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 of 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. 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 7.  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.
  24. 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.
  25. 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.

A Nachod Riddle Solved At Last

Megan Nachod converted twice to Judaism.  Growing up in Iowa and Ohio, she first was attracted to Jewish culture through Sidney Taylor’s All-of-a-Kind Family about five sisters growing up in New York City around 1900.  In graduate school in Cincinnati, she attended a Passover seder with the family of her friend Stephanie Kaplan.  Always a lover of history, Megan felt drawn to a religion that encouraged adherents to discuss events that took place thousands of years earlier.  She went through a Reform conversion.  Some years later, she went to an Orthodox Beit Din for good measure. Megan has worked for many years in the field of early childhood learning, directing programs for several congregations and the Jewish Federation in Philadelphia.

Megan first contacted me almost twenty years ago after she found her surname listed by me on JewishGen, the Internet hub for Jewish genealogy. My great-grandmother Pauline Nachod was born 1848 in Prague to Josef and Karoline Nachod.  Pauline’s family were members of the famed Altneuschul, the oldest surviving medieval synagogue in Europe.  Her grandfather Gabriel Nachod was a cantor and marschalik, a type of Jewish wedding-singer.  According to Alexandr Putik of the Jewish Museum of Prague, the Nachod family was closely connected with the rabbinic Horowitz family, and the two families are buried together in a section of the old Prague cemetery.  Both Nachod and Horowitz are toponyms, meaning the names are derived from the names of towns near Prague.

Megan was curious to know if we were somehow related.  The Nachod surname was very rare and she had not found anyone else with the name.  Her father is the fourth in a line of four Julius Nachods.  The first Julius was born in Hungary in 1846 and came to Philadelphia where he founded the Class and Nachod Brewery in 1896 and helped build a church in Glenside. Megan said Julius’ parents were Joseph and Franziska Nachod.  Although her family was Christian, I guessed that Megan’s ggg-grandfather Joseph and my gg-grandfather Josef might have been cousins, but at the time, we couldn’t find any proof of a connection between our families.

This week I decided to reach out to Megan and see if we could use any of the newer research available online to help figure out if we were related.  Megan had still not been able to get past her ggg-grandparents Joseph and Franziska.  I decided to search on Ancestry.com and quickly found lots of records of Megan’s American family.  Julius appears already in the 1870 census in Philadelphia.  In 1901 he applied for a passport and listed his place of birth as Kunszentmárton in Hungary. In a Facebook message, Megan confirmed this and said that his father Joseph “was a medical doctor and worked for a count with a large estate.”  I replied, “I wish Josef was named Philipp. Then it would all make sense. My ggg-grandfather Josef had an older brother Philipp, b. 1804, who studied medicine in Vienna and was baptized and disappeared without any trace.”

Just then, I decided to try a simple Google search of “Kunszentmárton Nachod.”  The first result was a pdf in Hungarian with one single mention of a Fülöp József Nachod, a doctor who gave the small pox vaccine to 158 children in the town in 1840.  Megan’s “Joseph” was actually Philipp Joseph, the older brother of my gg-grandfather!  (The middle name “Joseph” must have been given to him when he was baptized.) In an instant, two family riddles were solved.

I had been trying to find Philipp’s family for many years. My great-aunt Ottilie, who miraculously survived WWII in Berlin, left behind a tiny handwritten note that said “Our grandfather [Josef Nachod] was not allowed to study [at a University], because his older brother went to study and as a result was baptized and stricken out of the family.”  In the State Archives in Prague, I found a record that said that Josef’s older brother Philipp had been baptized in Vienna in 1831.  I even found a publication from 1829 that listed Philipp as a student in the Army Medical School in Vienna.  But until now I had never figured out what happened to him.

Having linked our Nachod families, I took another look and realized that Franziska Pivany, the wife of Philipp Nachod, also came from a Prague Jewish family. Her father Julius born 1790 in Prague, was also a doctor and came with his wife Anna to New York in 1854, following their other daughter Mary, who had emigrated to the United States in 1850 with her husband Charles Morningstar (Morgenstern).  Julius Nachod must have come to America at the invitation of his aunt and maternal grandparents.

Megan says that this week has been one of the most emotional of her life.  Having firmly established herself as a Jew, she is thrilled to find that she too has Jewish roots, and a new fourth cousin once removed in Los Angeles.

How I discovered my cousin, the Dodger

This article was published in the Jewish Journal on October 26, 2017.

A couple years ago, after center fielder Joc Pederson spectacularly debuted with the Los Angeles Dodgers, I decided to look into his family tree.

What a tree it is. Pederson’s mom, Shelly Cahn, has a remarkable Jewish background. Shelly’s paternal great-grandfather, Leopold Cahn, was born March 13, 1864, in San Francisco. Leopold’s grandparents came from Bouxwiller in Alsace, France, and have typical Jewish surnames from that region: Cahn, Loeb, Weyl and Bamberger. And on and on.

Some people like to do crossword puzzles. I like to do genealogy.

I got started in third grade with a family tree assignment. You know how it is when you’re a kid and you find out you’re good at something? I wish it had been baseball, but it turned out to be genealogy.

After consulting with my maternal grandmother and a new biography on my paternal grandfather, Austrian composer Arnold Schoenberg, I came back to school with an enormous, deep family tree, stretching back to the 1700s.

From then on, genealogy was my passion.

Amazingly, after 40-plus years, I keep finding new things. As resources become available online and get indexed, searching for new clues is just too much fun.

But in between discoveries of my own, I like to keep busy by working on other people’s trees. That’s how you really learn to be a genealogist.

A while back, I started a project on Geni.com, my favorite genealogy platform, to explore the family trees of famous Jews throughout history. It’s called the Jewish Celebrity Birthday Project, and it lists all of the famous Jews I can find, with links to their family trees.

We’ve got all the Nobel Prize winners, the musicians, actors, politicians, even the baseball players. You can click on a name, and Geni’s World Family Tree will tell you how you’re connected to them — if not directly, then cousin to cousin to cousin.

For Jews, a connection is pretty much automatic. It turns out we’re all pretty closely related.

As for Joc Pederson of the Dodgers, let’s keep following his branches.

His Cahn ancestors came first to New Orleans in the 1840s. Leopold’s father, Israel, was a wool merchant. He and his brothers moved on to Monterey, Calif., and ended up in San Francisco, where they were charter members of Temple Emanuel. Shelly’s paternal grandmother, Zelda Sugarman, was born in 1907 in San Francisco, one year after the great earthquake, to parents who had emigrated from Russia around 1889. Her father, Michael, owned an iron and metal business.

The family of Shelly’s mother, Suzanne Heyman, is even more fascinating. Suzanne’s paternal grandfather, Samuel Heyman, was born Feb. 20, 1869, in New York to a family of German immigrants from Glückstadt in Schleswig-Holstein, while her grandmother, Fannie Morris, was born Oct. 4, 1873, in San Francisco. Fannie’s father was from Poland, but her mother, Bessie Adler, was born in New York in 1857 to parents from Poland and Germany.

Suzanne’s maternal grandfather, Charles Weil, was born Dec. 12 , 1871, in Hornersville, Mo., before his family moved to Modesto, Calif. His father was from Germany, but his mother, Fannie Parara, was born Sept. 2, 1852, in Providence, R.I. Fannie’s father was Salomon Abraham Rodrigues Pereira, born Nov. 9, 1809, in Amsterdam, descended on his father’s side from that city’s large Sephardic community, with ancestors also named Querido, d’Aguilar, Barzilay, Quiros, Provencal, Belmonte, Tartas, Abendana and Baruch. Salomon’s mother, Meintje Levie de Goede Stodel, was not Sephardic, but also descends from a large Dutch-Jewish family, as did Salomon’s wife, Mietje Halberstadt.

Finally, Suzanne’s maternal grandmother, Ancie Weil, was born January 20, 1878 in Shasta, Calif., to parents from Germany. Ancie’s father, Joseph Anschel Weil, was born Aug. 30, 1841, in Steinsfurth and was an early pioneer in Shasta. In a book on Old Shasta, you can see an old photo of Joseph and his brother David, early vintners in the area.

Joseph Weil

Using the genealogical resources we have available online today, I could come up with this tree for Joc Pederson’s maternal ancestors in a matter of hours, while watching him play a game. It turns out we’re not that distantly related. The niece of Joc’s great-great-great-grandmother Fannie Weil (Parara) married Joseph Stampfer, my second cousin three times removed.

Is that close enough to ask for tickets to the World Series?


E. Randol Schoenberg is an attorney and a law lecturer at USC.

Voting Rights for Non-Citizens

On September 10, 2017 on Facebook I posted the following question:

Can California establish a new form of state citizenship? It wouldn’t be valid for the federal government, but what if we offered to make immigrants into “California citizens”?

We could allow them to vote in local and state elections, allow them to work and pay taxes, etc etc. We could have them and their employers pay to California the taxes that otherwise would go to the federal government, and then use that money to provide social services: health insurance, welfare, social security, etc.

If we can legalize marijuana even though it is illegal under federal law, why not also do this for our undocumented residents?

Basically, what I am saying is why not model on a state level the new immigration law that we would like the federal government to pass?

Some good comments and questions from my friends led me to consider this question more deeply.  I am setting up this blog post to assemble what I have found.

First, the current law:

Cal. Const. Art II, Sec 2 states: “A United States citizen 18 years of age and resident in this State may vote.”

Cal. Elections Code provides: § 2000. (a) Every person who qualifies under Section 2 of Article II of the California Constitution and who complies with this code governing the registration of electors may vote at any election held within the territory within which he or she resides and the election is held.
(b) Any person who will be at least 18 years of age at the time of the next election is eligible to register and vote at that election.
(c) Pursuant to Section 2102, any person who is at least 16 years of age and otherwise meets all eligibility requirements to vote is eligible to preregister to vote, but is not eligible to vote until he or she is 18 years of age.
(Amended by Stats. 2015, Ch. 728, Sec. 1. Effective January 1, 2016. Operative September 26, 2016, when the Secretary of State issued the certification prescribed by Stats. 2015, Ch. 728, Sec. 88.)

Therefore, in California only United States citizens may vote.  Note that the California Constitution does not expressly prohibit non-citizens from voting.

