U.S. District Court Royce Lamberth issued the order Monday in connection with a five-and-a-half-year-old Freedom of Information Act lawsuit the conservative group Judicial Watch filed seeking emails related to the deadly 2012 attack on U.S. facilities in Benghazi, Libya,” Politico reported. “Clinton was previously required to submit a sworn written statement about her email use, but the deposition—if it takes place—would be the first time she has had to submit to live questioning under oath on the subject.”
The court ruled that Clinton’s prior testimony, which was in writing, was not sufficient:
The Court has considered the numerous times in which Secretary Clinton said she could not recall or remember certain details in her prior interrogatory answers. In a deposition, it is more likely that plaintiff’s counsel could use documents and other testimony to attempt to refresh her recollection. And so, to avoid the unsatisfying and inefficient outcome of multiple rounds of fruitless interrogatories and move this almost six-year-old case closer to its conclusion, Judicial Watch will be permitted to clarify and further explore Secretary Clinton’s answers in person and immediately after she gives them. The Court agrees with Judicial Watch – it is time to hear directly from Secretary Clinton.
Clinton was the subject of an FBI criminal investigation over her use of the private email server and was cleared before the 2016 election by former disgraced FBI Director James Comey. The entire investigation into Clinton and Comey’s exoneration of Clinton have come under intense scrutiny amid allegations of political bias impacting the outcome of the investigation.
Comey prepared the draft exoneration for Clinton before conducting interviews with top Clinton aides who were offered immunity for their cooperation, Senate Judiciary Chairman Chuck Grassley and Sen. Lindsey Graham said Thursday in a joint statement, citing transcripts of interviews with former Comey aides obtained by the Senate judiciary committee.
“Conclusion first, fact-gathering second — that’s no way to run an investigation. The FBI should be held to a higher standard than that, especially in a matter of such great public interest and controversy,” Grassley and Graham wrote in a letter to FBI Director Christopher Wray seeking more information — including all drafts of Comey’s final statement on Clinton’s emails by September 13.
“Clinton and her lawyers have spent months inventing one excuse after another for why she shouldn’t have to answer questions in a deposition about her unauthorized and unsecured computer system,” Fox News legal analyst Gregg Jarrettsaidin response to the newest developments in the case. “She used a clandestine server to handle all of her electronic communications as secretary of state, including the transfer and dissemination of thousands of classified and top-secret documents.”
“Clinton almost certainly committed a myriad of felonies under the Espionage Act and other criminal statutes,” Jarrett continued. “Instead of pastel pantsuits, Clinton should be wearing an orange jumpsuit. But the Obama administration protected her, allowing former FBI Director James Comey to clear her by twisting the facts and contorting the law.”
Lost in the reaction to the news that former FBI Director James Comey will not be prosecuted for being an insufferable jerk is that the inspector general established, once and for all, that yes, James Comey is in fact an insufferable jerk.
Which means, at a minimum, Trump was right to fire him.
Special Counsel Robert Mueller could not decide whether firing Comey violated federal laws against obstruction of justice. Inspector General Michael Horowitz answered that question with a resounding, “Are you kidding me, Bob?” He wrote:
Comey violated FBI policy and the requirements of his FBI Employment Agreement . . . Comey set a dangerous example for the over 35,000 current FBI employees . . . Comey’s closest advisors used the words “surprised,” “stunned,” “shocked,” and “disappointment” to describe their reactions to learning what Comey had done.
This is only the leak case, remember: the one where Comey got the New York Times, CNN, and MSNBC to report his psycho-fantasies by putting them into an official-looking memo and leaking them through a Columbia law professor.
The reason he was not prosecuted was that it would just cause problems to designate as “classified” the anti-Trump porn he dreamed up and locked in a safe at his house. United States v. Comey in this instance would only elevate his mad ranting to a national secret.
Don’t Forget the Ukraine Angle
The real crime is that Comey lent the credibility of the FBI to bolster a ridiculous smear fabricated by the Democratic National Committee to undermine the Trump campaign and then his presidency. If we cannot prosecute that crime, we are a banana republic.
