Monday, October 31, 2016

Hillary's New Emails: A Solution for FBI Director Comey

Related: Richard W. Painter, "On Clinton Emails, Did the F.B.I. Director Abuse His Power?" New York Times, October 30, 2016 (possible violation of Hatch Act; author: University of Minnesota law professor, and former chief White House ethics lawyer, 2005 to 2007); Matt Apuzzo, Michael S. Schmidt and Adam Goldman, "Justice Department Obtains Warrant to Review Clinton Aide's Emails," New York Times, October 31, 2016, p. A1 (background); Editorial, "Can Anyone Control the FBI?" The Washington Post, November 5, 2016 ("In the days since [FBI Director Comey's announcement of the 'discovery of additional emails in the investigation of Hillary Clinton’s private server'], the FBI’s behavior has grown even more questionable. FBI sources have fanned new doubts about Ms. Clinton’s candidacy with inaccurate leaks about an investigation of the Clinton Foundation."); Ben Brody and Chris Strohm, "FBI Surprises With Files on Clinton ’01 Pardon of Marc Rich," Bloomberg, November 1, 2016 ("The FBI unexpectedly released 129 pages of documents related to an investigation closed without charges in 2005 into President Bill Clinton’s pardon of Marc Rich, who had been married to a wealthy Democratic donor. The file was posted online Monday but received little attention until the FBI noted it in a tweet on Tuesday afternoon. It comes as Director James Comey faces fire from Democrats and even some Republicans for releasing information about his renewed investigation into Hillary Clinton’s use of e-mail."); Matt Apuzzo, Michael S. Schmidt and Adam Goldman, "Emails Warrant No New Action Against Hillary Clinton, F.B.I. Director Says," New York Times, November 7, 2016, p. A1.

F.B.I. agents are all but certain that it [their review of newly-found Huma Abedin-Hillary Clinton emails] will not be completed by Election Day, and believe it will take at least several weeks."

Michael S. Schmidt and Matt Apuzzo, "10 Questions (and Answers) About New Email Trove," The New York Times, October 31, 2016, p. A15.
FBI Director James B. Comey has created a bit of a mess.

Here's how he might get out of it.

The FBI's investigation of Hillary Clinton's treatment of classified emails as Secretary of State was wrapped up in July. Comey announced that while her procedures were "extremely careless," she had neither the requisite criminal intention, nor was there any other reason, to proceed with her prosecution.

One of Hillary's closest aides, Huma Abedin, was married to Congressman Anthony Weiner. Weiner, formerly infamous for sending women lewd pictures of himself, is now being investigated by the FBI for doing so with a 15 year old girl. As a product of that investigation, it appears that in addition to whatever else he may have had on his computer, there were some of Huma Abedin's emails -- possibly including email exchanges between her and Hillary Clinton.

Department of Justice practice is to not reveal details of ongoing criminal investigations, and not to make announcements that might affect the outcome of a political campaign within 60 days of Election Day. Comey, having made a commitment to members of Congress to keep them informed of developments regarding Clinton's classified emails, informed them -- 11 days before the presidential Election Day -- of the possibility there might be more emails as a result of the Weiner investigation. Apparently Weiner's computer, containing some 600,000 emails, had been sometimes shared with his wife.

At the time, Comey's FBI didn't even have a search warrant authorizing their access to Huma Abedin's emails. (Now they have one.) Apparently he had not even seen any of the relevant emails, let alone made a judgment about what problems they did, or did not, raise.

Given the role throughout the 2015-16 presidential campaign of what Senator Bernie Sanders once famously described as "Hillary's damned emails," it could have been predicted that Comey's rekindling this fire, raising suspicions without a soup├žon of facts, would have the impact on the election's outcome that is already showing up. Talk about an "October surprise!"

What's worse, as the opening quote reports, the FBI is saying it's unlikely there will be any facts prior to Election Day.

So what's to be done? Don't insist, for now, that the excellent must be permitted to be the enemy of the good.

1. Do a quick search of the emails. Microsoft Outlook, and most other email programs, have a search feature. It's something I often use, and it's incredibly fast. If Google can search through billions of documents in less than a second, there's no reason why searching through 600,000 emails should take "several weeks."

2. How do Hillary and Abedin refer to each other in emails -- first name, full name, initials, title, code names? Do they always do so? Pull out every email that contains those identifiers -- whether in the text, to, from, or subject fields.

3. Then search those emails for words that might identify a classified email -- secret, top secret, confidential, C, eyes only, classified. Compare those with the classified emails of Secretary Clinton that the FBI has already investigated and remove the duplicates.

4. Print out and divide the remainder, if any, among however many FBI agents are necessary to get those emails read and evaluated within 24 hours (preferably agents formerly involved in the investigation of the Secretary's emails).

