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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.

58 replies
  1. bmaz says:

    I think this article from Riley Roberts in early September was spot on about the Hooveresque parallels as to Comey’s self righteous determination that his view and ego are the only one that matters.

    It really embodied Comey’s greater history, as well as his outrageous and unprecedented self insertion this summer (July) via his Clinton statement and immediate testimony to the frothing at the mouth Republican led House Oversight Committee.

    Turns out to be pretty prescient.

  2. Trevanion says:

    Isn’t this Smith Island cake filled with dreck possible only because we have a judiciary branch that has become cowed, having all but left the mighty trinity we were once taught about in civics class?

    I do not know how it might be possible to quantify or otherwise do an exposition of such a thing but it seems undeniable that we now have but two branches of government — both oddly diminished into infantile functioning by the equally odd transformation of the third into an almost staff-like servile status, its members defining their independence only in terms of political bent.

    Or maybe the coffee isn’t strong enough this morning.

  3. mla1396 says:

    Excellent points throughout, in particular the free-range the FBI has in collection leading from point A to completely unrelated point X and the incredible cost of these investigations. Using the HRC email example, I would hazard a guess that if Congress, the DOJ/FBI and whatever other agencies involved could even come up with a ballpark spend on what to date has been a dead end – that amount could have moved the BOL’s unemployment needle down significantly or at least fixed the potholes at LaGuardia.

    I generally dislike asking a broad brush question that may lead to conjecture, but (rule # 7: everything before the but is bullshit):

    Comey has made his move, it cannot be undone.

    HRC’s stated and generally accepted response is “The American people deserve to get the full and complete facts immediately,”.

    Bearing in mind the election is already in progress, what should the DOJ/FBI or any other branch of the government do “officially” (meaning no one can prevent the individual voices and leaks) in an expeditious manner (if anything at all)?

    • emptywheel says:

      Apparently now FBI is asking Huma’s consent to read her emails.

      Which is fucking bullshit but now that there’s a firestorm she might just agree.

      • bmaz says:

        Why in the world is  that bullshit?? It is, and should be, SOP in  an ongoing matter such as this is.

        I have been asking that question since Friday night or Saturday morning.

        • emptywheel says:

          You think it is okay for the FBI to create a nation-wide feeding frenzy about these emails, making it an election year thing, and only then ask Huma to let them read the emails? Because that’s unbelievably inappropriate.

          • bmaz says:

            Yeah, I think it is absolutely appropriate to seek consent under any circumstance. And it strengthens their case to do so. in light of her prior cooperation, I think is is stunning they did not ask.

            Adding, Abedin consent might not cure every potential issue (eg Wiener arguably still has potential rights), but it would go a long way. And is a courtesy and discussion you should have with a cooperative individual.

            • rugger9 says:

              It depends on what is there and more importantly how it will be “edited” and spun by the corporate media when it comes out (especially who releases it, Huma or the FBI?).  If past performance is any indication I think Ms. Abedin would rather do a full unredacted dump to undercut the antics that the FBI (now identified as “Trumpland” by the Daily Beast) could try.

  4. martin says:

    quote”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.” unquote

    Unbelievable. Well then, Clinton might as well pulled out a gun on live TV and blown Trumps head off.during the last debate. At least, half of Amerika would have cheered. Perhaps, at the end of a long civil war, a future successful rebel army might wade through the bullet ridden halls of the DOJ and FBI, and discover how many political cover-ups allowed criminals like Dick Cheney et al, to change the course of history. In reality, what this tells me is the “rule of law” is a goddamned fucking myth…except for you…and me. However, hopefully, this latest disclosure will lead to proving me an idiot. If it does, I’ll eat my words…with a nice cold Michigan cult beer, of course. :-)

  5. greengiant says:

    One theory from the anyone but Hillary camp is that the original investigation was done with no grand jury and with no power to subpoena people or material and the FBI was on a tight leash and anything other than that from government servers was acquired after the “my lawyer did it” looking for “classified” material. With the Weiner case there is a grand jury and voila as Marcy writes, there is suddenly an opportunity for parallel construction.
    With the “there are no emails from Clinton” flag waving then the dirt if there is any is in emails to Clinton or involves others.
    As for placing any trust in Comey, the FBI, or the DOJ, some things never seem to change. Instead of a prosecution, a government agent would place a call to an employer and get someone fired and blacklisted. Happens every day in “private” industry with non government agents.

