A Seasoned Prosecutor Looks At FBI Comey’s Letter

() wisecatHere is how I look at the events that are unfolding before us.

American tradition demands that our secret police the FBI stay out of politics especially the election of it president. That has been adhered to for over 100 years since the creation of the Bureau of Investigation in the early 1900s which later became the FBI.

Comey’s letter sent at the 11th hour, 11 days before the election, three days before the start of the 11th month was a gross breach of that tradition. We recall at 11:00 am in the 11th month the WWI cease-fire took place. The latter ended that war; Comey’s letter started one by igniting a firestorm forever embarrassing the FBI.

Comey must know the last thing he should ever do is to dishonor such a long tradition.

Let me digress a second but it is important to factor this in. I noted earlier Comey had already intruded into the president’s race with his handling of the Clinton email investigation to determine if she violated American security laws. He decided to conduct it the investigation without a grand jury, search warrants and subpoenas. That was a political decision.

In effect, Comey was already playing politics with the presidential race. Having done that he did the investigation with one hand tied behind his back. That meant he did not clear all the mine fields. Now we see one mine he failed to locate and disarm has blown up in his face.

Yet even though Comey breached that tradition earlier in July by openly discussing his investigation and clearing Clinton  there was enough time remaining before votes would be cast for that to have minimum effect other than taking the issue out of the race which necessarily helped Clinton.

Comey’s investigation as I understand it was to determine if any of Clinton’s emails on her private server she kept at home violated American criminal laws. He would say some did but it was not even a close call on whether Clinton should be prosecuted and no reasonable prosecutor would have recommended a prosecution on that case.

Case closed.

The letter suggests it is reopened. Comey said he learned the information which made him reopen it the day before he sent the letter.

The inquiry comes down to what type of information could Comey have learned to make him write that letter which tramples upon historic American tradition. Why could he not wait? I would infer that it has to be of major significance.

  1. Was it just that there were more emails discovered on the Huma/Weiner computer than it previously knew about? The FBI had in its initial investigation discovered a large batch of others she did not turn over. No big deal. He would have no need to disclose it. He could sit on it until after the election without a problem.
  1. Was it that some of those emails were classified? Again no big deal. He already had seen she had some classified emails on is computer. Disclosing it could wait until after the election.

If after the election Comey was criticized for not disclosing them in the above examples he could simply say “yes, we found them. I saw they did not change my original decision. I thought it best at the time being it was so close to the election not to disclose it because it changed nothing.”

My take is that what he saw must make a big difference for him to have done what he did. It might show Weiner was sending out classified information. It might show extremely top-secret “eyes only” information was disclosed. Or, and this is my take, it shows the FBI was duped in its initial investigation by lies and concealment of important information by Clinton and her cronies. Did Hillary lie to the FBI during her interview?

Comey knows what he learned will be leaked so he had to write the letter. Clinton’s demand that he release the information is a phony. The last thing she wants is for him to come forth if he has the real deal. If he has something significant she’s finished. If there is nothing to it he is finished.

She expects (probably already found out before she made demand) that he will give us the usual line “under investigation and can’t say more until the investigation is done.” Comey thinks the letter will protect him (“I did disclose the new evidence but had to analyze it”) and save her again. Until she’s elected she can continue making the demand and suggest it is just Republican politics; or better yet part of the vast right-wing conspiracy.

Real conclusion is a lot of fumbling and bumbling incompetence here. Do you feel safer today than you did last week?

 

19 thoughts on “A Seasoned Prosecutor Looks At FBI Comey’s Letter

  1. “Do you feel safer today than you did last week?”

    Not in the least. We’re headed for even more trouble than imagined, regardless of the election’s outcome.

  2. American tradition demands that our secret police the FBI stay out of politics especially the election of it president. That has been adhered to for over 100 years since the creation of the Bureau of Investigation in the early 1900s which later became the FBI.

    Whoa – the FBI is “secret police”?

    I’m also having trouble identifying how investigation of a crime is intruding into politics.

    Although I agree with you that Comey made more than one political decision in his warping of this particular investigation – no grand jury, the way interviews were conducted, immunity letters, and on and on.

