alt.legal: Did A Little Data Governance Decide The Whole Election?
Given how far we’ve come, could Hillary Clinton in 2009 really have seen the risk of this coming?
I have written on the consequences of Hillary Clinton’s email issues previously, both in terms of potential jail time for noncompliance with a Congressional subpoena and comparatively to Tom Brady’s response to requests for his cell phone. Today, reeling from the stunning results of Tuesday’s election, let’s look at whether missteps in information governance cost Clinton the entire election.
A quick recap, in case today’s the first day of electricity for you.
On October 3, 2016, FBI agents execute a search warrant and seize former Congressman Anthony Weiner’s iPhone, iPad and laptop in connection with an investigation that Weiner was sexting with an underage girl (pretty salaciously). The laptop appears to have been shared between Weiner and his then-wife and top Clinton aide Huma Abedin. In the weeks that follow, the FBI discovers, through metadata searching, that some of the emails on the laptop may have been transmitted from Secretary Clinton’s private email server.
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On October 28, FBI Director James Comey sent a letter to Congress supplementing his testimony regarding the Clinton email investigation, stating that the FBI learned of the existence of new potentially classified emails and that they were “taking appropriate investigative steps designed to allow investigators to review these emails.”
That same day, Director Comey sends a letter to the Bureau, stating that while they typically don’t inform Congress regarding all of their investigations, he felt he needed to supplement his earlier testimony and that “it would be misleading to the American people were we not to supplement the record.” He admits that “in the middle of an election season, there is significant risk in being misunderstood.”
On October 29, Secretary Clinton holds a press conference where she calls the investigation “not just strange – it’s unprecedented, and it’s deeply troubling.” Incidentally, as to whether this was actually unprecedented, Politifact researched a comparable time when something was reopened on the eve of an election: an indictment of Caspar Weinberger, former defense secretary to Ronald Reagan and George H.W. Bush, refiled the week before Bush’s re-election vote in 1992. Of course, Bush lost that race to Arkansas governor Bill Clinton, husband to future U.S. Senator, Secretary of State and presidential nominee Hillary Rodham Clinton.
The “appropriate investigative steps” mentioned by Comey include the FBI obtaining a search warrant on October 30, a hat tip to the ol’ Constitution of the United States. Legally, the FBI could not go on a fishing expedition seeking evidence on Weiner’s laptop for an unrelated investigation, although such fishing is apparently a somewhat common practice.
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In the days following, there is rampant speculation about Comey’s intentions, including secondhand sources citing pressure from some of his top deputies and his own wife.
On November 4, ranking members of the House Oversight committee sent a letter to the DOJ IG, claiming that Rudy Giuliani went on a morning news show and “bragged” about obtaining information about the FBI’s finding days in advance of Director Comey’s letter to Congress. The letter condemned “unauthorized and inaccurate leaks from the FBI” and called for a “thorough investigation to identify the sources of these and other leaks from the FBI.”
On November 6, two days before the general election, Director Comey sends another letter to Congress, stating that the investigative team has been “working around the clock to process and review a large volume of emails.” During this search, the team “reviewed all of the communications that were to or from Hillary Clinton while she was Secretary of State” and based on that review, “we have not changed our conclusions.”
In the final two days of the campaign, Trump’s primary position on Comey is summed up as follows: “You can’t review 650,000 new emails in 8 days.” But as anyone well-versed in ediscovery knows, it’s simple: you systematically cut the noise out and just review the ones that matter.
On November 7, polls show that in the 11 days leading up to the election since the first Comey letter to Congress, the race has tightened. Hillary Clinton is leading in most battleground states by a small margin, and while the election may be close, Trump’s electoral math seems insurmountable. The final RealClearPolitics poll average gave Hillary Clinton a 3.2 point lead nationally.
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After a long election day with record turnout in many states, around 2:30 a.m. Eastern time on the morning of November 9, 2016, Hillary Clinton calls Donald Trump to concede. Most networks declare a decisive victory for Donald Trump, having won almost every state needed on his path to 270 electoral votes. At his celebration at the New York Hilton on Sixth Avenue, President-elect Trump thanked Secretary Clinton for a hard-fought battle.
Exit polls show that around 6 out of 10 surveyed were bothered by Clinton’s email policy.
On Friday, January 20, 2017, barring any wild turn in events, Donald J. Trump will swear an oath on the West Lawn of the U.S. Capitol and be inaugurated as the 45th President of the United States of America. Clinton, leadership in both parties, Judge Merrick Garland, and most of the world will scratch their heads.
What did anyone learn from this?
First off, did Comey’s letter hurt Clinton’s chances? According to Nate Silver, it appears that it had a meaningful impact in the final days before the election.
Then, accordingly, could better data governance saved the election for Clinton? It is possible. We’re not just talking about Hillary’s email server and its existence. Why would Huma Abedin share a laptop with Anthony Weiner with State Department emails? Even with the entire drama around Clinton’s email investigation, it was more or less put to rest in July with Director Comey’s original view that while reckless, the behavior was not enough to prosecute. Had Abedin’s emails not been found on Weiner’s laptop, even the specter of resurrecting the investigation would have been foreclosed.
But though we are living in an era where parties are severely punished for poor data governance, I wonder if we are applying disproportional standards to different technological eras. In 2009, when Secretary Clinton was appointed into her role, Yahoo! was still a viable search engine and Twitter was just getting started. In 2009, Apple began to see widespread adoption of its newest smartphone device, the iPhone 3GS (I am pretty sure that back then, my firm had just given me the color-screen Blackberry and I was still grieving the loss of the clicky-wheel). Native electronically stored information and ediscovery were just becoming more commonplace than digitized paper records. Data processing for ediscovery was somewhere in the $1,500 per GB range for processing (by the way, today that cost is usually a fraction of that, or for some, included without charge), and ediscovery routinely used to cost millions of dollars in a litigation budget for an average case.
It really was a different world. We have increased our sophistication, availed ourselves of advanced technology and globalization through overseas managed services, and the average email user has far greater awareness around security and privacy.
Given how far we’ve come, could Clinton really have seen the risk of this coming back in 2009? That one day, using a personal IT network for her communications (like her predecessor Colin Powell had advised) would lose her the highest office in the land? That her top lieutenant would marry a sex addict whose seized laptop would somehow contain intermingled emails? That Donald Trump, empowered by WikiLeaks, the Russians, and FBI Director James Comey, would use these emails as sufficient bait for the Electoral College votes needed?
To see all of that coming would require an extraordinary level of foreseeability that boggles human imagination.
But these are extraordinary times.
Ed Sohn is VP, Product Management and Partnerships, for Thomson Reuters Legal Managed Services. After more than five years as a Biglaw litigation associate, Ed spent two years in New Delhi, India, overseeing and innovating legal process outsourcing services in litigation. Ed now focuses on delivering new e-discovery solutions with technology managed services. You can contact Ed about ediscovery, legal managed services, expat living in India, theology, chess, ST:TNG, or the Chicago Bulls at [email protected] or via Twitter (@edsohn80). (The views expressed in his columns are his own and do not reflect those of his employer, Thomson Reuters.)