5. If nothing is discovered that significantly adds or subtracts from what was known in July, have Director Comey issue a statement something like the following:
I apologize to the American public, the Congress, and the presidential campaigns for any confusion that I may have created by my recent report to Congressional leaders regarding what we thought might be additional emails relevant to our previous investigation of former Secretary of State Clinton. My prior commitments to Congress required that I make some report as soon as I became aware of this development. It was certainly not my intention, nor that of the Bureau, to affect the election in any way.

In that spirit, I wish to announce that our preliminary evaluation of the newly discovered emails, some of which were duplicates, indicates that they will add nothing new to what we knew in July.

While we will continue to evaluate them more closely, I wanted to make clear that at this time it does not appear that we will be altering the advice we provided the Department of Justice at that time.
Of course, from the Clinton campaign's perspective this risks that disclosing what the initial search reveals might be much more damaging than what's now in the media -- and Trump's speeches.

And then there's always Comey's option to simply resign -- either explaining, or not, whatever pressures may have been applied to him that caused him to do this.

# # #

This essay was published by OpEdNews on November 1, 2016. It stimulated the following exchange of comments on that site:

Comment by Rob Kall: Good ideas, all of them, including Comey resigning.

Submitted on Tuesday, Nov 1, 2016 at 12:33:53 AM

Reply to Rob Kall: Email Reply from Nicholas Johnson: Thanks, Rob; appreciate it.

There's an old saying: "Get a reputation as an early riser and you can sleep all day."

I think that may have played a role in what I wrote: his reputation for courage in standing up to the surveillance community (his rush to Ashcroft's hospital bedside; although he also asked Apple for a back door), his quality education and law school teaching, his range of experience -- up to and including essentially running the Department of Justice as Deputy Attorney General. I, like so many others, was willing to give him the benefit of the doubt regarding his decision to violate two policies of the Justice Department (don't talk about ongoing investigations; don't do anything that might impact an election within 60 days of Election Day) -- "there must have been a good reason for him to do that."

Now I'm not so sure. I don't have enough facts at this point to come to a final judgment about any of this. But sadly, this "morning after the night before," I at least have to hold in suspension the possibility that, whether pushed into it by others or coming to it all on his own, at least a part of his motivation was to contribute to a diminishing of Clinton's margin of victory, or her defeat.

Meanwhile, and however that comes out, I do still think the earlier the FBI can follow the quick steps I outlined in the op ed the better.

Submitted on Tuesday, Nov 1, 2016 at 7:40:04 AM

Comment by Nicholas Johnson: With regard to Director Comey's possible resignation: this is, of course, a wholly separate issue. The more urgent matter is what can be done to minimize the harm he may have done to a presidential election. His departure would do virtually nothing to address that concern.

However, here are some brief notes on this "separate issue." FBI Directors are now appointed for ten-year terms. Appointed in 2003, Comey's term won't expire until 2023. He can, of course, resign at any time. And the ten-year terms are not, in effect, "ten years of a life appointment." FBI Directors can be, and have been, fired by presidents. President Obama has, so far, continued to express confidence in Director Comey.

Submitted on Tuesday, Nov 1, 2016 at 10:14:17 AM

Shad Williams Reply to Nicholas Johnson: Did not know that about the 10 year term. I will need to look up what is the term limit of the CIA director?

Submitted on Tuesday, Nov 1, 2016 at 12:10:16 PM

Reply to Shad Williams Email Reply from Nicholas Johnson: Shad: Thanks for the comment. To the best of my recollection the CIA Director is, like most other presidential appointees, someone who serves, as we say, "at the pleasure of the president." Otherwise put, she or he can be fired at any time. Indeed, some administrations have had the practice of getting a "resignation" from everyone they appoint -- that is, an undated letter of resignation to the president that can be dated and then used at any time.

Submitted on Tuesday, Nov 1, 2016 at 3:20:14 PM

Comment by BFalcon: Correct me if I am wrong.

Comey did not disclose anything about the investigation to public.

He wrote the letter to Congressional Committee as addendum to his testimony which, I presume, was his obligation.

Do you believe, if the search that you suggested finds something that could be relevant and incriminating, that they should, two or three days before elections, state that to public?

Submitted on Tuesday, Nov 1, 2016 at 11:57:35 PM

Reply to BFalcon Email Reply from Nicholas Johnson: Correct me if I am wrong.

Response: Thank you, BFalcon, for this provocative comment.

Comey did not disclose anything about the investigation to public.

Response: He disclosed a great deal about the investigation -- which has had an effect, whether intended or not, on voters' preferences. You are of course correct that he did not disclose anything about the results of the investigation, because according to him it not only had not ended it had not even begun until they got the necessary search warrant. He did not need to reveal the results of a yet-to-be-begun investigation. All he needed to do to impact Hillary's chances was to say that there was one, that in effect the investigation closed in July was reopened 11 days before the election.

He wrote the letter to Congressional Committee as addendum to his testimony which, I presume, was his obligation.

