Unbelievably bad reporting on the Clinton e-mail "scandal" [View all]

[BzaDem]

It is amazing (though perhaps not surprising) to see the media's reaction to Comey's announcement today. The media has spent the last year blowing up this story, keeping many people on the edge of their seats. Then, when Comey announces the no-indictment decision that should have been obvious to the media from the beginning, they treat it as some sort of earth shaking announcement.

Why was this outcome so obvious from the beginning? Much of the high drama surrounding this "scandal" has resulted from the conflation of two legally unrelated issues:

1. Clinton's decision to use a personal server for her e-mail communications while secretary of state

2. The presence or absence of classified material on an unclassified server

The open secret is that issue #1 is completely unrelated to the laws of classified information. Quite simply, using a personal server is not against the law, nor could it be the basis of any prosecution. It is illegal to communicate classified information over any unclassified system, including the official State department e-mail system. All classified information can only be discussed over a completely separate classified system.

The law makes no distinction between private servers and unclassified servers run by the government. Comey alluded to this at the end of his press conference, where he said that others today could be face administrative sanctions for hosting a private server. Left unmentioned was any possibility of legal sanctions, perhaps because it simply does not violate the law in any way.

This point doesn't by itself get Clinton off the hook. It just means that the entire "scandal" would have to rest on #2. To put it another way, if Clinton didn't use a private server, and instead used the official State department unclassified e-mail system, her actions would have been identically legal or illegal (and would depend on the content of the mails sent over the official e-mail system). So if one wants an honest evaluation at whether Clinton violated the law, they should evaluate what would happen if there were no private server involved (given its legal irrelevance).

Could you imagine how this "scandal" would have evolved, in a hypothetical world where Clinton didn't use a private server? "Breaking news: of tens of thousands of e-mails HRC sent or received on the official State Department e-mail system, a small number may have had classified information?" Yes, that could conceivably violate the letter of the law. But only in a way that would also apply to nearly every past secretary of state, every high level state department official, and many aides. In such circumstances, this entire "scandal" would have been a nothingburger. Yet because of the distinction of Clinton using a private server -- a distinction that has no bearing on whether Clinton violated the law -- the media breathlessly reports about "possible indictments" for an entire year.

Why didn't Comey just come out and say this? In fact, why didn't he just come out and say this a year ago? The intelligence community has been critical of State Department practices for handling classified information long before Clinton became secretary of state. (Comey alluded to this, with his criticism of the State Department culture.) The intelligence community regularly over-classifies information, and has a long standing beef with other agencies that take the laws of classification less seriously. (Recall that several classified e-mails were classified solely because they mentioned the drone program, which has been common knowledge for nearly a decade.)

My guess is that the "private server" was an excuse that was taken advantage of by people who had long-standing opposition to state department classified information-handling practices. Perhaps the state department should be taking these issues more seriously. Perhaps that is why Comey was so critical of HRC's conduct. But the reason this has been a huge HRC story (rather than a government-turf-war/inter-departmental-disagreement story) is due to a legally irrelevant distinction, taken advantage of by government officials with agendas, and a ratings-obsessed media.