A Difficult Election Made Harder

This was always going to be a difficult election. Hillary Clinton is too clever by half, if not devious – or she’s careful and cautious, weighing risks and rewards at all times in all things, because she knows exactly how she’s been burned before. That’s rational behavior. That can be repulsive, but it’s rational. Some might find it admirable. Actually, many do, but Donald Trump is a different case. He wings it, and that seems to be what his folks love about him. He’s authentic. He refuses to be politically correct. He says whatever comes to mind at any particular moment. Even he doesn’t seem to have thought through what he’s saying – and he often says he didn’t say what he had said, on the record. There are tweets. There’s video. That doesn’t seem to matter. His spontaneity is refreshing, even if what he says often makes no sense at all, but that’s also why he’s losing – that, and he’s a bully, and proud of it, and what some might call a sexist pig, and casually but maybe not intentionally racist, with an ego the size of Montana – and he knows little of the issues, perhaps because he’s new to this, or perhaps because they bore him. He’s angry. If you’re angry, he’s your man.

That’s not much of a choice, but the FBI Director suddenly made the choice much harder. What did James Comey say? We have some emails we got from somewhere. That’s all I can tell you. They aren’t from Hillary Clinton. They weren’t withheld from the investigation. The case isn’t being “reopened.” That’s pretty much all for now. Have a nice day – and with that all hell broke loose. What was THAT about? Trump says it’s the end of Hillary. It’s over. She should quit right now. Actually, he said the election should be cancelled and he should be named president, right now. Perhaps he was kidding, but Team Hillary shot back. Hey, Jim, you got something big-time incriminating? Tell everyone what it is. Put up or shut up. They know there’s nothing there.

James Comey made a mess, and this was inevitable:

The former chief ethics lawyer at the White House during George W. Bush’s presidency has filed an ethics complaint against FBI Director James Comey. In an op-ed published in the New York Times on Sunday, Richard W. Painter writes that he filed a complaint against the FBI for violating the Hatch Act, “which bars the use of an official position to influence an election.” He filed the complaint with both the Office of Special Counsel and the Office of Government Ethics.

Painter, who was the head White House ethics lawyer between 2005 and 2007 and now supports Hillary Clinton, says Comey violated the Hatch Act when he sent the letter to lawmakers on Friday informing them of the newly-discovered emails. “This letter, which was quickly posted on the internet, made highly unusual public statements about an FBI investigation concerning a candidate in the election,” writes Painter. “The letter was sent in violation of a longstanding Justice Department policy of not discussing specifics about pending investigations with others, including members of Congress.”

Although Comey’s previous statements may be concerning, there is no actual evidence yet that the FBI director actually wanted to influence the election. Still, that is irrelevant as far as the Hatch Act is concerned.

Comey is getting sued, perhaps without a leg to stand on:

Speaking to LawNewz.com, Painter says he doesn’t buy the argument that Comey had to send the letter because he had promised to update lawmakers on the issue. The FBI director could have easily sent the letter two weeks later, after voters had gone to the polls, and no one would have been able to argue that he “breached that promise to update,” particularly considering the reports that “the FBI apparently had not even looked at the emails because they did not have a search warrant.”

Yeah, there is that, and there’s this:

FBI agents investigating Hillary Clinton’s use of a private email server while secretary of state knew early this month that messages recovered in a separate probe might be germane to their case, but they waited weeks before briefing the FBI director, according to people familiar with the case.

The timing is a little odd, but three days after the Comey letter to Congress, they did get their search warrant:

The FBI has obtained a warrant to search the emails found on a computer used by former congressman Anthony Weiner that may contain evidence relevant to the investigation into Clinton’s private email server, according to law enforcement officials. The warrant was obtained in New York, as FBI agents there have possession of the laptop.

One official said the total number of emails recovered in the Weiner investigation is close to 650,000 – though that reflects many emails that are not relevant to the Clinton investigation. However, officials familiar with the case said the messages include a significant amount of correspondence associated with Clinton and her top aide Huma Abedin, Weiner’s estranged wife.

How would they know that? They haven’t looked yet, and the odd thing is that this was a surprise to Comey:

People familiar with the case said that agents on the Clinton email team had known about the messages since soon after New York FBI agents seized a computer related to their investigation into Weiner (D-N.Y.), who has been accused of exchanging explicit messages with a 15-year-old girl.

