Editor’s note: Below is an analysis we are republishing with full permission from Newsweek on the gross mishandling this week of a story by the New York Times alleging criminal investigation into emails sent by Democratic presidential hopeful and former Secretary of State Hillary Clinton. The Times original story, which had a sensational headline and also completely erroneous information, remains largely unaltered online two days now after it has been found to be completely in error by many other journalists, the Department of Justice, and members of Congress. This is not only astounding but also shameful. Journalists have an ethical duty to report the truth, to correct errors quickly, and to take responsibility for their work. That this is happening two months after the Times gave ample space to innuendos contained in a book written about Clinton by a discredited right-wing operative has caused many journalists to ask, as Kurt Eichenwald does below, “What the hell is happening at the New York Times?” As of this posting, the Times has failed to retract the story or remove the erroneous aspects of the story from its online edition.
What the hell is happening at The New York Times?
In March, the newspaper published a highly touted article about Hillary Clinton’s use of a personal email account that, as I wrote in an earlier column, was wrong in its major points. The Times’s public editor defended that piece, linking to a lengthy series of regulations that, in fact, proved the allegations contained in the article were false. While there has since been a lot of partisan hullaballoo about “email-bogus-gate”—something to be expected when the story involves a political party’s presidential front-runner—the reality remained that, when it came to this story, there was no there there.
Then, on Thursday night, the Times dropped a bombshell: Two government inspectors general had made a criminal referral to the Justice Department about Clinton and her handling of the emails. The story2 was largely impenetrable, because at no point did it offer even a suggestion of what might constitute a crime. By Friday morning, the Times did what is known in the media trade as a “skin back”—the article now said the criminal referral wasn’t about Clinton but about the department’s handling of emails. Still, it conveyed no indication of what possible crime might be involved.
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The story seemed to further fall apart on Friday morning when Representative Elijah Cummings (D-Md.) issued a statement saying that he had spoken to the inspector general of the State Department and that there had been no criminal referral regarding Clinton’s email usage. Rather, Cummings said, the inspectors general for State and the intelligence community had simply notified the Justice Department—which issues the regulations on Freedom of Information Act requests—that some emails subject to FOIA review had been identified as classified when they had not previously been designated that way.
So had the Times mixed up a criminal referral—a major news event—with a notification to the department responsible for overseeing FOIA errors that might affect some documents’ release? It’s impossible to tell, because the Times story—complete with its lack of identification of any possible criminal activity—continues to mention a criminal referral.
But based on a review of documents from the inspectors general, the problems with the story may be worse than that—much, much worse. The reason my last sentence says may is this: There is a possibility—however unlikely—that the Times cited documents in its article that have the same dates and the same quotes but are different from the records I have reviewed. I emailed Dean Baquet, the Times’s executive editor, to ask if there are some other records the paper has and a series of other questions, but received no response. (Full disclosure: I’m a former senior writer for the Times and have worked with Baquet in the past.)
So, in an excess of caution, I’m leaving open the possibility that there are other documents with the same quotes on the same dates simply because the other conclusion—that The New York Times is writing about records its reporters haven’t read or almost willfully didn’t understand—is, for a journalist, simply too horrible to contemplate.
Indeed, if the Times article is based on the same documents I read, then the piece is wrong in all of its implications and in almost every particular related to the inspector generals’ conclusions. These are errors that go far beyond whether there was a criminal referral of Clinton’s emails or a criminal referral at all. Sources can mislead; documents do not.
First, what did the Times article say? To be charitable, let’s use the skinned-back version and quote the first two paragraphs:
Two inspectors general have asked the Justice Department to open a criminal investigation into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state, senior government officials said Thursday.
The request follows an assessment in a June 29 memo by the inspectors general for the State Department and the intelligence agencies that Mrs. Clinton’s private account contained “hundreds of potentially classified emails.” The memo was written to Patrick F. Kennedy, the under secretary of state for management.
The words in those paragraphs would lead any rational reader of the Times story to conclude that sensitive government information was mishandled, that this mishandling raised concerns about criminal activity, and that these concerns related somehow to classified information in Clinton’s email account.
Here are the words that were left out: Freedom of Information Act. At no point in the story does the Times mention what this memo—and the other it cited—was really all about: that the officials at the Freedom of Information office in the State Department and intelligence agencies, which were reviewing emails for release, had discovered emails that may not have been designated with the correct classification. For anyone who has dealt with the FOIA and government agencies, this is something that happens all the time in every administration. (Advice to other journalists: That is why it’s smart to file multiple FOIA requests for the same document; different FOIA officials will declare different items unreleasable, so some records can be turned over where a sentence has been blacked out because one reviewer decided it was classified, while another deemed it unclassified.)
The problem is, it is not as if the real purpose of this memo was hard to discern. Here is the subject heading: “Potential Issues Identified by the Office of the Inspector General of the Intelligence Community Concerning the Department of State’s Process for the Review of Former Secretary Clinton’s Emails under the Freedom of Information Act (ESP-15-05)”
Get it? This is about the process being used by FOIA officials in reviewing former Secretary Clinton. And former government officials have nothing to do with how FOIA officials deal with requests for documentation. To jump from this fact to a conclusion that, somehow, someone thinks there is a criminal case against Clinton (the original story) requires a level of recklessness that borders on, well, criminal behavior.
