In the middle of all of Giuliani’s TV comments came further evidence that certain elements of the FBI were involved in an effort to harm Hillary Clinton’s candidacy in the closing days of the campaign.
On November 1, just one week before Election Day and four days after the release of Comey’s letter, someone in the FBI Washington office released 129 pages from the Marc Rich investigation of fifteen years earlier. Why release those records so soon before the presidential election in which Bill Clinton’s wife was the Democratic Party nominee? The FBI claimed it was a “routine” response to FOIA requests.16
Politico’s Josh Gerstein reported that there was no particular reason for the release under FOIA—“There was no immediate indication of any lawsuits seeking the newly posted material or that a judge had set a deadline for its disclosure.” The Clinton campaign suspected political motives by the FBI for the release, which was publicized by an FBI Twitter account in a new “FBI Records Vault” that, according to Politico, “was dormant for about a year before suddenly springing to life on Oct. 30”—two days after Comey sent his letter. “Absent a FOIA litigation deadline, this is odd,” Clinton press secretary Brian Fallon stated on Twitter, as reported by Politico’s Gerstein. “Will FBI be posting docs on Trump’s housing discrimination in ’70s?”17
An article on Vox.com reported that an internal investigation was triggered at the FBI to question the timing of this decision to post the Marc Rich pardon documents one week before the election. Vox’s Yochi Dreazen reported on November 6, 2016:
It’s come to this: The FBI, America’s premier law enforcement agency, just had to decide whether to investigate one of its own Twitter accounts to see if it had an anti–Hillary Clinton bias.
The account in question, @FBIRecordsVault, burst into the news earlier this week after abruptly posting records relating to Bill Clinton’s last-minute—and deeply controversial—pardon of financier Marc Rich. An FBI official said in an interview that the bureau’s Office of Professional Responsibility referred the matter to its Inspection Division for possible investigation.
Moreover, Vox went on to report that “earlier this week [the week before the November 8 election], unnamed sources within the bureau told the Wall Street Journal that some FBI agents believed they had enough evidence to begin an aggressive investigation into a potential pay-to-play scheme at the Clinton Foundation, but were overruled by more senior officials.”18
The timing of this FBI disclosure just before the election is suspect and should be within the scope of the Justice Department IG’s investigation of Comey and the handling of the Clinton emails issue.
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What does all of this mean? The answer is clear: Based on Giuliani’s open prediction of surprises before the election, there does seem to have been a subterranean, anti-Clinton network at work, perhaps beginning in early 2015 and going all the way up to October 28, an active group sometimes operating independently, but with some overall common plan to do anything and everything to stop Hillary Clinton from what seemed to be her inevitable victory over Donald Trump.
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*. Schweizer also told Wallace, apparently trying to show he was even-handed, that he was working on a book about former Republican governor Jeb Bush. Subsequently Schweizer published a fifty-five-page work about Jeb Bush and his business practices.
†. This is a fantasy that some of the most rabid anti-Clinton FBI agents carried throughout the investigation—that in the first eight weeks that Clinton served as secretary of state, she had written emails that had never been found. She was using her old BlackBerry, and the hope was that this missing trove of emails presumably contained a “smoking gun” proving her criminal intent to hide classified emails on her private server. Yet Comey’s reference to this possibility as “huge” and as involving “golden missing emails” shows he bought into the fantasy and was motivated to send his letter to Congress in part because he worried it might be true and he would be blamed for “concealing” this smoking gun. Of course, we now know these “golden missing emails” did not exist.
‡. The information in the following time line is based on Seth Abramson, “Was Rudy Giuliani at the Center of an FBI-Trump Conspiracy to Steal the Election?” Huffington Post, December 21 and 22, 2016. (His answer, based on circumstantial facts and various Giuliani statements, is yes.)
CHAPTER SEVEN
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The Fallacy of the False Choice
This is the letter Comey wrote to Congress on October 28, 2016:
[To Chairs of Senate Intelligence, Judiciary, Appropriations, and Homeland Security and Governmental Affairs Committees; and to comparable House committee chairs]*
Dear Messrs. Chairmen:
In previous congressional testimony, I referred to the fact that the Federal Bureau of Investigation (FBI) had completed its investigation of former Secretary Clinton’s personal email server. Due to recent developments, I am writing to supplement my previous testimony.
In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.
Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.
Sincerely yours,
James B. Comey
Director
Consider three phrases in the letter.
First: “In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation.”
“Appear to be pertinent”? “Appear” is used only because the writer has no clue what is true or not. He simply doesn’t know. If Comey had some evidence that the FBI investigators had found emails that suggested new information, he could have written, “Based on what agents observed, we have reason to believe there may be new information.”
