Month: January 2016

Why You Should Care About Clinton’s Email Scandal

I’m really tired of hearing about the Clinton email scandal. My problem with the whole debacle is that history, political posturing, and obfuscation have rendered an important point of public inquiry an unmitigated partisan mess. But however messy the whole thing may be, it still matters. It’s a significant issue in terms of legal accountability and the judgment of a would be president. So let’s roll up our sleeves and sift through the bullshit.

Here are the basics: during her tenure as Secretary of State, Clinton opted to use a personal email address connected to a private server in her home to conduct official state business. This revelation, first brought to light by the hacking of Clinton confidante Sid Blumenthal’s personal email account in 2013, has since snowballed.

The first concern was one of record keeping. Though Clinton was not, at the time of her service, required to use a state email address, she was required to submit all official correspondence taking place via a personal email account for record keeping. Clinton had failed to do so, which led to incomplete resolution of FOIA requests on numerous occasions. She did eventually release the cache of work related emails, albeit after significant delay and the deletion of more than half the emails housed on her server on the grounds that they were personal in nature.

This was dumb. Like, obviously dumb. Though John Kerry is the first Secretary of State to actually use a government account for email, Clinton should have known better than to conduct business the way she did. She’s no green political operative. She’s a seasoned public servant who has spent the past several decades walking around with a target on her back. She had to know, especially given her political aspirations, that this could only serve to accentuate that target with neon lights. The deletion of those emails without any sort of oversight was exactly what Republicans were looking for — something that could be made to seem sneaky or suspicious, furthering the narrative that Clinton is not trustworthy.

It only got worse from there.

Another major concern revolving around Clinton’s use of a personal email address to discuss state business is that she may have been transmitting classified information along unsecured lines, presenting a risk to national security. Initially Clinton claimed that this hadn’t taken place. She insisted she had done nothing wrong, and said she would not be turning over her private server for further scrutiny. Her reasoning for using the account was explained as a function of convenience. She stated that she wanted the public to read her emails and had requested that the State Department release them. All in all, the response seemed like a giant shrug in hopes of the whole thing disappearing.

To be fair, many of the emails that came out were innocuous. Some of them were downright entertaining. Many a joke was made about her request that The Good Wife be recorded for later viewing. Clinton’s confused reaction to her now infamous texting photo going viral was worth a chuckle. But by and large, the emails were quite boring.

Until they weren’t.

Reports started to come in saying that there was, in fact, classified information within some of the emails provided, and the campaign began to scramble, looking for a narrative that would preserve Clinton’s image. But frankly, these talking points did not and do not hold water. As Marc Theissen explained in the Washington Post:

Lash out as she might, Clinton’s constantly changing email story is rapidly falling apart. First, Clinton claimed there was “no classified material” on her private server — which turned out to be untrue. Then she claimed none of the intelligence on her server was “classified at the time” — which also turned out to be untrue. Now, in a National Public Radio interview last week, Clinton said there was no information that was “marked classified.”

But this is not a defense.

It is against the law to remove classification markings from classified information and enter it into an unclassified system — which is the only way this information could have found its way into more than 1,300 emails on Clinton’s personal server. There is no way to “accidentally” send classified information by unclassified email. Senior officials have separate computers in their offices for classified and unclassified information. The two systems are not connected. The only way information from the classified system can make it onto an unclassified system is for someone to intentionally put it there — either by taking a document that is marked classified and typing the information without markings into an unclassified email, or by putting a thumb drive into their classified computer, downloading information and then putting that thumb drive into an unclassified computer, as Edward Snowden did. In either case, it is a crime.

In other words, the classified documentation would had to have been knowingly altered for it to appear as unclassified and unmarked on Clinton’s end. Not good news for her.

