Letter to Inspector General Horowitz

Dear Inspector General Michael Horowitz:           

I have written to you previously [a] [b] regarding your investigation of the actions of the FBI with respect to the search warrant obtained against Hillary Clinton on October 30, 2016.  In the course of my FOIA case before the U.S. District Court of the Central District of California to remove redactions from the search warrant affidavit, I came across several issues that I believe were not fully or properly addressed in your otherwise excellent report on the matter from June of this year.  I am writing you again today to share with you my observations.

The IG Report includes a full chapter on the drafting of the search warrant but unfortunately does not address the very problematic pretextual nature of the affidavit used to obtain the warrant.  IG Report, pp. 379-84.  You will recall that the stated purpose of the renewed investigation was to search for three months of e-mails from an earlier period that Director Comey believed might contain evidence of Clinton’s criminal intent[1] to violate the law with regard to classified information. IG Report, p. 373.[2] 

However, nowhere in the search warrant application executed by the Supervisory Special Agent is the true design of the warrant – the missing three months of e-mails from early in Clinton’s tenure – disclosed.  IG Report, p. 325, n. 178 (“Although Comey identified this fact as critical to his assessment of the potential significance of the emails on the Weiner laptop, the information was not included in the October search warrant application for the Weiner laptop.”). The brief probable cause portion of the search warrant affidavit is noticeably directed at something completely different, a “spill” of classified information to unauthorized devices.[3]  But, as you will recall from the IG Report, the FBI had already determined that it was not interested in conducting a “spill” investigation.[4]

The IG Report is conspicuously silent on the importance of the discrepancy between the alleged purpose of the renewed investigation and the affidavit in support of the search warrant.  As a result, the Report misses perhaps the most glaring problem with what transpired in the weeks before the 2016 election – the lack of probable cause for conducting the actual search authorized by Director Comey.  James Comey, A Higher Loyalty, p. 193 (“They told me those might well the missing emails from the start of Clinton’s time at the Department of State. The team said there was no prospect of getting Weiner’s consent to search the rest of the laptop, given the deep legal trouble he was in. ‘We would like your permission to seek a search warrant.’ Of course, I replied quickly. Go get a warrant.”).[5]

Nearly everyone quoted in the IG Report, with the possible exception of the Supervisory Special Agent who executed the affidavit for the search warrant, stated that they did not believe the laptop would contain evidence of any criminal activity.  See IG Report, pp.352-55.[6]  Nevertheless, it appears that not one of the individuals dared to inform Director Comey that they lacked probable cause for the search he had authorized.[7]

Inexplicably, rather than address the lack of probable cause for the search warrant, the Report actually criticizes the FBI for not moving ahead sooner: “We found the belief that the Weiner laptop was unlikely to contain significant evidence to be an insufficient justification for neglecting to take action on the Weiner laptop immediately after September 29.” IG Report, p. 327.  This makes absolutely no sense.  Since when is it “unjustified” to decide not to obtain a search warrant to look for non-existent evidence that no one believes is there? The IG’s criticism of the FBI’s inaction assumes that there was probable cause for the search, but it is clear from all of the evidence that there was insufficient probable cause. In the end, the search warrant could only be obtained under the false and misleading pretext that the FBI was conducting a spill operation.

Further, the IG Report briefly describes the ultimate review of the emails on the Weiner laptop, but fails to mention that absolutely no emails were found from the early three-month time period that Comey and the others believed might be important. Compare IG Report, pp. 388-89; Comey, Higher Loyalty, p. 202 (“There were indeed thousands of new Clinton emails from the BlackBerry domain, but none from the relevant time period.”). In fact, as anyone with even a limited knowledge of the case would expect, all 13 of the classified email chains that were found on the laptop were duplicates of those already reviewed previously. IG Report, p. 389.

Perhaps the drafters of the IG Report were not technically proficient enough to ask the crucial question — when did the FBI agents and technicians reviewing the emails learn that absolutely no emails from the sought-after three-month time frame were on the laptop? No doubt that fact could have been discovered almost immediately, and if it was, then what exactly was the FBI looking for over the course of the ensuing week, while the upcoming election hung in the balance? Or were they simply stalling to cover for the fact that they had made a huge blunder? The IG Report is silent on these very significant questions.

                                                                        Very truly yours,

                                                                        E. RANDOL SCHOENBERG


[1] We feel compelled to add here that no one has ever explained what exactly such a hypothetical e-mail would say, why anyone would believe that Secretary Clinton would ever draft such an e-mail, or, most importantly, why the presence of such an e-mail would help prove a violation of 18 U.S.C. § 793(e) or (f), given all of the other facts developed in this investigation (notably the absence of any transmission or delivery of classified information to unauthorized recipients or the removal of such classified information by third parties). Note that the term “mishandling” appears nowhere in the criminal statutes, and that communicating by e-mail does not “remove” anything.

[2] IG Report, p. 373.   “Comey told us that the potentially great evidentiary significance of the newly discovered emails would have made it particularly misleading to stay silent. But we found that the FBI’s basis for believing, as of October 28, that the contents of the Weiner laptop would be significant to the Clinton email investigation was overestimated. Comey and others stated that they believed the Weiner laptop might contain the ‘missing three months’ of Clinton’s e-mails from the beginning of her tenure when she used a BlackBerry domain, and that these ‘golden emails’ would be particularly probative of intent, because they were close in time to when she set up her server. However, at the time of the October 28 letter, the FBI had limited information about the Blackberry data that was on the laptop. The case agent assigned to the Weiner investigation stated only that he saw at least one BlackBerry PIN message between Clinton and Abedin. As of October 28, no one with any knowledge of the Midyear investigation had viewed a single email message, and the Midyear team was uncertain they would even be able to establish sufficient probable cause to obtain a search warrant.”

[3]  26. Given the information indicating that there are thousands of Abedin’s emails located on the Subject Laptop — including emails, during and around Abedin’s tenure at the State Department, from Abedin’s @clintonemail.com account as well as a Yahoo! Account appearing to belong to Abedin — and the regular email correspondence between Abedin and Clinton, there is probable cause to believe that the Subject Laptop contains correspondence between Abedin and Clinton during their time at the State Department. Because it has been determined by relevant original classification authorities that many emails were exchanged between Abedin, using her @clintonemail.com and/or Yahoo! Accounts, and Clinton that contain classified information, there is also probable cause to believe that the correspondence between them located on the Subject Laptop contains classified information which was produced by and is owned by the U.S. Government. The Subject Laptop was never authorized for the storage or transmission of classified or national defense information.

27. A complete forensic analysis and review of the Subject Laptop will also allow the FBI to determine if there is any evidence of computer intrusions into the Subject Laptop, and to determine if classified information was accessed by unauthorized users or transferred to any other unauthorized systems.

[4] IG Report, p. 55 (“the Midyear team did not seek to obtain every device or the contents of every email account that it had reason to believe a classified email traversed.”); p. 93 (“Strzok further stated that the FBI’s ‘purpose and mission’ was not to pursue ‘spilled [classified] information to the ends of the earth’ and that the task of cleaning up classified spills by State Department employees was referred back to the State Department. He told us that the FBI’s focus was whether there was a ‘violation of federal law. Prosecutors 1 and 2 similarly told us that the Department was not conducting a spill investigation, and that the State Department was the better entity for that role. ‘At a certain point, you have to decide what’s your criminal investigation, and what is like a spill investigation…. [W]e could spend like a decade tracking emails…wherever they went.’ The SSA told us that the Midyear team engaged in several conversations, and the State Department officials expressed concern about the problem and were receptive to resolving it. Generally the witnesses told us that they could not remember anyone within the team arguing that more should have been done to obtain the senior aides’ devices.”); p. 167 (“[T]he picture that was fairly clear at that point [was] that Hillary Clinton had used a private email…to conduct her State Department business. And in the course of conduct [of] her State Department business, she discussed classified topics on eight occasions, dozens of occasions, and there was no indication that we had found that she knew that was improper, unlawful, that someone had said don’t do that, that will violate 18 U.S.C. [the federal criminal code], but that there was no evidence of intent and it’s looking, despite the fact of the prominence of it, like an unusual, but in a way fairly typical spill and that there was no fricking way that the Department of Justice in a million years was going to prosecute that.”); p. 374, n. 187 (“In his book, Comey stated, with respect to the July declination, that ‘[n]o fair-minded person with any experience in the counterespionage world (where “spills” of classified information are investigated and prosecuted) could think this was a case the career prosecutors at the Department of Justice might pursue. There was literally zero chance of that.’”).

[5] At this fateful meeting, there appears to have been absolutely no discussion of whether there was probable cause to seek a warrant. Most likely this critical omission was because, at the outset of the meeting, Andrew McCabe and his counsel Lisa Page were excluded and removed from the meeting as fall-out from an October 24, 2016 Wall Street Journal article raising spurious claims of a conflict of interest because McCabe’s wife had once run for state office and received support from the governor of Virginia Terry McAuliffe, a friend of Hillary Clinton.

[6] IG Report, p. 352-54, report of interviews with lead DOJ prosecutor David Laufman, Prosecutor 1 and Prosecutor 2:

We asked Laufman what he meant when he said there was a ‘low expectation’ that this evidence would alter the outcome of the Midyear investigation. Laufman stated:

“[W]e had seen through our investigation, the types of emails that Huma Abedin had been party to. And they were just not the kinds of emails that really went to the core issues that were under legal analysis, meaning they had to do with sort of scheduling, and…I mean, as important as she is in a personal, confidential assistant manner to the former Secretary, she wasn’t as substantively engaged in, in some matters that would have occasioned access to classified information or dealing with classified issues. So…we had seen quite a bit up to that point. And with respect to her, we hadn’t seen her engaged via email with anybody on the types of things that were material to our legal analysis. So, assuming that what was going to be reviewed from this new dataset was consistent with that, it seemed improbable to us that it was going to, to change anything. And of course as we know now, it was a giant nothing-burger.”

Prosecutor 1 stated that the notification to Congress “didn’t make any sense.” Prosecutor 1 told us that given Abedin’s role and the evidence they had previously reviewed there was little “likelihood of finding anything of import in there.” Instead of doing a public announcement, Prosecutor 1 stated, “We should just investigate it and do it as quickly as we could.” We asked Prosecutor 1 about the potential presence of BlackBerry emails from early in Clinton’s tenure.

Prosecutor 1 stated that the FBI mentioned that “there could be information that covered that BlackBerry period from the period at the front end of the tenure,” but added:

“I felt like a lot of the analysis was based upon what, what could be in there and the opportunity cost of sort of missing out on that. Of course, to me that’s a different analysis than making an announcement about it. We didn’t want to be seen to be in favor of forgoing the effort entirely.”

Prosecutor 1 stated that the FBI seemed “very concerned about transparency with the public” and “had already kind of decided what they were going to do” prior to consulting with the Department.

Prosecutor 2 told us that the Department was “shocked” that the FBI was even considering notifying Congress about this development. Prosecutor 2 said that she did not necessarily view the Weiner laptop as a significant development in the Midyear investigation. Prosecutor 2 stated:

“Because over the course of this investigation, we haven’t sought out personal devices of anybody other than Hillary Clinton. So we haven’t asked, for example, for like Huma’s personal laptops, her personal BlackBerries. We have her state.gov stuff, but that’s like, that of Huma’s is all we’ve searched.

So, there’s a threshold question in my mind of whether, like, this is even something that needs to be searched. And based on the, the iffyness on that threshold question, and then the likely significance of this device, it seems totally nuts to me that they would make an announcement having no idea what is on this device, having not looked at it. And in, and in terms of like the impact that this announcement could have.

And I remember being on the phone call like, how are you, asking like how on earth are you going to word this announcement so it’s accurate and doesn’t, doesn’t like, you know, open a much bigger can of worms than is really the significance of this recent finding. I mean at this point…we have no idea…. We just know that like some of Huma’s emails are in FBI’s custody. Like, of course Huma has other emails. Like, how is this a game changer?”

Prosecutor 2 also told us that she believed the FBI would not listen to any of the arguments they put forth. She stated, “[T]here’s a defeated feeling at this point that like [Strzok] was given the task of like pretend to DOJ that you’re hearing them out. And he was going to, you know, humor us by having this conference call, but like that nothing we said mattered on that call.”

[7] If there is one as-yet unnoticed undercurrent or subtext in all of the released information concerning the FBI’s investigation of Secretary Clinton, it is the apparent unwillingness of the male FBI leadership and agents to heed the warnings of their female colleagues, and the apparent understanding of these female colleagues that their views would not be followed by the men. See, e.g, IG Report, p. 377, (Attorney General Loretta Lynch and Deputy Attorney General Sally Yates were afraid to speak directly to Comey because he didn’t consult with them) (“We acknowledge that Comey, Lynch, and Yates faced difficult choices in late October 2016. However, we found it extraordinary that Comey assessed that it was best that the FBI Director not speak directly with the Attorney General and Deputy Attorney General about how to best navigate this most important decision and mitigate the resulting harms, and that Comey’s decision resulted in the Attorney General and Deputy Attorney General concluding that it would be counterproductive to speak directly with the FBI Director.”); IG Report, p. 340-42 (FBI Deputy Counsel Trisha Anderson and FBI Attorney 1 try unsuccessfully to remind Comey and FBI General Counsel Jim Baker that they were about to interfere in the election) (“I gather he [Baker] thought she [Anderson] might not raise it. So at our next family discussion that evening, he said let me ask you a contrarian question. You know how do you think about this? And then I think she spoke herself and said, how do you think about the fact that you might be helping elect Donald Trump? And I said, I cannot consider that at all.”) (“Baker told us that he asked Anderson if she wanted to bring this up with Comey, but Baker stated that ‘she was reticent’ to do so.”); text message from FBI attorney Lisa Page to FBI agent Peter Strzok on October 27, 2016 (FBI Attorney Lisa Page tries to remind FBI Agent Lead Peter Strzok that they cannot search the laptop without probable cause) (“completely INFURIATED [ ] with [FBI general counsel] Jim [Baker]…. Please, let’s figure out what it is we HAVE first. What if we can’t make out PC [probable cause]? Then we have no further investigate step.”).

Vespertine

Vespertine is a restaurant in Culver City, CA. It has only been open for about two years. Known as one of the best restaurants in Los Angeles, I expected nothing less than perfection. That is exactly what I got. Vespertine isn’t a normal restaurant, it’s an experience. From the moment you drive up, it will amaze you. The architect Eric Owen Moss created a beautiful work of art to house one of the best restaurants in Los Angeles. The building is four stories. After you drive up, the valet takes your car, and you are brought to the garden for some birch juice until your table is ready. When they are ready for you, a waiter will escort you directly up to the second floor where executive chef, Jordan Kahn, is waiting. He greets you and asks if there are any dietary restrictions that he should know about. If there are any restrictions, he will quickly take that into account and prepare something you can eat. After meeting Kahn someone will take you up to the roof to enjoy your first four courses. If you are cold, there is a blanket right next to you on the couch. The roof has a remarkable view of the Hollywood sign and all of Culver City. The first four courses are finger food (snacks), one after the other. Kahn takes dishes that could be considered simple and adds his own unique flair to the dish, for example the “chips and dip”. Using kelp as a different type of chip is their way of elevating the dish. At Vespertine you will find yourself eating more flowers than you could imagine. Kahn uses ingredients that are supposed to be sweet or savory then flips the flavors, and it tastes better than before. For example, sunchokes are normally supposed to be savory, but by caramelizing them it adds a new depth of flavor. This is not an easy task, but they do a really good job. When you are finished with your finger food someone will take you to floor one (the dining room), where you will finish most of your meal. I had wished the dishes were spaced out a little bit more, but the food was like nothing I’ve ever seen before. Kahn uses ingredients that are rarely used in a restaurant. He combines them with a simple ingredient that when put together tastes so different from the food you usually eat. He plays with different flavors and textures. Vespertine isn’t all about the food. They incorporate their environment into everything they do. The entire structure is surrounded by glass so you can always see outside. Vespertine adds mystery into some of their dishes, making it so you don’t know what you are eating until you start eating. Sometimes you may need a flashlight to see inside the bowl. For the last part of the meal a waiter will take you to the lobby for a digestive snack and tea on what appears to be a table hung by wires in the air. This was the perfect ending to a perfect night. HIGHLY RECOMMEND!!

First Course: (Chips and Dip) Giant Kelp and Chickpea 
Second Course: Burnt onion and Black Currant cookie

Third Course: Artichoke, Poppy Seeds and Chamomile (No picture) 

Fourth Course: Milk bread and Abalone Mushrooms
Fifth Course: Concord grapes, Horseradish and Tradescantia
Sixth Course: Trout Roe, Almond and Radish
Seventh Course: Puffed Quinoa, Amberjack, Salted Plum and Burnt Onion
Eighth Course: Sweetbreads, Rose and Begonia 
Ninth Course: Young Potatoes, Wheatgrass 
Tenth Course: Sunchokes, Lovage and Brown Butter
Eleventh Course: Roasted Beets, Black Bantam, Black Trumpet, Quince Vinegar and Snap Peas
 Twelfth Course: Kiwi, Spruce, Black Raspberries, Meadowsweet and Black Carrots 
Thirteenth Course: Almond, Cucumber and Redwood
Fourteenth Course: Caramelized Sunchokes and Candy Cap
Fifteenth Course: Organic Sweet Pears

Wishful Thinking and Reasonable Doubt

In German, the phrase used for wishful thinking is Der Wunsch ist Vater des Gedankens, which translates as “the wish is father of the idea.”  I like that construction because I think it says a lot about how we decide what we believe.

