Friday, November 4, 2016

The FBI Spoke Because the AG Punted

It’s all about Attorney General Loretta E. Lynch and her do-nothing response to news of her secret meeting with Bill Clinton on the tarmac in Phoenix last June.

FBI Comments a Second Time. On October 28th, FBI Director James Comey sent a letter notifying Congress that investigation had resumed into Hillary Clinton’s use of a private email server while she was Secretary of State because new information on that subject had surfaced in a different investigation of another subject (the alleged “sexting” to a minor by one Anthony David Weiner, a/k/a Carlos Danger, former Congressman from New York and estranged spouse of Huma Abedin, long-time aide to Mrs. Clinton). In a twinkling the letter was leaked to the media, became known around the world, and excited a furor.

The Evil of Telling the Voters the Truth before Election Day. It has been said that Napoleon was not disturbed that Moscow was burning but was disturbed that the development had caught him by surprise. What disturbed the Clinton campaign, apparently, was not that the investigation continues but that all Americans were informed of it in time to do something about it on election day, e.g., not vote for Hillary Clinton when they otherwise might.

The candidate herself complained on the grounds that the letter had been sent only to Republicans. That was false and untrue, and readily refuted by the face of the letter itself: It was sent to Democrats as well as Republicans. Eventually the campaign acknowledged the error.

Most of the complaints characterized the conduct of Mr. Comey as a mistake or “inappropriate” or illegal, largely on the theory that (a) it might influence the election and (b) Mr. Comey intended for it to influence the election. These critics, who had been effusive in their praise of Mr. Comey in July, included U.S. Rep. Nancy Pelosi (D-CA), Speaker of the House of Representatives during the first two years of the Obama administration; U.S. Rep. Elijah Cummings (D-MD), ranking member of oversight committee and the special Benghazi committee; and U.S. Senator Harry Reid (D-NV) who, of course, needs no further introduction.

The Secret Meeting Comes to Light by Chance. It is this observer’s conclusion that the Comey letter and the ensuing uproar was made possible, and probably inevitable, by Ms. Lynch’s clandestine meeting with Mr. Clinton on her private airplane in Phoenix; by the serendipitous discovery and reporting of it; and above all, by Ms. Lynch’s “quietist” response to the dreadful publicity.

The meeting may well have passed without notice had not a local television anchorman (Chris Sign of ABC15) been tipped off about it the next day and questioned Ms. Lynch while she was still in town. 

This is the story: On Monday evening, June 27th, Mr. Clinton was due to depart from Sky Harbor International Airport in Phoenix after completing some fund-raising activity and Ms. Lynch was due to arrive for business related to “community policing” (which to some is code for management of municipal police forces by the Department of Justice (“DOJ”)). Mr. Clinton learned of Ms. Lynch’s imminent arrival, delayed his own departure, and boarded her private plane for a lengthy meeting attended only by Ms. Lynch, who owes her 1999 appointment as U.S. Attorney for the Eastern District of New York to Mr. Clinton; by Mr. Clinton, spouse of the subject of a criminal investigation by the FBI, which answers to DOJ; and by the husband of Ms. Lynch. (I have been unable to confirm one report that the meeting took place on a third plane that neither Ms. Lynch nor Mr. Clinton were travelling on. Nor have I been able to ascertain why the husband of Ms. Lynch was traveling with her on a business trip at the start of a work week.) Although the length of the meeting has been variously reported at between 25 and 40 minutes, Ms. Lynch characterized it as “primarily social” and said the only subjects discussed were grandchildren and Mr. Clinton’s golf game. She denied that there was any conversation about the FBI investigation of Mrs. Clinton’s email practices.

AG Does Nothing More than Say She’ll Punt to the FBI. Ms. Lynch acknowledged that the situation looked bad. She said that to mitigate the appearance of impropriety she would distance herself from the investigation by accepting the recommendation of the FBI. She might have opted for an independent counsel or special prosecutor, with the total loss of control which that entails. But no. Nor did she recuse herself. And I have just learned that her decision to accept the recommendation of the FBI had been made some months before her secret meeting with Mr. Clinton in Phoenix – or so she said after she got found out. In other words, her effort to remove the taint on the secret meeting consisted of nothing more than telling a television newsman that she had long since decided that she would accept whatever the FBI recommended. (The abdication of her duties to exercise independent professional judgment and prosecutorial discretion is beyond the scope of this piece.)