If Clinton was not the one doing so or directing others to do so, she can hardly be to blame, right? Wrong. Not unless she was exceedingly terrible at her job. The classified information found on her server, even without official markings, should have been recognized as obviously classified material by someone experienced in dealing with classified material. United States Army Special Forces veteran and intelligence consultant Anthony DeChristopher broke it down as such:

First, when imagery that is classified SECRET//NOFORN (no foreign national) is viewed, regardless of the absence of classification markings, it is distinctly evident. Second, any documents that contain or reference HUMINT is always classified SECRET, and if specificnames of sources or handlers are mentioned, they are at a minimum SECRET//NOFORN.  Third, SIGINT is always classified at the TS level.  It’s not uncommon for some SI to be downgraded and shared over SECRET mediums, however, it is highly unlikely that a Secretary of State would receive downgraded intelligence.  Finally, SAP intelligence has been discovered on Clinton’s private server, and many are now calling this the smoking gun.  SAP is a specialized management system of additional security controls designed to protect SAR or Special Access Required.  SAR has to do with extremely perishable operational methods and capabilities, and only selected individuals who are “read on” or “indoctrinated” are permitted access to these programs.  The mishandling of SAP can cause catastrophic damage to current collection methods, techniques and personnel.

In other words, if you have worked with classified material for more than a day, it seems highly implausible that someone could receive any of the aforementioned over an un-secure medium without alarm bells sounding.  However, reading about a Special Access Program on an unclassified device would make anyone even remotely familiar with intelligence mess their pantsuit.

Put another way: Clinton either had no idea what she was doing or knew and willfully violated federal law.

Over 1,200 emails containing classified information have been discovered so far, but those containing references to SAPs are, as DeChristopher points out, easily the most disturbing. The Clinton campaign has insisted that the SAP instances were likely in relation to “open secrets” such as drone policy, but “open secret” topics — subjects that are technically classified but leaked to the public — are not automatically declassified within the government. A look at the Bush administration provides a good example of this. As Theissen continued:

When I was in the White House, I wrote President George W. Bush’s speech acknowledging the existence of another special access program — the CIA interrogation program. Its existence had also been reported by the New York Times. But I had to write the speech in a Sensitive Compartmented Information Facility (SCIF) at the National Security Council, on a top-secret computer that was not even connected to the top-secret Internet system. Until Bush delivered it, the details were Top Secret/Codeword intelligence.

The emails we know about may be just one piece of the puzzle, though. As the inspectors general tasked with evaluating her emails found mounting evidence of classified information transmission, the FBI was brought in. Clinton’s server and thumb drives were seized so that the remnants of deleted “personal” emails might be scrutinized. Should it be discovered that emails relevant to official business were deleted — classified or not — Clinton would be in violation of a different law altogether. Republicans are banking on it, trying Clinton in the press by suggesting that the existence of classified information in the emails she released means there’s probably more where that came from.

Though it does seem like condemnation over technicalities, the fact of the matter is that Clinton’s use of a personal email address and server to conduct state business was dangerous. It’s not just Guccifer out there hacking; it’s state sponsored efforts, too. What’s more, Clinton knew it. Chinese hacking of private government official accounts had already been well documented, but that didn’t dissuade her from defaulting to her own personal account for work. Sounds like a pretty poor judgment call to me.

But that’s not all. Yes, there were concerns about record keeping and classified information and deletion of evidence, but the emails released also presented troubling evidence of Clinton showing preference to Clinton Foundation donors in State Department dealings. As the Washington Post reported:

The note to Secretary of State Hillary Rodham Clinton from liberal financier George Soros demanded “urgent attention from the highest levels of the U.S. government.” Clinton swiftly alerted a top aide to what she described as a “very forceful message which is good — and needed.”

The e-mail exchange, in which Soros warned of growing unrest in Albania, illustrates how Clinton interacted with major donors to her family’s causes during her tenure at the State Department, staying in touch with her political network before her 2016 run for the Democratic presidential nomination. And they show how these donors, some of them with interests before the U.S. government, gained high-level access to press their policy concerns inside the Clinton-led State Department.

Though these points merit consideration, they rarely get evaluated in any sort of critical fashion when the email scandal is discussed by voters. Why? Because the entire fiasco has been politicized in cartoonish fashion. Much of the original furor over the emails stemmed from the Benghazi Committee, which was little more than a thinly veiled attempt at character assassination. Clinton has fed that narrative, arguing the push for more emails and investigation into her use of a personal email account are politically motivated. Perhaps they are to some end. That’s not an excuse, but it is a convenient and effective way to shape public opinion according to partisan leanings.

