Jim Comey, Poker Face, and the Scope of the Clinton Investigation(s)

Screen Shot 2016-07-07 at 10.11.04 PMI write this post reluctantly, because I really wish the Hillary investigations would be good and over. But I don’t think they are.

After having watched five and a half hours of the Clinton investigation hearing today, I’ve got new clarity about what the FBI has been doing for the last year. That leads me to believe that this week’s announcement that DOJ will not charge Clinton is simply a pause in the Clinton investigation(s). I believe an investigation will resume shortly (if one is not already ongoing), though that resumed investigation will also end with no charges — for different reasons than this week’s declination.

First, understand how this all came about. After the existence of Hillary’s server became known, State’s IG Steve Linick started an investigation into it, largely focused on whether Hillary (and other Secretaries of State) complied with Federal Records Act obligations. In parallel, as intelligence agencies came to complain about State’s redactions of emails released in FOIA response, the Intelligence Committee Inspector General Charles McCullough intervened in the redaction process and referred Clinton to the FBI regarding whether any classified information had been improperly handed. As reported, State will now resume investigating the classification habits of Hillary and her aides, which will likely lead to several of them losing clearance.

The FBI investigation that ended yesterday only pertained to that referral about classified information. Indeed, over the course of the hearing, Comey revealed that it was narrowly focused, examining the behavior of only Clinton and four or five of her close aides. And it only pertained to that question about mishandling classified information. That’s what the declination was based on: Comey and others’ determination that when Hillary set up her home-brew server, she did not intend to mishandle classified information.

This caused some consternation, early on in the hearing, because Republicans familiar with Clinton aides’ sworn testimony to the committee investigating the email server and Benghazi were confused how Comey could say that Hillary was not cleared to have her own server, but aides had testified to the contrary. But Comey explained it very clearly, and repeatedly. While FBI considered the statements of Clinton aides, they did not review their sworn statements to Congress for truth.

That’s important because the committee was largely asking a different question: whether Clinton used her server to avoid oversight, Federal Record Act requirements, the Benghazi investigation, and FOIA. That’s a question the FBI did not review at all. This all became crystal clear in the last minutes of the Comey testimony.

Chaffetz: Was there any evidence of Hillary Clinton attempting to avoid compliance with the Freedom of Information Act?

Comey: That was not the subject of our criminal investigation so I can’t answer that sitting here.

Chaffetz: It’s a violation of law, is it not?

Comey: Yes, my understanding is there are civil statutes that apply to that. I don’t know of a crimin–

Chaffetz: Let’s put some boundaries on this a little bit — what you didn’t look at. You didn’t look at whether or not there was an intention or reality of non-compliance with the Freedom of Information Act.

Comey: Correct.

Having started down this path, Chaffetz basically confirms what Comey had said a number of times throughout the hearing, that FBI didn’t scrutinize the veracity of testimony to the committee because the committee did not make a perjury referral.

Chaffetz: You did not look at testimony that Hillary Clinton gave in the United States Congress, both the House and the Senate?

Comey: To see whether it was perjurious in some respect?

Chaffetz: Yes.

Comey: No we did not.

[snip]

Comey: Again, I can confirm this but I don’t think we got a referral from Congressional committees, a perjury referral.

Chaffetz: No. It was the Inspector General that initiated this.

Now, let me jump to the punch and predict that OGR will refer at least Hillary’s aides, and maybe Hillary herself, to FBI for lying to Congress. They might even have merit in doing so, as Comey has already said her public claims about being permitted to have her own email (which she repeated to the committee) were not true. Plus, there’s further evidence that Hillary used her own server precisely to maintain control over them (that is, to avoid FOIA).

That said, there are two reasons why Hillary and her aides won’t be prosecuted for lying to Congress: James Clapper and Scott Bloch.

Clapper you all know about. The Director of National Intelligence — unlike Clinton — was not under oath when he spectacularly lied to Ron Wyden. Nor was he referred to DOJ for prosecution. But that recent lie will make FBI hesitate.

DOJ will hesitate even more given the history of Scott Bloch. bmaz has written a slew of posts about this but the short version is that the former Office of Special Counsel lied to this very committee and wiped his hard drive to obscure that fact. He ultimately pled guilty, but when the magistrate handling the case pointed out that the plea carried a minimum one month sentence, Bloch and DOJ went nuts and tried to withdraw his plea. bmaz and a bunch of whistleblowers who had been poorly treated by Bloch went nuts in turn. All to no avail. After DOJ claimed there were secret facts that no one understood, the court agreed to sentence Bloch to just one day in jail.