I was very interested to learn that there are other people thinking about whether non-citizens should be allowed to vote in our state elections.  On August 3, 2017, an opinion piece by Joe Mathews appeared in the Fresno Bee with the headline “Let’s Give Our Non-Citizen Neighbors the Right to Vote in California.”  A similar opinion piece, “Give Non-Citizens the Right to Vote? It’s Only Fair” was authored by Ron Hayduk on December 22, 2014 in the Los Angeles Times.  Hayduk, now an assistant professor of political science at San Francisco State University, has an entire website devoted to the subject of immigrant voting.  So I’m not the only one currently thinking about this question.

It turns out there is a long history of non-citizen voting in this country, and since the 1970s, there have been quite a lot of discussion of the issue, and even several legal decisions on the subject.  Here are some of the key sources:

Leon E. Aylsworth, “The Passing of Alien Suffrage” The American Political Science Review, Vol. 25, No. 1 (Feb., 1931), pp. 114-116. (“During the nineteenth century, the laws and constitutions of at least twenty-two states and territories granted aliens the right to vote.”)

Gerald M. Rosberg, Aliens and Equal Protection: Why Not the Right to Vote?, 75 Mich. L. Rev. 1092, 1093-94 (1977).

Jamin Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. Pa. L. Rev. 1391 (1993).

Virginia Harper-Ho, Noncitizen Voting Rights: The History, the Law and Current Prospects for Change, 18 Law & Ineq. 271 (2000).

Adam B. Cox, Citizenship, Standing, and Immigration Law, 92 Cal. L. Rev. 373 (2004).

Tara Kini, Sharing the Vote: Noncitizen Voting Rights in Local School Board Elections, 93 Cal. L. Rev. 271 (2005).

Bryant Yuan Yang, Fighting for an Equal Voice: Past and Present Struggle for Noncitizen Enfranchisement, 13 Asian Am. L.J. 57 (2006).

Ron Hayduk, Democracy for All: Restoring Immigrant Voting Rights in the United States, (Routledge 2006).

Stanley A. Renshon, Noncitizen Voting and American Democracy (Rowman & Littlefield 2009)

The cases directly discussing non-citizen voting are:

Minor v. Happersett, 88 U.S. 162 (1874).

People v. Rodriguez, 35 Cal.App,3d 900, 111 Cal. Rptr. 238 (1973).

Padilla v. Allison, 113 Cal. App. 3d 784, 113 Cal.Rptr. 582 (1974).

Skafte v. Rorex, 553 P.2d 830 (Colorado 1976).

Other relevant cases include:

Kramer v. Union Free Sch. Dist No. 15, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969) (property requirement for school district elections violates Equal Protection Clause).

Sugarman v. Dougall,  413 U.S. 634, 93 S. Ct. 2842, 37 L. Ed. 2d 853 (1973) (citizenship requirement for state civil service employment violates Equal Protection Clause).

Here is what we can glean from all of these sources:

  1. There are at least three classes of non-citizens or resident aliens: legal permanent residents, nonimmigrants, and undocumented immigrants.  DACA recipients may be a fourth class, undocumented but given a quasi-legal status.
  2. The federal Constitution does not give non-citizens or resident aliens a right to vote in State elections; nor does it prohibit non-citizens or resident aliens from voting in state and local elections.
  3. Non-citizens or resident aliens have been considered a “suspect class” entitled to “due process” and “equal protection” under the Fourteenth Amendment, which provides “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
  4. Laws that disadvantage people on the basis of race or national origin are subject to strict scrutiny, meaning that the law must further a compelling state interest and must be narrowly tailored to serve that interest.  However, laws that disadvantage aliens have been subject to varying standards of review, including the much more lax rational basis test, requiring only that the law must be rationally related to some legitimate government interest.  Strict scrutiny: Graham v. Richardson, 403 U.S. 365, 372 (1971) (denying welfare benefits to aliens not meeting a residency requirement); In re Griffiths, 413 U.S. 717 (1973) (forbidding aliens to practice law); Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572 (1976) (civil engineering); Nyquist v. Mauclet, 432 U.S. 1 (1977) (financial assistance for higher education); Bernal v. Fainter, 104 S.Ct. 2312 (1984) ( notary public); Dandamudi v. Tisch, 686 F.3d 66, 81 (2d Cir. 2012) (license to practice as a pharmacist).  Rational basis testAmbach vNorwick, 441 U.S. 68 (1979) (prohibiting the certification of non-citizen teachers); Mathews vDiaz, 426 U.S. 67 (1976) (federal medical insurance); Plyler vDoe, 457 U.S. 202 (1982) (public education for immigrant students); LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005) (bar admission); Van Staden v. St. Martin, 664 F.3d 56 (5th Cir. 2011) (nursing); League of United Latin American Citizens (LULAC) v. Bredesen, 500 F.3d 523 (6th Cir. 2007) (bar admission).  Note that in Plyler, the attempt to exclude undocumented immigrant students from public schools did not pass the rational basis test.

In California, two appellate cases in the 1970s applied strict (or close) scrutiny and still found “no reason to require the state to grant the voting franchise to a class of persons who are not required to be enfranchised under the Fourteenth Amendment.”  Padilla v. Allison, 38 Cal.App.3d at 787 (citing People v. Rodriguez, 35 Cal. App. 3d 900 ).  (Note that current federal district court Judge Terry J. Hatter was attorney for the Plaintiff in Padilla v. Allison.)

That would seem to end the inquiry, but I think it is worth looking a bit more closely.  In Rodriguez and Allison, the Court was addressing a facial challenge to the California law barring non-citizens from voting.  Because the U.S. Supreme Court had previously stated as dictum in Sugarman that a state could constitutionally limit the franchise to citizens, the California court simply assumed that the state had legitimately done so.  The parties apparently presented no evidence to the contrary.  What the Court did not do is investigate the history of the California law.  That history makes the citizenship rule much more problematic, and difficult to uphold.

The legal issue not previously addressed is set forth in the infamous gerrymandering case, Gomillion v. Lightfoot, 364 U.S. 339, 347-8 (1960):

When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. This principle has had many applications. It has long been recognized in cases which have prohibited a State from exploiting a power acknowledged to be absolute in an isolated context to justify the imposition of an “unconstitutional condition.” What the Court has said in those cases is equally applicable here, viz., that “Acts generally lawful may become unlawful when done to accomplish an unlawful end, United States v. Reading Co., 226 U. S. 324226 U. S. 357, and a constitutional power cannot be used by way of condition to attain an unconstitutional result.” Western Union Telegraph Co. v. Foster, 247 U. S. 105247 U. S. 114.

Put another way, a state has the right to do certain things, but not for an illegitimate reason or to achieve an unlawful result.  In Gomillion this meant that a state could draw boundaries to its cities, but it could not do so to exclude blacks from the city.

So the big question that needs to be answered is: why did California only give citizens the right to vote?  If the citizenship rule was simply shorthand for racism, then the law may be unconstitutional. Let’s take a look at the history.

The 1849 Constitution of California provided as follows:

ARTICLE II
RIGHT OF SUFFRAGE
Sec. 1 – Every white male citizen of the United States, and every white male citizen of Mexico, who shall have elected to become a citizen of the United States, under the treaty of peace exchanged and ratified at Queretaro, on the 30th day of May, 1848 of the age of twenty-one years, who shall have been a resident of the State six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law: Provided, nothing herein contained, shall be construed to prevent the Legislature, by a two-thirds concurrent vote, from admitting to the right of suffrage, Indians or the descendants of Indians, in such special cases as such proportion of the legislative body may deem just and proper.

And here is the 1879 Constitution of California:

ARTICLE II.
RIGHT OF SUFFRAGE.
Section 1. Every native male citizen of the United States, every male person who shall have acquired the rights of citizenship under or by virtue of the treaty of Queretaro, and every male naturalized citizen thereof, who shall have become such ninety days prior to any election, of the age of twenty-one years, who shall have been a resident of the State one year next preceding the election, and of the county in which he claims his vote ninety days, and in the election precinct thirty days, shall be entitled to vote at all elections which are now or may hereafter be authorized by law; provided, no native of China, no idiot, insane person, or person convicted of any infamous crime, and no person hereafter convicted of the embezzlement or misappropriation of public money, shall ever exercise the privileges of an elector in this State.

Clearly, racism was a big part of California’s early voting laws.  The original law essentially limited the vote to white male citizens.  A review of the debates from the 1849 Constitutional Convention amply demonstrates the racism of the delegates.  (For example, see pages 34-38 and 61-76.) There is much talk of the need to exclude Indians, non-white Mexicans and Blacks.  Amendments providing that “no member/inhabitant of this State shall be disfranchised,” based on the Constitution of New York, were discussed at length and rejected.  Delegate Lanford Hastings, later a Major in the Confederate States Army during the American Civil War, objected: “Whether it is designed or not, the adoption of this section of the bill of rights would secure to certain classes, Indians and Africans (if Africans are ever introduced here), precisely the same rights that we ourselves enjoy.” Charles T. Botts successfully inserted the word “white” into the clause on suffrage in order to limit the eligibility of certain Mexicans who had been offered citizenship but had not yet been admitted by Congress pursuant to the Treaty of Guadalupe-Hidalgo.  “It was clear that by the adoption of the clause reported by the Committee, citizens of Mexico would be excluded from voting before they were made citizens of the United States by the Congress of the United States.  His amendment was to insert the word ‘white’ before ‘male citizens of Mexico.’”  Pablo de la Guerra of Santa Barbara (called “Noriego” in the transcript, presumably because he was the son of José de la Guerra y Noriega), the lone white Hispanic delegate to speak on the issue, argued in favor of permitting some acceptable Indians to vote, but at the same time averred “if by the word ‘white,’ it was intended to exclude the African race, then it was correct and satisfactory.” With regard to Indians, Hasting successfully argued, “It would be a most injurious measure to permit the Indians of this country to vote. There are gentlemen who are very popular among the wild Indians, who could march hundreds up to the polls. There is no distinction between an Indian here and the remote tribes. An Indian in the mountains is just as much entitled to vote as anybody, if Indians are entitled to vote.”  In the end, the Convention added a provision that would allow an Indian to vote only upon special vote of the Legislature.

Hostility towards African-Americans was commonplace. Morton McCarver proposed an amendment copied from the Missouri Constitution against the immigration of “free persons of color” which was debated for two days before being rejected.  McCarver was an unabashed racist, offering statements such as “No population that could be brought within the limits of our Territory could be more repugnant to the feelings of the people, or injurious to the prosperity of the community, than free negroes.” Newspaperman Bob Semple, who presided over the Constitutional Convention, concurred: “I can assure you, sir, thousands will be introduced into this country before long, if you do not insert a positive prohibition against them in your Constitution—an immense and overwhelming population of negroes, who have never been freemen, who have never been accustomed to provide for themselves. What would be the state of things in a few years? The whole country would be filled with emancipated slaves—the worst species of population—prepared to do nothing but steal, or live upon our means as paupers.”  The proposal failed presumably because a majority of the delegates thought that it might hamper the State’s admission into the United States, not because there was any overwhelming tolerance for African-Americans.

