Tuesday, December 27, 2016

About the Clinton emails - Comey, the FBI, the Justice Dept, and the AG

[The backstory on how the FBI inadvertently contributed (maybe) to making Trump the President.

The ostensible villain is James Comey, FBI Director, who two weeks before the elections, announced publicly that the FBI was re-opening investigations into Clinton's private email server issue. (Quick recap: Clinton, when she was Sec of State used a private email server for convenience. However, this was against protocol, especially for confidential and secret emails. However, while what she did was against standard practice, no criminal intent or act was discovered, or at least none legally actionable or prosecutable.) He did this to be transparent and also in the vacuum of authority created by the Justice Dept's AG, Loretta Lynch who as a political appointee, appointed by Bill Clinton, felt that it would look bad if she stopped Comey from making that announcement. Complicated story. ]

National Security

The attorney general could have ordered FBI Director James Comey not to send his bombshell letter on Clinton emails. Here’s why she didn’t.

By Sari Horwitz
December 22 2016

Twelve days before the presidential election, FBI Director James B. Comey dispatched a senior aide to deliver a startling message to the Justice Department. Comey wanted to send a letter to Congress alerting them that his agents had discovered more emails potentially relevant to the investigation into Hillary Clinton’s private email server.

The official in Deputy Attorney General Sally Q. Yates’s office who received the FBI call immediately understood the explosive potential of Comey’s message, coming so close to the presidential election. Federal attorneys scrambled into offices on the fourth and fifth floors of Justice Department headquarters, where they huddled to figure out how to stop what they viewed as a ticking time bomb.

“It was DEFCON 1,” said an official familiar with the deliberations. “We were in­cred­ibly concerned this could have an impact on the election.”

Aides at Justice and the FBI — located in offices directly across the street from each other on Pennsylvania Avenue — began exchanging increasingly tense and heated phone calls, nearly a half-dozen throughout the afternoon and evening of Oct. 27 and into the next morning.

Justice officials laid out a number of arguments against releasing the letter. It violated two long-standing policies. Never publicly discuss an ongoing investigation. And never take an action affecting a candidate for office close to Election Day. Besides, they said, the FBI did not know yet what was in the emails or if they had anything to do with the Clinton case.

Remarkably, the country’s two top law enforcement officials never spoke. As Comey’s boss, Attorney General Loretta E. Lynch could have given the FBI director an order to not send the letter. But Lynch and her advisers feared that Comey would not listen. He seemed to feel strongly about updating Congress on his sworn testimony about the Clinton investigation. Instead, they tried to relay their concerns through the Justice official whom the FBI had called.

Their efforts failed. Within 24 hours of the first FBI call, Comey’s letter was out.

Nearly two months later, the effect of that letter on the 2016 race is still being debated. Clinton told donors recently that she blamed a pair of “unprecedented” events for her loss. One was the Russian hacking of Democratic Party officials. The other was Comey’s letter. Corey Lewandowski, President-elect Donald Trump’s former campaign manager, said in a speech at Oxford University shortly after the election that what Comey did was “amazing” and gave Trump the “spring in his step” he needed to win the election.

An examination of how a single letter from the FBI became a political bombshell reveals that it was the result of two law enforcement leaders failing over months to navigate the unusually ugly politics of 2016. Having a presidential candidate under active criminal investigation was extraordinary. But Comey and Lynch repeatedly underestimated how much their actions would reverberate in a closely contested presidential race.

Lynch’s meeting in June with Bill Clinton on a tarmac in Phoenix led to a crisis in leadership at the department over how to handle the Clinton email investigation. Rather than formally recuse herself, Lynch left ambiguous who would be making final decisions on issues regarding Hillary Clinton.

Into that vacuum stepped Comey, an FBI director who prides himself on having a finely tuned moral compass that allows him to rise above politics. Weeks before the letter, Comey had advised against the Obama administration’s public statement admonishing Russia for the Democratic Party hacks, arguing it would make the administration appear partisan too close to the election. But to him, the Clinton email investigation was different.

