July 31, 2016

Why We Can't Agree about (Some) Basic Facts

Motivated Cognition

Dan Kahan defines motivated cognition as "the unconscious tendency of individuals to fit their processing of information to conclusions that suit some end or goal." Sports fans provide a great example of this, as they tend to believe that controversial officiating calls that favor their team are correct while those that favor the other team as incorrect. 

The mechanisms of motivated cognition are diverse. "They include dynamics such as biased information search, which involves seeking out (or disproportionately attending to) evidence that is congruent rather than incongruent with the motivating goal; biased assimilation, which refers to the tendency to credit and discredit evidence selectively in patterns that promote rather than frustrate the goal; and identity-protective cognition, which reflects the tendency of people to react dismissively to information when accepting it would cause them to experience dissonance or anxiety."

Cultural Cognition

Kahan et al. (2013) argue that a great deal of political conflict can be explained by a type of motivated cognition he refers to as cultural cognition. Cultural cognition is the unconscious tendency of individuals to steer "away from beliefs that could alienate them from others on whose support they depend in myriad domains of everyday life." People "have a large stake—psychically as well as materially—in maintaining the status of, and their personal standing in, in affinity groups whose members are bound [by] their commitment to shared moral understandings. If opposing positions on a policy-relevant fact—e.g., weather human activity is generating dangerous global warming—come to be seen as symbols of membership in and loyalty to competing groups of this kind, individuals can be expected to display a strong tendency to conform their understanding of whatever evidence they encounter to the position that prevails in theirs."

These authors write, "In the absence of divisive cultural conflict, citizens of all levels of science comprehension generally form positions consistent with the best available evidence." For instance, the public "is not polarized over the utility of antibiotics in treating bacterial infections." "But when a policy-relevant fact does become suffused with culturally divisive meanings, the pressure to form group-congruent beliefs will often dominate whatever incentives individuals have to 'get the right answer' from an empirical standpoint." For instance, even though denying the science on climate change will have adverse long-term consequences, people are primarily motivated by the adverse consequences of believing something that is contrary to their affinity group: "loss of trust among peers, stigmatization within his community; and even the loss of economic opportunities." 

An Important Study

Kahan et al. (2013) asked a simple question: "Why does public conflict over societal risks persist in the face of compelling and widely accessible  scientific evidence?" These researchers tested two possible answers: first, there is disagreement about such issues because many people have limited knowledge and reasoning skills; second, there is disagreement because we have this unconscious tendency to avoid beliefs that could alienate us from our respective affinity groups. 

Kahan et al. (2013) conducted a study involving 1,100 individuals. Researchers first tested the subjects' political beliefs and their numeracy, i.e., their ability to correctly draw inferences from quantitative data. Researchers then gave subjects two different problems which required them to draw inferences from empirical data. First, subjects were given the purported results of a study of a new skin-rash treatment and asked to determine whether the treatment had been effective. Subjects were then given the purported results of a study of a gun-control measure. Some of the gun-control studies showed that banning concealed weapons had made the cities in question safer, while other studies showed that the ban had made the cities less safe. 

Researchers hypothesized that the more numerate subjects would do a better job interpreting data from the skin-rash study, and that was indeed the case. Researchers also hypothesized that all subjects would do a worse job interpreting data from the gun-control study, and that too was the case. Predictably, those who opposed gun-control were more likely to interpret that data as supporting their belief and those who supported gun-control were more likely to interpret that data as supporting their belief. Researchers finally hypothesized that more numerate subjects would more likely to interpret data from the gun control accurately, regardless of their prior beliefs. Researchers were shown to be wrong in their hypothesis, as the more numerate subjects actually did a worse job interpreting data from the gun-control study. Kahan et al. explain this result by noting that "more numerate individuals have a cognitive ability that lower numeracy ones do not" and that they "use that ability opportunistically in a manner geared to promoting their interest in forming and persisting in identity-protective beliefs." 