Attorney General Bill Barr has appointed John Durham to investigate the origins of the Trump-Russia probe. When he looks for who planted the stupid idea that Trump colluded with Russia, he will find, in each instance, that it was DNC working with the Clinton campaign—and Comey was involved up to his neck.
In a January 11, 2017 story headlined “Ukrainian Efforts to Sabotage Trump Backfire,” Politico reportedthat Alexandra Chalupa, a Ukrainian-American operative, began doing opposition research for the DNC about Donald Trump and Russia in late 2015.
The Ukrainian embassy worked closely with Chalupa to undermine Trump’s campaign. As Politico noted, “The Ukrainian efforts had an impact in the race, helping to force Manafort’s resignation and advancing the narrative that Trump’s campaign was deeply connected to Ukraine’s foe to the east, Russia.”
Chalupa was so successful in fanning the Russian nonsense that on October 24, 2016, reporter Michael Isikoff at Yahoo News portrayed her work as pivotal in a premature victory lap for the Clinton campaign.
A single, uncredentialed agitator, though, was not enough for Hillary and her crew. The Clinton campaign and the DNC commissioned the Steele dossier, to give British spy level credibility to Chalupa’s Chicken Little act.
The Steele dossier was uncorroborated, unverified, and false. That didn’t stop Comey and other political operatives at the FBI from turning it into evidence to support FISA warrants permitting them to spy on the Trump campaign.
Obviously, politicians should never, ever, ever be allowed to use their bought and paid for political opposition research to get their opponent investigated using clandestine measures.
Overly Politicized Federal Law Enforcement
The attorney general has already noted that it is unusual for the FBI to conduct investigations based on opposition research which “on its face had a number of clear mistakes and a somewhat jejune analysis.” That is Watergate times 10,000.
This cannot end upon the FISA investigation, though, no matter how satisfying it will be to see the conspirators start to get prosecuted. There is one additional piece of the puzzle that exceeds FISA abuse in its sheer audacity.
The whole mess began when the DNC sold the phony idea that Putin stole its emails. To this day, though, the FBI has never tested the computers. Instead, the FBI put its head in the sand and allowed the DNC to construct a Russia-did-it excuse to deflect attention from its damaging emails.
Comey ridiculously allowed the DNC to hire CrowdStrike to conduct the crucial autopsy in this murder investigation. Dmitri Alperovitch, co-founder and chief technology officer of CrowdStrike, is a Russian expat and a senior fellow at the Atlantic Council, a think tank with a non-Trumpian agenda.
The Atlantic Council is funded by Ukrainian billionaire Victor Pinchuk, a $10 million donor to the Clinton Foundation with additional millions committed. It was CrowdStrike—and not any unbiased law enforcement agency—that purported to connect Putin to the hack of Podesta’s emails.
CrowdStrike’s story raised more questions than it answered. A reputable group of former intelligence officials, the Veteran Intelligence Professionals for Sanity (VIPS), has been critical of CrowdStrike’s workbased on its own forensic analysis.
At the same time, it was being paid by the DNC to inspect its computers, CrowdStrike was caughtfabricating a completely different Russian hack to serve Ukrainian disinformation. It had a dog in this fight.
That is three distinct instances—Chalupa, Steele, and CrowdStrike—where DNC opposition research was used in federal law-enforcement investigations. It doesn’t even include the work the FBI and CIA were doing with foreign intelligence services to get Hillary Clinton elected.
The inspector general has already concluded that the FBI was acting with political bias. Ya think?
There may not be a criminal indictment for Comey (yet). But it is certainly an indictment of the federal bureaucracy that a Mitty-esque figure like him could drag America through his imaginary battle against the Russians.
If he is not someday locked in an iron mask and set adrift in a rudderless skiff upon an edict that he may never again hear news of his country—or whatever the 21st-century equivalent of that is—we might as well just open the borders and end this experiment in democratic governance.
James Comey on his book tour, April 18, 2018 (Reuters photo: Lucas Jackson)He knew Obama’s Justice Department would sweep Hillary’s violations under the rug, so he played along.
