Tell The Truth: Who’s Been Bullying Who

The internet is a strange, yet consummately wonderful place. It allows for a feed from thought leaders and journalists, and with a new age real time speed emphasis, with the ability of other, and different on a granular level, voices to respond. It is a wonderful, even if still difficult, medium of interaction. Twitter is the epitome of it all.

Some will say Facebook, but I think Twitter is a far better avatar, especially for those that really think about hard news, current events and some sort of equilibrium of differing political discourse. Is it a little rough, unfiltered and harsh because of the proverbial 140 character limit? Sure. Absolutely. You hope that the friends you make are equal to the knowledge you take, whether you agree or disagree at any given point in time.

And then comes a day where a small fish gets accused of “bullying” by far bigger fishes. As if simple political and moral distinctions and views are “bullying” or otherwise unconscionable among people that have been agreeing and disagreeing/parrying with and against one another for give or take a decade.

Instead, I was always taught to go into a forum, argue like hell for what you think you must and/or right, and then go have a cocktail with your adversary, or at least shake hands and walk off with the understanding there are two sides to any legitimate argument. And, I will be honest, the “fight like hell” part is always job one. Indeed, criminal defense attorneys are schooled to zealously do just that.

So, recently, I was accused of “bullying”. By a friend with a perch several exponents above mine. I tried to explain. I apologized. And I got nothing in response but for the initial intellectual scorn and accusation that I was “bullying” the big fish.

But for the sadness, both on a personal and interpersonal plane, and greater intellectual one, I might laugh instead of cry. But I cannot. I will not.

The times are severe. The moment is critical. Let us all rise above this type of impertinent interaction. You can still respect and admire people you occasionally have real and very hard differences with. And you can talk to them. Both sides will be all the better for that discourse.

Trying times, civil rights, equality of justice, and the American experiment itself, depend on all of us.

[If you didn’t know, that was not just Slow Clapton in the video but also the one and only Yvonne Elliman too. She is, and always has been, special.]

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.

The Curious Timing of Flynn Events and EO 13769

The crew here has been seasonally busy; there are graduations, returns from college, business and vacation travel, many other demands keeping us away from the keyboard. Bear with us.

That’s not to say we’re not stewing about — well, everything. EVERYTHING. Pick a subject and it’s probably on fire if it’s not smoldering. Touch it and it may burst into flame, kind of like James Comey’s job.

Yesterday’s Senate Judiciary Committee hearing with testimony from Sally Yates and James Clapper is one such topic utterly ablaze. How to even start with what went wrong — like Ted ‘Zodiac Killer’ Cruz and his sidling up to ‘But her emails!’. Or John Kennedy’s [string a bunch of expletives together and insert here] questions which did nothing to further any investigation.

I’m glad Sally Yates laid one across Cruz on the Immigration and Nationality Act of 1965 (INA); he deserved it for his particularly egregious mansplaining.

As you can see from their tweets, I know my fellow contributors have much they wish they could post about the hearing. I know after the closing gavel I had many more questions, not fewer.

Like timing. Timing seemed so inter-related on seemingly disparate issues.

What about the timing of Yates’ discussion with White House Counsel Don McGahn about Lt. Gen. Michael Flynn (ret.) and the timing of the Muslim travel ban, Executive Order 13769?

10-NOV-2017 — First warning about Flynn to Trump by Obama during post-election meeting.

18-NOV-2017 — Flynn named National Security Adviser by Trump.

25-DEC-2017 — Flynn allegedly sends text messages to Russian ambassador Sergei Kislyak including holiday greetings.

29-DEC-2017 — New sanctions announced by Obama, including eviction of 35 Russians (including family members) from two compounds.

29-DEC-2017 — Michael Flynn talks with Kislyak more than once on the same day.

30-DEC-2017 — Trump tweeted positively about Russian president Vladimir Putin’s refusal to retaliate against the new sanctions.