Kahan et al. (2013) bring the results together: Citizens do not "remain divided over risks in the face of compelling and widely accessible scientific evidence" because they are "insufficiently rational." Rather, "they are too rational in extracting from information on these issues the evidence that matters most for them in their everyday lives. In an environment in which positions on particular policy-relevant facts become widely understood as symbols of individuals’ membership in and loyalty to opposing cultural groups, it will promote people’s individual interests to attend to evidence about those facts in a manner that reliably conforms their beliefs to the ones that predominate in the groups they are members of. Indeed, the tendency to process information in this fashion will be strongest among individuals who display the reasoning capacities most strongly associated with science comprehension."

How to Save the Republic

Kahan (2010) writes, "The ability of democratic societies to protect the welfare of their citizens depends on finding a way to counteract this culture war over empirical data." Since Kahan's research shows that simply educating the public about these controversial issues will not reduce conflict, we must communicate in ways which have been informed by the findings of cultural cognition. Kahan has proposed three strategies. 

First, identity affirmation (Kahan, 2010). This involves presenting information "in a manner that affirms rather than threatens people's values," as "people tend to resist scientific evidence that could lead to restrictions on activities valued by their group. If, on the other hand, they are presented with information in a way that upholds their commitments, they react more open-mindedly. For instance, people with individualistic values resist scientific evidence that climate change is a serious threat because they have come to assume that industry-constraining carbon-emission limits are the main solution. They would probably look at the evidence more favourably, however, if made aware that the possible responses to climate change include nuclear power and geoengineering, enterprises that to them symbolize human resourcefulness. Similarly, people with an egalitarian outlooks are less likely to reflexively dismiss evidence of the safety of nanotechnology if they are made aware of the part that nanotechnology might play in environmental protection, and not just its usefulness in the manufacture of consumer goods.

Second, pluralistic advocacy (Kahan, 2010). This involves ensuring that "sound information is vouched for by a diverse set of experts. In our HPV-vaccine experiment, polarization was also substantially reduced when people encountered advocates with diverse values on both sides of the issue. People feel that it is safe to consider evidence with an open mind when they know that a knowledgeable member of their cultural community accepts it. Thus, giving a platform to a spokesperson likely to be recognized as a typical traditional parent with a hierarchical world view might help to dispel any association between mandatory HPV vaccination and the condoning of permissive sexual practices."

Third, narrative framing (Kahan et al., 2011). "Individuals tend to assimilate information by fitting it to pre-existing narrative templates or schemes that invest the information with meaning. The elements of these narrative templates—the identity of the stock heroes and villains, the nature of their dramatic struggles, and the moral stakes of their engagement with one another—vary in identifiable and recurring ways across cultural groups. By crafting messages to evoke narrative templates that are culturally congenial to target audiences, risk communicators  can help to assure that the content  of the information they  are imparting receives considered attention across diverse cultural groups (Jones & McBeth 2010)." 

* * * * * 

Jones, M. D., & McBeth, M. K. (2010). A narrative policy framework: Clear enough to be wrong?. Policy Studies Journal, 38(2), 329-353.

Kahan, D. (2010). Fixing the communications failure. Nature, 463(7279), 296-297.

Kahan, D. M., Jenkins‐Smith, H., & Braman, D. (2011). Cultural cognition of scientific consensus. Journal of Risk Research, 14(2), 147-174.

Kahan, D. M., Peters, E., Dawson, E. C., & Slovic, P. (2013). Motivated numeracy and enlightened self-government. Yale Law School, Public Law Working Paper.

July 27, 2016

Yes, Bernie Bros, Hillary really is progressive

Many conservatives fear that Hillary Clinton is a raging liberal, while the Bernie Bros make her sound like the modern incarnation John C. Calhoun. Hillary is certainly not as liberal as Bernie Sanders, a self-described "socialist," but there can be no doubt that she is solidly liberal.

Evidence #1: Senator Clinton had a liberal voting record.

