even supplied some departments with appropriate and reliable computer systems, let alone legal guidance on what constitutes illegal use. President Obama signed that Records Law about at home or private email systems two years after Hillary was using her private email system.

4).  OK. Let's grant that Hillary may have been "wrong" in terms of using "poor judgment," just from the point of view that she may have transmitted some sensitive state department information (although just how "sensitive" has not been determined). What was her "intent" behind doing so? Did she want or intend for other countries to have our secrets? Was she intent on causing some disruption or harm to our government? Is she simply an evil person? All of these opinions are from Right-wing attempts (lacking any evidence) to make it seem as though she has done a wrong in the sense of something illegal.  However, they fail to prove "intent;" they fail to cite laws broken; they fail to measure any "motive". They can't even point to any harm that has actually been done to anyone because of a personal email from Hillary.

They are very simply inventing the Big Lie - so they can tell it over and over again, as they have done with our current President who was never a Muslim, not born anywhere else than in this country, and who hasn't done one thing to actually advance socialism in this country (remember: socialism means government control of all aspects of production and distribution where nothing remains in private for-profit hands). The charge that Obamacare is socialistic when it promotes the use of private companies as vendors is patently ridiculous!

 So please - can anyone on the Right-wing tell us one example of an email sent from Hillary's private system that resulted in harm coming to this country or to any individual in this country? that resulted in a takeover of government secrets? that allowed any other country to thwart efforts by this country to keep our population safe? or, that harmed another country? Just one example will do. 

There's an old sports saying that applies here: No Harm, No Foul. If you can't prove a motive or intent to harm, or actual harm, you have no criminal case against Hillary, or Condoleezza or Madelyn -- all of whom used similar private email systems in addition to their government-assigned email accounts.

In the meantime, Fox News has pulled in one judge who has supposedly explained the charges the former-Secretary of State faces for her 'serious breach of the law and her responsibility.'

Question asked on Fox News:
What are the potential consequences for Hillary Clinton for using a personal email account during her time as secretary of state?
Judge Andrew Napolitano sat down with Martha MacCallum to go over the two potential criminal investigations that the former First Lady could face.

1. The less serious possibility is an investigation similar to what was brought against Gen. David Petraeus, who pleaded guilty this week for keeping classified documents in an unsecured location. The judge explained that in Mrs. Clinton’s case, she kept classified secrets on a home server that was not secured by the government. Napolitano said there’s no way Clinton did not have classified material on her home server, since she held the same security clearance as the president. That would only be a misdemeanor charge, however. Sorry Judge -- that's pure speculation on your part and it's unacceptable in most courts -- probably even in yours!
2. Napolitano said the far more serious charge would be a conspiracy to “conceal documents from government computers,” which carries a penalty of three years in jail per document. A conviction on that charge would disqualify her from holding public office again.

The situation seems perfectly clear. With the help of Judge Napolitano, Fox News will now feel emboldened to unleash an assault on Hillary claiming a conspiracy with Eric 'Hoteham' and aide Justin Cooper to conceal sensitive documents from government computers. That's right -- if you can't label something as a scandal than make sure to call it a conspiracy!  The invented unproven conspiracy, in case you haven't noticed, dear reader, is what Fox News thrives on!

CNN concludes: "The questions around Clinton's email use have captivated political watchers over the last week and allowed Republicans to cast Clinton in a similar way they did her husband, former President Bill Clinton: As a secretive politician pushing the boundaries of rules and regulations."

5).  The Right-wing is simply out to paint Hillary as some kind of cheater or traitor or lawbreaker. It's their biggest opportunity yet to tarnish her before she declares her candidacy, and that's exactly what this is all about. Maybe it started with journalists and not as a Republican plan. But, you can't tell me that journalists are starting this story without someone feeding them information. Of course they won't say who those people are because they are protected by law. Interesting that constitutional rights of free speech and free press protect reporters and informants from having to be up-front with the People about sources, factual vs. manufactured information, and their own motive or intent. Wow! we actually protect people who smear other people - or who attempt to ruin others' reputations -- from being held accountable for their questionable claims, their lack of facts, and their intent. So, contrary to present law, it appears you can holler FIRE! in a crowded theater, or you can imply wrong-doing where there is none without fear of legal reprisal! Fox News and Congress do it all the time.

6).  And, speaking of Congress.... Why don't we call for an investigation of their use of private email systems to conduct business? How many personal mobile phones are being used by congresspersons for government purposes? And turning that around a bit: how many government-issued phones are being used for personal purposes?

Let's not stop there: how many congress members are using government-issued supplies and equipment in their own homes or for personal use on the road?

Oh - and let's not forget the end game -- how many congress persons make off with government equipment and supplies at the end of their tenure? This could go on forever: how many congress persons use civil servants (office staff and others) to do their personal errands and chores for them? How many congress persons use government-contracted drivers or cars to conduct personal business? Shall we go on? how many of our elected legislators are using insider information to feather their personal investment nests? How many congress persons are (behind the scenes) using their influence to get contracts for local constituents ostensibly to improve local business, but who also use such contracts to enhance a relative's business, a friend's business, a business in which that esteemed congress person either has an interest or into which he or she will be hired once they leave office?

If Congress is going to investigate Hillary's phone use, should not Congress first have to show that its members eschew that very behavior? Or, put another way: is Congress worthy of investigating anyone else unless it first investigates itself?

Every time Fox News or a Right-wing candidate or proponent accuses someone else of some malfeasance, misdemeanor, or unlawful act, my antennae go up. Can he or she pass the smell test: is he or she free of transgression of the same sort? How can they continue to point out the speck in another's eye when there is a moat in theirs?

Hillary has done nothing morally wrong or unlawful as far as we know. She may have used poor judgment. She may have done something that government might want to circumscribe with clearer restrictions. But Congress needs to do its job and ask: what legislation can we pass -- after debate and due consideration - that will speak to the broad issue of using government-issued technology for personal uses or gain; and what legislation is needed to restrict the personal system transmission of official emails that might compromise government operations or secrets?

On the other hand, I personally don't want legislation that limits my use of email or of technology, and we need to caution against an over-restriction on government officials as well. Therein lies the rub. How do you trust Right-wing legislators to be liberal on the question of restrictions and constraints when they want us to know how ultra-restrictive they can be on abortion, marriage, the internet, immigration, and healthcare, to name just a very few!!!!!!

Funny, isn't it -- you just can't trust the current batch of radical Right-wing legislators to do much of anything that demonstrates responsible governing. They would rather lie about a government official and damage her reputation when they cannot prove that there is any malfeasance at all. They are much like John Boehner who wanted to sue the President for malfeasance, but knew he had no standing before an actual Court because he had no proof that harm had actually come to anyone because of the actions the President had taken. No standing is the perfect way to describe these Right-wing zealots -- they thrive on the Big Lie, the blocking of needed legislation like immigration reform. They delay on funding necessary operations like the Department of Homeland Security, threatening to shut-down the government, and they make lame excuses about not being able to show up at a national event to commemorate a turning point in American history - the March from Selma to Montgomery.

They have no honor! Keep focused on getting rid of them in 2016!