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Michael A. Cohen

8 takeways from the Clinton e-mail probe

FBI Director James Comey testified before the House Oversight and Government Reform Committee on July 7.MICHAEL REYNOLDS/EPA

On Tuesday, FBI Director Jim Comey confirmed that there would no criminal indictment against Hillary Clinton for her use of a private e-mail server — which hopefully puts this over-inflated scandal to bed.

Here are eight takeaways on what we’ve learned and what it all means:

1. Clinton made a huge “political” mistake in setting up a private e-mail account on which to conduct State Department business. She opened herself up to exactly the kind of hyped-up criticisms to which the Clintons have long been subjected. But this doesn’t mean Clinton’s actions were reckless, unusual, or as damaging as they are being described.


2. When Clinton said she used one e-mail account for convenience, she is most certainly telling the truth. She didn’t want her private communication to be saved on State Department servers and thus potentially available via a FOIA request or a congressional inquiry. And she also didn’t want to do what many government employees and many Americans do: use two phones — one for work and one for their personal lives. She wanted the ease of one phone. Whether this is an example of recklessness and bad judgment is in the eye of the beholder.

3. Someone on Clinton’s staff should have told her that setting up a private e-mail server, rather than dealing with the rigmarole of two phones, was a bad idea. Few staffers want to stand up to their boss and tell them, “You can’t have what you want.” That no one did so harmed Clinton politically. It’s something she should think about if she is elected president and she begins assembling a presidential staff.

4. Whatever one thinks of Clinton’s actions, Comey’s depiction of Clinton’s actions as “extremely careless” was prejudicial and inappropriate. The only reason for delivering such a lacerating attack on Clinton was to inoculate Comey and the FBI from accusations that he was not recommending charges be filed due to political pressure. But that’s an excuse, not an explanation, and a weak one at that. Comey’s press conference was a political act intended to protect Jim Comey and the FBI. It bears noting, however that the press conference might not have been necessary had Bill Clinton not met with Attorney General Loretta Lynch the week before. I suspect that Comey still would have delivered his statement anyway, but Clinton’s visit to Lynch’s plane could easily have forced his hand.


5. Comey’s characterization of “extremely careless” referred to the fact that Clinton’s private e-mail account contained classified material. This statement has been getting a lot of publicity, but it’s a charge lacking in context. State Department employees use classified and unclassified e-mail accounts — though primarily the latter. This means that classified material inevitably finds its way into unclassified e-mail accounts. If the FBI were to do an audit of every State Department employee’s unclassified e-mail, they would almost certainly find some content that might be considered classified. Comey pointed to seven e-mail chains in Clinton’s e-mails that contained classified material out of more than 30,00 e-mails read. It’s hard to see how seven chains out of 30,000 work-related e-mails reflects “extremely careless” behavior. Moreover, Comey said three of the 30,000 e-mails searched contained markings that showed they were classified, though he has since acknowledged that the documents in question were not marked classified. It’s worth noting that there is still zero evidence that any classified material became public, or was accessed by someone without a security clearance, because of Clinton’s actions.


6. Comey said that “any reasonable person” should have known that Clinton’s conversations shouldn’t have taken place on an unclassified e-mail account. This is a highly subjective view, which doesn’t do justice to the nebulous manner in which material is classified. Considering the fact that there has been so much controversy over how different agencies classify different material, the basis for Comey’s assertion is unclear, particularly since he’s someone who is not a State Department employee and is unfamiliar with the culture there.

7. But this gets to a larger more difficult issue: State Department employees need to communicate on unclassified e-mail accounts, but the technology and the rules that exist have not caught up to this fact. Quite simply, government has failed to adapt to the way people communicate in the 21st century. A desire for convenience, speed, and accessibility drove Clinton’s decision to have a private e-mail account — but so, too, did the limitations of the federal government’s IT systems, particularly at the State Department.

8. The damage from Comey’s indignant press conference is less the political cost to Clinton and more that it sends a warning to government employees that even the slightest leakage of classified material into an unclassified system will be judged harshly. Will this encourage employees to further seek the kind of workarounds that often lead to more insecure security situations? Will this scrutiny encourage employees to conduct business on the phone rather than e-mail? Will it push them to more frequently use private e-mail accounts rather than government accounts, because it’s quicker and easier? The rules governing the use of classified materials can be harsh and punitive – and often for good reason. But in era of mobile communications, perhaps there should be a push for under-classification, and for being more lenient with those employees who violate the rules — not out of willful misconduct, but from a desire to do their jobs more efficiently.


Oh and, here’s one last takeaway — at the end of the day, the Clinton e-mail scandal will simply reinforce existing perceptions of her and not change the presidential race one iota.

Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.