DW-NOMINATE, an algorithm that computes roll call votes, rated Hillary as the 11th most liberal member of the Senate from 2001-2008. The algorithm shows that Clinton was considerately more liberal than the median democrat and considerably more liberal than Senator Obama. David Hawkings notes that Hillary cast far more votes against George W. Bush than most of her Democratic colleges, proving herself "a reliable opponent of Bush’s economic policies, including opposing the trade liberalization agreement with much of Central America. And she opposed a long list of White House nominations, including John G. Roberts Jr. and Samuel A. Alito Jr. for the Supreme Court."

Hawkings adds that Hillary's voting record represents a center-left ideology that is "quite comparable to the way she’s been representing herself as a candidate in 2016." He further notes that her voting record received high ratings from liberal advocacy groups. "She voted the way big labor wanted 95 percent of the time and cast ballots the way social and economic liberals had hoped 90 percent of the time — as calculated by averaging her eight annual scorecards on key floor votes identified by the AFL-CIO and Americans for Democratic Action. Sen. Edward M. Kennedy of Massachusetts, the personification of modern mainstream liberalism, yielded average percentages just a point or two higher." It's also notable that she received incredibly low scores from conservative advocacy groups -- e.g., 11 percent from the American Conservative Union, 8 percent from Americans for Prosperity, and 0 percent from Eagle Forum.


Evidence #2: Hillary has consistently voiced support for liberal ideas

Harry Enton points out that Hillary "also has a history of very liberal public statements." She "rates as a 'hard core liberal' per the OnTheIssues.org scale. She is as liberal as Elizabeth Warren and barely more moderate than Bernie Sanders. And while Obama is also a 'hard core liberal,' Clinton again was rated as more liberal than Obama."

Evidence #3: Sanders ain't no saint

All things are relative, and although Sanders is clearly to the left of Hillary, it needs to be pointed out that Sanders' rhetoric has at times been belied by his actions. For instance, although Sanders has spent much time attacking Hillary for the 1994 crime bill that Bill Clinton signed into law, Sanders in fact voted for the bill. The Senator has tried to explain his vote by citing the bill's ban on assault weapons, but Patrick Caldwell points out that "the initial House version that he voted for didn't include the assault weapons ban, a provision added by the Senate." Similarly, Sanders has criticized Bill Clinton for a 1996 bill which prevented immigrants from overstaying their visas, but Sanders also voted for that bill. Additionally, Sanders voted to keep Guantanamo Bay open, and in 2000 he voted for the Commodity Futures Modernization Act, a bill which loosened the government's ability to regulate derivatives and in turn helped cause the 2008 financial crisis. 

July 25, 2016

Bernie Bros and Gary Johnson

And so many Bernie Bros are turning to Gary Johnson. This phenomenon has already been discussed by some, and I've recently seen examples of it on Facebook.

I find this so surprising because it's not like Gary Johnson is Bernie-lite. Hillary is the Bernie-lite candidate in this election and Johnson, if anything, the anti-Bernie. For example, Johnson wants to eliminate corporate taxes and implement a national consumption tax, a move which would disproportionately benefit the wealthy at the expense of the poor and the elderly. Johnson has proposed that he would balance the budget by implementing massive spending cuts to programs that primarily benefit the vulnerable, including Medicare and Medicaid. And he would raise the Social Security retirement age to as high as 72.

Johnson is liberal on some social issues, but so is Hillary, and it wasn't social issues that animated Bernie Bros in the first place. It was Bernie's economic message, and the more you learn about Johnson, the more you realize that he's against every jot and every tittle of this message. He's favorite political philosopher is Milton Friedman. He's said he would sign the Trans Pacific Partnership into law. He supports right-to-work laws. And although he admits that global warming is anthropogenic, he doesn't believe the government should take action to reduce carbon emissions.


And so here is more evidence that Bernie Revolution was perhaps not such a large step forward for progressive ideas but in many ways a personality cult. Look, I think Bernie's a true champion of the people, and I think many of his supporters really care about the issues. But these Libertarian-flirting Bernie Bros are a confused mess.

July 23, 2016

Explaining Bernie-or-Busters

I find the Bernie or Bust crowd infuriatingly irrational. 

