Murder Is Down in New York City

Here's the latest from the New York Police Department:

That's fewer murders, pal. Don't let Twitter be an excuse for bad grammar. Our kids look up to you.

Originally, I was going to post this to show that, in fact, we're probably not in the middle of a nationwide crime wave caused by the "Ferguson Effect." Or if we are, it was short lived. But we won't know that for a while.

However, when I heard about this I headed over to the NYPD website to see if they had a press release with more information. Not only did they not have such a thing, it turns out they don't even issue press releases anymore except for their weekly traffic advisory. I originally heard about the crime stats from a reporter on Twitter who said he had received an email. On the NYPD site, I was informed that I could download their official app (iPhone or Android). Or I could scroll through their Twitter feed. Or I could listen to a podcast.

That's it. Apparently the era of the press release is over, and the rest of us just don't know it yet. That's too bad. It may be old fashioned, but it does allow room for a wee bit more detail than a tweet.

A few months ago I wrote about one of my "liberal heresies": I'm not really a big fan of campaign finance reform. "Maybe this will be the first entry in a periodic series," I said hopefully. But no. I'm a big old wimp, so I never wrote #2 in that series: I'm not really a huge fan of radical transparency either.

But Matt Yglesias wrote about this today, which means he'll take the lion's share of the blowback for being skeptical of transparency. I will say, however, that his arguments struck me as sort of odd:

Phone calls are journalistically indispensable when you want to conduct an extended interview, but for a routine query or point of clarification, email is much, much better…The issue is that administration officials and other executive branch aides don’t want to leave a record of the conversation that might come to light one day.

…The idea that digital text communications are like memos—and should be disclosed as a kind of official government work product— is wrong…A message dashed off on a phone while riding the bus or a quick thumbs up reply clearly aren’t digital versions of an old-time longhand letter. Most email is informal and conversational, and over time digital communication has moved beyond email to mediums that are even better suited to the conversation approach.

…There are a lot of things that colleagues might have good reason to say to one another in private that would nonetheless be very damaging if they went viral on Facebook…Healthy brainstorming processes…blunt assessment of the strengths and weaknesses of different members of the team…describe an actual or potential problem in vivid terms to spur action.

This is a little choppy, but there are basically three arguments here: (1) if email is dangerous, it just forces officials to make more phone calls, (2) email isn't really like old-fashioned paper mail; it's like a conversation, and (3) there are good reasons government officials might want to have private policy discussions.

The first argument is all bound up in the weird Gen X/Millennial dislike of talking on the phone, and it doesn't really do much for me. If emails from government officials really should be publicly accessible, then they should be accessible. The fact that this might drive dishonest actors into furtive phone calls and private meetings in parking structures is neither here nor there.

The second argument is questionable. I don't care if you're on a Unix workstation or an iPhone, email is a written medium. The fact that it can sometimes be conversational has little bearing on whether it should be subject to a FOIA request. Besides, if you exempt email entirely, you just end up creating yet another version of the furtive phone call problem.

But then we come to the third argument: Sunlight may be the best disinfectant, but too much sunlight will give you skin cancer. This is really the only one you need. The public unquestionably has an interest in how and why public policy is determined, but policymakers also have a legitimate interest in being able to speak frankly while they're doing the determining. This conflict of interests is genuine, and the answer is to address it, not to simply assume that everything everywhere should be open to the public.

Everybody understands this, which is why there are some exceptions to FOIA. Within the executive branch, for example, the executive office of the president is largely exempt from FOIA. But this can be taken too far: Congress has exempted itself entirely from FOIA, despite the fact that the public has plenty of legitimate interest in how they make their sausages.

What we need is a genuine middle ground. Unfortunately, as Yglesias says, it's an impossible subject to discuss right now because it's so bound up with Hillary Clinton's emails. But I disagree. I think this makes it the perfect time to talk about it.

