Stephen Miller’s and Trump’s Gross Re-Politicization of DOJ

There was some legitimate concern about inappropriate machination of the Department of Justice when Trump named and confirmed Jeff Sessions as his Attorney General. Typical discussion followed this by Isaac Arnsdorf at Politico:

Donald Trump suggested on the campaign trail that he could use the Justice Department to fulfill his political agenda, taunting Hillary Clinton by threatening to throw her in jail over her email scandal.

Now, Sen. Jeff Sessions, Trump’s pick for attorney general, will have to decide whether to follow his predecessors by vowing to not let politics drive the DOJ’s decision-making.

That was one, and a serious, level of concern. Today we find said concern not close to being deep enough as to how the Trump White House would try to run Justice as merely a lever of their extreme politics.

But, via the New York Daily News, comes a little noticed, and truly frightening report of just how renegade and ridiculous the “fine tuned machine” the Trump White House is determined to be in politicizing the DOJ. In an article captioned “Stephen Miller called Brooklyn U.S. Attorney at home and told him how to defend travel ban in court”, comes the stunning news that:

In the chaotic hours after President Trump signed on a Friday afternoon the sloppily written executive order meant to fulfill his Muslim ban campaign promise, Stephen Miller called the home of Robert Capers to dictate to the U.S. Attorney for the Eastern District how he should defend that order at a Saturday emergency federal court hearing.

That’s according to a federal law enforcement official with knowledge of the call, which happened as Department of Justice attorneys cancelled plans, found babysitters and rushed back to their Brooklyn office to try and find out what exactly it was they were defending and who was being affected by it — how many people were already being held in America, how many were being barred from arriving here and the exact status of each person.

The full article at the NYDN is mandatory reading, but let that sink in for a second. 31 year old Stephen Miller, a wet behind the ears extreme right wing ideologue with white nationalist leanings and NO, repeat NO legal training, much less law degree, called up a United States Attorney – at home! – to “dictate” how the DOJ would operate in an emergency litigation situation in an United States District Court.

Stunning is too weak of a response. Shocking is insufficient. It is actually hard to know what the proper words for this are.

I asked Matthew A. Miller, former OPA head under the Obama DOJ for a thought on the implications of Stephen Miller’s hubris in this instance. His reply was:

The last time a White House started dictating demands to U.S. attorneys, the sitting Attorney General had to resign in disgrace. This raises yet another in a series of questions about whether the Sessions Justice Department will be independent from the Trump White House.

Exactly. I would have said “unprecedented” above along with “stunning” and “shocking”, but for what occurred during a period of the Bush/Cheney regime when the interaction and control of the DOJ from the White House was extreme. And, ultimately, blown up as beyond unacceptable and appropriate by more reasoned minds and authorities. And, I might add, substantially due to the Fourth Estate of the press, that Trump blithely and ignorantly describes as “enemies of the American people”.

Yes, it is really that important of a moment now with Stephen Miller (note: NO relation to Matthew A. Miller) and the extreme hubris and lack of institutional awareness, competence or control, and obvious disdain for any, by the Trump Administration.

Back in 2007 Senator Sheldon Whitehouse created, and displayed at a Senate hearing, a stunning graphic displaying the shocking difference between communication between the Clinton White House and DOJ, and the ridiculous political input that the Bush Cheney White House had to DOJ.

With the grossly inappropriate statements of President Donald Trump as to how “he” will direct prosecutions of political enemies and other criminal and military defendants, leakers and others, to the literally insane conduct of Stephen Miller here, it is time to remember Senator Whitehouse’s chart.

It is also time to wonder if Sheldon Whitehouse and other members of the Senate Judiciary Committee have the cojones to take the fight for the Constitution and integrity of the justice system once again to a renegade White House. And the Trump White House has quickly made the Bush/Cheney White house look better in the rear view mirror, as truly craven as they were.

And, yes, the situation is exactly that dire if you recall the same Stephen Miller, being sent out and directed to all the Sunday political shows to declare and mandate that:

“…our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”

This is straight up an Article II Branch declaration of pure tyranny by Stephen Miller and Trump. This is a serious problem, and this is an Administration making good on its promise and determination in that regard.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

Nevertheless, She Persisted

One of the most disgusting events recorded in U.S. Senate history occurred last night while Senate Democrats held the floor to debate Jeff Sessions’ nomination as U.S. Attorney General.

Senate Leader Mitch McConnell used a gag rule to stop Elizabeth Warren from reading Coretta Scott King’s 1986 letter to the Senate Judiciary Committee about Jeff Sessions’ efforts to suppress African American voters and his fitness to serve as a federal judge.

This is breathtakingly offensive.

A Senator denied a First Amendment right, unable to participate in speech and debate in their role on behalf of constituents.

The suppression of an historic written statement by an historic figure, presented decades ago to the Senate.

A woman Senator prevented from speaking as part of a governmental body whose composition is 79% men.

The quashing of fact regarding a cabinet nominee’s racist behavior as a former member of law enforcement, germane to their unsuitability as U.S. Attorney General.

And most horrifically, the use of a gag rule circa 1836, instituted by white supremacist members of Congress who prevented abolitionists from speaking about ending slavery.

The Party of Lincoln is dead. It is a zombie animated by hatred, intent on hurting any who pose a threat to its continued grasp on power. It doesn’t take seriously its oath of office, instead resurrecting archaic nonsense to deprive the people of their rights while encouraging corruption.

In summoning Rule XIX and cementing his wretchedness into Senate record, McConnell said about Warren, “She was warned. She was given an explanation. Nevertheless, she persisted.”

She will, indeed, persist, Senator McConnell. She and millions of Americans will persist in their rejection of white supremacy and fascism which relies on it. You have generously offered a rallying cry for our resistance.

And when your body finally relinquishes the venal energy which moves it daily, know that whatever memorial is mounted for you will be visited for the next hundred years by women and minorities who’ll paste it with mementos which read, “Nevertheless, she persisted.”

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

On Sally Yates’ Stand and the Session’s Nomination

There are two funny details about the reporting on the stand then Acting Attorney General Sally Yates took against Donald Trump’s Muslim ban, which led to her firing. First, even in a story that explains the process by which Yates decided to order DOJ not to enforce the ban, there’s little consideration of timing.

[O]n Friday, Yates heard a media report that Trump had signed an executive order temporarily barring entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.

No one from the White House had consulted with Yates or any other senior leaders in the Justice Department. Yates had to decide whether her lawyers could defend Trump’s action in court. She did not even have a copy of the order, and her aides had to go online to find it.

“It was chaos,” said a senior Justice Department official.

[snip]

As acting attorney general Sally Yates struggled to figure out how or whether to defend President Trump’s immigration order last weekend — while protests erupted at airports nationwide, immigrants were denied entry to the United States and civil rights lawyers rushed to court — two events helped crystallize her decision.

The first was a television appearance by Trump on the Christian Broadcasting Network. In an interview, he said that Christians in the Middle East who were persecuted should be given priority to move to the United States because they had been “horribly treated.”