In Wisconsin, the debate on suffrage at the first Constitutional Convention in 1846 was equally racist but a bit more accommodating of whites who intended to become citizens. That state extended the right to vote not only to “White citizens of the United States” but also to “White persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization.” Wisconsin Constitutional Convention (1848), Article III, Section 1, 2d. The convention debated and rejected a proposed amendment to take away the right to vote of any immigrant who resided in the state for six years but did not become a citizen.  Moses M. Strong, an opponent of negro suffrage, declared that “he did not think that the citizenship of the elector had anything to do with voting. This was a difference not commonly taken and understood by those who talk on this subject. A man may be a citizen and not be a voter, and so he may be a voter and not be a citizen of the state or of the United States. The power to make foreigners citizens of the United States belongs to the United States; the power to prescribe the qualifications of electors has been lodged in the states, plainly showing that they are distinct powers.”  Suffrage debates during first convention, Wisconsin Historical Collections, vol. 27 (Madison: State Historical Society of Wisconsin, 1919): 210-220, at 219. There is no indication that the California Constitutional Convention of 1849 considered extending suffrage to white males who had declared their intent to become citizens.  In any case, that option was never available to non-whites.

It would be wrong to assume that the citizenship requirement for suffrage was unrelated to race.  For example, at the time, it was assumed that only whites could avail themselves of federal naturalization laws to become American citizens.  See Charles J. McClain, Jr., The Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870, 72 Cal. L. R. 529, 538 n. 46. The Naturalization Law of 1802 made only a “free white person” eligible for naturalization. Indeed, in Chancellor James Kent’s influential Commentaries on American Law, the author had expressed doubt whether any of the “yellow or tawny races of Asiatics” could ever become citizens. 2 J. Kent, Commentaries on American Law 72 (3d ed. 1836). Dispelling any doubts, the California Supreme Court in 1854 affirmed that whites only meant whites only. People v. Hall, 4 Cal. 399 (1854). Reversing the conviction of a white man on the testimony of a Chinese witness, the Court explained:

We have carefully considered all the consequences resulting from a different rule of construction, and are satisfied that even in a doubtful case, we would be impelled to this decision on grounds of public policy. The same rule which would admit them to testify, would admit them to all the equal rights of citizenship, and we might soon see them at the polls, in the jury box, upon the bench, and in our legislative halls. This is not a speculation which exists in the excited and over-heated imagination of the patriot and statesman, but it is an actual and present danger. The anomalous spectacle of a distinct people, living in our community, recognizing no laws of this State, except through necessity, bringing with them their prejudices and national feuds, in which they indulge in open violation of law; whose mendacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference, is now presented, and for them is claimed, not only the right to swear away the life of a citizen, but the further privilege of participating with us in administering the affairs of our Government. These facts were before the Legislature that framed this Act, and have been known as matters of public history to every subsequent Legislature. There can be no doubt as to the intention of the Legislature, and that if it had ever been anticipated that this class of people were not embraced in the prohibition, then such specific words would have been employed as would have put the matter beyond any possible controversy. For these reasons, we are of opinion that the testimony was inadmissible. People v. Hall, 4 Cal. 399, 404-5.

Chinese immigrants soon became the target of laws seeking to exclude them from the State. On April 28, 1855 California Governor John Bigler approved a bill captioned “An Act to Discourage the Immigration to this State of Persons Who Cannot Become Citizens,” requiring a $50 tax for each passenger who was not eligible for state or federal citizenship. 1855 Cal. Stat. 194. The law was ruled unconstitutional on the grounds of interference with federal power to regulate commerce in 1857 and repealed only in 1955.  People v. Downer 7 Cal. 169 (1857).

Even in 1879, after the 15th Amendment had been enacted, the California delegates insisted on denying the vote to any “native of China.”  Under the influence of Denis Kearney‘s Workingmen’s Party of California, the new Constitution declared:

The presence of foreigners ineligible to become citizens of the United States is declare to be dangerous to the well being of the State, and the Legislature shall discourage their immigration by all means within its power. Asiatic coollieism is a form of human slavery, and is forever prohibited in this State; and all contracts for coolie labor shall be void. All companies or corporations, whether formed in this country or any foreign country, for the importation of such labor, shall be subject to such penalties as the Legislature may prescribe. The Legislature shall delegate all necessary power to the incorporated cities and towns of this State for the removal of Chinese without the limits of such cities and towns, or for their location within prescribed portions of those limits; and it shall also provide the necessary legislation to prohibit the introduction into this State of Chinese after the adoption of this Constitution.

A few years later, the federal Chinese Exclusion Act of 1882 not only restricted new immigrants, but also made it impossible for state and federal courts to grant citizenship to resident aliens from China.  Chinese nationals remained ineligible for citizenship by naturalization until 1943.  For a detailed description of the numerous anti-Chinese laws, see All Persons Born or Naturalized . . . The Legacy of Wong Kim Ark.

Therefore, in light of the history of United States naturalization laws, the citizenship requirement for the right to vote in California must be seen as part of the effort to exclude non-whites from the franchise. There is no evidence that the citizenship requirement served any other purpose. White aliens could become citizens merely by complying with the Naturalization Law of 1802, which required 5 years of residence and a declaration of intent filed two years before admission. The subsequent history of immigration laws in the United States up to the present day is riddled with attempts to use those laws to protect the white majority population from non-white immigrants (as well as from Jews and Catholics). Therefore, any suffrage law tied to citizenship necessarily incorporated the overt racist elements of those laws.

What does this mean with regard to the constitutionality of California’s citizenship requirement for suffrage? It means that the law could be deemed an unconstitutional rule designed to deprive non-whites of equal protection and due process.  This issue deserves a much closer inspection than I can give on this blog, but let me start with some ideas.

The fact that American immigration laws might be constitutional, although historically designed to be racist in effect, might not save a state law that is based on those laws. There are many things that the federal government may do that states cannot.  For example, under the equal protection principle of “one person, one vote” a state could not set up a government with a Senate with disproportionate representation like the one that we have in our federal government.  A state cannot rely on the racist outcome of a federal law to insulate its law from an equal protection challenge.

Put another way, if state voting rights are not necessarily determined by national citizenship, what would the basis be for using national citizenship as a determinative criteria for granting state voting rights?

A challenge to California’s citizenship requirement for suffrage could succeed if it could be proven that the law was intended to and did discriminate against racial minorities at the time it was first enacted.  It would also help to demonstrate that the law continues to discriminate against minorities. The Immigration and Nationality Act Amendments of 1965, which form the basis of our current immigration system based on family reunification, were intended, even by their most liberal advocate Senator Edward Kennedy, to preserve and “not upset the ethnic mix of our society.”  U.S. Senate, Subcommittee on Immigration and Naturalization of the Committee on the Judiciary, Washington, D.C., Feb. 10, 1965. pp. 1–3.  For a state to rely on such an obviously racially motivated outcome, the state must demonstrate a compelling state interest, and prove that the law is narrowly tailored to achieve that interest.  Given the long history of non-citizen voting in the United States, such a compelling interest would be difficult to justify.

Perhaps this analogy will help clarify the issue.  Let’s say that the University of California had a history of admissions policies that tracked United States immigration and naturalization laws.  Initially, the University would have admitted only whites.  After many decades of that policy, in response to an increasing number of Jewish and Catholic applicants, the University established an admissions policy using national origin quotas based on the ethnic mix of the student body at the time.  Several decades later, the University adopted a more neutral-looking policy that admitted mainly children of alumni so as not to upset the ethnic mix of the student body.  Now let’s say that California only allowed graduates of the University of California to vote.  Would anyone think that was ok?

The way forward

 

For the record, I first posted these thoughts on Facebook on April 7, 2017:

Here’s the new Democratic Party playbook, if things go as they seem to be going. It’s all about 2020. The key will be when the upcoming Trump recession ends. If it starts too soon, and ends in time, Trump could win a second term, like Reagan did in 1984. But if it starts later, or doesn’t recover enough by November 2020, he and the Republicans are toast, like in 1992 and 2008.

You’ll have an indication that Trump is in trouble if there is a Republican primary challenge. It’s very likely to be Rand Paul, as things stand today, but I wouldn’t count out Cruz and Rubio or even Kasich. All could mount a significant challenge. Even Ryan is a possibility. Any primary or independent challenge would likely be a death knell for Trump, as it was for Carter (Kennedy, Anderson) in 1980 and Bush (Buchanan, Perot) in 1992.

If Trump is weak, the Democrats stand a good chance to gain control of both the House and Senate, as well as the Presidency, as they did in 1992 and 2008. Remember, the high water mark for the Democrats was in 2008, just eight years ago, when they had 58 Senators (plus 2 independents) and a 257-178 advantage in the House. The Republicans peaked in 2014-2016 with 54 senators in 2014 and 247 members in the House in 2016. It’s all downhill for them from here.

The one fear I had if Clinton had won in 2016 was the Republicans taking it all in 2020, a critical census year. Now that feared result has been turned on its head into an amazing opportunity. An across-the-board Democratic win in 2020 would result in an unprecedented and momentous turning point for the country.

After 1992 and 2008, the Democrats were held back by the Republican filibuster and the 60-vote cloture rule in the Senate. Now, thanks to Mitch McConnell, those rules are no longer an impediment. Next time the Democrats are in charge, look for the complete elimination of the filibuster, followed by:

1) An immigration bill allowing a quick path to citizenship for up to 10 million undocumented US residents (soon to become Democrats). This will quickly turn Arizona, Texas and Florida into reliable Democratic states.

2) A $15/hour national minimum wage

3) Single-payer universal health care

4) An increase of seats on the Supreme Court, taking back the majority that the Republicans just stole. (This has been done in the past and will be done now again.)

5) A large raise in the debt ceiling, followed by a massive infrastructure program.

6) Laws against Republican gerrymandering of Congressional districts and voter suppression efforts.

7) Statehood for Puerto Rico and the District of Columbia.

