The Misunderstandings of the Anti-Transparency Hillary-Exonerating Left

It wasn’t enough for Matt Yglesias to write a widely mocked piece calling for less transparency, now Kevin Drum has too. It all makes you wonder whether there’s some LISTERV somewhere — the successor to JOURNOLIST, from which leaked emails revealed embarrassing discussions of putting politics above principle, perhaps — where a bunch of center-left men are plotting about how to finally end the email scandal that Hillary herself instigated with a stupid decision to host her own email. Especially given this eye-popping paragraph in Drum’s piece:

Part of the reason is that Hillary Clinton is a real object lesson in how FOIA can go wrong when it’s weaponized. Another part is that liberals are the biggest fans of transparency, and seeing one of their own pilloried by it might make them take a second look at whether it’s gone off the rails. What we’ve seen with Hillary Clinton is not that she’s done anything especially wrong, but that a story can last forever if there’s a constant stream of new revelations. That’s what’s happened over the past four years. Between Benghazi committees and Judicial Watch’s anti-Hillary jihad, Clinton’s emails have been steadily dripped out practically monthly, even though there’s never been any compelling reason for it. It’s been done solely to keep her alleged corruption in the public eye.

Even setting aside that his piece generally ignores (perhaps, betrays no knowledge of) the widely-abused b5 exemption that already lets people withhold precisely the kinds of deliberations that Drum wants to kill FOIA over (and is used to withhold a lot more than that), this paragraph betrays stunning misunderstanding about the Clinton email scandal. Not least, the degree to which many of the delays have arisen from Clinton’s own actions.

It led me to go back to read this post, which engages in some cute spin and selective editing, but really gives up the game in this passage.

Oddly, the FBI never really addresses the issue of whether Hillary violated federal record retention rules. They obviously believe that she should have used a State email account for work-related business, but that’s about it. I suppose they decided it was a non-issue because Hillary did, in fact, retain all her emails and did, in fact, turn them over quickly when State requested them.

There’s also virtually no discussion of FOIA. What little there is suggests that Hillary’s only concern was that her personal emails not be subjected to FOIA simply because they were held on the same server as her work emails.

Of course the FBI never really addresses how Hillary violated the Federal Records Act. Of course the FBI never really addresses how Hillary tried to avoid FOIA. (Note too that Drum ignores that some of those “personal” emails have been found to be subject to FOIA and FRA and Congressional requests; they weren’t actually personal.)

That’s because this wasn’t an investigation into violating the Federal Records Act. As I wrote in this post summarizing Jim Comey’s testimony to Oversight and Government Reform:

The FBI investigation that ended yesterday only pertained to that referral about classified information. Indeed, over the course of the hearing, Comey revealed that it was narrowly focused, examining the behavior of only Clinton and four or five of her close aides. And it only pertained to that question about mishandling classified information. That’s what the declination was based on: Comey and others’ determination that when Hillary set up her home-brew server, she did not intend to mishandle classified information.

This caused some consternation, early on in the hearing, because Republicans familiar with Clinton aides’ sworn testimony to the committee investigating the email server and Benghazi were confused how Comey could say that Hillary was not cleared to have her own server, but aides had testified to the contrary. But Comey explained it very clearly, and repeatedly. While FBI considered the statements of Clinton aides, they did not review their sworn statements to Congress for truth.

That’s important because the committee was largely asking a different question: whether Clinton used her server to avoid oversight, Federal Record Act requirements, the Benghazi investigation, and FOIA. That’s a question the FBI did not review at all. This all became crystal clear in the last minutes of the Comey testimony.

Chaffetz: Was there any evidence of Hillary Clinton attempting to avoid compliance with the Freedom of Information Act?

Comey: That was not the subject of our criminal investigation so I can’t answer that sitting here.

Chaffetz: It’s a violation of law, is it not?

Comey: Yes, my understanding is there are civil statutes that apply to that. I don’t know of a crimin–

Chaffetz: Let’s put some boundaries on this a little bit — what you didn’t look at. You didn’t look at whether or not there was an intention or reality of non-compliance with the Freedom of Information Act.