In other words, to keep one of their own out of jail, DOJ made expansive claims about how unimportant lying to Congress is. Even assuming DOJ would ignore their own recent historical claims about the frivolity of lying to Congress, Hillary’s lawyers could use that precedent to argue that lying to Congress has, effectively, been decriminalized (unilaterally by the Executive Branch!).

So FBI will investigate it. Comey might even refer, this time, for prosecution, because the evidence is actually far stronger that Hillary used her own server to avoid oversight (and that she was less than forthcoming about that to Congress). But that, too, won’t be prosecuted because you basically can’t prosecute lying to Congress after the Bloch case.

Which brings me to the funniest part of this exchange with Chaffetz (which, coming as it did in the last minutes of the hearing, has escaped most notice).

Chaffetz: Did you look at the Clinton Foundation?

Comey: I’m not going to comment on the existence or non-existence of any other investigation.

Chaffetz: Was the Clinton Foundation tied into this investigation?

Comey: I’m not going to answer that.

Understand: Comey had already commented on the existence or non-existence of other investigations, commenting at length on the non-investigation of questions pertaining to FOIA and FRA, even describing how many people (four to five) were subjects of this investigation. Comment on non-existence of investigation, comment on non-existence of investigation, comment on non-existence of investigation.

And for what it’s worth, the Clinton Foundation probably couldn’t have been part of the scope of this, given that this was only focused on four to five people (note, a Clinton Foundation investigation would better explain why FBI gave Brian Pagliano immunity, another topic on which Comey would not comment).

But when asked about the Clinton Foundation, he claimed he couldn’t say. All of a sudden, refusal to comment on existence or non-existence of investigation.

Now, I’m just going to say I don’t think anything will come of that, because I doubt FBI would clear Hillary on one issue but not the related one (plus, given SCOTUS’ ruling in the Bob McDonnell case, it probably became impossible to prosecute any Clinton Foundation violations). But Comey’s answer does make it clear that FBI considers questions about improperly handling classified information, avoiding FOIA and other oversight, lying about avoiding FOIA, and deals made with the Clinton Foundation to be different things.

I think that doesn’t change that Hillary won’t be indicted. But I do think she will continue to be investigated in conjunction with questions about what she did and said to avoid FOIA and other oversight.

Update: This post has been tweaked.

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.

36 replies
  1. Denis says:

    Every since at least March many people have been alluding to two
    tracks of the FBI investigation. Andrew Napolitano, for instance, has
    said repeatedly that two separate departments of the FBI have been
    investigating the espionage (Em/servers) felonies separately from the
    public corruption in office felonies (Clinton Foundation), which could
    easily comprise RICO charges that would make an indictment a family
    affair — Billton, Hillton, maybe even Chelton. The babies will probably
    be OK.
    .
    Just today the Daily Mail made observations similar to those in this post,
    stating flat out that “The director of the FBI refused on Thursday to rule
    out the possibility that his agency is still investigating former secretary
    of state Hillary Clinton on a separate track from the one that the
    Department of Justice closed Wednesday afternoon.”
    .
    Napolitano has related numerous times a story about a Canadian
    who smoozed Hillton while she was SoS, obtained approval for foreign
    investment in a US uranium mine, sold the approval to “Putin”
    (meaning Russian interests, I believe) and then donated $145M of
    the proceeds to the Clinton Foundation. The stories of Billton’s
    speaking fees being connected to DoS favors to 2 dozen foreign actors
    are legion.
    .
    As I pointed out previously, Comey and Lynch were both very precise
    in saying their decision not to prosecute was about the Em/servers
    debacle only.
    .
    I hope they bust her for 2 reasons. First, the Democrats have to get
    her out of this election and get Biden in. They have to. As Trump said
    today, Hillton is the one he wants to run against, and for good reason.
    The Constitution has suffered enough under Obama, if the Republicans
    start appointing USSCt justices . . . forget it. Besides Hillton and her
    coven have more than demonstrated beyond any reasonable doubt
    that they are either too stupid, or too careless, or both to run the country.
    .
    Second, if the second FBI track just disappears w/out comment or if
    they explicitly say there will be no prosecution without saying why,
    which is SOP for the FBI, Comey and Lynch will have double the
    skunk-odor on them they have now. We all dream about public officials
    who will do the politically impossible but right thing, like Archibald Cox did.
    Hell, I still romp around the house on a stick-horse pretending I’m
    the Lone Ranger putting the Cavendish gang away. Maybe turning Hillton
    loose is the right thing, but it’s impossible for most of us to see that.
    It’s time to tie her to her horse and give it a good smack on the butt,
    like those guys did to Tonto that one time. He ended up in SF in a
    gay pride parade dressed like an Indian.
    .
    BTW, I have put up an inventory of how screwed up Napolitano’s
    predictions have been these last 5 months. I hate it when articulate
    people turn out to be idiots. I’d rather they stutter and have a high IQ.
    .
    http://logophere.com/Topics2016/16-07/160707–JudgeNap–BLA.htm