This week’s testimony by Dr. Christine Blasey-Ford and Judge Brett Kavanaugh before the U.S. Senate Judiciary Committee has the entire country talking about sexual assault and alcohol use, but also about more abstract issues of memory and evidence and proof.  Understandably, given the political setting, the debate has divided cleanly along partisan lines, but in doing so, it has sometimes placed people in unfamiliar territory on some of the more broad themes.  I include myself.

I am generally very defense-oriented, and a firm believer in giving accused defendants the benefit of reasonable doubt. Forcing the state to overcome a high burden of proof undoubtedly leaves many crimes un-prosecuted and allows many guilty defendants to avoid conviction, but it also feels to me a necessary barrier to avoid wrongful prosecution of the innocent.  It is the fair price we agree to pay when we give the state the authority to punish the guilty.

This willingness to entertain the possibility of reasonable doubt has led me to some unpopular decisions.  When I was a juror in a gang murder case back in 1994, we deliberated for less than an hour before taking our first vote, 11-1 for guilty.  Guess who the holdout was?  After three days, about half the jurors ended up agreeing with me but the jury was hung.  The defendant was retried and convicted and twenty-four years later he is still in prison.  It bothers me to this day, especially because I am convinced not only that the state had not met its burden of proof, but that the defendant was actually innocent of the charges against him.  As I wrote a few years ago when referring the case to the Innocence Project:

He should have been found not guilty, but we hung.  Instead he was re-tried and sentenced to 35 years to life.  The prosecution used all of the exculpatory evidence against him by ridiculous “expert” testimony.  So, for example, the fact that just minutes after the murder he was apprehended separate and apart from the group of kids carrying the murder weapon was “proof” that he was guilty because gang members “always” hand off the gun to someone else to evade prosecution.  The fact that he had no gunshot residue on him was proof of his guilt, because gang members know how to wipe off residue to make it seem like they are innocent.  The fact that his prints were not on the gun was proof that he was guilty because gang members know to wipe off the gun to avoid fingerprinting. The fact that the main eyewitness at first did not identify him as the shooter, and only changed his testimony upon re-questioning a day later, was proof that he was guilty, because the witness was obviously too intimidated and scared to identify him the first time.  Etc. Etc.  The truth almost certainly is the guy didn’t do it.  They later found the guys who had been running away with the murder weapon, but by that time the police (Rampart division, I think) had pinned the murder on [the defendant] and persuaded the witnesses to identify him, and so they just left it at that.  His girlfriend (mother of his 1 year old child) testified for him in the first trial, but didn’t the second time because in the meantime they had prosecuted her for jury tampering for supposedly approaching a juror on my panel and telling her that he was innocent and they knew who did it.

Do I know for sure that the defendant wasn’t the one who shot the victim in his stomach with a shotgun when he refused to hand over his wallet?  No, I don’t.  But it didn’t seem very likely to me.  Could he have been another one of the kids who surrounded the victim and therefore been guilty of aiding and abetting the crime?  Absolutely yes, and I might have even convicted him of that had the prosecutors bothered even to charge him with aiding and abetting, which they did not, probably because the detectives had gotten the main eye-witness, who had been robbed by the gang a minute earlier, to change his story and say that the defendant was the one with the shotgun.

So I am a bleeding heart liberal.  Ok then, here’s another one.  I was never convinced that George Zimmerman was guilty of murdering Treyvon Martin.  Martin was the poor kid just returning from a convenience store, who got killed by Zimmerman, a vigilante patrolling his neighborhood.  Why did I have reasonable doubts that Zimmerman was guilty?  Because there was good evidence that Martin had been beating up Zimmerman before he was shot.  Quoting from the summary on Wikipedia, which comports with what I recall. “The police officers observed that Zimmerman’s back was wet and covered with grass, and he was bleeding from the nose and the back of his head. . . . The only eyewitness to the end of the confrontation stated that Martin was on top of Zimmerman and punching him, while Zimmerman was yelling for help. This witness stated that “the guy on the bottom, who had a red sweater on, was yelling to me, ‘Help! Help!’ and I told him to stop, and I was calling 911.”  Zimmerman may have provoked the altercation, but Martin’s friend, who was on the phone with him at the time it began, stated that it was Martin who first  said to Zimmerman “What are you following me for?”  The witness testimony and the observed injuries makes it hard for me to conclude beyond any reasonable doubt that Zimmerman could not use the defense of self-defense.

Ok, so my bleeding heart always goes in favor of the defendant no matter who he is.  So, what do I think about Judge Kavanaugh?  Here was my initial response on Facebook:

I believe Kavanaugh is lying. He is lying to himself and to us about who he was and is. It is 100% believable that Dr. Ford attended one of those small gatherings with his beer-drinking buddies that Kavanaugh recorded on his calendar (July 1 and August 7 seem the most likely candidates). It is perfectly believable that she was there and left early after an incident. It is absolutely believable that Kavanaugh and Judge might have rough-housed and acted out an attempted rape with her while she was at the party. (I can remain agnostic on whether they intended to go through with it if they had not been interrupted.) And it is certainly believable that for Kavanaugh and Judge the party went on and no part of the evening was memorable to him. Finally, it is absolutely believable that Ford would have remembered the event and been traumatized as she was.

What is also 100% certain is that Kavanaugh is purposely lying about the state of the evidence, which he as a judge knows perfectly well how to assess. It is absolutely NOT true, as Kavanaugh claimed over and over again, that “all four of the witnesses said it did not happen.” Saying they have no recollection is NOT the same, as Kavanaugh certainly knows, as saying that something did not happen.

Asking if Kavanaugh remembers not remembering something after drinking, as so many Senators tried to do, is stupid. What they should have asked is what he remembers of those parties and if it is possible — possible! — that he might not today remember something that happened that was absolutely untraumatic for him.

Kavanaugh is most likely purposely lying about the meaning of his yearbook page (Boof, Renate Alumnius, Devil’s Triangle, FFFF, etc.), and it was notable that he would not readily admit that his calendar note about “skis” meant beers (as in the slang term brewskis).

It is Kavanaugh’s CURRENT lying, to himself and to us, that should bother people about his nomination (beyond all of the rest of the political implications of his judicial views).

If I were a Senator, I would very easily vote no on his confirmation. This is not what we want in a Supreme Court Justice (nor in a President).

[For a more thorough discussion of Kavanaugh’s lies and dissembling during his testimony see this excellent article by Nathan J. Robinson in Current Affairs.]  As I began reading the comments of others, I noticed that many Kavanaugh supporters were arguing that he was innocent or should be presumed innocent, or that the evidence was insufficient to find that he had assaulted Dr. Blasey-Ford.  I hadn’t focused so much on the issue of innocence or guilt because, after all, this is not a criminal trial but rather a confirmation proceeding.  What matters is not his past, but his present character.  Guilt beyond a reasonable doubt really shouldn’t be an issue at all.  But of course it is.  And then I started thinking about whether the evidence so far would be sufficient to convict Judge Kavanaugh of a sexual assault against Dr. Blasey-Ford.  I think it would.

I have heard people say there is “no evidence” to prove that she was assaulted.  That is simply false, because of course testimonial evidence is evidence.  Here is the California jury instruction on direct and indirect evidence:

Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion. Direct evidence can prove a fact by itself. For example, if a witness testifies she saw a jet plane flying across the sky, that testimony is direct evidence that a plane few across the sky. Some evidence proves a fact indirectly. For example, a witness testifies that he saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial evidence.” In either instance, the witness’s testimony is evidence that a jet plane few across the sky. As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give every piece of evidence whatever weight you think it deserves.

Dr. Blasey-Ford gave testimony that would clearly be sufficient to prove a sexual assault.

In the summer of 1982, like most summers, I spent most every day at the Columbia Country Club in Chevy Chase, Maryland, swimming and practicing diving.  One evening that summer, after a day of diving at the club, I attended a small gathering at a house in the Bethesda area. There were four boys I remember specifically being there: Brett Kavanaugh, Mark Judge, a boy named P.J., and one other boy whose name I cannot recall. I also remember my friend Leland attending.  I do not remember all of the details of how that gathering came together, but like many that summer, it was almost surely a spur-of-the-moment gathering.  I truly wish I could be more helpful with more detailed answers to all of the questions that have and will be asked about how I got to the party and where it took place and so forth. I don’t have all the answers, and I don’t remember as much as I would like to.  But the details that — about that night that bring me here today are the ones I will never forget. They have been seared into my memory, and have haunted me episodically as an adult.

When I got to the small gathering, people were drinking beer in a small living room/family room-type area on the first floor of the house. I drank one beer. Brett and Mark were visibly drunk.  Early in the evening, I went up a very narrow set of stairs leading from the living room to a second floor to use the restroom. When I got to the top of the stairs, I was pushed from behind into a bedroom across from the bathroom. I couldn’t see who pushed me. Brett and Mark came into the bedroom and locked the door behind them.  There was music playing in the bedroom. It was turned up louder by either Brett or Mark once we were in the room.

I was pushed onto the bed, and Brett got on top of me. He began running his hands over my body and grinding into me. I yelled, hoping that someone downstairs might hear me, and I tried to get away from him, but his weight was heavy.  Brett groped me and tried to take off my clothes. He had a hard time, because he was very inebriated, and because I was wearing a one-piece bathing suit underneath my clothing.  I believed he was going to rape me.

I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from yelling. This is what terrified me the most, and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me.  Both Brett and Mark were drunkenly laughing during the attack. They seemed to be having a very good time.  Mark seemed ambivalent, at times urging Brett on and at times telling him to stop. A couple of times, I made eye contact with Mark and thought he might try to help me, but he did not.

During this assault, Mark came over and jumped on the bed twice while Brett was on top of me. And the last time that he did this, we toppled over and Brett was no longer on top of me. I was able to get up and run out of the room.  Directly across from the bedroom was a small bathroom. I ran inside the bathroom and locked the door. I waited until I heard Brett and Mark leave the bedroom, laughing and loudly walk down the narrow stairway, pinballing off the walls on the way down.  I waited, and when I did not hear them come back up the stairs, I left the bathroom, went down the same stairwell through the living room, and left the house.  I remember being on the street and feeling this enormous sense of relief that I had escaped that house and that Brett and Mark were not coming outside after me.

A conviction based on this testimony alone would never be reversed for insufficiency of the evidence.  There are thousands, perhaps millions of people in jail today based on no more convincing evidence than this.  So, the first question to ask yourself is, if you knew nothing more than this one statement, would you find that Judge Kavanaugh is guilty beyond a reasonable doubt?  If you find yourself saying no, you aren’t following the instructions.  How do I know?  Because I told you to assume you knew nothing other than her testimony.  In order to cast doubt, you need to look outside her testimony, to your own experience and to other things you know about the matter.  And here is where we get back to the original theme of this blog — wishful thinking.  Where your mind wanders, how hard it looks for a basis for doubting her testimony, is all about you.

This type of purposeful intentionality is inherent whenever we weigh evidence, and it is why I was very disappointed with Judge Kavanaugh’s initial Senate testimony before the present controversy.  Perhaps he was the only student at Yale Law School who didn’t receive the notoriously theoretical training that Yale was best known for at that time, or perhaps he had a few too many beers along the way, but as a person who has been a judge for twelve years on the U.S. Circuit Court for the District of Columbia, he certainly must know that judges do more than just “call balls and strikes,” as Chief Justice John Roberts famously said at his 2005 confirmation hearing.  (Kavanaugh said: “A good judge must be an umpire, a neutral and impartial arbiter who favors no litigant or policy.”)  Investigating, assembling, arguing and deciding legal and factual issues all require creativity and ideas, and, as the German saying goes, the father of those ideas is the wish, the result you want to achieve.  When you have no real desire for one or the other side to win, it is easy to think of judging as just calling balls and strikes (although also baseball umpiring is more complicated than it may seem). But when you are deciding issues where you really do care about the result, it is not so easy to make sure that your wish is not controlling the way your mind is working.  You have to try to sublimate that wish to another wish (for example, a commitment to stare decisis).

Back now to the evidence against Judge Kavanaugh.  We started with her testimony, which by itself is sufficient for a conviction.  The next question is whether there is any contrary evidence, or any other reason to doubt her testimony.  In a criminal case, the proof standard is explained as follows in a California jury instruction:

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

Many arguments have been made against Dr. Blasey-Ford’s allegation, but they all can be judged by this reasonable doubt standard.  Reasonable doubt is not just any possible doubt.  Anyone can come up with possible scenarios.  You have to have a reason to believe the scenario is true.

Having already dispensed with the “no evidence” argument, here are a  few of the others.  Whether or not you even consider these arguments is already an example of “wishful thinking,” and I admit that some of them did not occur to me, notwithstanding my defense-oriented bias, perhaps because my dislike of Kavanaugh’s political and judicial views made me less inclined to want to find them.

