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johnw
10-30-2016, 02:59 PM
From TPM:


http://talkingpointsmemo.com/edblog/must-read--36
I'm sure you're getting a million takes on the Comey/email situation from former AUSAs, but here is what I think is going on (healthy doses of speculation here informed by my experience as a former federal public corruption prosecutor in high profile cases):

1. Agents investigating Weiner saw evidence of State Department related emails on Weiner's laptop. This is a totally separate team of agents from the team that investigated the State Department emails. They thus have no idea whether these have already been reviewed or not. And they can't lawfully look at them without a search warrant or (this is key) consent of the owner of the emails. In theory, they could also send a grand jury subpoena for them to Huma and/or Weiner. Regardless, they would not be responsive to the Weiner sexting search warrant, so they can't seize and review them. They appropriately raise it up the chain.

2. The issue goes up the chain. Comey and his team decide they better get a look at these or they will be accused one day of a failure to follow a lead (they frankly should have had these long before). But they don't know what's on the emails, so they have no way of assessing whether they're relevant or not. They need a warrant, or consent, or a subpoena.

3. This is where I might be ready to give a slightly charitable explanation to Comey. He thinks if they seek a search warrant, it will leak. And that's probably a reasonable possibility given many GOP-friendly agents and lots of leakers apparently at HQ. In Comey's mind, headlines would be everywhere stating "FBI Seeks Search Warrant for New Clinton Emails" and the cable news folks would be in full hyperventilation mode. The FBI, his beloved institution, would then be subject to unrelenting attack for interfering in the election. So he decides he better preempt this by sending out a vague and, in his view, innocuous letter to the Hill. He thought he was in a no-win situation. One of his own making (he should have never commented on this case publicly at all), but still, a no-win. Chaffetz then distorts it and the uncritical mainstream news outlets desperate for a real horse race go berserk with hysteria and uninformed speculation.

But here's the thing: They never needed to get a warrant. All they would have had to do is ask Huma's and/or Weiner's lawyers whether they would consent to the search (or accept service of a subpoena for the emails). And they surely would have given it, knowing full well that the alternative would be the FBI getting another search warrant and that leaking to the press. It is not unusual to ask for consent to search from subjects, especially when you have possession of the data. And if they say yes, it's the most defensible way to search as the subject will effectively be waiving any 4th Amendment challenge to the search. If they had done this simple step, they would have the emails by now and would have been able to de-dupe them against the emails they already had and have any new ones reviewed in short order. By doing so, they would also have been taking steps to minimize potential leaks.

I've generally been a big Comey fan, but I'm appalled at what's happened here. At the end of the day, the DOJ policies on not commenting on ongoing investigations are really important and should have been followed from the beginning. He acted prematurely here and, I think, irresponsibly by sending the letter, especially without knowing whether there was anything new. Many voters can't help but assume that the FBI must have found something new. Regardless, if you think you're in a no-win, fall back on the policy and make no comment. I think back to investigations of members of Congress that I handled and cannot fathom having my FBI agents make public comments about reviewing potential new evidence in real time less than two weeks before an election. It's just insane. Career destroying, Democracy distorting, insanity.

At this point, I think he has to say the following:
(1) we have not seen any new evidence that changes our prior conclusion;
(2) we do not know whether the new email collection involves any emails that were not previously reviewed in reaching our prior conclusion; and
(3) we will refer all further questions on this matter to the DOJ.

skuthorp
10-30-2016, 03:20 PM
" At the end of the day, the DOJ policies on not commenting on ongoing investigations are really important and should have been followed from the beginning. He acted prematurely here and, I think, irresponsibly by sending the letter, especially without knowing whether there was anything new. Many voters can't help but assume that the FBI must have found something new. Regardless, if you think you're in a no-win, fall back on the policy and make no comment. I think back to investigations of members of Congress that I handled and cannot fathom having my FBI agents make public comments about reviewing potential new evidence in real time less than two weeks before an election. It's just insane. Career destroying, Democracy distorting, insanity."

Yes, and like the USSC decision re GW potentially world changing.

johnw
10-30-2016, 03:29 PM
Well, I hope it's not as world-changing as Bush v. Gore.

skuthorp
10-30-2016, 04:01 PM
There seems to be a constant problem caused by important positions in law and justice being political currency rather than the product of a more independent system of appointment.

David G
10-30-2016, 04:07 PM
Clinton critic decries Comey tactic --

http://www.politico.com/story/2016/10/jeanine-pirro-defends-clinton-on-fbi-review-announcement-230506?cmpid=sf#ixzz4OaC4BqkH

PatCassidy
10-30-2016, 04:08 PM
I think world-changing would be an understatement. If anyone besides me needs some humor go to youtube and search for Trump dinosaur. The creator of this was very clever and put together a very amusing bit of entertainment. Here is the link: https://www.youtube.com/watch?v=LQmbttoxUeE

johnw
10-30-2016, 05:00 PM
Great links, guys. The thing is, this is more damage to the institutions of our government, caused by violating professional norms. Even if it doesn't affect the election much, it weakens the appearance that the FBI can be relied upon for an apolitical approach to justice. We've seen over and over since the Nixon administration that the professional norms that gave our institutions credibility are easily overthrown.

