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“No Crime And No Security Breach”: Clinton Emails Continue To Be Non-Scandal, Disappointing Republicans

While we were all busy laughing about how insecure Donald Trump is about the size of his manhood, the New York Times released this story, the latest development in the case of Hillary Clinton’s emails:

A former aide to Hillary Clinton has turned over to the F.B.I. computer security logs from Mrs. Clinton’s private server, records that showed no evidence of foreign hacking, according to people close to a federal investigation into Mrs. Clinton’s emails.

The security logs bolster Mrs. Clinton’s assertion that her use of a personal email account to conduct State Department business while she was the secretary of state did not put American secrets into the hands of hackers or foreign governments.

The former aide, Bryan Pagliano, began cooperating with federal agents last fall, according to interviews with a federal law enforcement official and others close to the case. Mr. Pagliano described how he set up the server in Mrs. Clinton’s home in Chappaqua, N.Y., and according to two of the people, he provided agents the security logs.

What does this tell us? Although it’s possible there will be some future discovery, it appears that whether Clinton’s emails were vulnerable to hacking or not, they weren’t actually hacked. That’s good news! The closest thing they’ve found is some attempts at phishing scams, which means that Clinton’s email is just like every other email address on earth.

So here’s what we know at this point, put as succinctly as I can:

  1. Clinton set up a personal email account and used it for work. Even though previous Secretaries of State did the same thing, and even though thousands of people in government use personal emails for work, she still shouldn’t have done it. She may have violated department policies, but there’s no evidence she broke any laws.
  2. Clinton has said it was a mistake and apologized for it.
  3. There were concerns that her email server could have been vulnerable to hacking from a foreign power. But it does not appear to have been hacked.
  4. None of the work-related emails she sent and received were marked classified at the time. However, some 200 of them were retroactively classified. This is now the subject of a spat between the State Department and the intelligence community, which classifies many things that people elsewhere in the government think are absurd to classify.
  5. For Clinton to be charged with mishandling classified information, she would have had to knowingly passed such information to someone not authorized to have it — like David Petraeus showing classified documents to his mistress — or acted with such gross negligence that people without authorization were bound to see it. According to what we know, neither of those things happened.
  6. The FBI is investigating the matter, but has said that Clinton herself is not a target of that investigation, meaning that they don’t suspect that she committed any crime.
  7. That former aide, Bryan Pagliano, has been granted immunity by the Justice Department and is working with them as they complete their investigation, which will probably conclude this spring.

Now let’s be honest. When this story broke, Republicans were desperately hoping that we would learn that some criminal wrongdoing or catastrophic security breach had taken place, so they could then use that against Clinton in her run for the White House. But that turns out not to be the case. So the next best thing from their perspective is that there’s some vaguely-defined “scandal” that the public doesn’t really understand, but that voters will hold against her if you just repeat the words “Clinton email scandal” often enough.

They may have gotten that. I’ve certainly seen plenty of voters quoted in press accounts saying some version of, “I don’t trust Clinton, ’cause you know, that email thing.” I’m sure 99 percent of them couldn’t tell you what they think Clinton actually did that’s so awful, but they know that there was something about emails, and it was, like, a scandal, right?

In recent weeks, I’ve had a couple of liberal friends and relatives ask me, with something approaching panic, “I just heard that Clinton is about to be indicted. Is that true?!?” The answer is no, but they heard that because it’s something conservatives say constantly. Tune to to talk radio or surf through conservative web sites, and before long you’ll hear someone say that the Clinton indictment is coming any day now. Donald Trump, with his characteristically tenuous relationship to reality, frequently says that she’s about to be indicted or that she won’t be permitted to run for president because she’ll be on trial. It hasn’t happened and it won’t happen, but that isn’t going to stop them from saying it.

