James Comey, who was a hero in July, is now a hack and a traitor in October. What happened? Why would FBI Director James Comey take the unprecedented risk of making huge waves days before an election, especially after he recently cleared the party who has the most to lose? A narrative that makes sense is beginning to take shape.

** Updated: See “Related.”

Background

James Comey cleared Hillary Clinton in the email scandal on July 5, 2016. Attorney General Loretta Lynch announced there would be no charges against Hillary Clinton on July 8, 2016. But on June 27th, Bill Clinton, who happened to be at an Arizona airport, decided to walk over to visit with Loretta Lynch, who just happened to be on the same tarmac that Monday.

News of the chance meeting didn’t hit the wires until June 30th, or three days later. This news was greeted with emotions ranging from consternation to outright anger, depending on political bent. However James Comey might have felt upon hearing about the encounter, he went on to recommend that no charges be filed in the email server case whose investigation he had just wrapped up. That fateful tarmac encounter may explain Comey’s seemingly harsh words for Mrs. Clinton’s decision-making and handling of her email server. Nevertheless, Comey’s absolution announcement, just a few days later, was greeted with more skepticism than it might have, had the tarmac encounter not taken place.

New Developments

Fast forward to late into the night of August 28th and the New York Post’s story on Anthony Weiner sexting photos of himself, with his child sleeping next to him, to a 15 year old girl. The fact that Weiner was carrying on with a minor triggered an investigation as the result of which Weiner family laptop, cell phones, and an iPad were taken by authorities.

Fast forward to the last days of October… FBI Director Comey sends Congress a letter in which he announces that he has approved the investigation of additional emails that are related to the Clinton email server inquiry and were found in an unrelated case. Comey then sent the following internal email to FBI employees:

To all:

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.

Jim Comey

The Reaction

Comey’s letter to Congress and his subsequent email to FBI employees set Democrats on the warpath, with political operatives, Congress, Senate-critters, and the media, all raging against Comey:

https://twitter.com/GovHowardDean/status/792343525228675072

Paul Krugman:

So, a typical Clinton "scandal": no evidence of wrongdoing, relentless hyping by Rs, institutions — some press, maybe FBI — being used

— Paul Krugman (@paulkrugman) October 28, 2016

Josh Marshall, founder and editor of TPM

We found some Huma emails on Weiners computer so out of abundance of caution we gonna send ambiguous cryptic letter to Chaffetz. ¯_(ツ)_/¯

— Josh Marshall (@joshtpm) October 29, 2016

Even Bob Shrum, a once frequent MSNBC analyst and USC professor of political science, whose analyses are usually level-headed, went ballistic on Twitter:

Democracy in danger when FBI hack takes minor event and puts it center stage for Trump benefit. Why did O appoint him? https://t.co/dHJje7csis

— Robert Shrum (@BobShrum) October 28, 2016

John Fugelsang, the comedian and political commentator put another recurring theme trumpeted by the media into this graphic:

Wait! What? Emails that weren’t even Hillary’s? This is another notion that is being pushed by many journalists, pundits, Democrats in Congress and… even comedians. Huma Abedin, as Hillary Clinton’s right hand, handled Hillary Clinton’s business on her behalf and at her behest. Any emails she handled, she did so in an official capacity and those emails are still Hillary’s and government property. Work product that is transmitted via email doesn’t change ownership by virtue of being emailed and anyone who puts forward such a notion does so knowing that it is false.

What’s Going on Here?

The Washington Post points out a very curious fact, in a piece entitled “FBI agents knew of Clinton-related emails weeks before director was briefed:”

“Given that the Clinton email team knew for weeks that it may have cause to resume its work*, it is unclear why investigators did not tell Comey sooner. People familiar with the case said they had known about the messages since soon after New York FBI agents seized a computer related to their investigation into former congressman Anthony Weiner (D-N.Y.), who is alleged to have exchanged explicit messages with a 15-year-old girl.”