Part of the reason is that Hillary Clinton is a real object lesson in how FOIA can go wrong when it's weaponized. Another part is that liberals are the biggest fans of transparency, and seeing one of their own pilloried by it might make them take a second look at whether it's gone off the rails. What we've seen with Hillary Clinton is not that she's done anything especially wrong, but that a story can last forever if there's a constant stream of new revelations. That's what's happened over the past four years. Between Benghazi committees and Judicial Watch's anti-Hillary jihad, Clinton's emails have been steadily dripped out practically monthly, even though there's never been any compelling reason for it. It's been done solely to keep her alleged corruption in the public eye.

Reporters aren't stupid. They know this perfectly well. And yet, news is news. They can't help themselves from covering every new release of emails, even if they don't really show anything very interesting. (And there's much more to come.) Donald Trump, by contrast, has adopted a policy of radical concealment—no tax returns, no medical disclosures, no business records, and certainly no internal emails—and it's worked great. He's taken some hits for all this, but they don't do much damage. With nothing new to report, it's hard to keep an investigation going.

So what's the answer? I'm not going to pretend to have a detailed policy to offer, but in general terms I think it's this: less transparency, but faster, more effective transparency. Even journalists might buy this trade. I believe that cabinet officers need to have a certain amount of space to have policy discussions without fear of every word they say becoming public. For this reason, FOIA should be tightened in some ways. At the same time, the biggest problem with FOIA is that it's abysmally slow and clunky. You have to word your requests just right. You have to pay fees that sometimes make no sense. And then you have to wait forever, and then maybe appeal, and then wait some more, because compliance departments are woefully underfunded and undermanned.

The devil is in the details, but in broad strokes that's the deal I'd like to see. Change FOIA rules so executive branch officials have more latitude for the kinds of frank policy discussions they need to have—and less fear that their every word will be used not to enlighten the public, but solely as nuclear weapons in political campaigns. But in return, properly fund compliance and place real limits on how long legitimate FOIA requests can be stonewalled. Any takers?

Former Fox News anchor Gretchen Carlson said she had tape recordings of Roger Ailes being a disgusting creep. Sadly, we'll never get to hear them:

21st Century Fox is pleased to announce that it has settled Gretchen Carlson’s lawsuit....We sincerely regret and apologize for the fact that Gretchen was not treated with the respect and dignity that she and all of our colleagues deserve.”

Ms. Carlson issued the following statement: “I am gratified that 21st Century Fox took decisive action after I filed my Complaint. I’m ready to move on to the next chapter of my life in which I will redouble my efforts to empower women in the workplace.”

This statement was accompanied by a $20 million check, and you might be forgiven if you think that's an awful lot of money for a mere lack of "respect and dignity." Those must have been some tapes.

In related news, two other women at Fox are expected to receive settlements, and Greta Van Susteren abruptly resigned from Fox today. Apparently no one knows what the Van Susteren thing is about. Maybe it's got nothing to do with Ailes and Carlson. It's odd timing, though, two months before Election Day.

One Perfect Tweet That Shows How Ridiculous Fox News' Latest Scandal Is

Roger Ailes used to be the head of Fox News but left after it was revealed that he was subjecting countless female employees to sexual harassment. The thing that got the whole thing moving was a lawsuit from former Fox & Friends host Gretchen Carlson. When Ailes officially left the company, he did so with a $40 million golden parachute.

Today, Gretchen Carlson settled her suit with Fox News for a reported $20 million, exactly half what her accuser walked away with.

This is all to say, here is a tweet that will make your blood boil.

Ladies and gentlemen, here is a timeline of events for your consideration. All of these events took place in 2013:

Late August: Florida Attorney General Pam Bondi calls Donald Trump to ask for a donation to her reelection campaign.

September 10: In an unusual show of interest in a down-ballot race in Florida, Ivanka Trump donates $500 to Bondi. Apparently that's insultingly small.

September 13: Bondi tells the Orlando Sentinel that her office is "currently reviewing the allegations" that Trump University has defrauded its students.