    Also – more than one opinionator has noted that what Clinton or Abedin or Mr. Danger have on their computers or servers, etc., is already known to them.

    So for them to “demand” that Comey show them what he has immediately is just more Klinton chicanery.

    She’s “aaallllwaaaayssss” wanted the investigation to be “open and transparent” – except when she and her crime team were lying, denying, deflecting and stonewalling

  3. Comey is in an impossible situation. If he does he can effect the election; if he does not he can effect the election. Scylla or Charybdis?

    On a related issue I would appreciate your take. Why hasn’t Comey fired, forced to resign or at minimum suspended McCabe ? FBI Numero Dos was greatly compromised by the huge contributions emanating from FOBs to his wife’s candidacy that appears to have been instigated to do just that. It is not sufficient that Caesar’s wife be pure, she must be above suspicion.

    For entertainment value this year’s presidential election is box office bonanza quality. It is Titanic, Gone With The Wind, Birth Of A Nation and Perils Of Pauline all rolled into one. Pass the popcorn.

    1. Tadzio:

      Your are right we have a real three ring circus happening. I’m thinking back over the years and remember the Saturday night massacre and resignations under Nixon – Eliot Richardson was involved. Will we have something like that again? Keep in mind Comey let himself get boxed. He should have called for a grand jury; having not done that he then could only do in incomplete investigation depending on cooperation leaving a lot of stuff out there. Now something has popped up to bite him.

    1. Article author Borowitz needs to be reminded that investigators wear gloves while examining evidence because both to avoid contaminating evidence and to avoid having the evidence contaminate the investigator.

