Quick Thought on Comey

 

I think that Comey has now been wrong twice. First, he didn’t have the authority in the summer to decide whether to bring charges based on the evidence that the FBI had gathered on Hillary Clinton’s private e-mail server. That is up to the Justice Department’s prosecutors. He was also wrong on the reading of the criminal statute on misusing classified material, which is why that decision is up to the prosecutors, not the investigators.

Second, Comey is wrong to disclose the restart of the investigation over the weekend into the evidence — he has apparently violated DOJ internal guidelines and historical practice. The only similar example that I can think of was Lawrence Walsh, as independent prosecutor, naming Caspar Weinberger as a criminal suspect right before the 1992 elections — an example which shows why current guidelines are right.

Comey had to disclose the re-opening of the investigation to correct his first mistake over the summer and to make up for his unprecedented chest-beating in public and Congress about it. In other words, he had to make this second mistake to make up for the first mistake.

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  1. Paul Dougherty Member
    Paul Dougherty
    @PaulDougherty

    I can’t shake this sense of being unduly kept in the dark. As a voter, I would like to make an informed decision. I understand that the releasing of this information may be viewed as an attack on one side or putting the finger on a scale, but as a voter I want to know beforehand. I hate this game of ‘”I’ve got a secret”.

    • #1
  2. EJHill Podcaster
    EJHill
    @EJHill

    This is also a prime example of why early voting is wrong, wrong, wrong. 22 million Americans have already voted. One third of the electorate has made a choice before this came out.

    • #2
  3. Joseph Stanko Coolidge
    Joseph Stanko
    @JosephStanko

    John Yoo: I think that Comey has now been wrong twice.

    Fortunately, as everyone knows, two wrongs make a right.

    • #3
  4. rgbact Inactive
    rgbact
    @romanblichar

    Thank you for your esteemed opinion.  My laymen take is I actually agreed with Comey punting on the summer decision. Just chew out Hillary publicly and let voters decide her fate, seemed like the non political thing to do. As for his decision on Friday….I have to believe there are other issues behind the scenes that forced Comey’s hand.

    Either way, I’m looking forward to lots of investigations for President Hillary in the future…..which should bode well for Republicans, once we can finally get rid of our political anchor named Trump.

     

    • #4
  5. RyanM Member
    RyanM
    @RyanM

    rgbact: Just chew out Hillary publicly and let voters decide her fate, seemed like the non political thing to do

    well… unless she had actually committed a crime.  Problem is when the election means that someone won’t be treated the same as an ordinary citizen would.

    • #5
  6. HVTs Inactive
    HVTs
    @HVTs

    John Yoo: First, he didn’t have the authority in the summer to decide whether to bring charges based on the evidence that the FBI had gathered on Hillary Clinton’s private e-mail server. That is up to the Justice Department’s prosecutors.

    Professor – I thought that Comey’s boss, AG Lynch, assigned him the job of deciding whether to move forward with the case after she recused herself (due to her clear ethics (maybe legal?) violation . . . the infamous tarmac meeting Bill Clinton, husband of the accused).  Aren’t you blaming the victim her?

    • #6
  7. James Gawron Thatcher
    James Gawron
    @JamesGawron

    John,

    When Bill Clinton sat with Loretta Lynch for half an hour on the plane that was the end of guidelines and historical practice. If the Republican Party wasn’t so obsessed with destroying its own nominee it would have screamed and stopped the presses right there.

    We have a Justice Dept totally in the bag for the Clintons and we have a confused FBI. Doesn’t sound like a fair fight. As far as I can see Comey blew it in July and is stumbling back toward rationality at this point. If it ain’t pretty then I can think of only one thing to say to you.

    Frankly Scarlet, I don’t give a damn.

    Regards,

    Jim

    • #7
  8. Doug Watt Moderator
    Doug Watt
    @DougWatt

    Mr. Yoo I can only speak from my experience as a street cop. When I made an arrest I would cite the statutes and the elements of the Oregon Revised Statutes that I thought met the specific elements of a specific crime or crimes. I knew full well that the DA’s office could add or reduce charges based upon the subjects actions. I also knew that the DA’s office could make a decision to decline to prosecute based upon a decision that although my citations of law although valid might not be a win decision in a court of law.

    Mr. Comey has experience as a prosecutor, but no experience as a law enforcement officer. Based upon his experience as prosecutor he shortstopped the process. That was not his job in his current position. He could have saved himself a lot of grief by referring the findings of the investigation to the DOJ with a simple recommendation that laws were violated and left the explanations of why there would be a Grand Jury or no Grand Jury to the DOJ and let them take the heat.

    • #8
  9. James Golden Inactive
    James Golden
    @JGolden

    Paul Dougherty:I can’t shake this sense of being unduly kept in the dark. As a voter, I would like to make an informed decision. I understand that the releasing of this information may be viewed as an attack on one side or putting the finger on a scale, but as a voter I want to know beforehand. I hate this game of ‘”I’ve got a secret”.

    I agree.  The FBI and the DOJ need to do whatever it takes to get this resolved as soon as possible.  No one should have to vote with this hanging over the heads of the candidates.  Legally they may not be able to release anything yet, but they need to get whatever information they can provide out so that the public can be informed by election day.  Now personally I’ve already decided Hillary has violated all kinds of laws and will not be voting for her regardless as to how the report comes out, but there may be plenty of undecided voters for whom the information is key, and if it is as bad as it likely is (otherwise it is hard to see why the FBI could reverse itself) it might move even those who think they have decided in Hillary’s favor away from her.

    • #9
  10. Carol Member
    Carol
    @

    James Gawron: We have a Justice Dept totally in the bag for the Clintons and we have a confused FBI. Doesn’t sound like a fair fight.

    Yes. If you need more evidence, here is some. DOJ said today they would help with the examination of the emails. Well, take a look at the person from justice assigned to this task: ”

    In the letter to Congress, the DOJ writes that it “will continue to work closely with the FBI and together, dedicate all necessary resources and take appropriate steps as expeditiously as possible,” assistant attorney General Peter J. Kadzik writes in letters to House and Senate lawmakers.”

    Who is Peter Kadzik , you may ask?

    “In other words, the best friend of John Podesta, Clinton’s Campaign chair, at the DOJ will be in charge of a probe that could potentially sink Hillary Clinton.

    For those who missed it, this is what we reported previously:

    The day after Hillary Clinton testified in front of the House Select Committee on Benghazi last October, John Podesta, Hillary’s campaign chairman met for dinner with a small group of well-connected friends, including Peter Kadzik, who is currently a top official at the US Justice Department serving as Assistant Attorney General for Legislative Affairs.

    con’t.

    • #10
  11. Carol Member
    Carol
    @

    con’t

    “The hacked emails confirm that Podesta and Kadzik were in frequent contact. In one email from January, Kadzik and Podesta, who were classmates at Georgetown Law School in the 1970s, discussed plans to celebrate Podesta’s birthday. And in another sent last May, Kadzik’s son emailed Podesta asking for a job on the Clinton campaign.”

    http://www.zerohedge.com/news/2016-10-31/doj-tells-congress-it-will-work-expeditiously-review-abedin-emails-there-just-one-pr

    They were law school classmates. It is enough to make you sick, or to make you vote for Donald Trump.

    • #11
  12. Metalheaddoc Member
    Metalheaddoc
    @Metalheaddoc

    Equality under the law, except when it’s election season? I missed the part in the Constitution about how people who were running for office were above the law.

    • #12
  13. Knotwise the Poet Member
    Knotwise the Poet
    @KnotwisethePoet

    I have to defer to John Yoo’s expertise on whether Comey’s actions are breaking with precedent and how authority and separation of powers within the executive branch are supposed to work.

    At the same time though, and I know this makes me hypocritical since I don’t like the ends-justify-breaking-the-constitution attitude I often see in progressivism (and I love the “Give the devil the benefit of the law” scene from A Man for All Seasons), but if his actions here help lead to Hillary’s arrest and/or her losing the election, I can’t work up any anxiety over some breaches in protocol.

    I am so utterly sick of the Clinton’s getting away with everything.  The Dark Knight trilogy justifies the vigilantism of Batman by showing that law enforcement in Gotham was thoroughly compromised and corrupt.  I look at the Clinton’s, with all their political connections to protect them, and I see a similarly stacked deck against any who adhere strictly to the rules while trying to bring them down.  I think I’m okay with some officials going a little Batman to bring them down.

    • #13
  14. Mark Thatcher
    Mark
    @GumbyMark

    Prof Yoo claims Comey’s action violate historical practice yet the only actual practice he cites is the public announcement of indictments of individuals associated with a GOP presidential candidate just before an election.  I would be more convinced of the Professor’s analysis if he could provide an example of prosecutors keeping an investigation of a GOP candidate confidential in the closing weeks of an election.

    • #14
  15. JcTPatriot Inactive
    JcTPatriot
    @JcTPatriot

    Mr. Yoo, when it becomes plainly clear to everyone that the last two Attorney Generals were and are clearly under the control of the DNC and without direction except that which is given by the DNC, any “DOJ guidelines” should be ignored when having to make decisions concerning any criminals working for, or under the direction of, the DNC. Hillary Clinton clearly (as the DNC Leaks revealed) takes direct orders from, and bases most decisions on the direction of, the DNC.

    When dealing with the most corrupt DOJ in history, I believe “historical practice” must be ignored. Comey knew this information would be buried within the DOJ and he would be forced to take the fall when it eventually got out.

    Now when he is thrown under the bus, he can fall with a clear conscience.

    • #15
  16. KC Mulville Inactive
    KC Mulville
    @KCMulville

    What bothers me is that the original set of emails was dismissed, not because of anything in the emails themselves, but because Comey said that he couldn’t prove that Hillary intended to do anything wrong. This new batch is simply more of the same as the original set, but the decisive point wasn’t in the emails anyway. Unless there’s something in the Weiner emails that proves that Hillary intended to do something wrong, that equation hasn’t changed.

    I’d be willing to hope that the new batch uncovered some evidence of intent, but I’m under the impression that the emails haven’t even been examined yet, so how can they prove anything? The only guess is that the investigators who were chasing Weiner (pause for pun) saw the contents of those emails and already know that there’s new evidence.

     

    • #16
  17. KC Mulville Inactive
    KC Mulville
    @KCMulville

    One point needs to be made … the current Democrat cries of trying to steal an election … sorry, guys, you lost the right to cry wolf. When the Democrats compiled “oppo” dirt on Trump, and decided to release at the most strategic moment, they were trying to “rig” the election, just as surely as anything related to emails. (The Russians! Comey! Rigged!)

    If your campaign is a series of October surprises, you can’t complain about influencing elections with spectacular stunts. Enough with the fake outrages about last-minute stunts … that’s all that consultant-media driven campaigns are about anymore, and it’s getting tiresome. We’ve seen this show before. Move on, counselors.

    • #17
  18. Spin Coolidge
    Spin
    @Spin

    EJHill:This is also a prime example of why early voting is wrong, wrong, wrong. 22 million Americans have already voted. One third of the electorate has made a choice before this came out.

    If this swayed your vote at all, then by all means, please do not vote.

    • #18
  19. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Well, John, you haven’t worked in this Department of Justice, have you? I have the very comfortable feeling that Comey has very courageously done the right thing twice. We’ll see.

    • #19
  20. DocJay Inactive
    DocJay
    @DocJay

    Oh please!

    • #20
  21. Chris B Member
    Chris B
    @ChrisB

    Second, Comey is wrong to disclose the restart of the investigation over the weekend into the evidence — he has apparently violated DOJ internal guidelines and historical practice.

    I am curious: when a congressional oversight committee has exercised its legal authority to review the execution of an investigation, do DoJ internal guidelines and historical practice take precedence over Constitutionally explicit authority? Is Congress not actively investigating the handling of this case? Has director Comey not informed Congress under an oath to tell the whole truth that the investigation is over? Comey had been asked directly by the committee if new evidence might still be found that could lead to a re-opening of the case. He stated then that he was not aware of any evidence that could possibly lead to that. Does he not have an obligation now to inform them that has changed?

    I may be mis-remembering, but I seem to recall these factors being pertinent. Making an announcement of the resumption of an investigation may have been against internal guidelines, but failing to notify the oversight committee that an investigation which they are actively reviewing has been re-opened with new evidence which they had specifically instructed to be notified about would have been Contempt of Congress.

    It seems to me that one of these things is a legal obligation, while the other is a “guideline.”

    • #21
  22. Hoyacon Member
    Hoyacon
    @Hoyacon

    KC Mulville:I’d be willing to hope that the new batch uncovered some evidence of intent, but I’m under the impression that the emails haven’t even been examined yet, so how can they prove anything? The only guess is that the investigators who were chasing Weiner (pause for pun) saw the contents of those emails and already know that there’s new evidence.

    Comey’s attempt to impose an intent requirement on the felony statute in question was pretty seriously criticized.  It’s possible that such a significant amount of emails in yet another location (accessible by Weiner, of all people) is viewed by him as so egregious that intent may now be inferred.   Depending on how the emails got there, this still leaves room for Abedin to take the fall, and that would be my bet if somebody goes down.

     

    • #22
  23. Annefy Member
    Annefy
    @Annefy

    Bob Thompson:Well, John, you haven’t worked in this Department of Justice, have you? I have the very comfortable feeling that Comey has very courageously done the right thing twice. We’ll see.

    I am with @bobthompson.  IF Comey had indicted a few months ago, he would have been accused of trying to influence the election. Instead, he threw all the info out there and basically left it up to the voters.

    This time? Whatever he’s got is too important to sit on. It wouldn’t be fair to Americans to go to the polls not knowing about this discovery.

    I think he fell on his sword. Twice.

    At a minimum I think we have HRC and Huma on lying to the Feds. I don’t get to do that. You don’t get to do that. NO ONE gets to do that.

    If I end up going to my grave with Martha Stewart having a longer rap sheet than HRC there is no justice.

    • #23
  24. Israel P. Inactive
    Israel P.
    @IsraelP

    rgbact: Just chew out Hillary publicly and let voters decide her fate, seemed like the non political thing to do.

    In theory, yes. But not when it results in “The FBI says I did nothing wrong.”

    • #24
  25. Israel P. Inactive
    Israel P.
    @IsraelP

    Mark:Prof Yoo claims Comey’s action violate historical practice yet the only actual practice he cites is the public announcement of indictments of individuals associated with a GOP presidential candidate just before an election. I would be more convinced of the Professor’s analysis if he could provide an example of prosecutors keeping an investigation of a GOP candidate confidential in the closing weeks of an election.

    Remember Ted Stevens? He lost that election by false prosecution.

    • #25
  26. Chris Campion Coolidge
    Chris Campion
    @ChrisCampion

    The server is the felony.  Intent does not need to be proved if classified information was exposed or shared.  It would be nice if intent were available, but the felony exists without it.

    What I’m assuming was found was incontrovertible intent, either to conceal, destroy, or disseminate.  I suspect the math was “It’s going to come out one way or the other”, so based on this additional evidence, an investigation has to move forward.

    But the actual server with the classified information on it – thousands and thousands of emails, purposefully placed in a non-secure, non-gov’t server – is the felony.  And why would someone knowingly risk a security breach, and risk get caught doing it?  Someone as smart as Hillary?

    Because she had something to hide from the rest of us.  It turns out that hundreds of millions of dollars remains a big incentive for chowderheads of all political stripes, be it Clinton or Trump.

    • #26
  27. Skarv Inactive
    Skarv
    @Skarv

    EJHill: This is also a prime example of why early voting is wrong, wrong, wrong. 22 million Americans have already voted. One third of the electorate has made a choice before this came out.

    Prediction: we who vote on November 8 will not know much more than we know today. Personally, I think Hillary is unelectable because of emails, Benghazi, Obamacare….
    The FBI investigation could (in theory) make her accountable. Unlikely if she wins the election. Some kind of pardon will come.

    BTW: The problem with early voting could be corrected by allowing in person voting on election day and then simply pull the absentee ballot out. before counting.

    • #27
  28. SoupGuy Coolidge
    SoupGuy
    @SoupGuy

    With all due respect, former Attorney General William Barr (1991-93) disagrees, per this oped in today’s Washington Post, and I find his words more compelling than yours, with all due respect.  To quote from the article: “The claim that Comey’s actions violated a Justice Department policy is just wrong. There is no policy — and never has been — that the department avoid any action that could affect an election. Rather, the policy has been twofold. First, prosecutors should not take any action for partisan reasons, i.e., for the purpose of affecting an election. Second, where the timing of an otherwise bona fide investigative or prosecutive step could affect the outcome of an election, those actions should be deferred absent a strong public interest that justifies taking the action before the election. Sometimes this requires difficult judgments. Here, it did not. Indeed, if anything would have “violated” Justice Department policy, it would have been to remain mute and fail to correct the record.”

    • #28
  29. Kozak Member
    Kozak
    @Kozak

     

    • #29
  30. Old Bathos Moderator
    Old Bathos
    @OldBathos

    HVTs:

    Professor – I thought that Comey’s boss, AG Lynch, assigned him the job of deciding whether to move forward with the case after she recused herself (due to her clear ethics (maybe legal?) violation . . . the infamous tarmac meeting Bill Clinton, husband of the accused). Aren’t you blaming the victim her?

    I agree.  Comey was used to give cover for Lynch.  The DOJ wired the investigation so it was then useful to pretend that the FBI made the call.  In exchange for being used and going along with the cover-up, Comey got to list some bad things that Clinton did to pretend there was some balance.

    The sheer fatuousness of his ‘decision’, the arrogantly repeated lies by Hillary, the outrage within the FBI and the steady Wikileaks content showing a much larger scope of corruption embarrassed Comey.  The Weiner emails offered some redemption (and payback).

    Yoo still has a pre-Obama frame of reference (rule of law, procedure, honor and professionalism) which is why his analysis is not really applicable in this instance.

     

    • #30

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