Comey: Correct.

Having started down this path, Chaffetz basically confirms what Comey had said a number of times throughout the hearing, that FBI didn’t scrutinize the veracity of testimony to the committee because the committee did not make a perjury referral.

Chaffetz: You did not look at testimony that Hillary Clinton gave in the United States Congress, both the House and the Senate?

Comey: To see whether it was perjurious in some respect?

Chaffetz: Yes.

Comey: No we did not.


Comey: Again, I can confirm this but I don’t think we got a referral from Congressional committees, a perjury referral.

Chaffetz: No. It was the Inspector General that initiated this.

Now, let me jump to the punch and predict that OGR will refer at least Hillary’s aides, and maybe Hillary herself, to FBI for lying to Congress. They might even have merit in doing so, as Comey has already said her public claims about being permitted to have her own email (which she repeated to the committee) were not true. Plus, there’s further evidence that Hillary used her own server precisely to maintain control over them (that is, to avoid FOIA).

As I said in my earlier post, I’m loathe to admit this, because I’d really like to be done with this scandal (I’d like, even more, to come up with sensible policy proposals like fixing email and text archiving to prevent this from happening in every presidential administration). All the questions about whether Hillary chose to keep her own server to avoid oversight (or, as Chaffetz asked today, to obstruct OGR’s investigation) has never been investigated by FBI. Those requests even have more merit than Democrats are making out — in part for precisely this reason, FBI has never considered at least some evidence to support the case Hillary deliberately avoided FRA, including a string of really suspicious timing. As I wrote in my other post, I also think they won’t amount to anything, in part because these laws (including laws prohibiting lying to Congress) are so toothless. But they are a fair question.

All that said, it is incorrect to take a report showing the FBI not charging Hillary for intentionally mishandling classified information and conclude from that that hers is an example of FRA and FOIA gone amuck. On the contrary. Hillary has never been exonerated for trying to avoid FOIA and FRA. The evidence suggests it would be hard to do that.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

13 replies
  1. Phil Perspective says:

    It wasn’t enough for Matt Yglesias to write a widely mocked piece calling for less transparency, now Kevin Drum has too.

    If you want an answer about why the center-left is so ineffective, examples like this are it.

  2. David says:

    The term lack of transparency is the term the media uses when they should use the term illegal.

    This election has flushed out blogs and individuals that seem to have relationship connections. Their commentary and stories against Sanders, Trump and for Clinton seem to fly in the face what they imply or say they are.

    This not only devalues their brand but raises warnings about false flags on the net.
    These individuals have lost credibility and trust and they know it. Their long term followers will not be fooled so this has to be an activity of immense importance to blow so many covers.

  3. blueba says:

    But…but if you are anti-transparency and Hillery exonerating how can you claim simultaneously to be “left”? I guess in the a neo-fascist world anything can be redefined to suite the purpose.

    There is so much language we continue to use which no longer has the meaning it once had. Society and the politics it engages in is under existential threat at its most fundamental levels. Everything from economics to the very concept of our “freedoms” is now under suspicion and weakening something new will arise eventually probably after we are all dead and only if climate change doesn’t destroy civilization as we know it first.

    • bamage says:

      I heartily agree blueba.

      We might start by calling these eedjits what they are, “Dem partisans”, and avoiding the ideological (left/right) labels altogether. They have no principles anyway, it seems.

  4. wayoutwest says:

    Authoritarian may be an accurate description of this growing number of pundits who are selling submission to power and class but Left, if it has any real meaning today, seems inaccurate. These people and those they represent are deeply embedded in the Extreme Center represented by Clintonism and conflating them with the Left is an attack on the real Left, whatever is left of it.

    Exposure by Wikileaks of how these parasites roll along with the fragmentation of the Right caused by Trump has driven many of the worst neocons into the waiting arms of the Clintonite Center where they all are publicly displaying their Totalitarian tendencies and none of them would have anything to do with anyone or anything of the Left.