Yes, there is memo after memo after memo, which the Times gloats were given to it by a senior government official. (For those who have thoughts of late-night meetings in parking garages or the Pentagon Papers, they were unclassified documents. Reporters obtain those kinds of records through the complex, investigative procedure of asking the press office for them.) And all of them are about the exact same thing: the process being used by current FOIA officials reviewing the emails of a former official is messed up. That’s like criticizing the former owner of a car for the work conducted by the new owner’s mechanic.
So what was the point of the memo written by Linick and McCullough? The memo itself is very clear: “The Department should ensure that no classified documents are publically released.”
In terms of journalism, this is terrible. That the Times article never discloses this is about an after-the-fact review of Clinton’s emails conducted long after she left the State Department is simply inexcusable. That this all comes from a concern about the accidental release of classified information—a fact that goes unmentioned—is even worse. In other words, theTimes has twisted and turned in a way that makes this story seem like something it most decidedly is not. This is no Clinton scandal. It is no scandal at all. It is about current bureaucratic processes, probably the biggest snooze-fest in all of journalism.
The heavy breathing of deception or incompetence by the Times doesn’t stop there. In fact, almost every paragraph at the top of the story is wrong, misleading or fundamentally deceptive.
The third paragraph states: “It is not clear if any of the information in the emails was marked as classified by the State Department when Mrs. Clinton sent or received them.” No, in fact, it is quite clear. All of the memos are about emails that the officials say may not have been properly designated as classified, meaning it would be improper to release them. If a document is marked as classified, it is certainly not difficult to determine if it has been marked as classified. Paragraph three is false.
Paragraph four: “But since her use of a private email account for official State Department business was revealed in March, she has repeatedly said that she had no classified information on the account.” Mmmm-kay. A point that would seem to be reinforced by the fact that this whole issue is about whether emails should have been designated as classified by FOIA officials. The but makes it seem as if there is a contradiction, when in fact the two points are completely consistent.
Then there are a couple of paragraphs that are a short summary of the past and a comment from the Clinton campaign saying any released emails deemed classified were designated that way after the fact. Yah—that’s what the memos are talking about.
All of this is bad enough, but then there is the ultimate disaster, paragraph seven: “At issue are thousands of pages of State Department emails from Mrs. Clinton’s private account. Mrs. Clinton has said she used the account because it was more convenient, but it also shielded her correspondence from congressional and Freedom of Information Act requests.”
Wow. The first time that the story—which readers cannot possibly know is about FOIA requests—finally mentions FOIA requests, it just manufactures a reality out of thin air. Using a private account would not, in any way, shield Clinton’s correspondence from congressional or FOIA requests.
Start with the rules. Under the FOIA, any document that is not specifically exempted and that falls “under the control of the Department” at the time the request for those records is submitted must be produced. By legal definition, the secretary of state qualifies as part of “the Department,” and thus anything that official writes as part of the job—whether by email, telegraph or handwritten on personal stationery—is subject to a FOIA request. Same goes for Congress. That’s why congressional hearings sometimes produce personal handwritten documents—the fact that they might not be in an email server does not limit the requirement that they be turned over.
Second, contrary to the implication from the first Times story, Clinton’s emails sent in her role as secretary of state were automatically saved into a secure data system under the control of the department. In fact, where does the Times think the FOIA offices for the State Department and the intelligence community are finding the 55,000 emails now under review that it cites in its new story? Are officials breaking into Clinton’s house in the middle of the night to examine them by flashlight? Nope. They are pulling them off of the system under the department’s control.
Then there is accusation by false association. If a sentence read, “Bill shot Ted, and Ted died,” any responsible journalist who wrote that would understand the implication was that Bill killed Ted. But if the truth is that Bill accidentally shot Ted when they were on a hunting trip, and 30 years later Ted died from heart disease, the implied accusation is true in its fact yet false in its statement.
This unforgivable journalistic sin turns up in paragraphs 13 and 14 in the Times story. They read:
The inspectors general also criticized the State Department for its handling of sensitive information, particularly its reliance on retired senior Foreign Service officers to decide if information should be classified, and for not consulting with the intelligence agencies about its determinations.
In March, Mrs. Clinton insisted that she was careful in her handling of information on her private account. “I did not email any classified material to anyone on my email,” she said.
No reader could possibly know that the two paragraphs, jammed together and using similar phrases—handling of information and handling of sensitive information—have nothing to do with each other. The first paragraph is once again based on the inspectors general’s memos. And again, what those memos are actually discussing is the way that the FOIA office is handling its review of the former secretary of state’s emails for public release. They in no way discuss Clinton, her handling of emails or anything approaching those topics.
But by slapping those two paragraphs together and using the same words, the Times—again, either out of recklessness, ignorance or intentional deception—makes it seem as if the inspectors general are saying Clinton mishandled classified information. They didn’t.
In our hyper-partisan world, many people will not care about the truth here. That the Timesstory is false in almost every particular—down to the level of who wrote what memo—will only lead to accusations that people trying to set the record straight are pro-Hillary. I am not pro-Hillary. I am, however, pro-journalism. And this display of incompetence or malice cannot stand without correction.
And to other reporters: Democracy is not a game. It is not a means of getting our names on the front page or setting the world abuzz about our latest scoop. It is about providing information so that an electorate can make decisions based on reality. It is about being fair and being accurate. This despicable Times story was neither.