This political clusterfuck is further demonstrated in how the case is being handled legally. The FBI has been investigating the scandal for some time now, but the Clinton campaign denies that she is a subject of investigation, pointing to the fact that the government agrees with them. It may seem implausible, but it’s not entirely incorrect. As the National Review wrote:

[T]here is one other thing you should know about the designations “target” and “subject” — one of those things so obvious it is easy to miss. These are not just random words. They indicate that a suspect is a target or a subject of something. That something is a grand-jury investigation.

In an ordinary case, that would not be a point worth making. The FBI routinely conducts major investigations in collaboration with Justice Department prosecutors — usually from the U.S. attorney’s office in the district where potential crimes occurred. That is because the FBI needs the assistance of a grand jury. The FBI does not have authority even to issue subpoenas, let alone to charge someone with a crime. Only federal prosecutors may issue subpoenas, on the lawful authority of the grand jury. Only prosecutors are empowered to present evidence or propose charges to the grand jury. And the Constitution vests only the grand jury with authority to indict — the formal accusation of a crime. In our system, the FBI can do none of these things.

No Justice Department, no grand jury. No grand jury, no case — period. As a technical matter, no matter how extensively the FBI pokes around on its own, no one can be a subject of a real investigation — i.e., one that can lead to criminal charges — unless and until there is a grand jury. That does not happen until the Justice Department hops on board.

Regular criminal-justice procedures have been suspended by the explosive politics of the Clinton investigation. Alas, regular criminal-justice procedures have been suspended by the explosive politics of the Clinton investigation. The FBI is doing its professional, apolitical best to investigate the presumptive Democratic nominee for president of the United States. The high stakes rattle not only the Clinton campaign but also the Democratic administration in which Mrs. Clinton worked when she engaged in the work-related conduct being investigated. On the one hand, the Obama administration does not want to be seen by the public as obstructing the FBI; on the other hand, President Obama does not want to be seen by his base as tanking the Democrats’ best shot at retaining the White House — the likely fallout if the Obama Justice Department signals that a formal, very serious criminal investigation is underway.

So Obama is hedging his bets. He is letting the FBI investigate, but on its own, without Justice Department prosecutors and the grand jury.

So while Clinton is being investigated in a colloquial sense, those proceedings don’t have teeth right now. For this to go anywhere, the FBI would need to suggest an indictment to the Attorney General, who would then have to convene a grand jury.

Doing so would be a major embarrassment for the Obama administration, and given the political live wire that this whole thing has become, they’ll likely do their best to avoid it. That may prove difficult. Former U.S. House Majority Leader Tom DeLay has been making noise, saying the FBI will go public with their findings if Loretta Lynch doesn’t move the case forward, which would certainly complicate things.

But if we’re being honest, odds are this has to get adjudicated in the court of public opinion. That’s what makes me nervous. So much of this story points to either breathtaking ignorance and incompetence or terrible judgment buried by cascading lies, but at the center of this story is Democratic royalty. Some may look past Clinton’s assumed ascent and consider this story critically, but the chances are good that many hold their nose and vote for her anyway. Even more unsettling? There are probably a good amount of folks out there so desensitized to the smell of bullshit that they won’t even notice it as they cast their ballot.




Why Questions About Ted Cruz’s Citizenship Matter

It’s unlikely that Ted Cruz is actually legally prohibited from becoming president. Most legal experts have said as much. Though there’s this spectre of his mother possibly having had dual citizenship at some point, and there’s the fact that he only recently gave up his own Canadian citizenship, most agree that those factors don’t impact his eligibility. Part of that is because it’s a reasonable conclusion when parsing the law, part of it’s because the issue hasn’t really been raised in a substantive way in the legal system.

Whatever. I sort of view this whole shouting match as a fool’s errands for progressives. There are way more compelling reasons that man should be kept far away from the Oval Office. Besides, the answer to the eligibility question is of less consequence than the conversations around it.