Battered by Republican lawmakers during a hearing that summer, Comey feared he would come under further attack if word leaked about the Clinton case picking up again. He was surprised by the intensity of the reaction to his letter, according to people familiar with Comey’s thinking. His reputation fell further after the FBI acknowledged three days before the election that the emails amounted to nothing.

Comey has taken the harsher beating in public for his decision, but some political observers and former Justice officials say that Lynch deserves at least as much scrutiny.

Jack Goldsmith, a Harvard Law School professor and senior fellow at Stanford University’s Hoover Institution, said that the controversy shines a light on Lynch’s compromised position and failed leadership as attorney general.

“If she thought [the letter] violated department policy or was otherwise a bad idea, she could have ordered him not to send the letter,” said Goldsmith, who noted that soon after the letter was released, Justice officials proceeded to criticize Comey when Lynch had the power all along to stop him. “It was an astonishing failure of leadership and eschewal of responsibility, especially if Lynch really thought what Comey did was wrong.”

A former senior FBI official who worked closely with Comey for several years said that Comey’s sense of obligation to Congress was the key factor driving his decision. He had testified under oath months earlier that the Clinton investigation was closed. But another factor that day was that Lynch’s credibility had been compromised months earlier in Phoenix.

“Anybody who’s ever worked with Jim Comey knows that he has an independent spirit,” the official said. “But he still very much believes in the chain of command. If he has a boss who’s asking him to do something that’s in the scope of the law and reason, he’s going to follow it. He would have followed protocol. Had the issue with Loretta Lynch on the tarmac not happened, things would be different. People forget that.”

The tarmac

It was a sweltering June day in Phoenix, and Lynch’s plane had just landed at the airport. She and four staffers had flown west for a series of meetings with local police officers.

The staffers walked down the plane stairs first and stepped into a van on the tarmac. The plan was for Lynch — and her husband, who was also on the trip — to follow quickly afterward and step into another vehicle. As the staffers waited for about five minutes in the van, checking their smartphones, they suddenly saw a man with silvery white hair approaching the plane.

At first, the staffers could not tell who it was. But then, as the man got close to the airplane steps, one of the staffers said with surprise, “Is that Bill Clinton?”

It was. Clinton had just wrapped up a fundraiser for his wife and arrived at the tarmac to fly out of Phoenix. His Secret Service detail tipped him off that Lynch was there, too, and he sent word that he wanted to say hello.

Lynch felt she could not say no to the former president, who 17 years ago promoted her to U.S. attorney. Once inside the plane, Lynch said that she, Clinton and her husband discussed their travels, Clinton’s grandchildren, golfing and Brexit.

But as the visit dragged on, Lynch became anxious. The Justice Department was still conducting an investigation into Hillary Clinton’s email practices during her tenure as secretary of state. Lynch had just wanted to say a quick hello to Bill Clinton, and now they had been talking for close to half an hour.

Her aides outside were also concerned. One of them got out of the van and walked back onto the plane to tell Lynch that they needed to get moving.

Lynch would later insist that she and Clinton did not discuss the investigation into his wife.

But the optics were immediately damaging. Republican legislators raised questions about whether Lynch and the Justice Department’s investigation had been compromised.

Four days later on July 1, Lynch acknowledged in an interview with Washington Post editorial writer Jonathan Capehart that her meeting with the former president “cast a shadow over how [the Clinton] case may be perceived” and she “certainly would not do it again.”

Then, in an effort to allay any concerns, Lynch said she would “fully accept” the recommendations of career prosecutors and the FBI on how to proceed with the Clinton case.

Capehart pressed her to explain. Did that mean she would review their recommendation and make her own judgment? No, she said. He asked further. Did that mean she was recusing herself from the case? Lynch did not give a clear answer.

Those close to Lynch said that she planned all along — before the tarmac incident even — to accept the recommendations of the FBI and career prosecutors. To this day, aides say she does not see any connection between her meeting with Bill Clinton and what Comey would do next.