  2. SB St. Clair says:

    So what makes it not likely that hacked emails didn’t expose Ambassador Chris’s location

  3. martin says:

    quote
    “Chaffetz: Did you look at the Clinton Foundation?

    Comey: I’m not going to comment on the existence or non-existence of any other investigation.

    Chaffetz: Was the Clinton Foundation tied into this investigation?

    Comey: I’m not going to answer that.”unquote

    2 USC 192:

    EVERY PERSON who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, OR WHO, HAVING APPEARED, REFUSES TO ANSWER ANY QUESTION PERTINENT TO THE QUESTION UNDER INQUIRY, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. (emphasis added).

    Thank you bmaz. Now, when can I expect AG Lynch to indict Comey, hmmm? Oh…wait..I know. Scott Bloch must be rolling on the floor in gut splitting laughter.

  4. Bay State Librul says:

    They hate the Clintons. When she becomes President, they will try to impeach her.
    Don’t you get it?
    Fuck those Republican idiots.

    • emptywheel says:

      Those claims are true. They will absolutely try to impeach her (if there are enough GOP MoCs left to credibly try to do so).

      But Hillary also, at a minimum, did something unforgivably stupid. GOP hate for her doesn’t absolve her for her own actions.

      • Bay State Librul says:

        I’m not absolving Hillary of her sins.

        She made mistakes just like me and you do.

        What I am saying is this does not disqualify her to be President.

        Three fucking e-mails out of how many?

        I watched the entire five hours too. Conclusion: witch hunt.

        Can we deal with something that is not administratively following the law? No intent
        here.

        • emptywheel says:

          Stop with the 3 emails crap. That’s Hillary propaganda.

          1) There was far more classified information.

          2) But as I laid out here, that’s not why she did that. There’s FAR MORE evidence she did this to avoid legally mandated oversight.

          3) Whether she and her aides were straight up about that will probably get investigated, now, by FBI. Fair enough: Scooter Libby’s lies to FBI were investigated too.

          It is a fair question whether doing something so unforgivably stupid DQs her to be POTUS. Against Trump? Probably not. Against someone else? Who knows. But that is something for all voters to decide. And it is, frankly, a fair question. Not one Hillary propagandists can just make go away by suggesting everyone shut up.

          • Bay State Librul says:

            Look, I’m an auditor, if I want to find something, I find it. Human beings make mistakes. The question is what is important. If not three, then how many, and what was the percentage of the total and what was her intent and did she lie to the FBI or did she
            obstruct justice?

            Correct me if I am wrong, but do you know what is in Hillary’s mind? Now you want an investigation into the Clinton Foundation. Do you suspect something devious and nefarious? What will be the scope? I will tell you that they will find something but what are they looking for?

            —–
            I’m with Charlie Pierce — “Chaffetz ended the hearings by quizzing Comey about what he knew about The Clinton Foundation, so you know that’s coming down the Idiot Trail fairly soon.
            —-
            When is enough, enough?

            • emptywheel says:

              BSL

              I have consistently said the classification claims were overblown. So please stop harping on them like that’s what I care about.

              Also, there’s good reason to believe there has been an investigation into CGI. What I did here was observe an exchange about it that, frankly, Chaffetz seemed shocked by, not manipulating. It’s not in his wherewithall to make a referral for that in any case, so it’s out of his hands (and, again, what I’ve heard as the suspect conduct falls squarely in the realm of setting up meetings that SCOTUS just deemed not to constitute bribery).

