Yesterday FBI Director James Comey released the report on Hillary Clinton’s use of a private email server during her time as Secretary of State. The email habits on Clinton’s staff were “extremely careless,” Comey noted, but did not reach the threshold for seeking an indictment against Clinton. As CNN reported:
Comey said of the 30,000 emails that Clinton’s team turned over to the State Department, 110 emails in 52 email chains were determined to have contained classified information “at the time they were sent or received,” Comey said. Eight of those chains contained information considered “top secret,” the highest level of classification.
That’s in addition to 2,000 emails that were “upclassified,” or determined to have classified information only in hindsight.
A complete transcript of Comey’s remarks can be found here.
Clinton-watchers know the range of possible responses to the FBI finding that the presumptive Democratic nominee hs committed no crime run an emotional gamut, as satirist Dorothy Parker once quipped, from A to B. Secretary Clinton is either innocent or she should be in jail, jail, jail. To paraphrase at least one Clinton partisan in my Facebook, a fairly well-known media professional: “She didn’t do anything! Get over it! Move on!” To quote former mayor of New York Rudolph Giulini, a former federal prosecutor, who had predicted that Secretary Clinton would be indicted, told CBS News. “No one should be above the law,” he growled. “Today Hillary Clinton was put way above the law.” Perhaps the only thing we can be certain of, as The New York Times pointed out this morning, is that good news is bad news, as it always is for the Clintons. The investigation may be over, but the stink lingers.
When Bernie Sanders said he didn’t care about Secretary Clinton’s emails, he was not only distinguishing himself from Republican critics, but also arguing that the stink of the scandal machine is an intentional diversion that keep us from acting on, or even imagining, our political future. I agree. But for just a minute, can we talk about the email?
As a political historian, what I care about most is that a trove of archival material has disappeared because thousands of communications were deleted from the multiple private servers Clinton and her staff were using; in one instance, the software was wiped, and they were unrecoverable by any means. Under the Federal Records Act and 36 CFR Chapter XII Sub-chapter B, the head of each Federal agency is charged with keeping and managing email records of the agency’s activities, and cooperating with the National Archives and Records Administration (NARA) to transmit those records to permanent storage. NARA, in turn, is responsible for managing their preservation. Section 3105 of the Federal Records Act charges the head of each agency with protecting records against “removal or loss” and “that records in the custody of the agency are not to be alienated or destroyed” except under certain very specific circumstances. Some of us may recall an earlier episode in 2007, in which the George W. Bush White House, after inadvertently crashing the Senate Judiciary Committee with 2,400 pages of emails in 2007, was forced to admit that thousands of its own emails had been lost. As Time reported on April 13, 2007:
the Bush Administration admitted that in reviewing documents requested by Democrats for their investigations, it discovered that as many as 50 of its staffers may have violated the Presidential Records Act. The staffers, the White House said, were using e-mail accounts, laptops and BlackBerries provided by the Republican National Committee for official executive branch communications rather than the exclusively political work for which they were intended. Because the RNC had a policy until 2004 of erasing all e-mails on its servers after 30 days, including those by White House staffers, and because some of those staffers may have deleted e-mails on their own, the White House said it could not assure Congress that they have not violated the PRA, which requires the retention of official White House documents. The White House officials who may have broken the law include senior adviser Karl Rove, his deputies and much of their staffs.
Let me be clear: there is no such thing as a “complete” political archive either, even in the digital age. Those of us who work with political history records, or with any archives, know that there is a certain amount of loss, some of it necessary if archives are not to be drowned in redundant and pointless records. Even when documents are preserved there is loss because of security protocols that are in place at the time the document is transferred to the public domain. As my colleagues over at History Lab have documented in detail, even when previously classified documents are released into the public domain, they can be permanently — and fatally — altered because of redaction practices. Prior to the digital age, all you had to do was take a wrong turn in the central NARA repository, and you could end up in a hall with a lot of cardboard boxes piled haphazardly on top of one another because there was no money or staff to process them.
I am fairly confident that the vast majority of State Department documents and emails that were destroyed when the Clinton servers were wiped exist elsewhere. But the emails about Secretary Clinton’s life, thoughts left unexpressed in public, intellectual process, and daily struggles are irreplaceable. It is these personal archives that allow us to write deeply textured histories about historical events and powerful public figures. As Hillary Clinton herself said last March, her errors were made in the context of following the letter of the law. Regulations permitted her to use her own email account for non-overnment business, and “in meeting the record-keeping obligations, it was my practice to email government officials on their State or other .gov accounts so that the emails were immediately captured and preserved.” In fact, like many of us, Clinton might have seen it as improper to use her state.gov account for private email. And yet, rather than have her private email available to anyone, she chose to destroy it and make a major source that might offer future insight into Hillary Clinton, the person behind the politics, permanenty unavailable . “I chose not to keep my private, personal emails,” she said; “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.”
Only someone who has never studied women’s history would think these emails were inconsequential, either to writing about Clinton herself, or to understanding her as a political figure.
Do I hold Secretary Clinton entirely responsible for this episode? Not exactly, although it appears that she dos not yet grasp that admitting error sooner rather than later would deny a certain kind of credible fuel to right-wing conspiracists. It would, however, be a step in the right direction for her to correct earlier statements that she transmitted no classified documents via personal email, which is clearly not the case, even if she believed it when she said it. What is a bigger problem, in my view, is that email security should not be a question of choice or judgment on the part of any government official, no matter how senior.
It should be clear by now that no information is entirely secure, whether it is a paper or a digital document. And yet, to the extent that there are justifications for clasifying documents, why would they be transmitted by email attachment at all? Do government official send their social security, credit card numbers and children;s cell phone numbers over email too? A better — and more secure — solution would be to provide links to a military-grade, cloud-based app similar to Dropbox, with temporary codes generated to permit access to the app within a limited time frame. These codes, in turn, would be rendered immediately invalid if transmitted over any server or email account other than the one designated by the agency. Passwords to the cloud environment could be randomly generated every day (much like military encryption codes) and deposited in digital wallets, limiting each person to their designated security level in the environment, and deposited in a digital wallet. Preservation of records and limiting the auience for those records should be a twin process
There also needs to be a cabinet-level position dedicated to ensuring that such things do not occur. Why? Because the vast majority of high-functioning professionals do not understand the basics of digital communication; and they have no idea how a tool like email, which in 2016 is critical to the functioning of every facet of our economy and political infrastructure, works. Witness the shock and outrage of much of the Harvard faculty, unaware that university email accounts are not private, when they learned in 2013 that harvard.edu email logs had been examined in the wake of a cheating scandal. Although Secretary Clinton clearly did understand that her state.gov email account should not be used for private business, she put her personal privacy above the principle that, as a public figure, records of her private life should also be preserved in the public interest. It was not against the law, and it does not make her unfit to be President.
But it was selfish.
This has been cross-posted at Public Seminar.