545

CF: https://evilsax.pressbooks.com/wp/wp-admin/post.php?post=2971&action=edit

CF: Lanny Davis quotes.

UPDATE: Add McCabe’s quoting James Baker seeing Comey’s claim Trump wasn’t under investigation as rather ‘too cute by half.’

So let’s start from the beginning: was there probable cause for the damn email probe in the first place? From the start there was lot of confusion over wether it was a criminal investigation into Clinton or simply a review of the State department protocols behind its system for email security and record keeping. It seems the initial report that Clinton was under investigation was a mistake and despite Comey’s feeling ‘a little queasy’ about Loretta Lynch’s use of the word ‘matter not investigation’ it is a fact that Clinton never was formally the subject of the Midyear investigation, in fact it was an investigation without a subject.

Still Comey and his team became apoplectic when Obama’s Press Secretary, Josh Earnest, accurately pointed this fact out in answer to the question of wether the WH thought that Clinton would be indicted in January, 2016 per the IG report. 

On January 29, 2016, in response to a question about whether the White House thought that former Secretary Clinton would be indicted, Earnest stated:

“That will be a decision that is made by the Department of Justice and prosecutors over there. What I know that some officials over there have said is that she is not a target of the investigation. So that does not seem to be the direction that it’s trending, but I’m certainly not going to weigh in on a decision or in that process in any way. That is a decision to be made solely by independent prosecutors. But, again, based on what we know from the Department of Justice, it does not seem to be headed in that direction.”

Yet this-completely accurate statement-was treated like some sort of five car alarm fire by the Comey team. It’s amazing that with Emailgate accurate statements were treated like obstruction of justice. Comey for his part heaped scorn on Loretta Lynch for saying matter ‘rather’ than ‘investigation.’

On Sunday, October 11, 2015, an interview of then President Barack Obama was aired on the CBS show 60 Minutes. During this interview, Obama characterized former Secretary Clinton’s use of a private email server as a “mistake,” but stated that it did not “pose[] a national security problem” and was “not a situation in which America’s national security was endangered.” Obama also stated that the issue had been “ginned up” because of the presidential race. Two days later, on October 13, 2015, Obama’s Press Secretary, Josh Earnest, was asked whether Obama’s comments “should be read as an attempt to steer the direction of the FBI investigation.” Earnest replied that Obama made his comments based on public information, and they were not intended to influence an independent investigation. Former President Obama’s comments caused concern among FBI officials about the potential impact on the investigation. Former EAD John Giacalone told the OIG, “[W]e open up criminal investigations. And you have the President of the United States saying this is just a mistake…. That’s a problem, right?” Former AD Randy Coleman expressed the same concern, stating, “[The FBI had] a group of guys in here, professionals, that are conducting an investigation. And the…President of the United States just came out and said there’s no there there.”

LOL. So what are they saying now that Trump is referring to the Russia investigation as a witch hunt 20 times every single day?

UPDATE:  Trump has now had Coverup AG Barr open up a criminal investigation into the Russia investigation.  The idea that a simple accurate statement in response to a press question was treated as some kind of nefarious thing sure seems quaint now.

And please spare me the talk of how much integrity and what a sterling reputation John Durham has.

Sometimes if it looks, walks, and quacks like a duck it’s a duck and it sure looks like Durham has decided to accede to political pressure as many have. It may well be that Barr is pulling the strings-but that doesn’t absolve him of any agency-he could resign, he could resist-he could like others are now doing put out a whistleblower statement. Instead he’s protecting his career. Nothing to admire there. And again the Ben Wittes-Chuck Rosenberg set tend to trust anyone who’s an ‘institutionalist’-they still can’t quite bring themselves to admit there’s no such thing as a Republican institutionalist-they always wind up putting their party first and their institution second.

Ok-that doesn’t always hold-John Bolton may be a notable exception, though we’ll see if he’s actually willing to testify this week as some reports have suggested and that he’s willing to be as frank as he was in private-Giuliani’s a hand grenade who’s going to blow everyone up and I’m not part of their drug deal. 

