FBI Director James Comey’s letter was calibrated to feed anti-Clinton conspiracy theories. (More)

“There is significant risk of being misunderstood”

The emerging Beltway consensus is that DOJ rules required Comey to inform House committee chairs that the FBI had found new emails that may relate to the investigation of Hillary Clinton’s private email server:

The truth is Comey didn’t have a choice. Because the new information followed his sworn testimony about the case, Comey was obligated by Department of Justice rules to keep the relevant committees apprised.

Under oath Comey had stated that the bureau had completed its review. Once he learned that there were new emails that required examination, Comey had to notify Congress that he had to amend his testimony because it was no longer true.

Comey said as much in an open letter to FBI employees yesterday:

This morning I sent a letter to Congress in connection with the Secretary Clinton email investigation. Yesterday, the investigative team briefed me on their recommendation with respect to seeking access to emails that have recently been found in an unrelated case. Because those emails appear to be pertinent to our investigation, I agreed that we should take appropriate steps to obtain and review them.

Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed. I also think it would be misleading to the American people were we not to supplement the record. At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression. In trying to strike that balance, in a brief letter and in the middle of an election season, there is significant risk of being misunderstood, but I wanted you to hear directly from me about it.

Maybe it’s just me, but “significant risk of being misunderstood” may qualify for Understatement of the Year.

“He inevitably creates a cloud of suspicion over Ms. Clinton that, if the case’s history is any guide, is unwarranted”

The problem is not that Comey wrote a letter. Legally, he may have had no choice. Nor is the problem that Comey wrote only to House Republican committee chairs. The Republican committee chairs’ addresses were on the front page of the letter, and the Democratic ranking members’ addresses were on the second and third pages. Because most news accounts displayed only the first page, many of us – including the Clinton campaign – mistakenly believed Comey neglected to inform House Democrats.

Instead, the problem is that Comey’s letter included just enough information to fuel a vast range of speculation and conspiracy theories. Hence this morning’s Washington Post op-ed:

Political tension is running high in the United States, extraordinarily so, we’d say. And so it behooves everyone in a position of official responsibility to do everything he or she possibly can to help maintain stability – while avoiding all avoidable provocations – until the bitter competition between Hillary Clinton and Donald Trump runs its ugly course on Nov. 8.

That is the context for Friday’s announcement by James B. Comey, director of the Federal Bureau of Investigation, that his agency is again looking into Ms. Clinton’s private email server in light of newly discovered emails “that appear to be pertinent to the investigation.” Mr. Comey may have had good reason to inform Republican committee chairmen in Congress of the review, but his timing was nevertheless unfortunate, given its potential to affect a democratic process in which millions of people are already voting.

After the de rigeur criticism of Clinton for using a private email server while Secretary of State, the Post continues:

Mr. Comey found himself in a bind when his investigators turned up additional, previously unexamined Clinton emails, apparently on devices belonging to top aide Huma Abedin and her husband, Anthony Weiner, seized during an FBI probe of the latter’s alleged sexual misconduct with a minor. (As if this could not get any more bizarre.) If Mr. Comey failed to tell Congress before Nov. 8 about his decision to review them, he would be accused – again – of a politically motivated coverup. By revealing it, he inevitably creates a cloud of suspicion over Ms. Clinton that, if the case’s history is any guide, is unwarranted. Hence Clinton campaign chairman John Podesta’s not unreasonable demand that Mr. Comey “immediately provide the full details of what he is now examining.”

That phrase “Clinton emails” in the first sentence is editorial speculation. Other sources are reporting that these are emails to and from Huma Abedin – not from Clinton’s private server – found on a laptop Abedin shared with her soon-to-be ex-husband Anthony Weiner:

According to multiple reports, it turned out that the new emails at issue here weren’t from Clinton’s server, that they didn’t appear to have been deliberately withheld from the FBI, and that the separate investigation that turned up the emails wasn’t related to the Clintons themselves.

Instead, the emails came from a device owned by former Congress member Anthony Weiner and his wife, top Clinton aide Huma Abedin, as the New York Times’ Adam Goldman and Alan Rappeport first reported.

The FBI is investigating Weiner over reports that he sexted with an underage girl. And according to NBC’s Pete Williams, the bureau found that on a laptop owned by Weiner, there were also “some emails” between Abedin and Clinton.

Newsweek‘s Kurt Eichenwald reports that the emails in question were not written by Clinton, or to her. Instead, he reports, Abedin used her laptop to print emails for Clinton to review.