I've argued before that a Hillary Clinton presidency would be a boon to the progressive movement. I think my argument was well-reasoned and well-supported. But Bernie-or-Busters -- or simply, BoBs -- seem impervious to reason and evidence. Bernie or Bust is a religion, one in which Hillary Clinton plays the part of evil itself, while Bernie is some demigod sent to earth to save humanity. 

I'm hardly exaggerating. Here's what one BoB says about Hillary: “We are not going to vote for the demon named Hillary just because you are threatening us with the devil named Trump.” I have BoB Facebook friends who speak as though there is absolutely no difference between Hillary and Donald Trump: "I despise both of them. They are both disgusting and appalling beyond description. I have no answers." 

And here's a sampling of Bernie worship. "You give me hope and strength to keep living, Bernie Sanders." "Bernie, from where I was standing yesterday in Madison, you looked Olympian...I'm not much of a religious man by any stretch. But I promise you this: the almighty has smiled on you." "You have restored my hope in good and it gives me strength to fight for another day." "I get goose bumps just looking at you."

I like Bernie. I respect Bernie. Had he won the nomination, I'd have a Feel the Bern bumper sticker on my car right now. But Bernie is not Christ incarnate. In the Bush years he cast a significant vote for the gun lobby. In an interview with the New York Daily News he couldn't explain how he would carry out his plan to break up the banks. PolitiFact has rated a higher percentage of Bernie's statements as being false than it has for Hillary

And Hillary really isn't as bad as BoBs believe. She might be to the right of the Vermont socialist, but she's solidly left of center, and there's every reason to expect her to continue pushing the Obama agenda if elected. Obama, of course, is no dyed in the wool progressive but a left-leaning pragmatist. But for some reason BoBs have not demonized him. Although Obama would certainly fail any progressive purity test, BoBs nonetheless praise him for advancing important progressive policies

BoBs, it seems, can only be explained in psychological terms. I don't intend to deliver some smug psychoanalysis here, but I don't know how else to explain their jaw-dropping irrationality. I'm reminded of Ernest Becker, who eloquently argued that humans can't help but engage in transference, a term traditionally used to describe the process in which therapy patients unknowingly transfer the feelings of dependence and awe they once felt for their parents onto their therapist. Becker broadened the definition of transference, writing that deep down we're all essentially scared children, scared by the many uncertainties and cruelties of existence, and so we unconsciously go around adopting new transference figures. 

That is to say, in order to assuage our existential anxieties, we basically endow certain people with an exaggerated sense of goodness and power. We then put our trust in these figures, depend on them, and in so doing have our deepest anxieties relieved, just as children lean on their parents to relieve their deepest anxieties. Some people deal with their anxieties by leaning on the divine, others by leaning on romantic partners or celebrities or politicians. 

So I think many BoBs have done something like this. They've unconsciously made Bernie into a super-human. For them, Bernie really does approach moral perfection, and of course when you're on the side of pure goodness, you necessarily view your enemies -- e.g., Hillary Clinton in the primaries -- as manifestations of evil. And so now that the great Bern has fallen, BoBs can't help but continue seeing Hillary this way. Even though -- to repeat myself -- she's a solidly left of center candidate who would further the progressive cause. 

Sadly, the casualty of this holy war might not just be Hillary Clinton but the progressive movement itself and consequently the millions of Americans whose well-being depends upon this movement's success. 

The Case Against Donald Trump

I shouldn't need to make a case against Donald Trump, because the case against Donald Trump seems so incredibly obvious. And yet as I scroll through my Facebook feed, I see that some friends are supporting the man. What follows are seven arguments meant to persuade individuals of all political persuasions that Donald Trump is unfit to be president. 

Argument #1: Donald Trump has very little regard for the Constitution.