12-JAN-2017 — The Washington Post reported on the Flynn-Kislyak conversations; source cited is “a senior U.S. government official.”

15-JAN-2017 — VP Mike Pence says in a TV interview that he had talked with Flynn about contact with Kislyak:

JOHN DICKERSON: Let me ask you about it was reported by David Ignatius that the incoming national security advisor Michael Flynn was in touch with the Russian ambassador on the day the United States government announced sanctions for Russian interference with the election. Did that contact help with that Russian kind of moderate response to it? That there was no counter-reaction from Russia. Did the Flynn conversation help pave the way for that sort of more temperate Russian response?

MIKE PENCE: I talked to General Flynn about that conversation and actually was initiated on Christmas Day he had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.

JOHN DICKERSON: So did they ever have a conversation about sanctions ever on those days or any other day?

MIKE PENCE: They did not have a discussion contemporaneous with U.S. actions on—

JOHN DICKERSON: But what about after—

MIKE PENCE: —my conversation with General Flynn. Well, look. General Flynn has been in touch with diplomatic leaders, security leaders in some 30 countries. That’s exactly what the incoming national security advisor—

JOHN DICKERSON: Absolutely.

MIKE PENCE: —should do. But what I can confirm, having spoken to him about it, is that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.

JOHN DICKERSON: But that still leaves open the possibility that there might have been other conversations about the sanctions.

MIKE PENCE: I don’t believe there were more conversations.

20-JAN-2017 — Inauguration Day

21-JAN-2017 — Flynn has a follow-up call with Kislyak with regard to a future phone call between Trump and Putin.

23-JAN-2017 — Answers to questions during a press briefing with White House Press Secretary Sean Spicer didn’t match what Pence said in the 15-JAN interview. Spicer said, “There’s been one call. I talked to Gen. Flynn about this again last night. One call, talked about four subjects. … During the transition, I asked Gen. Flynn that – whether or not there were any other conversations beyond the ambassador and he said no.”(Come on, Spicey. Come the fuck on. Pure sloppiness; this isn’t the time for disinformation.)

24-JAN-2017 — Flynn is interviewed by the FBI and without a lawyer present. Yates informed McGahn about Flynn’s interview.

25-JAN-2017 — Yates reviews Flynn’s interview.

25-JAN-2017 — Draft of the travel ban EO leaked and published by WaPo

A provision about safe zones in Syria appears in this draft. It will not appear in the final EO.

26-JAN-2017 — Yates called McGahn that morning and asked for an in-person meeting about a sensitive topic she could not discuss on the phone. They met later that afternoon at McGahn’s office:

…We began our meeting telling him that there had been press accounts of statements from the vice president and others that related conduct that Mr. Flynn had been involved in that we knew not to be the truth.”

A senior member of the DOJ’s National Security Division accompanied Yates. Yates explained why Flynn was compromised and how his actions set Pence up to make unknowingly false statements to the public.

Spicer has said McGahn immediately notified and briefed Trump after meeting with Yates.

27-JAN-2017 — McGahn called Yates and asked for a second in-person meeting. Yates met him at his office. During their conversation, McGahn asked, “Why does it matter to DOJ if one White House official lies to another?” Yates re-reviews the FBI’s concerns shared the previous day. (I want to ask if McGahn got his JD out of a box of Cracker Jacks.) McGahn asked,

“And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct.” (Bold mine; who is ‘they’?)

Yates indicated she would work with FBI team and “get back with him on Monday morning.”

27-JAN-2017 — Travel ban EO signed and distributed. Rex Tillerson has not yet appeared before the Senate in a confirmation hearing. Defense Department’s James Mattis did not see the EO until morning of January 27; the EO is signed later in the day after Mattis was sworn in just before 3:00 p.m. Homeland Security Secretary John Kelly said he saw final EO draft not long before it was signed. Office of Legal Counsel issued a determination about the EO that day, “the proposed order is approved with respect to form and legality.” According to Yates’ SJC testimony the OLC’s determination goes to the form and not the content of the EO.