  • Judge Kavanaugh has a “sterling record of public service.”  It is true that Judge Kavanaugh is incredibly accomplished. An excellent student at top schools, clerkship, government service, over a decade on the court of appeals.  On paper, he is absolutely a good candidate for the Supreme Court.  Of course, he has not avoided all controversy, whether as a member of the Kenneth Starr Special Counsel investigating President Clinton or as a member of the Bush Administration.  At his initial conformation hearing, there were already allegations that he had lied previously about receiving stolen democratic strategy memos. But leaving those aside, his record is strong.  Does this make it less likely that the allegations are true?  That is a different question.  Kavanaugh certainly wouldn’t be the first person in a prominent position to be brought down by a shocking revelation of past improprieties.  It would be hard to say that this factor alone would raise reasonable doubts about the veracity of Dr. Blasey-Ford’s allegation.
  • No one else has ever accused him.  While perhaps true before Dr. Blasey-Ford’s accusation was public, it is no longer true.  At least two others have now accused Judge Kavanaugh of sexual assault.  I can agree that the number of accusations against a person does have an impact on how we view an accusation.  I don’t have any scientific evidence, but it does feel right that people who do wrong things continue to do them.  But this argument isn’t as helpful as it seems.  Someone has to be the first to make a public accusation.  Then you need to wait to see how many others come forward.  There needs to be more time to investigate.  That process has hardly begun and it is unclear if the FBI or journalists will be looking to interview others who might have had similar experiences. Time will tell, but it is still very early. I would say it is far too early to say that there is reasonable doubt about Dr. Blasey-Ford’s accusation merely because she is the first to go public.
  • She waited too long to tell anyone.  This argument is an interesting one, but I think it may be a bit too early to judge it.  Dr. Blasey-Ford hasn’t said that she told no one about the event.  She said she did tell a few friend and her husband.  Her friend at the time Leland Ingham Keyser had her lawyer submit a statement saying “Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.”  We’ll have to see if anyone else remembers Blasey-Ford talking about the attack or identifying her attacker.  Apparently she did tell her therapist about the attack six years ago, at least that is what has been alleged.  But does the length of time before speaking out make her allegation less reliable? It is quite common, perhaps even more common, for people to keep secret an incident of sexual assault.  As a result, one could even make the argument that Dr. Blasey-Ford’s allegation is more reliable because she waited so long.  The fact that the length of time argument can cut both ways makes it a poor one to rely on in deciding whether there is reasonable doubt.  Certainly there are a number of examples of belated accusations being believed despite the delay.  Bill Cosby was recently sent to prison as a result of previously unreported assaults from 2004. The timing factor alone cannot answer whether the accusations can be believed beyond a reasonable doubt.  You might ask yourself, having initially kept the attack from her parents for fear of being punished for going to the party in the first place, what incentive would Dr. Blasey-Ford have had to later tell the story or identify her attacker?  It may not help her accusation that there are no more contemporaneous reports of the attack, but acting in a normal and reasonable way should not make her later revelation unreasonable.
  • No one else can confirm her story.  Again this is something that is true with many sexual assault allegations.  Based on her story, what type of confirmation would you expect to have?  From whom did you want confirmation?  Her attackers?  Really, this is a variation on the “she didn’t tell anyone soon enough” argument.
  • There is no corroborating evidence.  This one is really not true.  Amazingly, Judge Kavanaugh produced a calendar from 1982.  Actually it is more of a diary.  Kavanaugh recorded events, even parties, often after the fact.  At least one of the parties, on Thursday, July 1, 1982, is memorialized with the note: “Go to Timmy’s for skis w/ Judge, Tom, PJ, Bernie, Squi.”  This note appears to refer to a small beer (ski = “brewski”) party with a few of Kavanaugh’s friends, two of whom (Mark Judge and PJ) were also identified by Blasey-Ford as potential witnesses before Kavanaugh’s diary became public.  Another party on Saturday August 7 says “Go to Becky’s, Matt, Denise, Laurie, Jenny Hail.”  So it is obviously true that Kavanaugh and his friends occasionally got together that summer in smaller parties like the one Blasey-Ford described.  Kavanaugh himself has admitted that he often drank beer with his friends. (“Yes, we drank beer. My friends and I, the boys and girls. Yes, we drank beer. I liked beer. Still like beer. We drank beer.”)  The calendar certainly does corroborate certain aspects of the story, and may even document the party in question.
  • The other witnesses deny that it happened. Again, this one is not true.  Yes, the two accused assaulters, Kavanaugh and Mark Judge have both denied attacking Blasey-Ford, which is certainly not at all unusual.  But Kavanaugh mischaracterized the evidence from the other witnesses during his testimony.  Leland Keyser’s attorney’s statement simply said she did not remember and does not know Kavanaugh.  That she did not remember anything is hardly remarkable.  Blasey-Ford did not say Keyser had witnessed the attack, only that she had been at the party.  (“Oh no, she didn’t know about the event. She was downstairs during the event and I did not share it with her.”) The statement that she does not know Kavanaugh means only that she doesn’t know him now, not that she never attended a party with him when she was a teenager.  Kavanaugh himself admitted as much. (“I — I know of her. And it — it’s possible I, you know, saw — met her in high school at some point at some event. Yes, I know — I know of her and, again, I don’t want to rule out having crossed paths with her in high school.”)  PJ Smyth’s response was similarly non-committal.  (“I am issuing this statement today to make it clear to all involved that I have no knowledge of the party in question; nor do I have any knowledge of the allegations of improper conduct she has leveled against Brett Kavanaugh.”)  The truth is that it would be absolutely remarkable if any of the other attendees, including Kavanaugh and Judge, remembered that party or the attack on Blasey-Ford.  The incident Blasey-Ford described was a very brief encounter.  It was likely not at all memorable to Kavanaugh and Judge, who were allegedly inebriated at the time.  None of the other attendees at the party were even made aware of the attack. There is no reason to believe any of the other attendees would have any recollection at all of a small high school party thirty-six years ago.  Given the circumstances, I would view with great suspicion any witness who would do anything other than say they don’t recall.
  • She doesn’t remember when and where it happened.  True, she cannot remember where exactly the attack occurred, nor on what date it occurred.  That she cannot remember the date seems unremarkable.  I can remember a few infamous parties from high school, but could not begin to remember the date.  On the other hand, I do remember the location of some of those parties, the ones where I knew the person who lived in the home.  (For example, the infamous party at the Familian house on Stone Canyon in Bel Air, or a party at Ben Peck’s house in Pasadena or San Marino with an enormous dance hall.)  I cannot remember the location of the parties where I did not know the person whose home it was.  (For example, the afterparty for the Marlborough prom, the first time I became drunk and the first time I kissed a girl.)  That she cannot remember the location might mean only that she did not know the person whose house it was.  This is consistent with the contention of Judge Kavanaugh that Blasey-Ford was not part of his immediate social circle, and would explain why they never ran into each other again afterwards.
  • People make up allegations, especially against famous people.  This seems to be true.  The issue is whether the mere fact that an allegation is made against a famous person is a reason to harbor reasonable doubt.  In that sense, the argument is similar to the first argument about Kavanaugh’s “sterling record.”  There are also numerous instances of allegations against famous people that are found to be true.  One key fact here is when Blasey-Ford first complained.  If it is true, as the notes from her therapist and the statement of her husband suggest, that she first made the allegations six years ago, when Kavanaugh was just a Circuit Court judge, that certainly bolsters her credibility.  Further, if it is true that she first reached out to the Senate and the Washington Post when Kavanaugh was mentioned as a possible nominee, but before the actual nomination, that also would be inconsistent with someone who simply made up a story about a famous person.  Prior to the actual nomination, Kavanaugh was hardly a household name.
  • The Democrats are out to get him.  This is certainly true, but not necessarily relevant to assessing the credibility of Blasey-Ford’s allegation, which seems to have been made independent of any organized opposition to Donald Trump and the Republican party.  Senator Lindsay Graham’s finger-pointing fulminations against Democrats at the hearing were an obvious case of projecting from his own self-loathing. Does he really feel so virtuous for voting in favor of Justice Sotomayor in 2009 when the Republicans held just 40 seats in the Senate and had no way to stop her?  Or Justice Kagan in 2010 when they had just 41?  Were either of them accused of sexual assault or any other improprieties?  Yes, Democrats do not want Kavanaugh on the Supreme Court.  But Republicans didn’t want Merrick Garland on the Supreme Court.  If anything broke the famed collegiality of the Senate, it was the unprecedented decision of the entire Republican majority to stand by and support Mitch McConnell’s decision to block Garland’s nomination by refusing to even entertain it.  If Senator Graham wants to blame someone for a lack of bipartisanship, he should look in the mirror.  But in my view partisanship is merely honesty.  What is dishonest is pretending that you are non-partisan, for denying that the wish is the father of the idea.  As for this case, the facts are that  Blasey-Ford repeatedly contacted and then spoke with her congresswoman Anna Eshoo before sending a letter to Senator Dianne Feinstein on July 30, 2018.  Absent some evidence that the allegations were not her own, or that Eshoo or her staff encouraged Blasey-Ford to embellish them, this argument seems to be more of a paranoid fantasy than an argument about reasonable doubt.  There would have to be some more evidence of collusion before this argument could be considered.  Blasey-Ford’s testimony gave no indication that it was manufactured by any third party. 
  • Someone leaked her allegation just to stop his confirmation.  This may be true, but is not an argument against the veracity of her claim, especially since there is no indication that Blasey-Ford, who had requested confidentiality, was the one who leaked them.  If the allegations had been leaked only after the Senate approved Kavanaugh, would that make a difference?  I don’t think so.  I find it interesting that those who are so ready to believe Kavanaugh’s denials have such a hard time believing Senator Feinstein’s statement that she and her staff did not leak the information.  (The Intercept reporter who broke the story, Ryan Glim, confirmed that Feinstein and her staff did not leak to him.)  It makes perfect sense to me that Senator Feinstein would keep the woman’s allegations a secret after being told that Blasey-Ford did not want to come forward publicly.  If she had done otherwise, she could have been correctly criticized for breaking confidentiality.  She could not known in advance that Blasey-Ford would agree to come forward after the story broke, or that she would be such an excellent witness in her testimony.  Whoever is responsible, it seems likely that the leak was motivated by a desire to keep Kavanaugh off the court, but there again the timing makes sense because the leaker would have wanted to wait to see if perhaps something else first derailed the nomination.  In any case, don’t kill the messenger.  It’s the message we are assessing, not who first told us about it.
  • Senator Feinstein recommended her lawyer.  Apparently one of the lawyers, Debra Katz, was recommended by Feinstein’s office.  She is clearly an opponent of President Trump and the Republican party.  I suppose some people might find the allegations less credible because they don’t like Blasey-Ford’s attorney, but that would only reflect their own bias, not an objective evaluation of the evidence.
  • Dr. Blasey-Ford behaved badly in high school and college.  Again this may be true, but it is not clear to me how this is relevant to her allegations.  In fact, it seems to me more consistent with her admission that she attended a party with boys and drank beer at age 15 without her parents knowing.  She also testified that the incident left her with emotional problems, which is also consistent with later poor choices.  But besides the slut-shaming aspects of this argument, I don’t see how it makes her allegations any less convincing.  If demeanor at the Senate hearing is any indication, she has matured, arguably more than Kavanaugh has.
  • She flies on airplanes but says she is afraid of flying.  Faced with Kavanaugh’s numerous lies and half-truths, his supporters have grasped at straws to try to show that Blasey-Ford is untruthful.  She said she is afraid of  flying, yet she has flown on airplanes.  Ok.  That doesn’t seem to remarkable, nor does it seem to reflect poorly on her credibility.

I would characterize all of the arguments above as wishful thinking, an attempt to raise reasonable doubt from mere possible doubt.  Most of the points are equivocal at best.  If a witness said he saw a red mustang, would you find him less credible if I told you that most mustangs are black, not red?  If a fact or argument could be at the same time either consistent or inconsistent with the allegation, it really doesn’t have any bearing on credibility.

I might feel differently about the evidence produced so far if I were looking at it as a partisan for Judge Kavanaugh.  My mind would be actively searching for reasons to doubt Blasey-Ford’s account.  Otherwise unremarkable facts or potential discrepancies might loom large.  That is natural, I think.  It is how we all judge and make decisions.  But it doesn’t make those decisions correct.  I am having trouble finding any of the purported reasons to doubt her testimony to be at all relevant or persuasive.

Part of the discomfort with Blasey-Ford’s allegation is the fear that anyone could be falsely accused after a long period and be unable to disprove the allegations.  This is certainly true.  For this reason, we have statutes of limitations, which are the result of policy decisions that it is better to encourage people to come forward with claims in a timely fashion, even if it means that some truthful claims that are brought too late might go unheard.  Sometimes there is good reason not to have a limitations period or to extend it.  I don’t think I would have a problem if the law were to say that Blasey-Ford’s allegations are too late to be actionable, either in a criminal or civil case.  For me, it is not so much the truth of the allegations, but Kavanaugh’s response that is so unnerving.

I’ve seen Senator Jeff Flake say that Kavanaugh’s angry, rude and dissembling testimony is understandable, and that if he were unjustly accused, he might act the same way.  The problem with that argument is that the bad behavior also fits if the accusations are true.  As others have pointed out, there are numerous instances of famous people first issuing angry, convincing denials of allegations that later turned out to be true.  Indeed, Kavanaugh spent a good deal of his early career prosecuting President Clinton for just that type of offense.

Really there are only a few scenarios that are possible here: (1) It happened and Kavanaugh doesn’t remember; (2) it happened and Kavanaugh does remember; (3) it didn’t happen and Kavanaugh doesn’t remember; and (4) it didn’t happen and Kavanaugh does remember.

It happened and Kavanaugh doesn’t remember.  The first scenario seems to me the most likely scenario given the evidence so far.  She remembers because it was traumatic for her.  He doesn’t because it didn’t mean anything to him.  I can give a parallel example from my own experience.  When I was seventeen years old I qualified for the National Forensic League tournament in San Antonio, Texas.  Because my partner and I lost in the district semifinals in oxford two-man debate (another outrage story for another day) I had to try student congress, which I was able to win at the district level to qualify for nationals.  The  national tournament consisted of three days of student congress, held in a small classroom with about thirty other students.  To win an award, you had to do well all three days, which meant speaking as much as possible and impressing the judges.  One of the other contestants in my room was Neal Gorsuch from Georgetown Prep.  He was just sixteen but already an insufferable blow-hard, eager to impress with meaningless interjections of “points of personal privilege” and bragging references to his beltway connections.  I and the other ex-debaters in the event, some of whom I had known from tournaments and the summer Georgetown Debate Institute, saw him as ridiculous.  But the less worldly competitors, from smaller rural districts, thought he was just the cat’s meow.  On the second day of the competition, Gorsuch was elected the speaker, a position that did not allow him to make speeches, but gave him the gavel and the ability to choose who would speak.  I raised my hand the entire day, every time, and he never called on me to speak.  It was clearly on purpose.  I vaguely remember complaining near the end of the day, but the judges were inexperienced, and did not realize that what Gorsuch was doing was not permitted.  I ended the day without getting a chance to speak, meaning that I received zero points and was out of competition for an award, which was obviously what Gorsuch intended.  I returned to our hotel on the river walk and sulked.  I remember sitting at a table with my friend Brian Lee by the pool.  Up walked another boy who asked me if I was going to Princeton in the fall because he was too. I said yes and asked how he knew? “My friend Neal told me,” he said, pointing to Neal swimming in the pool.  My instant response: “Neal is the biggest asshole I have ever met.  If you are his friend, you must be one too and I don’t want to talk to you.”  The boy walked away and rejoined Neal in the pool, letting him know what just happened.  Can you guess how the story ends?  Well first, Neal won the tournament, rubbing salt into my wounds.  I remember only having the satisfaction of giving a scathing attack on Ronald Reagan’s “Star Wars” Strategic Defense Initiative on the third day where I pointed out that the other students didn’t even know where the word laser came from.  Two months later I got a call from one of my new roommates, Robert Glucksman. We talked for a while and I learned he was from Bethesda, and also had been at the nationals in San Antonio (in Lincoln-Douglas debate).  After I hung up I had a bad feeling in my stomach.  Could he have been the one?  Sure enough, I arrived at Princeton at the end of the summer (the day of the 1984 US Open finals — McEnroe over Lendl, which my dad  stayed in New York to see while my mom dropped me off) and there he was, my new bunkmate Rob, the one guy in the whole world I had told off without any good reason on the day that Neal Gorsuch cheated me out of the national tournament.  It turned out that Rob and I in fact did not get along well at all (having nothing to do with what happened at Nationals). But the story is one I have often retold. Thirty-four years later, I’d be happy to testify about it.  But I bet Neal Gorsuch, now sitting on the Supreme Court thanks to an eerily similar act of dishonesty by Senator Mitch McConnell, wouldn’t remember at all how he cheated against me to win.  As a coda, I can very well imagine how Blasey-Ford felt when she heard the name of her tormentor being discussed as a possible Supreme court pick.  When I heard on the radio that Gorsuch was the nominee, I was driving on the freeway on my way down to USC to teach my Art Law class.  I screamed at the top of my lungs.  At the very least, I know exactly what it feels like to learn that the Georgetown Prep teenager who wronged you in high school has been nominated to sit on the highest court in the land.  Blasey-Ford and I have that much in common.

I have to say that I also feel I have a lot in common with Judge Kavanaugh, or at least am very familiar with his type.  I also went to a small all-boys college prep high school (Harvard School) where football was a big deal.  (Luckily my debate partner was also an offensive lineman, so I was a bit protected.) Kavanaugh’s parents were a lawyer and judge.  Mine were a judge and a college professor.  Like Kavanaugh, I went to a top Ivy League (Princeton) school and then on to law school.  I’ve gone to school with more than my share of people like Kavanaugh.  I remember an incident at Princeton, the morning after the first Reagan-Mondale debates, which was objectively a disaster for Reagan.  I sat down with a couple of other students of the more, shall we say “athletic” persuasion, and began disparaging Reagan.  After a few exchanges one of them said “If you say another word, I am going to beat you up.”  That type of physical intimidation is a pretty typical experience for any boy who doesn’t have the build of a football player.  You learn to sit somewhere else.  Not to say that we intellectual types can’t also be cruel.  I remember joking that the hockey team wasn’t just on average the dumbest people at Princeton, they were in fact the twelve dumbest.  That’s not nice, and not  completely true. (Although I do believe, as Malcolm Gladwell has written, that Ivy league schools tend to make sure to populate each class with a good contingent of less academic and more athletic students, so that they don’t end up with a class where the bottom 20% are suicidal former valedictorians.  It’s nice for the psychology of the class to have people who can excel at other things besides academics, and not feel bad if their grades aren’t as good.)  But of course I never said that to anyone’s face.

Ok, back to Kavanaugh.  I hope people won’t take this the wrong way, but I consider myself to have come from a very privileged background, and at least to me, Kavanaugh doesn’t appear to be overly “privileged.”  It wouldn’t surprise me to learn that he was economically in the lower half of the students at Georgetown Prep and Yale.  To me, with his defensive “but I went to Yale” outbursts, he seems more like a sort of Gatsby type, a striver who is trying to fit in, a football player a bit too smart for his teammates, a prep school frat boy, not quite of the same class as his colleagues.  He doesn’t have the same cock-sure demeanor that comes with the type of over-privileged prep school kids who know that no matter how badly they fail, they will always succeed. This might explain his need to pretend he remembers everything he did in high school, even when he was drunk, and to lie about other smaller things like his yearbook page at the hearing.  He’s trying very hard to fit into a different crowd now.

It happened and Kavanaugh does remember. The second scenario is a worst case for Kavanaugh, but it seems highly unlikely to me that Kavanaugh would remember this episode.  I met a friend recently and was surprised when at first he said he didn’t remember the time he almost swallowed a beer cap playing the eponymous drinking game, and had to be taken to the hospital.  I had left the party early and did not witness it myself, but all of my friends were involved, and I am reminded of it every time I see him.  When I mentioned it recently, he at first had no recollection at all.  Obviously it was not something he had wanted to remember and so he had not revisited the episode as often as I did.  By the time I brought it up to him, he had pretty much forgotten it.  If someone can forget going to the hospital with a beer cap stuck in his throat, it seems unlikely that an aborted inebriated sexual assault would be remembered at all after thirty-six years.  There has obviously been a lot of water under the bridge for Kavanaugh since that time, and without any reason to remember the incident, the memory would have disappeared.

It didn’t happen and Kavanaugh doesn’t remember.  The third scenario is the one I might be more inclined to believe if Kavanaugh had behaved differently.  Unlike Senator Flake, I don’t think that Kavanaugh’s belligerent demeanor during the hearing was at all consistent with what I would expect of an innocent person wrongly accused who recognizes that he cannot possibly remember anything that might disprove the allegation.  Such a person might even feel sorry for the accuser, as Judge Kavanaugh’s daughter, believing he was innocent, obviously thought when she asked to pray for Blasey-Ford.  An honest person would say that he understandably remembers no such event, nor much of anything about the high school hangout parties he attended, and would be a bit bewildered by the accusation.  He wouldn’t be defensive, which is how Kavanaugh behaved most of the time, especially in his exchange with Senator Klobuchar. (“You’re asking about blackout. I don’t know, have you?”)

It didn’t happen and Kavanaugh does remember.  The fourth scenario is implausible.  Does anyone really believe that Kavanaugh has a photographic memory and can remember every single interaction in his youth so he can be 100% certain that the attack did not happen (because he remembers it not happening)?  And yet this was Kavanaugh’s defense at the hearing.  He is 100% certain he did not attack Blasey-Ford at a party thirty-six years ago. Why?  Because he thinks he would remember it?  A brief, drunken, fumbling, aborted attempt to wrestle a girl onto a bed and remove her clothes?  After thirty-six years?