While promoting his memoir, A Higher Loyalty: Truth, Lies, and Leadership, former FBI director James Comey sat for what turned out to be a tough but fair and refreshingly civil interview by Bret Baier, host of Fox News’s Special Report. (See Part 1 and Part 2.) Owing to President Trump’s comparatively unhinged interview earlier in the day on Fox & Friends, the Trump–Comey feud over alleged leaking of classified information is drawing most of the media attention. But something more important is less apparent: Comey has implicitly confirmed what we’ve been saying here for well over a year: In the Clinton emails caper, the fix was in.
Before we turn first to leaking, some disclosure. I am fond of Jim Comey and have been for 30 years. I vigorously disagree with both his handling of the Clinton emails investigation and the manner in which the FBI has conducted what is supposed to be a classified, counterintelligence probe of Russia’s interference in the 2016 election — not a public, government-orchestrated campaign of insinuation that Trump was complicit in Russian perfidy.
No doubt because of my personal regard for him and respect for his high-end ability, I am inclined to cut the former director slack. He was thrust into a no-win situation: It is not his fault that Democrats nominated a criminal suspect, or that Republicans nominated an irregular politician heedless of the norms of discretion and distance that a president should maintain when dealing with his law-enforcement subordinates. Comey aside, I had no better friends in nearly 20 years as a federal prosecutor in New York than Dan Richman, the Columbia Law School prof through whom Comey transmitted information to the New York Times, and Pat Fitzgerald and Dave Kelley, Comey’s lawyers. These aren’t just former colleagues of mine; they are old friends. I haven’t tried to speak to any of them about this matter, but my esteem for them weighs on me — as does my duty to be an honest analyst. How well I resolve that tension is not for me to say; I can just tell you it is real.
Comey Did Not Leak Classified Information Notwithstanding the president’s insistence that Comey leaked classified information, the known evidence strongly suggests that this is not the case. To be clear, there are significant problems with the former director’s account, but the claim that he committed a crime is specious.
The leak claim centers on a memo-to-self Comey wrote about a White House meeting on February 14, 2017, in which he alleges that the president asked him to drop the investigation of Michael Flynn, the former national-security adviser whom Trump had fired the preceding day. Several months ago, when we first learned that Comey had written memos of his conversations with the president, I observed that they were unlikely to be classified because Comey, who is smart and careful, would avoid including such information. Well, the memos were made public about a week ago, and we now know that the one in question is not classified. (See here, pp. 10–11.) Obviously, unless information is classified, the criminal laws against unauthorized disclosure of such information are inapposite.
As for the rest of the story, the best thing Comey has going for him is Trump. In his over-the-top way, the president publicly accused the former director of a felony, so the controversy is focused on whether Comey is guilty of a crime—which he is not.
But an incident can be disturbing without being incriminating.
If our hypothetical agent were ever called to testify, any judge in America would rule that the notes are constructively government property, and that the government must produce them to the defense. They would be deemed a government record generated by a government agent in the course of and in relation to official government business.
If Comey had not been the FBI director, he would not have had these discussions with the president of the United States about investigations. His memos, clearly, were made in the course of and in relation to his official duties. They were written on FBI-issued equipment. The standard FBI employment agreement unambiguously states:
All information acquired by me in connection with my official duties with the FBI and all official material to which I have access remain the property of the United States of America.
These memos belonged to the government. The information in them belongs to the government. Indeed, some of the memos evince Comey’s understanding of this: Two are in the form of emails Comey sent to his top FBI staffers — one with the subject line “My notes from private session with PE [President-elect] on 1/16/17”; another, dated March 1, 2017, with the subject line “Call from POTUS.” Of course, we know that the FBI was scrutinizing the campaign Trump ran, and that Comey says Trump had pressured him to drop the Flynn investigation. So Trump — regardless of what Comey was telling him in their face-to-face conversations — was a subject of FBI investigations. Palpably, that’s why the director shared his notes with the team running the investigations — even asking, in the first memo, whether in designating it “SECRET” he had chosen “the proper classification.” (The first memo (“1/16/17”), which was not leaked to the media, is classified and contains redactions.)
