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Ignatius: "I Couldn't Find A Case Where This Kind Of Activity Had Been Prosecuted... Legally There Is No Difference Between [Clinton] Using Her Private Server And If She'd Used State.gov"
During an appearance on MSNBC's Morning Joe, Washington Post columnist David Ignatius thoroughly debunked arguments that Hillary Clinton should be charged with a crime as a result of her use of a private email system while serving as secretary of state. When MSNBC re-aired the first hour of its program later in the morning, the bulk of Ignatius' debunking had been edited out.
On the September 4 edition of Morning Joe, co-hosts Joe Scarborough and Mika Brzezinski continued their efforts to stoke controversy around Hillary Clinton's email practices while serving as secretary of state. Both Scarborough and Brzezinski suggested that guest David Ignatius was simply "getting tired" of the wall-to-wall media coverage directed at Clinton after the columnist authored an August 28 op-ed in The Washington Post arguing that "this 'scandal' is overstated." Ignatius responded by explaining that experts he spoke with dismissed as far-fetched claims Clinton committed a criminal offense.
But during the rebroadcast of the segment, Morning Joe cut away from Ignatius' explanation mid-sentence. During the initial broadcast, Ignatius said (emphasis added), "As I talked to a half dozen of lawyers who do nothing but this kind of work, they said they couldn't remember a case like this, where people informally and inadvertently draw classified information into their phone conversations or their unclassified server conversations, where there had been a prosecution."
When the segment re-aired, Ignatius is heard saying, "As I talked to a half dozen of lawyers who do nothing but this kind of work, they said they couldn't remember a case like this," before the show skipped forward to a remark by co-host Mika Brzezinski about Clinton aide Cheryl Mills.
Significantly, the rebroadcast failed to include the conclusion of Ignatius' thought, which is that Clinton's email practices do not amount to a prosecutable offense, according to several expert attorneys he talked to. Here are Ignatius' unedited remarks (emphasis added):
JOE SCARBOROUGH: David, so you have over the past week or two turned a bit in some of your editorial, in some of your op-eds, you've said you would rather hear Hillary's policy positions than more talk about the servers, you said you don't think she faces any criminal prosecution. You haven't exactly said nothing is here, move along, move along, but you've certainly --
MIKA BRZEZINSKI: Getting tired of it, which is what they're hoping.
SCARBOROUGH: -- Yeah, I mean aren't you playing into what the Clinton sort of scandal response team wants, which is so much stuff comes at you that at some point you just say, "Come on, let's just move on."
DAVID IGNATIUS: Joe, I've tried to respond as a journalist but in particular I've tried to look at what is a real prosecutable offense here. There are violations clearly both of administrative procedure and probably technically of law and how classified information was handled. As I talked to a half dozen of lawyers who do nothing but this kind of work, they said they couldn't remember a case like this, where people informally and inadvertently draw classified information into their phone conversations or their unclassified server conversations, where there had been a prosecution.
SCARBOROUGH: But this isn't happenstance. This is a very calculated move to say if you want to communicate with the Secretary of State, as Edwards Snowden said, whether you are a foreign diplomat or a spy chief from another country or a leader of another country, which they all did, you've got to come to this unsecured server, whether it is in Colorado or wherever it is, and there is a standard in the U.S. Code under prosecutions for this sort of thing which is gross negligence. It's not a know or should have known -
IGNATIUS: This issue comes up surprisingly often because there is an administrative problem where people do these things and their security officers summon them and warn them and issue reprimands and it goes in their file and it's a serious personnel administrative problem. My only point is I couldn't find a case where this kind of activity had been prosecuted and that's just worth noting as we assemble our Clinton e-mail - and more thing, Joe, legally there is no difference between her using her private server and if she'd used State.gov, which is also not a classified system. The idea that, oh this would have been fine if she used State.gov, not legally, no difference.
Here is how Morning Joe re-aired the segment:
Scarborough, a former Republican member of the House of Representatives, has a long history of hyping the supposed Clinton email "scandal" despite all evidence to the contrary. He recently claimed that Clinton intentionally timed a press conference to coincide with a mass-shooting in Virginia and falsely claimed that Clinton whitewashed a foreign country's ties to international terrorism in exchange for a charitable donation to her family foundation.
A reader tip contributed to this story. Thank you for your support and keep them coming.
News outlets are calling out a misleading conservative media claim that Hillary Clinton's email use mirrors the improper acts of former CIA Director John Deutch, who intentionally created and stored top secret material on unsecure systems. By contrast, "State Department officials say they don't believe that emails [Clinton] sent or received included material classified at the time," which is why experts conclude the Deutch case does not "fit the fact pattern with the Clinton e-mails."
