Here’s Why I Don’t Believe Hillary Clinton Was Trying to Evade FOIA

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National Review editor Rich Lowry says that regardless of the Washington Post’s opinion, Hillary Clinton’s email affair won’t go away:

It will remain with us, if for no other reason than that it is impossible for Hillary Clinton to be truthful about it. She is never going to admit that she wanted to hide her records in violation of the rules from legitimate press and congressional inquiries.

Does this mean everyone has finally figured out that email accounts are just as unclassified as email hosted on a private server? The fact that there’s disagreement about whether State Department officials are careful enough with sensitive information has nothing to do with the fact that Clinton’s email was hosted privately.

Instead we’re all in on the idea that Clinton set up her email account on a private server in order to evade FOIA requests. There is no evidence of this at all. None. That doesn’t mean it’s not true, of course. It just means no one has ever produced anything other than “well, of course she did” as an argument.

That leaves us with general fact patterns rather than specific evidence one way or another. So let’s take a look at those fact patterns. I covered this briefly last night, but it’s worth doing it in a little more detail. There are two big things to look at:

  • Virtually all of Clinton’s official emails were sent to people with addresses, which means they were retained on government servers. This is not—repeat not—a good reason to shrug our shoulders at Clinton’s use of a private server. That’s still fair game. Nevertheless, Clinton obviously knew that her emails to addresses would be retained, which means a private server offered no real protection against FOIA requests. The only real protection, as always, is to conduct business via telephone or face-to-face.
  • Clinton retained her emails for years after she left office and turned them over to State without complaint when she was asked. Then she wiped her server. If she were truly intent on evading the law, she would have deleted them after she left the State Department and just taken the hit for it.

If, despite this, you think Clinton was trying to evade FOIA, you’re ascribing to both her and her staff (a) idiocy, (b) Nixonian levels of calculated corruption, and (c) a widespread conspiracy to aid in a scheme that could easily send them all to jail—not to mention the Platte River tech they supposedly suborned to delete her archives.

None of this makes any sense. Clinton’s enemies, of course, are already convinced that she has the necessary level of malevolence to do all this. They’ve believed that without any real evidence for 25 years. But even they don’t believe she’s an idiot, and you’d truly have to be an idiot to try to evade FOIA requests this way. Someone who was truly malevolent and calculating and smart would do the simple and obvious thing: make sure her conniving staff was instructed to conduct all illegal business only over the phone. Easy peasy.

In the end, the only story that makes sense is a different one: Clinton was trying to protect her private emails. Those emails wouldn’t be captured on servers. Those emails wouldn’t be turned over to State. But having initially made the technically boneheaded decision to have only a single email account, she was stuck. The only way to protect her personal emails was to go through the laborious process of separating them out and then wiping them from the server and from all backups. But since everything was in one account, that meant wiping all the official emails too. More detail on that here.

Bottom line: In the end, the whole story about Clinton trying to evade FOIA or the Federal Records Act just doesn’t make any sense.

The funny thing is that there’s one thing about the whole episode that does bother me, but it doesn’t get much attention. Clinton’s initial decision to use one device and one account for all her emails was dumb but understandable. However, there had to be multiple people on her staff who realized it was dumb. This means that either her staffers were afraid to tell her this, or she ignored their advice. Either way, it doesn’t speak well for her organization.


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