In still more fairness there are in truth some GOPers who put their agency first but there sure are a lot who don’t. And no this is not something equally true on both sides. 

Bolton for his part may feel he has nothing to lose at this point-while he’s about the most hawkish person in the world Trump’s recent foreign policy moves have been the opposite of hawkish so there’s no higher good Bolton might be tempted to protect.

End of UPDATE

Again, it seems that in the Emailgate investigation even accurate statements by the Obama WH or Clinton campaign were treated as obstruction of justice. But as disdainful as Giacalone was at the suggestion that Emailgate was anything short of a criminal investigation-and as ‘queasy’ as Comey very well may have felt about Lynch’s characterization of it as a ‘matter’ rather than an ‘investigation’ her neologism does have the one convenient characteristic of being true.

“Apparently, when then-Attorney General Loretta Lynch attempted to have the FBI’s purported investigation of former Secretary of State Hillary Clinton’s private email server labeled a “matter,” she might have been more honest about it than those charged with actually investigating.”

“Among the explosive admissions made by Justice Department Inspector General Michael Horowitz during his testimony Monday before the Senate Judiciary Committee was the fact that Clinton was never a subject of the FBI’s investigation. In fact, no one was:

“Nobody was listed as a subject of this [Clinton email] investigation at any point in time.”

“Horowitz’ report further clarifies she was never a target of the investigation, either.”

Um, ee, er, well? So when she said she wasn’t a subject she was telling the truth no matter how queasy it very well may have made Comey and how many times Chris Cillizza ridiculed her.

FN: Meanwhile, despite Comey’s ‘queasiness’ over calling it a ‘matter not investigation’ he was very willing to assure Trump on multiple occasions that he wasn’t under investigation-that didn’t make Comey queasy. 

According to Andy McCabe, James Baker felt that this was a distinction-the Trump campaign was under criminal investigation but that Trump somehow wasn’t was if not ‘queasy’ then rather too Jesuitical. 

UPDATE: Despite how much both Comey and McCabe did to help Trump ‘win’ that election he unceremoniously dumped both of them then tried to target them criminally. It’s doubly, neigh triply ironic that while McCabe’s leak about the FBI’s unpredicated investigation into the Clinton Foundation was rank and improper it obviously benefitted not Hillary Clinton but ‘President Trump’ as it had the effect of kicking her after Comey’s letter had already knocked her down for the count.

Of course the ‘institutionalists’ a la Wittes try as usual to have it both ways and play both sides-and argue that what McCabe did was improper. It was but it wasn’t why he was forced out 26 hours before his pension anymore than Comey’s entirely wrong and blameworthy actions in Emailgate are the reason Trump fired him-as Wittes well knows in law intent matters unless you’re Mueller and the subject is Trump and his children-then suddenly ignorance is an excuse.

So McCabe’s lawsuit totally has merit.

In the end Horowitz’s IG played the same game on Comey he and Comey had played on Hillary-Horowitz’s investigation into Comey cleared him yet at the same time also included a bunch of extraneous criticism of him that  suggested he may not have done anything illegal but he’s still  a reckless and untrustworthy FBI Director.  

It’s so ironic as you can make a pretty darn good case that it’s true but for the exact opposite reasons that Trump’s GOP co-conspirators give-not because he was biased against the fake ‘President’ but that all his actions whatever his alleged intent were biased in his favor-from the way he wouldn’t stop discussing  Emailgate publicly to how closed mouth he’s been about Russiagate.

Meanwhile in the time Horowitz has been been able to whip out reports on McCabe and  Comey we still haven’t seen the report he promised in January, 2017 on the leaks of the rogue anti Clinton pro Trump FBI agents who forced Comey’s hand.

End of UPDATE.

“On Monday the fifteenth, I met again with the Russia team. From January until Comey was fired, we had been having discussions with him about how to handle the topic of whether the president was under investigation. Jim Baker said, Even though we don’t have a case open on the president, we do have a case open to see whether his campaign coordinated with the Russians in a way that would have been illegal or improper; and as the leader of his campaign, by definition some of his activity and behavior would be within the scope of the investigation. Baker thought it was jesuitical—basically, too cute by half—to say the president was not under investigation. But Comey chose to give the president the reassurance that, at that moment, he himself was not.”

