E-Crimes and Misdemeanors

Here’s the thing about the Hillary Clinton e-mail story:  Clinton flagrantly broke a rule.  And if there’s one thing we know for sure about Hillary Clinton, it’s that she is an absolute stickler for the rules.

This is, except in her own case.

Let me take you back, if I may, to the Michigan presidential primary of 2008.  The state scheduled its vote for January 15—three weeks earlier than Democratic Party rules allowed.  As punishment, the Democratic National Committee stripped Michigan of its delegates to the Democratic Convention, rendering its primary meaningless and leading most candidates—including Barack Obama, John Edwards and Joe Biden—to remove their names from the ballot.  However, Clinton opted to remain on the ballot and, having no opponents, won the primary.

Smash cut to May 31, when party leaders held a meeting and decided to seat Michigan’s delegates after all, because, well—forgive and forget, right?

This meant, of course, that the DNC was retroactively changing the rules—to the benefit of Clinton and to the detriment of everyone else.  Obama, Edwards and Biden had withdrawn from Michigan on the understanding that the primary wouldn’t count and therefore wasn’t worth contesting.  Had they known the DNC would change its mind after the fact, they obviously would have campaigned differently.

Meanwhile, Clinton suddenly won a whole batch of free delegates for no reason except that she deliberately violated the spirit of DNC rules by staying on the Michigan ballot while the rest of her party turned its back.  When asked how, under these circumstances, the Michigan primary could possibly be considered fair, Clinton responded, “We all had a choice as to whether or not to participate in what was going to be a primary, and most people took their name off the ballot but I didn’t.”

You see, this is how Hillary Clinton thinks.  Following protocol is all well and good, but if there is any way around the rules—namely, one that can guarantee a leg up on the competition—you’d be foolhardy not to try it.  It’s a principle that any professional athlete would be well-acquainted with.

Which brings us back to the present, and this silly business about her e-mails.

As it turns out, for the entire time that Clinton was America’s secretary of state—and unlike every other secretary of state—she conducted all e-mail correspondence through a personal account, rather than an official government server.  What is more, none of those thousands of messages was copy-and-pasted into the official record at the time they were sent.

The reason this is a problem is that—at the risk of sounding like a total prude—the latter of those things was, and is, against the rules.

In point of fact, there is such a thing as the Federal Records Act, which since 2009 has said, “Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.”

We know that Clinton’s State Department did no such thing while Clinton was there, because when this issue was belatedly brought to the department’s attention and made public in recent days, Clinton’s aides suddenly went into overdrive to sift through some four years’ worth of files.

Which means one of two things is true:  Either Clinton (and everyone on her staff) was unaware of the requirement to archive all of her relevant e-mail messages, or she was aware of it but hoped that nobody else was.  Considering that Clinton is a lawyer and, by all accounts, one of Washington’s most legendary control freaks, one would do well to place one’s bets on the latter.

To be clear, there is absolutely no mystery as to why Clinton—or anyone—would want to bury all of her messages in a private account.  Given the choice of making all of your work-related e-mails public versus strategically deleting any messages that might make you look bad…well, we don’t even need to finish that thought, do we?

However, so far as the Federal Record Act is concerned, the secretary of state does not have a choice in the matter.  She is mandated to save everything for the historical record.  We can argue about whether this policy is good or bad, but we cannot deny that it is, in fact, the policy.

Nor can we deny the obvious advantage Clinton gave herself by flaunting it for her entire term.  Because she has exclusive control over her personal e-mail account, she can cherry pick all she wants without anyone (except maybe the NSA) knowing what she might be hiding.

When she tweeted last week, “I want the public to see my email,” it had all the intellectual honesty of President Obama’s responding to the Edward Snowden NSA leaks by saying, “I welcome this debate.”  If the president desired a discussion about government spying, he sure went into a lot of trouble to ensure that one never occurred.  And if Clinton truly wants her diplomatic correspondence made public, she has nonetheless exerted an awful lot of effort over the past six years to keep it private.