    • bmaz says:

      Meh, this is not really how it all works. It is truly not so simple as GJ or no GJ. The complexities, some of which are good!, are  many and far more complicated. We are nowhere near the position of doing such a, frankly, post mortem, now.

  6. GKJames says:

    Like all FBI directors, Comey’s first and foremost a salesman/politician. What’s startling is the overt manner in which he peddles his manichean worldview to, admittedly, a not especially sharp crowd. Is his appointment one of the benefits of Obama’s reaching-across-the-aisle obsession?

  7. bellesouth says:

    I am not sure we “know” that there aren’t any e-mails from Clinton on this laptop, since no one has read them.

  8. John Casper says:

    Phil Perspective, this a vague response to you. Not sure it’s going to appear where I intended it.

    IIRC David Dayen was on a show–Sam Seder’s Majority Report?–talking about the Podesta emails. He referenced an article he had just written for New Republic “The Most Important WikiLeaks Revelation Isn’t About Hillary Clinton: What John Podesta’s emails from 2008 reveal about the way power works in the Democratic Party.”

    “Michael Froman, who is now U.S. trade representative but at the time was an executive at Citigroup, wrote an email to Podesta on October 6, 2008, with the subject “Lists.” Froman used a Citigroup email address. He attached three documents: a list of women for top administration jobs, a list of non-white candidates, and a sample outline of 31 cabinet-level positions and who would fill them. “The lists will continue to grow,” Froman wrote to Podesta, “but these are the names to date that seem to be coming up as recommended by various sources for senior level jobs.”

    https://newrepublic.com/article/137798/important-wikileaks-revelation-isnt-hillary-clinton

    The article didn’t mention Doris Kearns Goodwin’s “Team of Rivals” about Lincoln’s cabinet, but on the show, DDay pointed out that’s how Obama tried to spin it in 2008. His NR piece doesn’t mention Comey, nor do I recall him specifically mentioning him on the show.

  9. Mary M McCurnin says:

    Are you sure no one has read them? Just because they can’t get a warrant doesn’t mean they have adhered to the law.

  10. Denis says:

    Libruls are making a lot of whoopee over that 60-day “rule,” but you’re not going to find it in the US Code or the Federal Regulations. It’s as much a tradition as a rule. I mean, if evidence were suddenly to come to light that DTDuck has been feeding his intel briefing info to VladiePut, does anyone think for a moment that the FIB agents wouldn’t be all over the duck and a very public indictment would follow regardless how close the election? Pssst.

    Comey scrambled in an attempt to get this issue off the table before the 60-day no-cry zone came into effect. He screwed the whole thing 10 ways to Tuesday, and the “investigation” was a debacle. But, regardless, the end result was that the public were left with a firm reason for believing the FIB had looked at everything and not found any criminal activity. So now, just short of the election, the FIB agents stumble onto what must be some really damaging Abedin em’s on Weiner’s laptop. So Comey now knows the public’s perception may very well be tainted by what he said previously. He also knows he’s facing mutiny by dozens of honest FIB agents who are so pissed off they can’t see straight. This is not a 60-day rule situation.

    In his legal mind, Comey is likely seeing the situation as analogous to discovery in a civil case. Your client presents a certain fact-set by sworn responses to interrogatories and deposition questions, and the opposition is entitled to rely on those facts. But now you find that your client was lying or there is additional material information that was not given to the opposition. The lawyer is not permitted to sit on the new information and let the opposition continue blindly relying on what the lawyer knows are tainted disclosures. There is a duty to the opposition and to the process to supplement the record by providing the newly discovered information, even if it is damaging to the client.

    Most honest lawyers in Comey’s position post-Weiner laptop discoveries would be asking themselves whether there is a duty to correct the public’s mistaken impression that the FIB is not aware of any em’s that could be evidence of criminal activity. Different lawyers would answer that query differently. A lot of them would hide behind the 60-day “rule.” I, personally, would hope that I would have the cojones to do what Comey did if I were in his shoes, but I also hope I would have enough brains never to have gotten m’self in this mess. Had Comey not made the play to give the public the impression that everything was just fine, then I would agree that the 60-day rule would hold in the present chapter of this debacle.