Location 3596.

Let’s just take a moment, however, to appreciate how serious this mistake in fact is. You have Comey and his friends at the FBI misleading the public for 15 months that she was under criminal investigation-the MSM eagerly repeating the canard again and again and again-while the Breitbart crowd and GOP trumpeted it from the roof tops. And it turns out she wasn’t. It turns out the characterization that she and her campaign team gave was totally accurate.

And let’ s just say-it matters-pun intended-that it was a matter not a criminal investigation. When Comey exnoerated her of wrongdoing while dirtying her up politically on July 5, 2016 a large majority of the public-about 60%-thought she should have been indicted. This is thanks to the fake news propagated by Comey and the MSM who kept drilling into everyone’s head that she was under criminal investigation even though she wasn’t.

As noted in  our analysis of the media coverage in part A, this created the false expectation that it was quite possible if not likely that Clinton would be indicted while in fact this possibility was always very remote-as the IG report itself makes clear.

So where did this very harmful canard, this zombie claim that everyone knew was true as everyone repeated it ad nauseam come from?

Would you believe that Michael Cohen-aka John Dean 2.0-has a lawyer by the name of Lanny Davis who has done some important work on this? As I’ve argued in this book, Comeygate is the wrongly ignored other half of Wategate 2.0. There has rightly been a great deal of Russia reporting-after the election; of course the MSM sat on the story before the election and the Clinton haters at the FBI made sure it was sat on.

But kudos to Lanny Davis-Bill Clinton’s Whitewater lawyer now representing Michael Cohen-for being one of the few to write about Comeygate.

He has a very helpful eytmology on the development of the canard that Hillary Clinton was being criminally investigated by the FBI. And get this-this canard begun with the NYTimes again getting ahead of its skis in its zeal to foment  a negative narrative about Hillary Clinton. It turns out that much of the confused canard that was Comeygate begun with the NYTimes shoddy reporting-sound familiar? Just like we had the Times shoddy reporting and anti Clinton zeal to thank for Whitewater-this nothingburger of a faux scandal become the Ken Starr’s leaky fishing expedition that was an answer-impeach Clinton-in search of a question-for what actual charges?

FN: Again  along with Comey, Putin, Roger Stone, and Assange, Dean Baquet is another major goat of our constitutional crisis-the bad reporting, the Clinton Derangement Syndrome, the Emailgate fixation-how much of this mess is thanks to Baquet’s awful editorial decisions as President of the NYT?

And Baquet’s a hardheaded guy who’s absolutely determined not to learn a thing from 2016. 

While the Washington Post has adopted the slogan Democracy Dies in Darkness Baquet continues to play the usual false equivalence both sides do it game. If WaPo’s slogan is Democracy Dies in Darkness the Times’ seems to be we won’t be baited into being too tough on ‘President Trump.’

Can you imagine the Times during the time of Hitler: we won’t be baited into being too tough on Hitler. 

The line between his bloopers and ‘President Trump’ is a fairly straight line: The NYT’s broke Emailgate then wrongly reported she was under criminal investigation, then had that outrageous carpet bomb of Emailgate stories after Comey’s indefensible and damnable letter. Then there was the Times absurd attempt to demonize the Clinton Foundation. But the Times weaponized the letter both before the fact then magnified and amplified it 1000 fold after in overkill on its headlines to such absurd proportions it’s simply stunning.

No Trump-Russia story, or any Trump scandal has ever gotten the level of freakout of the NYT”s on October 29, 2016. This cover ought to go on Baquet’s tombstone.

Similarly the Times actually wrote a late piece to debunk Russiagate after the Comey letter broke and this was just like how in 1972 the Times completely buried Watergate before the election. Yet the conservatives get mileage calling it a liberal paper?

UPDATE on NYT:

Just like they created Emailgate and Whitewater and worked with Breitbart on publishing Clinton Cash.

