In an article for the Washington Post column “The Plum line,” Paul Waldman wrote, after noting that reports on the FBI investigation into Hillary Clinton’s mishandling of classified materials suggest that the F.B.I. has found no intent on her  part to violate classification rules,

“That point about her intending to break classification rules is important, because in order to have broken the law, it isn’t enough for Clinton to have had classified information in a place where it was possible for it to be hacked. She would have had to intentionally given classified information to someone without authorization to have it, like David Petraeus did when he showed classified documents to his mistress (and then lied to the FBI about it, by the way). Despite the enormous manpower and time the Justice Department has devoted to this case, there has never been even a suggestion, let alone any evidence, that Clinton did any such thing.”

This continued a process, begun and fed by Clinton herself, to mislead the public about the investigation, the law, and Clinton’s conduct. It is the insidious “narrative” tactic again, and it apparently almost impossible to fight. For example, an old friend, a smart and informed former journalist, recently posted on Facebook to the effect that he wondered if the F.B.I. would investigate Colin Powell and Condoleeza Rice, since they also used personal e-mail for official business while Secretary of State. He wrote this in good faith, because this has been a central defense from Clinton for more than a year. It is harder to kill than the Hydra, despite the fact that it is pure deceit, for two reasons.

The first is that what was considered responsible and acceptable use of technology nine years ago is not responsible and acceptable use of technology now. What was considered responsible and acceptable use of technology nine weeks ago is often not responsible and acceptable use of technology now. The acceleration of technology development was well underway when Clinton was appointed, and new security measures and best practices at all the major agencies reflected that. If she intentionally ignored this, she was irresponsible and reckless; if she negligently failed to follow them, she was incompetent. No matter how Rice and Powell handled their e-mail, it was a different time, and the comparison is invalid and misleading. No one who understands technology and the speed with which it evolves, with accepted practices becoming dangerous and incompetent virtually over-nigh, could hear Clinton’s “They did it too!” excuse without rolling their eyes. But of course, this spin isn’t intended for those who understand the issues involved. They are designed for people like my friend, who are relatively uninformed regarding technology, and can be converted into an effective disinformation agent without his consent or knowledge.

The second is that while Powell and Rice, in the comparative Stone Age period of the internet and email use, used personal email, they did not set up their own personal server. I use personal email; I didn’t set up a personal server. Clinton and her surrogates keep repeating “personal email,” trying to fog the fact that the personal server was secret, insecure, and suspicious, and not only prevented emails from getting archived in the government’s system, but was presumably designed to do so. Every time a Clinton minion, or Clinton herself, or anyone makes this sleight of hand switch, the journalist reviewing it, repeating it, analyzing it, hearing it, or discussing it is obligated to correct the misimpression it leaves for semi-technologically illiterate people like my friend. They don’t, however. Why? I assume sometimes it is because they are also semi-technologically illiterate. Sometimes it is because they weren’t listening carefully, and sometimes it is because they too are Clinton minions, and are trying to help her avoid accountability.

Minneapolis attorney Scott Johnson pounced on Waldman’s column, and with complete justification. To be blunt, Waldman misstated the law. Johnson writes in part:

Waldman shows no evidence of knowing what he’s talking about. He provides no legal analysis. He appears to be spreading disinformation…He doesn’t examine the language of potentially applicable law. He doesn’t explicate the intent required to violate laws prohibiting the mistreatment of national defense or classified information…

One potentially applicable provision is found in 18 U.S.C. § 793(f). This provision of the Espionage Act states:

Whoever, being entrusted with or having lawful possession or control of any document. . .relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer, Shall be fined under this title or imprisoned not more than ten years, or both.

…The statute does not require that Clinton have “intentionally given classified information to someone without authorization to have it[.]” It doesn’t even require that the information be classified. It merely requires that the information “relate to the national defense”…

Andrew McCarthy is a former Assistant United States Attorney who handled serious cases involving national security. Unlike Waldman, he knows what he is talking about. Andy summarized potentially applicable law for the New York Times in part as follows:

“The laws against mishandling classified information are prosecution-friendly. For example, it is a felony for one entrusted with classified information not only to communicate it to a person unauthorized to have it, but also to enable its removal from its secure storage facility through gross negligence. It is also a crime to fail to report that information’s improper removal or communication. So is retaining materials containing classified information at an unauthorized location.

Secretary Clinton systematically conducted official business on a private unsecure system, and had subordinates do likewise, knowing the nature of their duties made classified communications inevitable. Like others with access to classified information, she signed a nondisclosure acknowledging that that this information could include “unmarked” documents and “oral communications.” At least one email finds her instructing a subordinate to remove classified markings and send a document to her via the nonsecure channel (though it is publicly unknown whether the subordinate complied). She is obviously responsible for any foreseeable wrongs committed by her subordinates using a system she set up. And she transferred the classified information on the servers to a private maintenance company and to lawyers not authorized to have it…”

Johnson concludes,

Whether or not Waldman knows what he is talking about, he is disseminating disinformation courtesy of the Washington Post.

Bingo.

Or if you prefer the Bard, “Ay, there’s the rub.” The Post has editors. Readers trust the Post. Readers assume that the Post does not and will not publish anything that isn’t true. What Waldman wrote can’t be passed off as opinion, it’s factually wrong on the law. An ethical—as in competent and responsible-newspaper doesn’t allow that kind of statement, which is, as Johnson says, pure disinformation, get published in its pages. People repeat it, like my friend. Now the Washington Post is assisting Hillary Clinton in converting unaware, well-meaning citizens into her agents of disinformation.

Indeed, maybe the Post is itself an innocent dupe, the victim of badly informed and and inattentive editors.

And maybe not. Either way, it’s unethical journalism.

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Graphic: His Heavenly Armies