The Unmaking of the President 2016

by Lanny J. Davis

  The mystery would be resolved two days later at a congressional hearing when Comey was forced to modify and then withdraw his claim under questioning from a Democratic congressman. But not before the damaging headlines across the country’s mainstream media, on TV and the Internet, that Comey had “accused” Clinton of “lying” because she had claimed never to have received any emails with “classified markings” or “identified as classified.”

  * * *

  On July 7, Comey testified before the House Oversight Committee to answer questions about his July 5 public statement. The day before that testimony, the media reported that Comey’s phrase a “very small number” of emails was only three emails. Then we learned from the State Department that the actual number Comey was referring to was a single email, not three.

  Then, under questioning at the House Oversight Committee hearings on July 7, Comey was forced to retract his claim that even this single email out of thirty-three thousand bore “markings” that could be recognized as designating classification status of a “portion” of the email.

  But first Comey was questioned by the highly partisan, anti-Clinton congressman Trey Gowdy (R-SC), who had led the Benghazi investigation of Clinton that landed no serious blows on her after eleven hours of testimony on national TV. Gowdy asked Comey during the early part of that day’s testimony: “Secretary Clinton said there was nothing marked classified on her emails either sent or received. Was that true?”

  Comey responded, “That’s not true. There were a small number of portion markings on, I think, three of the documents.”

  The term “portion markings” in and of itself is misleading. If a document contains classified information within a section that also contains nonclassified information, it can be “portion-marked.” But the Intelligence Community Manual has strict requirements for those markings—how they should be written and made conspicuous within the text.

  Not long after Gowdy’s misleading question and Comey’s misleading answer, Rep. Matt Cartwright (D-PA) smoked out the truth. Here is the transcript:

  CARTWRIGHT: All right. You were asked about markings on a few documents. I have the manual here, marking classified national security information. And I don’t think you were given a full chance to talk about those three documents with the little “c”s on them. Were they properly documented? Were they properly marked according to the manual?

  COMEY: No.

  CARTWRIGHT: According to the manual, and I ask unanimous consent to enter this into the record, Mr. Chairman.

  [REP. JASON] CHAFFETZ: Without objection . . .

  CARTWRIGHT: According to the manual, if you’re going to classify something, there has to be a header on the document. Right?

  COMEY: Correct.

  CARTWRIGHT: Was there a header on the three documents that we’ve discussed today that had the little “c” in the text someplace?

  COMEY: No. There were three e-mails, the “c” was in the body, in the text, but there was no header on the emails or in the text.

  CARTWRIGHT: So if Secretary Clinton really were an expert at what’s classified and what’s not classified and were following the manual, the absence of a header would tell her immediately that those three documents were not classified. Am I correct in that?

  COMEY: That would be a reasonable inference.

  So here we have Comey omitting the essential fact that only a little “c” in the middle of three (actually, as it turned out, just one) emails was supposed to be noticed by Clinton as identifying “classified information.” And that little “c” justified all the headlines that Clinton had “lied.” Obviously, if it would be “a reasonable inference” that an expert would not recognize that little “c” as identifying classified information, neither should Hillary Clinton be expected to. Nor did he add that, absent this single instance of a little “c,” Clinton had told the truth that none of the emails she sent or received were marked classified. And all the media’s headlines and Republican charges that Clinton had “lied” when repeatedly making that statement were now wrong.

  Clearly, Comey and the leaders of the FBI’s investigation knew that the little “c” did not comply with the detailed, mandatory requirements of classified markings outlined in the Intelligence Community Manual, down to punctuation marks and the requirements of headers and footers, with precise wording and rules.† Their use of this obscure wording—“a very small” number of emails that “bore markings indicating the presence of classified information”—seems suspect. Were they trying to avoid admitting that they had initiated the criminal investigation the year before lacking the single “specific articulable fact,” i.e., an email that was clearly marked classified, that their own regulations required before a full criminal investigation could be opened?

  Comey was not the only hypocrite when it came to dealing with his own admission before Congressman Cartwright. Almost every mainstream media organization—print, network news, cable, websites—failed to report that passage of his statement accurately, and then, after his modification on July 7, failed to correct their prior reporting that Clinton had “lied.”

  * * *

  In the end, the most harmful negative expression used by Comey in his July 5 public statement announcing his no-prosecution recommendation was when Comey expressed his opinion that Hillary Clinton’s conduct in handling unmarked emails was “extremely careless.”

  Let’s be clear: It is simply wrong for a prosecutor, much less a criminal investigator, whether he or she is the FBI director or a detective in a local police department, to publicly express a disparaging opinion of someone who has been the subject of a criminal investigation and not do so within a public charging document, such as an indictment or “information” filed with the court. To do so threatens both due process rights and the presumption of innocence.

  Instead, the headlines about Comey’s description of Clinton as “extremely careless” were repeated over and over again, and all the offsetting and mitigating facts just mentioned were omitted by almost all the media. Indeed, Comey’s “extremely careless” opinion was repeated so many times in so many media venues that by sheer repetition alone it seemed to morph from subjective opinion into eternal fact. Even the Clinton campaign gave up trying to contest the statement.

