All posts by E Randol Schoenberg

About E Randol Schoenberg

Attorney-Philanthropist-Law Prof-Museum Chair-Dad Contact randols at bslaw dot net

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.

What is the FBI hiding?

In May I submitted a FOIA request seeking:

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

Today comes the response:

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

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

Here’s 552(c):

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

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

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

Thoughts on Comey’s Firing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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