Calling All Lawyers, Or, How the Heck Does this Work?

 

With their accustomed speed and discipline, Hillary, the Democratic Party, Democratic elected officials, and MSNBC have all taken up the same war cry: The FBI must release all the Huma Abedin/Anthony Weiner emails immediately. And just for once, quite a few on the other side agree with them–notably Newt Gingrich, who said on Fox News last night that FBI Director Comey should indeed make public every last email no later than this coming Monday.

Can Comey do so? Or (to be a grammatically good boy) may Comey do so?

Surely there are laws, or at least longstanding protocols, that govern just when evidence in criminal investigations may or may not be made public. Comey has already said that the FBI is still examining the emails in question–and the New York Times has reported that they number in the tens of thousands.

To repeat: In the face of calls–howls, really–to release the emails to the public before the FBI itself has even examined them, does Director Comey possess the authority to do so?

Richard Epstein? John Yoo? Anyone?

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  1. Jamie Lockett Inactive
    Jamie Lockett
    @JamieLockett

    Not a lawyer but it would seem that Comey has an affirmative duty to protect any potential classified information that may be in those emails. Therefore the FBI would need to review them before releasing.

    • #1
  2. Randy Weivoda Moderator
    Randy Weivoda
    @RandyWeivoda

    Jamie Lockett:Not a lawyer but it would seem that Comey has an affirmative duty to protect any potential classified information that may be in those emails. Therefore the FBI would need to review them before releasing.

    Exactly what I was thinking.  It would be inexcusably reckless if the FBI were to just dump them on the public.

    • #2
  3. billy Inactive
    billy
    @billy

    Why not release as much information as possible? There is no danger of jeopardizing a prosecution because there won’t be one.  If Trump does win, Obama will pardon everyone involved.

    This will go away by December

     

    • #3
  4. Randy Weivoda Moderator
    Randy Weivoda
    @RandyWeivoda

    billy:Why not release as much information as possible? There is no danger of jeopardizing a prosecution because there won’t be one. If Trump does win, Obama will pardon everyone involved.

    This will go away by December

    If these are State Department e-mails, do you not suppose there is classified info in there?  That’s what the whole controversy is about, Hillary Clinton using a non-secure server that is easy to hack.  If the FBI just puts those out in public, that’s an even worse offense than having them on a server that might be hacked.

    • #4
  5. PHCheese Inactive
    PHCheese
    @PHCheese

    billy:Why not release as much information as possible? There is no danger of jeopardizing a prosecution because there won’t be one. If Trump does win, Obama will pardon everyone involved.

    This will go away by December

    Maybe that is the point all along, a pardon. They actually might be anticipating a Trump victory. A  preemptive pardon. Perhaps a pardon to  preempt impeachment?

    • #5
  6. billy Inactive
    billy
    @billy

    Randy Weivoda:

    billy:Why not release as much information as possible? There is no danger of jeopardizing a prosecution because there won’t be one. If Trump does win, Obama will pardon everyone involved.

    This will go away by December

    If these are State Department e-mails, do you not suppose there is classified info in there? That’s what the whole controversy is about, Hillary Clinton using a non-secure server that is easy to hack. If the FBI just puts those out in public, that’s an even worse offense than having them on a server that might be hacked.

    I should clarify that classified information should not be released. But my hunch is that there is a particular email, or chain of emails, that prompted Comey to re-open the case. That should be released soon.

    • #6
  7. Mike Rapkoch Moderator
    Mike Rapkoch
    @MikeRapkoch

    This is actually a fairly complicated issue. Typically, the FBI does not go public when it comes to criminal investigations. In fact, very few “persons of interest” know they are under investigation until an indictment is issued and the person is arrested. This is the case for a variety of reasons. First, and most obvious, disclosure prior to indictment would complicate the investigation because it would allow the potential indictee to engage in evidence tampering, witness intimidation, and other means of cover-up. Secondly, to publicly disclose could simply destroy a persons reputation. Third, grand jury secrecy rules could be violated.

    As for Clinton, she is a public figure in the most important of elections. I don’t know why the FBI has re-opened the investigation, but I suspect one reason is thatif there is evidence that is likely to lead to a prosecution it’s better for the country to make that determination now rather than after she is elected.

    Even her supporters know that Clinton is a liar and a cheat. But that does not mean the investigation–and it is only an investigation–should be compromised, or that her reputation should be sullied, by public release of evidence.