First off, let’s talk about the hypocrisy of his citizenship defense. While it seems reasonable — his mother was a U.S. citizen, which grants him status as a natural born citizen — it sounds absurd when you consider his espoused legal philosophy. Writing for the Boston Globe, Laurence Tribe, one of his former law professors at Harvard, put it this way:

[T]he kind of judge Cruz says he admires and would appoint to the Supreme Court is an “originalist,” one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.

This narrow definition reflected 18th-century fears of a tyrannical takeover of our nation by someone loyal to a foreign power — fears that no longer make sense. But the same could be said of fears that a tyrannical federal army might overrun our state militias. Yet that doesn’t lead Cruz — or, more importantly, the conservative jurists he admires — to discard the Second Amendment’s “right to bear arms” as a historical relic, or to limit that right to arms-bearing by members of today’s “state militias,” the national guard.

I’m not going to get into the gun control debate here, because that’s not the point. What Tribe is getting at is that Cruz’s defense of his citizenship stands at odds with his view of how the judiciary should function on issues of Constitutional interpretation.

But even if we’re willing to forgive that, his his own views on citizenship might have disqualified him had they been around back when. Cruz is on the record, dating back to 2012, as supporting an end to birthright citizenship — the exact idea he uses to claim his own citizenship. On a surface level, super cute, right?

To be fair, his argument has been presented in the context of the immigration debate. When it’s come up, he’s been careful to frame it as an issue of granting citizenship to people who are here illegally. He wants a Constitutional amendment to that end. That’s probably a non-starter, but let’s run with this.

Ending birthright citizenship would raise a pretty important follow up question: how does citizenship get established? Cruz’s comments provide no clear answer. Because of the way he’s framed things, there’s an assumption that he would want verification of a child’s parents’ citizenship before the designation of being an American citizen would be awarded to the child.

There are a lot of problems with such a proposal. As attorney and 2013 MacArthur Foundation Fellow Margaret Stock explained in the New York Times:

America has no national birth registry, no squads of skilled government lawyers who can determine whether a person’s parents hold a particular immigration status at the moment of a baby’s birth. We’d need a whole new government bureaucracy to make birth adjudications. Americans would have to pay for this new bureaucracy, which would be tasked to decide the citizenship of some 4 million babies born in America each year.

Wealthy people would likely have little difficulty getting legal guidance for the process, but most Americans can’t afford such expert help. The current government fee for making such an adjudication when a child derives citizenship through parents is $600 per person; are Americans willing to pay a $600 tax on every baby born in the U.S. each year?

What’s more, eliminating this longstanding constitutional provision would not solve our nation’s immigration problems. Changing the rule would increase the number of undocumented immigrants with each child born here, cost the U.S. taxpayers billions, and reduce our tax base.

Generally speaking, it sounds like a bad idea, right? Utterly, disgustingly classist. But what this discussion also points out is that, had Cruz been born in such a world, he may not have gotten citizenship. His parents struggled to make ends meet at times. Could they have afforded that $600 fee?

Maybe none of that matters. Maybe they could have afforded it and would have coughed up the money and he’d be fine under his own proposal. Maybe he doesn’t think it’s relevant because it just wasn’t how things were done back then. Maybe we can grant him a little leeway on a seemingly conflicted view of how the Constitution ought to be read.

That’s fine. Because the most important element of this conversation isn’t the answer to the question of his eligibility. It’s that the question is being asked at all.

The person leading this charge is none other than Birther-in-Chief Donald Trump. His crusade against Obama was laughable and ill-fated, but it didn’t keep him from banging that drum. He still brings it out for old time’s sake now and then, and his supporters love him for it. For him to bring out this tactic again makes sense, strategically. It’s got appeal to those he’s courting.

As we saw with the Obama birther movement, facts aren’t really relevant to the folks we’re talking about. They make up their own. All Trump had to do was hint at the possibility of Birthergate 2.0, and they would do the rest. They are doing the rest. Cruz is being pushed on the subject again and again — not exactly positive PR as he tries to woo an increasingly rabid GOP base.

