It is Comey who should be Investigated

By Juan Cole | (Informed Comment) | – –

FBI Director James Comey confirmed Monday that his agency has since last summer been investigating the circle of Donald J. Trump for their contacts with the Russian Federation during last year’s election campaign.

He also denied Trump’s allegations that former president Barack Obama ordered wiretaps on him at Trump Tower last fall before the election. Trump had called Obama “sick” in his tweet making the charge. Trump should retract and apologize to president Obama, but of course he will not, since the meaning of Trumpism is never having to say you are sorry.

For reasons that no one can fathom, none of the Democrats on the committee bothered to ask Comey about his own out-sized role in the election.

He reported to Congress that he was investigating Hillary Clinton’s private server and combing through her emails, attempting to discover whether she had been careless with classified material. He thereby cast a pall on her integrity that certainly had more public effect than anything the Russians may have done. It was an egregiously unfair announcement.

I would argue that no such investigation should have been launched publicly of a major candidate in an election year. There was not actually anything suspicious about a private server. As for the charge that her personal server was more at risk of being hacked than a government one, this is not true in any way that matters. Government servers are hacked all the time. The private information on 4 million government employees was hacked, allegedly by the People’s Republic of China. Even the CIA servers have been hacked.

Yet Comey was carrying on two investigations, not one. He was also investigating the Trump circle for their Russia ties.

But he did not let the public know about that investigation last summer or fall.

By revealing the one but not the other, he tipped the scales in favor of Trump.

While I appreciate the hard and dedicated work of FBI agents who actually catch criminals or break up terrorist plots, the ambiguous role of the agency in establishing the rightward political tilt of the country also has to be acknowledged. It is easy for directors to fall into believing that bolstering the current power elite is the same as supporting The American Way. This is not the first time in American history that the FBI gave covert help to the right wing. What is mystifying is that Hillary Clinton was the least leftist Democrat you could imagine, being in the back pocket of Wall Street and of billionaires like Haim Saban.

Then, when Trump plunged in the polls after his salacious interview with Billy Bush came out, Comey blunted Clinton’s momentum by announcing that he’d found more emails (on the laptop computer of Anthony Weiner, who appears to have had some Clinton emails shared with him by his wife, Clinton aide Huma Abedin).

It is arguable that Comey violated the Hatch Act by openly intervening in the election in its last days.

The FBI at no point found anything prosecutable in Hillary Clinton’s emails, whether on her own server or on Weiner’s laptop. But the general public was given the firm impression that she’d done something so wrong that she was under an FBI investigation.

If you were looking for reasons for the black swan event of Trump’s election, Comey’s unfair actions toward Clinton and in favor of Trump would have to be at the forefront.

I’m not alleging that Comey is or was in the tank for Trump. I’m only saying that Comey acted in such a way as to disadvantage Clinton unfairly.

Comey inflicted significant damage on Trump by his testimony on Monday. So he is not showing signs of attempting to shore Trump up.

It is possible that Comey was being procedurally correct. His intervention after the Billy Bush interview was leaked has been interpreted as a case of being careful with Congress. He had told them he’d reviewed all the Clinton emails. Then Weiner was investigated for some sort of sex charge, and new emails showed up, and Comey was afraid word would reach Congress that his investigation had not actually been complete. So he announced the further examination of the laptop and cleared the emails on it as not having been classified within a couple of days. (I’m not sure why it took so long; it is just a keyword search).

On the other hand, the Tea Party Congress was not pressuring him about Russian contacts with Trump’s people, and that investigation was not conclusive, so he may not have felt the same duty to report to Congress.

The conspiracy-minded might conclude that Comey is a Pence supporter, and has cleverly maneuvered Pence into a position where he has a shot at the presidency if Trump is forced out over the Russia scandal.

I am not among the conspiracy-minded, and would need to have proof before entertaining any allegations that Comey is deliberately interfering in domestic politics and engineering individuals into power.

In fact, I can’t make any sense of his actions at all. Why taint Clinton with nothing investigation that went nowhere? Why protect the Trump campaign by keeping knowledge of the Russia investigation from the public? Why drag the Russia investigation on from last July till now (surely the transcripts and emails either provide evidence or they do not)?

On the face of it, it seems most likely of all that the hard line Tea Party Congress managed to coerce him into this behavior.

I conclude that Comey has acted in an unwise and non-neutral way and that historians will place a good deal of the blame for the Trump disaster on him. Whether he has been driven by a narrow proceduralism, or a form of unconscious sexism, or an unspoken GOP bias is at the moment impossible to know. What is clear is that the vast majority of Americans have less reason than ever to trust the politics of the FBI. And maybe we need another investigation, with subpoenas for Comey’s emails.