Officials said the agents probing Clinton’s private email server didn’t tell the director immediately because they were trying to better assess what they had.

In short, they kept their boss in the dark and then blindsided him, but their intentions were pure:

“It’s a step-by-step process,” said one senior law enforcement official. “There are many steps along the way that get you to a place where the director can be appropriately briefed in order to make a decision” about whether to move forward.

Comey may not feel the same way now, but now they do have their search warrant and the real work begins:

Investigators will now look at whether the newly uncovered emails contain classified information or other evidence that could help advance the Clinton email probe. It is possible, though, that the messages could be duplicative of others already recovered elsewhere or that they could be a collection of benign, personal notes.

Several law enforcement officials with technical expertise said it is generally not difficult to create software to analyze such emails, searching for terms like “secret” or “top-secret” or any mention of places with classified operations, such as Pakistan. Agents should also be able to figure out quickly how many of the emails duplicate those that have already turned up.

“You could automate that pretty quickly,” said one law enforcement official.

That’s cool, but this isn’t:

What will take more time, however, is making conclusions about whether any of the emails include classified information. That process, former FBI officials have said, could be cumbersome and drag on after the election. Investigators would have to read those for potentially relevant information, and, if there were questions about their classification, send them to other agencies for review.

But no one involved in the investigation is trying to delay, officials say. “This is not a team that sits on its hands,” said one official.

It might have been better if they had, because none of this will be resolved before the election. This is a massive screw-up that messed up an election that was already screwed up quite enough, and much of this sounds a bit unlikely.

Something else might be going on here, and in the Wall Street Journal, Devlin Barrett reports on what that is:

New details show that senior law-enforcement officials repeatedly voiced skepticism of the strength of the evidence in a bureau investigation of the Clinton Foundation, sought to condense what was at times a sprawling cross-country effort, and, according to some people familiar with the matter, told agents to limit their pursuit of the case. The probe of the foundation began more than a year ago to determine whether financial crimes or influence peddling occurred related to the charity.

Some investigators grew frustrated, viewing FBI leadership as uninterested in probing the charity, these people said.

It seems that the FBI was at war with itself:

It isn’t unusual for field agents to favor a more aggressive approach than supervisors and prosecutors think is merited. But the internal debates about the Clinton Foundation show the high stakes when such disagreements occur surrounding someone who is running for president.

It was the Clinton Foundation all along. Some wanted to “get Clinton” and others saw they weren’t getting anywhere:

Other Clinton-related investigations were under way within the FBI, and they have been the subject of internal debate for months, according to people familiar with the matter.

Early this year, four FBI field offices – New York, Los Angeles, Washington and Little Rock, Ark. – were collecting information about the Clinton Foundation to see if there was evidence of financial crimes or influence-peddling, according to people familiar with the matter.

Los Angeles agents had picked up information about the Clinton Foundation from an unrelated public-corruption case and had issued some subpoenas for bank records related to the foundation, these people said…

The FBI field office in New York had done the most work on the Clinton Foundation case and received help from the FBI field office in Little Rock, the people familiar with the matter said.

They thought they had her nailed, and then they got stomped:

In February, FBI officials made a presentation to the Justice Department, according to these people. By all accounts, the meeting didn’t go well.

Some said that is because the FBI didn’t present compelling evidence to justify more aggressive pursuit of the Clinton Foundation, and that the career anticorruption prosecutors in the room simply believed it wasn’t a very strong case. Others said that from the start, the Justice Department officials were stern, icy and dismissive of the case.

“That was one of the weirdest meetings I’ve ever been to,” one participant told others afterward, according to people familiar with the matter.

Anticorruption prosecutors at the Justice Department told the FBI at the meeting they wouldn’t authorize more aggressive investigative techniques, such as subpoenas, formal witness interviews, or grand-jury activity. But the FBI officials believed they were well within their authority to pursue the leads and methods already under way, these people said.

And they got their revenge:

In September, agents on the foundation case asked to see the emails contained on nongovernment laptops that had been searched as part of the Clinton email case, but that request was rejected by prosecutors at the Eastern District of New York, in Brooklyn. Those emails were given to the FBI based on grants of partial immunity and limited-use agreements, meaning agents could only use them for the purpose of investigating possible mishandling of classified information.

