Today in email (and Comey’s incredibly reckless decision)
October 29, 2016 2 Comments
1) Jane Mayer:
Comey’s decision is a striking break with the policies of the Department of Justice, according to current and former federal legal officials. Comey, who is a Republican appointee of President Obama, has a reputation for integrity and independence, but his latest action is stirring an extraordinary level of concern among legal authorities, who see it as potentially affecting the outcome of the Presidential and congressional elections.
“You don’t do this,” one former senior Justice Department official exclaimed. “It’s aberrational. It violates decades of practice.” The reason, according to the former official, who asked not to be identified because of ongoing cases involving the department, “is because it impugns the integrity and reputation of the candidate, even though there’s no finding by a court, or in this instance even an indictment.”
Traditionally, the Justice Department has advised prosecutors and law enforcement to avoid any appearance of meddling in the outcome of elections, even if it means holding off on pressing cases. One former senior official recalled that Janet Reno, the Attorney General under Bill Clinton, “completely shut down” the prosecution of a politically sensitive criminal target prior to an election. “She was adamant—anything that could influence the election had to go dark,” the former official said.
The obvious reason for this is that as soon as most people hear “investigation” or “indictment” they think “guilty!!” Especially, if those people are reporters with news to sell. Is Comey seriously ignorant enough to believe that his simple letter would not have exactly this absurd outsized impact?! (Trump calling it bigger than Watergate. Even for Trump, that’s a whopper, but will his voters know?).
2) Okay, so this is disturbing? They may not even have any clue at all what’s in the email. Or even the legal authority yet to read them:
As of Saturday night, the FBI had still not gotten approval from the Justice Department for a warrant that would allow agency officials to read any of the newly discovered Abedin emails, and therefore are still in the dark about whether they include any classified material that the bureau has not already seen.
“We do not have a warrant,” a senior law enforcement official said. “Discussions are under way [between the FBI and the Justice Department] as to the best way to move forward.”
That Comey and other senior FBI officials were not aware of what was in the emails — and whether they contained any material the FBI had not already obtained — is important because Donald Trump’s campaign and Republicans in Congress have suggested that the FBI director would not have written his letter unless he had been made aware of significant new emails that might justify reopening the investigation into the Clinton server.
But a message that Comey wrote to all FBI agents Friday seeking to explain his decision to write the controversial letter strongly hinted that investigators did not not yet have legal authority establishing “probable cause” to review the content of Abedin’s emails on Weiner’s electronic devices.
Ugh. Seriously?! Again, you don’t have to be a DOJ laywer to recognize how irresponsible Comey’s letter was.
3) Greg Sargent:
But putting that dispute aside, one thing seems inarguable: Comey had to know that releasing such a vaguely worded letter to lawmakers at this time would allow Republicans to argue that new evidence of Clinton’s criminality has been discovered. This is of course exactly what has happened. This risks “misleading” the American people, which Comey’s latest justification claims he wanted to avoid, and which Comey has now facilitated and enabled in a huge way. If he actually does want to avoid this, he should rectify the situation by providing more clarity right now.
4) To beat a dead horse (but a horse that deservedly need to be beaten to a pulp), from today’s Post:
Federal law enforcement officials said it was possible the messages could be duplicates to others already recovered in the case, and they could also be benign. Former FBI officials said that once agents have the legal authority to more closely examine the emails, they would likely use a computer program to weed out duplicates, then slowly examine the remaining messages for classified information and evidence of obstruction or bad intent.
Got that? At this point there is literally zero reason to believe there is any evidence that these emails show criminal malfeasance on the part of Clinton or Abedin. They have already been over thousands and thousands of emails–maybe even these very ones— simple logic dictates there’s nothing actionable here just because they are on a different computer.
5) Former DOJ Public Affairs officer Matthew Miller is on Comey like nobody’s business:
With each step, Comey moved further away from department guidelines and precedents, culminating in Friday’s letter to Congress. This letter not only violated Justice rules on commenting on ongoing investigations but also flew in the face of years of precedent about how to handle sensitive cases as Election Day nears.
Justice traditionally bends over backward to avoid taking any action that might be seen by the public as influencing an election, often declining to even take private steps that might become public in the 60 days leading up to an election. For an example, in one case of which I am aware, the FBI opened an investigation into a high-ranking public official shortly before an election but delayed sending any subpoenas until after the election for fear that they might leak and unfairly tarnish the official. Indeed, that investigation ultimately concluded with no charges…
With that independence comes a responsibility to adhere to the rules that protect the rights of those whom the FBI investigates. Comey has failed that standard repeatedly in his handling of the Clinton investigation.
6) And a great take from Josh Marshall. My favorite part is he writes the letter Comey should have written:
If he felt he was obligated to inform Congress, he must have realized that that notification would rapidly become public. Because of that, he was obligated to provide substantially more information. From the totality of what we know based on the last 24 hours of reporting, that different letter would have gone something like this:
In the course of the investigation of Anthony Weiner, investigators discovered a new batch of emails from Clinton aide Huma Abedin. We do not yet know whether any of those emails contain classified information or whether some or all are in fact duplicates of emails the FBI already obtained and scrutinized during its investigation of Secretary Clinton’s private email server. At present we have no reason to believe these newly discovered emails would change the decision reached in July. However, based on the recommendations of investigators, I have decided that we will review these emails from on the Weiner/Abedin computer to ascertain the answers to both of those questions. Out of an abundance of caution, I have taken the step to inform Congress of this new development.
Such a letter still would have been a major campaign story. But it would have had the benefit of replacing clarifying information with ambiguity and confusion.
Comey’s rejoinder would almost certainly be that the FBI does not discuss on-going investigations and certainly does not try to prejudge on-going reviews. Normally, that is 100% right. That is the bureaucratic reflex action. But that horse left the barn months ago. Comey’s key, critical error was not realizing that having already dispensed with the most central guidelines of FBI procedure on these matters he could not maintain other norms and guidelines in their entirety without a further analysis of how to address the various equities and interests these policies are normally intended to protect. In other words, once he was operating totally outside the lines – though, perhaps for good reason – he needed to give much more thought to how to address the imperative of non-interference in an election while operating outside the lines. There is little doubt that that meant sharing considerably more detail about what was happening than he did in his letter to Rep. Chaffetz (R-UT) and the other committee chairs.
As I wrote yesterday, before we knew the bulk of the information uncovered over the last 24 hours, I still do not think (though my credulity is somewhat more strained) that Comey operated out of any partisan motive. But I do think his highest priority was protecting himself and the FBI from Republican criticism. The net effect was a colossal fuck up which I fear will have profound repercussions regardless of who wins the presidency in 10 days.
7) The reason this is so frustrating is because the media is so irresponsible in situations like this. And even if they weren’t, Republican politicians (and Democrats if the shoe were on the other foot) are incredibly irresponsible. Thus, even if the media weren’t horribly irresponsible, their “he said, she said” approach would ultimately award irresponsibility. In short, irresponsibility wins. And, again, Comey has to know this.
Does this mean Trump will know win? I really don’t think so. But this is an episode of amazingly foolish and careless behavior by a top law-enforcement official magnified to an exponential degree by our pathological campaign press. I suspect I will be using this as an example for decades when I discuss media feeding frenzies.