The E-Mails Issue — Five Undisputed Facts

by Lanny Davis – 6/1/16
With all the hours of punditry and tens of thousands of words written about Hillary Clinton’s emails by the political press corps, it is amazing that the whole episode can be boiled down to five undisputed facts.

First, the former secretary of State did nothing illegal by having a private email system. The department’s Office of Inspector General (OIG) pointed to “policies” that were violated but cited no laws that were violated, and said these policies were inconsistently applied and need to be further clarified in the future.

Second, Clinton was not trying to hide her use of her private own email address. In fact, 90 percent of all the emails she sent went to State Department employees with a state.gov email address, which she thought — mistakenly — would be automatically preserved on the department’s email server. How could she be seeking to hide her use of a private email address if she sent her private email to so many people at State?

Third, no email received or sent by Clinton was labeled at any level of classification. Multiple references in the media and in the rightwing blogosphere to Clinton emails containing “classified” information all refer to post-facto opinions — what could be accurately called classification by hindsight. State Department experts disagreed with many of those opinions.

Fourth, according to the OIG, there is no evidence that Clinton’s private server handling her emails was ever successfully hacked. In other words, all the dire and dark warnings from partisan Republicans about the secretary of State risking the nation’s security by using a private server are, in fact, all speculation — based on no facts whatsoever.

Fifth, as pointed out by the inspector general, there was ample precedent for the use of private emails for official and private business, from Colin Powell to senior aides for Condoleezza Rice. https://www.rt.com/usa/331362-classified-emails-secretaries-powell-rice/

But oh, say Clinton’s critics, Powell didn’t have a private server. True. But, as my favorite law school professor, Guido Calabresi, used to say, “that is a distinction without a difference.” Powell did depend on AOL’s server — outside of the State Department — for all his official and personal emails. And there is no evidence that the AOL server was more secure than Clinton’s.

So isn’t Hillary Clinton being held to a double standard? I’m shocked, shocked.

Meanwhile, had Clinton used the State Department server rather than her private one, as her critics say she should have done, is there evidence that her emails would have been more secure? To the contrary: We know that Russian hackers raided the State Department server files. http://www.cnn.com/2015/03/10/politics/state-department-hack-worst-ever/index.html

And we know that the server of the Office of Personnel Management was hacked, compromising the sensitive personal data of millions of federal employees, as were servers of other federal facilities, including those used by the White House.

Finally, what about the FBI investigation into the “mishandling” of classified information? I have nothing but respect for the FBI and its director, James Comey. They will investigate the facts free from political influence or interference and make recommendations to the professional prosecutors in the Justice Department. Only the latter have the authority to determine whether any prosecutions should occur.

I have no doubt, as an attorney who has read many expert legal analyses in the area of handling classified information, that neither Clinton nor Powell violated any criminal laws when they sent and received both official and personal business emails through a non-governmental server. Period.

As you watch Republican partisans and Donald Trump engaging in wishful thinking and speculating on TV that Clinton may have committed a crime when she passed along her emails to others, you know what they are up to: pure, naked partisan politics. But what is the mainstream media’s excuse?

Since last year, Clinton has said her use of a personal email server was a mistake and she has taken responsibility for that mistake. As her campaign chairman, John Podesta, wrote on May 28, “What she thought would be a convenient way to communicate with family, friends and colleagues — by using one email account for both her work related and personal emails — has turned out to be anything but convenient. If she could go back, she’d do it differently.”

Given the undisputed facts we know about her use of private emails —nothing was illegal, nothing was hidden, nothing was labeled classified, there was no evidence of hacking and there’s ample precedent — we can see why most people polled and about eight of 10 Democrats agree with Bernie Sanders when he said: “People are sick of hearing about Clinton’s damn emails.”

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Mr. Davis is a weekly columnist for The Hill newspaper, writing under the name, “Purple Nation.” This column appears first and weekly in The Hill and the Hill.com.

Davis served as special counsel to former President Clinton and is cofounder of the new law firm of “Davis Goldberg & Galper PLLC”, and cofounder of the new public relations firm “Trident DMG”. He is the author of a recently published book, Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life (Threshold Editions/Simon and Schuster).

To read the column on The Hill, click here.