  The attack by partisan Republicans focused on Comey’s “extremely careless” opinion and contended, without any evidence, that Hillary Clinton put national security at risk by transferring “classified” emails onto her private server, which could have been hacked by America’s enemies. Some of the more reckless even used the word “treasonous” to describe her actions.

  However, such critics seemed angry and disbelieving when Comey announced that the FBI’s technical experts who had searched Clinton’s private server and hard drive found no evidence it had been hacked or compromised.

  This was a very good news headline for Clinton. But as was apparent, Comey was not satisfied leaving a positive Clinton fact unqualified by some negative innuendo. So he added that it was “possible” that “hostile actors” had managed to breach Clinton’s server without leaving any evidence. So again, Comey’s claim that he was apolitical and acting only in the spirit of transparency is refuted. His bias, intentional or not, is apparent.

  * * *

  The public reaction to Comey’s July 5 press conference was quite negative. Clinton’s personal standings in the favorable versus unfavorable opinion polling that followed the Comey statements dropped considerably.

  Ever since the 2015 Times stories on Clinton’s emails, voters’ negative impression of her had consistently exceeded their positive impression. However, in the winter and spring of 2015–2016, as Clinton was winning impressive victories to lock up the Democratic nomination, her unfavorables in national polling data started to drop and her favorables began to increase. For example, in the well-respected Reuters/Ipsos poll taken between June 25 and 29, 2016, with a relatively large sample of 1,247 registered voters nationwide, Clinton show
ed only a net -8 percent of unfavorable impressions (54 percent unfavorable versus 46 percent favorable), one of her smallest net minus numbers for some time. In a poll taken a week later, between July 2 and 6, Reuters/Ipsos showed a similar result with an entirely different sample of 1,345 registered voters nationwide—a net unfavorable of -10 percent, in this case 55 percent unfavorable, 45 percent favorable opinions.

  After the July 5 news went out that Comey had recommended against criminal prosecution, the Clinton campaign expected positive results in the media and in the polls and a virtual end to the email issue as a cloud over the campaign. But the reverse happened.

  From that 10 percent net negative ending on July 6 to the very first poll taken after Comey’s press conference, spanning July 5 to 9, the results showed an immediate significant negative impact on Clinton’s personal standing. A McClatchy-Marist poll of 1,249 adults showed that Clinton’s net unfavorable impressions margin over favorables had shot up to 25 percent. Specifically, Clinton’s unfavorables went from 55 percent to 60 percent, and her favorables declined from 45 percent to 35 percent. Three other polls with different national samples taken at the same time showed virtually identical results.

  * * *

  This negative public opinion of Clinton was not matched by a negative opinion of Comey for violating Justice Department policies and fundamental principles of fairness when he offered his personal opinion of evidence even as he did not recommend bringing charges.

  Among professionals though—regardless of party, administration, or whether they were current or former prosecutors, legal experts—the verdict is that James Comey violated long-standing Justice Department policies and principles of due process by his actions.

  Bethany McLean wrote in a February 2017 Vanity Fair article, “Comey, according to his critics, compounded his mistake [in holding the press conference in the first place] by declaring Clinton’s conduct and that of her aides ‘extremely careless.’ This was another breach of protocol. Neither prosecutors nor agents criticize people they don’t charge.”

  “We don’t dirty you up,” Richard Frankel, a former FBI agent who retired in 2016, told Vanity Fair.

  McLean wrote that “plenty of Comey’s longtime admirers were appalled he had spoken at all, because by doing so he blew through several of the Justice Department’s long-standing policies.” And here was the judgment about Comey spoken by a former prosecutor who once worked for him: “It was an unprecedented public announcement by a non-prosecutor that there would be no prosecution.” The FBI does not talk publicly about its investigations and “it does not make prosecutorial decisions. Full stop.”

  What happens if the policies are ignored? What is the danger? Elizabeth Drew, in the New York Review of Books on November 3, 2016, wrote about Comey’s willingness to express his “extremely careless” opinion:

  By doing something prosecutors simply don’t do, Comey set a dangerous precedent. Any number of prosecutors might conclude later if it was ok for the FBI director to damage the reputation of a person who had just been let off without prosecution (or in Clinton’s case damage it further), they could feel free to follow suit. Anyone who wasn’t troubled by Comey’s performance wasn’t thinking through its implications. One could only conclude that his comments were meant for various audiences not in the room: the Republican-dominated Congress and conservative Hillary-haters among the commentariat, and discontented FBI agents who’d wanted him to rule the other way.

  Jeffrey Toobin, a former federal prosecutor, agreed in a prescient August 2015 commentary in the New Yorker:

  The consequences for Clinton [of being accused of mishandling classified emails] . . . are far more likely to be political than legal. Criminal violations for mishandling classified information all have intent requirements; in other words, to be guilty of a crime, there must be evidence that Clinton knew that the information was classified and intentionally disclosed it to an unauthorized person. There is no evidence she did anything like that. This is not now a criminal matter, and there is no realistic possibility it will turn into one. (Clinton’s critics have noted that General David Petraeus pleaded guilty to a misdemeanor in connection with the disclosure of classified information to his biographer. But Petraeus acknowledged both that he knew the information was classified and that his biographer was not cleared to receive it. Because Clinton said that she did not believe the information was classified, and because she turned it over to cleared State Department employees, the comparison is inapt.)

