Over the past few days, as the national media has been obsessing over Russia, it’s become apparent that it was a course of misconduct at the FBI that most directly and provably cost Clinton the recent presidential election.
Here’s what we know now:
We know that the now-infamous October 28th Comey Letter cost Clinton the election because polling internals related to the letter and macro-analytic polling data both confirm it. Our nation’s most respected pollster and elections data analyst, Nate Silver, has unequivocably said that if the presidential election had been held the day before the Comey Letter was sent to Congress, Hillary Clinton would be our president. Polling internals confirm that it was Americans’ reaction to the Comey Letter that peeled off the 77,000 votes in Wisconsin, Michigan, and Pennsylvania (and untold millions elsewhere) that ultimately gave Trump a victory in the Electoral College.
We know that the rank-and-file FBI who discovered the “new” Clinton emails on Anthony Wiener’s computer on October 3rd—well over a month before Election Day—did not follow any of their internal protocols in reviewing them. The agents, who were widely said by those in contact with them (including powerful Trump supporters like Erik Prince, Rudy Giuliani, and Jim Kallstrom) to have been livid about Director Comey’s decision not to indict Clinton in July, failed to contact any of their many cooperative witnesses to get more information about these “new” emails—information that was readily available to them and would have established that these “new” emails were in fact duplicates.
We know that these agents waited an astonishing 24 days to inform their boss, Director Comey, that the emails even existed, though Comey had the authority to draft a search warrant for the emails (or, alternately, determine them, via a quick review, to be duplicates) immediately—which determination and/or warrant would have led to the issue of the emails being settled a full month before Election Day.
And we now know that when Comey finally was told of the emails and, inexplicably, failed to see that he already had more than enough information about them to determine that they had no evidentiary value, the search warrant he authorized was filled to the brim with suspicious irregularities. These irregularities include:
1. Comey wrote Congress on October 28th to say that the FBI had been working “around the clock”—ever since he learned of the “new” emails on October 27th—to read the content on Wiener’s computer that the FBI had first discovered on October 3rd, 24 days earlier. In fact, the search warrant the FBI filed as to these emails was signed on October 30th, making it unclear how the FBI was reading any of the emails that were the subject of the warrant on either October 27th, October 28th, October 29th, or the half of October 30th prior to the 12:30 P.M. issuance of the warrant by Judge Kevin Nathaniel Fox. What this suggests is that, either on October 3rd or October 27th or sometime in between, the FBI realized that they did not actually need a warrant for these new emails. Indeed, it would have been immediately obvious to the forensics unit at the FBI that these were already-held emails that had merely been “synched” to Wiener’s computer from email accounts the FBI already knew about and had reviewed. The October 30th search warrant application may well have been, therefore, entirely political (or, in legal terms, “pretextual”): an attempt to retroactively legitimize Comey’s public, election-changing October 28th letter as somehow “legally necessary” due to the (in fact illusory) potential for the “new” emails to contain evidence of a crime. Other possibilities include that it took the FBI—which can produce warrants on very, very short notice if need be, particularly in major cases like this one—almost four days to write up a warrant because in fact it knew it had no probable cause to think the “new” emails were evidence of criminal activity. Warrants that use voluminous irrelevant information to hide their fundamentally deficient legal grounds (see #3, below) take much longer to write than legally sufficient ones—especially when you’re working with an experienced federal magistrate.
This is especially so because, while the FBI deliberately elided from the warrant application Director Comey’s July pronouncement about how to properly read the relevant criminal statutes—that is, his insistence that they required a showing of specific intent to violate federal law—the FBI knew that Judge Fox was aware of what had happened in July. This made it even more necessary for the Bureau to obscure the groundlessness of its warrant application with irrelevant data about the Wiener investigation and the prior stages of the Clinton investigation (before, notably, Clinton’s very public exoneration).
2. The FBI inexplicably asked that its warrant application be “sealed” by Judge Fox because the investigation pursuant to which the warrant was being sought was, the FBI insisted, “confidential.” In fact, the Comey Letter had ensured that the warrant application was being written and presented as part of the least confidential criminal case in American political history. Director Comey had himself revealed all the key details of the case to the American people back in July; nor is there evidence that any new information in the warrant was unknown to the public, given House Republicans’ deliberate leak of the entire Comey Letter to America’s voting population two days earlier (as well as subsequent major-media reporting contextualizing the Letter). It is obvious that one reason the FBI wanted the warrant sealed—and therefore included in it irrelevant but sensitive information—was so that it would be difficult for any party to see it prior to Election Day. If voters had been able to see the warrant prior to voting, it would have revealed to them, and the world, that the FBI in fact had no new evidence on Clinton and, particularly, no new evidence of any criminal activity.