    Moreover, to do so would risk tainting the jury nationwide, which could mean that a fair trial cannot be had anyway in the US. I am unaware of any law that would allow for a change of venue to another country: Indeed that would be ludicrous. Additionally, if she could not get a fair trial the case could be dismissed which, if she is guilty, would mean she got away with it again.

    • #7
  8. Mike Rapkoch Moderator
    Mike Rapkoch
    @MikeRapkoch

    One other thing. During an investigation that FBI classifies persons of interest (which is not a legal term, nor even a formal FBI term but I use it because most people have some idea of what that means) as “witnesses,” “subjects,” and “targets.”

    Witnesses are those who the FBI does not believe have committed a crime, but may have relevant evidence.

    Targets are not thought to have committed a crime, but do have relevant information and may have done something wrong that does not rise to the level of a criminal act.

    Targets are persons who the FBI has concluded have committed a crime.

    We do not know whether Clinton is a target. The status can change, i.’e., a witness can become a target if evidence of a criminal act is found. So, too, a target can drop down to a subject or a witness. In principle, the FBI will, upon inquiry, tell a POI if they are a target. However, the FBI is, to say the least, inconsistent in its disclosures.

    These categories are for internal FBI use, and are not found in the US Codes or the Rules of Criminal Procedure. Thus, they are highly fluid. Public disclosure, however, would compromise the investigation. We may want our pound of flesh, but even Mrs Clinton has due process protections.

     

    • #8
  9. EJHill Podcaster
    EJHill
    @EJHill

    Actually this is Hillary’s ideal solution.

    Comey has cleared her of “intent” but she will always be vulnerable to the charge that everyone skated and nobody paid the price for obvious disregard of the law. Here, the emails were found on a laptop that someone without the proper clearance (i.e., Carlos Danger) had full access to.

    Now, poor Huma, having already suffered the humiliations of her husband’s Kodak compulsions, must have her Webster Hubble moment and take the fall.

    • #9
  10. Jules PA Inactive
    Jules PA
    @JulesPA

    Randy Weivoda:

    Jamie Lockett:Not a lawyer but it would seem that Comey has an affirmative duty to protect any potential classified information that may be in those emails. Therefore the FBI would need to review them before releasing.

    Exactly what I was thinking. It would be inexcusably reckless if the FBI were to just dump them on the public.

    Correct.  We’d hope the FBI has better sense and protocol than Wikileaks.

    I’m no lawyer but, The pursuit of justice should be about justice, not a tool to get one up one your political opposition.

    If releasing emails damages the cause of justice, then they should remain secure and not public.

    This is especially difficult in this case because we know our opposition is not likely to hold the same standard.

    2016: what is it good for?

    • #10
  11. Dave S. Member
    Dave S.
    @DaveS

    If this were a Netflix series, the HRC camp would have been the ones outing Weiner so that Huma’s fortunes depended more critically on Hillary’s survival.  But its not a TV series, it is the Clintons, so it is probably much worse.

    • #11
  12. BD Member
    BD
    @

    This is most likely being driven by Preet Bharara, not James Comey.  Comey would continue to sweep things under the rug if he could.

    • #12
  13. John Yoo Contributor
    John Yoo
    @JohnYoo

    Not my field, but generally evidence in a criminal investigation is not made public during the investigation itself.  Usually the federal government will even refuse to disclose the raw investigatory files themselves, even after a case is closed.  This protects the subject of the investigation, since such files may contain a great deal of prejudicial, false, or misleading information.  If an investigation is being conducted by a grand jury, a law prohibits the disclosure of evidence except in certain circumstances (like a threat to national security).  You may recall that the Attorney General of Pennsylvania was just sent to jail for violating the secrecy of grand jury information (though that was under state, not federal, law).

    • #13
  14. drlorentz Member
    drlorentz
    @drlorentz

    Dave S.:If this were a Netflix series, the HRC camp would have been the ones outing Weiner so that Huma’s fortunes depended more critically on Hillary’s survival. But its not a TV series, it is the Clintons, so it is probably much worse.

    I’ve always thought that House of Cards was a roman à clef about the Clintons, with some liberties.

    Edit: That’s in addition to Primary Colors, which was a roman à clef about the Clintons, of course.