Here is Lanny  on how: The Times gets it Wrong Again:

“The Times Gets It Wrong Again”

“At 10:31 P.M. on Thursday, July 23, 2015, the Times posted a lead story on its website with the headline “Inquiry Sought in Hillary Clinton’s Use of Email.” The story had been written by Times reporters Matt Apuzzo and Michael Schmidt.

“The first paragraph stated that “two inspectors general* [one from the Intelligence Community,† called the ICIG, and the other from the State Department] have asked the Justice Department to open an investigation into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state.”

“The story was based on a July 23, 2015, memorandum that the Times was told by a leaker came from the two IGs recommending a “criminal referral” concerning Hillary Clinton’s mishandling of her private emails. The memo was actually sent just by the Intelligence Community inspector general, I. Charles McCullough III—not also sent by the State Department inspector general, Steve A. Linick, as the Times wrongly reported. McCullough wrote the memo but personally signed it and sent copies to the two chairs of the House and Senate Intelligence Committees and the director of national intelligence (DNI). The full July 23, 2015, memo appears on pages 33–34.”

“There were actually two documents created by McCullough that had significant ramifications for Hillary Clinton and her presidential campaign. The first, not publicly available or even known to exist until two months after the 2016 presidential election, was sent to the FBI on July 6, 2015. The second was the July 23, 2015, McCullough memo to Congress and the DNI. According to a source close to McCullough,‡ this July 23 memo was virtually identical to the July 6 “referral” McCullough had secretly made two weeks before to the FBI.”

“News that Hillary Clinton was under criminal investigation because of her emails was a big deal.”

To say the least. It had the inconvenient fact of not being true. But this was the 2016 election, the first post truth election and this became the accepted frame of her entire campaign-she’s under criminal investigation no matter how false it in fact was.

“The story spread rapidly across the Internet that night. It dominated coverage on front pages across the nation and lead stories on news websites. It went viral on Twitter and other social media. It led all the morning TV shows, with the inevitable BREAKING NEWS crawling across the screens of cable news shows. However, by midday on Friday, Justice shocked everyone. It withdrew its prior “confirmations” to the Times and other news organizations it had made only a few hours earlier. It stated that there had not been a “criminal referral” as they had previously stated, but rather a “security referral”—without explaining what that latter term meant. Then something even more unusual happened. The two inspector generals, McCullough and Linick, who rarely spoke to the media at all, issued a joint public statement echoing the Justice Department’s contradiction of the Times story that they had made a “criminal referral” about Hillary Clinton and her private email system. They made the same distinction—there was no “criminal referral,” but rather a “security referral.”

Hmmm. A security referral. That’s not a criminal investigation at all, indeed, you could maybe even call it a matter. 

“The Washington Post immediately posted a story explaining what a “security referral” was—a routine dispute between agencies as to what Clinton emails should or should not be released under the Freedom of Information Act (FOIA). The Post reported: “McCullough [the ICIG] said he also recommended that freedom-of-information officials at the State Department implement ‘a dispute resolution process [involving the Intel Community, State, and the FBI] in regard to differences of opinion about classification levels and exemptions.’ ” So if this was what the Times story was really about, then what was all the fuss about? How did it merit a rushed posting by the Times late on Thursday night and then front-page treatment in the July 24 morning paper? And how did the Times reporters, two of the most outstanding reporters in Washington, get the core fact wrong that there was no criminal referral made by McCullough, much less made by “two IGs”? By midday, after repudiation of the story by both Justice and the IGs, obviously the Times had to withdraw the story that Clinton was personally under criminal investigation. Condemnations of both the Times and the Justice Department for getting something so important so wrong, unfairly damaging.”

Of course, once fake news is put out into the political  bloodstream it’s very tough to drain it out in the future.