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Related video:

CNN: “Comey confirms FBI investigating Russia”

30 Responses

  1. Comey’s last minute ditch to help Trump win, has hurt the nation. The emails he released (despite being advised not to) turned out to be nothing, but it may have hurt Hillary too much.
    Today we are cursed with a President, who has only divided the nation, but acts like he has no class, education, or dignity, and has lied almost daily to the American people. It would have been good to hear someone in the panel address this, and ask him if he though he did the right thing then.

  2. Wasn’t Comey in a Catch 22 and whatever he did was going to look wrong to some. One distinction may have been that there was no question Clinton had used an unauthorised mail address and server so that was an unequivocal No No. He’d have been in even deeper water if he’d found serious security leaks later, particularly if he had found them on Weiner’s machine after having told Congress all was clear. On the other hand Trump etc. might or might not have been in contact with Russian officials so there was really no reason to tell anyone…yet. Perhaps the answer is for officials in sensitive positions to go by the book in these matters.

    • Clinton’s server was not unauthorized and was never the issue in the investigation. The question was if she had emailed out highly classified material from it. She did not.

  3. “There was not actually anything suspicious about a private server. As for the charge that her personal server was more at risk of being hacked than a government one, this is not true in any way that matters.”

    I will know people who are very severely hurt by Trump’s travel ban: people that I work with or even closer to heart. Some of Trump’s policies will directly negatively effect me, and Clinton would never carry out such policies. We shouldn’t mitigate the facts on the ground with regards to Clinton’s private email server due to our dislike of Trump. These are two very separate issues.

    There is a lot wrong with Clinton’s use private email server more than what you highlight in your post: (1) it is against the law and (2) it is not up to Clinton’s team to parse through her emails and decide which ones should be sent to government archives as this tarnishes the historical record. Separately, with regards to email security, what you have stated is not sufficient to establish that private servers are just as secure as government servers. The rate of hacking in private servers like Clinton’s is likely to be higher than dedicated State department servers. If not, that is all the more reason why our government officials should dedicate more resources to establish securer governmental servers instead of using their own servers which provides further disincentive for our elected officials to make our government servers secure.

    Contextualize Clinton’s private email server fiasco with regards to all the lies, deceit, and scandals of Trump, but don’t claim that Clinton’s use of a private email server is not against the law or at the very least against the spirit of the law or that it simply doesn’t matter. The Federal Records Act requires agencies to hold onto official communications: Clinton circumvented this by keeping a private server. This was wrong.

      • The Federal Records Act was amended in 2014 (after Clinton left office) so that any communication on a private server must be forwarded to the official electronic messaging account within 20 days. Unrelated, there is security liability. Regardless of whether or not government servers are less secure than private servers, if one keeps a private server, then one is assuming liability for the security of any classified information (even if such information is classified retrospectively). On the other hand, if it’s in government servers, then the onus is on the government to ensure security of it’s servers.

        The Federal Records Act and Section 1924 of Title 18 aren’t just empty words or laws: they place profound restrictions on our government officials in the manner they communicate via email. Even if one genuinely believes that no laws were violated when former Secretary of State used a private server, the spirit of the law was disregarded. This disregard for the law might not mean much, when placed into context of all of Trump’s lies, deceit, and scandal, but we shouldn’t mitigate what was done for political expediency. Former Secretary of State Clinton acknowledges that it would have been wiser to not use a private server.

        • I have some expertise in this area. I was the head of the City of San Diego’s records management program, which was modeled on the Federal program, and I had a top secret clearance while I was in military intelligence. I agree with Professor Cole. No laws were broken and what Clinton did was only slightly different from what Colin Powell did in that she had her own server. We have since found out that many government officials have used unsecured communications for possibly classified materials. The charge that she had classified materials stored on that server is technically accurate, but not a chargeable offense as Comey concluded. All but 3 of the classified materials were classified AFTER she received them. Those that were classified were improperly marked and the violation would be by the person(s) who sent the improperly marked classification, not on the recipient. I dealt with top secret materials on a daily basis and would not have recognized that the improper marking was, in fact, a classification mark. You cannot convict someone of mishandling classified materials if they weren’t classified when you were using them. In fact, I think that would fall under the Constitutional ban of an ex post facto law. I use the analogy of someone driving through an intersection which has no controlling sign, having a stop sign put up the next week and then being charged with running through a stop sign for the previous week before the sign was up. Finally, the shelf life of most intelligence is very short, sometimes weeks, rarely more than months. What is important is if the intelligence reveals sources and methods, which none of the materials on Clinton’s server did, to my knowledge. I think Clinton made a political mistake by having her lawyers go through her server and remove non-record materials, which, by the way, is different from non-governmental materials. Many government records need not be kept or may be discarded after 2 years. Instead, she should have had officials from the National Archives do it. However, I find it unlikely that the attorneys who did it would have intentionally violated the law as it would have put them at great risk professionally and they must have been well versed in the law before they acted.