September 17: The Trump Foundation makes a $25,000 contribution to a PAC backing Bondi.

October 15: The Florida Attorney General's office backtracks, telling the Orlando Sentinel there was never any consideration of joining the lawsuit against Trump U because they had received only one complaint during the time Bondi was in office. This was untrue: the AG's office had received a couple dozen complaints, but had weeded them out so they could say there was only one.

There have been an endless number of stories about "clouds" and "suspicions" and "questions raised" regarding donations to the Clinton Foundation while Hillary Clinton was Secretary of State. So far, though, there's nothing even close to a smoking gun. Quite the opposite: the evidence so far suggests very strongly that nobody ever got anything for contributing to the Foundation.

But here we have a case that's a mere hair's breadth away from a smoking gun. There's only the slightest wiggle room for believing that the events in Florida are all just a big coincidence. Maybe they deserve a little bit more front-page attention?

Here's the front-page headline from Monday's Washington Post:

Inside Bill Clinton’s nearly $18 million job as ‘honorary chancellor’ of a for-profit college

And here's the first sentence of the fifth paragraph:

There is no evidence that Laureate received special favors from the State Department in direct exchange for hiring Bill Clinton....

And this from the 26th paragraph:

Clinton’s contract with Laureate was approved by the State Department’s ethics office....An ethics official wrote that he saw “no conflict of interest with Laureate or any of their partners,” according to a letter recently released by the conservative group Citizens United, which received it through a public-records request.

Roger that. I hope everyone will excuse me if I ignore this entire story until there's even the slightest hint of some kind of wrongdoing or corruption.

Why did Hillary Clinton handle her email account the way she did? Generally speaking, the focus has been on the possibility that she wanted to keep her official emails on a private server so they wouldn't be accessible to the public via FOIA requests. I think this is probably wrong, but before I explain why, I want to lay out the following fact pattern:

  1. In 2009, when Clinton took office, the State Department was willing to issue her an official BlackBerry with a state.gov address, but the device wasn't allowed to connect to a personal email account. Likewise, a personal device could connect to a personal account, but not to a state.gov account.1 So if Clinton didn't want to haul around two devices, her only choice was to use a personal BlackBerry and conduct official business on a personal account. That's what she decided to do.
  2. This was a dumb and fateful choice. So was her decision to use a single email account instead of two separate accounts for work and personal business. Why did she do it? It's impossible to say for sure, but there's abundant evidence that Clinton was almost completely technically illiterate. She had virtually no experience even using a computer, and frequently discarded new BlackBerries after a few days because she was frustrated that they worked differently than her old one. She had no computer on her desk. She was famously confused by her iPad. Like a lot of people, she basically treated email like magic: you type some words, press a button, and your words end up somewhere else. All the intricacies of protocols and servers and intermediate storage and backups were like so much Greek to her.
  3. That said, Clinton was well aware that her department emails were official records and had to be retained. The evidence makes it very clear she knew this. What's more, while her use of a private server may not have been known widely, there were plenty of people who did know. It's hard to believe that she did this with FOIA in mind, since a non-government email account would have been a spectacularly stupid and ineffective way to try to avoid FOIA requests.
  4. Clinton did in fact retain all of her emails on her private server. When the State Department asked for them, she turned everything over to them promptly, with no hedging or negotiation.
  5. There's been lots of feverish speculation that Clinton may have deleted some official emails before turning them over to State, but there's no evidence that this ever happened. In fact, it's harder than it sounds to do this. If you delete an email—and its stored copy and its backup—and that email is referenced from another email, you're busted. If there's an email chain that suddenly ends without having been resolved, you're busted. If there's an unexplained "18-minute gap" in the email IDs, you're busted. If Clinton or her aides had deleted a bunch of embarrassing emails, they'd have to be very, very careful to make sure there was no evidence of a "missing" email anywhere in the stuff she turned over. That would require a lot of extremely careful work.
  6. As it happens, a number of Clinton's emails have been recovered that were missing from the material she handed over to State. Did she or her aides deliberately withhold them? Not a single one of them has been even remotely suspicious or embarrassing, so it hardly seems likely. After all, why delete innocuous emails?
  7. In November 2010, Clinton's BlackBerry was malfunctioning and her staff suggested getting an official State BlackBerry. In response, Clinton wrote, "Let's get separate address or device but I don't want any risk of the personal being accessible."

