Tag Archives: email

Remind Me Again About That “Judge Not” Admonition?

Surely “Pastor Pence” is familiar with the biblical injunction about not judging other people “lest ye be judged.” But perhaps he missed that particular passage…

During the Presidential campaign, Pence constantly criticized Hillary Clinton for her use of a private email server, insisting that the issue was so serious it should be seen as disqualifying her from holding office.

Now we learn from the Indianapolis Star that Pence

routinely used a private email account to conduct public business as governor of Indiana, at times discussing sensitive matters and homeland security issues.

Emails released to IndyStar in response to a public records request show Pence communicated via his personal AOL account with top advisers on topics ranging from security gates at the governor’s residence to the state’s response to terror attacks across the globe. In one email, Pence’s top state homeland security adviser relayed an update from the FBI regarding the arrests of several men on federal terror-related charges.

Cyber-security experts say the emails raise concerns about whether such sensitive information was adequately protected from hackers, given that personal accounts like Pence’s are typically less secure than government email accounts. In fact, Pence’s personal account was hacked last summer.

Let’s see…Clinton used a private server that appears to have been more secure than the State Department’s official server (the State Department server has been hacked, while hers never was.) Pence used an AOL email account (raising the possibility that he also continues to have dial-up and a modem…).

Paul Waldman considers Pence’s hypocrisy to be “only a part of the story.” He begins his column in the Washington Post with an appropriately snarky observation:

I have some disturbing news to share: Republicans might not be as deeply committed to proper email management as you’ve been led to believe.

Waldman quoted Pence’s remarks criticizing Clinton’s private server during the Vice-Presidential debate, and his repeated insistence that cybersecurity concerns prohibited such carelessness, and asked the obvious question:

did he consider adding that he knew what he was talking about since he used an AOL account to talk about sensitive security matters and had himself been hacked?

The parallels don’t stop there…“Pence’s office said his campaign hired outside counsel as he was departing as governor to review his AOL emails and transfer any involving public business to the state.” Which was exactly what Hillary Clinton did — and what Pence and Trump so vehemently criticized her for. When Trump invited the Russian government to hack Clinton’s email to recover what had been deleted, it was those personal emails he was talking about.

Waldman references reports that the Trump administration is not only leaving significant amounts of sensitive information vulnerable, but that it is not in compliance with the Presidential Records Act, which mandates that White House staff members retain their communications — including their emails.

In late January, we learned that top White House officials, including Steve Bannon, Kellyanne Conway, Jared Kushner and Sean Spicer, were using email addresses from the Republican National Committee — with a private server! Once the story broke their addresses were deleted, but presumably had it remained secret, they would have continued to use them.

The New York Times reported late in January that Trump was still using his old, unsecured Android phone, which–as Waldman observes– is unbelievably reckless for the president of the United States.

As Wired magazine put it, “All it takes is clicking on one malicious link or opening one untoward attachment — either of which can appear as though it were sent from a trusted source — to compromise the device. From there, the phone could be infected with malware that spies on the network the device is connected to, logs keystrokes, takes over the camera and microphone for surreptitious recording, and more.”

I doubt that these obvious security breaches are intentional. It’s far more likely that they are further evidence–as if we needed any–that America’s government is firmly in the control of the Keystone Kops (or perhaps the Gang That Couldn’t Shoot Straight). After all, this is the group of whiz kids who couldn’t figure out how to turn on the lights in the White House cabinet room.

In the aftermath of the disclosures about his own reckless email use, Pence has angrily insisted that his own behavior was “nothing like” Clinton’s.

That’s true. Her server was secure. As a post to Mashable put it,

the real crime here is the fact that Pence still uses an AOL account. Does Pence still use dial-up? Does he rub two sticks together to make a fire? I mean, where does it end?

 

 

Crime and Punishment

When I was practicing law, I often heard people complain about judges and prosecutors when those officials reached conclusions with which they disagreed. In most instances, the complaints were based on a lack of understanding of the facts of the case, the legal rules involved, or both. That was particularly true of criminal accusations.

Let’s say you are texting and driving. You know better; Public Service Announcements tell you how dangerous it is. Your mother tells you how dangerous it is. But your state has no law against it, and you think you’re in control. While you are texting, you crash into another car, injuring a passenger and totaling the vehicle.

Or let’s say you made the potato salad for the family’s picnic. It’s a really hot day and the sun is beating down. You know that foods with mayonnaise shouldn’t be left in the heat, but you are tending to other things. When everyone finally sits down to eat, several people get violently ill and it’s traced to the spoiled mayo.

Or let’s take a far more serious situation: you are one of those “good guys” with a gun. You bought it legally and have a permit to carry it. You have it in a holster, and for some reason, when you sit down, it discharges, killing a bystander.

In each of these scenarios, you have been responsible for harm. In none of them have you committed a crime, because criminal acts require something the law calls mens rea–criminal intent. In order for the state to charge you with a crime, it must have evidence that you intentionally committed a criminal act. Negligence and stupidity are not crimes.

That is not to say that your actions cannot be punished. In each of my examples, the persons harmed can bring civil actions against the negligent person who caused the harm, and can recover damages. In addition, your actions can be reported by the media, censured by your neighbors and provide reason for your boss and others to lose confidence in your judgment.

The FBI investigated Hillary Clinton’s use of her own email server, and found no evidence of intentional wrongdoing sufficient to charge her with a crime. The investigation found (and severely criticized) carelessness–both in Clinton’s handling of her emails and in what the agency characterized as the “culture” of the State Department. The conclusion was not that she hadn’t done anything wrong; the conclusion was that the wrong was not criminal in nature. (Click here for a more extensive explanation of the legal standards and relevant statutes.)

Individual voters can–and will–decide for themselves whether they think this particular breach of judgment makes Clinton unfit to be President. If she weren’t running against a certifiable psychopath, it might well cost her the election; but even if it doesn’t, even if she wins handily, it will cost her significant political capital (indeed, it already has) and will give additional ammunition to those who despise her.

Although it does not excuse her breach, the investigation’s discovery that many other State Department officials (including but not limited to Colin Powell and Condoleeza Rice) have used and continue to use personal servers because of the ponderous nature of the “official” system should lead to a formal review of the agency’s technology systems, and to an effort to improve the State Department’s evidently unwieldy system.

Rather than Congressional action that might reduce incentives to bypass the rules, however, we have Paul Ryan’s announcement that the GOP will now “investigate” the FBI for reaching a conclusion partisans dislike.

The FBI investigation was conducted by a Republican appointed by George W. Bush, a man with a reputation for independence and unimpeachable ethics. Ryan’s willingness to besmirch that reputation and impugn the credibility of the FBI in order to make political points is something we might expect from Donald Trump, but is exceedingly disappointing (albeit not surprising) coming from the Speaker of the House.

At some point, it would be nice if our political actors focused upon making government work better, and left toxic gamesmanship behind. But I’m not holding my breath.