The second was late Saturday night when former New York mayor Rudolph W. Giuliani appeared on Fox News. Giuliani said Trump wanted a “Muslim ban” and asked him to pull together a commission to show him “the right way to do it legally.”

“Those two things put the order in a very different light,” said a senior Justice Department official familiar with her decision. “Trump’s executive order appeared to be designed to make distinctions among different classes of people based on their religion.”

The article cites the CBN interview with Trump — the interview was done on Friday and clips started being released on Saturday — but doesn’t say when Yates saw the interview. But the Giuliani interview was later in the day on Saturday.

By that point, DOJ already was defending the EO, at least against motions for stays, with stories of DOJ attorneys getting calls late at night to contest ACLU and other civil liberties’ groups suits. Where was Yates during that period? Who was calling these attorneys and getting them to courtrooms?

Just as notably, though, such reports rarely raise how Yates’ actions on Monday that led to her firing might have been designed to impact Jeff Sessions’ confirmation process, even while everyone reported on the question Sessions posed to Yates during her own confirmation about refusing illegal orders. Yet that’s precisely what happened, as Democrats delayed the committee vote on Sessions a day, citing the Yates versus Sessions exchange and the Muslim ban.

None of that means Yates’ delayed decision wasn’t the right one to make, one made from a principled stand about the discriminatory impact of this ban. It just seems like a decision that also served to heighten the pressure on Sessions’ own complicity in this bigotry.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

DOJ Still Claiming Its Kid Glove Oversight of Prosecutors Is Adequate

During the uproar over Jim Comey’s role in the Hillary email investigation, a lot of commentators figured it’d all come out in an Inspector General report. But as I noted, DOJ exempts its lawyers from normal kind of oversight, subjecting them instead to Office of Professional Responsibility investigations without statutory independence. The problem has been debated at least since 2007, but Congress squelched efforts to change it in 2008. That, helped by the interference of the now-deceased David Margolis, was how John Yoo got off after writing shoddy memos authorizing torture.

Last month, DOJ’s IG released its yearly review of top management challenges. And, as Michael Horowitz’s predecessor Glenn Fine had done before him, he made a bid for being able to review the conduct of DOJ’s lawyers. The report argues that the oversight for lawyers should be the same as it is for agents.

The OIG, however, does not have authority to investigate allegations of misconduct against Department attorneys when the allegations are related to their work as lawyers. Those allegations fall under the exclusive jurisdiction of the Department’s Office of Professional Responsibility. The OIG has long believed that there is no principled basis for this continued limitation on our jurisdiction, and no reason to treat the investigation of misconduct by prosecutors differently than misconduct by agents. Under the current system, misconduct allegations against agents are handled by a statutorily independent OIG, while misconduct allegations against prosecutors are handled by a Department component that lacks statutory independence and whose leadership is both appointed by and removable by the Department’s leadership.

As Horowitz has done with IG statutory independence with respect to accessing evidence, the report focuses on bills to address the problem.

Bipartisan bills pending in both the U.S. House of Representatives and the U.S. Senate would remove this limitation on the OIG’s jurisdiction. The legislation, as now proposed, would allow the OIG to investigate these important matters, where appropriate, with the independence and transparency that is the touchstone of all of the OIG’s work, thereby providing the public with confidence regarding the handling of these matters. The Department’s attorneys should be held to the same standards of oversight as other Department components, and the OIG should have oversight over all Department employees, just like every other OIG.

Most interesting, however, is the way that DOJ claimed this long-established problem doesn’t exist. Unbelievably, “the Department” claimed that OPR has the same independence as OIG.

In response to a draft of this report, the Department questioned our position that the OIG should have the same authority as every other federal Inspector General to review allegations of misconduct by Department attorneys in connection with their work as lawyers. Among other things, the Department took issue with our description of OPR’s relative lack of independence as compared to the OIG by asserting that (1) OPR’s Counsel “remains unchanged with successive Attorneys General and presidential administrations,” (2) the OIG has not “criticized OPR’s work, the thoroughness of its investigations, or the soundness of its findings,” and (3) the OIG has not “identified a single OPR investigation that failed to appropriately hold accountable . . . Department attorneys.”

The report calls bullshit on the claim that the department hasn’t replaced OPR officials, noting that Holder did replace OPR Counsel Marshall Jarret in 2009 in the midst of the Ted Stevens scandal (Jarret was also backing off promises he would make the results of the Yoo investigation with Congress).

On the first point, the same could be said of supervisory attorneys throughout the Department and, in fact, contrary to the Department’s claim with regard to OPR, in April 2009, less than 4 months after the last change in presidential administrations, the new Attorney General replaced the OPR Counsel without any public explanation.

Holder actually replaced the OPR Counsel one more time, in 2011.

The report goes on to note that we can’t assess OPR’s work because, unlike most IG Reports, it is not public.

On the second and third points, neither the OIG nor the public are in a position to fully assess the thoroughness and soundness of OPR’s work precisely because OPR does not disclose sufficient information to allow for such an assessment.

The report then lists off a bunch of people — including the judge in the Ted Stevens case, Emmet Sullivan — who have complained about OPR’s work.

However, federal judges, the American Bar Association, and the Project on Government Oversight (POGO) have all questioned the level of independence, transparency, and accountability of OPR. See, e.g., Order by Hon. Emmet G. Sullivan Appointing Henry F. Schuelke Special Counsel in United States v. Stevens, No. 08-cr-231 (Apr. 7, 2009), p. 46. (“the events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no outside accountability”) ; “Criminal Law 2.0,” by Hon. Alex Kozinski, 44 Geo. L.J. Ann. Rev. Crim. Proc. iii (2015); ABA Recommendation urging the Department of Justice to release “as much information regarding individual investigations as possible,” Aug. 9-10, 2010, available here; “Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards: Administration Won’t Name Offending Prosecutors,” Report by POGO, March 13, 2014, available here.

The report ends with a reassertion that the Inspector General Act requires far more of inspectors general than OPR provides.

Moreover, whatever the soundness of OPR’s work, the Department’s efforts to equate OPR’s independence and transparency with that of the OIG flies directly in the face of the Inspector General Act, which fundamentally exists to create entities with an enhanced degree of independence and transparency so that they can credibly conduct investigations and reviews where there would be an expectation that more independent and transparent oversight is required. That is the very reason why Attorney General Ashcroft expanded the OIG’s jurisdiction in 2001 to include the FBI and the DEA, and there simply is no reason why Department attorneys continue to be protected from the possibility that their conduct may warrant independent review by the OIG in appropriate cases.

Frankly, there is evidence that OPR’s investigation has been inadequate, starting with both the Yoo and the Stevens investigations.

But there have also been a slew of cases of prosecutors withholding evidence from defendants, cases that ought to merit some real review (to say nothing of the Clinton email case). For example, just this week, Ross Ulbricht’s lawyers revealed they had discovered evidence of a third corrupt agent, the evidence of which had been withheld from the defense team.