Finally, there’s a phrase you should watch out for when you see this issue discussed: “Drip, drip, drip.” Sometimes it’ll be a Republican partisan using it, but more often it will be some pundit explaining why the issue is important. What “drip, drip drip” means is that despite the fact that there was no crime and no security breach, the media will keep discussing the story as the investigations continue, and that will cause political difficulty for Clinton. “Drip, drip, drip” is this controversy’s version of, “it’s out there,” meaning, “there isn’t anything scandalous about the substance of this matter, but here’s how we’ll justify talking about it as though it actually were something scandalous.”

I don’t say that to justify Clinton’s original decision to set up the private server. She shouldn’t have done that, not only because it was against department policy, but also because she should have been extra careful, knowing her history, to make sure she minded her Ps and Qs on everything like this. She should have known that once she started running for president there were going to be FOIA requests and lawsuits and investigations of everything she did as Secretary of State. So yes, that was an error in judgment. But it wasn’t a crime — and it appears that no bad consequences for the country came of it — so we shouldn’t treat it like it was.


By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, March 4, 2016

March 6, 2016 Posted by | Clinton Emails, Donald Trump, Hillary Clinton | , , , , , , , | Leave a comment

“Just Secede Already!”: Texas Asks Court To Nuke The Voting Rights Act, Forever

When the Supreme Court dismantled a key provision of the Voting Rights Act last June, there were two small silver linings in this decision. The first was the possibility that Congress could revive the regime killed by the Court, where states with particularly poor records of racialized voter suppression must “preclear” their voting practices with the Justice Department or a federal court before those practices can take effect. The second potential silver lining is Section 3 of the Voting Rights Act, which allows a state to be brought back under the preclearance requirement if a court finds that it engaged in “violations of the fourteenth or fifteenth amendment justifying equitable relief.”

Now, however, Texas wants to destroy these two silver linings as well. And there is a fair chance that the conservative Supreme Court will allow them to do so.

Late last month, the Justice Department joined a Section 3 lawsuit claiming that federal supervision of Texas’ election practices should be reinstated in light of very recent examples of intentional race discrimination by Texas. Among other things, a federal court found that Texas “consciously replaced many of [a] district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district’s] Anglo citizens.” These, the Justice Department explained, were “violations of the fourteenth or fifteenth amendment” justifying federal supervision.

Texas’ response to the Justice Department does not simply reject the idea that it should be subject to preclearance, it calls upon the courts to declare virtually any preclearance regime unconstitutional. According to Texas, the Supreme Court’s decision hobbling the Voting Rights Act “threw out Congress’s reauthorization of a preclearance regime because the legislative record failed to show ‘anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.’” In other words, Texas wants a federal court order saying that any effort to reinstate the Voting Rights Act in Texas is unconstitutional unless Texas transforms into Mississippi at the height of the Jim Crow era.

And they may very well succeed in getting this order. While Texas’ theory cannot be squared with the text of the Fifteenth Amendment — which provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and gives Congress “power to enforce this article by appropriate legislation” — it is not that hard to square with the Supreme Court’s recent decision. Chief Justice John Roberts’ opinion does indeed contain language suggesting that only something “approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965″ can permit a preclearance regime now. The fact that this language flies in the face of the Constitution is not likely to bother the five conservative justices who already signed onto it once.

As a final act of chutzpah, Texas also claims that it cannot be subject to preclearance because “Hispanic citizens in Texas registered to vote at higher rates” than Hispanics in other states not subject to federal supervision under the Voting Rights Act. That very well be true, but it’s also besides the point. The thrust of the Justice Department’s lawsuit is that Texas intentionally drew its district lines so that white votes would count more and Hispanic votes would count less. In other words, the whole purpose of these lines was to make sure that it didn’t matter if Hispanic voters registered at high rates because their voting power would still be diluted by gerrymandering. It’s like a basketball referee claiming that it doesn’t matter that he’s not counting all the points scored by one team because that team is taking more shots.


By: Ian Millhiser, Think Progress, August 9, 2013

August 10, 2013 Posted by | Voting Rights Act | , , , , , , , , | Leave a comment

“A Massive Media Deflection”: There Is No Scandal in Tracking Down Leaks

In the middle of the other “scandals,” i.e. Benghazi and the Internal Revenue Service, that the Obama Administration has to deal with – and which may change the general direction of politics in America at the next general election – there is also the Department of Justice going after the Associated Press in a criminal investigation into leaks of classified information.

