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Forget the Hacking, One Decision Likely Cost Hillary Clinton the Presidency

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Hillary Clinton via Evan El-Amin/ShutterstockJust imagine this: What if, instead of what plagued her during the past two years, Hillary Clinton had actually had no problems whatsoever with her use of electronic mail during her tenure as Secretary of State?  What if there were no email scandalat all?  

This really would not have taken much – all Hillary Clinton would have had to do was act like any other Department of State official.  First, when she arrived there, she would have had to begin using an official agency email account, one ending in “state.gov,” for her basic official email communications.  Undersecretary of State for Management Patrick F. Kennedy and his staff would have set this account up for her, as he should have, regardless of her degree of technical proficiency or desire for singular expediency.  And if she was ever forced by exceptional circumstances to use her personal email account for the conduct of some official business, her aides would have routinely retrieved those emails for direct placement on the State Department’s official email system.

Then, throughout her tenure, Secretary Clinton would have had to use the State Department’s counterpart “classified system” for any email messages generated by her, sent to her, or forwarded by her that contained information classified or potentially classifiable on national security grounds.  Inasmuch as one of those grounds is foreign relations, and as Secretary of State she was the voice of U.S. foreign relations policy, this would have allowed the Department’s classification experts to reach judgments about classification sensitivity, and act on them accordingly, wherever need be.

Having done so, as would have been ordinary and routine, Secretary Clinton would have had no occasion to involve a private email server in her State Department business.  In other words, the fact that she and former President Clinton maintained a so-called “home brew” server in  the basement of their Chappaqua home would have been wholly irrelevant to any official matter.  She certainly could have kept her “personal” emails on that private server once they were generated through a personal email account, not her official one, if she so preferred.  Note that this would have afforded her the benefit of insulating her purely personal emails from the realm of a commercial email service provider, and thus from the potential grasp of any congressional subpoena, just the same; put another way, she need not have intermingled her official and personal communications in order to do so.

And then, like other federal employees, she of course would have had to engage in an end-of-tenure process of organizing her files, including her official emails, for archival preservation when she left office in 2013.  This would have been a relatively simple process, even for a cabinet official, because the vast bulk of her personal emails during her tenure would not have been part of the official State Department system and would not have required review by anyone.  Again, Undersecretary Kennedy and his staff should have helped her in meeting this departing official” requirement.  In fact, under the Federal Records Act, it was their responsibility, as well as hers, to ensure it.

Had Secretary Clinton simply done this, she would not have so grossly violated the Federal Records Act from nearly the outset of her tenure in using a personal email account for all of her official businessShe would not have violated the State Department’s rules requiring necessary use of its special classified email system.  She would not have placed any classified information at any type of risk on her private server, she would not have effectively circumvented dozens of Freedom of Information Act requests seeking her official records, becoming very arguably the biggest FOIA felon of all time.  She would not have violated the Federal Records Act again at the end of her tenure in 2013 by failing to allow proper preservation of her official records.

And she therefore would not have had to engage in what became a highly controversial process of delineating her official emails from her purely personal e-mails at State Department request in the summer and fall of 2014.  There would have been no question about how she performed such a delineation and eradication, about how she somehow managed to have more “personal” emails than “official” ones during her tenure despite being one of the busiest officials in government, or about why she chose to “return” her official emails in paper rather than readily searchable electronic form.  None of that would have occurred.

And any congressional or media investigation of her handling of the Benghazi tragedy would have involved interaction with the State Department and its official records alone, not anything in a personal email account or on her private email server.  In short, her truly personal emails would not have been involved, let alone become a transparent joking matter that seemed to linger endlessly.

Then, what was revealed by the media on March 2, 2015 would not have been there to reveal.  There would have been no impromptu news conference at the United Nations on March 10 of that year in which she made several literally incredible statements readily proven to be grossly misleading at best or, at worst, palpably false.  As well, it is fair to say, her already shaky reputation for untrustworthiness in the public’s mind would not have plummeted even further with the drip, dripdrip of damaging disclosures and further public utterances about her email problems (Wiped? “What, like with a cloth or something?) during the rest of 2015 and on into 2016.  There would have been no email albatross hanging around her neck to continuously weigh down her campaign through congressional hearings, her presidential debates, watchdog litigation, or otherwise.  