There’s no hint of why Horowitz is making this point now. But there sure are a number of cases that might elicit actual independent review.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Why Democrats May Embrace Jim Comey’s Self-Righteousness in 12 Months

Some Democrats are already blaming Jim Comey for Hillary’s loss last night. It will be some time before we know for sure whether that is true. Certainly polling (to the extent that it can be regarded as a fair read of the electorate, which I’m not sure it can) didn’t show Hillary losing a lot of support, net, over the course of Comey’s head fake. Instead, polls showed Gary Johnson voters coming home to the GOP, which closed Trump’s polling gap. I do think it likely that Comey’s head fake had an effect on Democratic turnout.

So we will see whether Comey is to blame or something else (that said, by the time we really know that, a narrative will be set).

But I also want to talk about Comey’s position going forward.

Had Hillary won, I think President Obama might have fired Comey in the lame duck. But I don’t see that happening now. Partly, because it would be seen as vindictive, and Obama has his legacy to cement. More importantly, there’s no chance Obama could get someone else confirmed.

So Comey will be FBI Director on January 20, with six plus years of a ten year term in front of him.

Trump has already floated Rudy Giuliani as Attorney General.

I have no idea what their relationship is like now, but recall that Comey worked for (presumably was hired by) Giuliani when the latter was US Attorney in the 1980s. Giuliani is the guy that launched Comey on his self-righteous career of federal prosecution.

For that reason — and because of Comey’s behavior in the last month — I expect Trump will keep him.

That means Comey’s self-righteous rule is one of the few things that will prevent Trump, in the near turn, from politicizing the FBI more than it already is. Today’s FBI is already bad, but Comey may limit how badly Trump’s FBI targets Muslims and others Trump targeted during the campaign.

Ultimately, Comey’s tenure may end where it has before, in standing up to some legalistic abuse (even while sanctioning the underlying behavior, as Comey did with both torture and mass surveillance), and resigning or getting fired.

But in the short term, at least, the Democrats who are blaming Comey today may welcome his self-righteousness tomorrow. Me, I think the reasons that self-righteousness is a problem now will remain a problem. But probably less problematic than having Joe Arpaio run the FBI.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

FBI’s Demographics: No Pot Smokers, but Lots of Middle Aged White Men

Amid increasing clarity that lots of line FBI Agents are rooting for Trump to win Tuesday’s election, Josh Gerstein provides one explanation for why: FBI, demographically, looks like Trump’s electorate.

Largely overlooked in the imbroglio is how the fact that the FBI doesn’t look much like America is complicating Comey’s effort to extricate himself and his agency from the political firestorm.

According to numbers from August, 67 percent of FBI agents are white men. Fewer than 20 percent are women. The number of African-American agents hovers around 4.5 percent, with Asian-Americans about the same and Latinos at about 6.5 percent.

If Trump were running for president with an electorate that looked like that, he’d win in a landslide.

In the rest of his piece, Gerstein describes that his has actually gotten worse after Comey took over in 2013, though it is reversing somewhat this year.

While the FBI director has been mounting an aggressive drive to focus on the FBI’s shortcomings in diversity, it’s less clear if he anticipated how the make-up of his own work force would complicate the handling politically polarizing investigations.

However, he has described the demographic challenges in stark, urgent terms.

“We have a crisis in the FBI and it is this: slowly but steadily over the last decade or more, the percentage of special agents in the FBI who are white has been growing, … We are now 83 percent white in our special agent cadre,” the FBI director said in a July speech at historically black Bethune-Cookman University in Daytona Beach. “I’ve got nothing against white people — especially tall, awkward, male white people — but that is a crisis for reasons that you get and that I’ve worked very hard to make sure the entire FBI understands. That is a path to fall down a flight of stairs.”

For the embattled FBI chief and former prosecutor, there is some good news. There are early signs that his focus on diversity — which includes displaying a rainbow flag on the FBI’s recruiting website — may be paying off.

The number of African-American agents climbed to 603 in August, up from 581 in March. However, both numbers are lower than the 652 the bureau had four years ago.

The number of Latinos also ticked up slightly, to 888 from 882 in March, but still well below the 983 the FBI had in 2012.

I want to view these demographics in conjunction with something else Comey has said, repeatedly this year.

To have a cyber special agent, you need three buckets of attributes. You need integrity, which is non-negotiable. You need physicality. We’re going to give you a gun on behalf of the United States of America, you need to be able to run, fight, and shoot. So there’s a physicality required. And obviously there’s an intelligence we need for any special agent, but to be a cyber special agent, we need a highly sophisticated, specialized technical expertise.

Those three buckets are rare to find in the same human being in nature. We will find people of great integrity, who have technical talent, and can’t squeeze out more than two or three push-ups. We may find people of great technical talent who want to smoke weed on the way to the interview. So we’re staring at that, asking ourselves, “Are there other ways to find this talent, to equip this talent, to grow this talent?” One of the things we’re looking at is, if we find people of integrity and physicality and high intelligence, can we grow our own cyber expertise inside the organization? Or can we change the mix in cyber squads? A cyber squad today is normally eight special agents—gun-carrying people with integrity, physicality, high intelligence, and technical expertise. Ought the mix to be something else? A smaller group of this, and a group of high-integrity people with technical expertise who are called cyber investigators?

In conjunction with hiring agents to focus on cybersecurity, Comey has described what he imagines as the “integrity” necessary to be an FBI Agent.

He always uses pot smoking as the example of someone who doesn’t have integrity (in spite of the fact that pot is legal in several states and will be in more after Tuesday). Yeah, what he really means by “integrity” is “can get security clearance.” But he describes that, consistently, as “integrity.”

Perhaps there’s a problem there? Perhaps the Director is creating a culture in which he casually impugns a wide swath of America as lacking integrity that just happens to favor hiring white men?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Anthony Weiner Creates a Virgin Birth for Evidence the Clinton Foundation Investigators Want

WSJ’s Devlin Barrett has a long story he describes as laying bare “tensions that have built for months inside the bureau and the Justice Department over how to investigate someone who could soon be elected president.” It might just as well be described as a catalogue of the ways FBI has gotten out of control.

To show the important background to the decision to get a warrant to access Huma Abedin’s email, I’m going to switch the order of the story from that Barrett uses. Looked at in this way, it becomes clear that by accessing Huma’s email, the FBI may not just have renewed the probably fruitless investigation into Hillary’s email server, but also found a way to access Huma’s emails for use in an investigation of the Clinton Foundation.

FBI ignores Public Integrity orders not to escalate the investigation of the Clinton Foundation

After laying out the recent decision to access Huma Abedin’s email (which I deal with below), Barrett confirms what Comey made obvious with a “neither confirm nor deny” response at his July testimony before the House Oversight Committee (though a flood of leaks had long claimed such an investigation existed).

The FBI has been investigating the Clinton Foundation for over a year.