        • @Gary Page

          Going forward, the amended Federal Records Act makes it difficult for government officials to use private servers for emails: at the bare minimum it is required now to forward the records promptly to the official government messaging service. One can argue as you suggest that this was not the case then with former Secretary of State Clinton. If one cares about the historical record, which I hope commentators here do, then the new amendment is welcome. Prior to the amendment, the spirit of Federal Records Act was still to the effect that emails should not be culled through individuals other than the national archivists. Your comment: “However, I find it unlikely that the attorneys who did it would have intentionally violated the law as it would have put them at great risk professionally and they must have been well versed in the law before they acted…” is speculative. The entire purpose of the act is to remove doubt with regards to the authenticity of the archives. That’s not possible if individuals use private servers and cull whichever records they chose.

          As I stated in the previous comment, one can take the view that no law was violated through former Secretary of State Clinton’s use of a private server: a view that others might have grounds to contest. What I think any reasonable person would have to concede is that the use of a private server and not allowing national archivists to determine which records are relevant for the archives did violate the spirit of the Federal Records Act.

        • @Gary Page

          Largely–I think the debate about the emails is secondary or even immaterial to all the lies, deceit and scandal of Trump. However, I don’t like it when we insist nothing was wrong about the emails. Internal State Department reviews under then Secretary of State John Kerry state that former Secretary of State Hillary Clinton would not have received permission to use the private servers for emails if she ever asked for permission for such an arrangement:

          link to nytimes.com

    • The FBI knew well that Russia has us by the balls. Our security is illusion. News, banking, physical control of industry, your very city depends on the internet. So does the military.

  4. Currently, FBI Director James Comey is the tip of the “vast right-wing conspiracy” that is intent on thrusting our country back to 1946. Comey’s Hatch Act violating actions toward Hillary Clinton and in favor of Trump could not be any more obvious.

    In providing cover on behalf of a foreign power for the already compromised Trump presidency, Comey keeps his job rather than being on the docket for high crimes.

    And we haven’t seen anything, yet.

  5. If you are looking for a hero, or any good guy or gal inside of our Beltway look no more, because your not going to find one. The American citizen has been reduced to their becoming an audience. Everything you see is a performance where we are to be entertained to no end, by the in house fighters. McCartney & Lennon had it right, “Nothing is real and nothing to get hung about.”

  6. I agree with you. Why is it taking so long to investigate the Trump-Russia connection. One would think that a case such as this would warrant the FBI’s more serious attention and supported with heavy resources. There must have been some evidence of of the connection to justify opening the investigation in the first place. Maybe not a smoking gun, but at least a warm gun.

    And at the hearing Comey stated he had no idea how much longer the investigation would take. Almost get the impression that the case has been given to a very busy agent to add to his “to do” list, but no rush.

    At the conspiracy theory level, the evidence might be so conclusive and damning that revelation must be delayed until some plan is developed to cope with a leadership problem that makes Watergate look like a parking violation.

    • It seems the worst thing that could happen would be for citizens to understand FISA law and the 702 amendment. And with any more depth it’ll happen! Snowden’s explained it (not perfectly IMO but he didn’t have all the time in the world). EmptyWheel.net explains it; man is that site cornfusing (if it’s not your full time hobby). I was looking for this COGENT rundown of Juan Cole’s ALL DAY! This article I thought pretty good too link to tcf.org

  7. Several things. Comey was deputy counsel to the Senate Whitewater Committee in 1996. I have seen it speculated that he grew to dislike the Clintons and felt that they were getting away with wrongdoing. That is mere speculation, of course. The other thing is that Rudy Giuliani seemed to know ahead of time that the FBI was going to announce the finding of Clinton emails on Weiner’s computer. Many believe that Giuliani, who used to be US Attorney for New York, has extensive ties to FBI agents in New York and that a cabal of right wing agents in New York were forcing Comey’s hand and keeping Giuliani informed. Here are some pertinent links. link to vox.com and link to huffingtonpost.com then link to m.huffpost.com

  8. During yesterday’s hearing held by the House Intelligence (?) committee Rep. Adam Schiff stated unequivocally that Russia interfered with the 2016 election. Unfortunately, FBI Director Comey didn’t ask Schiff to provide his evidence to assist with the FBI’s investigation into the matter.

  9. The conspiracy-minded might conclude that Comey is a Pence supporter, and has cleverly maneuvered Pence into a position where he has a shot at the presidency if Trump is forced out over the Russia scandal.

    Hopefully, any group seeking to get rid of Trump will wait until after the 2018 elections to give the Democrats a chance to take back the senate and/or the house – not that they will be any great improvement. Other than a nuclear or other war with Russia or Iran, it is difficult to contemplate anything worse than a President Pence supported by Republican majorities in both houses of Congress.