I was obviously more of a goody-two-shoes that Kavanaugh (I didn’t have my first sip of alcohol until the middle of my senior year, after I had been admitted early to Princeton), and I have been trying to remember all of the times that I had too much to drink.  (By the way, it was remarkable to me that Kavanaugh simply could not answer a simple question about what he considered to be too many beers.  “I don’t know. You know, we — whatever the chart says, a blood-alcohol chart.” Really? What non-alcoholic adult cannot answer that question? Moderate drinkers learn to know their limits when it comes to alcohol.)  Anyway, I can remember five times I drank too much and threw up: Marlborough prom 1984; party in my dorm room sophomore year 1985-6; party at Terrace Club with the subway singer 1986; end of the bar exam July 1991; and KMZ 20th anniversary party in Chicago 1994.  I have vivid memories of certain parts of all of these episodes.  For example, at the Marlborough prom, where I very willingly let my date get me drunk, I remember asking a junior to drive my Buick station wagon because I was drunk and I tried to test him on calculus to make sure he was sober.  I even remember asking him to pull the car over when it was time for me to throw up.  At the Terrace Club party, I ended up in the infirmary because, brilliantly, I got hungry after consuming a bottle of red wine and decided to chase it down with a bowl of fruit loops and milk. The folks at the infirmary were convinced I was an alcoholic and made me go through all sorts of questionnaires in the morning about my drinking habits.  The Chicago night was great; dressed in a tuxedo, we went from a formal party at the Natural History Museum to a rave-type club called the CroBar.  That was fun, but the room was spinning the next morning and I had to really work hard to make my flight back to LA.  Maybe I didn’t throw up that time.  In any case, I still have a pretty good memory of these things, perhaps because I didn’t actually drink too much very often, and haven’t done that in over twenty years.

One of my concerns with Brett Kavanaugh is that I get the feeling from his testimony that he is still a heavy drinker.  I can imagine that even during his several background checks no one bothered to volunteer that he occasionally drinks too much.  After all, would you want to be the one to step up and try to torpedo a friend or colleague who sometimes has one too many?  It would not surprise me at all if now, after these allegations have come out, we find more people stepping forward to speak about Kavanaugh’s drinking, and not just while he was in school.  Drinking problems are notorious among lawyers, and Kavanaugh has been known to make light of these issues, even while speaking to law students.  To me, Kavanaugh appears likely to be a high-functioning alcoholic (see “get angry when confronted about drinking.”)  Current drinking allegations might even make President Trump more likely to withdraw the nomination, as the tee-totaling president is very sensitive on the subject.  (His older brother died of alcoholism at age 43.)

But all that may be just my own wishful thinking.  You see, the wish is really the father of the idea.  And that is important for one further reason.  Trump and his Republican allies bash the FBI all the time for what they feel is an unfair, biased approach taken in the Russia investigation.  But as with anything else, there is really only one type of investigating and that is the wishful type.  The evidence doesn’t just fall in your lap; you have to find it.  And you won’t find it unless you actively go out and look for it.  You look for things you want to find.  You have to want to find it, or nothing happens.  So of course the investigators getting a FISA warrant on Carter Page thought that they would find evidence of wrongdoing.  That’s why they sought the warrant.  And it sure looks like they had probable cause to do so.  The same goes for the new investigation of Judge Kavanaugh.  The FBI won’t find anything unless they really want to find something.  Which witnesses to interview, which leads to follow, it all comes down to the desire of the prosecutor.  Does he want to do a perfunctory investigation, just enough to say he did something?  Or does he want to really find something incriminating or exculpatory.  That will determine how far he goes.  If I were investigating this case, the first stop after Blasey-Ford would be Kavanaugh himself.  But have you heard any reports of a real Kavanaugh interview?  The Senate questioning of him was superficial at best.  Take the July 1 party at his friend Timmy’s house.  What does he remember about that party?  Who was there?  What did they do?  How much did they drink?  Did anything memorable happen?  Chances are he remembers very little, but maybe there are still some details worth pursing.  And what about all of those whopping lies about the meaning of his yearbook page (Renate Alumnius, Boof, Devil’s Triangle, etc)?  Will he repeat those to the FBI?  In any case, if you don’t hear that the FBI talked to Kavanaugh, you’ll know that this wasn’t an investigation where they were trying to find anything.  Because the wish is the father of the idea.

 

 

Martyrology

As the family genealogist, I spend more time than most thinking about my ancestors and relatives, but it wasn’t until 1999 that I submitted 41 Pages of Testimony to Yad Vashem for the ones I then knew had perished.  I’ve discovered many more since them. In my family, the Holocaust was never a story of survival.  Sure, we learned of the escape of my grandparents – the Schoenbergs fleeing suddenly in the middle of the night from Berlin in 1933; the Zeisl narrowly escaping from Vienna on November 10, 1938, the day after Kristallnacht.  But when I thought of the Holocaust, it was not about them, the survivors, it was about all the ones who didn’t make it out alive.

My mother’s parents made it to New York and in 1940 my mother was born there – an anchor baby.  Her father’s parents Siegmund and Kamilla Zeisl had remained in Vienna, perhaps because Kamilla was not well.  She died of cancer a month before my mother was born.  Kamilla’s sister Malvine, a widow, took care of my great-grandfather Siegmund, a retired coffeehouse owner whose café was taken away by the Nazis, and the two eventually married so that they could try to emigrate together.  I’ve read the letters they sent from Vienna during that time and they are full of love and encouragement for their children who had managed to escape, and hope that they would soon be able to join them.  Innumerable obstacles were put in their way, both by the Nazis and by the American immigration authorities.  In the final letter, Siegmund says he could get a ticket to sail from Lisbon on December 5, 1941, but that Malvine could not leave until January.  He was hoping to sort it out.  He must have delayed his escape to remain with Malvine.  The December 5 boat from Lisbon turned out to be the very last before war broke out on December 7.  The two of them were deported to Theresienstadt on July 14, 1942, survived two terrible months there, and were then put on a train on September 21, 1942 to Treblinka, where they were murdered on arrival.

We in America like to hear stories of survival and escape, and we lionize resistance fighters, but for me, those stories don’t represent the Holocaust.  My great-grandfather Siegmund didn’t have a daring escape, he didn’t survive the camps, he stayed behind to take care of his loved ones, and he was murdered.  For that, I remember him today.

Third Grade Tactics

When I was a kid, one way to respond to an insult was to say “I’m rubber and you’re glue; whatever you say bounces off me and sticks to you.”  Immediately, the sparring would change character and the resulting dialogue would all be about the new debating rule.  The conversation would go something like this:

“You’re a dumb ass.”

“You’re fat.”

“I’m rubber and you’re glue; whatever you say bounces off me and sticks to you.”

“Ok, you’re the smartest person in the world.”

“Ha, you said I was smart!”

“No, that was supposed to bounce off you and stick to me. So I am smart.”

“No you’re not, you’re dumb.”

“No, now I’m rubber and you’re glue; whatever you say bounces off me and sticks to you.”

And so on. . .

Sometimes when I am reading arguments made by Trump supporters I feel we’re in third grade again.  You simply cannot ever get through to them because they seem only to want to play the “I’m rubber and you’re glue” game, or the variation made famous by Pee-Wee Hermann, “I know you are but what am I?“.   Whatever critique anyone might level at them gets turned around and thrown back, no matter how inapt.  This sort of argument-by-inversion is an effective tactic of deflection, as in Trump’s famous retort to Hillary Clinton in the third Presidential debate: “No puppet, no puppet, you’re the puppet. No, you’re the puppet.”  Sometimes it is even used preemptively, where the argument that should be used against them is instead leveled first at their opponents under the theory, I suppose, that the best defense is a good offense.


I had this feeling while reading the recent article “In the Russia Probe, It’s ‘Qui S’excuse S’accuse,” by Andrew McCarthy in the National Review.  The title of the article, by the way, which the author uses without any apparent sense of irony, means “He who excuses himself accuses himself.”  Given the title, you might be forgiven for thinking the focus would be on the Excuser-in-Chief, Mr. “No Collusion” Himself, Donald Trump.  But no, you’d be wrong.  It’s all about the FISA warrants against Trump’s campaign foreign policy advisor Carter Page.

The gravamen of McCarthy’s article, what the author calls his “essential point,” concerns “The use of counterintelligence authorities to conduct a criminal investigation of Donald Trump in the absence of a predicate crime.”  McCarthy’s argument is that the FISA warrant against Page was simply a fishing expedition without any basis for believing a crime had been committed.

That’s a really good argument, and one I am very familiar with, but in a very different context (as I will explain below).  But it is woefully inapt to challenge the FISA warrant against Carter Page.  In fact, simply making this argument for Carter Page is itself really a case of trying to invert the argument as a tactic to take it away from those who might use it against the President.

Dispatching McCarthy’s argument about Page isn’t too difficult.  The FISA application was made in October 2016, after the July 2016 release by Wikileaks of documents stolen by Russian agents from the Democratic National Committee, and the October 7 release of e-mails from Hillary Clinton’ s campaign manager John Podesta.  The US Intelligence Community issued a statement on October 7, 2016, prior to the warrant application, stating that “the USIC is confident that the Russian Government directed the recent compromises of e-mails from U.S. persons and institutions, including from U.S. political organization.”  In July 2018, twelve Russian agents were indicted for the hacking of the DNC e-mails.

So much for McCarthy’s “essential point” that there was no “predicate crime.”  There clearly was.  And the FBI had every reason to investigate Carter Page, a former Trump foreign policy advisor who had previously advised the Kremlin, had traveled to Russia in July 2016 and had reportedly been approached by Russian agents.  The investigation was especially justified after learning via George Papadopoulos that Russian agents had approached the Trump campaign earlier that year.  Let’s not forget that Donald Trump himself had called publicly for Russia to release Clinton e-mails on July 27, 2016.  The facts in the FISA warrant amply provide probable cause to believe that the investigation of Carter Page would lead to the discovery of information relevant to the investigation of the crime that had been committed against the DNC.  And we will find out eventually, I suppose, if the investigation also provided evidence of crimes committed by the Trump campaign, who by all appearances were eager to conspire with the criminals who illegally hacked the DNC.

But let’s go back to McCarthy’s core argument, which I think is correct.  The FBI should not be using pretextual warrants to investigate presidential candidates where there is no indication whatsoever of any criminal activity.  If not Donald Trump, is there maybe some other presidential candidate to whom that happened?  Hint: her initials are HRC.

Last week I filed an opposition brief to the FBI’s summary judgment motion in the case I have brought to remove redactions from the search warrant obtained by the FBI on October 30, 2016 seeking evidence against Hillary Clinton.  One of the only remaining redactions, most of which were removed only after I filed suit, is the name of the FBI Supervisory Special Agent who signed the affidavit in support of the warrant.  The legal issue is whether that agent’s right to privacy is outweighed by the public’s right to know his name, and that issue depends on whether there is any evidence of wrongdoing by the agent.  I believe I have made a good case for finding that the FBI did to Clinton exactly what McCarthy pretends the FBI did to Trump, namely, obtain a search warrant without any suggestion of a predicate crime.  You can read my full argument below.

Today, President Trump ordered the release of redacted portions of the FISA warrant application against Carter Page, as well as other internal documents and messages by FBI officials.  No doubt the documents will simply confirm the appropriateness of the FBI’s investigation of Russian interference in the 2016 election, as was the case when Trump and his allies released earlier materials.  And no doubt, Trump supporters will continue to claim, notwithstanding all of the evidence, that the disclosures hurt the FBI and discredit the investigation.  Because, well, they are rubber and the FBI is glue.

I’ll have to wait for the judge in our case to decide whether the same level of disclosure will be applied to the search warrant against Hillary Clinton.

 

I. INTRODUCTION

This action concerns perhaps the most significant search warrant in the history of the United States, one which did not result in the discovery of any evidence of criminality, but nevertheless changed the outcome of a presidential election.  The events surrounding the search warrant have received massive public attention, including countless articles, books, congressional hearings and even a DOJ Inspector General report.  Yet much still remains unknown.  Plaintiff has pursued the unredacted release of the search warrant and accompanying affidavit for nearly two years, and has been opposed by the FBI at every stage.  This particular action already has resulted in the voluntary, if belated, release by the FBI of most of the information that had previously been withheld improperly.  Only a few items – two agent names and an e-mail address — remain redacted, and those should also be released to the public.[1]

II. BACKGROUND

The FBI has withheld the names of the two agents who were responsible for the warrant application and execution: a Supervisory Special Agent (“SSA”) who signed the warrant application and affidavit, and a Special Agent (“SA”) who was present at the inventory upon execution of the warrant.  Admittedly, the SSA appears to be the more significant of the two.  Many, including plaintiff, have questioned why the SSA believed there was probable cause to search the Weiner laptop for emails between Secretary Clinton and her aide Huma Abedin.  The affidavit itself provides very little in the way of probable cause:

  1. Given the information indicating that there are thousands of Abedin’s emails located on the Subject Laptop — including emails, during and around Abedin’s tenure at the State Department, from Abedin’s @clintonemail.com account as well as a Yahoo! Account appearing to belong to Abedin — and the regular email correspondence between Abedin and Clinton, there is probable cause to believe that the Subject Laptop contains correspondence between Abedin and Clinton during their time at the State Department. Because it has been determined by relevant original classification authorities that many emails were exchanged between Abedin, using her @clintonemail.com and/or Yahoo! Accounts, and Clinton that contain classified information, there is also probable cause to believe that the correspondence between them located on the Subject Laptop contains classified information which was produced by and is owned by the U.S. Government. The Subject Laptop was never authorized for the storage or transmission of classified or national defense information.
  2. A complete forensic analysis and review of the Subject Laptop will also allow the FBI to determine if there is any evidence of computer intrusions into the Subject Laptop, and to determine if classified information was accessed by unauthorized users or transferred to any other unauthorized systems.

(Declaration of David M. Hardy submitted in support of Defendant’s Motion for Summary Judgment (“Hardy Decl.”), Ex. K, pp. 90-91.)

Notably absent from that brief statement of probable cause is any indication whatsoever that the search would result in evidence of any criminal activity by Secretary Clinton.  Rather, the entire probable cause statement seems directed toward a clean-up operation of what the FBI typically refers to as a “spill” of classified information.  This is noteworthy because the entire FBI investigative team had already concluded, and FBI Director James Comey had already announced publicly, that (a) the mere presence of e-mails containing classified information could not support a criminal prosecution, and (b) the FBI was not going to conduct a spill clean-up operation.[2]

If not to clean up a spill (which of course required absolutely no urgency since the laptop was already in custody), why in fact did the FBI seek the search warrant on the eve of a national election?  As set forth in the IG Report, Director Comey was very clear on this issue – he believed that the laptop might contain emails from early in Secretary Clinton’s tenure that had not yet been located, and which might lead to a criminal prosecution.  (Schoenberg Decl., Ex. A, footnote 4)

Comey told us that the potentially great evidentiary significance of the newly discovered emails would have made it particularly misleading to stay silent. But we found that the FBI’s basis for believing, as of October 28, that the contents of the Weiner laptop would be significant to the Clinton email investigation was overestimated. Comey and others stated that they believed the Weiner laptop might contain the “missing three months” of Clinton’s e-mails from the beginning of her tenure when she used a BlackBerry domain, and that these “golden emails” would be particularly probative of intent, because they were close in time to when she set up her server.[3]   However, at the time of the October 28 letter, the FBI had limited information about the Blackberry data that was on the laptop. The case agent assigned to the Weiner investigation stated only that he saw at least one BlackBerry PIN message between Clinton and Abedin. As of October 28, no one with any knowledge of the Midyear investigation had viewed a single email message, and the Midyear team was uncertain they would even be able to establish sufficient probable cause to obtain a search warrant. (Schoenberg Decl., Ex. A, footnote 4). [4]

Nowhere in the search warrant application executed by the SSA is the true design of the warrant – the missing three months of e-mails from early in Clinton’s tenure – disclosed[5],  and for good reason, because there was no probable cause to support the belief that those e-mails would be on the laptop.  The only fair conclusion is that the search warrant application itself was purposely misleading and pretextual.  The SSA sought the warrant under false pretenses and failed to disclose the true purpose of the investigation.

What do we already know about the SSA and his role?  According to the IG Report, the SSA assigned to the so-called Midyear team investigating Secretary Clinton’s e-mails worked immediately under Agent Lead Peter Sztrok. (Schoenberg Decl., Ex. A, IG Report, FBI Chain of Command for the Midyear Investigation, page 45.)  The SSA was part of the “leadership of the team.”  (Ex. A, IG Report, p. 315, n. 176.) The IG Report says that several witnesses described the SSA as “experienced and aggressive.” (Ex. A, IG Report, p. 42.) [6]

On September 29, 2016, the SSA was the first from the Midyear team to follow-up and speak with agents in the New York Office supervising the Anthony Weiner investigation regarding the discovery of e-mails between Clinton and her aide Huma Abedin on Weiner’s laptop.  (Ex. A, IG Report, p. 285 et seq.)  He told the IG, “Well, from my standpoint, I said we were going to, we were going to address whether we had enough for a warrant.” (Ex. A, IG Report, p. 286.)  He further stated, “I remember walking away the first time thinking that … we probably had enough [probable cause to get a search warrant to review the emails]. But I understood why that discussion wanted to be made, is that, you know, well let’s see what happens. . . . [T]hat lag in time was a result of allowing [the Wiener] investigation to proceed. And then they contacted us when they felt that they had a lot more information that needed to be addressed by, by or team. And then we proceeded with moving forward.”  (Ex. A, IG Report, p. 300.)