As Barrett describes it, the case arose because Agents were seeing if a crime was committed, not because they had found evidence that it had:

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.

He describes that in February, when Andrew McCabe got promoted to Deputy Director, he took over oversight of this investigation. (In an earlier article Barrett insinuated that an earlier Terry McAuliffe donation to McCabe’s wife’s state senate campaign presented a conflict, but in this article Barrett provides McAuliffe’s explanation for the donation.) Also in February — Barrett doesn’t say whether McCabe was involved — investigative teams located in Los Angeles, DC, Little Rock, and New York (he doesn’t say whether they were in EDNY or SDNY or both, which is relevant to a later development in the story) presented their case to DOJ’s Public Integrity (PIN) section.

Here’s how Barrett describes that meeting:

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.

Mind you, seven paragraphs before describing PIN telling the FBI it would not authorize subpoenas, Barrett described the Los Angeles team having “issued some subpoenas for bank records related to the foundation.” So when he says FBI officials believed they could pursue leads and methods already under way, it may mean they decided they could use the fruit of subpoenas PIN subsequently judged weren’t merited by the evidence.

In July, after DOJ decided not to prosecute anyone on the email server and Comey started blabbing (including his non-denial of the existence of this investigation), FBI “sought to refocus the Clinton Foundation probe,” which sounds a lot like redoubling efforts to find something to investigate Hillary for. (Note, this entire article makes no mention of the June Supreme Court decision throwing out much of former VA governor Bob McDonnell’s conviction, which would have significantly raised the bar for any prosecution of the Clinton Foundation.) McCabe bracketed the DC work focusing on Terry McAuliffe, from which he was recused, and put NY in charge of the rest.

Barrett spends a paragraph airing both sides of a dispute about whether that was the right decision, then describes a (male, and therefore someone besides Loretta Lynch or Sally Yates) senior DOJ official bitching out McCabe for continuing to pursue the Clinton Foundation investigation, especially during the election.

According to a person familiar with the probes, on Aug. 12, a senior Justice Department official called Mr. McCabe to voice his displeasure at finding that New York FBI agents were still openly pursuing the Clinton Foundation probe during the election season. Mr. McCabe said agents still had the authority to pursue the issue as long as they didn’t use overt methods requiring Justice Department approvals.

The Justice Department official was “very pissed off,” according to one person close to Mr. McCabe, and pressed him to explain why the FBI was still chasing a matter the department considered dormant.

Barrett spends several paragraphs airing both sides of what happened next, whether FBI agents were ordered to stand down entirely or whether McCabe said they could continue to investigate within the existing guidelines.

FBI attempts to venue shop to get at Clinton server emails

Even after that order, the Clinton Foundation investigators tried to get more — specifically, all the emails turned over in the email server investigation. When EDNY (as a reminder, that’s where Loretta Lynch was until last year US Attorney) refused, the investigators asked to go get them in SDNY.

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. Mr. McCabe, these people said, told them no and added that they couldn’t “go prosecutor-shopping.”

Several comments on this: First, McCabe did the right thing here in refusing to let his agents venue shop until they got their way. I hope he would do the same in a less visible investigation where senior DOJ officials were chewing him out for conducting the investigation in the first place.

Second, consider how the timing of this coincides with both leaks about the immunity agreements, Jason Chaffetz’ inquiry into the same, and two sets of email server related materials. As one key example, on October 5, just weeks after McCabe told his Agents they couldn’t go “prosecutor-shopping” to get to the emails released in the email server probe, Republicans were releasing details of their in camera review of the terms of the immunity agreements used to deny the Clinton Foundation investigations access to the emails. We should assume that some entities within the FBI are using all angles, using Chaffetz’ investigations to publicize decisions that have thwarted their investigation.

Did FBI Agents review the content of Huma Abedin’s email without a warrant?

So sometime in September, the Clinton foundation team was told they couldn’t have emails associated with the server investigation that were tied to immunity agreements. On October 3 (per the NYT), FBI agents seized a number of devices, including a laptop used jointly by Anthony Weiner and Huma Abedin with a warrant permitting just the investigation of Weiner’s alleged sexting of an underaged woman (curiously, Barrett says they were permitted to look for child porn). Shortly thereafter, they found found emails from accounts, plural, of Huma Abedin on the laptop. Multiple reports suggest those emails may be duplicative of the ones that FBI had just been told they couldn’t access because of the immunity agreements tied to other devices.

There’s no reason to believe FBI found those potentially duplicative emails because they were prohibited from accessing the ones turned over voluntarily as part of the email server probe (in any case, they are presented as different investigative teams, although the description of this sprawling Clinton Foundation investigation may explain why earlier leaks said 147 people were part of the Clinton investigation); it’s just one of those coinkydinks that seem to plague the Clintons.

At that point, per Barrett, “Senior FBI officials decided to let the Weiner investigators proceed with a closer examination of the metadata on the computer, and report back to them.” Early last week (so two or three weeks later), some asked how that weeks-long review of the Huma emails (allegedly just the metadata) was going.

“At that point, officials realized that no one had acted to obtain a warrant, these people said.”

In other words, for several weeks, FBI has been nosing around those emails without court authorization to do so in conjunction with the email server investigation (which may or may not have been formally closed). If they really stuck to metadata, that’s no big deal under Third Party rules. If they did peek — even at subject lines — then that may be a bigger problem.

Only then did the Weiner investigators compare notes with the Hillary investigators and decide the emails were relevant. Barrett doesn’t answer the obvious question: how did the Weiner investigators determine these emails might be relevant and did they really just review only metadata? Given all the stories to FBI friendly sources claiming Comey — and implying no one — has seen the content of the email, I suspect the answer is Weiner investigators went beyond metadata.

The background Barrett provides gives more significance to FBI’s decision to (perhaps belatedly) obtain a warrant to get Huma’s email and to Comey’s highly inappropriate magnification of it. Not only have they reopened (or renewed — reports on this are still all over the map on this point) the email investigation, but they’ve also created a virgin birth for emails that the Clinton foundation investigators tried — and were willing to venue shop — but failed to get.

FBI leaking has neutralized DOJ’s control over the Bureau

This story shows that FBI has tried a number of methods to defy PIN advice to drop the investigation into the Clinton Foundation.

I don’t know whether the investigation into the Clinton Foundation has merit or not (though given Barrett’s explanation, it does seem that some in FBI were looking for a crime rather than looking to solve one).

But I do know that if FBI agents operate outside of bounds on their power, they constitute a grave threat to the rule of law.

And Barrett’s article suggests at least three ways they appear to have done just that:

  • Fiddling with investigative guidelines of the DIOG (by using subpoenas without the appropriate level of investigation and authority)
  • Attempting to venue shop to get permission to access evidence they were told they couldn’t have
  • Leaking promiscuously, in clear violation of the rules, to bring political pressure including on Comey to conduct an investigation their supervisors had told them to either limit or halt

That promiscuous leaking, of course, includes this article, which relied on a great number of sources, almost none of whom should be speaking about this investigation. Don’t get me wrong — it’s great reporting on Barrett’s part. But it also serves the purpose of airing the claim that McCabe, PIN, and DOJ generally have thwarted an investigation into the Clinton Foundation that some at FBI believe has merit.