Indeed, even the FBI’s claims that email chains with classified information may have been on Wiener’s computer make no sense, as pre-warrant the FBI could only have deduced this from meta-data—meta-data that would have either (a) confirmed that the FBI already possessed these chains and that these were merely synched-up copies of already-known conversations, or else (b) not in itself have been sufficient to confirm what was in the emails, in which case the submissions of fact made by the FBI in its search warrant application would have been based on in-email information they’d accessed illegally pre-warrant. Of course, in neither of these two cases would the FBI have uncovered any evidence of a crime, as Comey had already made clear to the American people that under the statutes the FBI was then investigating, it was the mens rea (mental state) of a party, not the classification status of any held information, that gave rise to a criminal violation.
Further proof that the FBI intended to bury the warrant application is that it fought vociferously—for a time, at least—to prevent its release when E. Randol Schoenberg, a Los Angeles attorney, sought to have a copy unsealed. Notably, the FBI dropped all objections to Schoenberg seeing the warrant application simultaneous to the Electoral College conducting its state-by-state vote on the next president—thereby ensuring that any release of the warrant would come after Donald Trump had reached the 270 electoral votes needed to ascend to the presidency. The FBI thus adopted, or re-adopted, a non-interventionist policy—with respect to influencing the nation’s political processes—only after its actions had swung the election to Trump.
3. The search warrant application did not allege probable cause to believe a crime had been committed, merely probable cause to believe that emails the FBI already knew were on Anthony Wiener’s computer were indeed on that computer—a legal nonsense and a logical tautology. The reason the FBI could not allege that the “new” emails found on Wiener’s computer a full 27 days before the FBI filed its search warrant application with Judge Fox were evidence of a crime is that it already knew they were not. It knew this in two ways, and for two very different reasons: (1) because, per Comey’s July announcement exonerating Clinton, the FBI had already determined, months earlier, that even holding classified information on a nonsecure home server was not a federal crime in the absence of specific intent to violate laws regarding the handling of classified information, which specific intent the FBI had no evidence of with respect to either Wiener or Abedin; and (2) the FBI had been reviewing the emails’ “meta-data” for almost a month by the time it filed its warrant application, and it would have been clear from the meta-data that the emails in question were all duplicates—”synched” copies of emails from email accounts the FBI already had total control over and to which it had unfettered access.
Further proof of the FBI acting in bad faith in this instance is that between October 3rd—the date FBI agents in the Bureau’s New York field office discovered the “new” emails—and the filing of the search warrant application with Judge Fox on October 30th, the FBI never contacted Anthony Wiener or Huma Abedin. Had the FBI been seeking evidence of specific intent to violate federal statutes, they would have interviewed either Wiener or Abedin or both, and repeatedly, in order to make this allegation of specific intent in the Bureau’s October 30th warrant application. Because it made no attempt to do this, and indeed ignored everything it was being told by the emails’ meta-data about the emails being duplicates from known email accounts, the FBI filed a search warrant application that did no more than say that emails which might contain classified information were on a computer being used by Huma Abedin—something the FBI already knew (with respect to other Abedin computers previously turned over to them) and had already determined was not a crime as to either Clinton or Abedin.
4. It appears that the FBI left out of its search warrant application altogether many of the critical dates—dates and even times of day being common inclusions in search warrants—that would have communicated to Judge Fox that the FBI had been sitting on a computer it now considered mission-critical for almost a month. We must remember that the Clinton case was the most high-profile criminal investigation into a major political figure in modern American history. Had the FBI included any information about when and how it acquired “new” evidence allegedly relevant to this case, it would have signaled to Judge Fox a serious problem in the investigation—both in terms of how the “new” evidence had been handled beginning on October 3rd, and in terms of whether the FBI had (prior to seeking a search warrant, and pursuant to Comey’s October 27th letter to Congress) already begun looking at the emails without court approval. Any federal judge, seeing that a search warrant applicant had already begun reviewing the contested material, would naturally ask that applicant, (1) “If you’re already looking at the information, why do you need me?” and (2) “If you’re already looking at the information without a search warrant, why didn’t you do so 27 days ago, when you first encountered it?” None of those were questions the FBI was prepared to answer at the time—or appears ready and able to answer now.