After Comey’s October 27, 2016 decision to reopen the investigation and seek a search warrant, Strzok informed the SSA and case agents to seek their input. (Ex. A, IG Report, p. 350 “What do you think about that? Are you, are you good? Are you, objections, are we horribly off-base? Are we not thinking of something?”). The SSA and the two case agents “ultimately agreed with the decisions to seek the search warrant and send the letter,” although one of the agents sent a text message saying “Due diligence—my best guess—probably uniques, maybe classified uniques, with none being any different tha[n] what we’ve already seen.”  (Ex. A, IG Report, p. 351.)  The agent later clarified to the IG that he “did not expect to find emails substantively different than what the Midyear team had previously reviewed.” (Ex. A, IG Report, p. 352.)

The SSA was involved in “a variety of robust discussions” with lead DOJ personnel about the reasons for the laptop search, which centered on the FBI’s interest in the “gap period (1st 3 months).” (Ex. A, IG Report, p. 352.)  The DOJ prosecutors questioned the need for the search and disagreed with Comey’s decision to notify Congress.  They repeatedly said they did not believe that the FBI was likely to find evidence to support a prosecution. (Ex. A, IG Report, p. 352-355.)[7]

Notwithstanding the SSA’s awareness from the very outset of the need for probable cause to search the laptop, his knowledge of the prior history of the case, the absence of any necessity for, or direction to seek, a clean-up of spilled classified documents, and the knowledge that the entire focus of the new search authorized by Director Comey was the three months of “missing e-mails,” the ever-“aggressive” SSA purposefully executed a search warrant affidavit directed toward Secretary Clinton that was clearly intended to be misleading and pretextual.  That the search warrant was sought on October 30, 2016, and made public by the FBI in contravention of long-standing DOJ policy not to interfere with an upcoming election, only makes the SSA’s conduct that much more egregious.[8]

The foregoing factual summary disposes of the FBI’s legal argument against disclosure.  First, the Midyear SSA was not a low-level FBI employee, but rather an aggressive leader of the ill-fated Clinton e-mail investigation.  He was involved in much of the high-level conversations and decision-making.  His role was not merely to investigate and generate internal documents, but to discuss strategy and file in court an affidavit under oath setting forth probable cause for the most ill-advised search in FBI history.  That the IG Report did not place specific blame on the SSA (Hardy Decl., ¶ 42) is hardly dispositive.  The Report also did not absolve him of wrongdoing.  Most of the rest of the leadership team, from Director Comey on down to Andrew McCabe, Lisa Page, Peter Strzok, Jim Baker, David Laufman, etc. have been fired, demoted or left the FBI.  (Peter Strzok was fired on August 13, 2018.)  The final chapter on this tragic saga has obviously not yet been written. The President and his right-wing allies continue to raise all sorts of spurious conspiracy theories with respect to Secretary Clinton’s e-mails.[9]  If the Democrats regain control of the House of Representatives in November, further hearings can certainly be expected, to achieve full accountability for the wrongful decisions and actions of the FBI that interfered with the 2016 election.  If nothing more, full public disclosure and transparency is absolutely necessary to rebut the deliberately false stories that are continuing to be generated by the President and his allies in the right-wing media.

III. ARGUMENT

A.  The Public Interest in Disclosure Outweighs the Agents’ Privacy Interests Here.

The FBI’s heavy reliance on Lahr v. National Transportation Safety Board, 569 F.3d 964 (9th Cir. 2009) is misplaced.  That case concerned low-level investigative agents and there was no suggestion that the agents had behaved improperly.  Here, the SSA is obviously not “lower level,” but admittedly part of the “leadership of the team,” and there is ample evidence that the “aggressive” SSA actively participated in, and encouraged, an unnecessary, ill-timed search that was obtained without the necessary probable cause directed toward the evidence being sought. There are serious “doubts about the integrity of his efforts,” which greatly reduces the agent’s privacy interests.  Castaneda v. United States, 757 F.2d 1010, 1012 (9th Cir. 1985).  By contrast, the public interest in this matter is very high indeed.  If the public has a right to know about the actions of Comey, McCabe, Strzok and Page – all of whom have testified before Congress on this matter – it has the right to know about the aggressive SSA, who, apparently, almost alone among the leadership team involved in this fiasco, still has his job.  It cannot be an argument against disclosure that the agent may face public scrutiny for his actions, so long as it is clear, as it is in this case, that he very much deserves that scrutiny.  Disclosure of the name of the SSA is warranted[10].

Whether to disclose the name of the Special Agent, in whose presence the inventory was made, is naturally a more difficult matter, as it is not possible for Plaintiff to identify him or his actions more specifically.  Really the enormous public interest should be determinative.  If that particular agent did nothing more than accept the inventory, then he also has little or nothing to fear from the passing disclosure of his name in the context of a matter that has already led to the demise of the FBI Director and numerous associates.  If his role in procuring the improper search warrant was more pronounced, then the public should be made aware of that fact. The document was, after all, filed in court, and so the expectation of privacy is considerably diminished.

B.   The Sealing Order Does Not Justify The FBI’s Refusal To Release The Information at Issue.

The FBI has consistently acted in bad faith, resisting disclosure throughout the course of Plaintiff’s efforts to release the search warrant.  In December 2016, the FBI objected to any disclosure and then sought and obtained from the district court in New York redaction of large portions of the search warrant affidavit that it has only belatedly agreed to release in response to this lawsuit. (Compare Complaint, Ex. 4 with Hardy Decl., Ex. L.) Now it wants to use the New York court sealing order that it alone requested to thwart release of the last remaining items.

The FBI urges this court to ignore and refuse to follow an opinion from the D.C. Circuit, Morgan v. Dep’t of Justice, 923 F.3d 195, 198 (D.C. Cir. 1991)  (“the mere existence of a court seal is, without more, insufficient to justify nondisclosure under the FOIA.”) (cited on the DOJ’s own website at https://www.justice.gov/oip/blog/foia-update-significant-new-decisions-22), distinguishing the obviously distinguishable Supreme Court opinion in GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 386 (1980).  This isn’t difficult.  GTE Sylvania concerned an injunction obtained by private parties (manufacturers) barring disclosure by the government of certain confidential reports.  The Supreme Court held that it was not unreasonable for the government to comply with the injunction when faced with a FOIA request by a consumer group.  In this case, and in Morgan, by contrast, there is no third party who has sought an injunction.  Indeed, there is no injunction at all, only a sealing order.  It was the FBI itself which sought the sealing order (and subsequently sought to modify it), and there is zero chance that the New York district court intended to bar the FBI from releasing the search warrant in response to a FOIA request.  (See Castel Order, Exhibit 2 to Complaint, p. 9 (“the Court accepts the government’s proposed redactions of information regarding the criminal investigation into Subject 1 and information identifying the law enforcement personnel involved in the investigation of Secretary Clinton.”).  It should be noted that the FBI cannot point to any specific wording in the New York court sealing orders that bars complete, unredacted disclosure of the document by the FBI in response to a FOIA request, and of course Plaintiff’s rights under FOIA were never at issue in those proceedings.[11]   The FBI’s argument should be soundly rejected.  Indeed, Plaintiff believes it would be appropriate for the Court, in the interest of the public, to order the FBI to cease and desist in this and all other matters from making the spurious and outrageously misleading legal claim in response to FOIA requests that “sealed court records are not eligible for release under the Freedom of Information Act.” (See Hardy Decl., ¶ 21, ¶ 25, Exhibit H, p. 48.)

This Court has the task of weighing the public’s right of access under FOIA with the purported privacy interests of the SSA, SA and Huma Abedin.  Cameranesi v. Dep’t of Def., 856 F.3d 626, 637 (9th Cir. 2017).  Here, the privacy interests for names and an already public e-mail address are certainly trivial.  We are not talking about personnel files, records of disciplinary actions, unknown criminal investigations and the like.  In the case of Abedin, a public figure, she cannot possibly expect to have any additional “embarrassment, harassment, or . . . mistreatment” above and beyond the maelstrom that has already landed upon her as a result of her completely innocent association with Hillary Clinton and Anthony Weiner.  The implications for her personal privacy in the disclosure of her already public e-mail address are certainly trivial and de minimus.  The public interest in having a historically important search warrant application unredacted outweighs any conceivable privacy interest.  Similarly, for the two agents, and especially the SSA, their interest in avoiding association with the travesty that transpired, at their own hands, in October 2016, cannot possibly outweigh the public interest in exposing all of the details associated with this fiasco of a search.  If the DOJ directive not to undertake actions to interfere with an election mean anything at all, it means not seeking a search warrant against a candidate for President under false pretenses within days of a national election, without any probable cause to believe that you will find what you are really seeking, and coming up empty-handed because the longed-for evidence never existed in the first place. An individual who does such a thing cannot possibly expect that he can remain anonymous and avoid public scrutiny.

C.   The FBI Improperly Withheld Ms Abedin’s Email Address.

The final issue to be decided is whether the FBI should be permitted to keep the redaction of Huma Abedin’s Yahoo! e-mail address (presumably humamabedin@yahoo.com), about which articles were written by right-wing fringe outlets already in September and October 2016 thanks to disclosure by the Department of State.[12]  Given how much the FBI has already willingly disclosed about Abedin, a public figure thanks to both her boss (Secretary Clinton) and infamous husband (Anthony Weiner), it seems a bit laughable to be terribly concerned about disclosing her already-revealed email address.  Email addresses are, after all, not intended to be kept secret, since they are used to communicate with third parties, and in this case the address was also used for work-related e-mails while Abedin was at the State Department.[13]

IV. CONCLUSION

For all of the foregoing reasons, Plaintiff respectfully requests that the Court DENY Defendant’s Motion for Summary Judgment, and GRANT summary judgment in favor of Plaintiff.

[1] .  For the reasons set forth herein, the Court should not only deny Defendant’s motion, but the Court should sua sponte grant an order to show cause why summary judgment should not be granted in Plaintiff’s favor.  It is well established that a court may grant summary judgment sua sponte in favor of a non-moving party so long as the party that had moved for summary judgment had reasonable notice that the Court might do so and so long as the party against whom summary judgment was rendered had “a full and fair opportunity to ventilate the issues involved in the motion.” Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982); Portsmouth Square, Inc. v. Shareholders Protective Comm., 770 F.2d 866 (9th Cir. 1985).

[2] Declaration of E. Randol Schoenberg (“Schoenberg Decl.”), Ex.  A, Report issued on June 14, 2018 by the Office of the Inspector General of the U.S. Department of Justice (“IG Report”). The initial referral to the FBI in 2015 was in fact not criminal in nature, but solely a clean-up operation.  See Ex. A, IG Report, p. 41 (“[Principal Associate Deputy Attorney General Matt] Axelrod stated: ‘That, my recollection is that the way they explained it [the initial referral to the FBI in 2015] was that review of certain emails contained on the personal server that Secretary Clinton had been using showed that some of those emails contained classified information. And so that, and that they, one of the things that was sort of standard practice when there was classified information on non-classified systems was that a review needed to be done to sort of contain the, I think the word they use in the [intelligence] community is a spill…. The spill of classified information out into sort of [a] non-classified arena. And so that they needed to, this was a referral so that the Bureau could help contain the spill and identify if there was classified information on non-classified systems so that that classified information could be contained and either, you know, destroyed or returned to proper information handling mechanisms.’”).

The FBI has never properly explained how or why the investigation was converted to a criminal investigation, since there was never any indication of any criminal behavior.   However, the FBI did decide that it would not seek a clean-up of the spill.  See Ex. A, IG Report, p. 55 (“the Midyear team did not seek to obtain every device or the contents of every email account that it had reason to believe a classified email traversed.”); p. 93 (“Strzok further stated that the FBI’s ‘purpose and mission’ was not to pursue ‘spilled [classified] information to the ends of the earth’ and that the task of cleaning up classified spills by State Department employees was referred back to the State Department. He told us that the FBI’s focus was whether there was a ‘violation of federal law. Prosecutors 1 and 2 similarly told us that the Department was not conducting a spill investigation, and that the State Department was the better entity for that role. ‘At a certain point, you have to decide what’s your criminal investigation, and what is like a spill investigation…. [W]e could spend like a decade tracking emails…wherever they went.’ The SSA told us that the Midyear team engaged in several conversations, and the State Department officials expressed concern about the problem and were receptive to resolving it. Generally the witnesses told us that they could not remember anyone within the team arguing that more should have been done to obtain the senior aides’ devices.”); p. 167 (“[T]he picture that was fairly clear at that point [was] that Hillary Clinton had used a private email…to conduct her State Department business. And in the course of conduct [of] her State Department business, she discussed classified topics on eight occasions TS, dozens of occasions, and there was no indication that we had found that she knew that was improper, unlawful, that someone had said don’t do that, that will violate 18 U.S.C. [the federal criminal code], but that there was no evidence of intent and it’s looking, despite the fact of the prominence of it, like an unusual, but in a way fairly typical spill and that there was no fricking way that the Department of Justice in a million years was going to prosecute that.”); p. 374, n. 187 (“In his book, Comey stated, with respect to the July declination, that ‘[n]o fair-minded person with any experience in the counterespionage world (where “spills” of classified information are investigated and prosecuted) could think this was a case the career prosecutors at the Department of Justice might pursue. There was literally zero chance of that.’”).

[3] We feel compelled to add here that no one has ever explained what exactly such a hypothetical e-mail would say, why anyone would believe that Secretary Clinton would ever draft such an e-mail, or, most importantly, why the presence of such an e-mail would help prove a violation of 18 U.S.C. § 793(e) or (f), given all of the other facts developed in this investigation (notably the absence of any transmission or delivery of classified information to unauthorized recipients or the removal of such classified information by third parties). Note that the term “mishandling” appears nowhere in the criminal statute, and that communicating by e-mail does not “remove” anything.

[4] Schoenberg Decl., Ex. A, IG Report, p. 373; see also Schoenberg Decl., Ex. B, James Comey, A Higher Loyalty, p. 193 (“They told me those might well include the missing emails from the start of Clinton’s time at the Department of State. The team said there was no prospect of getting Weiner’s consent to search the rest of the laptop, given the deep legal trouble he was in. ‘We would like your permission to seek a search warrant.’ Of course, I replied quickly. Go get a warrant.”).  At this fateful meeting, there appears to have been absolutely no discussion of whether there was probable cause to seek a warrant. Most likely this critical omission was because, at the outset of the meeting, Andrew McCabe and his counsel Lisa Page were excluded and removed from the meeting as fall-out from an October 24, 2016 Wall Street Journal article raising spurious claims of a conflict of interest because McCabe’s wife had once run for state office and received support from the governor of Virginia Terry McAuliffe, a friend of Hillary Clinton.  See Schoenberg Decl., Ex. C, Office of the Inspector General U.S. Department of Justice, “A Report of Investigation of Certain Allegations relating to Former FBI Deputy Director Andrew McCabe,” February 2018, pp 5-8, https://oig.justice.gov/reports/2018/o20180413.pdf; Devlin Barrett, “Clinton Ally Aided Campaign of FBI Official’s Wife,” Wall Street Journal, October 24, 2016. https://www.wsj.com/articles/clinton-ally-aids-campaign-of-fbi-officials-wife-1477266114

[5] Schoenberg Decl., Ex. A, IG Report, p. 325, n. 178 (“Although Comey identified this fact as critical to his assessment of the potential significance of the emails on the Weiner laptop, the information was not included in the October search warrant application for the Weiner laptop.”)

[6] IG Report, p. 42 (“There were approximately 15 agents, analysts, computer specialists, and forensic accountants assigned on a full-time basis to the Midyear team, as well as other FBI staff who provided periodic support. Four WFO agents served as the Midyear case agents and reported to a WFO Supervisory Special Agent (‘SSA’). Several FBI witnesses described the SSA as an experienced and aggressive agent, and the SSA told us that he selected the ‘four strongest agents’ from his WFO squad to be on the Midyear team.”).

[7] Schoenberg Decl., Ex. A, IG Report, p. 352-54, report of interviews with lead DOJ prosecutor David Laufman, Prosecutor 1 and Prosecutor 2:

We asked Laufman what he meant when he said there was a ‘low expectation’ that this evidence would alter the outcome of the Midyear investigation. Laufman stated:

[W]e had seen through our investigation, the types of emails that Huma Abedin had been party to. And they were just not the kinds of emails that really went to the core issues that were under legal analysis, meaning they had to do with sort of scheduling, and…I mean, as important as she is in a personal, confidential assistant manner to the former Secretary, she wasn’t as substantively engaged in, in some matters that would have occasioned access to classified information or dealing with classified issues. So…we had seen quite a bit up to that point. And with respect to her, we hadn’t seen her engaged via email with anybody on the types of things that were material to our legal analysis. So, assuming that what was going to be reviewed from this new dataset was consistent with that, it seemed improbable to us that it was going to, to change anything. And of course as we know now, it was a giant nothing-burger.