    Just think how this would have played out if Comey kept his mouth shut. Hilton gets elected and in mid-Nov the FIB reveals the newly discovered em’s. What’s Comey going to say then: “Oh, yeah, back in October we actually found a bunch of incriminating em’s on Weiner’s computer but we decided not to tell you because of that ole’ 60-day rule.Turns out you just elected a freaking RICO criminal enterprise. Sorry ‘bout that.” I think we can fairly deduce that in order for Comey to stick his neck out, whatever is on that laptop must be huge and Comey didn’t want to deal with the flak after the election if he kept quiet before the election.

    With respect to the quote from the US Atty Manual, if there is no longer an investigation or “adjudicative proceeding,” then how does a leak prejudice it? You can’t prejudice a proceeding that has been shut down by crooked bureaucrats. The point of the such FIB leaks from pissed off agents would be to force the govt to REOPEN the proceeding, which is the OPPOSITE of prejudicing it.

    More to the point is that Comey forced the FIB agents working on the Hilton file to sign non-disclosure agreements. Presumably those NDAs could be enforced (in civil proceedings) even against agents who jumped ship before spilling beans.

    As far as Abedin challenging a search warrant on Weiner’s computer that finds her em’s – the rule is that once the cops have a valid search warrant, anything they see during the search can be seized, even if it is not pertinent to the crime being investigated. Ya’ got a search warrant for evidence of a guy dealing drugs and during the search the cops seize evidence that his wife is in illegal possession of government communications, that’s a good seizure. Toobin or some other “legal expert” at CNN has suggested there could be a spousal immunity issue here, but I have never heard of spousal immunity limiting what can be seized when executing a search warrant. Spousal immunity is about testifying against one’s spouse.

    To summarize my disappointment with this post: In trying to tar Comey you’re missing the freaking point: this moron Abedin and her moron husband are in possession of government em’s on a computer that is not just unsecured, but in the hands of a pervert. Any objective mind boggles at the thought; librul minds not so much.

    The sorts of problems libruls see are 1) a loose 60-day rule that is not legally binding and 2) feline metaphors being used in adult conversation for female genitalia, but somehow they don’t see a national security problem with this Weiner wanker wandering around with government em’s on the laptop he is using to sext children – and believe it or not, my spell checker recognizes “sext,” a sign of the times.

    The $40,000 question is whether Hilton’s people can pump this red herring 60-day rule up enough to prevent the public from realizing how serious this debacle is – and I don’t mean just Weiner, I mean all the way back to Mar2015 and the NYT’s initial disclosures, and the inescapable conclusion that criminal morons could be running the country soon. If you’re gonna’ elect more criminals to the WH, at least get rid of the ones who are morons. IMO.

    Good to have you back at the helm.

    • GKJames says:

      Helpful, thanks. Wasn’t aware that the mind paradigm was “librul” and “objective”; it’s obvious I’ve been needlessly complicating my life. As for the “freaking [and freakingly obvious] RICO criminal enterprise” — presumably with Hillary Clinton at the apex — is the absence of an indictment after all these years a sign of FBI (FIB, sorry) thoroughness, or of just the overall corruption that has ruined the Republic?

    • John Casper says:

      Denis,

      What’s a “librul?”

      What’s the “FIB?”

      “Are these going to be filed before November?” he asked with a bluntness that was as shocking as the substance and the implication of his question. ‘These’ clearly meant the indictments.

      I swallowed hard. There was no way that I was going to wiggle out of this. Senator Pete Domenici, in all his gravitas wanted an answer, and he wanted it then and there.”

      From page 98 “In Justice” https://www.amazon.com/Justice-Inside-Scandal-Rocked-Administration/dp/0470261978 by former U.S. Attorney David Iglesias.

      Thought the 60-day rule protected candidates from both parties in primaries too. Am I wrong about that?

      Is David Iglesias a “librul?”

      Is former Sen. Pete Domenici a “librul?”

      You wrote “So now, just short of the election, the FIB agents stumble onto what must be some really damaging Abedin em’s on Weiner’s laptop.”

      How does that happen? Is it news that Weiner was a nutcase and evidence of felonies might exist?