  5. JohnT says:

    This is pretty much what I’ve been on about for months
    Mini rant …
    Honestly imho, the biggest threat to democracy in this country, and for that matter, the world, isn’t Republicans (because they’re at least honest where they stand) it’s institutional establishment Democrats. Not the “left,” but Democrats
    Ppl who were/are, at the very least, in emotionally and economically functional homes. People whose parents could afford to send them to higher education, or, they had stable enough homes where they could work and go to school at the same time. People who’ve never gone hungry because they didn’t have enough money. People who’ve never had to live in their car, or on the street. People who never had to join the military for the benefits. People who’ve never had to face the indignation of having to spend an entire day in a human assistance office filling out forms for food stamps for their children, and also themselves.
    People who smugly, and arrogantly sit behind their cushy desk and call others “wackos” and “quacks” who don’t share their personal political view that incremental change is good enough for them, but in what I think the vast majority of people agree is a broken, corrupt, full of graft political process and government
    People who easily make six figures at a desk job (because, again, they grew up in a stable family) and who will never get a callous on their hands in their entire life, unless it’s by choice
    People who get in their $50,000 (or more) car or SUV, and go home to their ranch style home on the cul de sac, with the pool and jacuzzi in back, and watch some of the 5,000 cable channels on their 50 inch tv with surround sound
    Then go online to write their column, or facebook, or tweet, about how the uneducated (not unintelligent) rabble are stupid and insignificant if they don’t vote for the historic candidate
    Never mind that both major parties are bought and paid for by the multinational corporations; never mind that both candidates for both major parties say one thing during the campaigns and turn around and vote for the same failed policies over and over again; never mind that we’ve pretty much been in one long continuous war for the past 60 years, the geographic locations have changed but the objective is always to gain control of that locations natural resources for the multinationals; never mind that the ACA was nothing but the financial propping up of big pharma and the insurance co’s; never mind that this has been the warmest year on record in iirc 10,000 years and that both major parties have promoted the continued use of fossil fuels through tax cuts and tax credits, and are running pipelines through sensitive areas where they’re attacking peaceful people with attack dogs and pepper spray; never mind that the most draconian provisions of surveillance and torture have continued under our current admin
    Someone points out that this country has problems, and we need real and fundamental, not incremental change
    And you’re a fucking worthless less-than-human moron for not being as afraid of the the guy with the ferret on his head as they themselves are
    When every. single. day. you interact with people who don’t even have a roof over their head – you’re a fucking idiot – if you don’t feel sorry for the person who grew up in an affluent family, went to ivy league schools was in the highest levels of government and is now worth in excess of eight figures; and aren’t foaming-at-the-mouth full of seething hatred for the moronic narcissist – who was relentlessly promoted day after day after day after day by all the cable nnetworks during the primaries – even though the sun still came up every day of the last slimeball admin
    And if you try to reasonably point this out and that you can ‘think outside the box” and vote for a 3rd party candidate, you’re a fucking worthless shit-for-brains idiot
    So I guess we should all just sit down, shut up and meekly comply

  6. TarheelDem says:

    Yes, killing FOIA and FRA because of a political witch hunt is not warranted.

    There is structurally these difficulties with information security at the highest levels of the US government.

    1. People who do not have set working and private hours or set private and working locations inevitably wind up using private systems for business communications and business systems for private communications. There are some standard reasonable workarounds that people engage in that security professionals find unacceptable. But security professionals are not the bosses. The “when the boss is wrong, look at rule #1” principle applies.

    2. Secure spaces or secure rooms for highly mobile people with mobile devices have become quaint if not archaic, but effective security solutions have not appeared.

    3. Principals are poor designers of IT solutions. And State did not provide an acceptable solution because of budgets (most likely).

    4. High-level government officials consult informally with people not officially cleared for security. And they consult about confidential (or classified matters) not matter what the strict moralist and security professionals want to see. And have from before there were rules to follow. FDR and Bernard Baruch are a key example. Informal emails have effectively formalized those conversations and brought them into view.