  4. Matt, We have talked about the FBI and my opinions regarding much of what you have written about over the past. However, I do take exception to the term “Secret Police.” Members of the FBI, to include active and retired, for the most part have expressed distain over Comey’s decision not to prosecute Hillary for the email violations. Many retired agents, having the ability to speak freely without being reprimanded or something worse, have spoken out about this debacle. We, including myself, feel that this was wrong, period! Yes, our investigations remain protected so that we get all the facts and do not “leak” out evidence that will, or should lead to a successful prosecution. We are in the business of investigation federal crimes and then present the evidence to the proper authority [ USA or AG] for their prosecutive opinion. Now, I want to attach a analysis written by a colleague of mine, who was the legal advisor to the Boston FBI and also a legal instructor in Quantico. His remarks are supported by the silent majority of FBI Agents, both active and retired. These two bumbling, fumbling incompetents are not representative of the active members of the FBI.
    Part One:
    1. The statute that was used to judge HRC’s actions, makes it a criminal felony violation to mishandle classified information intentionally OR with gross negligence. Director Comey stated that HRC acted with “extreme carelessness” in the handling of classified info. Extreme Carelessness is Gross Negligence. She violated this statute which Congress, not Director Comey created. As an executive branch member, he has no authority to ignore the express language of a statute created by Congress. His mission is to follow the law, not abolish congressional statutory language that he does not like. He decided to arbitrarily modify the statute by de facto elimination of the “Gross Negligence portion of the statute. By doing so, he acted outside the scope of his authority.
    2. In my 30 yrs in the FBI and total of 44 yrs in Law enforcement, I was never involved in or even heard of an investigation which ignored evidence of “other crimes” uncovered while investigating the original crime under investigation.` But in this case, the FBI began by investigating mishandling of classified info on a private email system – then recovered thousands of emails that HRC and her team destroyed (recovered from recipients’ computers). Some of those emails disclosed that certain donors to the Clinton Foundation gave huge amts of money to the Foundation and in return rec’d meetings with HRC at the State Dept. Many of the donors were from Foreign Countries. While access alone is not criminal, it provides a “Reasonable Indication” (which is sufficient to open a new investigation under DOJ Guidelines,) into the likelihood of Quid Pro Quo/Bribery.
    No one donates thousands/millions of dollars to a Private Foundation for a meeting with the Secretary of State to talk about the NFL football season/ or the weather forecast. What deals were made or discussed in those meetings? The FBI had blinders on and refused to widen the investigation when there was clear probable cause to do so. This my friends never happened when I was in the FBI. In my career, if we started with a stolen property case and it lead to drugs, guns and murder, we expanded to include all the new crimes. It is unprecedented that it did not happen with the HRC investigation. This is wrong. I don’t know whether DOJ ordered the FBI to ignore other avenues of investigation or whether the Bureau restricted itself to ignore these obvious avenues of inquiry.
    3. In all my 44 yrs of service, I never saw a case where deliberate destruction of evidence was ignored instead of thoroughly investigated. Deliberate destruction of evidence is not only felonious in and of itself (i.e. felonious per se) but also indicative of Knowledge that the original conduct of HRC and her Aides was intentional/deliberate. (This goes back to my point in section one above and is indicative of the fact that the handling of classified info was even more than gross negligent and was instead likely deliberate/intentional).—Nevertheless when you find evidence that HRC’s lawyer Cheryl Mills called one of the private server operators after a Congressional subpoena was issued for the emails and ordered him to destroy thousands of emails relevant to the subpoena, this is prima facie evidence of obstruction of justice. Moreover, there is evidence that 13 of HRC’s phones were deliberately destroyed and /or “missing”—some of the phones were smashed with a hammer/ and bleach bit was used to destroy 33,000 emails.
    I have never seen a case like this in all my yrs where deliberate destruction of evidence was simply ignored by the FBI and not investigated. Again, I don’t know whether this was ordered by DOJ or whether the FBI restricted itself. Either way, it is totally inappropriate.
    4. The DOJ/ apparently with FBI concurrence/ gave Cheryl Mills and HRC’s other lawyer so called “Act of Production” immunity for their computers which contained highly classified information. “Act of Production” immunity is strictly limited to the very act of turning over the computers. It is never given to include what is actually found on the computers –It is only given for the act of turning them over. In all other cases that I am aware of when this is done, the FBI agent receiving the computer cannot take the stand and testify that he/she rec’d the computer from the person receiving the immunity. If the FBI wants to use the info they find on the computer against the provider, they have to show that it belonged to the provider by means unrelated to the Act of Production. In the HRC investigation, the immunity grant, as I understand it was all encompassing, not limited to the act of production but extended to the contents of the computer and even included any contents the lawyers may have destroyed. This is both incredible and unprecedented.—I have never seen a case handled in this fashion. Immunity grants should be limited to what is necessary to obtain the needed evidence and not extended beyond what is absolutely necessary. The fact that there was no grand jury, subpoena power and Federal judge controlling the grand jury to hold recalcitrant witnesses in contempt probably contributed to these broad immunity grants. Ask yourself why no grand jury was convened?
    5. DOJ/apparently with FBI acquiescence agreed to limit the scope of their inquiry to a date prior to when the major destruction of evidence occurred. How could this be agreed to unless the fix was in? There was reason to believe that massive obstruction occurred and the FBI/DOJ not only declined to investigate it but also inexplicably agreed to stop the investigation before the dates when the destruction occurred. I have never seen or heard of anything like it. Moreover, knowing full well that a multitude of Congressional inquiries were ongoing with respect to these matters, the FBI agreed to destroy the contents of the computers rec’d from HRC’s 2 lawyers. When have you ever seen or heard of anything like this?
    6. The DOJ/apparently with FBI acquiescence refused to use a grand jury to investigate this case. The FGJ could have issued subpoenas and compelled witness testimony under oath. It was not done here. With respect to gathering evidence from HRC’s Private Server Company, the State Dept and HRC’s staff, including her lawyers, search warrants could have been obtained before critical evidence was destroyed. None of this was done. All of these steps would have been taken in every other case but not this one.
    7. According to published news reports, President Obama, using a pseudonym was the sender/receiver of several emails containing classified info that went thru HRC’s non secure set up. Even Cheryl Mills was horrified when she read one of the emails without knowing it came from Obama.
    8. DOJ or the FBI decided to permit Cheryl Mills to be present during the questioning of HRC. Mills at that time was an immunized Subject of the investigation. Probable cause existed to believe that Mills had ordered the destruction of numerous HRC emails. This decision was simply amazing and beyond the pale.
    My guess is that a lot more negative info will trickle out before this is over. I am upset with Director Comey for allowing the apolitical reputation of the FBI to come under question. What happened is a severe blight upon the reputation of an agency that we served with distinction for so many years. It will take many years to reconstruct our reputation.
    Part Two:
    I appreciate that Director Comey held a press conference in July, explaining the FBI investigative findings, which was unprecedented. What he did was necessary but not sufficient to protect the reputation of the Bureau. I also believe that he was under enormous pressure from the President/AG to limit the scope of the investigation. President Obama’s public commentary during his “60 minutes” interview gave us a preview of how this was all going to come out. He said HRC made a mistake but basically it was not a big deal. (Now we know that he was communicating with HRC on the unsecured server using a pseudonym). We are supposed to be a Nation of Laws/not men. It is often said that No man (or woman) is above the law. This ideal was abandoned in this case. Anyone else would have been prosecuted. Expediency rather than honor was the winner here.
    By refusing to convene a Federal Grand Jury, DOJ placed the FBI into a World Series Game without a bat and a glove. This eliminated sworn witness testimony and subpoena power (as you are well aware, these are some of the absolute main investigative methods necessary to break open a case where cooperation is limited or non existent/It allows recalcitrant witnesses to be brought before a Federal Judge and be held in contempt and jailed for refusal to cooperate after an immunity grant). Have FBI Agents conducting a major investigation ever in Bureau history been so handcuffed in conducting that investigation?
    Director Comey was faced with a very difficult choice. He could either send his team onto the field without bats and gloves in front of the entire nation/world or tell Lynch to go to hell and threaten to resign. He chose the former. He should have chosen the latter and called their bluff.—-I am sorry that he did not do so. His resignation, if required, would have preserved the integrity and reputation of the FBI. The reputation of the FBI has been severely damaged in the process not just among many x-agents but also many outside the FBI family as well.