28-JAN-2017 — Federal Judge Ann Donnelly issued a stay late Saturday on deportations of persons with valid visas.

29-JAN-2017 — Though not yet confirmed as Secretary of State, Tillerson involved in cabinet-level meetings in pre-dawn hours regarding the travel ban.

30-JAN-2017 — Yates called McGahn that morning and told him he could go to FBI to look at “underlying evidence.” McGahn does not reply until the afternoon. Yates didn’t know whether McGahn looked at evidence because “because that was my last day with DOJ.” Yates ordered DOJ not to defend the EO in court

30-JAN-2017 — Yates is fired by the White House Monday night. White House statement said,

“The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States … This order was approved as to form and legality by the Department of Justice Office of Legal Counsel. … Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration. It is time to get serious about protecting our country. Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.”

08-FEB-2017 — WaPo reports Flynn denied twice discussing Russian sanctions with Kislyak.

09-FEB-2017 — Allegedly, Pence learned this day Flynn was not straight with him about his interactions with Kislyak. WaPo reported Flynn had discussed sanctions with Kislyak prior to the inauguration.

10-FEB-2017 — ABC News reported Flynn wasn’t certain he talked about the sanctions with Kislyak. Pence spoke with Flynn twice this day.

12-FEB-2017 — Stephen Miller dodges questions about Flynn’s status during Sunday morning TV interviews.

13-FEB-2017 — Flynn resigns, 18 days after Yates raised questions with the White House about his vulnerability to compromise.

Yates’ directive not to enforce the illegal travel ban EO is the prima facie reason why she was fired a week after the EO was pushed. But was it really the travel ban or the fact she had not only warned the White House about Flynn’s compromised status but the implication there might be more at stake?

The rushed timing of the EO — pushed out on a Friday night after business hours — and its inception generate more questions about the travel ban.

Who really wrote the travel ban? Some reports say the ‘major architects’ were Stephen Miller and Steve Bannon, neither of whom have law degrees or any experience in legal profession. Wikipedia entry for Bannon indicates he has a master’s in national security studies from Georgetown, but there’s no indication about the date this was conferred and it’s still not a law degree. Miller has a BA from Duke and a bunch of cred from writing conservative stuff, much of it with a white nationalist bent. (Yeah, stuff, because none of it provided adequate background to write effective executive orders.)

There were reports a week after the first travel ban EO was issued which indicated Congressional aides actually wrote the executive order — aides from Rep. Bob Goodlatte’s office.

Who were those aides?

Why Goodlatte’s aides? Was it because Goodlatte is the Chairman of the House Judiciary Committee?

Was it because of Goodlatte’s immigration bills circa 2013:

H.R. 2278, the “Strengthen and Fortify Enforcement Act” (The SAFE Act)
H.R. 1773, the “Agricultural Guestworker Act”
H.R. 1772, the “Legal Workforce Act”
H.R. 2131, the “SKILLS Visa Act”

In other words, did the aides who wrote those bills also assist with and/or write the EO?

If these aides helped the ‘major architects’, why did the travel ban EO look so clearly illegal?

Did these aides ever refer the ‘major architects’ to the Office of Legal Counsel for assistance with the EO’s wording?

Did media try to interview the aides in question? If not, why? If not permitted to do so, why?

Did those aides sign a non-disclosure agreement with the White House? (Why the hell are there NDAs for ANY government employee anyhow, especially those with security clearance of any level? This is OUR government, not the Trump holding company.) Did the aides limit their work to transition team support, or were they working on the EO post-inauguration? Did they take vacation time to do the work? Or were they performing work for the White House on Congress’ dime?

In spite of his iffy-sounding support for their work, did Goodlatte kick those aides in the ass for moonlighting while puncturing the separation between the Executive Branch and the Legislative Branch, making it appear (if tenuously) there was a degree of concurrence between the two branches?