The FBI Interviews Mrs. Clinton. A few days later, on Saturday, July 2d, Mrs. Clinton met for an interview with representative of the FBI and the DOJ. She was accompanied by five lawyers: David Kendall and two others from Williams & Connolly; Heather Samuelson, one of two aides charged with the task of separating Mrs. Clinton’s business emails from her personal emails; and Cheryl Mills, the other aide charged with separating the business and personal emails, chief of staff to HRC when she was at State, and chairman of the Clinton Foundation). No oath was administered. No tape recording was made. No stenographer attended. And the meeting was “voluntary,” in that the witness appeared without a subpoena (no grand jury was sitting, and so no authority to go to for a subpoena.)

A Nice Job for Ms. Lynch? Two days later, June 4th, according to “sources close to the campaign,” if Mrs. Clinton won, she might ask Ms. Lynch to stay on as Attorney General.

FBI Comments a First Time. On July 5th FBI Director Comey told the world the FBI had recommended that no charges be brought against Mrs. Clinton, and that no reasonable prosecutor would prosecute her even though (a) she had been “extremely careless” in the handling of classified information, (b) 18 U.S.C. 793(f) criminalizes “gross negligence” in the handling of such information, (c) it is practically impossible to see a dime’s worth of difference between “extremely careless” and “gross negligence,” and (d) Mr. Comey went on to indicate that there would be a different recommendation if the subject were not named Hillary Clinton and nominee of the largest political party in the land for the office of President of the United States. (Even as Mr. Comey was speaking, President Obama and Mrs. Clinton were on their way in Air Force One to a rally for her in North Carolina. Some see that as evidence that the outcome was already known to the President, not to say “fixed,” because it is difficult to imagine that the President would be leaving town with HRC to campaign for her while his FBI Director was back in Washington announcing that she was about to be charged with felonies.)

To Cover for the AG, Speak Fully and Honestly, and Be Loved by All: Good Luck with That. My only point here and now is that the public comments of Mr. Comey on two recent occasions about the FBI investigation into what others call the Clinton “email scandal” were made possible and predictable and even inevitable by the acts and omissions of Attorney General Loretta E. Lynch in Phoenix: She met in secret with Mr. Clinton. She got found out. She said the conversation was nothing but small talk, though it lasted up to 40 minutes. Her effort to mitigate the appearance of impropriety – to take the stink off it, if you please -- was confined to telling the press that she had long since decided to accept the recommendation of the FBI. Nothing more, nothing less, and nothing else.   

As a rule the FBI does not comment on investigations. This case is different, and made so by an Attorney General who had thoroughly compromised herself and then did nothing to right the wrong. She did not opt for an independent counsel or recuse herself. She did not even decide to accept the recommendation of the FBI – an abdication of the fundamental duties of her office. All she did was state publicly that her decision to punt to the FBI had been made months before her clandestine meeting on the tarmac. 

Director Comey spoke on July 5th, where he otherwise almost certainly would not have spoken at all, in order to cover for the Attorney General. (Team Clinton welcomed this development, describing it in terms of Mrs. Clinton’s being “cleared” and “exonerated” and found “innocent.” But that, too, is a subject for another day).

The intended beneficiary of the public statements on July 5th by the Director of the FBI was not Hillary Clinton, although she surely did benefit from those statements, but the tainted Attorney General of the United States, Loretta E. Lynch, who publicly dumped her responsibilities on the FBI in general and on its director in particular. However, once Mr. Comey undertook and assumed to speak at all, he had to speak carefully, completely, and honestly. So when new information of consequence came to his attention, as was the case in late October, he was obliged to set the record straight (never mind that he had also indicated to the Congress, on oath, that he would do so).


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