CWSmith
10-30-2016, 05:05 PM
The thing is, this is more damage to the institutions of our government, caused by violating professional norms.

Well said. It might have been an issue if the FBI could say definitively that there was illegal activity in those files. As it is, he has harmed the reputation of the FBI that even now is recovering from the harm done by J. Edgar Hoover.

David G
10-30-2016, 05:35 PM
FBI's Office of Special Counsel, an internal investigations unit which examines possible ethics violations, will file a complaint against Comey for possible Hatch Act violations.

http://deadstate.org/george-w-bushs-ethics-lawyer-files-complaint-against-comey-for-abuse-of-power/

Peerie Maa
10-30-2016, 05:40 PM
Another take on the sorry saga

Admit It. The Clinton Email Controversy Bothers You, Yet You Don’t Actually Know What the Clinton Email Controversy IsHow a poorly explained mistake continues to threaten the political career of the former Secretary of State. from https://medium.com/the-curious-civilian/admit-it-the-clinton-email-controversy-bothers-you-yet-you-dont-actually-know-what-the-clinton-511dc1659eda#.g91glspe9

So how did I come across all this information?I’ll bet you’re wondering how I was able to compile so much data on the Clinton email controversy. Easy. It all came from the FBI themselves (https://vault.fbi.gov/hillary-r.-clinton). The report is available for anyone to read at any time, and it clearly lays out the investigation that went down, as well as why they came to their conclusions.
Clinton’s emails are the result of a lot of things, but criminality isn’t one of them. The government needs a serious revamping of their communications systems, their transparency, and a clearer grasp of just what workers in 2016 are expecting — and needing — from the tools that help them do such important state business.
Let’s be frank, here. America is the number one military superpower in the world. Our national security relies on finding a solution to this critical communications need. That the acting Secretary of State relied on a private server to do her job—and do it better — should be scaring the hell out of all of us. But instead of looking at — and fixing—this monumental problem, we’re spending our time trying discredit a woman, who despite what you think about her personally, has actually been an effective and diligent public servant.
The Clinton email controversy isn’t about Hillary Clinton. It’s not about classified information. It’s about how we, as Americans, adapt to the changing world. As the pressures of globalism escalate, there’s no better time — and no better person than Clinton herself — to mount this charge. She needs to do something about our communications problem, and we need to hold her to it.

johnw
10-30-2016, 06:07 PM
FBI's Office of Special Counsel, an internal investigations unit which examines possible ethics violations, will file a complaint against Comey for possible Hatch Act violations.

http://deadstate.org/george-w-bushs-ethics-lawyer-files-complaint-against-comey-for-abuse-of-power/

Interesting. I didn't know a private citizen could file such a complaint.

Peerie Maa
10-30-2016, 06:12 PM
Interesting. I didn't know a private citizen could file such a complaint.

Is he?

The complaint was filed by Richard Painter with the FBI’s Office of Special Counsel, an internal investigations unit which examines possible ethics violationsSounds like he holds an official capacity.

johnw
10-30-2016, 06:19 PM
Is he?
Sounds like he holds an official capacity.
The people he filed with have an official capacity. He's a law school professor.

http://www.fed-soc.org/experts/detail/richard-w-painter

Peerie Maa
10-30-2016, 06:38 PM
Fairy Nuff, not a well cast sentence. However is he not allowed to ask the FBI’s Office of Special Counsel to act?

johnw
10-30-2016, 06:39 PM
Fairy Nuff, not a well cast sentence. However is he not allowed to ask the FBI’s Office of Special Counsel to act?

I assume he knows what he's doing.

David G
10-30-2016, 10:23 PM
Fairy Nuff, not a well cast sentence. However is he not allowed to ask the FBI’s Office of Special Counsel to act?

I read it wrong as well. I thought he was not only 'the chief White House Ethics Lawyer in the Bush Administration from 2005-2007'... but also currently a govt. official.

skuthorp
10-30-2016, 11:17 PM
"the chief White House Ethics Lawyer in the Bush Administration"
Does anyone else find something wrong about that?
Ethics, Lawyer and Bush Administration?