  Comey’s violation of long-standing policies is beyond dispute. A man who seemed to sincerely believe he was above politics and would never allow politics to affect his judgment appeared to go out of his way to include in his statement negative innuendo and suppositions to provide some immunity from Republican criticism.

  * * *

  Who was supervising Comey? Where were the attorney general and deputy attorney general to whom Comey and the FBI were legally accountable? Was the July 5, 2016, press conference now the second instance, after his 2015 announcement of an FBI investigation, of an ominous pattern, in which the attorney general and the deputy attorney general appeared to fear the political consequences of supervising Comey and requiring him to follow DOJ policies?

  One place from which to begin an answer to that question is Phoenix Airport, where on Monday, June 26, 2016, in the late afternoon, former president Bill Clinton was ready to depart on his private plane parked on the tarmac when he noticed that Attorney General Loretta Lynch’s plane was parked next to his. He was an admirer of Lynch and her career as a tough top prosecutor in Brooklyn and as the first African American female to lead the Justice Department. So he decided to pay her a quick social visit. Accounts have it that she felt awkward about saying no, but awkward in the context of an FBI investigation of his wife about saying yes. She agreed to allow him on her plane for a quick hello. The visit lasted about twenty minutes. According to both, they talked only about personal things—children, golf, grandchildren. And that was all.

  Nevertheless, Attorney General Lynch was aware of the bad political optics. Republicans suggested that she had to recuse herself from any role in supervising the FBI investigation of Secretary Clinton. So the next day, she said she would accept the FBI’s recommendations on whether or not to prosecute Hillary Clinton.

  She didn’t need to do that, according to many former Justice Department officials, including former attorneys general, but she did. In any event, Lynch never explained why she did not openly deputize Deputy Attorney General Sally Yates to supervise and provide oversight for FBI director Comey’s decisions to go public regarding the Clinton investigation.

  Moreover, the attorney general did not, nor could she, remove herself from overall responsibilities to enforce long-standing policies of the Justice Department, and to fulfill her obligations to enforce constitutional safeguards in the law enforcement process over which she presided for the entire federal government—especially every citizen’s right to due process of law and the presumption of innocence. Those policies and those constitutional safeguards applied to everyone at Justice, from junior prosecutors in the offices of the ninety-three United States attorneys in the country to every department prosecutor and investigator, including every FBI agent and Director James Comey. And of course, Sally Yates had those oversight responsibilities as well.

  By his own words at the opening of his July 5 press conference, Comey expressed his independence from oversight by the attorney general and deputy attorney general—in fact, “open defiance” might describe his attitude. He said, “I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.”

  When J. Edgar Hoover in the 1940s and 1950s established the FBI and himself as an unaccountable power unto themselves, not subject to supervision by the Justice Department or even, it seemed, the president of the United States, most people then attributed and historians now attrib
ute the rogue Hoover’s power to his possessing personal files that he used to threaten anyone who might challenge his independence and lack of accountability, including presidents of the United States. But once Hoover was gone, the view among future presidents and students of the Justice Department and the rule of law was: Never again would we allow an FBI director to have such power, to be so unaccountable. In 1968 and 1976, federal laws were changed, giving the FBI director a fixed term of ten years and reconfirming that the FBI and its director were part of the Department of Justice and the director was accountable as a direct report to the attorney general and the deputy attorney general, and could be terminated with cause by the president of the United States before the end of his or her ten-year term.

  Yet, there is no indication that Deputy Attorney General Sally Q. Yates (who was now Comey’s supervisor after Attorney General Lynch had recused herself following the Clinton tarmac visit) attempted to exercise any meaningful control on Comey, even after he exhibited his clear willingness to act contrary to department policy. Certainly she does not appear to have warned him against testifying before Congress and saying more than simply repeating and explaining his decision not to recommend prosecution of Clinton or told him to avoid any further offering of opinions and evaluations of the evidence concerning Clinton’s email practices.

  A former senior Justice Department official close to Yates explained why Yates did not call in Comey after his July 5 press conference and challenge his statement that he had intentionally not informed the attorney general or the DAG about holding the press conference or the contents of his statement. This was, the source said, a pragmatic decision. There was concern, based on Comey’s past history, that he might leak such a challenge by Yates to the media, through “friends and associates,” as an effort to muzzle him or to thwart his ability to investigate Clinton. Therefore, the judgment among senior Justice officials, Yates included, was: What’s done is done, and best to leave Comey alone. Why risk a Comey-instigated political firestorm, the source asked, when everyone believed there was no chance Donald Trump was going to win? So the message conveyed to Comey, with no one challenging what he did on July 5 and what he said, must have been: You are on your own—you will have no serious supervision by the Justice Department. As things turned out, this was a bad message for him, for the country, and for our electoral process. Because soon Comey would again ignore clear Justice Department policy, and American history would be changed forever.