Hillary remains positioned to survive — Comey has done the right thing too late.
Former Democratic congressman Anthony Weiner suffers from a mental illness that compels him to send sexually explicit emails and text messages to women who aren’t his wife. The fact that his wife is Hillary Clinton’s “body woman” — her constant companion and closest confidante — has resulted in FBI Director James Comey restarting the mismanaged investigation into Clinton’s emails that he stopped in July.
In a letter to Congress on Friday, sent against the objections of Attorney General Loretta Lynch, Comey informed congressional committees to which he had testified that the investigation was restarted after the discovery of emails on a laptop that Abedin shared with Weiner before their separation in August. The FBI has examined the laptop as part of its investigation into Weiner’s allegedly sending sexually explicit messages to a 15-year old girl.
We don’t know exactly what they found, but because they were apparently saved to an archive by Abedin, the emails must have comprised emails between and among Clinton, her staffers, and many federal agencies including the CIA, NSA, and other intelligence agencies. These emails number in the tens of thousands. Comey sent the letter after FBI agents briefed him on their initial findings.
To gauge how important the Abedin evidence must be, we have to consider the enormous power of the FBI director. He can make or break careers. Knowing this, the agents investigating Weiner and the agents who had investigated Clinton obviously knew that Comey had already made his political judgment on the Clinton investigation and didn’t want it disturbed.
To conclude that they had to go to Comey and force him to reverse his decision to stop the investigation into Clinton, these agents had to have very clear and highly compelling evidence, giving him a chance to reopen the investigation or have the evidence leaked to the press.
That evidence couldn’t have been routine emails from Clinton to her staff. They had to have included top secret and secret information that Clinton and her team wrote about routinely in unsecured emails that were easily susceptible to hacking by foreign nations and terrorist groups.
Remember, please, that the criminal law not only bars mishandling of classified information in a “grossly negligent” manner, it also prohibits moving it to unauthorized places. An unsecured laptop is one. An unsecured laptop that is accessed regularly by a person who lacks a security clearance (and, being a sexual pervert, clearly untrustworthy) is another.
Remember, too, that despite the characterizations of liberal newspapers such as the Washington Post, this isn’t an investigation into Clinton’s private server. Computers can’t be put in jail. This is an investigation into whether Hillary Clinton and her top aides should be indicted for federal felonies. And that’s the reason Comey stopped it in July and declared that Hillary shouldn’t be prosecuted.
Comey’s letter to Congress said that the FBI was investigating if the information on the Abedin-Weiner laptop was classified. All that means is that they’re getting confirmation from intelligence agencies as to how highly classified the information is.
In his July 5 press conference, Comey said that seven email chains — emails sent to or by Clinton — included Top Secret/Special Access Program and TS/SITK information. TS/SITK is satellite intelligence information. TS/SAP matters can be information on covert action. There are no higher levels of classification. Top Secret information is defined in Executive Order 13256 as information “the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.”
In July Comey also told us that any reasonable person in Clinton’s position, or in the position of her staffers, should have known that they should not be having those email conversations on an unsecured system such as hers which didn’t even have the rudimentary security found on commercial systems such as Gmail.
Comey described Clinton’s conduct, and that of her staff, as having treated highly classified information with “extreme carelessness.” He tried to distinguish Clinton’s conduct from previously prosecuted cases. He said there was no intent to mishandle classified information. But that’s not what the law says.
The law (Title 18 US Code Section 793(f)) makes it a felony to handle classified information in a “grossly negligent manner.” There is no requirement of intent. Comey’s judgment was entirely political, applying a standard to Clinton by which other violators of the law never benefit.
The facts show that Comey wasn’t compelled to issue the congressional letter by anything other than the fact he faces an almost open rebellion among the FBI agents handling the case.
Among the immunity agreements Comey dispensed to Clinton’s staffers like Halloween candy was a truly bizarre requirement. One of the provisions in the agreements with Cheryl Mills, Clinton’s chief of staff at the State Department, and Heather Samuelson, a campaign staffer, required that the FBI destroy one or more of the laptop computers they had examined after performing a specifically limited (and cursory) analysis of their contents.
Friday evening, former US Attorney Joe diGenova, who has been approached by some of the FBI agents and may represent some as “whistleblowers,” told a radio interviewer that the laptops had not, in fact, been destroyed because the agents running the investigation had refused to do so.
Comey is struggling to regain his reputation. It was damaged, probably beyond repair, by his July 5 decisions. When he was briefed about the initial findings regarding Abedin’s shared computer, he had to have realized that the jig was up. Restarting the investigation was his only alternative to having the FBI agents’ findings leaked to Congress and the press.
The sheer volume of the emails on the Abedin-Weiner laptop precludes the conclusion of the restarted investigation before Election Day. Comey knows this, as do the agents, Clinton, and her staffers. Americans now face an election choice between Donald Trump and Clinton. She is facing an investigation that must conclude, on the basis of the evidence under the applicable criminal statutes and contrary to Comey’s July 5 statement, with her indictment on federal felony charges. Contrary to Comey’s July statement, any reasonable prosecutor would believe that Clinton — and several of her staffers — should be indicted.
The facts showing that Comey mismanaged the initial investigation intentionally, with the goal of exonerating Clinton, are compelling. Comey ran the investigation out of his office, not through a local FBI office or task force. No grand jury was empaneled, contrary to Justice Department practice in virtually every major investigation to avail the prosecuting attorneys of the subpoena powers a grand jury has to produce evidence and compel testimony. Clinton’s interview was not videotaped or transcribed, contrary to usual FBI procedure. And, as stated above, too many immunity agreements were made with key witnesses such as Mills.
For whatever reason, Comey believed that making the erroneous conclusions he stated in his July 5 statement would benefit him more than any conclusion that Clinton should be held criminally liable for her actions.
As a result, the FBI’s reputation is in tatters. Comey destroyed the Bureau’s reputation for honest pursuit of evidence, wherever it might lead. The agents who refused to destroy the Mills and other laptops are trying desperately to restore it.
So where does this lead us?
Nowhere. There’s no possibility that the FBI will be able to finish this investigation before the election. It appears most likely that Clinton will be inaugurated before the investigation can be brought to a conclusion and a grand jury could consider an indictment.
However, in 1973, the Justice Department concluded that, “…the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” That opinion was reaffirmed in 2009. It’s impossible to believe that any attorney general appointed by Clinton would allow any variance with that opinion and policy. Any prosecution would have to wait until she left office.
President Obama could pardon her before he left office, eliminating that possibility. Why wouldn’t he?
She still could be impeached. Or could she?
In 1873, the House of Representatives determined that a president (in that case, the Vice President) couldn’t be impeached for conduct that occurred before he was inaugurated. The theory was that those offenses didn’t reflect on his performance in office.
That determination would not bind the new Congress to be sworn in next January. But who believes that Paul Ryan’s House of Representatives would reverse it? No House of Representatives led by Nancy Pelosi would.
Face it, folks. Hillary Clinton will go unpunished for the most serious crimes she’s committed (so far) if she is elected president.
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