“The FBI is thus able to put words into a witness or suspect’s mouth and coerce him to adopt the FBI’s version as his own”

That might or might not match Abedin’s or Clinton’s statements to the FBI, if only because we rarely repeat ourselves word-for-word. And that’s a problem because the FBI don’t make audio or video recordings of interviews, relying instead on written summaries (Form 302s) that the witness is not allowed to read or correct at the time:

But the FBI leaves out the even more potent criticism of its practice – that such interview tactics seem virtually geared toward establishing as fact what the FBI wanted to hear from the witness. […] The FBI is thus able to put words into a witness or suspect’s mouth and coerce him to adopt the FBI’s version as his own. The FBI thus establishes the official version of what a witness said, and the pressure on the witness to adhere to the 302 version is enormous. Any deviation, after all, raises the question: “Were you lying during your FBI interview, or are you lying now?”

Combine that with Title 18, Section 1000 of the U.S. Code, and the FBI practice of using uncorroborated Form 302 summaries creates a frighteningly powerful tool for prosecutorial harassment:

Section 1001 – the so-called federal false statements law – provides that it is a felony, punishable by up to five years in prison, to make a material misstatement to any member of the federal government. As such, one of the more ubiquitous counts found in federal indictments is that the defendant, when questioned by an FBI agent, lied. We also know that it is illegal for a person to lie under oath; typically such testimony occurs before a grand jury or court (or congressional committee); we call that perjury, punishable by a separate federal statute.

So what happens when the sole arbiter of what a witness says in an FBI interview is the 302 Report written by an FBI agent? If that witness should later be compelled to testify at a grand jury proceeding (leading to an indictment of the target of the investigation) or at the trial itself, he is under tremendous pressure to testify consistently with what the 302 report claims he told the agents when interviewed. Should a witness give testimony that is in conflict with the 302 report, he opens himself up to a felony conviction – either he had lied to the FBI in his initial interview, or he is lying to the grand jury or the court (or the congressional committee) in his testimony.

This is, by the way, why Judicial Watch demanded Clinton answer additional questions under oath while House Republicans subpoenaed the FBI reports of her testimony. They’re looking for any hint of difference, however trivial, between her responses to Judicial Watch and the FBI’s summaries of her interview – and Clinton’s opponents will almost certainly add these newly-discovered emails to and from Huma Abedin to that mix – hoping to slap Clinton with a “false statements” charge under Title 28, Section 1001.

“Because right now, your guess is as good as mine, and I don’t think that’s good enough”

Clinton fired back at Comey last night:

Clinton herself echoed [John] Podesta’s call for more disclosure in a delivered statement Friday night – and also appeared somewhat exasperated by the lack of detail.

“We’ve heard these rumors, and we don’t know what to believe, and I’m sure there will be even more rumors. That’s why it is incumbent upon the FBI to tell us what they are talking about,” Clinton, said, drawing out her syllables for emphasis. “Because right now, your guess is as good as mine, and I don’t think that’s good enough.”

Clinton said these details should be released “without any delay.” 

“Even Director Comey said that this information may not be significant,” she said, “so let’s get it out.”

Small surprise that Comey is taking criticism from former prosecutors and other DOJ officials:

Matthew Miller, a former Justice Department spokesman in the Obama administration, said the FBI rarely releases information about ongoing criminal investigations and does not release information about federal investigations this close to political elections.

“Comey’s behavior in this case from the beginning has been designed to protect his reputation for independence no matter the consequences to the public, to people under investigation or to the FBI’s own integrity,” Miller said.
[…]
Nick Ackerman, a former federal prosecutor in New York and an assistant special Watergate prosecutor, said Comey “had no business writing to Congress about supposed new emails that neither he nor anyone in the FBI has ever reviewed.”

He added: “It is not the function of the FBI director to be making public pronouncements about an investigation, never mind about an investigation based on evidence that he acknowledges may not be significant.”

“What we’re doing is creating crimes”

These probes have long since moved past investigating alleged crimes – the proper duty of law enforcement – to investigating Hillary Clinton in search of a crime. That’s a dangerous development, but not a new one. Hollywood director John McTiernan detailed it in his 2009 documentary The Political Prosecutions of Karl Rove:

“A crime occurs,” former Missouri county legislator Carl Bussey explains in the film. “You investigate that crime. You determine who committed that crime. We have now broadened the criminal justice system to be: we received information about a person, we investigate the person, and then we find out what crimes they committed. So in essence, what we’re doing is creating crimes.”

Bussey, like so many others in the film, was charged with making false statements. And ultimately, so was McTiernan … based on an FBI 302 summary of a late-night phone call in 2006 where an FBI agent may, or may not, have asked McTiernan about hiring a private investigator in 2000. McTiernan was released from prison in 2014 and filed a complaint with the Department of Justice Office of Professional Responsibility to have his conviction overturned and his record cleared.

That’s what Hillary Clinton has to look forward to, if House Republicans, anti-Clinton groups like Judicial Watch, and apparently some FBI agents get their way. And with his artfully vague letter yesterday, Comey compounded that clusterf–k.

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Photo Credit: Francis Rivera

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Good day and good nuts