The Clinton email nonscandal — all hype, no scandal


A couple of important reports on the so-called Clinton email scandal this week. This blows the right-wing outrage scandal machine out of the water: Security Logs of Hillary Clinton’s Email Server Are Said to Show No Evidence of Hacking:

Hillary-Clinton-textingA former aide to Hillary Clinton has turned over to the F.B.I. computer security logs from Mrs. Clinton’s private server, records that showed no evidence of foreign hacking, according to people close to a federal investigation into Mrs. Clinton’s emails.
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The security logs bolster Mrs. Clinton’s assertion that her use of a personal email account to conduct State Department business while she was the secretary of state did not put American secrets into the hands of hackers or foreign governments.

The former aide, Bryan Pagliano, began cooperating with federal agents last fall, according to interviews with a federal law enforcement official and others close to the case. Mr. Pagliano described how he set up the server in Mrs. Clinton’s home in Chappaqua, N.Y., and according to two of the people, he provided agents the security logs. The law enforcement official described the interview as routine.

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Mr. Pagliano told the agents that nothing in his security logs suggested that any intrusion occurred. Security logs keep track of, among other things, who accessed the network and when. They are not definitive, and forensic experts can sometimes spot sophisticated hacking that is not apparent in the logs, but computer security experts view logs as key documents when detecting hackers.

Mrs. Clinton’s campaign reiterated Mr. Pagliano’s information on Thursday. “We’re not aware of any evidence whatsoever that the server was hacked,” said Brian Fallon, a campaign spokesman.

The Washington Post adds, Ex-staffer’s immunity deal suggests Clinton email investigation near an end:

The revelation that the Justice Department has granted immunity to a former State Department staff member who worked on Hillary Clinton’s private email server is a likely indication that the investigation is nearing a conclusion, but should not be read as a sign that the leading Democratic presidential candidate is going to face criminal charges, legal experts said.

That Bryan Pagliano — a 2008 presidential campaign worker who set up the server in Clinton’s home — will avoid charges as he cooperates with FBI agents is a significant, if incremental, development, according to former federal prosecutors and white-collar defense lawyers who have been following the case.

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Brian Fallon, a spokesman for the presidential campaign, said in a statement that Clinton has been cooperating with the Justice Department and offered in August to meet with officials. He said the campaign was “pleased” that Pagliano, who invoked his Fifth Amendment rights before a congressional panel in September, was cooperating. It is unclear what level of immunity Pagliano received.

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The New York Times reported Thursday that Pagliano had turned over security logs to investigators, and those logs showed no evidence of foreign hacking.

The FBI is looking to wrap up the Clinton inquiry — a criminal investigation of the possible mishandling of classified information — in the coming months, according to a senior U.S. law enforcement official. There are no outward signs that prosecutors have convened a grand jury, a powerful tool that would allow them to subpoena witnesses.

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Clinton and the State Department have said that none of the material was marked classified at the time it was sent, but Clinton has apologized and called her use of the private email account a “mistake.” Many in the legal community have said it would be difficult to imagine her being charged.

That is because the line between what is classified and what is not is “not inherently obvious,” and charging the former secretary of state would require prosecutors to prove that she knew what she was handling crossed that line, said Barry J. Pollack, a white-collar criminal-defense lawyer at Miller & Chevalier who defended convicted CIA leaker Jeffrey Sterling.

“If something has not been deemed classified, you’re asking a person to intuit how somebody else would make a subjective decision and hold that person responsible for the fact that they didn’t anticipate that somebody else might view the document as classified,” he said. “It’s almost a Rorschach test. Different people view it differently.”

The Post’s Paul Waldman writes, Clinton emails continue to be non-scandal, disappointing Republicans:

What does this [reporting] tell us? Although it’s possible there will be some future discovery, it appears that whether Clinton’s emails were vulnerable to hacking or not, they weren’t actually hacked. That’s good news! The closest thing they’ve found is some attempts at phishing scams, which means that Clinton’s email is just like every other email address on earth.

So here’s what we know at this point, put as succinctly as I can:

  1. Clinton set up a personal email account and used it for work. Even though previous Secretaries of State did the same thing, and even though thousands of people in government use personal emails for work, she still shouldn’t have done it. She may have violated department policies, but there’s no evidence she broke any laws.
  2. Clinton has said it was a mistake and apologized for it.
  3. There were concerns that her email server could have been vulnerable to hacking from a foreign power. But it does not appear to have been hacked.
  4. None of the work-related emails she sent and received were marked classified at the time. However, some 200 of them were retroactively classified. This is now the subject of a spat between the State Department and the intelligence community, which classifies many things that people elsewhere in the government think are absurd to classify.
  5. For Clinton to be charged with mishandling classified information, she would have had to knowingly passed such information to someone not authorized to have it — like David Petraeus showing classified documents to his mistress — or acted with such gross negligence that people without authorization were bound to see it. According to what we know, neither of those things happened.
  6. The FBI is investigating the matter, but has said that Clinton herself is not a target of that investigation, meaning that they don’t suspect that she committed any crime.
  7. That former aide, Bryan Pagliano, has been granted immunity by the Justice Department and is working with them as they complete their investigation, which will probably conclude this spring.

Now let’s be honest. When this story broke, Republicans were desperately hoping that we would learn that some criminal wrongdoing or catastrophic security breach had taken place, so they could then use that against Clinton in her run for the White House. But that turns out not to be the case. So the next best thing from their perspective is that there’s some vaguely-defined “scandal” that the public doesn’t really understand, but that voters will hold against her if you just repeat the words “Clinton email scandal” often enough.