But in fact, the February 14 memo (the physical memo and its informational content) belonged to the government. Comey orchestrated the transmission of its contents to the media without authorization. That’s a leak, period. Comey has tried to circumvent this inconvenience by a crimped definition of “leak” — it is only, he told CNN’s Anderson Cooper, the “unauthorized disclosure of classifiedinformation.” No, that is a classified leak. Other unauthorized disclosures to the media of non-public government information may not be quite as serious, but they are still leaks.
As a matter of fact, most non-public investigative information the FBI generates is not classified, yet its unauthorized disclosure is forbidden — and rightly so: A great deal of non-classified information is highly sensitive, and its disclosure could endanger lives and destroy investigations. No surprise, then, that the FBI employment agreement outlines several categories of information (I count 13 of them besides classified information) that officials are prohibited from disclosing without authorization. As of the moment he was fired, the former director was no longer empowered to authorize the dissemination of non-public government information outside the government. Absent permission from a qualified official, he simply was not authorized to cause the release to the media of an FBI-generated memo about a meeting between the president and the FBI director (even though he wrote the memo and was the director in question). To his credit, Comey conceded to Baier that, while the claim that he leaked classified information is frivolous, the question of whether he violated his employment agreement is not.
Having defensible reasons makes Comey’s actions understandable, but not appropriate. He leaked, and he should not have leaked. It was not a crime, but it should not have happened.
Moreover, all high executive-branch officials know that conversations with the president about official business are potentially covered by executive privilege. That is why executive officials typically refuse in congressional testimony to answer questions about conversations with the president — the privilege belongs to the president. An executive official who discloses without authorization deprives the president the opportunity to assert the privilege lawfully.
Comey was not without his reasons. Trump had ominously and falsely suggested that there were secret recordings of his conversations with the former director. Although the president’s intimation was that Comey might lie about these conversations, Comey believed any tapes would corroborate his version of events. So, he reasonably figured that, by disclosing his account of the Flynn meeting, he might force disclosure of any recordings Trump had — perhaps through a special-counsel investigation of whether the Flynn conversation amounted to obstruction. As it happens, after a special counsel was appointed, the president admitted there were no recordings.
Having defensible reasons makes Comey’s actions understandable, but not appropriate. He leaked, and he should not have leaked. It was not a crime, but it should not have happened.
Yes, the Fix Was In These columns have repeatedly pointed out that the decision whether to indict Hillary Clinton for mishandling classified information was not the FBI’s call. It was up to the Obama Justice Department, which was in the tank for Mrs. Clinton and was taking direction from President Obama. In April 2016, Obama publicly stated that he did not want his party’s inevitable nominee charged with a crime.
In making that assertion, Obama distorted the Espionage Act, falsely implying that it required proof of intent to harm the United States before someone could be convicted of mishandling classified information. To the contrary, the law holds that a person is guilty (1) if she willfully causes the unauthorized transmission of classified information — meaning if she understands the wrongfulness of the action and intentionally performs it anyway — or (2) if through “gross negligence” she permits the information to be removed from its proper place or to be otherwise mishandled (see Section 793(d), (e), and (f) of Title 18, U.S. Code). The Justice Department adopted Obama’s erroneous intent standard, as, ultimately, did Comey.
The former director’s statements in the Brett Baier interview firmly establish that the decision not to indict Mrs. Clinton was based on Obama Justice Department standards, not on the terms of the statute.
For example, when asked why he was confident, long before Clinton was even interviewed, that she would not be charged, Comey said the investigators working the case told him, “Look boss, on the current course and speed, it looks like it’s not gonna get to a place where the prosecutors would bring it.” It was not that the evidence was insufficient under the law; it was that the Justice Department would not indict.
Baier then played a now-familiar recording of Comey, under questioning by Representative Trey Gowdy (R., S.C.), conceding that Clinton had made various false claims about her emails (no emails “marked ‘classified,’” no classified emails sent or stored, all work-related emails returned to the State Department). Baier then asked why, despite this pattern, Comey had made his decision against charges even before Clinton was questioned. While denying that he had made a final decision at that point, he said he had a “general sense” that the evidence was “unlikely to get us to a place where they would prosecute at the Justice Department.”