“The Times was faulted by its own public editor for the “rush to publish,” and many others criticized Justice for the “rush to confirm.” The criticism was even worse when the Times’ public editor several days later acknowledged that the paper’s reporters had not seen the July 23 memo that was the basis for their entire story, even though the reporters said that they relied on confirmations of what they had been told from multiple sources at the Justice Department. Virtually everyone following the presidential campaign had the same questions: What the heck had happened? The Times gets confirmations, Justice reverses itself, and two inspectors general issue a public statement rebutting a newspaper story? These questions had answers, albeit troubling and only completely understandable, two months after the election, when the FBI published its “public vault” of website documents that had previously remained undisclosed. ”

Yup, just like the Russia investigation, the truth about this fake news of a criminal investigation of Hillary Clinton only came out after the election-after she was safely defeated.

So the Times had to do its public mea culpa for getting the story wrong. But clearly the two Times reporters, Michael Schmidt and Matt Apuzzo, were determined to vindicate their  incriminating piece on Clinton  as they subsequently took the word of a junior DOJ official at face value that there was indeed a criminal investigation of Clinton; once again without seeing the actual memo.

“This official was not a lawyer. (To maintain the promised anonymity of the former Justice Department officials who were sources for this account, I will use the pronoun “he” for all, even though the gender could be male or female.) The junior official called a senior department official, an attorney who worked near the level of the attorney general. He asked whether Clinton was under criminal investigation. The senior official paused, then said yes, he could confirm.”

“Are you sure?” the junior official asked. He knew that confirming to Apuzzo would trigger a major Times story. Announcing that Hillary Clinton was under criminal investigation could be a game changer affecting the election. We had better be right in confirming, he thought. We can always give no comment tonight and wait to see whether we can get more information tomorrow morning, he said to the senior official. The senior official said he would check with others and call back, which he did shortly thereafter. He told the junior official that he had spoken to another department official. “He said I could confirm the criminal referral, saying, ‘It is what it is.’ ” The senior official also added, vaguely, that he had gotten the same confirmation from an FBI official. So the junior official, still with serious doubts, called Apuzzo back at about 8 P.M. on July 23 and said he had gotten confirmation of a criminal referral about Clinton’s emails.

Are you sure? So after correcting it’s bad story the Times compounds it with another bad addendum. Corrections were again offered-this time by the two misquoted IG”s themselves:

“At about the same time, the two IGs—ICIG McCullough and State’s IG Linick—issued their unusual joint public statement directly contradicting the Times’ front-page story that morning, saying they had not made a “criminal referral” regarding Hillary Clinton’s handling of the emails, but rather a “security referral” for “counterintelligence purposes.” A close examination of this crucial joint July 24 public statement by the two IGs sheds light on a lot of the subsequent misreporting on the Clinton email issue by mainstream media through the rest of Hillary Clinton’s campaign. The key reporting errors made by the mainstream media can be seen, in retrospect, to go back to the distinction between a noncriminal “security referral” versus a criminal referral.”

But as Liz Spayd said on July 27:

“You can’t put stories like this back in the bottle-they rip through the entire news system.”

Location 589.

As it happens, while the IG had not called for a criminal investigation but a security referral there was at that point a criminal investigation-though Hillary Clinton herself was not the subject. It was not via the IG, however, but via the FBI who had opened its criminal investigation on July 10, 2015. Now for the 64 million dollar question: was there probable cause?

So what is the basis for probable cause in an FBI investigation?

“There are specific rules governing when the FBI is allowed to open a criminal investigation. They are contained in the Domestic Investigations and Operations Guide (DIOG or FBI Operations Guide). DIOG Section 7.5 states that to open a full criminal investigation, the FBI must have a specific “articulable factual basis” that “reasonably indicates . . . an…activity constituting a federal crime or threat to the national security has or may have occurred.’

So what was the “articulable factual basis” to indicate that ‘a federal crime or threat to national security’ had or may have occurred? In the memo for the email investigation Comey offered up one single fact.

“The FBI memo includes on page 2 only a single fact to satisfy its criterion of a specific “articulable factual basis” for the belief that Clinton may have committed a crime “regarding the potential compromise of classified information”: “a sample unclassified e-mail that allegedly contains information at a classified and SCI [Sensitive Compartmented Information] level. According to the ICIG, this e-mail was part of a larger trove of other unclassified e-mails they were reviewing during their own investigation.”