Trump's disregard for the First Amendment is well known: he's said the government should be empowered to shut down parts of the internet and to close mosques, and he has promised to "open up" libel laws so that he can more easily sue journalists who criticize him. Trump has also long held contempt for the Fifth Amendment's the prohibition against seizing private property except for "public use," as evidenced by his lobbying efforts over the years to use eminent domain to force unwilling homeowners and business owners to sell to him. Nor does Trump value the Fourteenth Amendment, which his promise to deport natural-born citizens whose parents came here illegally blatantly violates. Furthermore, he has shown contempt for the separation of powers, the Eighth Amendment's prohibition against torture, Article II's implied prohibition against unilaterally abrogating treaties, as well as Article's I and III, as evidenced by his plan to govern through broad executive orders.

Argument #2: Donald Trump is a sociopathic liar.

The Pulitzer Prize-winning PolitiFact has to date fact-checked over 200 of Donald Trump's statements and concluded that 72 percent of them are either False, Mostly False, or Pants on Fire. The organization has never given a politician so many negative ratings. Similarly, FactCheck.org stated, "In the 12 years of FactCheck.org’s existence, we’ve never seen his match. He stands out not only for the sheer number of his factually false claims, but also for his brazen refusals to admit error when proven wrong." Politico measured "how many lies Trump told over the course of 4.6 hours of speeches" and "found that he lied, on average, once every five minutes." Huffington Post "catalogued his lies over the course of just one town hall event" and "came up with 71 lies." From the claim that he watched "thousands and thousands of people" cheering as the World Trade Center collapsed to the claim that his campaign is "100 percent" self-funded to the claim that 81 percent of murdered whites are killed by blacks -- Trump lies habitually. 

Argument #3: Donald Trump is alarmingly ignorant of policy issues.

Senate Republican Leader and Trump supporter Mitch McConnell stated in June that Trump needed to pick "someone highly experienced and very knowledgeable" as a running mate "because it’s pretty obvious he doesn’t know a lot about the issues." We've repeatedly seen in debates and interviews that Trump loves to make bold proposals but when asked for details simply cannot deliver. The Washington Post writes: "Existing trade deals are 'stupid,' but Mr. Trump does not say how they could be improved. The Islamic State must be destroyed, but the candidate offers no strategy for doing so. Eleven million undocumented immigrants must be deported, but Mr. Trump does not tell us how he would accomplish this legally or practically." Eugene Robinson noted after reading the Post's hour-long interview with Trump: "Donald Trump’s ignorance of government policy, both foreign and domestic, is breathtaking" and that he "appears to know next to nothing about the issues that would confront him in the job." It's not surprising that Trump is not much of a reader.

Argument #4: Donald Trump is not a successful businessman.

Trump claims that his extraordinary business acumen uniquely qualifies him for office, but the truth is that his father was an enormously wealthy real estate tycoon who made his son's venture into real estate possible. The elder Trump not only loaned Donald $1 million to build the Grand Central Hyatt in 1978, but he guaranteed a $70 million construction loan. Over the years, Trump has bankrupted six companies, including two Atlantic City casinos in the early 1990s at a time when other casinos were thriving. Max Ehrenfreund points out that his net worth would be far greater today had he simply put his money in an index fund. And as Marco Rubio pointed out earlier in the year, Trump has had many, many failed businesses, including Trump Mortgage, which he opened at the height of the housing bubble, declaring that "the real estate market is going to be very strong for a long time to come," only to be forced to close shop when the bubble burst 18 months later.

Argument #5: Donald Trump is a sexist.

I don't think that Trump's three marriages and extramarital affair with a beauty queen discount him from office, but if the tables were turn and Hillary had engaged in such behavior, many conservatives would be making it an issue, and so I think it's worth mentioning. It's also worth mentioning that Trump has a long history of making degrading remarks about women -- e.g., telling the opposing counsel at a deposition that she was "disgusting" after she asked to take a break to pump breast milk for her three-month-old daughter and publicly referring to women as "bimbos," "slobs," "unattractive," etc. An NY Times article earlier this year featured interviews with over 50 women who have known Trump on a personal level over the years and revealed "unwelcome romantic advances, unending commentary on the female form," and "unsettling workplace conduct."

Argument #6: Donald Trump is corrupt.