    5. Jaroslav Hacek, in The Good Soldier Swejk wrote about what happens when rules are scrupulously followed. So did Joseph Heller in Catch-22. That is why organizations that get things done have as saying that forgiveness is easier to get than permission. Is there are risk of corruption in this? Yes. But manipulating strict rules can also be a form of corruption by imposing catch-22s.

    6. No one in Congress effectively defended the Federal Records Act when George W. Bush privatized public documents so that the staff of his library could deep-six anything that was scandalous. Returning to fundamental enforcement would be more effective if done outside of a hyperpartisan context and within a Presidential campaign period. There is a GOP political strategy going on in this that is a huge corruption of democratic processes and totally unlike the reluctant investigation of Richard Nixon in Watergate. Congress is not defending information security or the integrity of public records here, and progressives have not yet figured out how any outcome with respect to Hillary Clinton will change that.

    That said, Yglesiias and Drum are distractions from the structural issues and conventional media coverage takes Chaffetz and his oversight committee too much at face value.

    The best case solution in this election is the alignment of the Democratic party as the the right-center of American politics and the self-destruction of a Republican Party that has produced nothing from 52 years of public movement conservatism except devolving into the nomination of Trump. But that would require that there be a unified opposition party on the left. Critical analysis is necessary but not sufficient to avoid the crisis that is coming no matter who wins election in November. And Clinton’s personality is no more problematic than the self-important left leaders who find it difficult to work with each other. Her policies, on the other hand make the best case scenario I outlined possible if there is in fact an electoral leftwing in addition to multiple movemental left wings.

    • Desider says:

      Yes, the Republicans can refuse to review a Supreme Court nomination out of partisan spite, but we’ll twist ourselves in knots over an email server that still hasn’t shown any problems nor willful violations of classified info nor any serious info revealed.
      FOIA is dead in my head because it’s largely 1 direction though also often ignored by the current administration and FBI and other branches – it’s precisely the magnitude of revelations brought out day after day at Emptywheel that I go WTF at months of salivating over obvious shit on Benghazi et al. including did they say “terrorist” enough times to please Republicans.
      I get it – Hillary is evil and should pay for her sins. I’m not Catholic, so I don’t have much skin in that game – most motherfuckers seem to be doing a lot worse than her, so I just can’t get worked up about the idea she’d get a pass from her supporters. It’s not like Cruz, Trump, Sanders, Rubio, Christie, Bush, et al didnt get a ton of absolution and dispositions for everything from schools gone bankrupt and not showing tax returns to a variety of proven financial irregularities, misuse of government resources, or like Trump last night lying about Iraq with impunity while Hillary largely alone has had it wrapped around her neck for 14 years. The playing field isnt just tilted – it’s warped, and some of us just can’t manage the feigned selective outrage. FOIA – seemed like a good idea if there weren’t a bunch of slimy monkeys tainting and abusing it. Look at Colin Powell’s lie over when and what he told Hillary – Mr. Integrity strikes again.

      PS – kudos for noting good soldier Švejk

      • TarheelDem says:

        Understand that my position is that the classification rules brought forward from World War II in the legislations whereby Harry Truman architected the Cold War have proved to be a huge mistake and destructive of democratic governance. And the security clearance system has not brought the confidentiality or security of secrets it was designed to; it has created a privileged aristocracy that can avoid accountability by arguing “state secrets”. Like the use of “imminent” to increase the power of the President without accountability either to start a war or now to carry out a extrajudicial assassination, we are in the realm of having to trust that Presidents won’t use the powers that they have granted themselves.

        We are one step away from dropping the pretense of Constitutional government. Is this the year that we take that step?

      • rugger9 says:

        So, Clinton is getting pilloried for what Colin Powell told her to do. Typical Teabagger-GOP hypocrisy. Don’t think for a minute that Condi didn’t spike all of those emails interfering with her shoe shopping while New Orleans drowned off of her server(s). As I have noted before, sunlight is the best disinfectant (h/t SCOTUS), but it also has to be applied equally (per the 14th Amendment). Where’s Trump’s emails / tax returns / Melania’s visa history?

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