In addition, I’ve got questions about whether they read Huma’s email when they were supposed to just be looking at metadata.

Whatever else Comey’s totally inappropriate behavior reflects, his justification for doing so because it otherwise might leak suggests he doesn’t have control over his agency. Though given his coy response to Chaffetz in July, I do wonder whether he isn’t rooting for the Clinton foundation investigation to proceed; whatever else he is, Comey is a master of using the press to win political fights.

And remember, the FBI (under Comey) has undermined one of the few irreproachable entities that might fix this sorry state of affairs. It has refused, now backed by an OLC opinion, to give DOJ’s Inspector General the unfettered right to investigate things like grand jury proceedings (though given that no grand jury was used in these cases, it might be harder to keep them out here). So if Patrick Leahy were to ask Michael Horowitz to investigate whether FBI acted inappropriately in these related investigations — and he should! — FBI might be able to withhold information from the IG.

A bunch of people who have unquestioned faith in the goodness of DOJ — now including Eric Holder, the guy who couldn’t prosecute a single criminal bank — have been, rightly, scolding Comey for his actions. But they have largely remained utterly silent about the runaway agents at the FBI, both about their obvious leaking and now about their efforts to sustain this investigation in defiance of at least some of the chain of command, including career prosecutors who should be fairly insulated from any political influence that someone like Lynch might respond to.

As I said, I’m agnostic about the investigation of the Clinton Foundation. I’m not agnostic on the importance of keeping FBI firmly within the bureaucratic bounds that prevents them from acting as an abusive force.

They seem to have surpassed those bounds.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Story About Judicial Dysfunction Behind the Comey Whiplash

I’ve been home from Europe for less than a day and already I’m thinking of sporting a neck collar for the whiplash I’ve gotten watching the wildly varying Jim Comey opinions.

I’m speaking, of course, of the response to Jim Comey’s highly unusual announcement to sixteen Chairs and Ranking Members of congressional committees (at least some of which Comey did not testify to) that the investigative team — presumably on the Clinton case — briefed him Thursday that FBI discovered additional emails in an unrelated case — now known to be the investigation into Anthony Weiner allegedly sexting a 15 year old — and he approved their request to take the steps necessary to be able to review those emails.

Effectively, the Weiner investigators, in reviewing the content from devices seized in that investigation, found emails from Huma Abedin, told the Hillary investigative team, and they’re now obtaining a warrant to be able to review those emails.

So of course the Republicans that had been claiming Comey had corruptly fixed the investigation for Hillary immediately started proclaiming his valor and Democrats that had been pointing confidently to his exoneration of Hillary immediately resumed their criticism of his highly unusual statements on this investigation. Make up your minds, people!

For the record, I think his initial, completely inappropriate statements made this inevitable. He excuses Friday’s statement as formally correcting the record of his testimony. The claim is undermined by the fact that not all recipients of the letter had him testify. But I think once you start the process of blabbing about investigations, more blabbing likely follows. I don’t mean to excuse this disclosure, but the real sin comes in the first one, which was totally inappropriate by any measure. I’m also very unsympathetic with the claim —  persistently offered by people who otherwise cheer Comey — that he released his initial statement to help Loretta Lynch out of the jam created by her inappropriate meeting with Bill Clinton; I think those explanations stem from a willful blindness about what a self-righteous moralist Comey is.

Of course I’ve been critical of Comey since long before it was cool (and our late great commenter Mary Perdue was critical years before that).

But I’d like to take a step back and talk about what this says about our judicial system.

Jim Comey doesn’t play by the rules

Jamie Gorelick (who worked with Comey when she was in DOJ) and Larry Thompson (who worked with Comey when Comey was US Attorney and he was Deputy Attorney General, until Comey replaced him) wrote a scathing piece attacking Comey for violating the long-standing prohibition on doing anything in an investigation pertaining to a political candidate in the 60 days leading up to an election. The op-ed insinuates that Comey is a “self-aggrandizing crusader[] on [a] high horse” before it goes on to slam him for making himself the judge on both the case and Hillary’s actions.

James B. Comey, put himself enthusiastically forward as the arbiter of not only whether to prosecute a criminal case — which is not the job of the FBI — but also best practices in the handling of email and other matters. Now, he has chosen personally to restrike the balance between transparency and fairness, departing from the department’s traditions. As former deputy attorney general George Terwilliger aptly put it, “There’s a difference between being independent and flying solo.”

But the real meat is that there’s a rule against statements like the one Comey made, and Comey broke it.

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

If Comey is willing to break this rule in such a high profile case, then what other rules is he breaking? What other judgements has Comey made himself arbiter of? Particularly given Comey’s persistent discussion of FBI’s work in terms of “good guys” and “bad guys” — as opposed to criminal behavior — that seems a really pertinent question.

As with James Clapper, Loretta Lynch can’t control Comey

Gorelick (who has been suggested among potential Clinton appointees) and Thompson go easier on Lynch, however, noting that she didn’t order him to stand down here, but ultimately blaming Comey for needing to be ordered.

Attorney General Loretta E. Lynch — nominally Comey’s boss — has apparently been satisfied with advising Comey but not ordering him to abide by the rules. She, no doubt, did not want to override the FBI director in such a highly political matter, but she should not have needed to. He should have abided by the policy on his own.

But since John Cornyn confronted Lynch in March about who would make decisions in this case — “Everyone in the Department of Justice works for me, including the FBI, sir,” Lynch forcefully reminded Cornyn — it has been clear that there’s a lot more tension than the org chart would suggest there should be.

The NYT provides more details on how much tension there is.

The day before the F.B.I. director, James B. Comey, sent a letter to Congress announcing that new evidence had been discovered that might be related to the completed Hillary Clinton email investigation, the Justice Department strongly discouraged the step and told him that he would be breaking with longstanding policy, three law enforcement officials said on Saturday.

Senior Justice Department officials did not move to stop him from sending the letter, officials said, but they did everything short of it, pointing to policies against talking about current criminal investigations or being seen as meddling in elections.

And it’s not just Lynch that has problems managing FBI.

In a response to a question from me in 2014 (after 56:00), Bob Litt explained that FBI’s dual role creates “a whole lot of complications” and went on to admit that the office of Director of National Intelligence — which is supposed to oversee the intelligence community — doesn’t oversee the FBI as directly.

Because FBI is part of the Department of Justice, I don’t have the same visibility into oversight there than I do with respect to the NSA, but the problems are much more complicated because of the dual functions of the FBI.

Litt said something similar to me in May when we discussed why FBI can continue to present bogus numbers in its legally mandated NSL reporting.