      • Denis says:

        John, thank-you and GK for your queries.

        Librul — I think the popular cognitive scientist David Hofstadter would file this word in the same folder linguistically with “nukular”.

        As for a definition, F. Scott Fitzgerald once said that a sign of first-rate intelligence is the ability to hold two mutually opposing thoughts in one’s mind simultaneously without freezing up mentally.  Libruls are the ones who can hold single thoughts in their left cerebral hemispheres and nothing in their right.

        “FIB” is an anagram for “Freaking Invidious Bureaucrats.” Please google “302 notes recording” for further explanation. If they ever drag you into an interview, you’ll know what I’m talking about. Leave your recording device at the door.

        Other perceived peccadilloes that may have confused you: “Hilton” and “Bilton” are the most efficient way I have found to refer to the two senior members of the Clinton RICO enterprise. I’ll leave “Chelton” to your imagination.  These names are not trademarked; help yourself.

        John: “Is it news that Weiner was a nutcase and evidence of felonies might exist?”

        Objection, your honor! Two-part question. Let’s break it down.

        Is it news that Weiner “was” a nutcase? Depends on why you are using past tense.

        Is it news that evidence of felonies might exist? Where you been the last 3 days, dude?? Of course it’s news if it looks like the felons are the leading candidate for the WH and her closest aide.

        GK: “is the absence of an indictment after all these years a sign of FBI (FIB, sorry) thoroughness, or of just the overall corruption that has ruined the Republic?”

        Aha! One of those binary, either-or questions. I’ll see your 2-parts and raise you 1: Are you serious, or disingenuous, or really unable to think beyond two possibilities? See reference to F. Scott, above.

        Seems to me that the absence of an indictment after all these years could reasonably be taken as a sign of FIB’s utter LACK of thoroughness when it comes to Hilton/Bilton, and other alpha politicians, which is why they have become invidious bureaucrats. There’s one justice system for the likes of Hilton, Bilton, Abedin, Cheney, and Nixon, and a separate justice system for the likes of Jeffrey Sterling and Thomas Drake.

        America: love it or leave it.  The weather is actually not too bad here in Vancouver, B.C.

         

         

  11. harpie says:

    Have you seen this?:

    FBI agents knew of Clinton-related emails weeks before director was briefed; Washington Post; 10/30/16; 1:15pm

    [I decided not to post the link, because I’m not sure how long that would take to go through.]

    This is what he wrote to Congress:

    “[…]  I am writing to inform you that the investigative team briefed me on this yesterday […]”

    PS: Great new site!

     

     

  12. martin says:

    Hahahahahahahahahaha..hahahahaha… hahahaha.. I’d bet every producer in Hollywood is pounding their writers to up the ante on next years crop of political thrillers. I mean..they already know you can’t make this current real political drama up. So..what’s next?

  13. lefty665 says:

    Thanks once again EW.

    Not germane to your post, the WashPost is reporting the FBI has gotten a warrant to search Huma’s emails and an “official” suggested there may be approaching 650,000 to search. Huma has been very busy, and says she has no clue how her emails got on the Weiner wiener’s laptop. Pity the poor SOB who has to sort through it all: dick pic, email from Hillary, skanky txt to 15 year old, email to Hillary, another dick pic… In other news Podesta reportedly fell for a simple phishing exploit, clicked on the link and put in his credentials. What a gang of morons, and they’re preparing to run the country?

    • martin says:

      What a gang of morons, and they’re preparing to run the country?

      BINGO!   George, give the man a cigar.

  14. bmaz says:

    It should not be that hard to separate hers from his.

    As to how they got there? Dunno, maybe a backup/sharing thing? If reports are accurate as to how far they go back though, it seems amazing they could all consistently be c collected up on one “device” and she never had any clue. Who has single devices that blithely do that over 10 years or so?

     

    • martin says:

      Who has single devices that blithely do that over 10 years or so?

      The hundred million dollar question has now been raised at the bar.  Meanwhile, the jury is instructed to ignore it.

       

      • ryan says:

        >Who has …

        A husband who is cheating (well, virtually cheating), and through projection fears that his wife may be cheating, so he password-guesses her email account?  Unless she’s lying, I think that’s the easiest answer as to why her emails are on his computer.