Comey is trying to have it both ways: He wants you to accept that he made the decision not to prosecute on his own, out of fear that the Justice Department was tainted by bias in Clinton’s favor. Yet, when dismissing critics’ claims that the proof was more than adequate under the applicable law, he shrugs his shoulders and says, in effect, “What could I do? I was constrained by the Justice Department’s interpretation of the law.” That is, his hand was forced by the same pro-Clinton bias that he was supposedly thwarting.
This became excruciatingly apparent when Baier pointed out the care Comey took to describe Clinton’s conduct as “extremely careless” rather than “grossly negligent” — the state of mind criminalized by the Espionage Act. Though these terms are substantively indistinguishable, this semantic ploy enabled Comey to obscure the inconvenience that Clinton was guilty under the statute as written. Comey’s retort was telling:
I was struggling with the fact that we thought it was not mere sloppiness but didn’t rise to the level of criminal misconduct that the Justice Department would prosecute. So, how do you describe that? I probably should have said “really sloppy.” I wanted to be honest and say, “It’s above ‘sloppy.’ It doesn’t add up to what the 1917 statute meant when it said, “‘Grossly negligent’ is a felony.”
No, to be honest, the FBI just has to describe what she did. If what she did was extremely careless, then that does add up to “grossly negligent” under the 1917 statute — but it is for the Justice Department to connect those legal dots. If Obama’s Justice officials fail to do so, that’s politics, not law enforcement, so why let the non-partisan FBI get dragged into it? It is not the FBI’s job to make pronouncements on the law. It is not the FBI’s burden to pull out the thesaurus and don Mrs. Clinton’s misconduct in just the right lexical finery until it finally fits the Obama Justice Department’s misinterpretation of a clear criminal statute.
It was not the FBI’s task to manage Mrs. Clinton’s risks or defend the Obama Justice Department’s politicized enforcement standards.
Again, Comey would have us see him, simultaneously, as the stalwart check on potential Justice Department corruption and the helpless slave of Justice Department direction. But he can’t be both. The simple fact is: Nothing obliged him to exercise prosecutorial discretion in the emails investigation. The FBI’s job was to investigate, not to decide whether the evidence was sufficient to support an indictment. If he was worried that Attorney General Loretta Lynch was conflicted, the upright move was to advise her to step aside — and to do it not at the end but at an earlier point, when it might have helped the FBI get out from under the irregular constraints her Justice Department was imposing on investigators. And a prosecutor’s conflict is not a basis for the FBI to appropriate her authority — Lynch had a deputy and other subordinates who could have acted as attorney general if her recusal was warranted.
More to the point, there was no need to say anything. There is no requirement that the FBI or the Justice Department ever announce that an investigation has been closed. The former director keeps asking, “What was I to do” under these difficult circumstances? The answer is: nothing. The government speaks in court, when a person is formally accused of a crime and has the full pallet of due-process rights to defend herself. Unless and until that happens, no one is entitled to know whether an investigation exists or what its status may be.
The public did not have the right to know what was happening in the Clinton investigation. In fact, we recently learned in connection with the inspector-general’s report on Comey’s deputy, Andrew McCabe, that Comey had quite properly tried to conceal the existence of an ongoing investigation of the Clinton Foundation. It was not Comey’s fault that the Democrats nominated someone under criminal suspicion, but neither was it Comey’s duty to remove the suspicion. Indeed, Comey repeatedly told Trump that the FBI could not publicly say Trump was not a suspect: If new evidence ever emerged that turned Trump into a suspect, Comey explained, he would be obliged to correct the misimpression.
So why not the same rules for Clinton? After all, those are the rules. When the Democrats nominated Clinton, they were knowingly running the risk that the investigation might explode her candidacy. If the country had elected her, we would have been running the risk (however minimal) that a Clinton Justice Department might someday indict her. It was not the FBI’s task to manage Mrs. Clinton’s risks or defend the Obama Justice Department’s politicized enforcement standards.
Director Comey took it upon himself to do both. It was not possible simultaneously to do that and to protect the FBI from the fallout.