The real “news” for us on this last one is that it is no scandal, even though the media are spinning it that way.

Why? Simple: They want to continue getting – from “leakers” inside government – classified information and then publishing it. To them,  it’s just another “hot story,” while for the people actually involved in the situation, it may mean risking their lives or the failure of an operation that could jeopardize our national security. In short, it sells us all out.

This is also why, in our Constitutional form of government, there is absolutely no right or protection for anyone to publish national security information – and “anyone” includes the media and press. Not only that, let’s say that a classified document is stolen or taken from an authorized government facility and given to a reporter. In this situation, the government clearly has the right – and even the obligation – to investigate the disappearance of the document and retrieve it by any legal means. This includes getting warrants for telephone records, wiretaps and even carrying out physical searches. And this same logic applies in the digital world.

Is it “legal” for the Justice Department to go after the AP as part of a criminal investigation into the loss or unauthorized disclosure of classified information? Absolutely, and the suggestion of a “scandal” is a massive deflection by the media. Again, the First Amendment simply does not “allow” the publication of national security information – never has, never will.

For some international perspective: We may be the only democracy in the world not to have what is called an “official secrets act,” a law that makes it a crime to publish national security information. This explains why we rarely – if ever – see similar situations arise, for example, in Canada, the United Kingdom or most other European countries. In these countries, their media simply do not – under penalty of criminal law – publish their classified information, much less actively seek it out, as they do here.

Do we need such a law here? Again, it is simply impossible to get an objective discussion of this question because of the emotional “freedom of the press” arguments, which begin from the false premise that there is somehow a constitutional right to publish government secrets. There is no such “right.”

On the other hand, does the government classify way too much information and keep it classified way too long? Yes. However, this problem has been addressed and readdressed over the years by rules that limit the number of “classification authorities,” by periodic reviews of classified information and by limitations on the number of years information can be classified. Of course, because of the immense damage some information could cause if it were released, there have to be exceptions – but this is the very nature of national security related information.

Ultimately, it is the president, as commander in chief, who is responsible for establishing, protecting and eventually releasing this kind of information – not the media.

Accordingly, when I was bi-partisan General Counsel to the Senate Select Committee on Intelligence (SSCI), I drafted this rather innocuous provision for inclusion in the fiscal 2001 Intelligence Authorization Act:

Whoever, being an officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information, knowingly and willfully discloses, or attempts to disclose, any classified information acquired as a result of such person’s authorized access to classified information to a person (other than an officer or employee of the United States) who is not authorized access to such classified information, knowing that the person is not authorized access to such classified information, shall be fined under this title, imprisoned not more than three years, or both.

Was there “method to my madness”? Sure, however, it was also surprisingly easy for me to get bipartisan agreement to the language in both Houses of Congress – and also agreement from the White House in a “SAP,” a “Statement of Administration Policy.” And, after all, who could possibly disagree with it? It was “motherhood and apple pie,” as they say in Washington. I held my breath.

Then some media lobbyist must have actually read the legislation and the whole media industry came unglued and went to “general quarters” to defeat actual enactment of the law. So, notwithstanding that the law had already passed both Houses of Congress with bipartisan support, they got to Bill Clinton with an enormous and personal effort: And, Clinton vetoed the law in his final days as president.

At least the Washington Post – one of the world class publishers in this country, along with the New York Times, of leaked U.S. classified information – showed  its “true colors” in this vapid editorial about the legislation:

“We don’t pretend to be neutral on this subject. Newspapers publish leaked material; our reporters solicit leaks. And some of the leaked material we publish is classified. But it is a mistake to imagine that all leaks of classified information are bad.” Editorial, The Washington Post, Aug. 24, 2001

I don’t know about you, but I don’t want any newspaper editor deciding whether to declassify presumptively sensitive national security information – they simply have no business doing it, regardless of how “hot” the story is or how well connected their “leaker” source is.

