What do you think? He says her chances are “greatly diminished.” In a just world, sure. But in this world?
A couple tea leaves about where media coverage might head on this issue. There’s a long and good piece in Politico Magazine entitled bluntly, “Hillary’s Email Defense is Laughable,” written by a Justice Department alumnus and professed Democrat appalled by her behavior. Unlike those justifying it, he seems pretty properly horrified, for these reasons:
For anyone considering this sad tale carefully—including the media, Members of Congress and the public at large, whether from “inside the Beltway” or not—some basic points of both law and reality should be borne in mind.
First, while it is accurate for Secretary Clinton to say that when she was in office there was not a flat, categorical prohibition on federal government officials ever using their personal e-mail accounts for the conduct of official business, that’s a far different thing than saying (as she apparently would like to) that a government official could use his or her personal e-mail account exclusively, for all official e-mail communications, as she actually did. In fact, the Federal Records Act dictates otherwise.
That law, which applies to all federal agency employees who are not within the White House itself, requires the comprehensive documentation of the conduct of official business, and it has long done so by regulating the creation, maintenance, preservation and, ultimately, the disposition of agency records. And when it comes to “modern-day” e-mail communications, as compared to the paper memoranda of not so long ago, these communications now are themselves the very means of conducting official business, by definition.
To be sure, this cannot as a practical matter be absolute. When Obama Administration officials came into office in 2009, the Federal Records Act certainly allowed room for occasional use of a personal e-mail account for official business where necessary—such as when a secretary of state understandably must deal with a crisis around the world in the middle of the night while an official e-mail device might not be readily at hand. That just makes sense. But even then, in such an exceptional situation, the Federal Records Act’s documentation and preservation requirements still called upon that official (or a staff assistant) to forward any such e-mail into the State Department’s official records system, where it would have been located otherwise.
And this appears to be exactly what former Secretary of State Colin Powell did during his tenure, just as other high-level government officials may do (or are supposed to do) under such exceptional circumstances during their times in office. Notwithstanding Secretary Clinton’s sweeping claims to the contrary, there actually is no indication in any of the public discussions of this “scandal” that anyone other than she managed to do what she did (or didn’t) do as a federal official.
Second, the official availability of official e-mail communications is not just a matter of concern for purposes of the Federal Records Act only. It also makes an enormous (and highly foreseeable) difference to the proper implementation of the Freedom of Information Act (known as the “FOIA” to its friends, a group that evidently does not include Secretary Clinton). That is because the starting point for handling a FOIA request is the search that an agency must conduct for all records responsive to that request’s particular specifications. So any FOIA request that requires an agency to first locate responsive e-mail messages sent to or from that agency’s head, for instance, is necessarily dependent upon those records being locatable in the first place. And an agency simply cannot do that properly for any e-mails (let alone all such e-mails) that have been created, and are maintained, entirely beyond the agency’s reach. Or, as it sometimes is said somewhat cynically in the FOIA community, “You can’t disclose what you can’t find.”
In this case, which is truly unprecedented, no matter what Secretary Clinton would have one believe, she managed to successfully insulate her official e-mails, categorically, from the FOIA, both during her tenure at State and long after her departure from it—perhaps forever. “Nice work if you can get it,” one might say, especially if your experience during your husband’s presidency gives you good reason (nay, even highly compelling motivation) to relegate unto yourself such control if at all possible.
Third, there is the compounding fact that Secretary Clinton did not merely use a personal e-mail account, she used one that atypically operated solely through her own personal e-mail server, which she evidently had installed in her home. This meant that unlike the multitudes who use a Gmail account, for instance, she was able to keep her communications entirely “in house,” even more deeply within her personal control. No “cloud” for posterity, or chance of Google receiving a congressional subpoena, not for her. No potentially pesky “meta-data” surrounding her communications or detailed server logs to complicate things. And absolutely no practical constraint on her ability to dispose of any official e-mail of “hers,” for any reason, at any time, entirely on her own. Bluntly put, when this unique records regime was established, somebody was asleep at the switch, at either the State Department or the National Archives and Records Administration (which oversees compliance with the Federal Records Act) or both.
Clinton has been trying to move past the email controversy, which has dogged her for two weeks as she’s tried to focus on her advocacy of women and girls at various events. The 2008 presidential candidate and many of her advisors had hoped to ride out the storm until after she announced a campaign. But that proved impossible and Clinton reluctantly went before cameras to take questions from reporters on her private email server Tuesday, eight days after a New York Times report raised concerns that Clinton skirted federal record-keeping regulations.
The point of the press conference, according to Clinton advisors, was to staunch the bleeding on a political wound that was, by that point, impossible to heal outright. And despite many headlines suggesting Clinton had created as many new questions as she answered, Clinton seems to have succeeded in at least partially calming the uproar.
The arc of the story, and the affect of Clinton’s press conference Tuesday, can be seen in the changing volume of coverage devoted to Clinton over the past two weeks, which appears to have fallen after her intervention.
Hillary Clinton’s name was mentioned on average 164 times per day during the first week of the controversy on the nation’s three biggest cable news networks (MSNBC, CNN and Fox News). That was a big leap from just 52 mentions on the day before the email story appeared on the front page the Times, according to an msnbc analysis of data from the media monitoring service TV Eyes.
Remember how coverage of Gov. Chris Christie’s Bridgegate dropped off precipitously after that 100-question presser he gave after taking responsibility for the sins of his employees and firing those responsible? Yeah, me neither.
But this certainly will drip, drip, drip, even if the damage caused by the drip is not as devastating as if it were a Republican. Which means she’s not reinventing herself into a New Hillary. She is, as Krauthammer notes, the Old Hillary, with all the baggage and the corruption. That’s baked into the Clinton cake, to some extend, so I don’t know that anyone will be surprised, but there will also be people who are terribly uninspired. Despite the possible electoral college and identity wars advantages of a Hillary Clinton candidacy, she’s not a positive person with a positive message that makes people feel good about America. She’s just not. So, you’re tellin’ me there’s a chance…, said the GOP.