  5. One correction; the two fumbling, bumbling incompetents are Comey and McCable. I do not McCabe, but, he should have recused himself from anything to do with the email investigation. Matt, keep up the postings. I will be in touch.

  6. Looks like James Comey “embarrassed the family” infinitely more than John Connolly ever could or did.
    It doesn’t get much bigger than this.

    Keep laughing, world.

    1. Rathe:

      True, true, true. No way to cover it up and say he is a rogue agent. Hmmm, perhaps they will call him a rogue director.

  7. R. W. Baker’s excellent post convincingly conveys deep corruption inside the FBI and DOJ. The FBI put handcuffs and blinders on itself throughout its investigation of Hillary’s emails. It concluded Hillary was “extremely careless” but there was no “gross negligence”. It averted its eyes from the intentional destruction of evidence. It even sanctioned the deliberate destruction of evidence. It handed out “immunity” deals like candy, and apparently got nothing from the immunized. It ignored evidence of other crimes (relating to the Clinton Foundation and Hillary’s perjuries before Congress (“I turned over all work-related emails” “no classified emails” “we thoroughly reviewed all emails” before deleting 30,000, etc; (See Trey Gowdy’s questions of Hillary). No wonder, Americans have lost faith in their government.

  8. Comey isn’t done. There are nine more days until the election. More will surface. If Mr. Barker’s post is indicative, there’s a serious factional struggle shaping up within the FBI. Perhaps, I’m naive, but, politicizing the FBI for this year’s election seems a dangerous precedent.

    Who knows what all this means? We can only see the trees. The forest won’t take shape for decade or, so.

    Glorious Leader has gotten a second-wind in the race. This will make the finish closer, and, increase spectator excitement. I wonder where the Vegas action’s going? You can bet the outcome. The overseas ex-pat audience is on the edge of their chairs. I talked to a pal in Egypt. He adores Glorious Leader, and, has requested I send him the Stars&Bars and a Confederate Uniform. If Trump prevails, he’s going to end his exile and return to the Homeland.

    1. Khalid:

      Comey is done in more ways than one. You are not naive – Comey did try to politicize the election. Nothing could be clearer now that we learn he had not looked at the emails on Abadin’s computer. He intruded upon an American election without have a basis for doing this. Glorious Leader will still lose but so has Comey.

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