I hadn’t planned to write another post until after the November 8 election. But on Tuesday, November 1, lightning struck twice.
First, the FBI used its twitter account to post documents relating to President Bill Clinton’s pardon of Marc Rich back in 2001. For those who are too young to remember, that presidential action 15 years ago was so controversial that it led prosecutors in the Bush administration to investigate potential criminal wrongdoing. They came up empty.
The second strike came Tuesday evening: the Chicago Cubs beat the Cleveland Indians and sent the World Series to Game 7.
This post concerns the first bolt from the blue.
Taken alone, the FBI’s release of the March Rich documents might have seemed relatively innocuous. But it came on the heels of FBI Director James Comey’s unprecedented letter to Congress on Friday, October 28. Contrary to Donald Trump’s subsequent false assertions, Comey was not “reopening” the Bureau’s closed investigation into Hillary Clinton’s use of a private email server, Rather, Comey said only that “the FBI has learned of the existence of emails that appear to be pertinent to the investigation.”
Then it turned out that the emails in question were on former congressman Anthony Weiner’s computer. Reportedly, the emails were to or from his now-estranged wife, Huma Abedin. Then it turned out that the FBI hadn’t even obtained a search warrant to look at any of those Huma Abedin emails that, to Comey, “appeared to be pertinent.” A judge issued the warrant two days after Comey’s explosive letter. Perhaps the FBI director is clairvoyant.
The bipartisan outrage against Comey was fast and furious. More than 100 former prosecutors and high-ranking Justice Department officials in Republican and Democratic administrations signed an open letter chastising Comey for his breach of longstanding Justice Department guidelines relating both to the confidentiality of investigations generally and, most especially, to any actions that could affect an imminent election.
In fact, The New York Times reported on November 1 that precisely those well-established guidelines stopped the FBI from taking overt actions to pursue its investigation of Donald Trump’s former campaign manager, Paul Manafort. The issues involve Manafort’s connections to pro-Russia officials and business leaders in Ukraine. The Times also reported that the FBI likewise delayed activities relating to a Clinton Foundation investigation.
Meanwhile, Richard Painter, a former chief White House ethics counsel for George W. Bush, filed a formal complaint that Comey’s letter to Congress had violated the Hatch Act. It outlaws misuse of a public office by, for example, seeking to influencing an election.
Who Is James Comey?
Even Comey’s detractors have expressed admiration for his character and integrity. Perhaps that’s justified. But lawyers and judges know that the appearance of impropriety can be problematic. In that respect and as relates to Comey, some facts alone may speak for themselves. So without additional comment, here are some facts about James Comey.
1985: Graduated with a J.D. from the the University of Chicago Law School and clerked for Judge John Walker of the Second Circuit Court of Appeals.
1987: After a brief stint as an associate at Gibson, Dunn & Crutcher, Comey was hired by then-U.S. attorney for the Southern District of New York, Rudy Giuliani. He was an assistant U.S. Attorney until 1993.
1993-1996: Partner in private practice at McGuire Woods in Richmond, VA.
1996: Deputy special counsel for the Senate Committee investigating the Clintons and Whitewater. Eventually, the process led to appointment of a special prosecutor and President Clinton’s impeachment (for which the Senate acquitted him).
1996-2001: Managing assistant U.S. attorney for Richmond division.
2002-2003: U.S. attorney for the Southern District of New York, where his tasks included supervising the criminal investigation of former President Bill Clinton’s pardon of Marc Rich.
2003-2005: President George W. Bush’s appointee as deputy attorney general — the number two person at the Justice Department — reporting directly to John Ashcroft. He became known for his standoff over the no-warrant wiretapping program at Ashcroft’s hospital bedside. According to one report of that internecine Republican battle, “Comey rushed to the room of his bedridden boss to physically stop White House officials from trying to get an ailing Ashcroft to reauthorize the program.”
2005-2010: Vice president and general counsel for Lockheed Martin.
2010-2013: Executive at Bridgewater, reported to be the world’s largest hedge fund.
June 21, 2013: President Obama nominates Comey to head the FBI.
July 5, 2016: In a bizarre departure from an investigator’s role, Comey dons his prosecutor hat to announce his recommendation that Hillary Clinton not be indicted for her use of a private email server while Secretary of State. He then offers a similarly unprecedented description of her behavior as, among other things, “extremely careless.”
July 7, 2016: As Congressional Republicans began investigations into Comey’s recommendation, he testifies that he’d been a Republican for most of his adult life, but was no longer a registered member of the GOP.
July-September, 2016: Trump and his surrogates, including Rudy Giuliani, blast Comey for not recommending the indictment of Clinton. Calling the failure a “total outrage,” Giuliani said, “As associate attorney and as Jim Comey’s boss for two or three years, I was very disappointed in him. I think if you read it, it’s logically inconsistent. He contradicts himself at least three times.”
September 28, 2016: For four hours, Comey testifies before the House Oversight Committee, mostly about the FBI’s investigation into Hillary Clinton’s private email server and his recommendation not to indict her.
October 3, 2016: FBI agents seize Anthony Weiner’s laptop and learn quickly that they include some Huma Abedin emails.
October 28, 2016: Comey sends his letter to Congress about additional materials that “appear to be pertinent.” Two days later, the FBI obtains a search warrant to see what those emails actually say.
November 1, 2016: The FBI releases documents responsive to earlier Freedom of Information Act requests relating to President Clinton’s 2001 pardon of Marc Rich. When pressed, the official FBI comment was that its release of the Rich documents were posted “automatically and electronically to the FBI’s public reading room in accordance with the law and established procedures.” This happens, the statement said, on a “first-in, first-out” basis.
And the FBI twitter account that announced the release? Until October 30, it had been dormant for more than a year — since October 8, 2015.
To the FBI’s official comment that the timing of the release was a coincidence, CNN’s legal analyst Jeffrey Toobin commented, “My official response is, ‘Give me a break.'”
I would add this: Sometimes even paranoid persons have real enemies.