    • #14
  15. Mr. Conservative Inactive
    Mr. Conservative
    @mrconservative

    Am I the only one asking this question: Why are people not saying “YOU  release them Hillary! YOU  release them Huma!” Supposedly, these are non-work related emails that you deleted. They were found on Huma’s device. Your emails. Stored on Huma’s device. Nonwork related. YOU should be able to release them. Unless…

    • #15
  16. Mr. Conservative Inactive
    Mr. Conservative
    @mrconservative

    drlorentz:

    Dave S.:If this were a Netflix series, the HRC camp would have been the ones outing Weiner so that Huma’s fortunes depended more critically on Hillary’s survival. But its not a TV series, it is the Clintons, so it is probably much worse.

    I’ve always thought that House of Cards was a roman à clef about the Clintons, with some liberties.

    House of cads? House of frauds? House of lies? Lord of the Lies?

    • #16
  17. Peter Robinson Contributor
    Peter Robinson
    @PeterRobinson

    John Yoo:Not my field, but generally evidence in a criminal investigation is not made public during the investigation itself. Usually the federal government will even refuse to disclose the raw investigatory files themselves, even after a case is closed. This protects the subject of the investigation, since such files may contain a great deal of prejudicial, false, or misleading information. If an investigation is being conducted by a grand jury, a law prohibits the disclosure of evidence except in certain circumstances (like a threat to national security). You may recall that the Attorney General of Pennsylvania was just sent to jail for violating the secrecy of grand jury information (though that was under state, not federal, law).

    Got it. Thanks, John.

    • #17
  18. Mr. Conservative Inactive
    Mr. Conservative
    @mrconservative

    John Yoo:Not my field, but generally evidence in a criminal investigation is not made public during the investigation itself. Usually the federal government will even refuse to disclose the raw investigatory files themselves, even after a case is closed. This protects the subject of the investigation, since such files may contain a great deal of prejudicial, false, or misleading information. If an investigation is being conducted by a grand jury, a law prohibits the disclosure of evidence except in certain circumstances (like a threat to national security). You may recall that the Attorney General of Pennsylvania was just sent to jail for violating the secrecy of grand jury information (though that was under state, not federal, law).

    John, would you agree that the target is usually not under such an obligation – –  he or she is under no duty not to release possibly exculpatory  (or I guess inculpatory information – although that would be stupid)information? See my comment below: why aren’t people asking Hillary and Huma to release the emails especially if they are off a private server, kept on a private device, and allegedly non work related– isn’t that Hillary’s position that she deleted only non-work related emails connected to wedding plans and yoga ? inquiring minds want to know John

    • #18
  19. Kozak Member
    Kozak
    @Kozak

    billy:

     

    This will go away by December

    As long as it means the Beast and her mate are back in NY in January.

    • #19
  20. drlorentz Member
    drlorentz
    @drlorentz

    John Yoo:Not my field, but generally evidence in a criminal investigation is not made public during the investigation itself. Usually the federal government will even refuse to disclose the raw investigatory files themselves, even after a case is closed. This protects the subject of the investigation, since such files may contain a great deal of prejudicial, false, or misleading information. If an investigation is being conducted by a grand jury, a law prohibits the disclosure of evidence except in certain circumstances (like a threat to national security). You may recall that the Attorney General of Pennsylvania was just sent to jail for violating the secrecy of grand jury information (though that was under state, not federal, law).

    If I recall, both Mr and Mrs Clinton are lawyers. If so, they should know all this and should not be calling for the release of this information. Or maybe they missed that day in law school, like they missed the perjury lecture.

    • #20
  21. Mr. Conservative Inactive
    Mr. Conservative
    @mrconservative

    THE LETTER (apologies to Joe Cocker)

    as sang by Hillary Rodham Clinton

    Give me a ticket for an aeroplane

    Ain’t got time for no fast train

    Oh, the white house dreams are gone,

    I’m going home

    Cause Comey wrote Congress a letter.

     

     

     

     

    • #21
  22. EJHill Podcaster
    EJHill
    @EJHill

    drlorentz: Or maybe they missed that day in law school, like they missed the perjury lecture.

    We are no longer a nation of laws. The leader matters, not the law.

    • #22
  23. Brian Watt Inactive
    Brian Watt
    @BrianWatt

    Comey is currently and will continue to be demonized by the Hillary Clinton Media (CNN, MSNBC, ABC, WaPo, NYT, et al.). Lynch and Obama may even fire him on or before Election Day and take their chances on FBI agents disclosing what it was specifically that caused Comey to inform Congress. This is going to get very ugly.

