Much ado about nothing

Hillary Clinton’s use of personal email, while consistent with the practice of prior secretaries of State and permitted at the time she was secretary, was a mistake (as Secretary Clinton has acknowledged) but not for the reasons currently being attributed to her by her detractors.   Let’s be clear about some very basic facts. 

Throughout her tenure as secretary of State (she left office February 1, 2013) and since the last email was sent to or received from Secretary Clinton’s private server, there has been no allegation that the national security interests of the United States were implicated, let alone compromised. No state secrets were divulged. No sources and methods of operation were disclosed. No intelligence officer’s identity was revealed.  No hackers ever broke into her server. (Contrast that with the official State Department email system, which acknowledged a recent hack by Russian intruders.)

In fact, the communications that travelled across Secretary Clinton’s private server were not even marked as classified at the time they were sent or received. Classified information (which as a matter of federal statute is defined as “information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or executive order as requiring a specific degree of protection against unauthorized disclosure for reasons of national security”) was reviewed by Secretary Clinton either while in her State Department office or using government secure transmission systems if she was on travel. These facts are uncontroverted and have been verified by the State Department and Senate Intelligence Committee. 

Rather, the use of the private email server was a mistake in hindsight only because it has allowed those whose political interests are not aligned with Secretary Clinton’s presidential aspirations to claim fault under the guise of national security and inject confusion into a matter which is rather straightforward and benign as a matter of law and historic practice by other secretaries of State from both political parties. An analysis of the criminal laws governing the transmission or receipt of classified information proves the point. Taken together these criminal statutes are directed at either (1) the willful gathering, transmitting, or receipt of classified information prejudicial to the safety or interests of the United States or (2) the unauthorized and knowing removal of classified material by a government employee with the intent of retaining the materials at an unauthorized location. As to all of these criminal laws, no allegation has been or could be made against Secretary Clinton.

The only legal issues, therefore, that remain which arguably are germane to any of Secretary Clinton’s email transmissions relate to which among them should be preserved/released pursuant to federal record keeping and Freedom of Information Act requirements, and not whether the receipt or transmission of those emails compromised national security. While important, these laws – the Federal Records Act, the Freedom of Information Act (FOIA), and the National Archives and Records Administration (NARA) statute – bear more on the creation and preservation of a public historical record than anything else.  It is for this reason that the after-the-fact classification reviews are being undertaken by Inspectors General and archivists as we see in the latest release by the State Department. For certain, no lessons relevant to what should be the work of the House Benghazi Committee will be learned by studying the structure by which Secretary Clinton transmitted and received e-mails. It is worth remembering that in the hundreds of years before electronic communication became the norm, federal records were reviewed by the office holder, who sorted his/her papers before handing them over to archivists – and the Union survived.  

There is an old lawyer’s adage that if you can’t argue the law, argue the facts; if you can’t argue the facts, argue the law.  And, if you can’t argue either the law or facts do your best to create confusion.  In the case of Secretary Clinton’s emails, a good deal of meritless confusion has been created. Sadly for the country, the media’s fascination with this confusion needlessly detracts from a meaningful discussion of the important policy issues that should matter most in the selection of our next president.

Zeldin is a former federal prosecutor, congressional counsel and Independent Counsel who has held high-level government clearances and worked with classified documents throughout his career.