Trump has an especially long and ugly history of unethical dealings. Most well known is Trump University, a now defunct wealth seminar which received a D- rating from the Better Business Bureau and which former workers say used fraudulent tactics to prey upon the elderly and uneducated. There are currently three pending lawsuits accusing the operation of fraud, false advertising, unfair business practices, and violating "financial elder abuse" statutes." Many other scandals plague Trump; e.g., a recent USA Today investigation "found hundreds of people -- carpenters, dishwashers, painters, even his own lawyers -- who say [Trump] didn’t pay them for their work."

Argument #7: Donald Trump is an unprecedented flip-flopper.


Most politicians flip-flop from time to time, but the frequency and significance of Trump's flip-flops are truly unprecedented. I could give example after example, but for the sake of space will provide just two. Last September he plainly stated that he supported asylum for Syrian refugees. Three weeks later he said at a campaign event, "I'm putting the people on notice that are coming here from Syria as part of this mass migration, that if I win, if I win, they're going back." In recent years Trump said that "Hillary Clinton is a terrific woman," that she is "smart," "tough," a hard worker, that she would "make a great president." And well, we know what he's said recently.

July 22, 2016

Why Progressives Must Vote for Hillary Clinton

Many progressives support Jill Stein for president. I can understand this decision among progressives not living in swing states, as this seems like a good way to both promote the Green Party and protest some of Clinton's positions. But for those who living in states like Ohio, Pennsylvania, and Colorado, any good that might come from voting Green would be far outweighed by the tremendous damage caused by a Trump presidency.

Some say that there's no difference between Hillary and Trump, that they're two sides of the same coin, but this claim is refuted by an honest examination of their policy proposals. Look at their budget proposals. Trump has promised massive tax cuts for the wealthiest Americans, tax cuts which the non-partisan  Committee for a Responsible Federal Budget (CRFB) estimates would increase the national debt by $12 trillion. Trump claims he would balance the budget by implementing "big time" spending cuts, but he has not specified which programs he would cut. Since he would increase military spending (how else to "completely rebuild our depleted military"), it follows that he could only balance the budget by making enormous cuts to Social Security and Medicare.

Hillary, on the other hand, has proposed increasing taxes for top-earners, mainly the top one percent, a move which the non-partisan Tax Policy Center estimates would increase revenues by $1.1 trillion over the next decade. Clinton says she would use these savings to do such things as expand Obamacare, increase funding for veterans, improve infrastructure, and fund early childhood education and college. CRFB says that Hillary "deserves a lot of credit for committing to pay for all her new initiatives and for largely meeting this goal."

So let's review. Hillary has an economic plan that is both progressive and responsible. She would increase taxes on the wealthy in order to expand social programs which would primarily benefit middle class and lower-income Americans. Trump, on the other hand, would exacerbate wealth inequality, which in turn would either cause the debt to skyrocket or social safety net programs to be slashed.

If we look at further differences between the candidates, the choice for progressives becomes even more obvious. For example --



I could keep going. I could talk about Trump's desire to deport 11 million undocumented immigrants, his plan to ban Muslims from entering the country, his blatant advocacy of war crimes, his threat to default on the national debt, his enthusiasm for Voter ID laws, his belief that the world would be safer if more nations had nuclear weapons -- all positions which Hillary firmly opposes. I could also discuss how Trump is a bigot, a misogynist, a narcissist, a sociopathic liar.

Hillary might not be as progressive as Jill Stein or Bernie Sanders, but she has a history of supporting left-of-center policies, and there's every reason to believe she would continue doing so once elected. Donald Trump, in contrast, advocates reactionary, plutocratic ideas. Slashing safety net programs would devastate millions of Americas. As would repealing Obamacare and abolishing the EPA and appointing anti-abortion judges to the Supreme Court.

Yes, voting for Jill Stein might (but might not) push the Democratic Party further to the left, which might (but might not) benefit us in the long run. But this is an irresponsible gamble to take when we know that a Hillary presidency would push forward a relatively progressive agenda, whereas a Trump presidency would wreak serious, lasting harm on our most vulnerable citizens.

