Sidney Blumenthal testified in a closed-door session yesterday, but the privacy didn’t last long. The longtime Clinton friend and aide told the Benghazi Select Committee that he neither wrote the e-mails containing privately-obtained intel nor did he vet them. Blumenthal later blasted the committee for the probe, attempted to spin his appearance as nothing but politics, but National Journal’s Ben Geman and Rachel Roubein write it did at least provide a better look at where Hillary Clinton got her information on Libya:
“So why was I subpoenaed at all in front of the committee? I am a longtime friend of Hillary Clinton,” Blumenthal told reporters after the daylong questioning. “It seems obvious that my appearance before this committee was for one reason and for one reason only—and that reason is politics.”
Blumenthal told reporters that the deposition did nothing to advance understanding of the 2012 attacks that killed four Americans, including Amb. Chris Stevens. “My testimony has shed no light on the events of Benghazi. Nor could it, because I have no firsthand knowledge of what happened,” he said.
However, the deposition shed new light on the detailed intelligence memos about Libya that he sent Clinton in 2011 and 2012, revealing that Blumenthal was not the author but instead was passing them along. …
But according to a source familiar with Blumenthal’s testimony, he identified the person as a former CIA official named Tyler Drumheller. Drumheller served as the top CIA official in Europe before retiring in 2005, and his name has been linked to Blumenthal’s memos in recent media reports.
Democrats on the committee were quick to echo Blumenthal’s complaints, accusing chair Trey Gowdy of using Benghazi as a pretext to score political points on Hillary Clinton. Ranking member Elijah Cummings declared that Blumenthal had provided no “smoking gun,” an insipid cliché that Gowdy belittled:
“It’s not a gun case, why would there be a smoking gun?” he said. “I don’t understand that colloquialism. Is that the only reason you talk to somebody is because you’re looking for a smoking knife or a smoking gun?
“Can you just not build a mosaic, build a record to make things as complete as possible?” Gowdy added.
All bluster from Democrats aside, the subpoena to Blumenthal actually has produced significant evidence — a “smoking gun,” if you will — that Hillary Clinton or the State Department has withheld some of her e-mails from the committee. Hillary insists that she turned over all her work-related communications from her private server, but Blumenthal’s submission under the subpoena contained 60 more e-mails than Hillary and/or State produced. They now have those e-mails, but how many more did Hillary destroy rather than have the select committee gain access to them — and why? That may not be a smoking gun, but the destruction of public records and potential evidence is considered an act that allows juries to infer a guilty conscience in trials. It’s a little more than just another stone in the mosaic.
Besides, the hearing yesterday gave evidence that Gowdy’s actually trying to minimize the sensationalism. The testimony included one brief, strange interlude involving former Oversight chair Darrell Issa:
Perhaps Issa wanted a front-row seat for Blumenthal’s testimony after spending so much time digging into Benghazi, or maybe he just was curious. The Hill’s report uses some loaded language — he “stormed” out of the room, apparently tossing a soda can in the trash with inordinate force? — for what may have been just a Gowdy-requested departure and good-willed compliance. Gowdy has worked hard to minimize the political theater of the Benghazi probe as chair of the select committee, and Blumenthal’s appearance in a closed-door session was dramatic enough.
Finally, here’s a question. If all these people were going to talk about the closed-door session in this detail after its conclusion, why close the doors at all?
Update: Spoliation is actually a lot more complex than I suggested above. Lisette Garcia of the FOIA Resource Center has e-mailed me a lengthy and informative explanation:
Spoliation is the destruction of probative evidence in a federal trial. In the context of a lawsuit it is punishable by Federal Rule of Civil Procedure 37. The judge presiding over a case must determine destruction actually took place (a mini-trial) and then is allowed to infer “consciousness of guilt,” meaning awareness that wrongdoing might have happened. (Not guilty conscience as you said.) Remember, this is in the context of a civil lawsuit, so the wrongdoing at issue is typically negligence that resulted in harm that could and should have been prevented.
The federal judiciary, with the approval of Congress, relaxed the rules governing spoliation, explaining it is too easy to destroy digital records by accident. If you can show good faith in the handling of evidence, accidental destruction based on misuse of electronic system will get you a pass under FRCP 37(e).
Meantime, none of the foregoing is about government records per se but rather about any kind of records that would tend to definitively establish the case (probative evidence). Public records, by contrast, are government property, punishable by up to 10 years in prison under 18 USC 1361. Even outside of any trial context, this law is in effect.
The only defense to destruction might be that: a) it wasn’t a public record, which is essentially what Hillary Clinton said in sorting records for herself; or b) it wasn’t the kind of public record that required preservation. So, since some records are disposable, the shelf life for others is carefully defined.
In Hillary Clinton’s case, both spoliation (in the FOIA context) AND destruction of government records (in any context) has taken place before everyone’s eyes. By printing the emails instead of transferring them to the State Department digitally, Hillary Clinton wiped not only the server but the metadata that attached to each transmission. We lost access to blind copies, drafts, redirects, warnings of malware encounters. In essence, we lost the backstory, the innards of the Benghazi bungle.
Lisette Garcia, J.D., is the founder of FOIA Resource Center, which specializes in securing prompt, affordable release of government records in the public interest without going to court.