The Notorious RBG and the FBI

In the last two weeks we’ve had what should have been two events worthy of conversation around unusualness and potential inappropriateness.

The first just happened and generated all of the conversation. The “Notorious” Ruth Bader Ginsburg spoke out, in my mind just speaking truth, about Presidential candidate Donald Trump. Not surprisingly he reacted badly and the media jumped. In reality, and in our history we’ve had Supreme Court Justices run for President, not succeed, and go back to serving. Perhaps,  our more recent history has colored our perceptions. In 2000, the Supreme Court chose our President, over a majority of American voters. That unusual incident makes it possible that such should happen again and people believe that RBG having put her thoughts into words would not be able to do her duty as a Justice. As Lawrence O’Donnel put it last night should we restrict the justices from voting? She has those thoughts, whether she expressed them or not.

Far more disruptive to the functioning of the Supreme Court is not the Notorious RBG it is the diminishment of the third Co-equal branch of the Government that comes from the Senate refusing to hold a hearing and a vote on a replacement for Justice Scalia. They have basically decided that the will of the American people in electing President Obama is not enough. They don’t like our President and so they want another one in hopes of not getting a nominee that they said prior to his nomination would be someone that was acceptable to them. If that sentence sounds complicated it is. Judge Garland is someone that the Republicans said that President Obama would never nominate. He was the type of person that would be acceptable to them. Then President Obama nominated him and he was suddenly not worth of nomination or they just refuse to give President Obama the respect of having his nominee considered despite it being a constitutional duty both for the President and Senate. Remember, they came out within hours of Justice Scalia’s death saying they would not confirm a new Justice, no matter what. That is a serious breach and should be getting far more attention than it receives.

Now, when the FBI concluded its investigation into Hillary Clinton’s email, FBI Director Comey also broke with traditional roles. He gave a scathing commentary followed by a conclusion that they would not be filing charges. If you review that commentary and the one that he gave as a special prosecutor of the Clinton’s in the 90’s you see a fair amount of similarity in words. The Democrats chose not to call into question his professionalism or his conclusions but I will.

First, he is a Republican. Yes, he was appointed by a Democrat because President Obama trusted him to do his job and not let politics into it, but he failed at that when it came to this critical moment. There was nothing he could do about the results. There was no wrong doing, there was never any wrong doing, this was a chase down a rabbit hole as all investigations into the Clinton’s are. The only time that was not true was when they delved into then President Bill Clinton’s personal life and discovered he was having an affair and that he lied about it. James Comey, now FBI director, was involved in the multiple investigations of the 90’s, and then, like now, there was nothing to find. His discouragement between then and now came out and he piled on everything he could, very publicly, to cast a further pall onto Hillary Clinton, and build the feel of distrust that American’s have for Secretary Clinton.

As always, the reality  is far more straight forward then that. There were two items that has small indications within the document that were marked classified. Neither was correctly marked – they were NOT classified – and neither item was actually classified. As to the email conversations that were about things that “an agency” may consider secret with nothing marked on it. We well know that things are “retroactively classified” and that different agencies have different classifications. That may or may not be right from a governmental perspective but it is a lived reality.

I’m going to interject my own experience here. I managed intellectual property for my program and we worked with the Navy and so had to go through a public release process. We had problems with that process and had a publication held up because an item was flagged as sensitive. We got that item from a presentation that was given at a conference and was posted openly on the web. Classification is a tricky thing and it ends up a fairly subjective thing.

Back to the FBI director’s commentary. He did not approve of the “private server” and thought it might have been penetrated but there was no proof that it was. He also said that she used her phone in countries where that might have been penetrated – again no proof. Also, no mention that they would not give her a phone that would have been absolutely secure. Regardless, there was nothing classified on the now famous server in her basement.

Hillary Clinton did not endanger the country, she did not give away or risk classified information. When she dealt with classified information she had different modes of communication. That is something none of the pundits, or the Director of the FBI were willing to discuss. The ENTIRE investigation was designed to come to one conclusion – a prosecution of Hillary Clinton. When they didn’t get that result the REPUBLICANS were very upset. That was highlighted by how quickly they called a hearing to question for the results. It had nothing to do with the process. It had to do with them not getting the results that they wanted. In that hearing, the FBI Director again called her extremely careless, and not very sophisticated.

Her “sophistication” was not related to Hillary Clinton understanding or not understanding classification. It was about her level of understanding – in 2009 – before there were IPhones – on what it meant to have the email server. This was not a huge conversation or a plotting. She probably told an assistant – I want to be able to have easy access to my emails and not have to carry two phones, or something like that. I don’t know if anyone else remembers all of the “conversation” around what the President would be able to do with his phone. This wasn’t a simple thing. So Hillary Clinton asked for something, her people made it happen and that was that. She didn’t think about it again. She depended upon the system to work, which meant that if she sent an email to someone in the government that email would be in the system. It’s important to note that many officials used non-official government accounts because it worked better.

I worked with people in the government and they hated the official email systems and worked for ways to use non -government email because it was easier. This is a problem, yes, but it isn’t a Hillary Clinton problem. We don’t fund our government agencies properly, especially the State Department. It’s important to remember that.

Did Hillary Clinton make the smartest decision, obviously not, but it was one decision. This was not a daily discussion for her. It was not a nefarious plot. It just meant that she did email. That was it.

But back to the FBI Director. His decision to throw all of his speculation and his opinions in with the decision that there was no cause to prosecute her was incredibly unprofessional and that should get far more attention than what the Notorious RBG said. She had the grace to apologize for making the comments. I doubt the FBI Director will show an equal quality of character. Look at his comments against those in the 90’s . By appearances he still wants to get Hillary for something. After 25 years – he should know better.

Hillary Clinton is a person of a character. The Republicans should try to match that.

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