5. The entire search warrant was unnecessary because the emails could have been reviewed without it. We must remember that, by October 1st, both Wiener and Abedin had been deemed cooperating witnesses by the FBI. All the FBI had to do was ask the two co-owners of the computer to review it for “new” Clinton emails and a search warrant would have been unnecessary. We now know—but it certainly would have been clear to the FBI, given its contacts with Wiener and Abedin, then—that had permission to view all contents of the computer been requested, it would have been granted. So why did the FBI seek a sealed search warrant, which would (and did) raise maximum suspicion among U.S. voters about the emails, instead of simply going the far easier route and asking for permission from the computer’s owners? The mere granting of permission would have underscored that there was nothing new on the computer—and indeed would have given the chance for Wiener and Abedin to reveal, as it would have taken seconds for them to do, that the “new” emails were merely synched emails from other email accounts already reviewed by the FBI. But Wiener and Abedin were never contacted—not even once—by an otherwise zealous, fast-moving investigative team at the New York field office of the FBI.
This is the same office Rudy Giuliani says was livid at both Clinton and Comey and, moreover, leaked information to him and possibly others about the Wiener investigation (possibly with the assistance of Giuliani’s contacts at NYPD, a law enforcement outfit Giuliani had previously overseen as the Mayor of New York City).
6. While we would not normally expect to find this information in a search warrant application, it is worth noting that Director Comey has, since the submission of the warrant application, taken no public steps to determine why rank-and-file FBI agents leaked information of the “new” emails to the Trump campaign before they gave this critical intelligence to Comey himself—a leak which constituted a Hatch Act violation, explains as politically motivated the otherwise inexplicable 24-day delaying in notifying Comey of the “new” emails, and underscores that no one in the FBI credibly believes (or ever believed) the Abedin emails were evidence of a crime. On October 26th, a day before agents in the New York field office of the FBI told Comey about the “new” emails, Rudy Giuliani was on national television teasing information he’d received from “active FBI agents” about an “October Surprise” that would rescue the election for the Trump campaign. This was, again, not only a day before Comey knew about this information but also a full two days before Congress did. Given the timing of Giuliani’s interviews with multiple outlets teasing this news, it’s clear that he’d been the recipient of a Hatch Act-violative leak from the FBI on October 25th at the very latest. And given Giuliani’s very colorful description of the agents who leaked him this information—that they were so mad at Clinton and Comey that they said things to Giuliani he couldn’t even repeat on television—we have confirmation that these agents had sat on the Abedin emails, by October 25th, for over three weeks in order to influence the presidential election in its final days.
A conspiracy of the sort indicated (a) by the timeline above, and (b) the now-public infirmities in the October 30th warrant application filed by the FBI with Judge Fox, is bigger than Watergate.
It is bigger because it involves collusion between the FBI (a nonpartisan and taxpayer-funded organization) and a political campaign to hijack an election. That’s a much bigger ploy than a single political campaign conspiring to steal useful election-related data. While former Nixon White House counsel John W. Dean has recently said (to this author) that “no Watergate comparison [is] justified” because the above facts contain no alleged “violation of [a] criminal statute....[as] the Hatch Act is a civil statute,” where Dean errs, ironically, is in comparing Watergate and the current FBI scandal too soon.
Watergate was fully investigated; we know what happened, more or less, and who was involved, and what laws were violated, and why. We know too that nothing that happened during the Watergate conspiracy materially changed the results of an election. Here, there has been no serious investigation whatsoever of this issue by the mainstream media—only freelance-journalist attorneys like myself and E. Randol Schoenberg—so the scope of what occurred remains unknown. While the mainstream media had catalogued in detail the surprising nature of the Comey Letter, it hasn’t looked at the suspicious events inside the Bureau that preceded and followed it—which is where the real story (and, as such, the consequential conspiracy) lies.
What we do know is that there is a massive volume of smoke here, and at least a medium-sized fire, and an election which, unquestionably, was swung by these events. A full investigation of the FBI’s conduct—on both the Wiener and Clinton investigations—between October 1st and the present is now an absolute necessity.
That investigation should be conducted simultaneously by the national media (if there are any investigative journalists still working for the networks or cable news) and by Congress. To do any less is to say that information on a scandal the scope of Watergate was critical to the American people forty-plus years ago, but that information on an even bigger—and more influential—scandal is of no value whatever to Americans today.
And that would be a sad statement on the current state of journalism—and American culture—if it were true.
But it’s not.