Prosecutor 1 stated that the notification to Congress “didn’t make any sense.” Prosecutor 1 told us that given Abedin’s role and the evidence they had previously reviewed there was little “likelihood of finding anything of import in there.” Instead of doing a public announcement, Prosecutor 1 stated, “We should just investigate it and do it as quickly as we could.” We asked Prosecutor 1 about the potential presence of BlackBerry emails from early in Clinton’s tenure.

Prosecutor 1 stated that the FBI mentioned that “there could be information that covered that BlackBerry period from the period at the front end of the tenure,” but added:

I felt like a lot of the analysis was based upon what, what could be in there and the opportunity cost of sort of missing out on that. Of course, to me that’s a different analysis than making an announcement about it. We didn’t want to be seen to be in favor of forgoing the effort entirely.

Prosecutor 1 stated that the FBI seemed “very concerned about transparency with the public” and “had already kind of decided what they were going to do” prior to consulting with the Department.

Prosecutor 2 told us that the Department was “shocked” that the FBI was even considering notifying Congress about this development. Prosecutor 2 said that she did not necessarily view the Weiner laptop as a significant development in the Midyear investigation. Prosecutor 2 stated:

Because over the course of this investigation, we haven’t sought out personal devices of anybody other than Hillary Clinton. So we haven’t asked, for example, for like Huma’s personal laptops, her personal BlackBerries. We have her state.gov stuff, but that’s like, that of Huma’s is all we’ve searched.

So, there’s a threshold question in my mind of whether, like, this is even something that needs to be searched. And based on the, the iffyness on that threshold question, and then the likely significance of  this device, it seems totally nuts to me that they would make an announcement having no idea what is on this device, having not looked at it. And in, and in terms of like the impact that this announcement could have.

And I remember being on the phone call like, how are you, asking like how on earth are you going to word this announcement so it’s accurate and doesn’t, doesn’t like, you know, open a much bigger can of worms than is really the significance of this recent finding. I mean at this point…we have no idea…. We just know that like some of Huma’s emails are in FBI’s custody. Like, of course Huma has other emails. Like, how is this a game changer?

Prosecutor 2 also told us that she believed the FBI would not listen to any of the arguments they put forth. She stated, “[T]here’s a defeated feeling at this point that like [Strzok] was given the task of like pretend to DOJ that you’re hearing them out. And he was going to, you know, humor us by having this conference call, but like that nothing we said mattered on that call.

If there is one as-yet unnoticed undercurrent or subtext in all of the released information concerning the FBI’s investigation of Secretary Clinton, it is the apparent unwillingness of the male FBI leadership and agents to heed the warnings of their female colleagues, and the apparent understanding of these female colleagues that their views would not be followed by the men. See, e.g., Schoenberg Decl., Ex. A, IG Report, p. 377, (Attorney General Loretta Lynch and Deputy Attorney General Sally Yates were afraid to speak directly to Comey because he didn’t consult with them) (“We acknowledge that Comey, Lynch, and Yates faced difficult choices in late October 2016. However, we found it extraordinary that Comey assessed that it was best that the FBI Director not speak directly with the Attorney General and Deputy Attorney General about how to best navigate this most important decision and mitigate the resulting harms, and that Comey’s decision resulted in the Attorney General and Deputy Attorney General concluding that it would be counterproductive to speak directly with the FBI Director.”); IG Report, p. 340-42 (FBI Deputy Counsel Trisha Anderson and FBI Attorney 1 try unsuccessfully to remind Comey and FBI General Counsel Jim Baker that they were about to interfere in the election) (“I gather he [Baker] thought she [Anderson] might not raise it. So at our next family discussion that evening, he said let me ask you a contrarian question. You know how do you think about this? And then I think she spoke herself and said, how do you think about the fact that you might be helping elect Donald Trump? And I said, I cannot consider that at all.”) (“Baker told us that he asked Anderson if she wanted to bring this up with Comey, but Baker stated that ‘she was reticent’ to do so.”); Complaint, Ex. 7, text message from FBI attorney Lisa Page to FBI agent Peter Strzok on October 27, 2016 (FBI Attorney Lisa Page tries to remind FBI Agent Lead Peter Strzok that they cannot search the laptop without probable cause) (“completely INFURIATED [ ] with [FBI general counsel] Jim [Baker]….  Please, let’s figure out what it is we HAVE first. What if we can’t make out PC [probable cause]? Then we have no further investigate step.”).

[8] The IG Report includes a full Chapter on the drafting of the search warrant but unfortunately does not address the obviously pretextual nature of the affidavit.  Schoenberg Decl., Ex. A, IG Report, pp. 379-84.  Indeed, if there can be any valid criticism of the IG Report it is the illogic of its analysis of the search warrant and its aftermath. For example, The IG writes: “We found the belief that the Weiner laptop was unlikely to contain significant evidence to be an insufficient justification for neglecting to take action on the Weiner laptop immediately after September 29.”  Ex. A, IG Report, p. 327.  Really?  Since when is it “unjustified” to decide not to obtain a search warrant to look for non-existent evidence that no one believes is there?  The IG Report briefly describes the ultimate review of the emails on the Weiner laptop, but fails to mention that absolutely no emails were found from the early three-month time period that Comey and the others believed might be important.  Compare Ex. A, IG Report, pp. 388-89; Ex. A, Comey, Higher Loyalty, p. 202 (“There were indeed thousands of new Clinton emails from the BlackBerry domain, but none from the relevant time period.” (Emphasis added.)). In fact, as anyone with even a limited knowledge of the case would expect, all 13 of the classified email chains that were found on the laptop were duplicates of those already reviewed previously. Ex. A, IG Report, p. 389.  Perhaps the drafters of the IG Report were not technically proficient enough to ask the crucial question — when did the FBI agents and technicians reviewing the emails learn that absolutely no emails from the sought-after three-month time frame were on the laptop?  No doubt that fact could have been discovered almost immediately, and if it was, then what exactly was the FBI looking for over the course of the ensuing week, while the upcoming election hung in the balance?  Or were they simply stalling to cover for the fact that they had made a huge blunder? The IG Report is silent on these crucial questions.

[9] See most recently the August 28, 2018 Tweet by Donald J. Trump alleging that Clinton’s e-mails “got hacked by China,” at https://twitter.com/realDonaldTrump/status/1034654816046329856; compare “FBI pushes back on unfounded Trump claim that China hacked Hillary Clinton’s e-mail,” Washington Post, August 29, 2018 at https://www.washingtonpost.com/politics/trump-without-citing-evidence-says-china-hacked-hillary-clintons-emails/2018/08/29/cdbd6c60-ab71-11e8-8a0c-70b618c98d3c_story.html?utm_term=.2384bb3b96af.  (Schoenberg Decl., Ex. F)

[10] See Lissner v. U.S. Customs Service, 241 F.3d 1220, 1223 (ordering disclosure of physical description of state law enforcement officers, and citing only general public interest in ensuring reliability of government investigation); Hardy v. FBI, No. 95-883, slip. op. at 21 (D. Ariz. July 29, 1997) (releasing identities of supervisory ATF agents and other agents publicly associated with Waco incident, finding that public’s interest in Waco raid “is greater than in the normal case where release of agent names affords no insight into an agency’s conduct or operations.”); Butler v. DOJ, 1994 WL 55621 at 13 (D.D.C. Feb. 3, 1994) (releasing identities of supervisory FBI personnel upon finding of “significant” public interest in protecting requester’s due process rights); Weiner v. FBI, No. 83-1720, slip op. at 7 (C.D. Cal. Dec. 6, 1995) (finding public interest in release of names and addresses of agents involved in management and supervision of FBI investigation of music legend John Lennon).

[11] Similarly, it is not a remedy to suggest, as the FBI does, that Plaintiff seek a modification of the sealing order in the New York district court, since FOIA would not be available in such an action.

[12]  See https://www.wnd.com/2016/09/hillarys-chief-of-staff-used-personal-email-for-state-business/ and https://www.wnd.com/2016/10/yahoo-holds-key-to-fbi-probe-of-hillary-huma-emails/) and again in January 2018 (see http://dailycaller.com/2018/01/01/abedin-forwarded-state-passwords-to-yahoo-before-it-was-hacked-by-foreign-agents/ and https://davidharrisjr.com/politics/huma-abedins-personal-yahoo-account-hacked-forwarded-sensitive-material/).  (Schoenberg Decl., Exs. G)

[13] Perhaps it is worth noting that the FBI had no qualms about disclosing not only Plaintiff’s e-mail address but his residence address and telephone numbers in the context of its filing in this matter.  See Hardy Decl., Ex. E, p. 33.

 

 

Comey, Comey, and more Comey!

(AP Photo/Alex Brandon)

Since this week the media was “all Comey, all the time” — thanks to the publication of his book, Higher Loyalty, and the release of his memos about his meetings with Donald Trump — I might as well record my thoughts as well.

I am focused on just one aspect of Comey’s legacy, namely his fateful decision on Thursday, October 27, 2016 to allow the FBI to obtain a search warrant to look at e-mails between Hillary Clinton and her aide Huma Abedin that were found on Anthony Weiner’s laptop.  I have called this decision “the biggest mistake in the history of mistakes” and I still stand by that characterization.   There is really no serious doubt that Comey’s decision changed the outcome of the election and helped elect Donald TrumpBenjamin Wittes has recently argued that the difference between Trump’s chances of winning, as calculated by Nate Silver, on October 27 (20%) and November 8 (28%), are too close to make that determination, but he doesn’t really grapple with the stats, and the fact that, according to Silver, Trump’s chances narrowed to as close as 35% on Sunday, November 6, when the FBI announced that the e-mail search revealed nothing incriminating.  The predictors are of course imprecise, but the outcome of this particular election can be explained by the fact that, as my college friend Ed Glaser has argued, information travels less quickly in rural areas, like those in Wisconsin, Michigan and Pennsylvania, where Trump managed to hold on to a very, very narrow victory.  Even with the FBI email debacle, had the election happened one or two days later, Clinton almost certainly would have won, as the public sentiment gradually returned to where it was on October 27.

The other reason that I focus on Comey’s mistake is that he has yet to admit he made a mistake.  In fact, he continues to claim that if he had it to do all over again, he would make the same decision.  “I am convinced that if I could do it all again, I would do the same thing, given my role and what I knew at the time.” (Page 207.) Many people have focused on the ridiculous “Speak or Conceal” dichotomy that Comey has set up in his mind to explain away his error.  He seems simply incapable of applying the actual facts as they developed to help him see that a different, and very justifiable, decision would have been preferable.  The most he offers is this:

Another person might have decided to wait to see what the investigators could see once they got a search warrant for the Clinton emails on Anthony Weiner’s computer. That’s a tricky one, because the Midyear team [the FBI team working on the e-mails] was saying there was no way to complete the review before the election, but I could imagine another director deciding to gamble a bit by investigating secretly in the week before the election. That, of course, walks into Loretta Lynch’s point after our awkward hug. Had I not said something, what was the prospect of a leak during that week? Pretty high. Although the Midyear team had proven itself leakproof through a year of investigation, people in the criminal investigation section of the FBI in New York knew something was going on that touched Hillary Clinton, and a search warrant was a big step. The circle was now larger than it had ever been, and included New York, where we’d had Clinton-related leaks in prior months. Concealing the new investigation and then having it leak right before the election might have been even worse, if worse can be imagined. But a reasonable person might have done it.

Obviously, Comey is simply incapable of imagining the world as it would have been had he made a different choice.  What could he possibly mean by “might have been even worse”?  Worse than what actually transpired?  Worse than his firing by President Trump?  What exactly is he imagining that would be worse?  Really, what is it?

I think Comey is imagining something that he knows now isn’t true, but that he really thought would be true when he made the decision on October 27.  Comey thought the FBI was going to find something incriminating.  He really did.  It is the only way to understand his decision-making then, and his attempt to justify it now.  What he was deathly afraid of was that Clinton would win and then afterwards it would be revealed that she had actually committed a crime.  In that scenario, the wrath of the world that he lived in — almost exclusively Republican — would have come squarely down on his head. That was the scenario he most feared, and that he most wanted to avoid.  That was why the “Conceal” door, as he describes it, looked so threatening.  He didn’t see that inside that door was another, much more likely scenario — that the FBI would find nothing incriminating on the laptop, making his failure to disclose the new search both harmless and easy to explain.  The Conceal door only becomes scary if you think the chance of finding incriminating evidence was higher than the chance of not finding any.  Comey thought Clinton was guilty, and that the FBI would find, as he called it in his Senate testimony, the “golden e-mails” proving her guilt, that had eluded them so far.

Let’s go back and look at the days leading up to Comey’s October 27 decision to see how a series of events led to this his calamitous decision.

The emails on the Weiner laptop were first discovered in early October.  Andrew McCabe, the deputy director in charge of the “Midyear Exam” team (as the email review team was called), mentioned the new e-mails to Comey at the time, but neither of them seems to have taken it too seriously.  After all, Huma Abedin’s e-mails, both the ones stored at the State Department and those voluntarily delivered to the FBI by Abedin’s lawyers, had already been carefully reviewed by the FBI and nothing incriminating had ever been found.

On October 21 an associate of George Z. Toscas, a national security prosecutor at the Department of Justice, asked FBI agent Peter Sztrok about the Weiner laptop.  Sztrok texted to FBI attorney Lisa Page, assigned to McCabe, about Toscas’ inquiry:

So the renewed focus of on the laptop e-mails came from Toscas at the Justice Department.  This is the catalyst for everything else that transpired and we do not know yet why Toscas was making the inquiry.

On Sunday, October 23, Sztrok and Page text about an impending story on Andrew McCabe in the Wall Street Journal .

Bill is Bill Priestap, FBI Assistant Director of Counterintelligence. EAD means Executive Assistant Director, so apparently Andrew McCabe was planning on telling Priestap about the WSJ story that evening and everyone else on Monday morning.  What is also interesting is that Page refers to “the PC crap from back when.”  PC stands for “probable cause,” the constitutional standard for obtaining a search warrant.  More on that later.

Around midnight that evening, the article by Devlin Barrett for the Wall Street Journal appeared online with the headline “Clinton Ally Aided Campaign of FBI Offcial’s Wife.”  In a classic, attenuated guilt-by-association, Devlin suggested that McCabe had a conflict of interest because his wife’s campaign received funds from an old friend of Clinton.  The implication was that McCabe, who had been elevated to his position after his wife’s campaign had already ended, was somehow conflicted in his role overseeing the Clinton e-mail investigation. We don’t know how Barrett came to write the story, but it certainly looks like it was planted by someone supporting the Trump campaign.

Immediately Sztrok and Page have a spat by text over Sztrok’s desire to share the WSJ article with everyone right away. In her replies, Page implies that some of the other team members, including Bill Priestap, Jonathan C. Moffa of the FBI’s criminal division and Office of General Counsel, and someone whose name is redacted, would be eager to “spread it around town.”

So we have a sense from this that Page thought that some of the Midyear team members might not like McCabe and would want to damage his reputation by sharing the WSJ article.

Sztrok and Page are clearly on McCabe’s side, and on Monday morning Sztrok sends Page some ideas of how to respond to Devlin Barrett’s WSJ article.  Like me, Sztrok wonders how he got the story.  He has his suspicions and I’d love to know what they were.

On Tuesday, October 26, things are starting to move again on the Clinton e-mail case.  I am not sure if anyone outside conservative media has reported on it, but as I write this it looks to me like George Toscas and the Department of Justice were preparing to send a letter to Congress about the e-mail investigation. “MYE” is Midyear Exam, the code name of the Clinton e-mail investigation.

A letter was sent on October 31, but by then a lot of water had gone under the bridge and it doesn’t seem to say much of anything.

Page and McCabe have a call late at night on October 26, and just after midnight Page texts Sztrok about a meeting of the Clinton e-mail team being set up for the morning.  Comey says he got an e-mail from McCabe at 5:30am about the meeting, but apparently McCabe, who was out of town at the time, didn’t even tell Comey what it was about.

The big meeting takes place at 11:00am on Thursday, October 27, with McCabe, the team supervisor, on the telephone. (Note: the Inspector General Report on Andrew McCabe says 10:00am, but Page is blithely texting Sztrok about lunch and things until 10:47am, so I think they got the time wrong.) Comey describes the meeting as follows:

I walked into my conference room and smiled broadly at the team leaders, lawyers, and executives from the Midyear case, each sitting in the same seats they had occupied so many times in the year of the Clinton email investigation.  “The band is back together,” I said, as I slid into my seat. “What’s up?” It would be a long time before I smiled like that again.

In his book, Comey doesn’t mention the very important event that happened next. But the Inspector General report concerning Andrew McCabe that was released last week tells the story.

 

 

 

So, based on the advice of FBI General Counsel Jim Baker, both Andrew McCabe, the supervisor of the team and the one who had called the meeting, and his special counsel Lisa Page, were excluded from the deliberations about what to do about the Weiner laptop.  Neither of them knew they were going to be excluded.  It was a coup.

After McCabe and Page left the meeting, the team informed Comey about the issue with the laptop.  According to Comey, they told him that the laptop held thousands of emails from the AT&T Blackberry domain that Clinton used before setting up her private server.  Comey has said these were important to him because they might include e-mails showing that Clinton purposefully set up her private email server, knowing that she wasn’t supposed to do that under State Department guidelines.  (Whether or not even that would constitute a crime is very questionable, by the way, but Comey apparently believed it would.) “They told me those might well include the missing emails from the start of Clinton’s time at the Department of State. The team said there was no prospect of getting Wiener’s consent to search the rest of the laptop, given the deep legal trouble he was in.”  (p. 193) Then comes the fateful moment:

“We would like your permission to seek a search warrant.”