  15. lefty665 says:

    I know, expect they’re accessed by user. I was daydreaming about the bizarreness of having Sec State emails on the same computer as the Weiner’s.  In seriousness, since Huma apparently never deleted anything there will likely be some of the ts/sci emails about approving drone strikes and stored on adjacent physical disk sectors or interleaved with. wiener shots. Logical file structures and physical disk allocations are what they are.   I think I was wrong to use “gang of”. “pride” might be a better grouping. It’s what my mother always used to tell me goeth before a fall.

    It will be interesting to learn how they all got on that computer. I’ve migrated email clients over the years and maintained history because it was easier than to sort through it. I knew it when it happened and where the files were. I’ve been a frequent email user for a long time, but I sure don’t have more than half a million stashed in there, and never had access to sensitive/classified stuff nor any interest in dick pics.

    Expect Huma has to profess cluelessness. It seems intent is what stands between her and perjury or other charges. It may also keep Hillary from throttling her.

     

  16. John Casper says:

    Even über wing nut Joe Walsh knows Comey’s wrong.

    Joe Walsh [email protected]
    U may hate me, but I’ll always say what I believe.

    I want Trump to win, but what Comey just did to Hillary Is wrong & really unfair to her.

  17. John Casper says:

    “Trump Supporter Jeanine Pirro Defends Hillary Clinton Over FBI Announcement:
    The former prosecutor said the FBI decision violates “the most fundamental rules of fairness and impartiality.”

    Fox News’ Jeanine Pirro came to Hillary Clinton’s defense on Sunday, criticizing FBI Director James Comey over his recently announced investigation into new emails relating to the former secretary of state.

    “Comey’s actions violate, not only long-standing Justice Department policy, the directive of the person that he works under, the attorney general,” the former prosecutor said, referring to Loretta Lynch’s reported disagreement with Comey, “but even more important, the most fundamental rules of fairness and impartiality.”

    http://www.huffingtonpost.com/entry/jeanine-pirro-clinton-fbi-emails_us_58161383e4b064e1b4b30d55

  18. Taghkanic says:

    Billy Joe and Bobbie Sue shoot a man while robbing his castle. A detective down in Texas suspects them of committing the crime.

    So Billy Joe files paperwork declaring his candidacy for Congress.

    And his supporters say the Texan detective can’t identify Billy Joe as a suspect, or continue his investigation, because of the Hatch Act.

    To continue investigating him would interfere with an election, Billy Joe argues. The detective must wait until after the election.

    This is *not* the intent of the Hatch Act. Running for office does not exempt anybody, even a Presidential candidate, from criminal investigation. And it is not meant to prevent government officials from fulfilling and pursuing their official duties.

    To suggest that James Comey violated the Hatch Act by notifying Congress of a new development in the long-running Clinton email case thus strikes me a tremendous stretch.

    To invoke the Hatch Act here, one would have to prove that Comey acted solely to damage Clinton electorally, and had no basis for reopening the investigation.

    Given that it was Comey who went to extraordinary lengths to avoid referring Clinton to the DOJ for charges, and given the extensive record in this case, it seems a tenuous argument at best, and a shameless partisan dodge at worst.

    I have little doubts that there are big problems with Comey—his bizarre speech simultaneously laying out the evidence to refer Clinton to DOJ, followed by the non-sequitur that he wasn’t going to do so, provided plenty of reason to wonder what goes on in his head. But as someone who views the Hatch Act as a valuable tool for holding officials accountable, I think crying wolf with it in this case is a bad idea.

    • emptywheel says:

      Where did I suggest this was a violation of the Hatch Act?

      Indeed, I agree with you that Reid’s attack on Comey is inappropriate.

    • John Casper says:

      Taghkanic,

      Who–besides you–has brought up the Hatch Act?

      You wrote “Billy Joe and Bobbie Sue shoot a man while robbing his castle. A detective down in Texas suspects them of committing the crime.

      So Billy Joe files paperwork declaring his candidacy for Congress.”

      Did you miss the part about 60-days before the election?

      Did you miss the part that HRC was a U.S. Senator–she ran second for Dem’s POTUS nomination in 2008?

      “And they’re still wanted today.”

      The internet never forgets. Think this Seger classic works better.

