Sunday, October 30, 2016


As the James Comey story unfolds -- or fails to unfold --

I keep thinking about a series of tweets I read on Friday night from a passenger on a delayed flight out of Washington. I have no idea whether the tweets are accurate, and the tweeter is a Clinton supporter, but what's related here is intriguing:

The Garner story broke on Tuesday:
The Justice Department has replaced the New York team of agents and lawyers investigating the death of Eric Garner, officials said, a highly unusual shake-up that could jump-start the long-stalled case and put the government back on track to seek criminal charges.

Mr. Garner, 43, died in 2014 on a Staten Island street corner, where two police officers confronted him and accused him of selling untaxed cigarettes. One of the officers, Daniel Pantaleo, was seen on a video using a chokehold, prohibited by the New York Police Department, to subdue him. Mr. Garner’s last words, “I can’t breathe,” became a rallying cry for protesters around the country.

Federal authorities have been investigating whether officers violated Mr. Garner’s civil rights in his fatal encounter with the police. But the case had been slowed by a dispute because federal prosecutors and Federal Bureau of Investigation officials in New York opposed bringing charges, while prosecutors with the Civil Rights Division at the Justice Department in Washington argued there was clear evidence to do so.
So was this vengeance on the part of the New York FBI against the evil Democrats in D.C. who don't want law enforcement to close ranks behind the cop who killed Eric Garner? I can believe that. And I certainly believe that Comey had to make an announcement to head off a leak to either Jason Chaffetz or the New York Post. Maybe someday we'll know the whole story.


bluicebank said...

Former ethics lawyer for GW Bush administration files complaint against James Comey, with the Office of Special Counsel, saying Comey violated the Hatch Act:

Hope this gets attention.

Victor said...

Ditto, what was said above!

Feud Turgidson said...

If the FBI has had eyes on the Abedin-Weiner household databases for weeks, why is it that the FBI still has not even applied to the courts for permission to "seize" (meaning access) ANY of the content.

We all know the Surveillance State grabs & warehouses 100% of all Internet traffic, including emails. So the SS has been storing this supposed "trove", "wealth", or "universe" since each took place in real time.

But there are legal & practical limits to using those. US law allows LEOs to read & catalog metadata - the header information on any and all e-comms - but disallows the reading of the content (with a blurry line between 'reading' versue 'using in a legal setting). It's reasonable to surmise that on review of the metadata on Abedin-Weiner household devices, FBIers saw Abedin's name on some of them, and saw among those metadata indicating some possible or potential connection to State - where she worked - or HRC - for whom she worked.

Anyone who's ever been employed in a job that critically involves communication (I can't think of any government agency in the country, maybe on the planet, which, by its very nature, must be as active as possible in communication more than the US DoS.) will recognize the impossibility of setting up a total firewall between career & home life. Further: given who she works for, it's possible while HRC was SoS, Abedin was the single human most engaged in ongoing actual human communications on the planet.

So what's with the foot-dragging? Why hasn't the FBI already moved for a court order allowing them to 'access' the content of this supposed "trove"? Is it a problem with grounds? Is the problem that the metadata just doesn't readily support an application?

Anyone involved in the LE side of crime investigation recognizes how difficult it can be to frame an application for a search warrant. This wasn't any sort of problem for the FBI with the materials that were the subject of Comey's presser & testimony this summer: all that came to the FBI via the FOIA case & interviews.

If you've already read to the end of the book & concluded, publicly, that no crime was committed, how do you convince a court that you "need" access to this "trove"? What's the basis for your application? Certainly not to find who committed unsolved crime.

My 2 cents worth: Comey wanted to let Congress Rs know he's TRYING. Note that his letter was only written to the 8 House committee chairs; he's not responding to perceived pressure from the latter, just the former. Note the bare bones-iness of letter. Finally, the most important PROCEDURAL information mentioned is that the FBI has not yet applied for access, but intends to 'shortly'.

I think Comey recognizes the FBI has poor to no grounds for the court application for access; that Comey managed to convey that informally to R Congress critters; that someone, maybe on Chaffetz's staff, came up with the bright idea of Comey issuing the briefest possible message with the least possible info, while leaving the most room for partisan political spin.

They think this letter represents the absolute apex of whatever else they'll ever get out of EmailGate.

Never Ben Better said...

Now Harry Reid's joined the chorus of people alleging Hatch Act violation by Comey. That letter is looking more and more like a career-ending blunder.

Feud Turgidson said...

The timing of my earlier post leaves could have been better, to say the least. There were already reports out of WSJ & ABCNews that a quo warranto order was granted earlier today. My only excuse? This time of year, every Sunday is a big sportsball day, this one in particular.

FWIW, once I felt the sting, I followed up at a few places to see if I was alone in thinking this. Annnnnd, nope, it appears I was in good company. Orin Kerr at Volokh raised a parallel concern, and Devlin Barrett's longish report a few hours back at WSJ reeks of venue shopping. I should have brought that up as a possible reason for the feds dragging feet on this.

