Third Grade Tactics

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

“You’re a dumb ass.”

“You’re fat.”

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

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

“Ha, you said I was smart!”

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

“No you’re not, you’re dumb.”

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

And so on. . .

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


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

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

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

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

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

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

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

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

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

 

I. INTRODUCTION

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

II. BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

III. ARGUMENT

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

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

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

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

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

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

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

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

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

IV. CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Comey, Comey, and more Comey!

(AP Photo/Alex Brandon)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Letter to Inspector General Michael Horowitz

February 22, 2018

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

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

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

Re:  FBI handling of Clinton e-mail investigation

Dear Inspector General Horowitz:

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

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

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

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

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

Further questions include:

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

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

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

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

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

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

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

Very truly yours,

RANDOL SCHOENBERG

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

Is FBI Attorney Lisa Page a Hero?

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

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

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

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

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

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

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

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

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

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

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

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

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

Complaint against the FBI

COMPLAINT FOR INJUNCTIVE RELIEF

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

WHEREFORE, plaintiff requests this Court:

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

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

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

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

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.