July 7, 2016

Election 2016: Clinton's Emails

Background
While Secretary of State, Hillary Clinton used a personal email account, which was hosted on a personal server, to conduct official business.

This practice was rare but not unprecedented
A May 2016 State Department Office Inspector General (OIG) report stated that many State Department officials over the past few administrations have at times used personal emails to conduct official business, but the report found that only Clinton, Colin Powell, and a former ambassador had used private systems on "an exclusive basis for day-to-day operations."

This practice violated State Department policy
Government employees are permitted to send official emails on private systems[1]. But in recent years the State Department issued various memos stating that the majority of one's official emails should be conducted on State Department systems.[2] The State Department's Inspector General stated that Clinton had an obligation to discuss her email practice with the Department's Chief Information Officer and Assistant Secretary for Diplomatic Security. These individuals have stated that they would have not approved her email practice had they been aware of it.[3]

Some of Clinton's emails contained classified information
The FBI reviewed over 30,000 Clinton emails and found that 110 emails contained classified information at the time they were sent, and 3 of those emails were marked classified at the time, although they were not properly marked.[4]

Clinton probably didn't know that these emails contained classified information
Clinton says that she viewed classified information in hard copy, and indeed emails from her tenure show Clinton staffers discussing that they couldn't email confidential information over the private server.

It's true that the FBI found that Clinton sent 3 emails that were marked classified, but FBI Director James Comey testified before Congress that these emails were not marked in accordance with State Department procedures and that Clinton therefore might not have known they were classified.[5]

Clinton was "careless"
Comey stated that Clinton and her colleagues "were extremely careless in their handling of very sensitive, highly classified information" and that "any reasonable person in Secretary Clinton’s position" should have known that many of the classified matters discussed in her emails should not have been discussed in "an unclassified system."

Clinton did not break the law
Comey stated that there is no precedent for prosecuting Clinton, as there is no evidence that she intentionally mishandled classified information or acted disloyally to the United States.[6]

Law Professor Steve Vladeck explains Comey's conclusion by noting that "federal law doesn't prohibit the discussion of classified information over unsecured networks." Some have suggested that Clinton broke the Espionage Act, but Vladeck explains that Clinton did not violate 18 USC 793(d), which forbids giving classified information to "any person not entitled to receive it," because her emails were to staffers authorized to receive such information.

Others have argued that Clinton violated 18 USC 793(f) of the Espionage Act, which forbids officials from allowing, "through gross negligence," classified information 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." But Dan Abrams points out that the legal meaning of "gross negligence" is not the same as "extreme carelessness," which is how Comey described Clinton's email practices. Abrams further points to a 1941 Supreme Court ruling which stated that the authors of the Espionage Act only intended to criminalize actions intended to injure the United States.[7]

Clinton's staff deleted some work-related emails
Clinton's attorneys said they deleted 32,000 emails which were "personal and private," many of which the FBI recovered. Comey confirmed that some of these deleted emails were in fact work-related. Comey stated that the bureau found no evidence that these latter emails "were intentionally deleted in an effort to conceal them."[8]

There is no evidence that Clinton's account was hacked.
Comey stated that the FBI "did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked."

Even if she'd been hacked, the hackers would not have learned any government secrets
Overclassification has long been a problem in the government, and mention of certain topics is automatically classified, even if the information discussed is already well-known to the public. Seven of the eight top secret chains contained publicly-accessible information about the CIA's drone program. The eighth chained described a conversation with the president of Malawi. Mention of the drone program and conversations with foreign leaders are automatically classified.[9]

Clinton's motives were not nefarious 
Hillary Clinton is deeply paranoid and not without good reason. Dylan Matthews reminds us that the Clintons have been viciously, often unfairly, besmirched since 1992. "When their close friend killed himself," Matthews writes, "they were accused of murder. When they lost money on a bad real estate deal that a friend who turned out to be a con artist suckered them into, it triggered a federal investigation...When they tried to clean up a White House office that the FBI was investigating for financial improprieties, the independent counsel wound up looking into their actions." 