Did Michael Flynn talk about the EO with these aides?

And was Flynn one of the ‘major architects’ of the travel ban EO along with Miller and Bannon as reported in some outlets?

Assuming Flynn was a co-architect/co-author of the EO, was the EO pushed through in a hurry to effect Flynn’s work before he might be terminated and/or prosecuted?

Was the execution of a travel ban EO part of a quid pro quo with a foreign entity?
Is this the reason why Trump reduced the role of chairman of the Joint Chiefs of Staff and the director of national intelligence to “an as-needed basis” on National Security Council — to reduce potential interference by seasoned security professionals who might stop the EO?

Was Miller’s role in the creation of the travel ban EO less about any experience he has but instead related to his former work during 113th Congress with the Gang of Eight on immigration reform? (We come full circle – see Goodlatte’s bills above.)

How might this travel ban EO — banning Muslims from specific countries — help a foreign entity?

Or was the Muslim travel ban EO simply launched early — before the administration even had a Secretary of State, before its content was reasonably defensible — to distract Yates and the DOJ and derail further investigation into Flynn’s compromised status?

I’m sure if I spend any more time re-reading the SJC’s hearing transcript I’ll come up with even more questions. But as events around Flynn and the travel ban EO unfolded as if knit together, I can’t help wondering if they really were of a piece.

How odd that the first thing the first SJC non-chair member did, before asking witnesses any questions, was hand out a timeline of events to all the participants.

And how convenient FBI Director James Comey screwed up his last testimony before congress enough that his firing this evening by the White House would look entirely justified — immediately removing him not only from the next FBI flight from Los Angeles to DC but from any further investigation into Michael Flynn.

What timing.

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.

The Tuesday Night Massacre

As you may have heard, President Trump has just fired FBI Director James Comey.

This is truly Nixonian Saturday Night Massacre level action.

Trump previously ran on, indeed got elected on, and likely only on, the scurrilous rogue comments of Jim Comey starting with the rogue July 5, 2016 press conference where Comey went off all rails on DOJ and PIN protocols. Here is the New York Times original report:

Mr. Comey’s dismissal was a stunning development for a president that benefited from the F.B.I. investigation of the Democratic nominee during the 2016 campaign. Separately, the F.B.I. also is investigating whether members of the Trump campaign colluded with Russia to influence the election.

The abrupt firing raised questions over whether Mr. Trump was trying to influence the Russia investigation. But he said he was following recommendations from the Justice Department, which criticized how Mr. Comey concluded the investigation into Mrs. Clinton.

Trump actually saluted Comey for this at one point. What a micro-moment self serving, not to mention narcissistic jerk.

If anybody in the world thought that that Trump is not as craven and against the Constitutional form of government we all were born and raised on, let that no longer be a question.

And if the media cannot get their heads out of their asses and realize the danger is NOT just to their First Amendment rights, but to the core of our republic and democracy, then they too should go the way of the dodo bird.

The foundations of this cowardly play were always there if you followed the ever changing voice and words of Donald Trump regarding the Clinton email issue and how the Department of Justice handled it.

If you thought this point, and/or Comey was the one only voice that could not be fired or silenced, you are sadly mistaken.

This blog has never, and I am being kind across my writings, Marcy’s and those of our departed friend Mary, been a friend of Jim Comey. He has long, and more presently, been an uneven and self serving voice mostly interested in preservation and enhancement of his own voice and position. Comey has been preternaturally successful at this.

That said, tonight I will be in Comey’s camp. I await what my friends at Lawfare and some others may have to say regarding the Tuesday Night Massacre.

Because this is a day that should live bright for a very long time.

People glibly talk about the “Resistance”. How naive. The battle is now, and has been joined in full by a cabal that makes Nixon look like a piker. The place is here. The time is now.

The temporal fact that it is Comey that tipped a scale of justice is immaterial. It has happened.

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.

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 Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 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 Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 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 Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 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 Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 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 Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.