‘Extremely careless’

Four days after Lynch’s remarks, Comey, known for his independent streak, called reporters to FBI headquarters on Pennsylvania Avenue to announce the conclusion of the year-long Clinton investigation. It was a stunning event both because of what he said and how he said it.

Usually, in a high-profile case, the FBI makes a recommendation to the Justice Department, and then the attorney general — not the FBI director — announces in a news conference the final decision on any charges. It is rare for officials to hold a briefing when prosecutors decline to pursue a case.

In this case, Lynch and other Justice officials did not even find out that Comey was holding a briefing until shortly before he began speaking.

At the news conference, Comey stood wedged between two FBI flags as he read a prepared speech to reporters.

“I have not coordinated this statement or reviewed it in any way with the Department of Justice or any other part of the government,” Comey said. “They do not know what I’m about to say.”

He proceeded to sharply criticize Hillary Clinton for her use of a private email server while she was secretary of state, calling her behavior “extremely careless.” But he said that the bureau would not recommend criminal charges against her.

“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” Comey said.

Justice officials were shocked. They had never seen an FBI director deliver such remarks.

“He was out there on his own,” said a former high-ranking Justice Department official. “That was unheard of, unprecedented. Lynch did not recuse herself but also was not fully participating, which left a vacuum that the FBI director decided to fill.”

Comey, though, felt that given the highly politicized nature of the case, the FBI needed to practice radical transparency for the public to trust the government’s findings on the case.

“I think the confidence of the American people in the FBI is a precious thing, and I want them to understand that we did this investigation in a competent, honest and independent way,” Comey said in a three-paragraph internal memo sent to all FBI employees shortly before he spoke. “Folks outside the FBI may disagree about the result, but I don’t want there to be any doubt that this was done in an apolitical and professional way and that our conclusion is honestly held, carefully considered, and ours alone.”

Two weeks before the Republican National Convention, Comey’s announcement ignited a blast of criticism from Republicans and Trump supporters who said the investigation’s outcome had been influenced by politics. “The system is rigged,” Trump tweeted.

Two days later, Republicans on the House Oversight and Government Reform Committee grilled Comey for five hours.

In September, he was brought before the House Judiciary Committee.

“My first question is this, would you reopen the Clinton investigation if you discovered new information that was both relevant and substantial?” Rep. Lamar Smith (R-Tex.) asked Comey during the hearing.

“It’s hard for me to answer in the abstract,” Comey replied. “We would certainly look at any new and substantial information.”

‘Case reopened’

On Oct. 3, FBI agents seized a computer and other electronic devices from Anthony Weiner, the disgraced former congressman who was now being accused of having a sexual relationship online with a 15-year-old girl.

In their search for evidence, the agents stumbled upon something else: 650,000 emails stretching over several years with thousands possibly tied to Clinton’s private server and associated with Clinton and Weiner’s estranged wife, Huma Abedin, a senior aide to the Democratic presidential nominee.

Within days, Comey was notified of the discovery. At that point, the agents and their supervisors did not know how many of the emails could be relevant, if they contained classified information or were duplicates of evidence that had already been investigated. They also could not peer into the contents of any Abedin or Clinton emails because they only had a search warrant for Weiner-related evidence.

The agents were directed by FBI officials to do more work and report back to Washington when they had a better idea of the scope of the material on the computer and how much might be linked to Clinton.

Two more weeks went by as the bureau brought in their computer forensic experts to further examine what appeared to be on the computer, but not look at the contents of the emails.

Finally on Oct. 27, three weeks after the emails had first been discovered, agents made a presentation to Comey in his office. They still had no idea what was in the emails, only that there were thousands associated with Abedin, including some correspondence with Clinton. To learn if there was classified information on the emails, they would need a search warrant. Comey agreed it was time.

He also began wrestling with whether to notify lawmakers. He worried that getting a warrant would alert more people to the probe, increasing the chances of a leak to the media. He feared a huge outcry if anyone learned the FBI was again investigating Clinton’s emails without informing Congress. Comey would later privately tell lawmakers that he was “stuck in a really bad place.”

FBI officials contacted career prosecutors who had worked the Clinton email case to ask what they thought about sending the letter. Don’t do it, they advised.