Then: “. . . to determine whether they contain classified information, as well as to assess their importance to our investigation.” Again, Comey didn’t know whether the trove of emails contained classified information or were important to the investigation.
Last: “Although the FBI cannot yet assess whether or not this material may be significant . . .” For the third time, Comey is telling the world that the FBI has no basis at all to assess the material. In other words, there might be nothing there.
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Both Barack Obama and former attorney general Eric Holder have described James Comey as a good man. But as Holder wrote in an op-ed shortly after October 28, 2016, good men can make bad decisions.
Bad decisions is an understatement. Reckless judgment driven by an overwhelming preoccupation with self to the exclusion of all other factors—including following the rules that everyone else had to follow—is more accurate.
First, Comey was so obsessed with his self-image of being apolitical that he became vulnerable to committing an egregious political act—causing the defeat of a presidential candidate.
On the evening of October 28, after the letter had been sent and had already leaked, Comey wrote a memo to FBI agents explaining what he had done and why. He felt “an obligation” to reveal possible new email evidence concerning Clinton to Congress because, he said, “I testified repeatedly in recent months that our investigation was completed.” He also was concerned about “misleading” the American people if he did not inform Congress.
Jeffrey Toobin posted a brief essay in the New Yorker the next day, October 29, which drew attention to the irony and inconsistency in Comey’s statement. To avoid creating a misleading impression, Toobin wrote, “t
hat’s precisely what he did. . . . He had to know that his vague letter to Congress virtually demanded elaboration from ‘senior government officials,’ who would apply their own gloss, in the form of leaks. The responsibility for the confusion sown by these leaks, if not for the leaks themselves, belongs only to Comey. If the outcome of the Presidential election turns on Comey’s action, that’s his burden, and the nation’s too.”
The second driver of this reckless misjudgment was the rationalization that he had no choice. His only two choices, he said, were to “reveal” or to “conceal,” exhibiting the fallacy of the false choice. Associates of his briefed the media that Comey believed he was between a “rock and a hard place.” Given his commitment to preserving his own integrity and independence as well as the FBI’s, he decided there truly was only one choice he could make—to “reveal.”
He reasoned that there was no way he could read any Hillary Clinton emails without obtaining a warrant. And, as mentioned previously, he knew that the New York City FBI office had many agents who hated Clinton and thought she and her husband were corrupt. So Comey had good reason to believe that if he didn’t “reveal” his next steps to Congress, there would be leaks to the media about his obtaining a warrant to look at Clinton’s emails on Weiner’s computer. And then members of Congress would not only go public with the new activity but also would accuse him of breaking his word and concealing the activity for “political reasons.”
However, if Comey and his senior advisers were concerned about leaks if they sought a warrant, then why didn’t they ask Abedin’s and Weiner’s attorneys voluntarily to allow the emails to be reviewed without a warrant? As has been reported in the media, both attorneys would have agreed.
Even if he never thought of asking for voluntary disclosure, he could have immediately obtained a warrant and searched the computer to determine whether there was information that Congress should be made aware of. And if there were leaks, he would deal with them by refusing to confirm—and by reminding the public that until there were any new facts—and there weren’t—the FBI had nothing to say. The negative impact of such leaks on Clinton’s campaign, with push-backs by the campaign that they were politically motivated, would have been far less than the impact of Comey’s letter to Congress.
Moreover, Comey and his associates, in an extensive postelection spin operation to justify Comey’s October 28 letter, falsely stated that he had promised Congress, and thus had an “obligation,” to report if there was anything new regarding the Clinton emails. Put aside the fact that the FBI is a part of the Justice Department and that he, as FBI director, had no right to make any such commitments because investigatory agencies are not authorized to make policy (much less worry about politics). However, Comey and his senior aides misstated what he had actually promised Congress only a month earlier. When he appeared before the House Judiciary Committee on September 28, Republican Texas congressman Lamar Smith asked him whether there was a possibility that the FBI might reopen the Clinton investigation if it found “new information.” Comey responded, “It’s hard for me to answer in the abstract. We would certainly look at any new and substantial information.”
So the operative words were “certainly look at . . .”—not an obligation to report anything new. And this is precisely what he could have done and should have done—“look at” the Weiner-Clinton emails first before putting anything in writing. Period.
Had he done that, he would not have written a letter, because within a week, the FBI would have been able to search Weiner’s computer and determine that there were no Clinton emails that had not been reviewed earlier.