More media outlets are debunking misinformation surrounding Hillary Clinton's use of private email, dismantling three main talking points used to accuse Clinton of malfeasance by highlighting that Clinton used her email in a "common" manner, that her situation isn't criminal, and that her handling of email is not comparable to what retired Gen. David Petraeus was convicted of.
Washington Post opinion writer David Ignatius checked the "overstated" uproar over Hillary Clinton's email use as secretary of state, citing national security legal experts who roundly dismiss the idea that any criminal mishandling of classified information occurred.
In an August 28 post describing "The Hillary Clinton e-mail 'scandal' that isn't," Ignatius cited legal experts and agency officials to explain how Clinton's use of a private server is "not something a prosecutor would take to court" and how transmitting unmarked, then retroactively classified emails does "almost certainly not" constitute a crime:
Does Hillary Clinton have a serious legal problem because she may have transmitted classified information on her private e-mail server? After talking with a half-dozen knowledgeable lawyers, I think this "scandal" is overstated. Using the server was a self-inflicted wound by Clinton, but it's not something a prosecutor would take to court.
"It's common" that people end up using unclassified systems to transmit classified information, said Jeffrey Smith, a former CIA general counsel who's now a partner at Arnold & Porter, where he often represents defendants suspected of misusing classified information.
Clinton's use of a private e-mail server while she was secretary of state has been a nagging campaign issue for months. Critics have argued that the most serious problem is possible transmission of classified information through that server. Many of her former top aides have sought legal counsel. But experts in national-security law say there may be less here than it might appear.
First, experts say, there's no legal difference whether Clinton and her aides passed sensitive information using her private server or the official "state.gov" account that many now argue should have been used. Neither system is authorized for transmitting classified information. Second, prosecution of such violations is extremely rare. Lax security procedures are taken seriously, but they're generally seen as administrative matters.
Informal back channels existed long before e-mail. One former State Department official recalled the days when most embassies overseas had only a few phones authorized for secret communications. Rather than go to the executive office to make such a call, officers would use their regular phones, bypassing any truly sensitive details. "Did we cross red lines? No doubt. Did it put information at risk? Maybe. But, if you weren't in Moscow or Beijing, you didn't worry much," this former official said.
Back channels are used because the official ones are so encrusted by classification and bureaucracy. State had the "Roger Channel," named after former official Roger Hilsman, for sending secret messages directly to the secretary. The Joint Chiefs of Staff had a similar private channel. CIA station chiefs could send communications known as "Aardwolves" straight to the director.
Are these channels misused sometimes? Most definitely. Is there a crime here? Almost certainly not.
Ignatius also knocked down conservative media's oft-repeated refrain that Clinton's email use was akin to David Petraeus' crimes, noting how intent to mishandle classified information is central to culpability:
Potential criminal violations arise when officials knowingly disseminate documents marked as classified to unauthorized officials or on unclassified systems, or otherwise misuse classified materials. That happened in two cases involving former CIA directors that are cited as parallels for the Clinton e-mail issue, but are quite different. John Deutch was pardoned in 2001 for using an unsecured CIA computer at his home to improperly access classified material; he reportedly had been prepared to plead guilty to a misdemeanor. David Petraeus pleaded guilty to a misdemeanor in April for "knowingly" removing classified documents from authorized locations and retaining them at "unauthorized locations." Neither case fits the fact pattern with the Clinton e-mails.
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Last week, the Washington Post reported on a new Kaiser Family Foundation poll:
The poll found that misconceptions about the legislation persist, including the "death panel" falsehood propagated by opponents of the legislation.
"A year after the town meeting wars of last summer, a striking 36% of seniors said that the law 'allowed a government panel to make decisions about end of life care for people on Medicare', and another 17% said they didn't know," Kaiser Family Foundation chief executive Drew Altman wrote.
Brendan Nyhan argues that "motivated reasoning appears to play an important role in the persistence of the misperception ... 55% of seniors with an unfavorable view of the law believed in the death panel myth, while only 17% of those with a favorable view did so."
I would argue that something else surely plays a role: The failure of the media to consistently and clearly explain that the "death panels" claim was false. Sure, most major news organizations made that clear at least once. But they didn't do so consistently.
Let's take the Washington Post, for example, since it reported on the persistence of the myth.
Washington Post media critic Howard Kurtz has praised his paper's "death panels" coverage, writing on March 22: "One stellar moment for the press was the refusal to perpetuate the myth of 'death panels.' ... journalists at The Washington Post, New York Times, CNN and ABC News, among others, said flatly that this was untrue." And Post political reporter Perry Bacon said in June 21 Live Q&A: "If you recall, the death panels issue got traction in conservative media, even as papers like ours did not cover it very much."