Who are you going to believe—Hillary, or your own eyes?

Having said all of the above, this is probably a good time to note—as so many Clinton supporters have—that shielding four years’ of e-mails from public view is not a capital offense.  It’s not a Watergate-level act of deception, it’s not indicative of a state department rotting from the inside out, and it does not disqualify Clinton from running for president of the United States.

What it does is merely remind us that Hillary Clinton is an abnormally secretive and disingenuous person who will bend (if not break) the rules at every possible opportunity.  We can go ahead and elect her president, anyway—there have been dishonest people in the Oval Office before—but if we do, we should be under no illusions about what we would be getting.

The Less You Know

Here’s a cheerful thought for you to ponder.

Suppose there was a document, hidden somewhere in the bowels of the National Archives, that proved beyond a reasonable doubt that the assassination of President John F. Kennedy was conceived, planned and executed by some group within the Central Intelligence Agency.

And then further suppose that such a document, having been successfully withheld for some five decades, were somehow obtained, in a WikiLeaks-style coup, and released into the public domain on Monday.

What, then, would happen on Tuesday?

Among the many conspiracy theories surrounding the death of President Kennedy, the 50^th anniversary of which we will observe next week, the one involving the CIA is arguably the most plausible.  Not, mind you, because there is any particularly persuasive evidence to suggest such an event actually happened—there isn’t—but simply because it is in the agency’s nature to commit the most unthinkable crimes without detection or any measure of accountability.

Programs such as Homeland might not be accurate in every last particular, but the known history of the real CIA shows assassination to be something of a hobby for our esteemed spy network, be it directly or through snafus known as “blowback.”  Is it really that much of a stretch to imagine its nefarious practices committed on its own commander-in-chief?

This year, thanks to one Edward Snowden, we have experienced a veritable waterfall of disclosures about the heretofore secret and unchecked high jinks of the National Security Agency, which has been found to have tapped the phones and e-mail accounts of pretty much everyone on planet Earth, including the leaders of countries with whom we are supposedly friends.

We disagree about whether—and to what extent—the NSA should engage in this behavior, but tell me:  Now that you know it does, do you wish that you didn’t?  In possession of this information, do you as an American feel morally soiled, or do you rather feel cheated to have so long been kept in the dark?

Never mind the rest of the world and never mind “national security.”  Broadly speaking, is there any information about the U.S. government that, if true, you would simply not want to know?  Something so ghastly—so antithetical to the highest ideals of the American republic—that you would just as well remain ignorant of it for the balance of your natural life?

With November 22 upon us, I return to my original query:  What would it mean to learn President Kennedy was assassinated by the CIA?

For starters, it would mean we live in a country whose government murdered its own head of state—a practice we like to think is reserved for third-world dictatorships in the most backward corners of Africa and the Middle East.  And from a wing of that government, we might add, that has been in continuous operation in the half-century since, carrying on more or less as it always has—in secrecy and very nearly immune from legal recrimination.

In the event of such a revelation, what would the outfit’s current director possibly have to say in his agency’s defense?  “Sorry about that—won’t happen again”?  “Hey, it was a long time ago, let’s just move on”?

We don’t need the Kennedy-killed-by-CIA theory to be true in order to face these grave questions.

In the past decade alone, we have been made to grapple with the fact of our government, in our name, having tortured suspected terrorists—in clear violation of the Geneva Conventions—as well as having used drones to target and kill American citizens at the whim of the executive branch, uninhibited by such annoyances as due process and trial by jury.

The scandal here is not only that the U.S. does these things, but that the public has essentially shrugged them off as necessary and unavoidable byproducts of the so-called war on terror.  “Yeah, it’s unfortunate—but hey, what can you do?”

Is it possible we would regard a hypothetical plot to kill Kennedy in the same way?  With a resigned “meh”?  With a brief series of protests and howls of outrage, followed by obedient silence?