    • bmaz says:

      Frankly, I find most all incantations of the Hatch Act (Logan Act too) feckless and comical.

      That said, your disdain for the implications in this instance is misplaced. And the things you say cannot be evidenced may well could be proved up by competent evidence, whether direct or circumstantial. I do not think for one second this would ever be pursued against Comey, nor that it should be, but the parameters of the applicability are a far closer call than you let on.

      There is a good discussion by Steve Vladeck here

  19. Taghkanic says:

    P.S., a couple more things:

    (1) The Clinton team seems unable to address its serial, self-inflicted wounds (DNC emails, Podesta emails, new Comey move) head-on, relying instead on deflective counter-attacks. (It was Russian hackers! Comey violated the Hatch Act!) Such rebuttals do not speak to the substance of the issues at hand, and lowers one’s faith in both their sincerity and innocence.

    (2) By falsely telling the FBI that she had turned over “all” devices containing emails pertinent to the server investigation, Huma Abedin opened this door wide open. What do all investigators do, from local sheriffs to the head of the FBI, when they feel they’ve been lied to? They retaliate against the liar.

    So when the FBI closes an investigation, and then a separate investigation reveals they were lied to, how can Team Clinton really be surprised at the reaction?

    At what point are they going to learn that secrecy and ad hominem attacks on critics just perpetuate problems—Day 300 of Hillary’s second term?

    • bmaz says:

      Uh, re: 2) You belie your prejudice by blithely stating that it was a false statement by Abedin. If she was not aware there were any such material stored on Weiner’s computer, then it not a false statement. Indeed she has already indicated that. So, might want to be a little more careful when you go bandying about the conclusion anybody was “lied to”.

      • ryan says:

        >You belie your prejudice

        True, but a lie from Abedin seems like one of the two most likely options.  You suggested as much by writing “who has devices that do that?” above.  Nobody does.  The emails got to this computer one of two ways.  Weiner put them there in the course of spying on his wife, or Huma put them there and lied about it.

        But she turned over some devices.  So why would she turn others over and not this one?  One possibility is that she intentionally backed up emails from another devices before wiping it in some way and turning it over.  That seems unlikely to me, but I would consider it.  Another is that she lied, not to protect Clinton, but to protect her husband, fearing what they’d find if she turned this computer over.

        I still think the most likely answer is that Weiner accessed her account without her knowledge to spy on her.

  20. Denis says:

    OK, you wonderful EW liburls — and I love you all, except some of you — here is your own iconic librul Michael Moore and his “Trumpland.”  This 2.5 min excerpt is circling the globe at viral hyper-speed. 1.4 million views. The link came to me last night from a friend in Brisbane, Queensland, fer chrissake. Most of them don’t even know where USA is and yet they understand what is really going on here.

    You’ve got to get your heads around what Moore has gotten his head around.  You have to understand — not agree with, but get — what your nemesis basket of deplorables [sic, it’s not even a noun] see in this grotesque caricature of a politician. Moore picks the issues apart and exposes the common concerns that everyone south of 1% can agree on. And that’s Moore’s surprise: there actually is common ground, and it’s DTDuck who is occupying it.

    Hilton’s lead, as per RealClearPolitics, is dropping faster than Bilton’s pants in the Oral Office.

  21. teri says:

    Whatever Comey’s intent – and he may have hoped for exactly the resulting broohah that is occurring – he sure isn’t the one who is standing in front of the TV cameras talking about all of it, although that’s what Clinton is trying to get him to do.  He sent a letter to members of Congress regarding updates on the FBI investigation. THEY are the ones who promptly leaked it to the press. If these august members of Congress were all so concerned and flustered about the “possible effects on the election”, why didn’t they just discuss it quietly within their committees and follow up with a phone call to Comey, if necessary, instead of immediately blabbing to the media?

    God knows they manage to keep pretty much everything else a secret from the public.

    • rugger9 says:

      Because Comey’s got nothing, the only way this trash is effective is through innuendo.  He’s not going to say any more until there is something he can proclaim.  Mind the specifics if/when he does, because since he pegged the hype meter without even reading one email, I put nothing past this version of the FBI.

      Let’s see how Donald does in his upcoming cases (not just the famous one this week) since he has a date with a judge on Trump “University” shortly on a racketeering rap (e.g. a real crime).

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