    • #23
  24. Muleskinner Member
    Muleskinner
    @Muleskinner

    Brian Watt:Comey is currently and will continue to be demonized by the Hillary Clinton Media (CNN, MSNBC, ABC, WaPo, NYT, et al.). Lynch and Obama may even fire him on or before Election Day and take their chances on FBI agents disclosing what it was specifically that caused Comey to inform Congress. This is going to get very ugly.

    Well, it is Saturday night

    • #24
  25. Brian Watt Inactive
    Brian Watt
    @BrianWatt

    Muleskinner:

    Brian Watt:Comey is currently and will continue to be demonized by the Hillary Clinton Media (CNN, MSNBC, ABC, WaPo, NYT, et al.). Lynch and Obama may even fire him on or before Election Day and take their chances on FBI agents disclosing what it was specifically that caused Comey to inform Congress. This is going to get very ugly.

    Well, it is Saturday night

    A glance at the front page of WaPo shows at least 4 articles that question Comey’s judgment in ignoring DoJ’s advice not to inform Congress of the latest finding. Comey may be toast. Of course, it’s all in the timing. If they fire him and presumable some other agents now, there’s still too much time for blow back. So, DoJ may smother the investigation slowly over the next week before the massacre ensues.

    • #25
  26. Mr. Conservative Inactive
    Mr. Conservative
    @mrconservative

    Muleskinner:

    Brian Watt:Comey is currently and will continue to be demonized by the Hillary Clinton Media (CNN, MSNBC, ABC, WaPo, NYT, et al.). Lynch and Obama may even fire him on or before Election Day and take their chances on FBI agents disclosing what it was specifically that caused Comey to inform Congress. This is going to get very ugly.

    Well, it is Saturday night

    I could see that happening Muleskinner.  The irony is just too rich. Hillary begins her career assisting in the prosecution of  Nixon in the Watergate scandel, and then over the years, she slowly morphs into him–like the Picture of Dorian Gray.

    doriangray_1945download-3

    • #26
  27. Muleskinner Member
    Muleskinner
    @Muleskinner

    Brian Watt:

    Muleskinner:

    Brian Watt:Comey is currently and will continue to be demonized by the Hillary Clinton Media (CNN, MSNBC, ABC, WaPo, NYT, et al.). Lynch and Obama may even fire him on or before Election Day and take their chances on FBI agents disclosing what it was specifically that caused Comey to inform Congress. This is going to get very ugly.

    Well, it is Saturday night

    A glance at the front page of WaPo shows at least 4 articles that question Comey’s judgment in ignoring DoJ’s advice not to inform Congress of the latest finding. Comey may be toast. Of course, it’s all in the timing. If they fire him and presumable some other agents now, there’s still too much time for blow back. So, DoJ may smother the investigation slowly over the next week before the massacre ensues.

    I’d guess that new about smothering an investigation will leak faster than any of the substance of the investigation. It would be a massacre all right, like firing all of the US Attorneys?

    • #27
  28. Mr. Conservative Inactive
    Mr. Conservative
    @mrconservative

    COM-EY! (Apologies to Blondie and her song, “Call me!”)

    As sung by Hillary Rodham Clinton

    Charge me with your charges, baby

    Charge me in my car

    Charge me with your charges, darling

    I know who you are

    Come up off your legal pad

    I know where you’re coming from

    (chorus)

    Co-mey, caught me, on the lies

    Co-mey, caught me every everytime

    Co-mey, caught me off my guard

    He can catch me any day or night

    COMEY!

    • #28
  29. billy Inactive
    billy
    @billy

    Brian Watt:Comey is currently and will continue to be demonized by the Hillary Clinton Media (CNN, MSNBC, ABC, WaPo, NYT, et al.). Lynch and Obama may even fire him on or before Election Day and take their chances on FBI agents disclosing what it was specifically that caused Comey to inform Congress. This is going to get very ugly.

    It is my understanding that he can’t be fired; he has to be impeached.

    • #29
  30. Mark Coolidge
    Mark
    @GumbyMark

    Hillary is calling for release of the emails precisely because she knows they will not be released before the election.  She wants to gain the high ground by pretending its what she wants without any chance of it happening.

    • #30
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