Another factor leading Comey to write the letter, according to the New York Times on April 22, 2017, was an email that the FBI discovered in a batch of hacked documents from an unknown source, allegedly a “Democratic operative.” The email suggested that Clinton need not worry about Comey’s investigation because the attorney general, Loretta Lynch, could be controlled and would not allow a prosecution of Clinton to occur. According to the article, Comey and his advisers were worried that if this email were leaked and damning new emails were found on Weiner’s computer, they would face even further criticism from congressional Republicans. Then, on May 24, the Washington Post broke the story that this same email was, in fact, created by Russian intelligence as part of their misinformation kompromat techniques. Comey and associates subsequently claimed they “already knew” the email was fake and a product of Russian intelligence but nevertheless were worried that if leaked it would be misused by Republicans.1 I don’t know which is worse—that the FBI and Comey believed the fake memo was real or that they knew the Russians were involved but still were concerned about the email being misused by Republicans.
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It also should have been obvious to Comey that he had no choice but to abide by Justice Department policies and not do anything eleven days before a presidential election. And he should never have even considered violating these policies because of his worry about congressional reactions after the election. If the worst case happened and Congress discovered new prejudicial emails after the election, Comey had a solid response: We followed the department policies, as we are required to do, and in any event, we had nothing factual to report prior to the election.
Let’s dwell a moment on the Justice Department’s long-standing policy not to take any actions (even, as one former deputy attorney general told me, an indictment for a serious crime) if an election is pending and to do so might affect the outcome. Only if there is a need to arrest and take someone off the streets who represents a danger to others, for example, is there to be an exception. Indeed, a memo is circulated in every presidential election year by the attorney general to remind Justice of these rules.
For this reason, the criticism of Comey in the legal community came from experts and former attorneys general from both parties. Two George W. Bush attorneys general, Alberto Gonzales and Michael Mukasey, criticized Comey for his decision. Two former deputy attorneys general—Larry Thompson under Bush and Jamie Gorelick under Bill Clinton—wrote a joint op-ed for the Washington Post on October 29, 2016, which reminded everyone about the sixty-day embargo policy that Comey had knowingly violated:
Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated [meaning a final verdict after due process of law], such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016. . . .
When they take their vows and assume office, senior officials in the Justice Department and the FBI become part of these traditions, with an obligation to preserve, protect and defend them. . . . They owe a solemn obligation to maintain that credibility. They [read: Comey] are not to arrogate to themselves the choices made by the Justice Department and honored over the years.
A group of nearly one hundred former federal prosecutors and senior Justice Department officials, including former Obama attorney general Eric Holder, issued an open letter on October 30, making the same case concerning Comey’s letter:
. . . Setting aside whether Director Comey’s original statements in July were warranted, by failing to responsibly supplement the public record with any substantive, explanatory information, his letter begs the question that further commentary was necessary. For example, the letter provides no details regarding the content, source or recipient of the material; whether the newly discovered evidence contains any classified or confidential information; whether the information duplicates material previously reviewed by the FBI; or even [quoting from Comey’s letter] “w
hether or not [the] material may be significant.”
These former prosecutors and senior Justice Department officials added, “The fact remains that the Director’s disclosure has invited considerable, uninformed public speculation about the significance of newly discovered material just days before a national election.”
Republican and Democratic pundits and editorial boards also criticized the Comey decision, from right to left and in between. The conservative columnist George Will wrote, “This is a content-less October surprise . . .” He called Comey’s letter to Congress “baffling,” adding, “The duty of the FBI is to investigate, and when it thinks it has concluded an investigation, to pass its conclusion on to the prosecutorial arm of the Department of Justice, not to write letters to the legislative branch of government.” And the Washington Post editorialized that the timing of Comey’s letter was “unfortunate, given its potential to affect a Democratic process in which millions of people are already voting” and “set[s] a precedent that future partisans who are unhappy with the results of the FBI investigations may exploit.”
* * *
The Justice Department is a huge governmental organ with some 113,000 employees. The people at its top are political appointees who have reached their positions by dint of hard work, intelligence, and outstanding records. This is also to say that James Comey had bosses at the department. There has been much oblique reporting that Attorney General Lynch and Deputy Attorney General Yates were opposed to his sending the October 28 letter before he sent it. But I have talked to multiple sources about what really happened on the dramatic day, October 27, when the AG and DAG learned that Comey was seriously considering sending his letter.
The discussions were carried on indirectly, using intermediaries. Representatives of both the attorney general and the deputy attorney general and the FBI director carried their arguments back and forth. The reasons for the underlying policy against doing or saying anything that might influence an election were stressed as being meant to avoid any appearance of political interference. Ironically, the arguments back from the director’s representatives were similar—avoid even the appearance of being involved in political considerations. Each side recognized the validity of the other’s arguments, but both knew they were not the principals.
The Unmaking of the President 2016 Page 11