Succinctly put, there would have been no email scandal to lie or get short circuited about. So, too, there never would have been any investigation and report by the State Department’s Inspector General documenting the civil laws and policies that were violated by Secretary Clinton’s self-indulgent email scheme, even though they lacked any criminal penalties.  She would not have been so formally found to have flouted the requirements of the Federal Records Act, over and over, from the beginning of her tenure to its end.  She also would have been spared the harsh indignity of officially being told that, no, what she did actually was not allowed, as she so intransigently kept insisting, nor would it ever have been had she ever bothered to ask.

And then of course there is the ultimate matter of the FBI’s criminal investigation into how she handled her emails, most specifically those determined to contain classified or classifiable information.  Simply put, this investigation would never have come into existence.  There would have been no effective confiscation of her private server, no reconstruction of emails that she had claimed were irrevocably erased, no glaring inconsistencies with records held by her good friend Sidney Blumenthalno investigative interviews of her aides, no criticism of how they behaved (e.g., invocations of the Fifth Amendment by her personal “techie” and of spurious attorney-client privilege by her alter ego Cheryl Mills), no extraordinarily damaging release of the FBI’s investigative notesand most importantly no painful analysis of whether she had (or for prosecution needed to have) any intent to violate criminal laws governing the handling of classified information.  Plus, there would have been no damning FBI finding that, even if she arguably lacked prosecutable intent, she nevertheless had been extremely careless in her email handling.

No, there would have been absolutely none of that.

And then, when her closest aide Huma Abedin suffered the further ignominy of having FBI agents investigating her husband for child pornography locate a seemingly new cache of Clinton-related emails on their shared computer, that would have been a total non-event, rather than an October surprise to be eaten up by the media to Clinton’s great detriment.

That’s right:  There would have been no “Comey letter” during the closing days of the campaign, neither on October 28 to astonishingly confound the electorate  nor on Sunday November 6 to pointedly remind it of her email travails just before it went to the polls.  This, because there would have been no FBI investigation (apart, perhaps, for one of the Clinton Family Foundation) for FBI Director Comey  to write to Congress about, simply because there would have been no irregularity in Secretary Clinton’s handling of her State Department emails (much less anything of a criminal nature) to begin with.  No fire, no smoke, nothing to smolder in any voter’s mind. No story to get out of control. No adverse impact on the electorate.  And no fatal “stopp[ing of] our momentum,” as Clinton herself put it

Since Election Day, there has been no shortage of strong opinion and post-hoc speculation about how Hillary Clinton managed to lose the presidency to someone such as Donald Trump:  If only she had bothered to campaign in the State of Wisconsin, not to mention in other “rust belt” areas of Michigan and Pennsylvania, some say.  If only campaign chairman John Podesta had not succumbed to a simple “phishing” ploy that led to daily WikiLeaks disclosures (possibly with Russian involvement) of his DNC leadership communications.  If only she and nearly all of her campaign staff had not been so overconfident about running against such a candidate as Trump.  Or some combination of the above, perhaps mixed with other speculative things.  After all, a swing of only about 40,000 votes from Trump to Clinton (with a combined three-state margin of less than 80,000 favoring Trump) would have made all the difference.

But one need look no further than the fateful decision that brand new Secretary of State Clinton made one day in early 2009, for whatever reason(s), not to play by the rules. Undersecretary of State Kennedy should have stopped (rather than indulged and enabled) her from that.  Someone at the White Houselikely knowing better, should have overridden her.  And at least one of her hyper-devoted, sychophantic personal aides (e.g., Cheryl Mills who from her own White House experience definitely did know better) should have protected her from her dangerously secretive self.  All it would have taken was for Secretary Clinton to accept and use a regular State Department email account, just as the Federal Records Act, proper State Department practices, and the fair administration of the Freedom of Information Act required.

And at risk of venturing something that is highly probable yet of course cannot be proven, this simple step would have meant that today our Nation would not be facing the prospect of President Donald J. Trump.

Dan Metcalfe is a registered Democrat who long said that he would vote for Hillary Clinton “if she escaped indictment and managed to become the Democratic presidential nominee,” but ultimately found that he could not bring himself to do so.  He served as Director of the Justice Department’s Office of Information and Privacy for more than 25 years, during which time he handled information-disclosure policy issues on the dozens of Clinton Administration scandals that arose within public view, as well as two that did not.  Since retiring in 2007, he has taught secrecy law at American University’s Washington College of Law.

This is an opinion piece. The views expressed in this article are those of just the author.

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