Note that once done, all of these are almost impossible to reverse. Of course there would also be tax increases on the wealthy, as well as the reimposition of bank regulations and environmental protections deleted by the Trump administration. And look for national gun control and abortion rights legislation. Those could be changed back by a future Republican administration, but given the political reforms, the return of the Republicans to power will be more difficult and would require a shift in policies.

As you see, I am ever the optimist. But this can, and very likely will, happen. You read it here first.

Here’s what I wrote on Facebook on June 9, 2017:

When Democrats take back the Senate, we’re going to have to make sure that this type of thing never happens again. That will mean making some tough decisions. It means repairing the damage the Republicans are doing to our country, as well as ensuring that they cannot do it again. We’re going to have to do away with the filibuster (at least temporarily) and enact important legislation, including: (1) statehood for Puerto Rico and Washington, D.C., (2) citizenship for up to 10 million immigrants, (3) laws against gerrymandering, (4) laws protecting the right to vote, (5) campaign finance reform, (6) adding two seats to the Supreme Court, and so on. We need to do this to save our democracy, so that a small minority cannot run roughshod over the rights of the rest of us.

What is the FBI hiding?

In May I submitted a FOIA request seeking:

All memos directly related to the October 27, 2016 meeting between FBI Director James Comey and the investigative team focused on Secretary Hillary Clinton, as described in Mr. Comey’s May 3 testimony before the Senate Judiciary Committee (attached).  In particular I am interested in any memos or e-mails related to the decision to seek a search warrant to search Secretary Clinton’s e-mails, and the decision to notify Congress on October 28 2016 concerning the e-mails.  I also would like any documents identifying the participants in that October 27, 2016 meeting.  I also want all documents related to the advice given by the “junior lawyer” who asked Director Comey “should you consider that what you’re about to do may help elect Donald Trump president?,” as reported by Directory Comey in his May 3 testimony before the Senate Judiciary Committee.

Today comes the response:

No records responsive to your request were located.  For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA.  See 5 U.S.C. §552(c) (2006 & Supp. IV (2010)) This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.

So, folks, any guess which exclusionary provisions of 552(c) they think they can rely on to prevent disclosure?  I’m not seeing any that apply.

Here’s 552(c):

(c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) [“records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings”] and— (A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

(2) Whenever informant records maintained by a criminal law enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

Thoughts on Comey’s Firing

It is not secret that I have long thought that James Comey must be terminated as Director of the FBI.  See my previous blogs from November 14, January 22, and May 3. His grave errors of judgment last year single-handedly threw the election to Donald Trump, the most unstable, mean-spirited and incompetent President in the history of our great country.

I was therefore elated with the news this week that Comey had been fired.  I was invited to speak on CNN International in two segments ( 1, 2) on Tuesday, and was obviously gleeful. But it turns out I was just about the only Democrat who was truly happy with the news. Almost instantaneously, Democratic politicians and commentators flooded the airways with statements denouncing the President’s dismissal of Comey.  I felt, and still feel, that this reflexive “if he’s for it, I’m against it” response was misguided, both on the merits and as a matter of politics.

First, on the merits.  While between segments on CNN I got in a heated debate in the green room with former FBI agent Steve Moore, although I had largely agreed with him in our segment a few minutes earlier.  Our disagreement was over his contention that Hillary Clinton should have been prosecuted.  That belief, which prevails overwhelming in Republican and even some Democratic circles, is completely indefensible.  The reason is that the law that Clinton was accused of violating, 18 U.S.C. 793 (e) and (f) of the Espionage Act does not apply to the facts.  As former military prosecutor and current U.S. Army Judge Advocate John Ford has explained, the law was designed to combat German espionage during World War I and has been narrowly interpreted since that time. In a 1941 US Supreme Court case, Gorin v. U.S.the law was interpreted to require a bad faith intent to benefit a foreign power and damage the national defense.  The Espionage Act has been used only sparingly in the most egregious spying cases.  But an even closer look at the statute reveals a further problem in this particular case: there is no parsing of the law that can possibly apply simply to sending, receiving or storing e-mails on a private server, activities no one ever imagined when the law was drafted 100 years ago.

Dan Abrams did a great job last April analyzing the text of the law, but there’s more that can be said.  Section 793(e) concerns the transmission of information relating to the national defense to someone not entitled to receive it, or retaining information and failing to deliver it to the person entitled to receive it. The first portion (sending information to someone who isn’t entitled to see it, like passing on secrets to a foreign agent) has never been alleged against Clinton, and the second (retaining info and not delivering it, like hiding someone’s mail) is also inapplicable. These provisions cover active espionage. So take a close look at 793(f), which is the only other section relied on in the search warrant obtained against Clinton on October 30.  It covers a person who has information relating to the national defense who “through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.” That is the section most of the commentators have focused on, and the debate has been about “gross negligence” or the intent standard imposed by the Supreme Court in Gorin. But as far as I can tell, none have really looked closely at the word “removed.”

If you saw the film Snowden last year, you saw Joseph Gordon-Levitt as Snowden put a bunch of data on a usb drive at work and sneak it out of the top-secret compound in a Rubik’s cube.  That’s the type of “removal” that the Espionage Act is designed to prosecute.  You physically take something away from one place and put it somewhere else. But that’s never been what Hillary Clinton did.  Sending and receiving e-mails and storing them on a hard drive is not “removal from its proper place of custody.”  I think most people will agree that receiving and storing are not “removal,” but let me also explain why sending an e-mail is not removal. When an e-mail is sent, a new object is created for transmission and nothing is taken away.  What could be the “proper place of custody” from which the e-mail is “removed?”  The clause simply makes no sense in the context of sending an e-mail, which is not surprising given that it was drafted 100 years ago.  Sending an e-mail is a transmission, which is covered by the next clause “delivered to anyone in violation of his trust” and separately by section 793(e), which requires that the recipient be unauthorized. No one has ever alleged that any of the relatively few e-mails found on Clinton’s server that were marked classified were delivered to people who were not cleared to see them. So really there is no honest reading of the Espionage Act that would criminalize what Hillary Clinton did, which was using a private server to send, receive and store e-mails.  As many have pointed out, what she did may have violated State Department rules, but no criminal statutes. There never was any chance that the FBI would find evidence that would lead to any criminal conviction.

And yet Comey, in violation of long-standing FBI and Justice Department practices, pretended that evidence of criminality was “probable” when he authorized his officers to obtain a search warrant on October 30.  He further violated policy by making sure that the search would be made public (although filed under seal) when he sent his October 28 letter to Congress.  When a junior lawyer in his office questioned whether it was right to risk interfering with an election, Comey wrongly answered that he would not even consider that possibility, even though the Hatch Act and long-standing policies required the avoidance of interference.  Six months later, he told the Senate that he would do it again.

Last week, Comey justified his actions by admitting that he wanted to see e-mails from the period prior to the establishment of the server, supposedly because he thought those related to Clinton’s intent. Intent to do what? He’s never explained that. Clinton wasn’t prosecutable simply because the FBI didn’t have, in Comey’s own words, a “golden e-mail” proving she intended to do something wrong.  She wasn’t prosecutable because the law did not proscribe what she did, regardless of her intent.

This long-winded explanation goes to why I was so happy to hear that Comey was fired. He had revealed himself to be someone who could not properly interpret the law, even in the most significant, high profile case.  And even after having six months to reflect on what he did, he said he would do it again.  He had to go.

That my view was the unanimous view of the Justice Department was evidenced by the memo dated May 9 by Rod Rosenstein, the new Deputy Attorney General who had been approved by the Senate 94-6 just two weeks earlier.  In his memo, Rosenstein states “Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.” Rosenstein takes Comey to task for his July 5 press conference discussing the decision not to prosecute Clinton (which apparently was made weeks before).  “It is not the function of the Director to make such an announcement.” Quoting a litany of statements by former Deputy Attorneys General, Rosenstein also finds Comey’s actions in October to be severely problematic and “antithetical to the interests of justice.”  Rosenstein’s conclusion is that “the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.” In other words, Rosenstein told Trump he had no objection to firing Comey.

Some have criticized the conclusory nature of Rosenstein’s letter, but more details wouldn’t have made it nicer to Comey, only worse.  Comey’s decision-making seems to have been driven by a desire to appear impartial.  I’ve seen a lot of people, even judges, make this mistake. The law often requires officials to avoid the appearance of impropriety or partiality. But that is not a license to do actually improper things, in the hopes of appearing neutral and fair. This was Comey’s mistake. He consistently behaved as though he was compelled to do the wrong thing, in order to create the appearance of doing the right thing. In July, to avoid mounting criticism of the FBI after Bill Clinton’s meeting with Loretta Lynch, he wrongly held a press conference in which he tried to lay out a case against Hillary Clinton while at the same time supporting the decision (made weeks earlier) not to prosecute. In October, he wrongly notified Congress of a further investigation of e-mails before anything significant was found, because he worried that he would be criticized later for “concealing” the fact that they were conducting a new search. In both cases, he decided to do the wrong thing to improve his reputation for neutrality, rather than do the right thing and take unfair criticism.

Mistakes happen and can be forgiven if they are accepted, but it is clear from Rosenstein’s memo that Comey could not ever be expected to understand that he had made a mistake. Rosenstein must have been as infuriated as I was at Comey’s May 3 testimony. It didn’t help Comey that on many critical details, he got the facts wrong.  On the morning before he was fired, the FBI submitted a correction to the Senate, explaining that Comey was mistaken when he suggested that Huma Abedin had forwarded hundreds of thousands of e-mails to the e-mail address of her husband Anthony Weiner.  In fact, only a handful had been manually forwarded.  Comey’s behavior had simply become indefensible.

I never thought that Trump would actually get rid of Comey. After all, that would imply that Comey did something wrong in the lead-up to the election which he won. Since it is increasingly clear beyond any reasonable doubt that Comey’s actions swayed the election to Trump, why would Trump risk feeding the narrative that his election was illegitimate by terminating Comey?  I didn’t think he would do it.  But he did, and so I was happy, happy, happy.  The culprit who cost Clinton the election, and said he would do it again, was gone.  What could be bad about that?