              But what you’ve ignored in two comments now is 1) this is and always has been about abuse of power and 2) according to the FBI Director some of the claims Hillary has made that go to questions of abuse of power but NOT classification were not true. Again, I don’t think Hillary’s abuse of power (which got exhibited at State in other ways, btw, so it’s not just this email thing) is reason to vote Trump over Hillary. BUt it is something I like to avoid in Presidents, because American history shows that Presidents who like to abuse power tend to do so.

              Again, you seem unperturbed by that. That’s fine. That’s your prerogative as a voter. But please don’t deign to suggest that others aren’t allowed to factor this into our decisions.

              • Bay State Librul says:

                Finally, we are getting somewhere.
                —-
                I’m not unperturbed by the “abuse of power” argument. It is a legitimate and important
                consideration.

                I view the nominations to the Supreme Court and the policy direction and leadership role
                that Hillary will make in guiding the nation to where I would like to go. (continuation of Obama Care, education, global warming, etc) to far outweigh whether she will or will not
                abuse her power.

                I never suggested that other voters don’t have the right to give “abuse of power” a higher
                weight.

                I try to be practical. Bernie ran a good fight but I never thought he could win. He made a valuable contribution and will I believe endorse Hillary
                —–
                Don’t you think there is merit to my innate reaction that the Republicans are on a “witch hunt” or am I smoking the weed?

            • emptywheel says:

              One more point. As this post tries to make clear, FBI has not considered questions about lying/obstruction EXCEPT AS THEY PERTAIN to classified info. The places where her public (usually, but possibly not always, not sworn) comments have conflicted pertain to the avoiding oversight issue. That’s the entire point of this post: that on that issue, where there is MORE evidence, no FBI investigation has been done.

        • Brightguy says:

          No intent??? Why would anyone set up a private server in their basement ,if not to hide something.She stated publically she used only one device…Comey stated she used multiple devices.She said none of her emails contained classified material..Comey stated 110 emails contained classified material.Why do libs accept this behavior??Check out the Clinton Foundations deals that gave Putin and the Russian oligarcs 20 % of our uranium reserves ,after huge donation to foundation and large speaking fees for BJC.It really smells,but you seem to be able to hold your nose and pull her lever…shameful!!!

    • Brightguy says:

      Trump,may be an unpolished politician,but to say he lies like Crooked Hillary is false.She’s been lying for years as the Clintons live by lies…”I never had sex with that woman”She has zero accomplishments as Secy of State or US senator so what qualifies her to be commander of chief?? Behghazi..”It was the result of a video”. Gimme a break!!DAMAGED GOODS.

  5. Betty says:

    It does seem as if the Clinton Foundation activities may be more of a problem. And timing wise, any late-in-the-campaign revelations could be disastrous for the Dems.

  6. bloopie2 says:

    This ‘primer on politics’ from one of my friends was in my inbox this morning. When I read it I couldn’t help but think of Clintons, Foundations, Trumps, etc.

    I asked my son, “Will you marry the girl I choose for you?”
    He said, “No.”
    I told him, “She was Bill and Melissa Gates’ daughter.”
    He said, “OK.”
    I called Bill gates and said, “I want your daughter to marry my son.”
    Bill Gates said, “No.”
    I told Bill Gates, “My son is the CEO of World Bank.”
    Bill Gates said, “OK.”
    I called the President of World Bank and asked him to make my son the CEO
    He said, “No.”
    I told him, “My son is Bill Gates’ son-in-law.”
    He said, “OK.”
    That’s exactly how politics works. …

  7. lefty665 says:

    McDonnell will make it hard. However, in this case there are millions in Foundation contributions and billions in coincident arms export licenses. Those are explicit official acts. Guess we’ll see if that meets the new standard.
    .
    It was simpler in the good old days of Spiro Agnew and envelopes of cash.

  8. Don Bacon says:

    Jeanette Sandernista has some interesting information accessible on her twitter feed here including a video where Hillary2016 revealed her motive for the 2009 illegal email server: to hide from investigators here and wikileaks list of 23035 cables sent to Clinton using “(C)” (classified) marking in her 1st year alone here.

  9. lefty665 says:

    Don Bacon @10:39 Those are cables not emails, and were sent via DoS systems. OTOH wonder if further discussion of those documented classified subjects took place via insecure email. Pretty tedious matching, but right up the FBI’s alley.