Now these are separate issues (though the Clinton investigation is, after all, a national security investigation into whether she or her aides mishandled classified information). But if neither the DNI nor the AG really has control over the FBI Director, it creates a real void of accountability that has repercussions for a whole lot of issues and, more importantly, people who don’t have the visibility or power of Hillary Clinton.

The FBI breaks the rules all the time by leaking like a sieve

Underlying this entire controversy is another rule that DOJ and FBI claim to abide by but don’t, at all: FBI is not supposed to reveal details of ongoing investigations.

Indeed, according to the NYT, Comey pointed to the certainty that this would leak to justify his Friday letter.

But although Mr. Comey told Congress this summer that the Clinton investigation was complete, he believed that if word of the new emails leaked out — and it was sure to leak out, he concluded — he risked being accused of misleading Congress and the public ahead of an election, colleagues said.

Yet the US Attorney’s Manual, starting with this language on prejudicial information and continuing into several more clauses, makes it clear that these kinds of leaks are impermissible.

At no time shall any component or personnel of the Department of Justice furnish any statement or information that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

Comey, the boss of all the FBI Agents investigating this case, had another alternative, one he should have exercised months ago when it was clear those investigating this case were leaking promiscuously: demand that they shut up, conduct investigations of who was leaking, and discipline those who were doing so. Those leaks were already affecting election year concerns, but there has been little commentary about how they, too, break DOJ rules.

But instead of trying to get FBI Agents to follow DOJ guidelines, Comey instead decided to violate them himself.

Again, that’s absolutely toxic when discussing an investigation that might affect the presidential election, but FBI’s habitual blabbing is equally toxic for a bunch of less powerful people whose investigative details get leaked by the FBI all the time.

[Update: Jeffrey Toobin addresses the role of leaks more generally here, though he seems to forget that the Hillary investigation is technically a national security investigation. I think it’s important to remember that, especially given Hillary’s campaign focus on why FBI isn’t leaking about the investigation into Trump’s ties to Russia, which would also be a national security investigation.]

Warrantless back door searches do tremendous amounts of damage

Finally, think about the circumstances of the emails behind this latest disclosure.

Reports are currently unclear how much the FBI knows about these emails. The NYT describes that the FBI seized multiple devices in conjunction with the Weiner investigation, including the laptop on which they found these emails.

On Oct. 3, F.B.I. agents seized several electronic devices from Mr. Weiner: a laptop, his iPhone and an iPad that was in large measure used by his 4-year-old son to watch cartoons, a person with knowledge of the matter said. Days later, F.B.I. agents also confiscated a Wi-Fi router that could identify any other devices that had been used, the person said.

While searching the laptop, the agents discovered the existence of tens of thousands of emails, some of them sent between Ms. Abedin and other Clinton aides, according to senior law enforcement officials. It is not clear if Ms. Abedin downloaded the emails to the laptop or if they were automatically backed up there. The emails dated back years, the officials said. Ms. Abedin has testified that she did not routinely delete her emails.

Presumably, the warrant to seize those devices permits the FBI agents to go find any evidence of Weiner sexting women (or perhaps just the young woman in question).

And admittedly, the details NYT’s sources describe involve just metadata: addressing information and dates.

But then, Comey told Congress these emails were “pertinent” to the Clinton investigation, and other details in reports, such as they might be duplicates of emails already reviewed by the FBI, suggest the Weiner investigators may have seen enough to believe they might pertain to the inquiry into whether Clinton and her aides (including Huma) mishandled classified information. Moreover, the FBI at least thinks they will be able to prove there is probable cause to believe these emails may show the mishandling of classified information.

Similarly, there are conflicting stories about whether the Hillary investigation was ever closed, which may arise from the fact that if it were (as Comey had suggested in his first blabby statements), seeking these emails would require further approval to continue the investigation.

The point, though, is that FBI would have had no idea these emails existed were it not for FBI investigators who were aware of the other investigation alerting their colleagues to these emails. This has been an issue of intense litigation in recent years, and I’d love for Huma, after the election, to submit a serious legal challenge if any warrant is issued.

But then, in this case, Huma is being provided far more protection than people swept up in FISA searches, where any content with a target can be searched years into the future without any probable cause or even evidence of wrong-doing. Here, Huma’s emails won’t be accessible for investigative purpose without a warrant (in part because of recent prior litigation in the 2nd Circuit), whereas in the case of emails acquired via FISA, FBI can access the information — pulling it up not just by metadata but by content — with no warrant at all.

[Update: Orin Kerr shares my concerns on this point — with the added benefit that he discusses all the recent legal precedents that may prohibit accessing these emails.]

This is a good example of the cost of such investigations. Because the FBI can and does sweep so widely in searches of electronic communications, evidence from one set of data collection can be used to taint others unrelated to the crime under investigation.

All the people writing scathing emails about Comey’s behavior in this particular matter would like you to believe that this issue doesn’t reflect on larger issues at DOJ. They would like you to believe that DOJ was all pure and good and FBI was well-controlled except for this particular investigation. But that’s simply not the case, and some of these issues go well beyond Comey.

Update: Minor changes were made to this post after it was initially posted.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

On The Passing of David Margolis, the DOJ Institution

david-margolis-250David Margolis was a living legend and giant at the Department of Justice. Now he has passed. Just posted is the following from DOJ:

Statements From Attorney General Loretta E. Lynch and Deputy Attorney General Sally Q. Yates on the Passing of Associate Deputy Attorney General David Margolis

Attorney General Loretta E. Lynch and Deputy Attorney General Sally Q. Yates released the following statements today on the passing of Associate Deputy Attorney General David Margolis, senior-most career employee at the Department of Justice.

Statement by Attorney General Lynch:

“David Margolis was a dedicated law enforcement officer and a consummate public servant who served the Department of Justice – and the American people – with unmatched devotion, remarkable skill and evident pride for more than half a century. From his earliest days as a hard-charging young prosecutor with a singular sense of style to his long tenure as one of the department’s senior leaders, David took on our nation’s most pressing issues and navigated our government’s most complex challenges. To generations of Justice Department employees, he was a respected colleague, a trusted advisor and most importantly, a beloved friend. We are heartbroken at his loss and he will be deeply missed. My thoughts and prayers are with David’s family, his friends and all who loved him.”

Statement by Deputy Attorney General Yates:

“David Margolis was the personification of all that is good about the Department of Justice. His dedication to our mission knew no bounds, and his judgment, wisdom and tenacity made him the “go-to” guy for department leaders for over 50 years. David was a good and loyal friend to all of us, and his loss leaves a gaping hole in the department and in our hearts.”

I am sure Mr. Margolis was a kind, personable and decent chap to those who knew and worked with him. I can be sure because there have been many voices I know who have related exactly that. He was undoubtedly a good family man and pillar of his community. None of that is hard to believe, indeed, it is easy to believe.