Hopefully, it’s this sad fact of political life in Washington that has the Obama Administration actively going after classified “leakers” – more than any administration has ever done. But far more effective would be some form of an “official secrets act” to better protect our nation.

Stated simply: It should be against the law to publish national security secrets – the First Amendment does not protect such irresponsible “journalism,” no matter how salacious the story might be. And, in this respect, we should be no different than our Canadian or British friends – no one there dares publish their national security secrets and no one here should dare publish ours.


By: Daniel J. Gallington, U. S. News and World Report, May 20, 2013

May 22, 2013 Posted by | Media, Press | , , , , , , , | Leave a comment

“Pick A Narrative And Go With It”: Lazy, Incoherent And Contradictory Political Media Critiques

Regular readers may recall that I’ve long been fascinated by the trouble President Obama’s detractors have had with understanding what it is about him they dislike. The result is a series of rhetorical attacks that are incoherent and contradictory.

He’s a ruthless Chicago thug and a “wuss.” He’s a bystander who goes golfing too much and an activist president who engages too much. He’s sticking to the Bush/Cheney script on national security and he’s putting us at risk by abandoning the Bush/Cheney national security agenda. He’s cutting cherished entitlement programs like Medicare and he refuses to cut entitlement programs like Medicare. He’s waging a class war against the rich and he’s coddling millionaires.

This week, as much of the political world tries to stick to the dubious line that the White House is engulfed in scandals, we’re seeing the same phenomenon once more. Greg Sargent makes a nice catch this afternoon:

One current storyline has it that all of these stories could converge to create a sense that Obama’s embrace of government activism has shaded into Nixonian abuses of power — revealing that Obama personally harbors a far more intrusive, overbearing, and even sinister approach to governing than he previously let on.

But another current storyline has it that the White House’s pushback on these scandals — the claims of a firewall between the Justice Department and the White House, the assertions of no connection to the IRS abuses — reveal a president who is weak and unable to control the government he presides over.

Good point. Just today, the Washington Post reports that the recent uproars “add evidence” to detractors’ claims that President Obama is a power-hungry leader who “has not acted within the constraints of the Constitution.” And also today, the New York Times reports that the controversies that have captured the Beltway’s attention present President Obama as a helpless “onlooker” who seems unable to “use his office.”

Greg added, “Obviously, these narratives can’t both be true at once. The scandals can’t demonstrate that Obama’s true dictatorial streak has finally been revealed while simultaneously supporting the idea that they’ve shown him to be too weak to control a government that has run amok.”

Ordinarily, I give the “pick a narrative and go with it” advice to the president’s Republican detractors, but in this case, it seems more appropriate to remind pundits and the political media establishment that their own preconceived narratives are just as contradictory.

Indeed, in this case, the critiques are especially incoherent since the so-called “scandals” generating so much chatter about “a White House in crisis” don’t actually relate much to the White House. None of the stories — Benghazi, the IRS, AP subpoenas — points to a tyrannical dictator or a hapless onlooker.

To connect three disparate stories of varying degrees of legitimacy and importance into a mega-scandal is lazy. So, too, is the embrace of competing narratives that cancel each other out.


By: Steve Benen, The Maddow Blog, May 16, 2013

May 20, 2013 Posted by | Media, Politics | , , , , , , , | Leave a comment

“Scandalous vs. Scandal Lust”: Chasing Smoke And Finding Little Fire

I have watched in recent days as a parade of conservatives have used specific and real governmental missteps to justify their wide-ranging paranoia and irrational hostilities. “Aha!”

You have to take their glee in sorrow with a grain of salt. For them this is more about their scandal lust than what’s scandalous. These people have been searching for a scandal — Kenyan birth certificates and a Michelle Obama “whitey” tape — for years. The fact that they now have something solid and not made of sand is going to make sad souls happy. That’s to be expected.

