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Tuesday, December 20, 2016

The congress should investigate James Comey

by digby

This is ridiculous:

The warrant connected to the FBI search that Hillary Clinton says cost her the election shouldn’t have been granted, three legal experts who reviewed the document released on Tuesday told The Huffington Post.

FBI Director James Comey shook up the presidential race 11 days before the election by telling Congress the agency had discovered new evidence in its previously closed investigation into the email habits of Clinton, who was significantly ahead in the polls at the time.

When Comey made the announcement, the bureau did not have a warrant to search a laptop that agents believed might contain evidence of criminal activity. The FBI set out to rectify that two days later, on Oct. 30, when agents applied for a warrant to search the laptop, which was already in the FBI’s possession. The FBI had seized the computer as part of an investigation into former Rep. Anthony Weiner, the estranged husband of Clinton aide Huma Abedin.

The unsealed warrant “reveals Comey’s intrusion on the election was as utterly unjustified as we suspected at time,” Brian Fallon, a Clinton campaign spokesman, said on Twitter Tuesday.

Clinton’s lead in the polls shrank in the wake of Comey’s announcement. Then, just days ahead of election, the FBI announced its search was complete, and it had found no evidence of criminal activity. Clinton officials believe that second announcement damaged her as much as, or more than, the first, by enraging Trump supporters who believed the fix was in.

The legal experts’ argument against the validity of the subpoena boils down to this: The FBI had already publicly announced that it could not prove Clinton intended to disclose classified information. Without that intent, and without evidence of gross negligence, there was no case. The warrant offers no suggestion that proving those elements of the crime would be made easier by searching new emails.

The essence of the warrant application is merely that the FBI has discovered new emails sent between Clinton and Abedin.

That’s not enough. The idea that the mere existence of emails involving Clinton may be evidence of a crime is startling, said Ken Katkin, a professor at Salmon P. Chase College of Law.

“The warrant application seems to reflect a belief that any email sent by Hillary Clinton from a private email server is probably evidence of a crime,” Katkin said. “If so, then it must be seen as a partisan political act, rather than a legitimate law enforcement action.”
In the days before the election, Comey informed lawmakers in a letter that the FBI investigators believed they had discovered emails that were “pertinent” to their Clinton investigation, months after Comey had announced that the agency had closed its probe without finding evidence of criminal activity by Clinton. The announcement sent shockwaves through the nation. Some Republicans seized on Comey’s letter, mischaracterizing it as a “reopening” of the case.

Regardless, damage was done by the release of the letter. The Clinton campaign has attributed her loss, in part, to Comey’s letter, arguing that it “helped depress our turnout and also drove away some of our critical support.” Analysis of voter behavior in the final weeks of the campaign does suggest that voters made late moves toward Trump, and the timing of Comey’s letter to Congress helps bolster that argument.

I know that it's considered whining to be concerned about this but seriously, we should be concerned about this. The FBI is the most powerful domestic intelligence and police agency in the country. In the world, actually. It's really a big deal if they interfere in democratic elections. In fact, it's the mark of authoritarian states.

The problem with the warrant really is beside the point. They didn't seek the warrant until after Comey had dropped his bombshell. If they hadn't gotten the warrant it's unlikely it would have made any different. Comey had already tainted the election in the final stretch and it wouldn't have helped. Still, it's outrageous all on its own that this warrant application was "garbage" and that James Comey almost certainly had to have approved it.

If Comey simply "made a mistake" then he should be removed from office because that level of bad judgement means he is incapable of doing the job. If he did this in order to head off Giuliani's pro-Trump FBI agents leaking to the media, then he's lost control of his agency and he also needs to be removed. (And again, it would show monumental bad judgement since a notice coming from the FBI director would be far more damaging than any anonymous leaks to the press from rogue FBI agents. ) And then there's the fact that Comey may have taken the action he did for straight up political purposes. He was deputy counsel for the Republican Senate Whitewater Committee which leaked like a sieve and was outrageously partisan. He should be fired for that.

Whatever James Comey's motives, his actions and that of his agents who seemed to be working on behalf of Donald Trump should be investigated, just as the alleged Russian hacking must be investigated. (Indeed, his unwillingness to put his weight behind a bipartisan statement about the Russian hacking merits an investigation of its own.) This was a world-changing event.

I'm putting this out there just as a marker. I know the Republicans will not investigate this and nothing will happen to Comey. Indeed, he will be considered a hero among many of his his peers for ignoring long-standing directives in the Justice Department, first by assassinating Clinton's character even as he cleared her in July and then interfering in the election just 11 days out. But the rest of us should remember what he did, just for the record.

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Happy Hollandaise everyone.

cheers --- digby