They may have gotten that. I’ve certainly seen plenty of voters quoted in press accounts saying some version of, “I don’t trust Clinton, ’cause you know, that email thing.” I’m sure 99 percent of them couldn’t tell you what they think Clinton actually did that’s so awful, but they know that there was something about emails, and it was, like, a scandal, right?

In recent weeks, I’ve had a couple of liberal friends and relatives ask me, with something approaching panic, “I just heard that Clinton is about to be indicted. Is that true?!?” The answer is no, but they heard that because it’s something conservatives say constantly. Tune to to talk radio or surf through conservative web sites, and before long you’ll hear someone say that the Clinton indictment is coming any day now. Donald Trump, with his characteristically tenuous relationship to reality, frequently says that she’s about to be indicted or that she won’t be permitted to run for president because she’ll be on trial. It hasn’t happened and it won’t happen, but that isn’t going to stop them from saying it.

Finally, there’s a phrase you should watch out for when you see this issue discussed: “Drip, drip, drip.” Sometimes it’ll be a Republican partisan using it, but more often it will be some pundit explaining why the issue is important. What “drip, drip drip” means is that despite the fact that there was no crime and no security breach, the media will keep discussing the story as the investigations continue, and that will cause political difficulty for Clinton. “Drip, drip, drip” is this controversy’s version of, “it’s out there,” meaning, “there isn’t anything scandalous about the substance of this matter, but here’s how we’ll justify talking about it as though it actually were something scandalous.”

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[Y] es, that was an error in judgment. [Other Secretaries Handled Classified Material on Private Email, State Dept. Concludes:  Madeline Albright, Colin Powell, Condoleezza Rice, Hillary Clinton and John Kerry — and their immediate staff.] But it wasn’t a crime — and it appears that no bad consequences for the country came of it — so we shouldn’t treat it like it was.


  1. Perception is reality, is it not?

    Is she trustworthy? Does it matter whether YOU think she is or not?

    What’s the public perception?

    Do you think, in the dramatically unlikely event she could win a general election this year, that she would NOT be impeached pretty much right away?

    • I believe the phrase is politics is about perception, not reality is perception. Reality is about the facts, that’s the world of evidence I deal with as a lawyer. If the Republicans control Congress will they go on “The Hunting of The President” Volume 2? Of course they will. This authoritarian proto-fascist movement will seek to delegitimize and to remove from office any Democrat elected to office. They believe that only Republicans are entitled to lord over us. Democrats had better start focusing on Congress and statehouses if they want to reverse this.

      • “I believe the phrase is politics is about perception, not reality is perception.”

        Then Steve is right: In the context of politics, perception is reality. You can’t dispute Steve’s assertion by de-contextualizing it. That’s no more intellectually honest than Clinton herself.

        Here’s the reality: A growing majority of voters, right and left, find Clinton untrustworthy. Why? Because of what she does and says. Defend her email conduct all you want, but the perception to most Americans is that she broke with policy (and perhaps the law) because she wanted a level of control to which she was not entitled. She wanted to be able to delete an email and not have to worry that it was sticking around on a government server somewhere.

        Look at her statements regarding the transcripts of the Goldman Sachs speeches. The justification for not releasing them changed repeatedly. So do Sanders supporters trust her? Do you really have any doubt that the real reason she won’t release those transcripts is that she doesn’t want Dem primary voters to know what she said?

        The result is that there’s a narrow band of Democratic Party loyalists, in the political center, who support her. The combination of their votes and Party power (for example, super delegates) are enough to secure the nomination, but what your left with is a deeply flawed candidate with a tragically small base, who’s reviled on both the right and left.

        • I started my IT career years ago managing email servers.

          Trust me, people do really stupid things with email. CEO’s, politicians, and even the people running the email server who know better do stupid things with email.

          Now, those Goldman Sachs transcripts, that’s where the real scandal lies, because it’s horrifying that such things even exist.

          You expect that kind of crap from Romney, or Chris Christie, or Kasich/Paul/pick any R, not from your “progressive” candidate.

          • Indeed. To expand on your last point,

            Hillary’s new motto, in response to Bernie, is “No! We can’t.”

            Is that what a “Progressive who gets things done” says, or is that what a Reactionary says?

        • Excellent points. I would only disagree on one.

          “The combination of their votes and Party power (for example, super delegates)…” I would only qualify with MAY be enough to secure the nomination.

          Pelosi and the DCCC seem to be suggesting this week that it’s not such a good idea to have the super delegates overrule the voters.

        • I’m not sure why you and Steve seem to believe that I am defending Clinton, or worse — gasp! — supporting Clinton. I simply presented the latest in the legal developments in this case. The article is clear that Clinton, and her predecessor Secretaries of State, violated State Department policy, but did not violate the law.

          Why do people think Clinton is dishonest? Because the conservative media entertainment complex and its scandal machine was built around the Clintons dating back to the late 1980s. It is the very reason for its existence. And yet, the only thing that ever came of it was a blow job with an intern. Amplifying right-wing talking points and giving them an echo chamber on the left only serves their purpose.

          You know I respect you guys, but the level of partisan rhetoric I am seeing lately in this primary contest is getting a little disturbing. Casting your opponent in a primary as the devil is unhealthy, especially when we have a real devil, the rise of authoritarianism and fascism in the GOP that even conservative pundits are sounding the alarm over. It’s time for all Democrats, independents, and concerned Republicans to fight the real threat to this country. We are all going to need to come together to fight a common enemy.

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