    • Worthy of note: VPOTUS Mike Pence is a Seven Mountains Dominionist or a 7M, an authoritarian political movement hiding under a religious cloak.

      Here is some 7M theocracy to consider. – “We must use the doctrine of ‘Religious liberty’ to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will get busy in constructing a Bible-based social, political and religious order which finally denies liberty to the enemies of God.” – Gary Kilgore North, 1982.“

  10. One of the most interesting things about Hillary’s emails is the fact that NO ONE in authority at the State Department seems to have questioned her use of a private server.

    There are thousands of her emails (both to and from) and anyone the least bit computer savvy would have noticed that her mails did not come from or go to the official State Dept. server. Her private server address was:

    HDR@clintonemail.com

    All other State Dept. employees with whom she exchanged correspondence had a different address:

    @state.gov

    All of the hair pulling and cries of “lock her up” by her adversaries is the height of hypocrisy. Her server may have been private but it was certainly NOT a secret. And it obviously did not attract the attention of State Dept. officials.

  11. I think a waste of time investigating Trump and his “connections ” with Russia. He has a more serious problem: Conflict of Interests.

  12. An at least partial explanation came out at the hearing and news commentary afterward. (I’ve been soaking up so much of this stuff I don’t remember where exactly.) A key fact is that the Trump investigation is ongoing. By some accounts, counter-intelligence investigations tend to take a long time. Comey did not want to violate FBI procedures and jeopardize the investigation by letting on that it was taking place before all the work was done.

    Whereas, the Clinton investigation was a much smaller affair that, as I recall, had been complete when first announced. The next two announcements had something to do with a promise to Congress that any further developments would be followed up if they were to occur, as they did.

    I’m not making excuses for Comey. But I think it’s true, as you’ve implied, that he was faced with a tricky navigation problem. I’ve heard numerous times that not commenting on ongoing investigations is standard procedure. If only the Clinton case had been more complicated and time-consuming, then perhaps Comey would have said nothing till after the election and the investigation(s) were complete.

    A week or two before the hearing—before it had even been arranged—“Ranking Member” Schiff mentioned his frustration with Comey about standard FBI priorities having to do with prosecutability. Hush hush until the whole case is in order. Whereas Schiff, as a Congressman, felt that national security issues were more important. Given the huge pile of highly suspicious circumstantial evidence that had been gathered, Schiff was itching to let everyone know about it, even if resulting court cases might be weakened as a result. My impression is that Schiff’s concerns with respect to Comey have been mostly, if not entirely satisfied by the hearing.

    Such an ugly, horrible, frightening mess.

  13. One may split hairs about this ’till the cows come home but she had done things with her communication arrangements which were felt to demand investigation. That’s where it started. Until recently such lapses would likely pass unnoticed, or at any rate unregarded, but today with media and public sniffing sniffing all over like basset hounds, it behooves officials to be more careful, at any rate to keep ever in mind the 11th commandment, Thou shalt not get found out.

    • Maybe you didn’t see this, but it came out that Clinton actually discussed this with Powell before she took office and he did not counsel her against it. In fact, he sent her an email giving her advice on how best to use her private PDA. See link to usatoday.com
      Also, the whole email issue came out only because of the Benghazi hearings. Even Republicans admitted that the whole purpose of the Benghazi hearings was to try and stop Clinton from winning the presidency since she seemed to have it locked up at that time.

  14. “By revealing one (the Clinton server investigation) but not the other (the probe of Russian ties to Trump insiders), he tipped the scales in favor of Trump.”

    The difference was that an ongoing publicly-disclosed Congressional committee investigation was addressing the Clinton matter – but not so with the Trump campaign-Russia ties being looked into by Comey’s FBI.

    Comey’s long history of large GOP campaign contributions (downloadable on the public Federal Elections Commission website) may set off some warning bells – but it was a Catch-22 situation for him since suppressing the ongoing Clinton server investigation from his communications with the Congressional committee members would have led to attacks from the GOP if later revealed.

    The ethics investigation and firing of FBI Director Wm. Sessions in 1993 by President Clinton was viewed by some to be politically motivated and retaliatory since he was (A) originally a GOP appointee, and (B) involved in investigating possible CIA violations of law in the Agency’s facilitating a 4-billion-dollar FDIC-insured loan from the Atlanta branch of an Italian bank to the Iraqi government that was later defaulted on.

    Anything that James Comey does in these regards will place him under scrutiny from competing Republican and Democratic political factions. He finds himself in the same stead as Wm. Sessions in the early days of the Clinton administration.

  15. Like I told Sherm, I’ve been looking for this simple statement of what’s what all day. Can’t tell you prof how much it’s appreciated. I will contribute!

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