  10. Don Bacon says:

    @lefty665
    On the cables it’s not the “from” it’s the “to” — right?
    They went to Secretary of State.
    And (secondarily, as you indicate) then what. I believe that there was testimony (I didn’t follow it closely, so I may be wrong) that the confidential header was removed and the message re-sent with those little (C)’s still on paragraphs.

    • emptywheel says:

      Comey said there was no removing of headers.

      That was actually a discussion about prepping a document so it could be shared with foreign governments.

    • emptywheel says:

      What has always been pointed to as the single case of Hillary requesting and Jake Sullivan fulfilling her request to strip headers was in fact something else, a routine request to prep a document such that it can be shared with a foreign government.

  11. Denis says:

    MW,
    For what my 2-bits may be worth, I’d like to point out that, by my
    count, this is the 5th post on this topic since Jul05.
    .
    And the reason I say it is that this effort has been absolutely stellar,
    informative, and objective — adjectives that are rarely appropriate
    for articles on political subjects, much less all together.
    .
    There are a few “mom-‘n-pop” type blogs out there that never cease
    to amaze me with the quality and quantity of their content and yet no
    ads or apparent compensation, and this is one of them. Don’t know how
    you find the time. Your sink must be perpetually full of dirty dishes and
    the beds unmade for weeks. LOL.
    .
    Thank you.

  12. lefty665 says:

    Don Bacon @ 11:17 & 12:12 The media is the message. Department of State emails Hillary sent and received on her unsecured phone via her private unsecured server are the issue. Department of State cables sent and received via (at least nominally) secure government channels and terminals are not. The Wikileaks cables fall in the latter category.
    .
    Had Hillary simply used her personal Blackberry and homebrew server for her personal communications and DoS devices and channels for official business we would not be here today. But she chose not to do it that way.
    .
    That she commingled personal and official and clearly tried to hide them all on her personal system in her basement goes to intent as far as some of us are concerned. However, despite Comey’s repeated statements, intent is not required by either the law, section 793(f), or prior prosecutions. There seems to be no innocent explanation, only an evolving series of lies on her part and remarkable credulousness on Comey’s.
    .
    DB @12:12 There were apparently only three with (c) in the text. Of more significance are the more than 100 chains that contained classified information, including roughly 10% that contained Top Secret/Special Access Program content. Hillary could not have failed to understand those TS/SAP topics were very highly classified. It is two clear violations of the law if she sent them unmarked and over an insecure channel. It is another if she received them and failed to report the violations. That to some of us seems to be the clearest area where “extreme carelessness” = Gross Negligence.

  13. lefty665 says:

    BS Librul @ 1:35 Unless you are a forensic auditor your standard opinion likely prefaces with a statement to the effect that your audit was not designed to identify defalcation. Audits include a calculation of materiality. In this case Hillary’s sending and receiving classified emails on her insecure private device and server, including Top Secret/Special Access Program data, far exceed any reasonable threshold of materiality.
    ,
    It is as if you went into an audit and found that GAAPs and FASB had been thrown out the window, and cash receipts not reported until demanded. We do not have to know what was on Hillary’s mind in order to ascertain that she operated in reckless disregard of the law and DoS policy.

    If you are a forensic auditor then you understand the criminal issues and your comment is disingenuous.
    .
    It ain’t over ’till the fat lady sings.

    • emptywheel says:

      The fat lady has sung on the classification issue (except for those who will lose clearance).

      Plus, as I pointed out yesterday, we should be cautious about the SAP claims bc CIA lies about classification constantly.

    • Bay State Librul says:

      Good to hear from you lefty

      I’m not a forensic auditor, I’m your run-of-the-mill financial, operational, insurance/tax auditor. If I was dealing with a financial review, yes materiality matters. This to me was more of an operational audit – how does the system work, are they following procedures, etc. In my opinion, it was a treasure trove of potential findings. In the course of my work, If I found out that staff was lying to me, then I would change my approach. From the audits I do, most folks are basically honest, they will color their statements to put themselves in a good light, but that is human nature. I can usually tell if someone is lying to me. In Comey’s
      report he found no “obstruction of justice” or lying to an agent. To me the results showed that the system is totally broken and fucked up. I would try to lay out recommendations that would improve. To say that Clinton intentionally put this nation at risk is a real fucking
      stretch
      —-
      In a financial audit, GAAP and FASB must be followed and if you find fraud etc, you report to the Shareholders. Most of the borderline stuff is in the footnotes. If you’re analyzing financial statements – LOOK in the footnotes.