Could it be that the real problem is not that there are certain things we could not bear to know, but rather that we are no longer capable of being shocked by what our government may or may not be doing behind our backs?

I’m not sure that’s something I want to know.

Laws, Not Men

When the Declaration of Independence was first printed, distributed and read in the American colonies and beyond in July 1776, there was considerable interest in and confusion about the identity of its author.

Abigail Adams, having been sent a copy handwritten by her husband, John, assumed him to be the primary scribbler.  Many others surmised the same, Adams having been such a driving force behind the idea of breaking from Great Britain in the first place.

Details of that pivotal summer were kept tightly under wraps in the early days of the declaration’s publication, due in no small part to King George III having declared its signatories traitors who would be hanged by the dawn’s early light.

Today, with a trove of primary documents from which to draw, we probably know as much about what happened in Philadelphia 237 years ago as we ever will.  Even so, the matter of authorship of the American republic’s most sacred founding document is by no means a settled question.

The short, “official” answer—the one that pops up on the U.S. citizenship test—is that Thomas Jefferson is the true author.  The slightly longer, more nuanced narrative—Jefferson wrote the original draft, which was then fine-tuned by Adams and Benjamin Franklin and subsequently edited to within an inch of its life by the rest of the Continental Congress—is more accurate still.

But this does not take into account the many men who inspired Jefferson’s most famous tropes—not least the assertion that “all men are created equal” and entitled to “certain inalienable rights” such as “life, liberty and the pursuit of happiness.”  The former phrase appeared in similar forms in Thomas Hobbes’ Leviathan and the Virginia Declaration of Rights, while the latter originated with John Locke.

In a way, this is all mere trivia.  Fun things to know, but also completely beside the point.

The truth is that it doesn’t matter who wrote the Declaration of Independence, just as it doesn’t matter who wrote the Constitution (James Madison) or the Monroe Doctrine (John Q. Adams).

The ideas in these crucial government papers have persevered down the centuries because they are great ideas—not because they were written by great men—and ought to be regarded as if they were written by no one in particular, not least because, as demonstrated above, they are largely adaptations of previously published works.

This is a difference in emphasis that is narrow but deep, for it underlines several key principles involved in our nation’s founding, which we are rightly celebrating on this Fourth of July.

The first of these conventions is that no person is any better than any other.  While it is empirically, practically false to say we all are “created equal”—Jefferson can rightly and objectively be called a better writer than, say, Brad Paisley—we are duty-bound to act as if we were, which includes entertaining the prospect of a great idea coming from an otherwise dumb person, and vice versa.

Ringo Starr has noted that the Fab Four’s modus operandi in creating the Sgt. Pepper album in 1967 was that “whoever had the best idea—it didn’t matter who—that was the one we’d use.”  Might it not be a coincidence that such a record, conceived in such a way, would later be proclaimed by Rolling Stone as the greatest of all time?

More important still is the verity implied in the title of Christopher Hitchens’ 2005 biography of Jefferson, Author of America.  The United States is unique, Hitchens argued, because it is a “written country,” not merely conceived and spelled out by codified documents, but also operated, on a daily basis, by them.

This is why the whereabouts of Edward Snowden are not as important as the information he disclosed, and why the identities of the Supreme Court justices who ruled the Defense of Marriage Act unconstitutional are not as important as the arguments they made.

By design, the American system is prepared to withstand any and all people who blunder their way through it, regardless of rank, color, creed or any other consideration.  Included in the “all men are created equal” proposition is the fact that everyone must follow the same rules, and that the penalties for violating such rules are known in advance and are the same for all violators.  When these assumptions are occasionally violated—well, the Constitution has a correction for that, too.

What is key is that our most treasured principles exist as if they were not conceived by people—none in particular, at least—and were rather preexisting.  They were here before we appeared on the scene, and will remain once we are gone.

As far as the United States is concerned, these are truths that are, shall we say, self-evident.