But this year alone, Post readers have encountered more than a dozen references to "death panels" that failed to explicitly state that such panels didn't exist. The following articles and columns mention the "death panels" claim without stating its falsity:
"The doctor is (finally) in; Medicare administrator must usher in low-cost, efficient care," David Ignatius, July 9
"A patriot's second act," Dana Milbank, June 3
"Under the new health-care law, what will happen when providers' morals conflict with patients' rights?," Rob Stein, May 11
"History shows that Democrats aren't exactly the boys of summer," Al Kamen, March 26
"44: Grassley touts provisions he authored in health bill he voted against," Michael Shear, March 24
"Three points for conservatives," E.J. Dionne, March 23
"The Republicans who stirred the tea," Dana Milbank, March 22
"Would Reagan vote for Sarah Palin?; He's their hero, but Palin and the tea partiers need to understand his true legacy," Steven F. Hayward (AEI) March 7
"Political theater with a point," Kathleen Parker, March 3
"Obama ready to advance on health care; In radio address, GOP compromise still offered but has limited shelf life," Anne Kornblut, February 28
"Trig and political calculus," Kathleen Parker, February 14
"How can apple pie suddenly turn bad?; To learn what's gone wrong with health-care reform, go back to 1994," Abigail Trafford, February 2
"Funding for health-care interest groups often fuzzy," Dan Eggen, January 7
"Leader without a cause," Richard Cohen, January 5
Yes, some of those are opinion columns, including one written by an AEI staffer rather than a Post employee. That isn't a relevant defense: Opinion columns have the ability to influence readers, too -- otherwise, why would they exist? And the Washington Post is responsible for everything that appears in its pages.
And, to be sure, some of those references are critical of the "death panels" rhetoric. The March 23 E.J. Dionne piece, for example, read:
In its current incarnation, conservatism has taken on an angry crankiness. It is caught up in a pseudo-populism that true conservatism should mistrust -- what on Earth would Bill Buckley have made of "death panels"? The creed is caught up in a suspicion of all reform that conservatives of the Edmund Burke stripe have always warned against.
But it didn't say the "death panels" claim wasn't true. (To Dionne's credit, his July 26 column was explicit: "There were no 'death panels' in the Democratic health-care bills. But this false charge got so much coverage that an NBC News-Wall Street Journal poll last August found that 45 percent of Americans thought the reform proposals would likely allow 'the government to make decisions about when to stop providing medical care to the elderly.' That was the summer when support for reform was dropping precipitously. A straight-out lie influenced the course of one of our most important debates.")
No such credit is owed to Kornblut's February 28 news article, which simply stated "Death panels became part of the debate last summer, after prominent Republicans, including former Alaska Gov. Sarah Palin, claimed the government would set them up to decide who could live or die." Or Kamen's misleading statement that "the tea partiers got their operation in gear at the usually dull town hall meetings with lawmakers, berating them for supporting those death panels." Really? "those" death panels? Which death panels are "those"?
Washington Post readers shouldn't be surprised to learn that many people still believe in "death panels" -- not when the Post has repeatedly mentioned the death panel claim without debunking it.
Incidentally, Washington Post reporters and editors won't answer this simple question: Does the Post think it is sufficient to occasionally debunk falsehoods, or does the paper believe it should do so every time it prints those falsehoods?
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Washington Post columnist David Ignatius asserted of Hillary Clinton's presidential campaign: "[V]oters are grappling with the unusual questions that would surround her presidency. And the most important of these is the 'two presidents' problem. Whatever you think of the Clintons, it's hard to get your mind around having a current and former president in the White House." But a September 27-30 Washington Post/ABC News poll found that 60 percent of respondents said they "personally feel comfortable ... with the idea of Bill Clinton back in the White House." And in several other 2007 polls, a majority of respondents stated that Bill Clinton is an asset to Hillary Clinton's campaign or would have a positive effect on a Hillary Clinton administration.
In his Washington Post column, David Ignatius asserted that if Sen. Chuck Hagel decides to run for president in 2008, "he can claim to have been right about Iraq and other key issues earlier than almost any national politician, Republican or Democratic." However, Ignatius' claim is undermined by the fact that Hagel voted to authorize military action against Iraq in October 2002, which numerous Democrats vocally opposed at the time.
In recent days, numerous pundits have summarily dismissed concerns about the takeover of operations at six U.S. ports by a company owned by the government of Dubai, a member state of the United Arab Emirates, despite the fact that the Bush administration opted not to conduct the 45-day investigation into the deal's national security implications provided for -- and, critics argue, required -- by federal law.