David G
10-31-2016, 12:42 AM
Libertarian VP candidate, and former Justice Dept. official, Bill Weld says sending the letter was 'inconceivable'. A big mistake on Comey's part. And that there is nothing of substance (yet, and possibly ever) to discuss.

https://www.yahoo.com/news/bill-weld-calls-comeys-letter-174614001.html

David G
10-31-2016, 11:58 AM
Eric Holder comments --


I am deeply concerned about FBI Director James B. Comey’s decision to write a vague letter to Congress about emails potentially connected to a matter of public, and political, interest. That decision was incorrect. It violated long-standing Justice Department policies and tradition. And it ran counter to guidance that I put in place four years ago laying out the proper way to conduct investigations during an election season. That guidance, which reinforced established policy, is still in effect and applies to the entire Justice Department — including the FBI.

http://www.dailykos.com/stories/2016/10/30/1588932/-Eric-Holder-on-Comey-in-WashPo-He-Has-Committed-a-Serious-Error?detail=facebook

switters
10-31-2016, 12:02 PM
Libertarian VP candidate, and former Justice Dept. official, Bill Weld says sending the letter was 'inconceivable'. A big mistake on Comey's part. And that there is nothing of substance (yet, and possibly ever) to discuss.

https://www.yahoo.com/news/bill-weld-calls-comeys-letter-174614001.html

Amazing.

Osborne Russell
10-31-2016, 01:18 PM
Great links, guys. The thing is, this is more damage to the institutions of our government, caused by violating professional norms. Even if it doesn't affect the election much, it weakens the appearance that the FBI can be relied upon for an apolitical approach to justice. We've seen over and over since the Nixon administration that the professional norms that gave our institutions credibility are easily overthrown.

You could call them professional norms but this isn't a profession, it's affairs of state -- much more important. The morality of the right to self-government being upheld through policy. "Be careful around elections."

Calling them professional is a start, I guess, for a technology worshipping people. Gets their attention in terms they can relate to.

And what is this jazz, from the article: " He thought he was in a no-win situation. "

Since when does he "win"? When does the FBI "win"? Never. They are public servants.

Hoover was notorious for making the FBI into a fortress against the world, all the while carefully avoiding saying so. Is there something structural which promotes such an attitude? It's hard to believe that Comey is just that reckless. Where is the debate about changing policy in regard to election time? Where are the articles, books, debates, so on? Where is there any record of someone advocating this departure, before it happened? If there is none, then Comey bears a very heavy burden of justification.

He attempted in his revelation letter to meet it with the public's right to know, which does not exist, as he well knows. There is perhaps no law enforcement official in the entire nation more in a position to know that than the Director of the FBI. So that's a lie. Maybe there was another rationale all along, providing an exception to the rule. He ought to have cited it. Why wouldn't he?

As it stands, he alone decided it was a good idea, for undisclosed reasons, except the bogus one, over the objections of people whose professional duty it was to know or have immediately available the best background material in these matters, and advise him accordingly. That would something it would be good for the public to know, in order that they might understand why the FBI generally does not announce the existence of an investigation, much less whether evidence has been found, election or no; close before an election, especially not.

johnw
10-31-2016, 01:59 PM
I call them professional norms because when I was in grad school, that's what the professor in my public administration class called them, when discussing why he had not thought certain things that happened in the Nixon administration could happen. Public officials do have professional norms, like anyone else.

Apparently, there was discussion of how such matters should be handled, and policies were put in place as a result. Those policies, in addition to long-standing professional norms, are what Comey is accused of violating.

As to institutional culture, that's harder to change than you might think. Each generation of FBI agents is mentored by the previous generation.

Peerie Maa
10-31-2016, 02:33 PM
@ Osbourne.
Professional is a well understood noun for a standard of behavior.
No win is a well understood idiom equivalent to being on a hiding to nothing.

Loosen up a bit do.

Osborne Russell
10-31-2016, 03:45 PM
OK John & Peerie but there is this tendency to put more and more masks over issues of fundamental principle even when, as here, they have great and immediate political impact. They need to be torn away before they accumulate into a kind of scar tissue.


Apparently, there was discussion of how such matters should be handled, and policies were put in place as a result.

The "should" comes from principle, and I don't mean the" principle" of expediency or the "principle" of efficiency. I mean moral principle.

Gerarddm
10-31-2016, 04:10 PM
To show what an odd action it was, contrast that with his stance on releasing Russian involvement in hacking because it would poison the election:

http://www.msn.com/en-us/news/politics/fbis-comey-opposed-naming-russians-citing-election-timing-source/ar-AAjETv8?li=BBmkt5R&ocid=spartanntp

Osborne Russell
10-31-2016, 07:35 PM
To show what an odd action it was, contrast that with his stance on releasing Russian involvement in hacking because it would poison the election:

http://www.msn.com/en-us/news/politics/fbis-comey-opposed-naming-russians-citing-election-timing-source/ar-AAjETv8?li=BBmkt5R&ocid=spartanntp

Ain't that somethin'.