Can you hear my huge, deep sigh? Sure, I know you can.
I’m sighing because I’ve been so bugged (not a pun) by the crazed, dark accusations flung around Hillary Clinton’s emails. Especially now that Trump’s bloviating lawyers and propaganda machine, i.e., Fox, have dragged emails back into the news.
Aside from the plain ole facts of life regarding Hillary’s emails, there is the murk which unseen but easily identifiable (smaller than normal) hands have been schmearing over the “missing” emails, and the process by which those emails went “missing.”
A fact of life: no Hillary emails went “missing.”
Just to pull ourselves together, let’s go over what specifically is referred to when the dud explosive charge “Hillary’s emails!!!” is lit and re-lit and re-lit.
There are four sets of emails which have somehow all been tangled up with the Hillary’s Emails ball of yarn.
First: the DNC’s email system, hacked by the Russians and leaked by Wikileaks. Anyone who actually read those emails — and everyone could have since every major and minor news operation published them — found nothing scandalous in them. The only people who seem to be ginning up dark conspiracies out of those pablum inter-party workings are paranoids who supported Bernie Sanders and somehow can’t accept that he would not have won the presidency had he received the nomination. And he didn’t receive the nomination because millions more of us voted for Hillary.
Those DNC emails are not “Hillary’s Emails” and are not part of this invented controversy.
Second: John Podesta’s emails. Very scandalous. The only email major news media have found interesting enough to print is the one with his risotto recipe. I have my own risotto recipe and did check his out to see if ours are identical. Some variation. I’m sticking with mine.
Third: State Department emails involving Huma Abedin which were found on her then-husband’s home computer. Those emails, the discovery and announcement of which were undoubtedly one of the reasons Hillary won the election but not the Electoral College, were found to replicate all the State Department emails the FBI had investigated earlier.
Fourth: Emails Hillary retained (along with personal email correspondence) on her private server. Half of these emails related to her work as Secretary of State. It’s my understanding that a majority, if not all, of the State emails were also on the State computer system.
Those emails were the subject and object of the FBI investigation. The FBI mandate was to review whether any government emails were marked “Classified” and, thus, should not have been transferred to or from a private server, i.e., Hillary’s.
Despite Comey’s propensity for inappropriate church-y theatrics, the FBI did not discover any classified emails.
So what’s the problem?
There isn’t one, except in the minds of conspiracy lunatics.
Let me delve into the times I was at least peripherally involved with the discovery of massive numbers of documents in lawsuits, during which I came to understand the general intra-party procedures for reviewing and turning over such documents.
I’m going to apply what I experienced to what I believe must have happened during the Hillary email FBI investigation.
- FBI lawyers contacted Hillary’s lawyers, probably in an official written discovery document, demanding that emails on Hillary’s server be turned over to them.
- Hillary’s lawyers responded to the FBI lawyers and said, “OK, but our initial review shows us there are maybe 60,000 emails, half of which are her personal correspondence. Don’t you agree it’d be far more efficacious for us to turn over only the State Department emails you’re requesting?” They’d suggest that as a first move they would review them all, come up with a log or something and give the FBI the log.
- In response, the FBI lawyers would eventually have said something like, “OMG! Yes, thank you.” Because otherwise, the FBI lawyers and a large staff would have to read through 60,000 emails. So why not have the other side cull this mass of paper?
- Now, why would FBI lawyers trust Hillary’s lawyers to do this work? Conspiracy-minded propagandists don’t understand or don’t want to understand that lawyers are officers of the court (Black’s Law Dictionary definition, my bolding):
A person who is charged with upholding the law and administering the judicial system. Typically, officer of the court refers to a judge, clerk, bailiff, sheriff, or the like but the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of candor to the court.
5. Which means that the FBI lawyers and Hillary’s lawyers shared an implicit trust. So when Hillary’s lawyers said, “Let us separate the State Department stuff from the personal stuff,” the FBI lawyers said, “Sure.”
6. If at any stage of this process the FBI lawyers felt anything was being withheld from them, they would have gone to court and asked that a judge get involved. I’m not sure there was a judge; if the FBI was getting along smoothly with Hillary’s lawyers, they wouldn’t have requested that a judge get involved.
(7. If either the FBI or Hillary’s lawyers asked that a judge be involved, the questioned emails could have been turned over to the judge under seal, i.e., to be read only by the judge and her staff. Which means the judge’s staff would have had to go through all of them to determine which, if any, could be excluded. 60,000 emails. Irritated sigh from judge and even bigger sigh from her small staff. Long delay in investigation.)
8. More likely, all the lawyers came to an agreement: Hillary’s lawyers would read every email, make a log separating relevant from personal emails, and turn over the relevant emails (and log) to the FBI.
9. The “30,000 missing emails”? They were never missing — not by the FBI, at least. The FBI had full access to all the emails they needed to review in order to come to the conclusion they did: our security had not been compromised by Hillary Clinton and her private server. Which, by the way, is the only server I’ve heard of that did not get hacked by the Russians.
10. Once those 30,000 emails were bilaterally determined to be personal and irrelevant to the FBI investigation, Hillary’s lawyers could do whatever they wanted with them. Make a big collage or paper planes or zillions of origami swans, or a bonfire…
They were Hillary’s emails, not the government’s. Unlike the emails Trump’s people are in an uproar over–emails which were government owned and therefore openly available to Mueller and his team.
Yes, that last was a gratuitous swipe.
This is what I believe happened with the FBI investigation of Hillary’s emails. I’m not a lawyer, though, so if any lawyer wants to comment — confirm or critique — I’d be pleased to publish it.