Some FBI agents were dissatisfied with that answer, and asked for permission to make a similar request to federal prosecutors in Manhattan, according to people familiar with the matter.

They were not to “go prosecutor-shopping” and the rest is history:

Not long after that discussion, FBI agents informed the bureau’s leaders about the Weiner laptop, prompting Mr. Comey’s disclosure to Congress and setting off the furor that promises to consume the final days of a tumultuous campaign.

This was an internal power struggle, which Josh Marshall sees this way:

Everything we’ve learned suggests Comey had no basis to believe there was significant new evidence, indeed no clear reason to think there was anything new at all. At best, Comey combined extremely poor judgment with a decision to place a near absolute priority on protecting himself from criticism over carrying out his professional and ethnical obligations.

It is quite telling that even at this late stage of the election, when partisan tempers are naturally running at their fiercest, former career DOJ lawyers, former high level DOJ appointees and legal experts on both sides of the aisle are lining up to say this was not only an extremely poor decision but may even have violated the law. As far as I can see, no one who actually knows what Comey’s legal, professional and ethical responsibilities were in this case can find a basis to defend his actions. Even Republicans who might be inclined to interpret ambiguous facts through a partisan prism don’t seem able to come up with one.

The poor guy can’t catch a break, but this is his mess:

I do not believe Comey acted out of a desire to interfere with the outcome of the election. I still believe that. But I’m not sure it matters. What seems inescapable is that Comey has made avoiding criticism from Republicans (and leaks by FBI agents that would generate such criticism) his top, almost his sole priority. That being the case, his intent seems all but irrelevant. It amounts to some professional equivalent of reckless disregard, perhaps with a smattering of generally irrelevant naïveté thrown in.

He should have known better:

It is important return to is why these rules about law enforcement and non-interference in elections are in place in the first place. These rules are in place to prevent precisely the kind of situation we are now in, a potentially highly damaging blow-up on the eve of an election. Those rules are there to prevent this from happening when nothing has in fact been proven or is even likely to be proven. But in this case, even that situation is not what we have. In this case, there seems to be no basis at all. Just the existence of other emails from Huma Abedin, which may even be duplicates of ones already investigated.

I may not be convinced of malice on Comey’s part. But it seems extremely likely that he is being played by people who are acting with malice. Or, perhaps more damning, he is unwilling to do the right thing because it could lead to criticism from Republicans…

This is not some abstract concept of ‘doing the right thing’ – it is doing what he is specifically instructed to do in this case, by longstanding DOJ/FBI guidelines and practice for the very good reason that we should not interfere recklessly with the conduct of national elections.

He should have known better, but he was in a tight spot:

It now seems clear that what are essentially rogue FBI agents have been looking for all sorts of different angles to pursue investigations of Hillary Clinton and her family. Indeed, they’ve presented their evidence to career public corruption prosecutors at DOJ and been told they don’t have anything. But it hasn’t stopped. They clearly were not happy with the decision in the emails probe even though Comey said not even a close call.

This seems to be the backstory of what happened on Friday. Agents pushing for more aggressive investigations on various fronts, Comey fearing he’d be blamed after the fact for not notifying Congress in the letter he sent and specifically being afraid that some of these agents would leak news of the possibly new Huma Abedin emails to Congress. These are not fun situations to be in, I am sure. But they are ones an FBI Director should, indeed must, be willing to stand up to.

And he didn’t, and we have a mess:

Harry Reid is now out with extreme criticism of Comey and accusations about FBI findings about Donald Trump and connections with Russia. This is what is so damaging when people start violating norms, interfering in elections. It starts to seem rational for others to do it as well. There seem to be at least two investigations on-going into issues related to Donald Trump. Comey has felt no analogous need to proceed with what we might call the extreme transparency he has chosen with the emails probe of Hillary Clinton. Again, he’s driven by fear of Republican criticism and leaks by agents trying to strong-arm superiors.