* [Bolded for emphasis]

Assuming that “the Clinton email team knew for weeks that it may have cause to resume its work” implies that Huma Abedin alerted the Clinton campaign that her husband’s laptop and other devices were seized and that emails she had sent and received would be found on them, then whose decision was it to simply wait for them to be discovered, rather than take the proverbial bull by the horn and make some kind of public announcement in order to preempt yet another email-related scandal? While this, in itself, would have made waves in July, logic dictates that it would have given the Clinton campaign a lot more time to deal with the fallout and would have given them the added advantage of having been transparent about it. It is inconceivable that anyone (Clinton herself?) weighing all the factors going into the decision to simply sit on this information and pray no one discovers it, didn’t also consider the benefits of coming clean.

Oddly enough, on the same day the Washington Post reported that the Clinton email team knew “it may have cause to resume its work,” a different set of reporters also wrote in a different piece, “Clinton aide Huma Abedin has told people she doesn’t know how her emails wound up on her husband’s computer” that:

“Top Hillary Clinton aide Huma Abedin has told people she is unsure how her emails could have ended up on a device she viewed as her husband’s computer, the seizure of which has reignited the Clinton email investigation, according to a person familiar with the investigation and civil litigation over the matter.

The person, who would not discuss the case unless granted anonymity, said Abedin was not a regular user of the computer, and even when she agreed to turn over emails to the State Department for federal records purposes, her lawyers did not search it for materials, not believing any of her messages to be there.”

This, obviously, doesn’t square with the previous report. That said, it is inconceivable that law enforcement officials in charge of going through the Weiner devices didn’t look at email early on, or that they didn’t stumble upon Abedin’s trove. Indeed, in the first report, it is indicated that Comey wasn’t briefed about the existence of email until Thursday, October 27th. It is difficult to imagine that agents in the field would fail to recognize the importance or significance of the presence of Clinton-related emails. It is as difficult to see how those agents would keep that information from their superiors or that, if they didn’t, their superiors would fail to report up the FBI chain of command.

PBS reports Abedin as having testified that that:

“I didn’t have a practice of managing my mailbox other than leaving what was in there sitting in there,” Abedin said. “I didn’t go into my emails and delete State.gov emails. They just lived on my computer. That was my practice for all my email accounts. I didn’t have a particular form of organizing them. I had a few folders, but they were not deleted. They all stayed in whatever device I was using at the time or whatever desktop I was on at the time.”

In February 2013, Abedin signed a routine State Department document under penalty of perjury in which she promised to “turn over all classified or administratively controlled documents and materials” before she left her government job, and promised that she was not retaining copies, “including any diaries, memorandums of conversation or other documents of a personal nature.””

But then, we are given more information in a Wall Street Journal article, “FBI in Internal Feud Over Hillary Clinton Probe.” This article details a lot of back and forth between top levels at the FBI and Department of Justice. At the center of it all is Andrew McCabe, whose wife’s political campaign was the recipient of a half million dollars contribution from long-time Clinton friend and associate, Governor Terry McAuliffe of Virginia. That contribution is what eventually caused McCabe to recuse himself from Clinton-related cases, and the responsibility for their investigation and management to be moved to the FBI’s New York unit. McCabe’s recusal, apparently, did not mark the end of his involvement or the DOJ’s continued contact with him on Clinton matters:

“The latest development began in early October when New York-based FBI officials notified Andrew McCabe, the bureau’s second-in-command, that while investigating Mr.Weiner for possibly sending sexually charged messages to a minor, they had recovered a laptop with 650,000 emails. Many, they said, were from the accounts of Ms. Abedin, according to people familiar with the matter.

Those emails stretched back years…”

“At a meeting early last week of senior Justice Department and FBI officials, a member of the department’s senior national-security staff asked for an update on the Weiner laptop, the people familiar with the matter said. At that point, officials realized that no one had acted to obtain a warrant, these people said. Mr. McCabe then instructed the email investigators to talk to the Weiner investigators and see whether the laptop’s contents could be relevant to the Clinton email probe, these people said. After the investigators spoke, the agents agreed it was potentially relevant. Mr. Comey was given an update, decided to go forward with the case and notified Congress on Friday, with explosive results.”