Meanwhile, Justice officials decided that neither Lynch nor her deputy, Yates, should order Comey to not send the letter. They were not sure how Comey would respond to such a command. And they too feared leaks. Lynch and her advisers were nervous about how it would look if people found out that she, a Democratic presidential appointee, told Comey to keep secret from Congress a new development in the Clinton investigation.

Instead, they tried to convince Comey that he had never promised to update Congress at every turn. He had merely said he would “look at” any new information in the case.

When that did not work, they made one last effort to contain the damage. Justice officials wanted Comey to simply say that he had new information that might be related to the Clinton probe, and to make clear the FBI did not know whether the new material was significant.

The FBI did not take their advice, as Justice officials would learn after they saw Comey’s final letter when he sent it to Capitol Hill. The FBI director said the emails “appear to be pertinent to the investigation.” Rep. Jason Chaffetz (R-Utah) tweeted, “Case reopened.”

This was exactly the impression from the letter that Justice officials feared most.

Half an hour later, Trump campaign manager Kellyanne Conway tweeted, “A great day in our campaign just got even better. FBI reviewing new emails in Clinton probe.”

Matt Zapotosky and Adam Entous contributed to this report.

What reason did the FBI have to resume Clinton email investigation? The public will soon get more details.

By Matt Zapotosky
December 19, 2016

A federal judge on Monday ordered a search warrant in the Hillary Clinton email investigation be unsealed, a decision that will probably mean the public will learn more details about the FBI’s controversial decision on the eve of the presidential election to resume the closed probe.

U.S. District Judge P. Kevin Castel ordered that the warrant — along with the reasons that an FBI agent gave for seeking it and an inventory of what was recovered — be unsealed by noon Tuesday. The documents could be telling, revealing what cause the FBI felt it had to search a computer belonging to disgraced former congressman Anthony Weiner (D-N.Y.) for evidence in the Clinton email case.

FBI Director James B. Comey had announced publicly in July that he was recommending the Clinton email investigation be closed without charges. But on Oct. 28, long after the Justice Department had accepted his recommendation and closed the case, he told Congress that agents were resuming their work. Comey offered little to explain why, writing to legislators only that in connection with an “unrelated case,” agents had found emails that “appear to be pertinent to the investigation.”

Law enforcement officials would later reveal, on the condition of anonymity, that the unrelated case was the investigation of Weiner for alleged sexting with a minor, and the emails included correspondence to and from Clinton and top aide Huma Abedin, Weiner’s estranged wife. The warrant at issue was to search a computer belonging to Weiner; Castel initially wrote in his order that it was issued Oct. 20, though he later corrected that date to Oct. 30.

Comey’s decision to resume the investigation — and announce publicly that agents were doing so — drew widespread criticism. Justice Department officials had advised against his sending a letter to Congress, arguing that doing so would violate long-standing policy that prohibits investigators from taking overt steps that could impact an election.

Even though Comey announced on Nov. 6 that agents had finished their review and had not changed their earlier conclusion, many Democrats feel he irreparably harmed Clinton’s bid to become president. Clinton herself has said Comey’s actions blunted her momentum.

People familiar with Comey’s thinking have said he felt word of the resumed probe would leak anyway, and the public might then feel the matter was being covered up.

The warrant would presumably offer new details on what evidence investigators had that they felt warranted resuming their work and going through Weiner’s computer for potentially relevant information. Los Angeles lawyer E. Randol Schoenberg sued to have it unsealed, arguing that — particularly because of the ramifications and questions surrounding the high-profile case — it was critical that the public know more.

“Access to the search warrant is critical for the public to learn the basis for the reopening of the investigation to ensure that the FBI acted in a manner consistent with its constitutional obligations under the Fourth Amendment,” he asserted in a court filing.

The FBI already had made public on its website a lengthy investigative summary and interviews with witnesses in the case before it was reopened. Castel wrote that the government had initially objected to making the warrant public, but later dropped that objection as long as certain redactions were made.

[Damn if you do. Damn if you don't.]

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