Beverly Mann | November 2, 2016 11:32 am



Daniel C. Richman, an adviser to Mr. Comey and a Columbia University law professor, argued that despite the backlash, Mr. Comey’s decision to inform Congress preserved the F.B.I.’s independence, which will ultimately benefit the next president. “Those arguing that the director should have remained silent until the new emails could be reviewed — even if that process lasted, or was delayed, until after the election — give too little thought to the governing that needs to happen after November,” Mr. Richman said. “If the F.B.I. director doesn’t have the credibility to keep Congress from interfering in the bureau’s work and to assure Congress that a matter has been or is being looked into, the new administration will pay a high price.” Former senior law enforcement officials in both parties, though, say Mr. Comey’s decision to break with Justice Department guidelines caused these problems. Had he handled the case the way the F.B.I. handled its investigations into the Clinton Foundation and Mr. Manafort over the summer, the argument goes, he would have endured criticism from Republicans in the future but would have preserved a larger principle that has guided cases involving both parties. … — F.B.I.’s Email Disclosure Broke a Pattern Followed Even This Summer, Matt Apuzzo, Michael S. Schmidt, Adam Goldman and William K. Rashbaum, New York Times, today

Gotta say, Comey comes off in this Washington Post article today as dumber than a rock. — Me, here, yesterday

The particular part of that Washington Post article yesterday, by Ellen Nakashima, that I had most in mind was this:

Nonetheless, Comey’s concern about election timing has some officials scratching their heads in light of his decision last week to notify Congress — 11 days before the election — that the FBI was planning to review newly discovered emails in the investigation of Hillary Clinton’s email server. That notification set off an uproar in both parties, as lawmakers demanded to know what was in the emails and whether there was any indication of criminal wrongdoing. “It’s really hard to square” the two, said one official, who like several others spoke on the condition of anonymity to talk about internal discussions. Comey’s reluctance to have the FBI linked to the public attribution was first reported by CNBC. Other officials familiar with Comey’s thinking say that there is no contradiction in his actions. In the case of the newly found Clinton emails, the official said, he was well aware of the approaching election. But he determined it was more important to inform Congress of the development, given that he had testified that the investigation was completed and that he nonetheless would look at “any new and substantial information.”

Since almost immediately after the story broke on Friday, Comey’s had FBI insiders pushing this idea that Comey was “in a bind”. Again and again and again, this phrase “He was in a bind” is printed as Comey’s justification for what he did. Sometimes it’s attributed to “people familiar with his decisionmaking process,” or some such, sometimes instead just stated as fact. The last paragraph of the NYT article I excerpted from above reads:

But F.B.I. agents, many of whom are strongly supportive of Mr. Comey and his approachable leadership style, have struggled to defend his decision. They acknowledge that he was in a bind, but say the backlash against the F.B.I. is unlike any in recent history.

The bind? That if Comey didn’t announce this sketchy information publicly—information he learned of through a search warrant obtained in another case, on an unrelated matter, and that he didn’t actually know anything about because no search warrant had yet been obtained to learn things about—he would destroy his credibility with Congressional Republicans because the information might have proved helpful to Republicans in the imminent (and in more than 20 states, already ongoing) national elections.

And if the F.B.I. director doesn’t have the credibility to keep Congress from interfering in the bureau’s work and to assure Congress that a matter has been or is being looked into, the new administration will pay a high price.

And the only way for the F.B.I. director to maintain credibility with congressional Republicans and them from interfering in the bureau’s work and to assure Congress that a matter has been or is being looked into, is to announce to all the world 11 days before the end of an ongoing voting period in an election for control of all three branches of the federal government that Republican members of Congress call the shots at the FBI about what investigations it will and will not conduct into matters that have political implications.

And, the higher the political stakes, the more important it is for the FBI to publicly do the bidding of congressional Republicans.

Comey had promised congressional Republicans that he would do their bidding, see. And he didn’t wanna give too little thought to the governing that needs to happen after November.

Here’s what congressional Democrats, who might be allowed to play some small role in governing after November, should do: They should demand that Comey keep that promise and update Congress on any new information about the emails matter.

And the newest information is that what is involved in tens of thousands of emails from Huma Abedin’s personal email accounts, dating back to her time at the State Department. And that in order for her to have used the laptop at issue—her husband’s laptop—for work-related matters, including emails, she would have had to have done so by remote control, from another electronic device.

That’s because during her time at the State Department, she was rarely in the same place as her husband’s laptop. Clinton traveled very extensively as secretary of state, and Abedin was almost always with her. And when she was not traveling, she was at work much of the time, not at home and not at Weiner’s office in Washington or Brooklyn or, after early 2011 when Weiner resigned from Congress, at their apartment in Brooklyn.