Apparently, that isn’t how most Democrats saw it.  No sooner was the firing made public, when Democratic politicians began lambasting Trump for his decision, and backing off their prior antagonism towards Comey.  There have been several criticisms, some certainly fair. First, no one believed the initial claim that Trump had fired Comey simply because Rosenstein had said it was the right thing to do. That’s not how Trump operates. Everyone suspected, I am sure correctly, that Trump had other motives,  including a desire to stop Comey from talking about the investigation of the Trump campaign’s possible ties to Russian interference in the election. For me, it doesn’t really matter what Trump’s motives were. He’s insane. Just because he wants something to happen doesn’t mean he’s going to get what he wants.  His actions are just as likely to backfire and produce the opposite result. So firing Comey wasn’t a bad thing because Trump wanted to interfere with the Russia investigation, unless it actually would interfere.  And I don’t think it would.

First, I start from the point of having no confidence in the FBI actually finding any evidence of collusion between the Trump campaign and Russia, at least not at the level that would make a difference to anyone. We already know that Trump is nuts and that his campaign was filled with wackos with all sorts of bizarre backgrounds. That even a dozen of them were paid Russian agents wouldn’t make a difference to the people who voted for him, or their Republican enablers in Congress.  Russia certainly was involved in espionage and propaganda aimed at defeating Clinton, and some of it was effective.  But that is not what cost Clinton the election.  She was well on her way to winning before Comey stepped in and ruined everything by making enough people believe she was going to be indicted. Comey is the real villain of the story, not Russia. Russia was a side show. That Trump and his campaign team were aligned and conspiring with other bad people who wanted Clinton to lose isn’t going to change the calculation one bit.

Second, Comey was the director of the FBI, which means he was the figurehead, the one making big decisions, but not anywhere near the agents who are actually doing the investigating. Those folks are 3 or 4 rungs down the ladder. Removing Comey won’t affect their job one bit. If they are really investigating, they will continue. Because of the pervasive anti-Clinton (and hence pro-Trump) attitude at the FBI, my guess is that there is not much investigating going on. After all, and this was one source of my argument with Steve Moore, if the FBI wanted to find something to prosecute against Trump, they’ve had plenty of time and more than enough opportunity. It’s not like there is a dearth of allegations of wrongdoing out there. For example, what’s up with the $25k bribe he paid illegally from his charitable fund to Pam Bondi? If the FBI wanted to nail Trump, they could have done it years ago. But they don’t.  And that’s the big point. The FBI likes to pretend that it is neutral and impartial but it isn’t.  They aren’t robots sitting on a corner just waiting for crimes to pass by so they can enforce them. There are potentially millions of crimes to investigate, and agents and offices have to pick and choose where to spend their time, and that choice is the definition of politics. So I wouldn’t be holding my breath waiting for the FBI to come up with the goods on Trump. Whether Comey or someone else comes in to run the place, that investigation is likely going nowhere, because removing Trump from office is not what the rank and file wants. Compare that to the “moving heaven and earth” that Comey described with the Clinton e-mail investigation where they searched day and night for something that was never going to be there in the first place.

Still, the Democrats in Congress had to act all concerned that Comey’s removal would impede the Trump-Russia investigation and that was the story that got a lot of play for the next few days. The President and others quickly recognized this as a hypocritical about-face, and that has largely worked to deflect the attack. Did the Democrats really want Comey to still be FBI director, just because they hoped he would redeem himself by nailing Trump? That strikes me as borderline insane, given what we know about Comey. I think the opposite is more likely true. If there is any chance at all of the Trump-Russia investigation becoming significant, that chance is far greater without the self-interested shenanigans of an already discredited FBI director.

Some worry that Trump will be able to control the investigation by naming a new director. Perhaps, but that will take time, because the new director has to be confirmed by the Senate. If the new director is seen as a partisan hack, the Democrats will likely be able to make a lot of inroads attacking him. If they can do that enough to win back the House in 2018, then they can conduct their own investigation. If the new director is someone fair who has not made the fatal errors Comey did and promised to make again, then we’re all better off.  Either way, it’s a win.

My initial reaction was that Rosenstein was now going to be in charge of the Trump-Russia investigation and that could only be a good thing. With Attorney General Jeff Session having recused himself, the decision-making falls to Rosenstein, a career Justice Department official, on that matter. Rosenstein clearly needed to have Comey out of the way, as Comey had proved to everyone that he would do whatever he wanted, regardless of what the Attorney General decided. Now that problem is gone, and Rosenstein can try to get the FBI to do a proper investigation. Until this week, everyone considered Rosenstein a stand-up guy. Now that has all changed. Even some of his so-called friends are calling for him to resign. I am not at all convinced that Rosenstein is a bad actor. It is certainly possible that I am wrong.  After all, Trump nominated him, so that’s one big strike against him. But there are plenty of indications he’s a straight-shooter, and his memo supporting the removal of Comey is one of them. Some see it the other way, that he is an enabler who helped Trump remove the person he feared would lead the investigation that might result in impeachment. To believe that, you have to believe a few things that I don’t. First you have to believe that Trump is smart and has a plan.  Second you have to believe that Comey is honest and would succeed in exposing Trump.  If, like me, you don’t believe either of those things, then there is a more positive way to look at Rosenstein.

Comey was a cancer that needed to be removed for the Department of Justice to function properly. Rosenstein took advantage of a moment when his interest in removing Comey coincided with Trump’s interest in getting rid of the guy talking about the Russia investigation to Congress.  That’s how things get done in any bureaucracy. It’s not enough for the boss or the staff alone to want something. Things happen only when they both want the same thing. So, to me, it doesn’t really matter whether you want to say Trump had a design to remove Comey.  He couldn’t get it done without the Department of Justice, and they couldn’t get it done without Trump. So, just as it is wrong to suggest that Rosenstein engineered Comey’s removal, it is wrong to suggest that Trump did it. They worked together, and likely for different reasons.

We’ll have to wait and see if Rosenstein continues to maintain control of the Trump-Russia investigation or if he agrees to recommend the appointment of a special counsel, as many have demanded.  One reason I was very happy on Tuesday was that Comey’s removal made the appointment of the special prosecutor much, much more likely. It never was going to happen while Mr. Faux-Neutral Comey was around.  An independent special counsel is probably the only possible way that any criminal indictments will come from the Trump-Russia investigation, and it is also the only thing that might lead to impeachment. I don’t consider that likely, but on Monday, it was an impossibility.  Today, post-Comey, there’s a glimmer of hope.

When I began writing about Comey in November, I called for an investigation of the FBI and I think that is still necessary.  Comey testified on May 3 that he had a meeting in his office on October 27 when he and his colleagues decided “unanimously” to send that inane October 28 letter that ruined the election. That’s a conspiracy to interfere with an election and I think the American people deserve to know who else was involved. Comey no doubt has a lot of supporters at the FBI. You’ll notice that we haven’t heard from any who wanted Comey gone. They were leaking and spinning madly in his favor before the firing and have continued to do so as they try to save their skins. The press doesn’t like to bite the hand that feeds it, so many of Comey’s supporters and their misdeeds have not been reported yet.  My hope is that Inspector General Michael Horowitz will uncover what happened. He told Michael Isikoff that his report won’t be finished before the end of the year. It should be easy to ferret out the bad apples.  Just ask them whether they think Comey was correct to send his October 28 letter. Any agent who still does has to go.

It’s a common thing when you don’t have a good argument on the merits to argue the process. That’s a lot of the noise that is coming out this week in Comey’s defense.  Sure, Trump could have waited to fire him face to face, or after giving him a chance to respond, but I’m glad he didn’t. If he had, Comey might have talked him out of it and then we’d be stuck with him for good. Trump could have handled the messaging after the firing better, but he didn’t, because he never does.  There’s no painless way to fire an FBI director, no playbook for how to do it. Trump’s way was classless and clueless for sure, but that’s what he is. And for me, it’s another win, because it gives people something more to complain about. Trump’s approval ratings dropped to record lows this week.  As I said, this whole Comey thing has been a big WIn-Win-Win.

Comey is Guilty

There really is no possible scenario in which FBI Director James Comey is not guilty of a serious error in judgment, and yet he continues to maintain that if he were to do it all over, he would do the same thing.

We’ve seen in the past week a lot of new information on the scandal surrounding Comey’s decision to send a letter to Congress and reopen the Clinton e-mail investigation, culminating in today’s testimony before the Senate Judiciary Committee.   On April 22, the New York Times published a lengthy article with the headline Comey Tried to Shield the F.B.I. from Politics. Then He Shaped an ElectionHonestly, to me it seemed the New York Times had been played, and that they were basically parroting the spin their FBI sources were giving them. The gist was that Comey felt he had no choice but to do what he did. Only two things in the article really got my attention.

First, the article revealed that already in the Spring, so around March or April, the FBI had determined that there would be no prosecution. Apparently, there was never going to be an announcement. In Comey’s testimony today, he implied that when Attorney General Loretta Lynch met on the tarmac with Bill Clinton in July, only then did the FBI Director determine that he should speak publicly. He issued his statement, he said, without clearing it with Lynch.  In other words, had Clinton not met with Lynch, Comey never would have told the country that the investigation had come up with no grounds for prosecuting Clinton. He would have let Trump and his surrogates pretend that Clinton was going to jail all the way to the election.  But for some reason, Bill Clinton chatting with the Attorney General changed his mind, and he needed to speak up, not, as we all assumed, out of a sense of duty to clear the Democratic nominee, but only to save himself and his bureau from right-wing criticism, which was building after the Clinton-Lynch meeting.

One corollary of this, if what Comey says is true, is that Lynch did nothing wrong. After all, the investigation was already closed, just no one had bothered to say it publicly. Was she supposed to ignore and not speak with her old friend Bill Clinton indefinitely?  Even after Hillary had been cleared? So everyone can stop blaming Bill Clinton and Loretta Lynch.

Comey not only issued a statement saying the investigation had uncovered nothing worth prosecuting, he criticized Hillary Clinton for her e-mail practices and then testified before a House Oversight Committee, promising at one point to let the Committee know if anything new developed.

That “promise” was apparently on his mind on the morning of October 27 when Comey says the team investigating Clinton asked to meet with him. He says they disclosed that they had discovered metadata on Anthony Wiener’s laptop that showed it contained e-mails from Clinton’s Verizon/Blackberry e-mail. (Previous reports indicated that Comey was informed earlier, just days after the e-mails had been discovered by October 3.)  They were particularly interested in finding e-mails from a three month time period at the beginning of Clinton’s tenure as Secretary of State. Those e-mails, dating from before she had set up the private server in her home, had not yet been located or reviewed in the prior investigation. According to the New York Times, Comey decided to allow his team to reopen the investigation, seek a search warrant to review the e-mails on the laptop, and then made the decision to notify the House Oversight Committee, which he did the following day.