To be clear, it looks to me like there was - is - a big struggle going on this FBI-DoJville over whether there are 'sufficient' [or ANY] ground to be investigating not just this DoS-Clinton EmailGate nothingburger, but the supposedly Big Fish, the Clinton Foundation.

When the DoJ is host to the kinds of disagreements Barrett describes, that's a sure sign that a lot of the attorneys involved with the warrant process in particular are figuring they'll have trouble getting an order on what are in essence really speculative grounds that reek of partisanship. One way around that problem is to go judge-shopping, and since these various Clinton-Abedin-Weiner-DoS-ClintonFoundation actual & complaint-based & look-see investigations engage so many offices - Main DoJ, NYC, Arkansas, LA, and those are just the 'for sure' FBI-DoJ offices impacted (I'd add SF, and likely Chicago & Boston as well.), there are lots of options in terms of who the duty justices are at a given point in a given place.

Anyway, the Barrett piece at WSJ, despite the source, seems about what I would expect from the deeply split DoJ, as I commented in an earlier thread.

Danp said...

James Comey has emails on his computer that may be about to be published by Wikileaks amid speculation that he accepted money from a reputed drug lord. It may take a long time to uncover the entire truth, as the only thing we know for certain is that there are emails. There, now my conscience is clear.

Ed said...

Why Hillary Clinton's Campaign Is Collapsing

Feud Turgidson said...

Further on the subject of WTF the FBI is doing, Scott Lemieux at Lawyers Guns & Money today is pointing to the same Orin Kerr article I cited, for this proposition:

If the Abedin emails were only 'discovered' due to the FBI investigation into her husband Weiner's e-contact with an underaged female, then there's controlling high court authority that the Feds can't access Abedin's emails unless they can't point to pursuit of a crime to which SHE or HER communications are connected. What crime is that? The FBI director, with the concurrence of the US AG, already determined this months ago, and found no crime.

There's a second problem: the FBI investigation into Weiner is focusing on an event that occurred in 2016. NONE of the emails that may or may not 'connect' to the investigation into the non-crime of HRC's email communications while she was SoS involve 2016; HRC left as SoS in 2013.

If the FBI has judge-shopped for the order quo warranto that it apparently received yesterday, that poses a 'fruit of the poison tree' problem, which bears on the use of any of the material the order grants access to, including its admissibility in any court or related proceeding (which normally would include Congressional hearings).

But that's actually a more minor problem than if the GROUNDS for the order aren't actually present in the application (typically an issue that arises in pre-trial suppression hearings), or, worst of all, if the FBI's materials submitted in support of the application are false or misleading (by far the worse case scenario).

So, maybe if you're reading this you're thinking, No farking way, Feud! In response, I'd say, Way, and cite the case of US versus Daniel Ellsberg, the so-called Pentagon Papers case.

it takes a certain kind of screwed up internal politics to create the atmosphere in which an Ellsberg-tupe fiasco occurs within the FBI. The description that Devlin Barrett reported in the WSJ yesterday fits that condition.

Feud Turgidson said...

Ed, with all due respect, you are a moron.

Feud Turgidson said...

Micheal Price has posted at LAWFARE a parallel analysis to what I started with on this thread, plus Kerr's analysis:

In essence, Price sees the same case law authorities cited by Kerr & others as imposing an obligation on the feds to be SELECTIVE, i.e. to be as PRECISE & TARGETED as possible in indicating what they would want the warrant to allow them to access off the Weiner trove.

That sort of thing takes time. The FBI would have to have compare metadata on the materials they already have to the metadata they could get in relation to the Weiner trove, then saying to the judge, Here are the ones we have some basis for thinking are not duplications of what we have, plus our reasoned bases for thinking that AND that these may pertain to our investigation (of ... whatever; it's still not clear).

If that's the approach the Feds have taken, I'd agree it COULD stand a better chances of attracting a court order AMND withstanding pretrial suppression motions I've posted about previously on this thread. It would also serve to explain time delay between seizing of the Abedin-Weiner household devices & application for the warrant over the weekend.

All this has me thinking of another basis for a warrant, one that doesn't actually go to any further court process: a national security application to assist in something like the pulling of someone's security clearance.

That wouldn't apply to HRC per se, as once she's sworn in as POTUS, she's AUTOMATICALLY the final word on the classifying government info. I raise this because Paul Ryan's repeated pressing of the CIA to stop or restrict briefings to HRC seems to leave a wrong impression with some that a POTUS can lose security clearance. That's patent nonsense: the executive authority is the SOLE ultimate arbiter of who has access to what government secrets, so long as her decisions are based on national security concerns (as distinct from abuse of executive privilege in relation to info pertaining to ordinary crime, i.e. what the SCOTUS decision on Nixon's White House tapes was about).

I also wonder how TF Comey proposes to go about shutting Pandora's box now that he's opened it all up to Congress.

Dark Avenger said...


"More tears are shed over answered than unanswered prayers." St. Theresa of Avila