I do get that Comey’s concern was doing the political bidding of congressional Republicans, not Democrats. But technically, his pledge to update Congress instantly about any new developments that the FBI discovered in the email case was a pledge as well to Democrats. Even if the new information is not quite what he congressional Republicans who requested that pledge had in mind.

And about that giving-some-thought-to-the-governing-that-needs-to-happen-after-November thing, may I suggest this? How about announcing, today, that it appears extremely unlikely that either Abedin or Weiner placed those tens of thousands of emails on the hard drive of Weiner’s laptop, and that the FBI is aggressively attempting to determine who did place them there.

Then how about announcing your resignation, effective shortly after November—y’know, when the governing need to happen?

And then, if you’re really the upstanding civil servant you claim to be, why not offer an apology to the country for hijacking the final 11 days of this national campaign and election, which had looked until last Friday that it might actually involve some discussion of policy proposals that could make an actual difference in the lives of, well, voters?

Just some suggestions, Director Comey. Then again, I’m a Democrat. And the only governing that needs to occur after November is at the direction of congressional Republicans. And maybe Donald Trump.

The line you’ve been selling for the last six days, absurdly successfully, notwithstanding, you weren’t in a bind by dint of the new, raw information the specifics of which you did not yet know.

But you sure as hell are now. Good. Grace.

Oh, and Columbia U., does Professor Richman have tenure? Cuz if not, maybe he could be replaced by Lewis Carroll. I mean, why keep the knockoff if you can hire the original?*

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* Columbia U. Law School’s dean from 2004 to 2014, David M. Schizer, and still very much a chaired professor there, is a proud member of The Federalist Society. Seriously. Also seriously: He was appointed dean in 2004, at the very pinnacle of the Federalist Society’s power, its stranglehold on American law via the federal and state court benches, and in academia.

So, for of you who don’t want to see a replay of this, but who also don’t wanna bother to vote, or are undecided cuz Donald Trump will shake things up, or cuz State Department emails were planted on Anthony Weiner’s laptop, or cuz of the Clinton Foundation, you might wanna consider this–sometime before election day.

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UPDATE: “Now the FBI has launched a new investigation,” Trump’s new ad says.

To which a Clinton ad should reply:

Indeed it has. And that investigation includes trying to track who put those years of Huma Abedin’s personal emails onto the hard drive of her husband’s laptop, and when. Because it wasn’t Huma, who was nowhere near that laptop when most of those emails were sent, received, and originally opened. And who strangely enough did not put those tens of thousands of emails onto the hard drive of her own laptop.

That ad, or another one, should question the motive of the Federalist Society member and Columbia U. law school professor who advised Comey to write that letter to Congress—before anything even was known about them and in fact before there was a search warrant to learn what they even were.

The ad should quote the above statement by this professor, point out the extraordinary nature of what he said, and its profound implications—and that he himself has an interest in seeing a Republican president and, in any event, continued Republican control of the Senate.

Then maybe Clinton can finally start remind voters that Trump wants a Supreme Court that will carve Citizens United into granite, and will ALWAYS rule in favor of mega corporations—and an entire federal bench that will, too.

Hey, Hillary Clinton: There’s no time like the present for that. Y’know?

I mean … you know???

Comey needs to resign. Now. Even if Professor Richman or emeritus Dean Schizer advise him against it, cuz of all that governing that needs to be done after November. Seriously; click the above link to Schizer’s page on the law school website, and read what this guy does. And I wish someone would ask Elizabeth Warren and Bernie Sanders to do so.)

What else is Professor Richman advising Director Comey to do? Anyone wanna venture a guess? Any other suggestions for using FBI powers to undermine the validity of this election?

Updated 11/2 at 12:56 p.m.

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SECOND UPDATE: Reader J.Goodwin and I just exchanged the following comments in the Comments thread to my earlier post on this from last night, titled “How Do You Use a Laptop Long-Distance?“:

J.Goodwin / November 2, 2016 9:58 am Maybe they weren’t using it remotely, maybe they were using a single backup system for their entire family, and it was syncing files to it. Onedrive, Dropbox, Carbonite…

Me / November 2, 2016 1:07 pm Well, I suppose this is a possibility, and neither Abedin nor Weiner understood this. And if so, the FBI should make quick work of learning this. But of course if this is what happened, it has nothing at all to do with the fact that Clinton used her own email setup and server. And it’s probably something that a lot of other government employees, including at State and other sensitive departments and agencies, are doing accidentally. But this sure as hell illustrates the appallingly inappropriate nature of what Comey did last Friday, when he had no information whatsoever about the nature of this. This guy should be run out of town on a rail.

I wonder if he realizes yet that even if Clinton wins, the outcome of close Senate and House races that went Republican will be of questionable legitimacy–their being possibly the result of the FBI director’s purposeful interference, by his own admission, with voting decisions of some voters.

Updated 11/2 at 1:24 p.m.