Matthews concludes that this blatantly unfair treatment left Bill and Hillary "sufficiently jaded and paranoid," causing them to believe that "their own conduct is irrelevant to whether they’ll be targeted," which in turn lead to carelessness, which in turn lead to more scandals, and so on. I think there's something to that, and I also think that the Clintons, knowing that their opponents will distort any little action in hopes of vilifying them, have become especially secretive, which in this case has backfired colossally.

Clinton hasn't really taken responsibility for her actions
Clinton didn't do anything awful, but she did violate State Department policy, and her actions were clearly stupid and potentially harmful to US security. She's said she made a mistake and regrets relying solely on her private server, but as Alan Jacobs writes, she really ought to give a sincere, humble apology -- e.g., “What I did with that private email server was stupid and wrong. I am sorry and I will learn from this and not make the same mistake again. And, just for the record, the ability to admit when I’m wrong is one of the major points that distinguishes me from my opponent.”


* * * * *

[1] A 2009 National Archives and Records Administration (NARA) regulation states that "federal agencies may allow their employees to send and receive work-related emails 'using a system not operated by the agency.'"

[2] The State Department's Inspector General noted in a recent report that between 2005 and 2011 the State Department revised the Foreign Affairs Manual (FAM) and "issued various memoranda specifically discussing the obligation to use Department systems in most circumstances and identifying the risks of not doing so." Throughout Clinton's tenure as Secretary of State, "the FAM stated that normal day-to-day operations should be conducted on an [Automated Information System]."


[3] The Inspector General "found no evidence that the Secretary requested or obtained guidance or approval to conduct official business via a personal email account on her private server."

[4] These were the emails that Clinton returned to the State Department in 2014. The FBI also recovered several thousand emails that Clinton had not returned, some of which were recovered by reviewing archived emails of government accounts to which Clinton had emailed. Of these additional emails, three contained classified information.

[5] Andrew Prokop explains that the emails in question did not bear "the traditional headers at the top of the document saying they were classified. Instead, Comey said, each had the letter C in parentheses -- a marking for confidential classified information -- down in the body." Saith Comey: "I think it’s possible, possible that she didn’t understand what a C meant when she saw it in the body of an email like that. I don’t think our investigation established she was particularly sophisticated with respect to classified information and the levels."

[6] Comey: "In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here."


[7] Comey also testified that the FBI did not seriously consider prosecuting Clinton for violating this statute because there is concern over its constitutionality.

[8] Comey: "Our assessment is that, like many e-mail users, Secretary Clinton periodically deleted e-mails or e-mails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails, so it is not surprising that we discovered e-mails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department."

[9] Fred Kaplan writes that, "[a]s anyone who’s ever had a security clearance will tell you, the labels secret and confidential mean next to nothing." Regarding the top secret emails, Kaplan notes that "[s]even of the eight email chains dealt with CIA drone strikes, which are classified top secret/special access program—unlike Defense Department drone strikes, which are unclassified. The difference is that CIA drones hit targets in countries, like Pakistan and Yemen, where we are not officially at war; they are part of covert operations. (Defense Department drone strikes are in places where we are officially at war.) But these operations are covert mainly to provide cover for the Pakistani and Yemeni governments, so they don’t have to admit they’re cooperating with America. Everyone in the world knows about these strikes; nongovernment organizations, such as New America, tabulate them; newspapers around the world—including the New York Times, where some of the same reporters are now writing so breathlessly about Clinton’s careless handling of classified information—cover these strikes routinely." Kaplan notes that "[t]The other top secret email chain described a conversation with the president of Malawi. Conversations with foreign leaders are inherently classified." All of which means that, "even if Russian, Chinese, Iranian, or Syrian spies had hacked into Clinton’s email servers, and if they’d pored through 60,000 emails and come across these eight chains that held top secret material, they would not have learned anything the slightest bit new or worthy of their efforts."