Sally Yates is spot on when she says Margolis’ “dedication to our [DOJ] mission knew no bounds”. That is not necessarily in a good way though, and Margolis was far from the the “personification of all that is good about the Department of Justice”. Mr. Margolis may have been such internally at the Department, but it is far less than clear he is really all that to the public and citizenry the Department is designed to serve. Indeed there is a pretty long record Mr. Margolis consistently not only frustrated accountability for DOJ malfeasance, but was the hand which guided and ingrained the craven protection of any and all DOJ attorneys for accountability, no matter how deeply they defiled the arc of justice.

This is no small matter. When DOJ Inspectors General go to Congress to decry the fact that there is an internal protection racket within the Department of Justice shielding even the worst wrongs by Department attorneys, as IG Glen Fine did:

Second, the current limitation on the DOJ OIG’s jurisdiction prevents the OIG – which by statute operates independent of the agency – from investigating an entire class of misconduct allegations involving DOJ attorneys’ actions, and instead assigns this responsibility to OPR, which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government. It also permits an Attorney General to assign an investigation raising questions about his conduct or the conduct of his senior staff to OPR, an entity reporting to and supervised by the Attorney General and Deputy Attorney General and lacking the insulation and independence guaranteed by the IG Act.

This concern is not merely hypothetical. Recently, the Attorney General directed OPR to investigate aspects of the removal of U.S. Attorneys. In essence, the Attorney General assigned OPR – an entity that does not have statutory independence and reports directly to the Deputy Attorney General and Attorney General – to investigate a matter involving the Attorney General’s and the Deputy Attorney General’s conduct. The IG Act created OIGs to avoid this type of conflict of interest. It created statutorily independent offices to investigate allegations of misconduct throughout the entire agency, including actions of agency leaders. All other federal agencies operate this way, and the DOJ should also.

Third, while the OIG operates transparently, OPR does not. The OIG publicly releases its reports on matters of public interest, with the facts and analysis underlying our conclusions available for review. In contrast, OPR operates in secret. Its reports, even when they examine matters of significant public interest, are not publicly released.

Said fact and heinous lack of accountability for Justice Department attorneys, not just in Washington, but across the country and territories, is largely because of, and jealously ingrained by, David Margolis. What Glen Fine was testifying about is the fact there is no independent regulation and accountability for DOJ attorneys.

They are generally excluded from the Department IG purview of authority, and it is rare, if ever, courts or state bar authorities will formally review DOJ attorneys without going throughout the filter of the OPR – the Office of Professional Responsibility – within the Department. A protection racket designed and jealously guarded for decades by David Margolis. Even when cases were found egregious enough to be referred out of OPR, they went to…..David Margolis.

In fact, attuned people literally called the OPR the “Roach Motel”:

“I used to call it the Roach Motel of the Justice Department,” says Fordham University law professor Bruce A. Green, a former federal prosecutor and ethics committee co-chair for the ABA Criminal Justice Section. “Cases check in, but they don’t check out.”

If you want a solid history of OPR, and the malfeasance it and Margolis have cravenly protected going back well over a decade, please go read “The Roach Motel”, a 2009 article in no less an authority than the American Bar Association Journal. It is a stunning and damning report. It is hard to describe just how much this one man, David Margolis, has frustrated public transparency and accountability into the Justice Department that supposedly works for the citizens of the United States. It is astounding really.

As I wrote back in 2010:

But just as there is an inherent conflict in the DOJ’s use of the fiction of the OPR to police itself, so too does David Margolis have issues giving the distinct appearance of impropriety. Who and what is David Margolis? A definitive look at the man was made by the National Law Journal (subscription required):

“Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.”
….
Margolis cut his teeth as an organized-crime prosecutor, and he often uses mob analogies in talking about his career at the Justice Department. When asked by an incoming attorney general what his job duties entailed, Margolis responded: “I’m the department’s cleaner. I clean up messes.”

The analogy calls to mind the character of Winston Wolfe, played by Harvey Keitel in the 1994 film “Pulp Fiction.” In the movie, Wolfe is called in by mob honchos to dispose of the evidence after two foot soldiers accidentally kill a murder witness in the back of their car.

“The Cleaner” Mr. Margolis considered himself, while fastidiously sanitizing gross malfeasance and misconduct by DOJ attorneys, all the while denying the American public the disinfectant of sunshine and transparency they deserve from their public servants (good discussion by Marcy, also from 2010).

Perhaps no single incident epitomized Margolis’ determination to be the “cleaner” for the Department of Justice and keep their dirt from public scrutiny and accountability than the case of John Yoo (and to similar extent, now lifetime federal judge Jay Bybee). Yoo as you may recall was the enlightened American who formally opinedcrushing innocent children’s testicles would be acceptable conduct for the United States to engage in. Yoo and Bybee, by their gross adoption of torture, literally personally soiled the reputation of the United States as detrimentally as any men in history.

So, what did David Margolis do in response to the heinous legal banality of evil John Yoo and Jay Bybee engendered in our name? Margolis cleaned it up. He sanitized it. Rationalized it. Ratified it. Hid it. To such an extent architects of such heinous war crimes are now lifetime appointed federal judges and tenured professors. Because that is what “The Cleaner” David Margolis did. “Protecting” the DOJ from accountability, at all costs, even from crimes against humanity, was simply the life goal of David Margolis, and he was depressingly successful at it.

So, less than 24 hours in to the passing of The Cleaner, is it too early to engage in this criticism? Clearly other career officials at the DOJ think discussing the pernicious effects of Margolis on accountability and transparency are out of bounds.

I wonder what the late Senator Ted Stevens would say in response to the “too soon” mandate of Steven Bressler? Because thanks to the efforts of The Cleaner Margolis, Stevens died without the public knowing what an unethical and craven, if not downright criminal, witch hunt attorneys in the Department of Justice ran on him. Even after Stevens was long gone from office and dead, there was Margolis “cleaning” it all up to protect his precious Justice Department when even the internal OPR found gross misconduct:

Following the Justice Department’s agreement in 2009 to vacate the convictions it obtained of former Alaska Senator Ted Stevens, it conducted an internal probe into the conduct of its senior lawyers and—surprise!—exonerated them and itself. It then refused to make the report public. However, at the time the conviction was voided, the presiding judge in Stevens’s case, Emmet Sullivan, appropriately wary of the department’s ethics office, appointed a special prosecutor, Henry F. Schuelke, III, an eminent Washington attorney and former prosecutor, to probe the DOJ’s conduct. Late last week, Schuelke’s 525-page report was released, over the loud objections of DOJ lawyers. The report revealed gross misconduct by the prosecutorial team, stretching over the entire course of the case and reaching into the upper echelons of the department. It concluded there had been “systematic concealment of significant exculpatory evidence which would have independently corroborated [Stevens’s] defense.”

Having laid out the above bill of particulars as to David Margolis, I’d like to return to where we started. As I said in the intro, “I am sure Mr. Margolis was a kind, personable and decent chap”. That was not cheap rhetoric, from all I can discern, both from reading accounts and talking to people who knew Mr. Margolis well, he was exactly that. Ellen Nakashima did a fantastic review of Margolis in the Washington Post last year. And, let’s be honest, the man she described is a guy you would love to know, work with and be around. I know I would. David Margolis was a man dedicated. And an incredibly significant man, even if few in the public understood it.