However, this single, articulable fact, is not sufficient for probable cause as there is no evidence of intent on Clinton’s part:

“However, this single fact cannot possibly satisfy the Operations Guide criteria as stated. While this single email allegedly contained information at a classified and SCI level, that does not establish that a crime may have been committed because neither ICIG McCullough nor the FBI in this memo stated the email in question had appropriate classified markings. And we know that without such classified markings, Secretary Clinton could not be said even “possibly” to have committed a crime, because, in the absence of the secretary ignoring emails that were appropriately marked as classified, the FBI had no basis for finding that she had criminal intent. How do we know this?”

Because this is what Comey himself said in his July 5, 2016-that “no reasonable prosecutor could bring a criminal case against Clinton for her email practices.”

And no-simply saying that you think there’s a reasonable likelihood that if you rifle through all her emails there’s a good chance you will find other classified emails that she mishandled knowingly is not sufficient-a simple hunch doesn’t get you to probable cause here:

“These rules do not allow a criminal investigation to be opened based on a “hunch” that there “possibly” could be marked emails if the FBI looked at all thirty thousand Clinton emails. Indeed, the words of Section 7.5 of the FBI’s Operations Guide require a “specific, articulable fact” to be possessed by the FBI first—suggesting the possibility a crime has been committed before a criminal investigation can be opened—not after the criminal investigation has been opened, so that FBI agents can go on a fishing expedition in search of predicate facts.”

Speaking of which is there any chance the FBI’s later Clinton Foundation investigation was opened legitimately on articulable facts for probable cause? About as good as the chance that Clinton Cash had actual articulable facts to back up its smears of the Clinton Foundation. Right-not good.

For this to have served as a ‘predicate fact’ for probable cause in opening the investigation you would have had to have an email properly marked as classified. As there was no such emails, based on what predicate facts did the FBI lean on for opening Emailgate?

They actually used the IG referral. Of course, the IG hadn’t called for a criminal investigation, just a security referral.

“The first document cited in the July 10 secret FBI memo was McCullough’s July 6 ICIG “referral.” Significantly, the FBI header for the July 6 referral was “Potential Compromise of Classified Information.” “Potential” is not a fact. To make it a fact requires a search for a fact. That conflicts with 7.5.”

“Moreover, just consider: The FBI was using the McCullough July 6 referral as a basis for opening a criminal investigation. Yet, two weeks later—on July 24—McCullough himself publicly announced that the document he sent to the FBI was “not” a criminal referral but a noncriminal “security referral”—meaning for counterintelligence purposes to prevent classified information from being disclosed under FOIA requests.”

Bottomline: the FBI never had the ‘predicate fact’-aka probable cause-to open a full criminal investigation into Clinton in the first place. In any case while Davis persuasively argues that McCullough was himself overly zealous in his definition of classified information it’s likely that even without his referral the FBI would have opened the criminal investigation.

“In any event, even had McCullough not sent any referral to the FBI on July 6 or a benign one, signs suggest that the FBI and Comey would have found another reason to open a criminal investigation. As it was they had no predicate facts-no Clinton emails marked classified—and yet they secretly began the criminal investigation as set forth in their secret July 10, 2015, memo. They seemed determined to open the investigation, regardless of their own rules, as memo shows.”

Indeed, this is the clear pattern of Comey and the FBI throughout the entire  Emailgate fiasco. We’ll get to it in later chapters but this is what we saw with Comey’s desire to do a press conference all by himself-something he decided on by May, 2016 at the latest though he hid this from not just the DOJ but his colleagues at Midyear waiting to spring it at the last moment when it was all but a fait accompli- without the DOJ had no precedent on its side and was totally against agency rules, and we’d see the same attitude in October, 2016 back the rogue anti Clinton agents returned the favor by backing him into the Comey letter just as he’d backed Loretta Lynch and Sally Yates into the press conference.

So if Comey and his fellow FBI agents wanted a criminal investigation of Clinton in July of 2015 it’s clear that the fact that this was against all rules and procedures of the agency wouldn’t be allowed to get in the way.

Extremely careless indeed.

 

 

 

 

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