Of course, I replied quickly.  Go get a warrant.

And that was it.  Without any reflection or discussion of whether or not there was probable cause to believe Clinton had committed a crime, Comey authorized his team to seek a search warrant against a candidate for President, twelve days before an election.  Of course.

It is hard to exaggerate how incredibly serious that decision was. Until that moment, the FBI had not obtained a search warrant in the investigation, which had begun not as a criminal investigation, but as a security review of the e-mails to confirm their classification and make sure they had not been improperly accessed, requested by the Inspectors General of the Intelligence Community and the State Department, who were fighting over jurisdiction in July 2015 (as described in detail in Lanny Davis’s book “The Unmaking of the President 2016“).  On July 5, 2016, Comey had said that “we cannot find a case that would support bringing criminal charges on these facts.”  Suddenly, and without any further evidence, it had become “probable” that the FBI would find evidence on Weiner’s laptop of a crime by Clinton.  How?

I’ve followed Comey closely since November 2016 and I’ve watched a lot of his interviews this past week.  He’s never been asked why he thought there was probable cause to believe the FBI would find evidence of a crime on that laptop.  I think that if asked, he’d say that he had no idea what was on the laptop, and no idea if anything would be incriminating.  He’d probably say he thought it was possible.  But he couldn’t admit he thought it was probable, which is something very different, because he had not yet seen any evidence to support that belief.  Yet I think the truth must be that he really did believe, despite all the evidence that had been reviewed, that it was probable that Clinton had committed a crime.  And so he didn’t even give it a second thought.

The rest of the meeting concerned what to do next.  The team (without McCabe and Page) told him that it would take weeks to review the emails.  They were wrong, stupidly wrong.  There were in fact no emails on the laptop from the time frame that supposedly motivated the search.  As Comey reports in his book, “There were indeed thousands of new Clinton emails from the BlackBerry domain, but none from the relevant time period.”  (p. 202)  None.  Zero.  Zilch.  Nada.

By now, Comey has discussed ad nauseam the thinking that led him to decide to disclose the laptop search immediately by sending a letter to Congress. As I have said, he and the remainder of the Midyear team had an obvious blind spot to the likelihood that they would quickly know that there were no relevant emails on the laptop.  Comey has testified that just one person, who has been described as a female “junior lawyer”, questioned whether he should worry about affecting the election.  I believe that person was Lisa Page, but then supposedly she was excluded from the big meeting. So I am not sure.  Maybe this was at a subsequent meeting.

As we were arriving at this decision, one of the lawyers on the team asked a searing question. She was a brilliant and quiet person, whom I sometimes had to invite into the conversation. “Should you consider what you are about to do may help elect Donald Trump president,” she asked?

I paused for several seconds. It was of course the question that was on everyone’s mind, whether they expressed it out loud or not.

I began my reply by thanking her for asking that question. “It is a great question, ” I said, “but not for a moment can I consider it. Because down that path lies the death of the FBI as an independent force in American life. If we start making decisions based on whose political fortunes will be affected, we are lost.”

Comey was spectacularly wrong on this point, and he has yet to understand or admit his error.  The rule is that the FBI should affirmatively avoid interfering with elections, when possible, not that it should be agnostic.  Comey chose to be agnostic. He refused to consider whether his actions would interfere with the election. The choice that Comey had was not Speak or Conceal, but Interfere or Not Interfere.  He should have chosen not to interfere.  It really is that simple.

Lisa Page was obviously not happy about being excluded from the big decisions being made on the investigation she had helped McCabe supervise.  She texted to Sztrok later that she was furious with her boss Jim Baker.

 

As Sztrok reports, Jim Baker made the decision to recuse Lisa Page, on the basis of “optics.”  Apparently, having the lawyer assigned to Andrew McCabe continue to participate would look bad, after the uproar over Devlin Barrett’s WSJ hatchet job.  This was a grave error.  The Midyear team appears to have been pretty balanced up to this point, with some Clinton supporters and some critics.  With McCabe and Page out of the picture, the balance tilted severely toward Clinton’s opponents, the ones who, like Comey, assumed she had committed a crime.  None of the remaining members of the team had the ability to right the ship when it tilted too strongly in the anti-Clinton direction.

Page’s desperate message to Sztrok, who was still on the Midyear team, is right on point: “Please let’s figure out what it is we HAVE first. What if we can’t make out PC [probably cause]? Then we have no further investigative step.”  Yes, probable cause.  That is the correct question that Comey and the rest of the Midyear team seem to have forgotten when they decided quickly to forge ahead.  You cannot get a search warrant without demonstrating probable cause.

Here’s a decent definition of probable cause “Probable cause is a requirement found in the Fourth Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant. Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search).”

You might respond by saying, well, they did eventually obtain a search warrant, so there must have been probable cause.  That is true, but it was on Sunday October 30, after all of the publicity.  At that point the Magistrate probably felt he had little choice but to let it play out. But more importantly, take a close look at the search warrant application, which I helped get released from the Southern District of New York in December 2016.  Do you see anything about the AT&T Blackberry domain or the time frame that Comey says were the reason for continuing the search?  There’s nothing.  Nothing about what Comey says was the real reason for the search.
It is possible that the information is redacted, but why?  I have recently filed suit against the FBI to remove the redactions.  We need to review all of this search warrant.  But it looks to me as if the FBI did not disclose to the Magistrate the true purpose of the search.  Had they done so, they might not have obtained the warrant, or it might have been limited.  The warrant was obtained on pretextual grounds, as if there was an immediate need to secure duplicates of  a few classified emails on a hard drive that was already in the possession of the FBI.

Comey says he checked on the email review every day. Apparently he was surprised that the FBI’s Operational Technology Division was able to figure out a way to eliminate all of the duplicate emails they had already reviewed. That’s what I would have expected, but perhaps I know a bit more about computers than Comey does. In any case, even though there were no emails from the time-frame that they wanted to search, the team still spent the next week reading through other emails, trying to find something that didn’t exist.  By Sunday morning, November 6, they had given up.  But by then the damage was done.  On that day, Trump’s chances of winning had gone up to better than one in three.

Why you’ll never be a good genealogist if you don’t collaborate with others

There are a lot of people who claim to be good genealogists but really are not.  These are folks who publicly gripe about collaborative genealogy sites like Geni.com.  They claim to be interested in accuracy, but really they only care about pretending to know more than everyone else.  Collaborative genealogy threatens them because it makes obvious how much these self-proclaimed experts are missing.

It’s easy to think of yourself as a great genealogist if you don’t really care about what you don’t know. But genealogy should be all about finding out new things.  Time and time again I hear people claim that their private trees are more accurate, but when push comes to shove and they show me them, they are not more accurate, just woefully incomplete.

If you start from the principle that every person you add to your family tree should have as complete a tree as possible, you quickly realize that this means spidering out in all directions.  Your sister-in-law needs her parents and siblings.  Those siblings need their spouses.  Those spouses need their parents and siblings.  And so it goes in all directions.

The number of people within just a few steps of you is overwhelming.  A while back I came up with the Geni Forest Density Calculator to figure out just how many people there are in close proximity to any profile on the tree.  The current leader, Brigham Young, has nearly 2 million people within 10 step of him (because of all those wives). But even John Adams, James Madison and Ben Franklin have over 400,000 people within just ten steps.  Even at just 6 steps away we find thousands and thousands of people.  For example, George Washington has nearly 12,000 people within just six steps of his profile, and he didn’t even have any children!

So, even if you wanted to develop a complete tree for one person, it is a herculean task.  You simply cannot do it by yourself.  No matter how good you think you are and how long you work at it.  You just can’t.

It’s not a response to this problem to say “I just don’t care” about all those in-laws and in-laws of in-laws.  Of course you care.  You just don’t have the time to figure them all out.  Who was at the wedding of your first cousin?  Not just your side of the family (the 25% who are directly related to you) but also all of the other 75%.  Each one of those unrelated people could have a photo or other information about someone in your family.  Don’t say you don’t care to know.  That’s not how genealogy works.  We care about everything!

When you get back to researching in small towns, you want to look at every family in the town.  There are connections everywhere.  Everyone was related to everyone else umpteen different ways.  If you are just going up and following your bloodline, you’ll never find everyone.  You have to expand and go sideways.  I can’t tell you the number of times I have discovered something about one family while researching another.  (For example, see the work I am doing on the Jewish families of Prague.) But of course this brings us back to the problem of having limited time.  You need a team of people to go through all the records and make all of the connections.  You need to collaborate on a public tree.  There is no other way.

The skeptics’ most common complaint about Geni is that they find “so many mistakes.”  I just have to laugh.  In a tree with 4 million users and 120 million connected profiles, you’re bound to have lots of errors.  Of course, those relatively tiny trees that these so-called experts keep on their hard drives are also riddled with errors and omissions.  It is just that no one ever finds them.  The paradox about collaborative trees is that the ease of finding mistakes, yours and other people’s, is actually one of the great benefits of the program.  All of these mistakes can be easily and quickly corrected.  Over time, this has made the tree on Geni more accurate and complete than any other tree in existence. Yes, more accurate than yours.  I guarantee it.

I have explained this before but it is worth stating again, collaborative tree-building is the more scientifically rigorous method of genealogy.  On collaborative trees, discrepancies get discovered, discussed and resolved. This is a direct result of the open nature of the collaboration.  Putting a name on a collaborative tree is equivalent to publishing a theory.  Once published, the theory can be examined and tested by others.  You may think you have solved a genealogical problem on your tree, but until you let others take a look and test your conclusions, you really cannot have any confidence in your solution.  As I have said before, there is no such thing as certainty in genealogy.  There is always the possibility that someone will come up with a new piece of conflicting evidence that forces you to reconsider your old conclusions.

For sure, collaborative genealogy can be daunting, especially for old-timers who are used to doing things the old-fashioned way.  But seriously, in what other domain would you listen to someone who won’t use the latest technological advances?  By now I have dealt with hundreds of Geni skeptics and complainers.  Most, I have to say, have severe psychological problems that prevent them from collaborating with other people.  Interestingly, these people often feel the need to offer their uninformed opinions to other people.  I don’t know why.  If they can’t play in the sandbox with the other kids, it shouldn’t hurt them that others are having fun there.  But it does.  They go on and on about how awful the sandbox is, as if seeing other people enjoying themselves and making progress is a great offense to their sensibilities.  You have to just tune them out.

I want to conclude with an explanation of a method I have developed that is a bit more advanced, and perhaps controversial, but has been very successful.  Many genealogists start with the premise that they should only put what is certain on their tree.  But this can make discoveries more difficult, because it is impossible to keep all of the unattached potential relatives in mind.  When working through 18th century records in Prague, I have come up with a method that allows me to easily revisit possible connections.  I set up a “Placeholder” for a given surname, and I place unattached people under the placeholder.  For example, let’s say I find a marriage record and it says that the wife’s father is named Josef.  I don’t know which Josef he is.  There may be several with that surname.  And I am working on the husband’s family.  So I attach this Josef to a Placeholder with his surname, so I can revisit it later.  After a while, you get a collection of these unattached profiles and you can work on figuring out how they all fit together.  The trees are always a work-in-progress, but I find that this allows me to quickly move from one family to another, as I go through the records.  You can also set up Placeholders at different generations.  To people unfamiliar with this method, it may look like I am making mistakes, assuming people are siblings when they are not.  But I can only judge by the results I am having, which are extraordinary.  Look, for example at 10 generations of the Teweles family. The Schefteles family, or Porges family, starting in 1500, are much more difficult, so you can see what this method looks like while it is still in-progress.  I am using this method on hundreds of trees with dozens of active collaborators and it works.  As we incorporate dna results in our trees, this method also has the advantage of bringing together likely related families so the dna results can be easily compared.

Collaborative genealogy on Geni is allowing us to build trees and make connections in ways that simply were not possible before, and are not possible when working alone, no matter how good you think you are.  To be a good genealogist today means adopting this new technology and collaborating with others.  Anyone who tells you otherwise just doesn’t know what he is talking about.

For questions, please contact me on Geni, where I am a volunteer curator.  The views here are my own, of course, and not Geni’s.

Letter to Inspector General Michael Horowitz

February 22, 2018

Via Fax & U.S. Mail (202-514-4001)

U.S. Department of Justice
Office of the Inspector General

Attn: Inspector General Michael Horowitz
950 Pennsylvania Avenue, N.W.
Suite 4706
Washington, D.C. 20530-0001

Re:  FBI handling of Clinton e-mail investigation

Dear Inspector General Horowitz:

I have written to you twice previously (on January 24, 2017 and September 18, 2017) to express my concerns regarding your pending investigation of the FBI’s handling of the Clinton e-mail investigation.  I continue to hope that your report will shed much-needed light on what transpired. Although I succeeded in obtaining a redacted version of the Clinton search warrant in December 2016, my FOIA requests for an unredacted copy of the warrant application and other materials related to the decision to seek that warrant have been unsuccessful so far.  As a result, I will soon be filing suit against the FBI to obtain some of these materials. If your report can also manage to release the underlying documents, I would very much appreciate that.

In the past weeks, the release of the Sztrok-Page text messages and Lanny Davis’ new book, have added more details to several issues that I trust are critical to your report.  As someone who has been carefully following this matter, I want to share with you some of my thoughts in the hopes that your report will be able to answer some of the outstanding questions that remain.

Mr. Davis’ book includes a good deal of material on the beginnings of the Clinton e-mail investigation, but cannot answer the fundamental question of why the FBI converted a non-criminal referral over the classification of documents into a criminal investigation.  As I have previously written, the principal statute at issue (e.g. 18 U.S.C. §793(e) and (f)) does not make the sending and receiving of e-mails from a private server to authorized personnel a crime.  While the public, various politicians and also Director Comey in his July 5, 2016 statement, refer to “mishandling” classified information, the vague term “mishandle” does not appear in the statute.  The law concerns “removal,” and sending or receiving an e-mail is not “removal.”  Nor has there ever been any indication that any information was “delivered to anyone in violation of his trust.”  I suppose I am not the first person to make a close analysis of the statute, and so I hope that you can shed light on the FBI’s decision by releasing any legal analysis that was done by the FBI or Department of Justice on this interpretation of the statutes in question. I would be very surprised if no one properly analyzed the statue, but if that is the case, then I hope that your report will include a discussion of this issue.

The text messages between Peter Sztrok and Lisa Page are fascinating and provide a small window into the work done on the e-mail investigation.  Although many right-wing critics have focused on various different aspects of their messages, I have not seen anyone really discuss the messages that pertain to the issues at stake in your investigation.

As I have written previously, it is obvious to any objective observer that there was never probable cause to search the Weiner laptop for Clinton’s e-mails.  Sztrok and Page both must have recognized this fact and I hope you have interviewed them on this crucial question.  See for example Sztrok’s text on September 10, 2016 at 12:55:59 explaining why some laptops and media turned over were not reviewed during the Clinton e-mail investigation “They would not consent and we did not have probable cause to get on them.”  See also Page’s text on October 27, 2016 (the day Director Comey decided to pursue the Weiner laptop review and write to Congress) “Please, let’s figure out what it is we HAVE first. What if we can’t make out PC? Then we have no further investigative step.”  So, who decided after October 27 that there was probable cause to search the Weiner laptop?  When and how was this decision made?  Was it before or after Director Comey sent his letter to Congress on October 28?  The search warrant application was filed on Sunday October 30.  Who was involved in preparing the warrant application?  Was everyone in agreement or was there dissent on this issue?  Did the FBI handle it properly, or was politics or “optics” the main concern?  I hope that these crucial decisions will be a focus of your report.

Further questions include:

What was Lisa Page referring to when she wrote on October 26, 2016 at 22:03:00 “Call you from the car to talk about Chaffetz and current issue”?  Was Rep. Jason Chaffetz perhaps already aware that there were Clinton e-mails found on the Weiner laptop?  Why was Lisa Page concerned about Rep. Chaffetz?

When Director Comey testified on May 3, 2017 that there was a “junior lawyer” who asked whether he should consider the effects of his decision on the election, was that lawyer he referred to Lisa Page, or someone else?

Why did Lisa Page write that she was “completely INFURIATED” with Jim Baker on October 27, 2016 at 14:26:02?

What did Peter Sztrok mean when he wrote: “JB told me there was no requirement to recuse you, that is [sic] was optics, we went round and round playing that out”?

What is Peter Sztrok referring to when he wrote on November 1, 2016 at 23:05:28 “Figured out why they legally can’t do what you just said. We are comparing against material (to determine what is new) that we obtained during the investigation”?  I previously pointed out to you that it should have been quite simple to review the e-mails on the Weiner laptop to determine that there was nothing remotely new or incriminating.  Was there some issue that slowed down the review?  So far, the FBI has pretended that the review was time-consuming and Director Comey testified that the staff “moved heaven and earth” to get it done.  I doubt that his characterization is correct and hope that your report will shed light on this aspect of the debacle.  Please remember, they were searching for something that never existed, and that they had no indication existed.  Thus, the question is how long it should have taken for the FBI to realize its mistake.