It is clear from the WSJ article quoted above, that the tensions between the Department of Justice and the FBI are over whether or not to investigate, with the Department of Justice using its power to minimize the FBI’s ability to pursue its investigation, using all possible tools. Without making a judgment as to why this is the case, these DOJ barriers in the FBI’s way are curious. No satisfactory explanation has as of yet come out as to why the FBI director wasn’t in the loop from the beginning. That no one told him anything, in and of itself, is a very strange thing, until one understands that a) while the FBI is relatively autonomous, it is not entirely so, and b) it depends on the Department of Justice for the legal authority it gives it. Without the legal authority to search what it seized, the FBI’s work cannot be completed.

As for the propriety of James Comey’s decision to inform Congress, there is an excellent analysis written by two esteemed law professors, but it was written soon after Comey’s actions became public, and without the benefit of all the later reports I have quoted here. Nevertheless, these quotes remain relevant:

“Imagine for a moment that the Bureau had sat on this until after the election and it then emerged that (a) the FBI had additional emails, (b) that Comey knew it had additional emails, (c) that having testified that the investigation was completed he (d) he did not authorize additional review or he did so but did not notify Congress that his earlier statements had proven incorrect. It would be a major major scandal, particularly if one or more of those emails fundamentally undermined his earlier investigative judgments.”

and

“16) Should Comey, having said what he said yesterday, now say more?

The Clinton forces are calling on the FBI to immediately release “the full details of what he is now examining.” This almost certainly cannot happen, both for investigative reasons and for reasons related to the privacy rights of the presumably inordinate number of third parties who were likely exchanging emails with Abedin. Unlike the Russian government, the FBI does not just do document dumps of people’s emails.

That said, if there is more that Comey can say, he should probably do so—even at the risk of sliding further down the slippery slope he is on.”

This is where Professors Jack Goldsmith and Benjamin Wittes’ analysis lacks the benefit of all of the information that has come out since they published their piece. We now know, thanks to the Wall Street Journal that the FBI’s efforts have been hampered by a combination of some degree of internal disarray due to Andrew McCabe’s position as assistant director in the organization, the splitting of the Clinton Foundation investigation from the email inquiry and the inability of both teams to use each others’ evidence, and by forces seeking to slow down and seeking to end Clinton-related FBI investigations at the Department of Justice. These barriers, intentionally or not, prevented those closer to the top from coming to enough of a conclusion and informing Comey a lot sooner.

Meanwhile, all weekend long, pundits and politicians alike have been clamoring for Comey to release more information and criticizing him for committing malpractice-malice, even- by sending out a letter before even knowing what’s in the emails. John Podesta even went as far as saying “He might’ve taken the first step of actually having looked at them before he did this in the middle of a presidential campaign so close to voting.”

Ah, Mr. Podesta, how likely is it you already knew Comey didn’t have the legal authority to look? What about all of you, media pundits and politicians? Did you know that what you were clamoring for is precisely what Comey and his staff were not allowed to see?

I See What You Did There, Mr. Comey!

Which brings me back to that Phoenix, Arizona tarmac…

A lot of emphasis is now being placed by the media and political figures on the Department of Justice’ rules on non-interference in an election. While those rules may traditionally have been observed, they do not preclude investigating crimes fully even when the target of such an investigation is a presidential candidate. There is nothing in the rules or in the constitution that says that a candidate is immune from investigation while they are running for the nation’s highest office. It is my belief that Comey might not have sent his letter to Congress, had he been confident in his agency’s ability to have free rein to investigate, even as he informed his counterparts that former Congressman Weiner’s laptop contained thousands of Huma Abedin’s emails to and from the Clinton Foundation. When Comey was informed of the existence of the emails, one must also assume that he was told that there was no warrant to sift through them. When Comey approached the DOJ about informing Congress, he was dissuaded. Clearly, from all the sourced reports we are now seeing in the media, the pressures and barriers placed by the DOJ most likely dampened Comey’s confidence his agency would be allowed to do its job.

It is safe to assume that, in addition to the classified information James Comey is privy to, he reads the news like most of us do and that the daily WikiLeaks dumps didn’t escape his radar. The leaked emails that WikiLeaks has posted in constant dribs over the last 22 days contain information that completes the picture, insofar as the inner workings of the Clinton Foundation and the discussions about Hillary Clinton’s handling of various issues, including her email.