Comey explained to the Senate today that he was interested in those early e-mails because the FBI was still looking for evidence that Clinton intentionally set up her private server to violate the law. At one point during today’s testimony, Comey called that evidence “the golden missing e-mails,” as if they were searching for a prize in a chocolate bar. It was precisely the lack of any evidence of Clinton’s intent that Comey had relied on in July when he declared the investigation over.

According to Comey, there was a “great debate” during that October 27 meeting on what to do. Comey felt he had only two choices, to disclose the new investigation or be accused of concealing it later. His instinct was to disclose.  A junior lawyer, Comey says, asked if they should consider the possibility that disclosure would sway the elections.  Absolutely not, Comey responded.  He could not consider the political consequences and maintain his independence.

The way Comey tells it, his team led by Peter Strzok, “moved heaven and earth” to finish their review of the e-mails in time for him to reveal on Sunday, November 7, less than 48 hours before the election, that they had found nothing incriminating.  According to the New York Times, “agents had found no emails from the BlackBerry server during the crucial period when Mrs. Clinton was at the State Department.”

Here’s where things start to break down in the narrative that the FBI and Comey are trying to push.

There were many other options.  First, someone, anyone, could have pointed out that there was no probable cause to search the laptop e-mails. (Indeed, it was likely the result of an illegal search that the FBI even saw the Clinton e-mails on the laptop in the first place.)  I know, the FBI ultimately got a search warrant from Commissioner Kevin Fox in Manhattan after the story was already front page news (what else was he supposed to do?), but most people who have reviewed the warrant conclude, as I do, that it does not give rise to probable cause to believe that evidence of a crime would be found on the laptop. Of course, knowing as we do that there was nothing incriminating on the laptop bolsters this view.  What made anyone think otherwise?  In the Commissioner’s defense, the FBI also failed to include in the warrant application all of the information regarding Abedin’s prior voluntary cooperation with the investigation, or the fact that no incriminating e-mails had been found in the prior investigation, information that the FBI had already made public in its lengthy report on the investigation published in September. But the real issue is whether, when they decided to seek a search warrant, the FBI had found anything at all to suggest that they would find evidence of a crime on the laptop.

The only thing new in the search warrant affidavit is that there were e-mails between Clinton and her longtime aide Abedin on the laptop. What reason would anyone have to believe that those e-mails contained the “golden e-mails” that Comey and his agents were seeking?  Remember, it wasn’t there.  So what indication was there? We don’t have an answer from Comey or the sources informing the New York Times. And this is the big question that remains.

What seems likely is that, as Comey wrote to Congress, the e-mails appeared to be “pertinent” to the investigation.  Pertinent isn’t the same thing as probable cause. Probable means more than possible. It means you really think there is going to be something there.

When Comey and his investigative team held their “great debate” on October 27, did they even discuss whether there was probable cause?  That’s something we don’t yet know. There is no good answer for Comey. If they didn’t even consider the issue, that’s pretty damning.  If they did consider it, why did they get it wrong? Why did they think they’d find their Golden Ticket?

I’ve used the term “Golden Ticket” because it is very revealing of what I think actually happened. Comey and his team really wanted to find evidence that Clinton committed a crime. They were not dispassionate investigators who had been asked to determine if a crime was committed (which is how the investigation started).  No, they wanted there to be a crime, as much as Charlie wanted to go to Mr. Wonka’s chocolate factory.

A lot of people have challenged me on this argument by saying that there had been probable cause all along.  But that’s not true.  This FBI investigation was not the result of the discovery of a crime, or a report from a victim.  Rather, it was a referral from another branch of government to investigate whether there had even been a crime. The FBI should have been neutral on that question.  But they weren’t.  They got caught up in the endless Republican fishing expedition that set off the investigation, and were disappointed that they didn’t find what they were looking for. It never even occurred to Comey or his agents that Clinton might be innocent and that no crime had actually been committed.  No, as I suggested already last November, they considered Clinton a criminal who had not yet been caught.  And it is worth pointing out that until October 30, the FBI had not yet obtained a search warrant in the case.  Until that time, it was just an ordinary investigation of public sources, department materials and cooperating witnesses.

Some people have said to me that this whole Comey thing just doesn’t matter.  They’re wrong.  It matters a whole lot.  First, it’s important for Democrats to understand why Clinton lost because that will influence how they run in the future. If Clinton was a bad candidate, that’s one thing. If, on the other hand she was a good candidate, on the verge of winning a historic election until the FBI director snatched victory away in a deus ex machina, well, then that’s something completely different.

Second, there’s the issue of Comey not even admitting that he made a terrible error in judgment, and even doubling down and saying that he would do it all again the same way. If that’s true, we need some new laws. It cannot be the case that the FBI director can publicly seek a search warrant against a candidate for president within days of an election and come up empty. In other words, if you get a search warrant under those circumstances, you had better find a dead body, or three, and a smoking Howitzer.

Tied into this issue is the question of whether Comey’s actions changed the outcome of the election. Nate Silver came out today, again, with an article explaining in great detail the obvious — that with three (or four) states won by 1% or less, an event that made even a small number of people change their votes away from Clinton or stay away from polls instead of voting for her necessarily changed the outcome. The evidence is really beyond any reasonable doubt that Comey’s letter cost Clinton the election. Of course, Trump and his minions in their fact-free universe disagree, but leaving them aside, I’ve heard a few arguments. First, people say that the charts showing the polls moving toward Trump after the Comey letter are inaccurate because all the polls were wrong.  That’s silly.  The polls weren’t wrong.  Nate Silver gave Trump a 26% chance of winning.  That’s tails on two coin flips.  It happens.  And the actual result, with narrow victories in four states, supports that view. Also, even if you believe all the polls were skewed towards Clinton to begin with, you cannot ignore that they all shifted markedly towards Trump after the Comey letter.  If you are going to deny the shift in popular opinion in the last ten days of the election, then you at least have to come up with another plausible theory supported by evidence.  What is it?

I’ve also heard some people say that since Comey’s letter didn’t change their mind, it didn’t change the outcome. That’s the narcissistic view and it really doesn’t answer anything. We’re talking about very small percentages of the voting pool.  In any election, about 45% of the electorate is pre-set on each side.  It’s the mushy middle 10%, the ones who haven’t already decided, that determine the outcome. Comey’s letter was enough to sway those deciders, and all of the polls demonstrate that it did, in sufficient number to change the outcome. If you don’t want to believe it, fine.  But this isn’t about your beliefs.  It’s about what happened.

There are a lot of Sanders supporters who want to say that Clinton lost on her own, because it fits their narrative that Bernie was a better candidate and would have won. They want nothing more than to say “I told you so.” But all we know is that Sanders couldn’t beat Clinton. I’m not sure why anyone thinks he would have beaten Trump.  We’ll probably never know.  But it doesn’t help that argument to deny the impact Comey had on the election.  It only shows that you have no real grip on reality.

I titled this blog Comey is Guilty because all of the evidence is starting to point in that direction. He slipped up today, and the Golden Ticket is just one of them. At one point he pretended to Senator Feinstein that he sent his letter to the House Committee and didn’t expect it to become public. That is flatly contradicted by his letter to his own staff that he sent the very same day, stating that his intention was to “supplement the record.”

We won’t get to the bottom of it until we hear from the rest of the people involved. The one I’d really like to talk to is the junior lawyer Comey mentioned who asked whether he should think about the potential influence on the election. Comey said that in the end his staff all agreed on his course of action, but I wonder if that’s really the case. Because the junior lawyer was absolutely correct to bring up the influence on the election and Comey was absolutely wrong to ignore that issue. Contrary to what Comey claimed at the hearing, he was actually required to consider whether his actions would influence the election. The Hatch Act and department policy prohibit actions by public officials that are intended to influence elections.

Comey might argue that he didn’t intend to influence the election, but the junior lawyer’s question demonstrates that he was completely and recklessly indifferent to the possibility. Such disregard might be acceptable if the public official was engaged in a core activity related to his office, but that wasn’t what Comey was doing when he sent his letter to the Congressional Oversight Committee on October 28. He wasn’t furthering his investigation in any way. Rather, he was trying to avoid criticism in the event his team found the Golden Ticket.  Avoiding criticism is not the core job of the FBI, at least it shouldn’t be. And who decided that the FBI avoiding criticism should be more important than the outcome of a presidential election?

But Comey’s defense falls for another reason. If his goal was to avoid criticism, he failed. Did he not consider the possibility that his team would find nothing and he would alter the course of the election? I listened to his testimony today and I really didn’t get any sense that he even thought that was possible. It makes him “mildly nauseous” to think about it now. How did he feel on October 27? He said he was presented with just two doors, disclose or conceal. But that’s pretty revealing, because the thing that he was disclosing or concealing was only the investigation, not any incriminating evidence. And the FBI conceals investigations all the time. In fact, that is their default rule. If he was worried about concealing, why was the search warrant application made under seal?

No, as I heard Senator Leahy point out afterwards, Comey had a much better, and far less damaging option. If he truly believed there was probable cause, he could have authorized the search warrant. If the investigators found nothing, he wouldn’t have to disclose anything and there’d never be any criticism.  If the investigators came up with the Golden Ticket, as he apparently expected they would, he could then have revealed the evidence. In the face of any criticism, all he would have to say is that he produced the incriminating evidence as soon as he found it.

That, after all, is what he has been doing with the investigation into the Trump campaign. So, why not with Clinton?  There is no good answer to that question, and it’s the one that most of the Democratic senators were angling towards.

If I were questioning Comey, I’d focus on the issue of probable cause and the “great debate” they had. What did they debate exactly? Who took which side? And I’d ask him “What made you think it was probable you would find evidence that Hillary Clinton committed a crime?” There is no possible good answer to that question. Either he didn’t think there was probable cause, in which case he should never have authorized the further investigation.  Or he did, in which case he was very wrong.

I’d also focus on what happened during that final week. Did he really authorize the search warrant on October 27 but they didn’t submit the application until Sunday October 30? Each and every day after that, they found nothing. On Monday they found nothing. On Tuesday they found nothing. Etc. What was reported to Comey? Comey said that what they really wanted was to see the Blackberry e-mails (not the ones from the server).  Is the New York Times correct that none were ever found?  How long did that take to determine? How could it take more than a few minutes? Why were they still reviewing e-mails on Saturday November 5?  Did they print them out? What exactly were they looking for? I have hundreds of thousands of e-mails on my laptop also, and I know how to find things. It’s not by printing out the e-mails and reading them. You search words. It’s not rocket science. My guess is that they knew almost immediately that they weren’t going to find the Golden Ticket. And yet they persisted. Comey makes it sound heroic, but it wasn’t.  It was the opposite. They were searching and searching for something that didn’t exist, that never existed, but that they had imagined existed. There never was a Golden Ticket.