What you have here looks more like a worst case scenario: rogue agents trying to rehash already concluded investigations or launch still other ones in time to effect an election that is only days away. It is no secret that the rank-and-file of the FBI leans Republican, much the same can be said about law enforcement generally. There’s no crime in that. But someone in Comey’s position is charged with pursuing justice and the administration of justice free from partisan motivation and in line with the policies and norms that govern such investigations. He’s failed in that completely, even after being warned of the consequences of his actions. His intent, the mix of self-protection or naiveté or even bad motive if it exists, is basically irrelevant.

He caved, and E. J. Dionne assesses the costs of Comey’s appeasement:

The evidence suggests that FBI Director James B. Comey is a decent man. The evidence also suggests that he has been intimidated by pressure from Republicans in Congress whose interest is not in justice but in destroying Hillary Clinton.

On Friday, a whipsawed Comey gave in. Breaking with FBI precedent and Justice Department practice, he weighed in on one side of a presidential campaign.

I don’t believe this was his intention – but his vaguely worded letter to Congress announcing that the FBI was examining emails on a computer used by Clinton aide Huma Abedin accomplished the central goals of the right-wing critics Comey has been trying to get off his back.

But it’s worse than that:

Especially disturbing is that some of those critics are inside the FBI.

For a major law-enforcement institution to be so politicized and biased against one party would be a genuine scandal. If Comey acted in part out of fear that his agents would leak against him, it would reflect profound dysfunction within the FBI.

Now there’s nothing left:

One measure of the damage Comey has done to his reputation is the praise Donald Trump showered upon him after months of trashing the director for not recommending Clinton’s indictment. Winning favor from a politician who has described how he would use the government’s instruments to punish his enemies is not something a professional like Comey should ever be proud of.

And that opened the floodgates:

Rep. Jason Chaffetz (R-Utah), chair of the Oversight Committee, quickly tweeted news of Comey’s letter Friday and stated: “Case reopened.”

This is not what Comey said (and technically the Clinton case was never closed). But many in the media bought Chaffetz’ hype, especially in early accounts. That’s what happens when an FBI director hands an explosive but muddled letter to a Republican-led Congress.

In fact, Chaffetz had already made clear that if Clinton wins, the GOP’s top priority will be to keep the Clinton investigative machine rolling.

“It’s a target-rich environment,” Chaffetz cheerfully told The Post’s David Weigel last week. “Even before we get to Day One, we’ve got two years’ worth of material already lined up. She has four years of history at the State Department, and it ain’t good.”

And on ABC Sunday, Rep. Bob Goodlatte (R-Va.), chair of the Judiciary Committee, gave the Republicans’ game away when he spoke of Clinton’s “potential impeachment” before correcting himself. Note to reader: Inauguration Day isn’t until Jan. 20, 2017.

These are the people Comey has been trying to mollify ever since he decided that there was no way the evidence justified prosecuting Clinton.

Oops. And Kevin Drum adds this:

This is now getting beyond a case of mere poor judgment on Comey’s part. If the FBI knew about these messages weeks ago, they could easily have gotten a warrant and begun looking at them. If they were harmless – which I’m willing to bet on – Comey could then have either said nothing, or else made it clear that the emails were nothing new.

Instead, the Bureau sat on this for weeks; failed to get a warrant; and informed Comey only at the very tail end of a presidential campaign, when there wouldn’t be enough time to release any exonerating information before Election Day. And if published reports are accurate, Comey went public with this within ten days of an election – something that contravenes longstanding policy at the Department of Justice – because he basically figured he was operating under a threat that it would be leaked with or without him.

If you had material that was literally meaningless because no one had yet looked at it, but you wanted to make it sound sinister, this is how you would play it.

Of course, but Comey seems to be the one who was played here, as we all were:

Let’s stay clear on something. The behavior of Comey and the FBI is somewhere between clueless and scandalous, but the behavior of the media has been flatly outrageous. Given what we know, there is simply no reason for this to have been a 24/7 cable obsession – or to command the entire top half of the front page of the New York Times. This massive amount of attention has been in the service of literally nothing new. Once again, though, when the press hears the words “email” and “Hillary Clinton” anywhere near each other, they go completely out of their minds.

Yeah, well, this was always going to be a difficult election. It didn’t have to get more difficult, but it did. At least it will be over soon. Then we’ll have four more years of everyone being infuriated with each other. Things will get back to normal.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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