What’s not to be expected — but has become depressingly predictable — is to watch liberals rending their garments and gnashing their teeth in woe-is-us doom chanting. The overreaction is exhausting and embarrassing.

Let’s say what this confluence of missteps is and what it is not — at least as the evidence now suggests.

First, the three issues — Benghazi, the targeting of conservative groups by the I.R.S. and the Department of Justice’s monitoring of Associated Press journalists — appear to be completely unrelated, try as politicians and pundits may to connect them. Second, the president does not appear to have had any direct involvement in any of the episodes. Third, their weight and resonances differ greatly, although all could be diminished by their emerging concurrently.

At this point, this is about flaws of procedures — some possibly illegal, all very disturbing — and problems of perception. But they are neither fatal nor unfixable.

Now, let’s separate the well-worn Benghazi witch hunt from the other two. From all appearances that is just a callous use of a tragic event to take a political slap at President Obama and a stab at the likely Democratic presidential heavyweight Hillary Clinton. It is being conducted by hyperpartisan politicians and aggravated by Fox News, both with a stake in justifying their unjustifiable contempt for this Democratic administration, and foiling the next one.

But Americans appear to be tiring of all that chasing of smoke and little finding of fire.

According to a Pew Research Center poll issued this week, the percentage of Americans closely following the Benghazi news has continued to fall. Less than half of the respondents believe that the Obama administration has been dishonest, while almost as many say that the Republicans have gone too far in the hearings. At least one in five don’t know either way.

According to the Pew Poll:

“About half (56 percent) of Republicans and Republican-leaning independents say they regularly watch the Fox News channel, and this group is particularly frustrated over the Benghazi situation. Fully 79 percent of Republicans who regularly watch Fox News say the Obama administration has been dishonest, compared with 60 percent of Republicans who don’t watch Fox regularly. Nearly half (46 percent) of Republicans who regularly watch Fox News say they are following the story very closely — compared with 23 percent among other Republicans. Those who regularly watch Fox News are also far more critical of the news media: 59 percent say the hearings have not received sufficient coverage by the news media.”

On the I.R.S. scandal, however, it certainly appears that the agency behaved stupidly. Not because they sought to scrutinize the mockery that is these 501(c)4 “social welfare” groups, but because they did so unevenly. But what will be left after all the hue and cry? As the Notre Dame law professor Lloyd Mayer told the Christian Science Monitor this week:

“What has been missed in the outrage is the recognition that this problem arose from much deeper sources than the poor judgment or possible partisan bias of a handful of I.R.S. employees.”

He continued:

“Congress has given the I.R.S. the difficult task of applying an incredibly vague definition of political activity and an uncertain standard for how much political activity tax-exempt social welfare organizations may engage in.”

That, in the end, is the real scandal.

And now to the Associated Press scandal. The Justice Department was just wrong in the employ of its dragnet, and the administration — as represented by a spokesman, Jay Carney — was disingenuous in its insistence that the administration supports “unfettered” journalism. It just doesn’t. But we’ve always known that, at least we in the media have. The scandal here is that an atmosphere of intolerance for leaks — which Republicans ironically accused the Obama administration of encouraging — seems to have overtaken the Justice Department.

On Wednesday the White House took steps to mitigate the damage, releasing more than 100 pages of Benghazi talking point e-mails, seeking to revive a shield law for reporters who refused to disclose confidential sources, and having the president himself deliver a statement on the I.R.S. In it he announced the resignation of the acting commissioner of the agency, the implementation of new safeguards and a pledge to work with Congress in investigating the matter. As the president said, “The good news is that it’s fixable.”  And, it is.

That’s it — the gist of all three as far as we know at this point. These are not administration-enders. People can be punished, or fired or even jailed, if Speaker John Boehner has his way, but at this early stage signs are not pointing to any of those people being in the White House.

Even if I had hair, I wouldn’t be setting it on fire, not yet anyway.

By: Charles M. Blow, Op-Ed Columnist, The New York Times, May 15, 2013

May 18, 2013 Posted by | Politics | , , , , , , , , | Leave a comment

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