This is my third blog on the Comey debacle.  See my earlier entries Investigate the FBI and Letter to DOJ Inspector General Michael E. Horowitz.

 

News drives genealogy, and vice-versa

When I read the news and see the name of someone who sounds Jewish, my first instinct is to wonder whether I can work out his or her family tree on Geni.com.  Yesterday there were two stories that caught my attention. First, there were reports that National Security aide Ezra Cohen-Watnick was the White House staffer who supposedly showed information to House Intelligence Committee Devin Nunes related to the probe of Russian influence on the Presidential election. Later, there was the report by Ashley Feinberg of Gizmodo that she had managed, in an inspiring bit of internet sleuthing, to find FBI Director James Comey’s Twitter account.  Feinberg, Cohen-Watnick, how could I resist? Before going to bed, I tried to see what I could find.

It didn’t take much time to work out Ashley’s tree, which I did first. Her family has had more than its fair share of tragedy in recent years and so there was plenty of information for me to start her tree, which then matched up with her brother’s tree on MyHeritage. Easy peasy.

It was very late, but I decided to see if Ezra’s tree would be as easy. It wasn’t. He obviously has been trying to have a zero presence on the Web. But you really cannot hide. Still, although Nathan Guttman at the Forward had already reported what he could find, there wasn’t a lot to go on. Fortunately, his synagogue Ohr Kodesh had published an announcement of his engagement celebration with Rebecca Miller late last year. The kiddush was sponsored by Jonathan & Martha Cohen (who turned out to be his paternal grandparents) and  Deborah Levine & Marc Cohen (his father and step-mother).  Some more Googling led to his mother, the nephrologist Terry Watnick. When I discovered Terry Watnick’s Facebook page, I guessed she probably wasn’t a Trump supporter.

At that point, I wrote my good genealogy friend Renee Steinig, who is probably the best genealogist I know for Jews in the United States. For some reason, Renee was awake, so she started building out the tree with me on Geni. I won’t bore you with all the tricks we use, but there’s pretty much nothing Renee and I cannot find. I went to bed very late last night, satisfied that we had connected Ezra and his family to the World Family Tree.

Renee kept working on the tree today, and then sent me something that I think might be newsworthy, or at least creepily coincidental. She had found information on Ezra’s wife, Rebecca Miller.  In 2014, Rebecca’s mother Vicki Fraser did an oral history for the State Historical Society of Missouri International Women’s Forum, where she described what her daughter was doing:

Well, we have 24-year-old twins, Jake Miller . . . [and] Becky Miller, who works for Ketchum, a PR and marketing firm in Washington, D.C. and her big challenges right now are Ketchum is responsible for providing PR and marketing to try to make Russia look better which is particularly difficult when they’re invading other countries and when Putin is somewhat out of control.

So Ezra’s wife Rebecca used to do PR for Putin.  Hmmm.  Googling, you can find stories from 2015, when Ketchum and Putin sort of parted company. Rebecca’s LinkedIn account shows her still at Ketchum.

Maybe it’s just me, but that all seems a bit too coincidental.

A New Genealogy for Rabbi Isaac Mayer Wise

In the past years, a wealth of 18th and 19th century Jewish genealogical resources have become available for Bohemia, the western half of Czechia (the new name for the Czech Republic, formerly Czechoslovakia).  As a result, a large number of genealogists working in this area have been collaborating on Geni.com, building interconnected trees covering the entire region and setting up town projects for many of the communities.  Recently, I used these resources to revisit the genealogy of the famed Rabbi Isaac Mayer Wise (1819-1900), considered the founding father of the American Reform movement, the largest Jewish denomination in North America.

Rabbi Wise’s biography is well-known, and is described in detail in the book published in 1916 by his grandson Max Benjamin May (1866-1929).  But Wise’s ancestry, as May concedes, was more difficult to discern:

Very little is known of the ancestry of Isaac Mayer Wise. He could not be induced to talk about his early years, and often said they were too terrible to contemplate. No authentic data are to be found in Wise’s writings; and unlike many another great man who rose from humble beginnings to a position of influence and prominence, he never referred to his early years. While nothing is known of his maternal ancestors, there are a few meagre facts concerning his paternal great-grandfather, grandfather and father. His great-grandfather was a physician named Leo, who had studied medicine at Padua, practiced at Marienbad [Mariánské Lázne], and lived in the neighborhood, in the village of Dürrmaul [Drmoul]. The physician was known as Dr. Leo, and spoken of by his co-religionists as Leo ‘Chakam,’ the Hebrew for Wise. The son of this Dr. Leo, or Leo Weiss, was Isaiah, who also studied medicine at Padua and likewise settled at Dürrmaul. This Doctor Isaiah lived to be over ninety years of age. Besides learned in his profession he was well versed in Talmudical and rabbinical literature, and became a teacher to his son, whom he named for his father Leo. The Leo, grandson of Doctor Leo who had studied in Padua, was educated by his father and became a teacher. Leo Weiss was never a vigorous man, and died shortly after the birth of his youngest child, a daughter. Shortly after receiving his education he removed from Dürrmaul to Steingrub [Lomnicka], a small village of a few hundred inhabitants near the town of Eger [Cheb], in Bohemia, overlooking Saxony and Bavaria. In this village of Steingrub, in which there dwelt a large number of Catholics, Leo Weiss was married twice. His second wife was Regina Weiss. She was, however, a handsome woman, bright, cheerful, lovable, and devoted. She emigrated to America in 1867 with her son Samuel and later lived in Peoria, Illinois, with her daughter, Caroline Korsoski, where she died in 1880 at a ripe old age.

May’s biography adds a few more facts: Wise’s parents had 13 children, seven of whom died in infancy. Isaac was the oldest surviving son, born March 29, 1819 (the date engraved on his tombstone).  Wise first studied with his father in Steingrub until age nine, when he moved to Drmoul to live and study with his learned grandfather, Dr. Isaiah. At age twelve, his grandfather died. Wise then went to Prague to study. On the way he visited a cousin in Mies [Stribro] and an uncle in Pilsen [Plzen]. In Prague he was assisted by the widow of Rabbi Bezalel Ronsperg, an uncle of his mother.  Among the teachers and rabbis Wise claimed to have studied with were Moses Koref, Löb Glogau, and Samuel Freund of Prague, and Aaron Kornfeld of Golcuv Jenikov.  Wise worked as a tutor in the homes of Leopold Jerusalem in Prague and Herman Bloch in Grafenried [Lucina, Nemanice], Bohemia. He was recommended by Rabbi Solomon Judah Rappaport of Prague to be a teacher in Ronsperg [Pobezovice], Bohemia and later took exams in Pressburg [Bratislava, Slovakia] where he studied with Rabbi Moses Sofer.  He returned to Prague and lived with Rappaport before studying for a year in Vienna, living with the German Reform preacher Isaac Noa Mannheimer and teaching the von Wertheimstein family.  At age twenty-three (1842) he passed a rabbinical examination before Rabbis Rappaport, Freund and Teweles, and then served as rabbi and teacher  in Radnitz [Radnice], Bohemia from October 1843.

Wise was married twice, first in Grafenried on May 26, 1844 (according to the family bible) to Therese Bloch, and then in 1876 in Manhattan, NY to Selma Bondi of Dresden, Saxony, Germany.  His 1876 New York wedding license states that his parents were Leopold Weiss and Regina Weiss.  Wise’s first child Emily (the mother of Wise’s biographer Benjamin May) was born February 22, 1846 (according to her gravestone) in Radnitz.  A few months later, Wise and his young family travelled to America, sailing from Bremerhaven for sixty-three days and arriving in New York on July 23, 1846.

Based on these facts, genealogists have for years crafted a tree for Rabbi Wise and his descendants (who include the Ochs-Sulzberger family owners of the New York Times) that identifies his father as Leopold Weiss, son of Dr. Isaiah Weiss, son of Dr. Leo Weiss.  I set out to determine if anything further could be learned about the family from the newly available records.

The Bohemian Jewish census of 1793 has been transcribed and published in book form by Ivana Ebelová, and recently made available online (click on News, then Inventories, for a list of pdf files, except for the index!).  A first step to looking up a town in the census, however, is figuring out what Kreis (Region) it was in. This is not always easy, since the governing Kreis in 1793 may not be the same as the political district of today. An additional complication is that Jewish records usually give the German name of the town, whereas the recent Czech resources are often organized by the Czech town names. Finally, there are often several towns with the same name in Bohemia and Moravia.

We do have a few resources to help. JewishGen has a database with most of the major towns, but is often missing the small villages.  So, the first place I look is usually the Wikipedia page List of historical German and Czech names for places in the Czech Republic. The Wikipedia page is not foolproof.  For example, looking up Steingrub gives a link to the wrong Lomnicka (in Moravia) rather than the correct one we are looking for in northern Bohemia near the German border!  Once I have a likely Czech name for the town, then I can try to find the district or region, using Wikipedia.  If that fails, I turn to a useful tool created by Alex Calzareth, Map of Bohemia and Moravia Jewish Vital Registers.  Again, finding Lomnicka is tricky because there are so many of them, but ultimately I was able to find the right one near Plesná (by typing Lomnicka Plesna until the program finds the right town). This allows you to zoom in and out, seeing all of the towns in the region with surviving Jewish record books. Lomnicka is north of the larger city of Cheb, which Wikipedia tells us is in the Karlovy Vary region. However, looking over at the list of regions for the 1793 census, you won’t find Karlovy Vary. If you go to Julius Müller’s website on Jewish Familiants, you’ll see an old map of the districts in Bohemia. If you zoom out on Alex Calzareth‘s map, you’ll see that Lomnicka is way in the far left, in a district then called Loketsky.

So, you’ll find the 1793 census for Steingrub in the book for the Loketer Kreis. If you search Steingrub in the pdf file, you’ll find every mention of that town. Starting on page 79 is where you can see all of the Jewish families. Looking up the page you will see that Steingrub is part of Walhof Gut (domain), along with the towns Fattatengrün [Bozetin], Zweifelsreuth [Cizebna], Hörschin [Hrzin], Wallhof [Lesna], and Neukirchen [Novy Kostel]. The first three towns have just one Jewish family, Wallhof has three, Neukirchen has four, and Steingrub has eleven.  In 1793, there is no Weiss family in Steingrub, but two of them in Neukirchen.