Do I really think Cruz is ineligible? I don’t know. Probably not. Whether it hurts him enough to kill his lead in early states like Iowa remains to be seen. I’m not sure that’s likely. But the existence of a question on the subject highlights contradictions in his espoused beliefs and hurts him among people for whom belief trumps (ha!) reality, so it’s always possible. Your best bet is to grab some popcorn and enjoy the fireworks.

Hillary, Rape Culture, and an Uneasy Agreement with Trump

The Trump campaign has, since the beginning, seemed a caricature of what conservative politics has turned into over the past two decades. Instead of hiding behind dog whistles, he’s blatantly, proudly blasted out sexist, racist, classist and xenophobic rhetoric like it’s going out of style. It’s working for him, which is more than a little unnerving.

His sexism, in particular, is beyond question. This is a man who told an employee she’d look pretty on her knees, who disparages women’s appearances instead of engaging with critique, who accuses media members of being on their period when they dare question him, who dismisses fellow conservative competitors for not being pretty enough to win, who — when running out of options — chooses to leap on his female opponent’s use of a bathroom.

He’s a misogynist asshole. Point blank.

Last week, in yet another chapter of absurdity, he claimed that women were yuge fans of his, and that stalwart feminist icon Hillary Clinton was anti-woman. Derision, side eye, and shade came down in an avalanche, and rightfully so. There is no world in which Trump could be considered a greater ally for women.

And yet…

Alright, stay with me for a minute. Set aside your fervent love of Clinton. Simmer your Sanders adoration. Acknowledge your intense fear and loathing of the GOP field, but don’t let it cloud your vision. Put down the pitchforks for a second, and please just listen.

Because I’m about to agree — in part — with Trump. And I might hate myself more for it than you do.

See, Trump’s criticism of Hillary’s record on women wasn’t just a random jab; it was connected to the philandering ways of Bill Clinton.

At first I snorted at the support he provided for the conjecture. Frankly, I don’t care who sleeps with who and who accepts it or doesn’t. The Clintons are ostensibly good with each other despite past dalliances, and since it’s really none of my business, it’s a non issue in my mind.

If that had been the extent of his attack, I’d have gone back to a Netflix binge and chalk it up to another transparent GOP smear attempt. But Trump wasn’t just talking about the consensual extramarital affairs. He was also making reference to the accusations of sexual harassment against Bill that have come to the forefront over the years, and Hillary’s role in those sagas.

Bill has been accused by multiple women of sexual harassment or assault since his career began. Some of those accusations wound up in court. Some of them were settled outside of court. Some of them were shouted into obscurity. But they’re there, as are accounts of Hillary’s attempts to bury them with private investigators and bullying.

And this is where I get stuck as someone who tries very hard to be a good ally for survivors of sexual assault and an advocate against rape culture.

On face, I want to holler with the rest of my progressive friends about all the good Hillary’s done in her life for women, about what a positive role model she’s been. I want to say that those allegations were never proven and this is just another desperate Republican attempt to quash Hillary before she gets the nomination.

But I can’t. Because I get angry when people say that Cosby, despite numerous accusers and a record of out of court settlements, doesn’t deserve our disdain. I get frustrated when people say that Woody Allen marrying someone he’s accused of molesting excuses his gross abuse of power. I get sick when people shrug off player after player in the NFL for their assaults because the women accusing them are obviously just seeking attention. I get exasperated when people tell me to stave off judgment until a legal system (that has proven itself woefully inadequate) adjudicates another woman’s trauma, like their decision is the ultimate arbiter of reality.

And to look at Bill Clinton’s tattered history without the same critical lens because I think his wife is better than the horror show in the GOP presidential field would make me a massive hypocrite.

We can say that none of these cases were ever proven in court, but that’s a bullshit dodge. The legal system fails survivors of sexual assault early and often, starting with authorities questioning attire and prior relationships and ending with a he-said-she-said deflection.

