Nothing to See Here

Hillary Email ‘Scandal’? Not So Fast

A NYT report says Clinton may have violated federal regulations by using private email for government business. But those rules weren’t in place when she’s alleged to have broken them.

03.03.15 5:47 PM ET

It looks bad for Hillary Clinton—again. This New York Times story alleging that she might have violated federal rules by using a personal email account instead of an official government one for her communications seems to raise all the old questions about Clintonian corner-cutting and is sure to make Democrats flail their arms and cry, “Oh God, this again?”

But let’s hold on a second. A close reading of the Times piece reveals one potential big hole in the case. I’m not saying the Times is wrong here. It’s still a foggy situation. I am, however, saying this: You have to know how to read these things, and if you do know how to read them, there’s a big question here that could—potentially—exonerate Clinton to some or maybe even a considerable extent.

The article says that there were “new” regulations that Clinton was supposed to abide by. It notes that one past secretary of state, Colin Powell, who served from 2001 to 2005, sometimes used his personal email account “before the new regulations went into effect.”

So, a key question would seem to be this: When did the new regulations go into effect? If 2007 or 2008, then Clinton would appear to be in direct violation of them, depending on what precisely they said. If later, it gets a little murkier.

Oddly, the Times article doesn’t say. It doesn’t pin the new regs down to a specific date or even year.

Now, I know enough about reporting to know how this works. If you’ve got an airtight case, then you lay it all out there. You include the date. Indeed you emphasize the date, you put it high up in your story. The fact that it’s not in there is a little fishy.

Well, this might be the explanation: The new regs apparently weren’t fully implemented by State until a year and half after Clinton left State. Here’s the timeline: Clinton left the State Department on February 1, 2013. Back in 2011, President Obama had signed a memorandum directing the update of federal records management. But the National Archives and Records Administration (NARA) didn’t issue the relevant guidance, declaring that email records of senior government officials are permanent federal records, until August 2013. Then, in September 2013, NARA issued guidance on personal email use.

A senior State Department official emailed me to say that “in October 2014, a Department-wide notice was sent out which explained each employee’s responsibilities for records management. Consistent with 2013 NARA guidance, it included instructions that generally employees should not use personal email for the transaction of government business, but that in the very limited circumstances when it is necessary, all records must be forwarded to a government account or otherwise preserved in the Department’s electronic records systems.”

So if these new regulations went into effect after she left State, then what rule did she violate, exactly? And, if this is true, why did the Times not share this rather crucial piece of information with its readers? No one could possibly argue that this fact isn’t germane to the story. It’s absolutely central to it. Why would the Times leave it out?

Here are a few other specifics surrounding this matter that the Times article doesn’t make clear. These facts are already making the rounds on the Internet:

1. Clinton was not the first Secretary to use a private email account. In fact, John Kerry is the first Secretary to use “a standard government email address,” according to The Washington Post.

2. Clinton turned over her emails to the State Department. It’s not clear whether her predecessors did the same.

3. The Times article says the “existence of Mrs. Clinton’s personal email account was discovered by a House committee investigating the attack on the American Consulate in Benghazi.” This is incorrect. Gawker reported this first, in March 2013.

4. At the time Clinton was Secretary, the Federal Records Act didn’t require federal employees to use government accounts, only to preserve records of their communications. This, Clinton seems to have done.

So what, exactly, did she do wrong here? Maybe something—I’m not saying she’s totally in the clear. She and her people still should answer the question: Why no government email address at all? What would have been the good and straightforward reason for not having one? It’s a little too early to know exactly what the facts are, and how culpable Clinton is here of any possible wrongdoing. But of course it’s not too early for people to read the Times story and start making noise about a “pattern” of Clinton behavior that this falls into.

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Maybe. But this seems like a good time to remember another pattern of behavior: namely, that of the Times. I remember clear as a bell reading that initial Jeff Gerth story on Whitewater back in March 1992. It seemed devastating. But on top of it, media and political operators hostile to the Clintons piled all sorts of phony accusations that took millions of dollars and many years to unravel. When it was all over, courts both literal and of public opinion found that the Clintons did nothing wrong on Whitewater -- except to be naïve enough to let themselves be lured into a money-losing venture by Jim McDougal.

If they had done something wrong, with all the prosecutorial firepower thrown at them by a prosecutor (Ken Starr) who clearly hated them, don’t you think they’d have been indicted? Of course they would have been. But Starr couldn’t turn anything up on Whitewater and was about to close down his investigation empty-handed until he got wind of a gal named Monica.

So that’s a pattern too. The Times, for those with short memories, has never loved the Clintons. Remember Howell Raines and his ceaseless, thundering editorials against them. And today, it smells like the Times may have been rolled by the Republican staff of the Benghazi panel. And hey, great work by them and Chairman Trey Gowdy to use the nation’s leading liberal newspaper in this way.

Clinton still has some questions to answer, two that I can think of: Why did she not take a state.gov address? And is the Times accurate in writing that “her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act”? If she can’t put forward persuasive answers to these two questions, then there may still be something here.

But the Times has some questions to answer to: Did you know that the new regs went into effect after Clinton left office? And if you didn’t, why not? And if you did, why did you leave that fact out of the story? One can imagine Clinton coming up with decent answers to her questions, but it’s kind of hard to see how the Times can.

UPDATE 3/24/15: This story has been updated to more accurately reflect what was in the original 1992 Times article about Whitewater.