However, Rabbi Wise’s family history said that his Weiss family lived in Drmoul, so I decided to check there also. Using Alex Calzareth’s map, I find that Drmoul is 51 km south from Lomnicka, and in the Pilsner Kreis.  In 1793, there were 25 families living in the village of Drmoul. The first three listed have the surname Mayer. The next is the widow of Markus Weiss. But the very next entry, I noticed, was named Josaias Doctor.

This was my first clue. Josaias Doctor in Drmoul sounded suspiciously close to Rabbi Weiss’ grandfather Dr. Isaiah.  Doctor is not a common surname in Bohemia and may have denoted Isaiah’s profession. My next step was to take a look at the Familianten book records for Drmoul to see if I could find out more about Josaias/Isaiah Doctor.

In 1726, due the order of the Habsburg ruler Charles VI, the number of Jewish families was limited by quota to 8,541 in Bohemia and 5,106 in Moravia.  To enforce this quota (or numerus clausus), a so-called Familianten order was issued.  According to this order, only the first-born son of each Jewish family was given permission to marry (called a copulatio consensus). The permits could also be sold if there were no son to inherit them. This draconian Familianten order was in force until 1848. As a result, many Jews who could not obtain marriage permits emigrated from Bohemia and Moravia. Those who stayed often married only religiously, and as a result their children were recorded as illegitimate in official records.

Rabbi Wise in fact ran afoul of this law when he was rabbi in Radnitz by marrying Jewish couples without a license. “When called to task for this infraction of the law,” May writes, “he bitterly complained against its iniquity and unjustness, and stated he would continue to disregard so inhuman an edict. When questioned at Prague by a member of the imperial council in charge of Jewish affairs as to the cause of so many illegitimate births among the Jews, he pointed out that it was due solely to the barbarous restrictions of the right to marry.” [May, page 37.]

One other result of the Familianten laws was that the government kept very good records of which families lived in which towns. The list of Familianten were collected in the Book of Jewish Familianten (also called Mannschaftsbuecher in Moravia). Records were collected in 1799 and in 1811 and updated until about 1830.  Each record comprised the name of county, registration number of the family in the whole land (based on copulatio consensus), the registration number of family in the county (set up in 1725), name of the father, his wife, his sons and a few other family details. Today, these records provide a very good resource for researchers investigating their family histories, and they have recently been made available online by the Czech State Archives on Badatelna.eu.

Once again, finding the right book is not always easy. You can try searching the Familianten inventory (Fond 2098) on the badatelna.eu website, using the Czech name of the town. Trying Drmoul comes up blank. Going back to the 1793 census record (above) gives us another clue. See where it says “Kuttenplan”?  That is the name of the town that the Jews of Drmoul actually belonged to. Literally they were under the “protection” of Kuttenplan [Chodova Plana], although living 7.5 km away in Drmoul. Searching for Chodova Plana comes up with one book.  These books usually have a handwritten index in the front or back. This one shows a page for Isaias Doktor.

Isaias Docktor is identified as the son of Abraham Günzburger and Fanny/Debora [daughter of] Aron. He was married twice, to Rifka [daughter of] Abraham (c. 1780) and Rebeka [daughter of] Löwy (c. 1792), and died February 11, 1833. The page identifies his sons Aron (b. 1781), Löwy (b. 1784, d. April 20, 1837), Nathan (b. 1800) and Michael (b. 1802). Löwy is identified as unmarried [ledig].

Isaiah Doktor’s grave is located in Drmoul and has been photographed and indexed by Achab Haidler on his website chewra.com.  I was also able to find the graves for Isaiah’s parents Abraham (d. 1766) and Deborah (d. 1769).  Abraham was a doctor (rofe in Hebrew), and his father was named Isaiah.

Grave of Isaiah Doktor (d. Feb 11 1833) in Drmoul, Czechia.

If Isaias was Rabbi Wise’s grandfather, the dates fit pretty well.  At Isaiah’s death in 1833, Isaac Wise would have been just 13 years old.  But could the Isaiah’s unmarried son Löwy be Rabbi Wise’s father Leopold? If so, it meant that Wise’s parents were not officially married when he was born. That still needed some additional proof.

Many of the Jewish vital record books have been placed online by the Czech State archives. The principle Jewish records are held in Fond 1073, while a set of duplicate parish records (many from just the 1848 time period) are kept in Fond 241. Unfortunately, the record books for these towns did not cover the dates I needed. The book for Steingrub began in 1820, a year after Rabbi Wise’s birth, and none of the subsequent entries mentioned a Leopold or Regina Weiss. The record book for Grafenried did not include any marriage of Rabbi Wise and Therese Bloch. The birth records of Radnitz had no mention of their daughter Emily. (But I later found a record for an illegitimate son of Therese Bloch born March 14, 1845 in Radnitz, who apparently died before being named, which confirmed that Rabbi Wise’s 1844 marriage was without a proper license under the Familiant laws.) I decided to look for further clues, perhaps related to Wise’s siblings. Wise’s sister Caroline was born February 29, 1840 (according to her tombstone in Peoria, Illinois), but the Steingrub birth register ends in 1839, a year too early. I looked through Drmoul records and found no leads. Using Alex Calzareth’s map, I started looking at record books for towns near Steingrub and Drmoul, but at first didn’t find anything that looked useful. I decided that while I was looking through the books, I should try to work on the trees for the other Weiss families in Steingrub and the Doktors in Drmoul, and found that much had already been compiled by fellow Geni curators Oded Hartmann, Yoav Lahad and Benjamin Schoenbrun. In 1840 I found an illegitimate daughter born to Barbara, a daughter of Isaias Doktor.

I also posted about my research to the Jewish Genealogy Portal, a group I founded a few years ago that is now with over 20,000 members the largest Jewish genealogy group on Facebook. This group allows me to post my research and get feedback and help from others while I am working on a puzzle. Craig Partridge, one of the many genealogists collaborating on Bohemia, responded by informing me that one of his Popper relatives, Ignaz Popper of Radnitz married Laura Wise, a niece of Rabbi Wise, born 1849 in Steingrub. Searching the records in nearby Neukirchen [Novy Kostel] in Fond 1073, I discovered Laura’s birth record. Her father was Samuel, the son of Regina Weiss from House 64 in Steingrub. That was my first success at finding a record of a Weiss relative of Rabbi Wise.

So Isaac and Samuel had the same mother, Regina Weiss, but there was no mention in the records of a father to Samuel. This indicated to me that Samuel, and probably Isaac, were born out of wedlock, although I could not find a birth record for either of them to prove it. Samuel’s marriage record was also in the book for Novy Kostel and it provided an age so I could estimate his birth in 1822. Still, the Steingrub birth records for 1822 did not list Samuel. There was however a Lippmann Weiss born out of wedlock in 1833 in House 64 to Rebecca Weiss, daughter of Joachim Weiss.  It seemed very likely that Regina was the same as Rebecca, since it is very common for women’s names to change over time in these old records. The birth record for Samuel’s daughter Bertha [Blümerl]  lists Samuel’s mother’s name as “Rika” which is also close to Rifka, Hebrew for Rebecca.

I kept searching in various record books until I returned again to Novy Kostel, but this time in Fond 241, the Catholic parish copies, which (very unusually) pertained to earlier years than the Fond 1073 book I had used for the birth of Laura Wise. I had initially passed over the description of the book in Czech, but this time my Google Chrome browser offered a translation and I noticed that it said the book contained something related to circumcisions “a description of the book foreskins 1803-1840.” This is something that I had not seen in any other record books from Bohemia and Moravia. Apparently the parish had used the records of the local mohel, Jakob Pollak, to help reconstruct a new book of birth records for the community. Included in this new book was a beautiful ledger of the circumcisions performed by Jakob Pollak over thirty-seven years. Incredibly, in 1819 I found the following record:

The record says that on 11 Nissan 5579 (April 6, 1819) Pollak performed the circumcision of Isaak son of Löbl Doktor of Steingrub. April 6 is exactly eight days after the date of birth of Rabbi Wise on March 29, which is precisely when you would expect his bris to have occurred.  At last we have a birth record for Rabbi Wise, and it proves that his father was not named Leopold Weiss, but rather Löbl (= Leopold) Doktor, who is certainly Löwy Doktor, the son of Isaiah Doktor of Drmoul. Rabbi Wise was clearly born out of wedlock and was given his mother’s surname (Weiss), later changing it to Wise in America.

With every solution comes more questions, and Rabbi Wise’s ancestry certainly poses many of them. If the father of Rabbi Wise’s grandfather Isaiah Doktor is named Abraham Günzburger, how does that fit with the legend that Isaiah’s father was also named Leopold?  What do we make of the Mayer middle name? Boys in Bohemia rarely were given middle names. (There is, however, an Isak Löbl Weiss son of Salomon, born 1823 in Lomnicka.) In the records of Prague, the second name is usually the given name of the father. But Rabbi Wise’s middle name may point to a different source. In the mohel records for August 15, 1822 we find Samuel, son of Löbl Mayer, which could be Isaac’s brother Samuel. Did Samuel and Isaac have different fathers?  Or is Löbl Doktor the same as Löbl Mayer? One problem with the latter theory is that there is a Lev Mayer, probably son of Abraham and Sara Mayer, from Lazne Kynzvart, living in Studnicka who dies in 1831. On the Familiant records, Löbl Doktor dies April 20, 1837, but I have yet to find a death record or grave. Who is the father of Isaac’s baby sister Caroline, born 1840? And how is Rabbi Wise related to Rabi Bezalel Ronsperg (Rosenbaum). There are Rosenbaums in the area. You can see on top of Rabbi Wise’s circumcision the record of Hersch, son of Naphtali Rosenbaum of Katzengrün [Kacerov].  But I have not been able to connect this family with Rabbi Bezalel Ronsperg.

As researchers work through the copious Jewish records from Bohemia and Moravia and add to the trees on Geni.com, we will continue to make discoveries and connections. Jews often lived in very small communities, limited by the Familianten laws, and therefore moved around quite often. The key to Rabbi Wise’s ancestry was found in a book for Novy Kostel, a town that did not come up in his biography.

For further information on Jewish genealogy research in Bohemia and Moravia see Getting Started With Czech-Jewish Genealogy and Jewish Communities in Bohemia and Moravia.