We can choose to say fall back on the he-said-she-said excuse in general discussion of the topic, too, but that’s crap, as well. How many allies posted about how absurd it is that we discount the trauma of multiple women in order to defend the acceptance of one man’s denial when the Cosby travesty gained public notoriety once more last year? Bill has had multiple accusers, as well. He also had out of court settlements. Why does he get a pass?

We can roll our eyes and say he’s being targeted because he’s a prominent public figure. He certainly is, but that’s the exact reason why we should be willing to look at the situation critically. It is not easy for survivors to come forward under far less visible circumstances; it is infinitely harder to do so when being put under a public microscope and having your story and person torn to shreds is a certainty. Multiple women have been willing to face that level of scrutiny. That’s not something someone does for fun. And as the data shows, false accusations are exceedingly rare.

We can look the other way when considering Hillary’s behavior involving the accusations. And maybe, to some extent, that’s fair. Yes, there have been reports that she hired private investigators in order to bully accusers into silence, but a lot of those reports have also been circulated by notoriously unreliable conservative pundits and politicos. I’m willing to concede that those reports might not be true.

But those aren’t the only criticisms that can be made of Hillary on this note. Indeed, her response to Trump’s comments was problematic in and of itself. After being pressed on the subject at a New Hampshire event, Hillary replied:

I would say that everybody should be believed at first until they are disbelieved based on evidence.

It was a safe response, of course. Nothing wrong on the surface. But when you look at the history of the allegations against Bill and the way those cases were handled, the dismissal of the accusers was not a function of evidence; it was a function of politics. Hillary knows (or should know) about the infrequency of false allegations and how that information interacts with Bill’s track record, but instead of grappling with that, she’s buying whole hog into the fallacy with this comment.

And yes, we can talk about how she really doesn’t have any other pragmatic response. Evidence shows that her numbers surge during attacks like these; buying into them would be like refusing a gift horse. And the idea of having to grapple with such a disturbing reality in such a personal relationship is overwhelming, to say the least. I absolutely get that. 

But you know what’s even harder to deal with? The trauma of sexual assault. Political convenience is a crass and callous excuse here.

And while Hillary’s record is largely a positive one for women, she’s never been a particularly vocal advocate for sexual assault survivors. She’s apologized to other nations for rapes committed by American troops, but unlike her fellow female Democrats, she’s yet to call for reform in how the military handles rape cases internally. In fact, outside of rather soft rhetoric (as seen above), she’s stayed away from any substantive engagement of sexual violence issues.

Again, probably because it’s not real convenient.

And before it’s said that I’m targeting Hillary, let me make it clear that the Sanders response wasn’t a good one either. When asked about the ongoing feud between Hillary and Trump, Sanders said:

I think, you know, we have enormous problems facing this country and I think we got more things to worry about than Bill Clinton’s sexual life. I think — interestingly enough, maybe Donald Trump might want to focus attention on climate change, understand that climate change is not a hoax, as he believes that it is, that maybe Donald Trump should understand that we should raise the minimum wage in this country, which he opposes, and maybe we should not be giving huge tax breaks to fellow billionaires like Donald Trump.

So I think maybe he should focus on those things.

This is just as bad as Hillary’s deflection, if not worse. We’re not talking about “sex”; we’re talking about assault. And while I’m not going to deny that the other issues he references deserve attention, to argue that sexual assault is somehow unworthy of attention as well is an asshole move. It’s also a common move in positions of privilege to deflect conversations that are uncomfortable or politically perilous.

To be fair, I can’t let this critique discount Hillary or Sanders as candidates. Both have a lot of good to offer, and both are infinitely better candidates for president than anyone the GOP is offering. The stakes are too high to dismiss them out of hand. But being willing to accept the lesser of evils during such a time doesn’t mean we stay quiet about imperfections in the candidates we’re willing to consider. When we prioritize painting candidates as perfect over demanding they do better and be better, nothing changes, and we’re no better than the rabid GOP supporters who refuse to criticize their own party.

Listen, I hate having to give anything Trump says the time of day, but I cannot, in good conscience, just ignore this issue. And if you’re calling yourself an ally of sexual assault survivors, neither should you.

(Waits patiently for the tomatoes to start flying.)