When you put all this together, it leads to an obvious conclusion: Hillary Clinton did want to protect her emails from FOIA, but the emails she was concerned about were her personal emails. Unfortunately, her initial decision to use only a single email account—probably because she was technically illiterate and simply didn't understand why this was such a bad idea—turned everything into a circus. Before turning her records over to State, she had to carefully pull out all the personal emails and then make it clear that she wanted them deleted so they could never, ever be retrieved. Her experience led her to believe that personal or not, if they were somehow accessible they would be subpoenaed and leaked and everyone would go bananas over them.

So her staff complied. Once the official emails had all been turned over, they ordered the electronic records deleted, the hard disks erased with BleachBit, and the backups destroyed, along with a new retention policy that all of Clinton's personal emails would be deleted after 60 days. This was done not because there were missing official emails they wanted to hide, but because they wanted to make sure Clinton's personal emails were well and truly gone.

I believe the fact pattern of Clinton's email usage fits this conclusion far better than any other. We've now seen tens of thousands of Clinton's official emails—more than we've ever seen from any other high-level federal official—and they're boring as hell. We've seen emails that were deleted and then recovered from other people's accounts. They're boring as hell. The vast bulk of them are short conversations with a handful of close aides, and are largely restricted to the tedious minutiae of press releases, talking points, schedules, and other day-to-day matters.

What's more, paranoia over exposure of her personal emails fits perfectly what we know about Clinton's character. She distrusts Republicans in Congress, she distrusts the press, and she feels that both will take any chance they can to embarrass her with out-of-context leaks of her personal life. Whether or not you think this attitude is justified, it's unquestionably the attitude she has.

One final note: I'm a partisan. I'm keenly aware that I'm motivated to find innocent explanations for Clinton's actions—partly because I like her, and partly because I don't think she's shifty and scheming. Obviously you have to take this into account. Nonetheless, I think the evidence pretty clearly points in one direction: Hillary Clinton was concerned about her personal emails being made public, and after her initial bad decision to use a single account for everything she was stuck. Anything she did to erase her personal emails would inevitably affect her official emails too. She never cared about those, but everyone else did.

1I think this is true. If anyone knows different, let me know.

I had a conversation today on Twitter that suggests there's something that perhaps a lot of people don't quite understand. Hillary Clinton says that she trusted her staff to make sure they sent only unclassified information to her email account. That's fine for her close aides, who knew what she was doing, but what about people who didn't realize she was using an account on a private server? Perhaps they felt free to send her classified material because they assumed she was on a state.gov account?

No. First of all, they could see her email address when they sent her stuff. But that's not the real explanation. The real reason they made sure not to send her classified material was because they themselves were using unclassified systems. Here's a typical email:

Philip Crowley is sending this email from his state.gov account. Reines, Mills and Verveer also have state.gov accounts. But that doesn't mean they're secure accounts. They aren't. They're supposed to be used only for nonsensitive material. If you want to exchanged classified information, there's a separate State Department system. (Or you can do it in person, or over a secure phone or fax.)

That's why Clinton trusted her staff to follow proper procedures. It didn't matter whether she had a state.gov address or not. Even if she did, it would have been limited to unclassified material, and everyone knew it. With one trivial exception, everybody followed this rule faithfully: no one in four years sent Clinton anything via email that they thought was sensitive. This remains true even if some classification authorities in the intelligence community—which tends to be far more hypersensitive than State—disagreed several years later.

Bottom line: Whatever else you think of Clinton's reasons for using a personal server, she wasn't endangering classified material by using it. Everyone else was also using unsecure email, and they knew not to use it to send classified documents.