If Comey was duped into letting the criminal investigation of the Clinton email server go in July, it is clear he isn’t willing to let go of it now that he is experiencing the full brunt of the pull the Clinton forces have within the current DOJ. What is an FBI Director who finds he’s swimming against the current to do? A letter to Congress informing them he has greenlighted something his counterparts at DOJ don’t want him to do. What was he thinking? My guess is that Comey knew that such a letter would put the DOJ on the spot and force their hands into allowing him to continue doing his due diligence. Indeed, two days after Comey’s bombshell missive to Congress, magically, and on a Sunday, no less, the breaking news is that the FBI has just obtained a search warrant that enables it to sift through the emails on Weiner’s seized equipment.

Comey’s Motives

Comey is serving an administration that is nearing the end of its last term. Why bother? Well, FBI directors are appointed by presidents and confirmed by the U.S. Senate. Even though the FBI, organizationally, is under the Department of Justice, only the president and Congress can fire the FBI Director.

With Hillary Clinton pretty much assured to win the presidency, and with a current Attorney General whose impartiality is somewhat compromised by the tarmac meeting, it is logical to conclude that Comey, whose term runs out in 2023, is thinking about the ramifications of allowing materials that are sitting on a laptop in the FBI’s possession to go without investigation, especially as WikiLeaks continues to publish materials on a daily basis (some of which may be the same as those in Weiner’s laptop).  It is also logical to conclude that Comey is thinking of his place in history and does not want to end up being the FBI director who takes the blame for either protecting Hillary Clinton or botching her email investigation.

It is now clear that Comey achieved his primary goal by sending a letter to Congress. As a result of it, he now has the authority to search through the emails. It is impossible for the FBI to complete its review of the thousands of emails that are known to reside on the Weiner hard drive within the number of days left before the election. In addition, it is also a given that there isn’t enough time to fully investigate before the next president takes office and, should that president be Hillary Clinton, she cannot have her own Attorney General supervising an investigation into her emails. By announcing that he was authorizing his staff to take another look, Comey set in motion a mechanism that forces the DOJ to do one more thing: appoint a special prosecutor or an independent counsel to take over the investigation of the email case.

Whether or not Comey remains in office as a result of his actions is an interesting question. His term is good for another seven years– almost as long as the next president could serve. Unless he resigns, it will be very difficult for President Hillary Clinton to find good cause to fire him and, unless both houses of Congress turn blue, it is hard to imagine that there will be a sufficient majority to impeach him.

Did Comey do the right thing? If ensuring that the search for truth continues, then his tactic was pure genius. Ultimately, history will be the judge. If more materials are found, Comey will be vindicated. Either way, Comey was always in a losing position, with Democrats furious with him for doing his job and Republicans accusing him of obstructing justice. Who voters elect and reelect to Congress on November 8, will be more important than ever. Our Democracy, what’s left on it, may well depend on it.

If there was no wrongdoing on the part of Hillary Clinton and her staff, they too will be vindicated.

Notes:

1. I’ve criticized Comey on his stance on police brutality, reforming police, and hate crimes.

2. Huma Abedin used Yahoo Mail to send Clinton Foundation emails for later printing. 500 million Yahoo mail accounts were hacked in one of the biggest security breaches.

Related

Peter Kadzik, an FBI official now in charge of the Huma Abedin emails popped up in WikiLeaks on 11/1

Also see:

Peter Kadzik will be in charge of Justice Dept. probe of Huma Abedin emails, Kadzik friend of John Podesta, Ties to Clinton administration, Another example of the Clinton campaign’s “cozy relationship” with the Obama Justice Department

THE WIKILEAKS LIST: At Least 65 MSM Reporters Were Meeting with and/or Coordinating Offline with Top Hillary Advisors

One journalist not in The Gateway Pundit’s list is Charles M. Blow.

Charles M. Blow on Anonymous Sources & Media Ethics: Right On! | MSM on Blog#42

Why FBI director James B. Comey was able to defy Justice bosses on Clinton email announcement