      —-
      In this e-mail case, it will be a “footnote in history”. A case where politics and the Republicans tried to derail the Presidential Candidate – beware

  14. rugger9 says:

    “C” usually refers to “confidential”, a very low level of classification. Comey noted correctly that the procedures for classification were not followed and many of these “classified” documents were done after HRC left State.

    I’ll be more impressed if the committee goes after Rove’s missing Blackberry or Chaffetz’s release of classified info or Cheney for outing a CIA NOC operative. Republican hypocrisy marches on, but because the corporate media wants a horse race (The Donald is 30 points behind in CA, and has pulled back on operations here) I have to agree with EW that Clinton Derangement Syndrome will never be cured.

    Charlie Pierce has a good summary over at Esquire on the stupidity of the Committee on this, almost as stupid as their attempts to take down HRC on Benghazi or Planned Parenthood (a Chaffetz all-star show).

  15. Bay State Librul says:

    Here is what one writer from the Boston Globe has to say about the hearing with Comey. The other side of the story

    “On Tuesday, FBI Director Jim Comey confirmed that there would no criminal indictment against Hillary Clinton for her use of a private e-mail server — which hopefully puts this over-inflated scandal to bed.

    Here are eight takeaways on what we’ve learned and what it all means:

    1. Clinton made a huge “political” mistake in setting up a private e-mail account on which to conduct State Department business. She opened herself up to exactly the kind of hyped-up criticisms to which the Clintons have long been subjected. But this doesn’t mean Clinton’s actions were reckless, unusual, or as damaging as they are being described.

    2. When Clinton said she used one e-mail account for convenience, she is most certainly telling the truth. She didn’t want her private communication to be saved on State Department servers and thus potentially available via a FOIA request or a congressional inquiry. And she also didn’t want to do what many government employees and many Americans do: use two phones — one for work and one for their personal lives. She wanted the ease of one phone. Whether this is an example of recklessness and bad judgment is in the eye of the beholder.

    3. Someone on Clinton’s staff should have told her that setting up a private e-mail server, rather than dealing with the rigmarole of two phones, was a bad idea. Few staffers want to stand up to their boss and tell them, “You can’t have what you want.” That no one did so harmed Clinton politically. It’s something she should think about if she is elected president and she begins assembling a presidential staff.

    Hillary Clinton e-mail probe is no longer a lethal weapon

    The FBI findings are hurtful — but not fatal.

    Another Clinton ‘scandal’ goes poof
    FBI decision on Clinton may be a blessing in disguise for Republicans

    4. Whatever one thinks of Clinton’s actions, Comey’s depiction of Clinton’s actions as “extremely careless” was prejudicial and inappropriate. The only reason for delivering such a lacerating attack on Clinton was to inoculate Comey and the FBI from accusations that he was not recommending charges be filed due to political pressure. But that’s an excuse, not an explanation, and a weak one at that. Comey’s press conference was a political act intended to protect Jim Comey and the FBI. It bears noting, however that the press conference might not have been necessary had Bill Clinton not met with Attorney General Loretta Lynch the week before. I suspect that Comey still would have delivered his statement anyway, but Clinton’s visit to Lynch’s plane could easily have forced his hand.

    5. Comey’s characterization of “extremely careless” referred to the fact that Clinton’s private e-mail account contained classified material. This statement has been getting a lot of publicity, but it’s a charge lacking in context. State Department employees use classified and unclassified e-mail accounts — though primarily the latter. This means that classified material inevitably finds its way into unclassified e-mail accounts. If the FBI were to do an audit of every State Department employee’s unclassified e-mail, they would almost certainly find some content that might be considered classified. Comey pointed to seven e-mail chains in Clinton’s e-mails that contained classified material out of more than 30,00 e-mails read. It’s hard to see how seven chains out of 30,000 work-related e-mails reflects “extremely careless” behavior. Moreover, Comey said three of the 30,000 e-mails searched contained markings that showed they were classified, though he has since acknowledged that the documents in question were not marked classified. It’s worth noting that there is still zero evidence that any classified material became public, or was accessed by someone without a security clearance, because of Clinton’s actions.