However, what Clinton was doing was endangering proper storage and retention of her emails. Why did she do that? I'll have more about this tomorrow.

A Quick Follow-up on Hillary Clinton's Email

In my piece last night about the FBI report on Hillary Clinton's email, I didn't spend much time on minutiae about the number and type of classified emails that were found on Hillary's server. We've been through all that, and the report didn't have anything new to add on the subject. But I did say this:

Most people the FBI talked to used private email accounts all the time; did their best to keep classified information out of these channels; and didn't believe that any of the emails they sent included classified information. Other classification authorities have disagreed, as we all know by now, and the entire discussion gives you a taste of how subjective the classification process is. Basically, we have lots of experienced people who disagree about whether various things really ought to be classified.

I got a bit of pushback on this that boiled down to: "Classified is classified. It doesn't matter if you disagree. There are strict rules about how you can handle sensitive information, and you have to follow them whether you like it or not."

True enough. But this only applies to documents that are marked classified at the time they're sent. In this case we're talking about documents created by folks at State that hadn't been classified yet. This doesn't let the originators off the hook: they're supposed to know whether anything in their email is sensitive and take appropriate precautions. But it's still a judgment call, and it's quite possible that ten people will have ten different opinions.

In this case, the originators all believed they were phrasing things in such a way that they were safe to send over an unclassified email account. Years later, classification authorities disagreed in a number of cases. So who's right? There's no way for the public to know. We just know that a lot of high-level State employees made judgments that were apparently uncontroversial at the time but were eventually overruled by classification authorities.

Of course, this doesn't include the three emails that were marked classified in the body of the email. Here's what the FBI report had to say about those:

The emails contained no additional markings, such as a header or footer, indicating they were classified. State confirmed through the FOIA review process that one of these three e-mail chains contains information which is currently classified at the CONFIDENTIAL level. State determined that the other two e-mail chains are currently UNCLASSIFIED.

So two of them aren't classified at all and shouldn't have been in the first place, while the third is obviously something trivial ("Confidential" is the lowest possible level of classification). If that's your case against Hillary—one trivial email over four years that shouldn't have been sent—then go to town with it. The rest of us will spend our time on stuff that matters.

For more on this, see Fred Kaplan for an overview and Kurt Eichenwald for a deeper discussion of how classified information is handled.

Donald Trump, the scourge of illegal immigrants who are taking away jobs from hardworking Americans, owns a modeling agency that has knowingly employed...illegal immigrants. MoJo's James West has all the deets, including this strong and gutsy non-denial:

Trump's campaign spokeswoman, Hope Hicks, declined to answer questions about Trump Model Management's use of foreign labor. "That has nothing to do with me or the campaign," she said, adding that she had referred Mother Jones' queries to Trump's modeling agency. Mother Jones also sent detailed questions to Trump Model Management. The company did not respond to multiple emails and phone calls requesting comment.

Elsewhere, the Washington Post's David Fahrenthold and Rosalind Helderman compare and contrast Trump's charitable giving with that of the much reviled Clinton family's:

How much money have Clinton and Trump each donated to charity?

For Hillary and Bill Clinton, the total is $23.2 million between 2001 and 2015. That figure comes from the Clintons’ joint tax returns, which the Democratic nominee has released....Clinton and her husband donated about 9.8 percent of their adjusted gross income.

Trump says he is worth far more than the Clintons. He recently claimed his net worth as more than $10 billion....The Washington Post has identified about $3.9 million in donations since 2001 from Trump’s own pocket.

Fahrenthold also makes it clear that the Clintons are (a) more transparent about their donors than Trump, (b) more transparent about their giving, and (c) far more generous. I guess that's why the Clinton Foundation has gotten so much more scrutiny.

Finally, I love this tweet from Trump's social media guy:

A beautiful prayer indeed. Note that while everyone else has their head bowed, Trump sits there staring blankly into the middle distance, obviously bored by the whole thing. Such a religious guy.