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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.

“Glitch!” FBI’s Three Leaked Claims about the Delay in Obtaining a Warrant for Huma’s Email

The other day, the WSJ had a story that included this detail about the gap between the time FBI realized there were Huma Abedin emails on a computer seized in the Anthony Weiner investigation and when they got a warrant to read them.

The FBI had searched the computer while looking for child pornography, people familiar with the matter said, but the warrant they used didn’t give them authority to search for matters related to Mrs. Clinton’s email arrangement at the State Department. Mr. Weiner has denied sending explicit or indecent messages to the minor.

In their initial review of the laptop, the metadata showed many messages, apparently in the thousands, that were either sent to or from the private email server at Mrs. Clinton’s home that had been the focus of so much investigative effort for the FBI. 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.

At a meeting early last week of senior Justice Department and FBI officials, a member of the department’s senior national-security staff asked for an update on the Weiner laptop, the people familiar with the matter said. At that point, officials realized that no one had acted to obtain a warrant, these people said. [my emphasis]

While I and actual experts on Fourth Amendment law had already started asking about the legality of finding emails implicating Huma while searching a computer seized for an investigation into underage sexting, the revelation that FBI somehow forgot to get a warrant for two to three weeks raised even bigger questions.

In the last day, both the NYT and the WaPo have provided different explanations about it (though they use it to explain the time lapse between discovering the emails and informing Congress, not getting a warrant). The NYT reported that the FBI had to write custom software to be able to read Weiner’s emails without at the same time reading Huma’s.

The F.B.I. has not explained why three weeks passed between the time the bureau obtained the laptop and when Mr. Comey told Congress about it. After an F.B.I. computer analysis response team in New York copied the laptop’s hard drive, bureau employees began examining the information on the computer.

That is when agents realized that Ms. Abedin’s emails were on the laptop, but they did not have the authority to view them without a warrant.

The F.B.I. needed custom software to allow them to read Mr. Weiner’s emails without viewing hers. But building that program took two weeks, causing the delay. The program ultimately showed that there were thousands of Ms. Abedin’s emails on the laptop.

Mr. Comey was not briefed in full on a plan to read the emails until last Thursday, Oct. 27. He informed Congress the next day. F.B.I. lawyers then had to obtain a second warrant to look at Ms. Abedin’s emails, which happened last weekend. [my emphasis]

WaPo reported that “glitches” delayed the FBI in separating Weiner’s emails from Huma’s.

Although investigators had discovered the emails in early October, software glitches prevented them from separating Abedin-related emails from the hundreds of thousands of messages recovered until Oct. 19 or 20, according to people familiar with the case.

While Comey had been quickly alerted by his deputy to the original find, he took no further action, allowing agents in the field to get a better idea of the scope of the material. Agents could use digital clues to decipher where emails had originated and been sent but were legally barred from reading the emails without a search warrant because they had been obtained in a separate investigation.

When agents formally recommended on Oct. 27 that the warrant be sought, Comey agreed and then felt obligated to inform Congress — which he did with his letter the following day. Comey’s only reference in the letter to the timing of his involvement was that he had been briefed the previous day. [my emphasis]

Note NYT says Comey was not briefing on the plan to read the emails until October 27. WaPo says that he was in the loop before then, then consulted again on obtaining a warrant on October 27. Those aren’t necessarily conflicting stories — I guess it depends on what “a plan to read the emails” means — but I find the distinction curious.

The real batshit thing, though, is the claim that the nation’s premiere law enforcement agency didn’t have a way to sift out Weiner’s emails from Huma’s, something even garden variety cops have to do every day. Equally batshit is the claim they created a new piece of software to do so. Glitches? That’s a word national security people use as a cover story.

There is no good explanation for why the FBI didn’t have the technical means to do this. There is even less of an explanation for why, in a case involving such high profile people, the FBI would be struggling with “glitches.”

Which leaves us where we were with WSJ’s story: The FBI was fiddling with these emails for 3 weeks before “officials realized that no one had acted to obtain a warrant.” And yet somehow, the FBI was able to show probable cause that these emails had some tie to a crime.

I do hope this is something Patrick Leahy insists on getting answers on, because the story stinks.

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.