Response: He tried to suggest that he, as well as you, presumed that was his obligation. Obviously, since I am not privy to his communications with the Republican Congressional leadership, I cannot know what his "obligation" was. Some have said it is inappropriate to include members of Congress in the details of an ongoing investigation. Be that as it may, it would seem sufficient to me to both satisfy any obligation he might have while also complying with both Department of Justice procedures: no comments about ongoing investigations, and no comments within 60 days of an election that might affect its outcome. Any yet-to-be-discovered revelations that might or might not come out of Weiner's computer would not need to be reported until there is something to report; certainly, the fact the FBI was going to look there to see if there was anything worth pursuing is not of sufficient importance to warrant violating Department of Justice standards. The only thing the early statement accomplished was to raise suspicions and innuendo regarding a presidential candidate.

Do you believe, if the search that you suggested finds something that could be relevant and incriminating, that they should, two or three days before elections, state that to public?

Response: That is the result of what I am proposing. Comey should never have made the statement he did. Having done so he can't take it back. The damage has been done. Both campaigns and other leaders of both parties have urged that more facts be revealed. Hillary's insistence this be done suggests to me that she thinks there's little to nothing there. If it turns out there is a smoking gun, or arsenal, there then -- having gone this far -- the members of Congress he wrote, and the public, are probably entitled to know that before the election, rather than having to go into the voting booth with nothing but suspicions.

Submitted on Wednesday, Nov 2, 2016 at 2:20:02 PM

BFalcon Reply to Nicholas Johnson: Again, I am not sure from what you say that Comey disclosed anything to the public, did he?

If somebody is charged with investigation of a bunch of mail and testifies under oath that all the mail was investigated, it is my opinion that the person, when he learns that there is some more mail to be completed, should amend the testimony simply disclosing this fact.

I disagree with you that revealing e.g. that "there is possibly incriminating information" just before the elections would be right. The voters should make their choice without further "information" (necessarily incomplete and not final).

Submitted on Wednesday, Nov 2, 2016 at 8:50:07 PM

Reply to BFalcon Email Reply from Nicholas Johnson: BFalcon: Thanks for the follow-up. I disagree with you only in the sense that I have come to different conclusions -- as expressed in an earlier comment.

I do not disagree in the sense that I think you are "wrong." I think yours are rational, easily supported -- and, indeed, widely shared (including by Comey and Republican congressional leaders) -- conclusions (regarding both what Comey was "obliged" to do in the past, and in the future with pre-Election Day discoveries). -- Nick

Submitted on Thursday, Nov 3, 2016 at 10:20:02 AM

Comment by Nicholas Johnson: I am finding it increasingly difficult to suspend judgment regarding FBI Director Comey's and some agents' deliberate efforts to adversely affect Clinton's chances in next Tuesday's election. See this morning's Washington Post: Editorial, "Can Anyone Control the FBI?" The Washington Post, November 5, 2016 ("In the days since [FBI Director Comey's announcement of the 'discovery of additional emails in the investigation of Hillary Clinton's private server'], the FBI's behavior has grown even more questionable. FBI sources have fanned new doubts about Ms. Clinton's candidacy with inaccurate leaks about an investigation of the Clinton Foundation."), and Ben Brody and Chris Strohm, "FBI Surprises With Files on Clinton '01 Pardon of Marc Rich," Bloomberg, November 1, 2016 ("The FBI unexpectedly released 129 pages of documents related to an investigation closed without charges in 2005 into President Bill Clinton's pardon of Marc Rich, who had been married to a wealthy Democratic donor. The file was posted online Monday but received little attention until the FBI noted it in a tweet on Tuesday afternoon. It comes as Director James Comey faces fire from Democrats and even some Republicans for releasing information about his renewed investigation into Hillary Clinton's use of e-mail.")

Submitted on Saturday, Nov 5, 2016 at 11:07:57 AM

Comment by Nicholas Johnson: I suffer no illusions that there is anyone in Washington, let alone the Director of the FBI, who would know or care what I am thinking and writing about, or would be influenced by it if they did know. But it's always somewhat satisfying, after writing a proposed course of action, that others -- with more knowledge of the situation than I possess -- subsequently come to the same, or similar conclusions. So it is with my OpEdNews piece, above. In this case, what I proposed (Comey shouldn't have opened the issue, but having done so should now put all the agents necessary to going through the additional emails before election day, and then announce the results) is apparently what was done. (It is, however, not clear whether or not they used the specific steps I suggested for speeding the process, though it's reasonable to assume they did.) See Matt Apuzzo, Michael S. Schmidt and Adam Goldman, "Emails Warrant No New Action Against Hillary Clinton, F.B.I. Director Says," New York Times, November 7, 2016, p. A1.

Submitted on Monday, Nov 7, 2016 at 4:16:54 PM

# # #

No comments: