Must Read

As I said in the headline, the TPM Reader email below is a must-read - not because it contains any explosive new information but because the author is a DOJ veteran with top level experience handling high profile public corruption cases. This person knows the intricacies of what is involved in these kinds of investigations, the legal particulars, investigative strategies, the technology involved and how all of it connects up with the procedures surrounding elections.

As I noted yesterday, the more we learn about this situation the clearer it becomes how badly Comey managed it. It is difficult to see how anyone without a strong political interest in how this was handled could have confidence in Comey's judgment after this. And that's a problem, should Clinton win the election, since FBI Directors don't get fired and they don't resign. At best, Comey has prioritized protecting himself from potential criticism - in this case, mainly criticism in bad faith - over following DOJ/FBI guidelines and more importantly protecting the equities those guidelines are meant to safeguard.

More particularly, everything which has come out over the last 40 hours has driven home the role of politicized, partisan FBI agents who freely leak details of confidential investigations in order to drive partisan, politicized outcomes. They play a big role in creating situations like this. Leaks happen. Sometimes, perhaps often, they are good rather than bad because they give the public important information. Certainly they're good for journalists. But if they are so common that they make it impossible for people to follow guidelines meant to protect the integrity of elections and investigations that becomes a major problem for the institution itself.

With all that, here's TPM Reader ZL (not real initials) take ...

I'm sure you're getting a million takes on the Comey/email situation from former AUSAs, but here is what I think is going on (healthy doses of speculation here informed by my experience as a former federal public corruption prosecutor in high profile cases):

1. Agents investigating Weiner saw evidence of State Department related emails on Weiner's laptop. This is a totally separate team of agents from the team that investigated the State Department emails. They thus have no idea whether these have already been reviewed or not. And they can't lawfully look at them without a search warrant or (this is key) consent of the owner of the emails. In theory, they could also send a grand jury subpoena for them to Huma and/or Weiner. Regardless, they would not be responsive to the Weiner sexting search warrant, so they can't seize and review them. They appropriately raise it up the chain.

2. The issue goes up the chain. Comey and his team decide they better get a look at these or they will be accused one day of a failure to follow a lead (they frankly should have had these long before). But they don't know what's on the emails, so they have no way of assessing whether they're relevant or not. They need a warrant, or consent, or a subpoena.

3. This is where I might be ready to give a slightly charitable explanation to Comey. He thinks if they seek a search warrant, it will leak. And that's probably a reasonable possibility given many GOP-friendly agents and lots of leakers apparently at HQ. In Comey's mind, headlines would be everywhere stating "FBI Seeks Search Warrant for New Clinton Emails" and the cable news folks would be in full hyperventilation mode. The FBI, his beloved institution, would then be subject to unrelenting attack for interfering in the election. So he decides he better preempt this by sending out a vague and, in his view, innocuous letter to the Hill. He thought he was in a no-win situation. One of his own making (he should have never commented on this case publicly at all), but still, a no-win. Chaffetz then distorts it and the uncritical mainstream news outlets desperate for a real horse race go berserk with hysteria and uninformed speculation.

But here's the thing: They never needed to get a warrant. All they would have had to do is ask Huma's and/or Weiner's lawyers whether they would consent to the search (or accept service of a subpoena for the emails). And they surely would have given it, knowing full well that the alternative would be the FBI getting another search warrant and that leaking to the press. It is not unusual to ask for consent to search from subjects, especially when you have possession of the data. And if they say yes, it's the most defensible way to search as the subject will effectively be waiving any 4th Amendment challenge to the search. If they had done this simple step, they would have the emails by now and would have been able to de-dupe them against the emails they already had and have any new ones reviewed in short order. By doing so, they would also have been taking steps to minimize potential leaks.

I've generally been a big Comey fan, but I'm appalled at what's happened here. At the end of the day, the DOJ policies on not commenting on ongoing investigations are really important and should have been followed from the beginning. He acted prematurely here and, I think, irresponsibly by sending the letter, especially without knowing whether there was anything new. Many voters can't help but assume that the FBI must have found something new. Regardless, if you think you're in a no-win, fall back on the policy and make no comment. I think back to investigations of members of Congress that I handled and cannot fathom having my FBI agents make public comments about reviewing potential new evidence in real time less than two weeks before an election. It's just insane. Career destroying, Democracy distorting, insanity.

At this point, I think he has to say the following: (1) we have not seen any new evidence that changes our prior conclusion; (2) we do not know whether the new email collection involves any emails that were not previously reviewed in reaching our prior conclusion; and (3) we will refer all further questions on this matter to the DOJ.

Following up on what I noted above, we will have to wait and see the electoral impact of Comey's error. How he recovers anybodies confidence - either extreme Republican partisans - in his ability to do his job is a mystery to me.

ABOUT THE AUTHOR

Josh Marshall is editor and publisher of TalkingPointsMemo.com.
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