    6. Comey said that “any reasonable person” should have known that Clinton’s conversations shouldn’t have taken place on an unclassified e-mail account. This is a highly subjective view, which doesn’t do justice to the nebulous manner in which material is classified. Considering the fact that there has been so much controversy over how different agencies classify different material, the basis for Comey’s assertion is unclear, particularly since he’s someone who is not a State Department employee and is unfamiliar with the culture there.
    —-
    7. But this gets to a larger more difficult issue: State Department employees need to communicate on unclassified e-mail accounts, but the technology and the rules that exist have not caught up to this fact. Quite simply, government has failed to adapt to the way people communicate in the 21st century. A desire for convenience, speed, and accessibility drove Clinton’s decision to have a private e-mail account — but so, too, did the limitations of the federal government’s IT systems, particularly at the State Department.

    8. The damage from Comey’s indignant press conference is less the political cost to Clinton and more that it sends a warning to government employees that even the slightest leakage of classified material into an unclassified system will be judged harshly. Will this encourage employees to further seek the kind of workarounds that often lead to more insecure security situations? Will this scrutiny encourage employees to conduct business on the phone rather than e-mail? Will it push them to more frequently use private e-mail accounts rather than government accounts, because it’s quicker and easier? The rules governing the use of classified materials can be harsh and punitive – and often for good reason. But in era of mobile communications, perhaps there should be a push for under-classification, and for being more lenient with those employees who violate the rules — not out of willful misconduct, but from a desire to do their jobs more efficiently.

    Oh and, here’s one last takeaway — at the end of the day, the Clinton e-mail scandal will simply reinforce existing perceptions of her and not change the presidential race one iota.

  16. lefty665 says:

    EW @3:17 I expect you’re right on classification.
    .
    In general I take your approach on CIA and its whimsical notions of classification. Apparently, although it’s a little hard to tell because of classification, most of the TS/SAP emails were about approving drone strikes. One of the arguments presented for email was that secure communications (JWICS) was too slow to use in the short window State had to approve/disapprove a strike.
    .
    To beat a dead horse, here’s a Link to an article that addresses the explicit lack of intent required for 793(f) prosecutions. Internally it links to the Tuesday Mukasey column with more opinion that Comey was making it up. Comey’s rewrite of the law is hard for me to swallow, but I’ll give it up here with this post.
    .
    What a strange year and we’re only half done. Thanks for all you do.

  17. lefty665 says:

    Hi Bay State Librul. Auditing is interesting. I have also found that most folks are basically honest, but there are a few crooks and pathological liars mixed in.
    .
    With smaller organizations you pretty quickly get a feel for what the numbers ought to be. With larger ones, as you note, you’re looking at the board for governance, to see if policies/procedures address the organization’s needs, and establishing that processes work reliably to meet those needs.
    .
    What do you do when you find material defects through failure to comply with policy/procedure (and law), document that in your audit report, then find the CEO is out telling the world that there were no defects, that everyone is reliable and reveres probity and that your findings are false?
    .
    I swore off the email issue in my last post above, but Clinton last evening on PBS News Hour, and I gather other media, did exactly what I described in the paragraph above. She claimed that she and her staff revere confidential information and had never done anything careless not to mention extremely careless with it.
    .
    She was astonishingly unrepentant and profoundly un-contrite. She was scary. Pathological or so disconnected from reality that she really does not understand? I have no way of knowing, but I am sure that behavior has no place near the oval office.
    .
    The idea of Trump as prez is frightening. Clinton is no less frightening.

  18. Denis says:

    If someone were to hold a gun to my head and force me to choose between
    Hillton and Trump, I’d say “Go ahead and pull the trigger.” That’s essentially
    what Americans are doing in this election: suicide by ballot box.
    .
    It is the first election that I am aware of in which it is known with reasonable
    certainty from the outset that both candidates are crooks and liars driven
    by a toxic ambition for power. Every candidate since Washington has been
    driven by a toxic ambition for power, and many were obviously crooks
    and liars in retrospect, but this is the first time that whole package is
    evident in both candidates before the election.
    .
    Maybe now Americans will wake up to the obvious: the problem is not
    the lack of worthy candidates; America has hundreds of thousands of
    people who would be outstanding candidates. The problem is the fucked
    up election system, which is just a subset of the larger problem: a
    fucked up Constitution.
    .
    Unfortunately, the guy who claimed that the Constitution is not a suicide
    pact wasn’t able to see far enough into the future to realize what bullshit
    he was spouting, just like the Fondling Fathers couldn’t look far enough
    into the future to see what a time-bomb they were creating in the
    Constitution.

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