What are Peter Sztrok and Lisa Page referring to when in the exchange beginning on November 2, 2016 at 00:45:44?  Sztrok: “This response, from Jon:\n…and considering we haven’t shared any facts, those certainly aren’t factoring into decisionmaking. We should essentially have no reason for contact with NYO going forward in this.” Page: “I know. Which is what I tried to impose. God, this makes me very very angry. I honestly think I should bow out rather than find out things, be unable to tell Andy, and powerless to stop them.”  Sztrok: “No. Need you on the inside now more than ever. Truly. And no bs, your country needs you now. \n\n We are going to have to be very wise about all of this. The only thing wrong in your statement is your powerlessness.” Page: “I am going to have to use Jim Baker a lot to get to the D. But I don’t trust that he can convey the details accurately.”  This exchange raises a lot of concerns, the problem with the New York Office, finding things out (what things?) and not being able to do anything about them, not trusting Jim Baker to be able to convey details correctly to Director Comey.  There seems to be something very wrong going on at this time.

I continue to hope that your report will provide much-needed clarity and transparency concerning perhaps the most critical decisions ever made by the FBI.  My personal view is that serious mistakes were made, and I am dismayed that Director Comey, who must be aware of them, has not conceded any of them.  The country needs to know what really went on, what mistakes were made, and why, so that we can hope to prevent such mistakes from happening in the future.  We cannot allow the FBI to interfere with our elections by pursuing unwarranted investigations of political candidates.

Very truly yours,

RANDOL SCHOENBERG

P.S.  For more details, please see my blogs at http://schoenblog.com/?p=1428, http://schoenblog.com/?p=1390, http://schoenblog.com/?p=1302, http://schoenblog.com/?p=1264, http://schoenblog.com/?p=1237, http://schoenblog.com/?p=1064 and http://schoenblog.com/?p=1008

Is FBI Attorney Lisa Page a Hero?

This week, Senator Ron Johnson released an interim report on the FBI’s investigation of the Clinton Email Scandal.  (See February 6, 2018 at https://www.hsgac.senate.gov/library.)  The Report itself isn’t so interesting, mainly a list of facts and allegations that seem salacious to right-wingers, but don’t really amount to anything in particular.  The accompanying documents are what interested me.  But one thing that irks me about the memo is the careless misinterpretation of the law.  The memo includes a whole section on “the law governing the protection of classified information,” which includes both a verbatim text of the law, as well as a misleading summary.  For example, the committee says “Section 793(f) prohibits the mishandling of classified material through one’s gross negligence.”  Well, no.  The word “mishandling” appears nowhere in the law.  “Mishandling” is much too vague a term to be used in a criminal statute.  Instead, the law at issue (enacted 100 years ago during World War I) makes it illegal to permit the “removal” of documents, or to fail to report their removal.  Here’s the big problem for all those trying to suggest that Hillary Clinton committed a violation of this statute.  There is no “removal” of documents when you send an e-mail.  I’ve explained this before in a previous blog but it deserves repeating.  There is simply no law that could make simply sending and receiving e-mails from a private server to authorized recipients into a crime.

I am certainly not the first lawyer to realize this.  No doubt there were lawyers at the FBI and the DOJ who also understood that nothing that Hillary Clinton did with regard to her e-mails could ever result in a criminal conviction.  Sadly, no one ever tried to explain this to the American public.  Months before FBI Director James Comey’s public statements in July 2016, he and his staff began preparing for the day when they might have to explain that there was no case.  They did this while they were still conducting interviews of witnesses, which Republicans believe is evidence that the investigation was not conducted properly.  In fact, all it shows is that the FBI and DOJ were afraid to tell the Republicans that the entire investigation was not worth anyone’s time.

For FBI lawyers like Lisa Page, the pointless, obviously political investigation of Hillary Clinton must have been frustrating.  She was assigned tasks that she and her colleagues knew were never going to lead to the prosecution of any crimes.  It was all politics — and not her politics.  Unlike much of the FBI rank and file, Lisa wanted Hillary Clinton to win. And Peter Sztrok, an agent that Lisa worked closely with on counterintelligence cases, felt the same way.  The two of them became close — too close.  They started an affair, and began texting each other throughout the day.

Those texts have now been released by Senator Johnson, giving us some insight into not only Page and Sztrok, but some of the senior management of the FBI.

Here are a few of the (to me) more interesting portions of the released text messages:

What was Lisa Page referring to when she texted to Peter Sztrok about Rep. Jason Chaffetz on the evening of October 26?Bill is Bill Priestap, head of counterintelligence and Peter Sztrok’s boss.

On October 27, 2016, FBI Director James Comey held a meeting where he says that his team unanimously concluded that he had no choice but to reopen the email investigation and notify Congress.  Last year, Comey testified that only one “junior lawyer” spoke up and suggested that maybe he was going to interfere in the election. We don’t know yet who that junior lawyer was.  It could have been Lisa Page, but she’s not so junior, and now it looks like FBI general counsel James Baker excluded her from the big meeting because of “optics” (whatever that means).  Read the exchanged from the afternoon of October 27 below.

Outbox are from Lisa Page.  Inbox are from Peter Sztrok.  JB is FBI general counsel James Baker (Lisa’s boss).  He was reassigned last month.  Toscas is Deputy Attorney General George Toscas. Michael Kortan is the Assistant Director of the Office of Public Affairs. He manages the FBI’s public relations (and is probably the source of all authorized leaks).  Andy is former FBI Deputy Director Andrew McCabe, who was pushed out of the loop on the e-mail case a week before these texts, after right-wing attacks based on democratic donor support for his wife’s failed Virginia state senate campaign in 2015.

To me, the important part of these texts is at the end.  “What if we can’t make out PC?”  She’s talking about probable cause, the constitutional standard for obtaining a search warrant.  As we know, the FBI obtained the warrant just four days later, on Sunday October 30.  I and others who have reviewed the warrant application cannot find even the slightest probable cause to believe that the FBI would obtain evidence of a crime.  Of course, none was ever found.  The big question has always been who thought they would find evidence of a crime and why?  It looks like Lisa Page tried to make the argument that there was no probable cause.  Obviously, she was overruled by  her boss Baker , as well as Comey, who was hell-bent on proving what an aw-shucks stand-up guy he was by reopening the investigation.

A few days later, on November 2, we find this little nugget about the ongoing effort to review the emails on Wiener’s laptop.

I’ve long wondered why it took a week for the FBI to determine that there was no new evidence on the laptop. After all, they had already reviewed all of the e-mails.  How hard could it be to compare them?  Well, apparently there was a problem, maybe due to security clearance issues, that prevented the FBI from comparing the e-mails.  Lisa was trying to break the log-jam.  It took a week before the FBI admitted that the laptop had nothing new.  In that week, the election was lost for Clinton.

I’m not sure what to make of this next exchange from November 2.  It sounds a bit like Sztrok and Page were trying to wall off the New York office, which may have been the source of press leaks.  Page is angry, and frustrated that she cannot get help from Andy McCabe, who has been recused from the whole case.  Without McCabe’s help, Page felt powerless to stop the bad actors in the New York office.  She didn’t have much faith in Jim Baker either.  We’ve all been there.  The boss is good at doing lunch but pretty worthless when it comes to understanding the details.

We’re getting closer to understanding what exactly happened that led to the disaster of the Trump presidency.  It was a comedy of errors (otherwise known as a tragedy).  The people who understood and were capable of stopping the disaster were pushed out and excluded, because of “optics,” leaving only the bad actors and the head-in-the-clouds senior officials pretending to do the right thing, all the while doing exactly the opposite.  Lisa Page is looking more and more like a would-be hero, someone who saw what was happening and tried to stop it.

Complaint against the FBI

COMPLAINT FOR INJUNCTIVE RELIEF

  1. This case concerns perhaps the most consequential search warrant in the history of this nation — the FBI search warrant (the “Search Warrant“) issued by Magistrate Judge Kevin Nathaniel Fox on October 30, 2016 regarding the e-mails between Hillary Clinton (“Clinton”) and Huma Abedin (“Abedin”) found on the laptop belonging to Abedin’s husband Anthony Weiner (“Weiner”). Many believe that the publicity surrounding the Search Warrant changed the outcome of the 2016 presidential election.
  2. This is an action under the Freedom of Information Act, 5 U.S.C. § 552, to order the production without redaction of the Search Warrant and related affidavits, which defendant has improperly produced only in an incomplete, redacted form to Plaintiff.
  3. This court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B).
  4. Plaintiff resides in Los Angeles, California.
  5. Plaintiff, E. Randol Schoenberg, is an attorney, journalist and author with a blog entitled schoenblog.com, and is the requester of the records which defendant is now withholding.  Plaintiff’s November 16, 2016 article concerning the Search Warrant, “Investigate the FBI,” was published in the Jewish Journal and was shared over 9,000 times.
  6. Plaintiff has requested the unredacted Search Warrant for use in a news story. The prompt release of the unredacted Search Warrant is important because of the enormous public interest in this information.
  7. Defendant Federal Bureau of Investigation (“FBI”) is an agency of the United States and has possession of the documents that Plaintiff seeks.
  8. On or about November 12, 2016, plaintiff made an online FOIAPA request to the FBI for “the search warrant and related application, affidavits and receipts used by the FBI and Justice Department to obtain the review of Huma Abedin’s e-mails related to Hillary Clinton, as discussed in this New York Times story from October 30, 2016.  http://www.nytimes.com/2016/10/31/us/politics/justice-department-warrant-clinton-abedin-fbi.html.” A copy of this letter is attached as Exhibit 1. The request was assigned No. 1361976-001.
  9. On or about December 12, 2016, Plaintiff filed an action in the Southern District of New York to unseal the Search Warrant in that Court.  By order dated December 19, 2016, Judge P. Kevin Castel ordered the release of the Search Warrant, subject to certain redactions requested by the FBI concerning Abedin and Weiner (who are identified only as Subject 1 and Subject 2).  A copy of Judge Castel’s December 19, 2016 Order is attached as Exhibit 2.
  10. The December 19 release of the redacted Search Warrant received nationwide publicity, as a matter of great public interest.
  11. Rather than litigate the redactions at that time, Plaintiff elected to continue with the FOIA administrative process.
  12. On or about May 11, 2017, the FBI responded to the FOIA request by again releasing the Search Warrant with redactions.  A copy of the May 11, 2017 release letter is attached as Exhibit 3.
  13. A copy of the redacted Search Warrant from In re Search of A Laptop Computer, S.D.N.Y. 16 MAG 7063, which was produced by the FBI on or about May 11, 2017, is attached as Exhibit 4.
  14. In its May 11, 2017 response letter the FBI cited just two grounds for the redactions — Exemptions 5 U.S.C. 552 b(6) and b(7)(C) relating to personal privacy. In addition, the FBI added “For your information, sealed court records are not eligible for release under the Freedom of Information Act. Some of the material responsive to your request has been withheld and marked ‘OTHER — Sealed.'”
  15. On or about Jun 12, 2017, Plaintiff submitted an appeal contesting the redactions. A copy of this appeal is attached as Exhibit 5.  The appeal was assigned No. DOJ-AP-2017-004605.
  16. Plaintiff noted “the two principle subjects of the redaction are presumably Huma Abedin and Anthony Wiener. Their identities have been disclosed on numerous occasions and there can hardly be any privacy invasion as the result of the disclosure of their names on this Search Warrant. The FBI has previously released documents relating to Hillary Clinton, and did not redact Abedin’s name. https://vault.fbi.gov/hillary-r.-clinton [see e.g. Part 3 of 15, page 84 et seq., released September 2, 2016], discussing the interview of Huma Abedin and the production and review of her e-mails. The Wiener case is also now closed as a result of his recent guilty plea. So there is no reason any of this should be hidden from view.”
  17. Further, Plaintiff stated: “Your letter states: ‘For your information, sealed court records are not eligible for release under the FOIA.’ If you merely Google that phrase, you will find a link to the Justice Department website, https://www.justice.gov/oip/blog/foia-update-significant-new-decisions-22, where you cite Morgan v. Department of Justice, 923 F.2d 195 (D.C. Cir. 1991) for the proposition that ‘the mere existence of a court seal is, without more, insufficient to justify nondisclosure under the FOIA.’ There is no chance that the sealing order in this case was issued with the intent to prohibit the agency [from] disclosing any of the information in the search warrant. Please remove the redactions based on the sealing order.”
  18. Finally, Plaintiff averred: “Additionally, you have redacted the names of the agents who were involved in this ill-fated search. I am unaware of any case that permits the FBI to redact the names of its agents in a closed case with no threat of violence, based solely on ‘privacy.’ Here, the public interest in disclosure massively outweighs any privacy interest.”
  19. By letter dated September 20, 2017, Sean O’Neill, Chief of the Administrative Appeals Staff affirmed the FBI’s action and refused to remove any of the redactions.  A copy of the September 20, 2017 letter is attached as Exhibit 6.
  20. O’Neill merely restated the privacy exemptions and did not explain how the release of the redacted material could conceivably constitute a “clearly unwarranted invasion of the personal privacy of third parties,” whose identity and involvement in the matter were already widely known to the public.
  21. O’Neill did not address the issue of disclosure of the identity of the agent who signed the affidavit in support of the Search Warrant. If ever there were a public interest in learning the identity of an agent, this would be the case. The public has not only a right, but a need to know which FBI agent stated that there was probable cause to believe that evidence of a crime by Hillary Clinton would be found on the laptop.  No such evidence was found.  None of the ordinary circumstances justifying redaction of the agent’s name (ongoing investigation, risk of violence, etc.) arises in this case.
  22. It should be noted that the purported purpose of the search requested in the Search Warrant affidavit — identifying and securing classified e-mails, all of which had already been reviewed by the FBI, although that fact was not disclosed in the affidavit in support of the Search Warrant — does not match the testimony of FBI Director James Comey on May 3, 2017 before the Senate Judiciary Committee that his team was looking for “the golden missing e-mails that would change this case.” The truth is that the FBI hoped to find not additional copies of the previously reviewed e-mails between Abedin and Clinton (which was, not surprisingly, all that was found), but rather earlier e-mail evidence that the private e-mail server had been set up with the express intent to commit a crime. Comey stated on May 3, 2017: “What they could see from the metadata was that there were thousands of Secretary Clinton’s emails on that device, including what they thought might be the missing emails from her first three months as secretary of state. We never found any emails from her first three months. She was using a Verizon BlackBerry then and that’s obviously very important, because if there was evidence that she was acting with bad intent, that’s where it would be in the first three months.”  A review of the Search Warrant affidavit reveals that the agent withheld the true focus of the search from Magistrate Judge Fox.
  23. Although Magistrate Fox approved the issuance of the search warrant, many have questioned whether the affidavit supported a finding of probable cause.  Recently released text messages from FBI attorney Lisa Page to FBI agent Peter Sztrok on October 27, 2016, the date Comey decided to notify Congress of his decision to search the laptop, demonstrates that Page was “completely INFURIATED with [FBI general counsel] Jim [Baker]” and was concerned with whether there was probable cause to proceed. “Please, let’s figure out what it is we HAVE first.  What if we can’t make out PC?  Then we have no further investigate step.”  (DOJ-PROD 0000303-304, pages 137-8 in Appendix C – Documents released by the U.S. Senate Committee on Homeland Security & Governmental Affairs on February 6, 2018 at https://www.hsgac.senate.gov/library, a copy of which is attached hereto as Exhibit 7.) Given the internal dispute at the FBI concerning probable cause for the search warrant, and the fact that no incriminating evidence was ever found, the public should be permitted to review the unredacted warrant in full to determine if the FBI handled the search properly.
  24. The public has a right to know the name of the agent, so that further inquiries can be made to determine what exactly happened and why.  On or about April 24, 2017, FBI Special Agent E. W. Priestap filed a lengthy declaration in the case of Judicial Watch, Inc. v. Tillerson (Dist.D.C. Civil Action No. 15-cv-0785) discussing his role in the Clinton e-mail investigation, a copy of which is attached as Exhibit 8.  There is no reason that his or another agent’s names cannot be disclosed on the Search Warrant affidavit. The Solicitor General of the U.S. Department of Justice Michael Horowitz is also conducting an investigation concerning pre-election actions by the FBI.  Therefore, the public interest in reviewing the conduct of governmental affairs is paramount and greatly outweighs any privacy interest of the agent.
  25. Finally, rather than address the 1991 holding of the D.C. Circuit in Morgan v. Department of Justice, Mr. O’Neill instead stated that “the FBI lacks authority to consider the releasability of this information under the FOIA,” citing the 1980 ruling in GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 384-86 (1980).  Mr. O’Neill did not mention that the GTE case concerned a protective order, rather than a sealing order, and that the D.C. Circuit had expressly distinguished and limited the holding in GTE in the Morgan case, when it found that the mere existence of a sealing order was not sufficient grounds for withholding information under FOIA.
  26. Plaintiff has a right receive an unredacted copy of the Search Warrant and related documents under 5 U.S.C. § 552(a)(3), and there is no legal basis for defendant’s refusal to remove the improper redactions.

WHEREFORE, plaintiff requests this Court:

(1) Order defendant to provide unredacted copies of the requested documents;

(2) Expedite this proceeding as provided for in 28 U.S.C. § 1657;

(3) Award plaintiff costs and reasonable attorneys fees in this action, as provided in 5 U.S.C. § 552(a)(4)(E); and

(4) Grant such other and further relief as may deem just and proper.