Say what you will, but Mr. Margolis was truly a giant. While I have no issue delineating what appear to be quite pernicious effects of David Margolis’ gargantuan footprint on the lack of accountability of the Department of Justice to the American citizenry, I have some real abiding respect for what, and who, he was as a man. Seriously, read the Nakashima article and tell me David Margolis is not a man you would love to kill some serious beers with by a peaceful lake somewhere.

But David Margolis, both the good and the bad, is gone now. Where will his legacy live? One of our very longtime friends here at Emptywheel, Avattoir, eruditely said just yesterday:

Focus instead on the institution, not the players. The players are just data points, hopefully leading to greater understanding of the institutional realities.

Those words were literally the first I thought of yesterday when I received the phone call David Margolis had passed. They are true and important words that I, and all, need to take heed of more frequently.

David Margolis, it turns out from all appearances and reports, was a complex man. Clearly great, and clearly detrimental, edges to him. So what will his legacy be at the Department of Justice? Will the closing of the Margolis era, and it was truly that, finally bring the institution of the Department into a modern and appropriate light of transparency, accountability and sunshine?

Or will the dirty deeds of David Margolis’ historical ratification and concealment of pervasive and gross misconduct by Department of Justice attorneys become permanently enshrined as a living legacy to the man?

We shall see.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

Ben Wittes’ Delusion: FBI IS the Intelligence Community

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Ben Wittes has started a series of posts on how to tyrant-proof the presidency. His first post argues that Jennifer Granick’s worries about surveillance and Conor Friedersdorf’s worries about drone-killing are misplaced. The real risk, Wittes argues, comes from DOJ.

What would a president need to do to shift the Justice Department to the crimes or civil infractions committed—or suspected—by Trump critics and opponents? He would need to appoint and get confirmed by the Senate the right attorney general. That’s very doable. He’d want to keep his communications with that person limited. An unspoken understanding that the Justice Department’s new priorities include crimes by the right sort of people would be better than the sort of chortling communications Richard Nixon and John Mitchell used to have. Want to go after Jeff Bezos to retaliate for the Washington Post‘s coverage of the campaign? Develop a sudden trust-busting interest in retailers that are “too big”; half the country will be with you. Just make sure you state your non-neutral principles in neutral terms.

[snip]

There are other reasons to expect a politically abusive president to focus on the Justice Department and other domestic, civilian regulatory and law enforcement agencies: one is that the points of contact between these agencies and the American people are many, whereas the population’s points of contact with the intelligence community are few. The delusions of many civil libertarians aside, the intelligence community really does focus its activities overseas. To reorient it towards domestic oppression would take a lot of doing. It also has no legal authority to do things like arresting people, threatening them with long prison terms, fining them, or issuing subpoenas to everyone they have ever met. By contrast, the Justice Department has outposts all over the country. Its focus is primarily domestic. It issues authortitative legal guidance within the executive branch to every other agency that operates within the country. And it has the ability to order people to produce material and testify about whatever it wants to investigate.

What’s more, when it receives such material, it is subject to dramatically laxer rules as to its use than is the intelligence community. Unlike, say, when NSA collects material under Section 702, when the Justice Department gets material under a grand jury subpoena, there aren’t a lot of use restrictions (other than Rule 6(e)’s prohibition against leaking it); and there is no mandatory period after which DOJ has to destroy it. It has countless opportunities, in other words, to engage in oppressive activities, and it is largely not law but norms and human and institutional decency that constrain it.

I don’t necessarily disagree with the premise. Indeed, I’ve argued it for years — noting, for example, that a targeted killing in the US would look a lot more like the killing of Imam Luqman Abdullah in 2009 (or the killing of Fred Hampton in 1969) than drone killing of Anwar al-Awlaki in 2011 (given that Abdullah’s selling of stolen items got treated as terrorism in part because of his positive statements about Awlaki, it is not inconceivable FBI started infiltrating his mosque because of SIGINT).

My gripe (I have to have gripes because it is Wittes) is on two points. First, Wittes far overestimates how well the protections against abuse currently work. He seems to believe the Levi Guidelines remain in place unchanged, that the 2008 and 2011 and serial secret changes to the Domestic Investigations and Operations Guide since then have not watered down limits on investigations for protected activities. He suggests it was a good thing to use prosecutorial discretion to chase drugs in the 1990s and terrorism in the 2000s, and doesn’t consider why the rich donors who’ve done as much damage as terrorists to the country — the banksters, even those that materially supported terrorists — have gotten away with wrist-slap fines. It was not a good thing to remain obsessed with terrorists while the banksters destroyed our economy through serial global fraud (a point made even by former FBI agents).

We already have a dramatically unequal treatment of homegrown extremists in this country based on religion (compare the treatment of the Malheur occupiers with that of any young Muslim guy tweeting about ISIS who then gets caught in an FBI sting). We already treat Muslims (and African Americans and — because we’re still chasing drugs more than we should — Latinos) differently in this country, even though the guy running for President on doing so as a campaign plank isn’t even in office yet!

The other critical point Wittes missed in his claim that “delusional” civil libertarians don’t know that “the intelligence community really does focus its activities overseas” is that DOJ, in the form of FBI and DEA, is the Intelligence Community, and their intelligence focus is not exclusively overseas (nor is the intelligence focus of other IC members DHS — which has already surveilled Black Lives Matter activists — and Treasury). The first dragnet was not NSA’s, but the DEA one set up under Bill Clinton. One big point of Stellar Wind (which is what Wittes mocked Granick for focusing on) was to feed FBI tips of people the Bureau should investigate, based solely on their associations. And while Wittes is correct that “when the Justice Department gets material under a grand jury subpoena, there aren’t a lot of use restrictions (other than Rule 6(e)’s prohibition against leaking it); and there is no mandatory period after which DOJ has to destroy it,” it is equally true of when FBI gets raw 702 data collected without grand jury scrutiny.

FBI can conduct an assessment to ID the racial profile of a community with raw 702 data, it can use it to find and coerce potential informants, and it can use it for non-national security crimes. That’s the surveillance Wittes says civil libertarians are delusional to be concerned about, being used with inadequate oversight in the agency Wittes himself says we need to worry about.

Four different times in his post, Wittes contrasts DOJ with the intelligence community, without ever considering what it means that DOJ’s components FBI and DEA are actually part of it, that part of it that takes data obtained from NSA’s surveillance and uses it (laundered through parallel construction) against Americans. You can’t contrast the FBI’s potential impact with that of the IC as Wittes does, because the FBI is (one of) the means by which IC activities impact Americans directly.

Yes, DOJ is where President Trump (and President Hillary) might abuse their power most directly. But in arguing that, Wittes is arguing that the President can use the intelligence community abusively.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.