What Do We Know About Comey’s ‘Investigation’?

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Everything you’re read or heard this weekend about Anthony Weiner and Hillary Clinton is speculation based on anonymous sources. Everything. Speculation in absence of facts.


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By Kathy Gill / 10.31.2016
Technology Policty Analyst, The Moderate Voice

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Two days after FBI Director James Comey dropped an unprecedented bombshell into what has become the most bizarre presidential campaign in my lifetime, we still only know one thing with any degree of certainty. And even that is an allegation.

NBC and the Washington Post are reporting – via anonymous sources – that Comey has gotten his warrant. (4:15 pm Pacific)

Comey’s letter to Congress is more vague and fuzzy than San Francisco in winter fog. An unnamed something happened which might involve the on-pause investigation into Hillary Clinton’s use of a personal email server while Secretary of State.

In addition, Comey also sent an unprecedented memo to FBI staff (not the first one this election season)1. Leaks — from the FBI? the NYPD? who knows — quickly became a torrent, disjointed and contradictory.

This is “news by speculation.” It is irresponsible, and Comey’s actions may be a Hatch Act violation.

And when did “alleged” get dropped from traditional news reporting?

We know one only thing

Last month, the Daily Mail published allegations that Anthony Weiner had engaged in sexting with a minor1. That is all we know, and that is an allegation.

Summary. A reasonable adult would assume that someone is investigating Weiner, given the initial Daily Mail story, although I doubt she would expect a grand jury at this stage. [Grand juries advise the prosecution on whether they have sufficient cause to “indict” a person.] She might also wonder why the teen or her father chose a British tabloid, even though it has a US office, given the plethora of US tabloids that salivate at celebrity sex scandals.

But there has been no official acknowledgement in North Carolina (where the teen allegedly lives) or in New York (where Weiner lives) that there is an investigation, much less a grand jury.

Because that’s how the law works. Law enforcement and prosecutors don’t routinely issues a news release saying “we’re starting an investigation.”
The only constant claim in the waterfall of leaks is that the emails in question were discovered (by whom?) as part of an investigation into Weiner’s latest sexting problem. He and his wife, Huma Abedin, separated in August; Abedin is Clinton’s right-hand staffer.

Everything else is from an anonymous leak

Has the FBI looked at the computer from Weiner containing emails allegedly related to the Clinton investigation?

In his memo to FBI staff, Comey said the team investigating the anonymous case (assumed to be Weiner) recommended “seeking access” to the emails. To seek means either you don’t have it or you don’t have permission to look at it.

Comey’s memo suggests the answer to the question is “no.”

Here are the media:

  • The NYT said unequivocally that the FBI had the computer, relying on “a senior [anonymous] law enforcement official. The NYT also said that “senior [anonymous] law enforcement officials” said it wasn’t clear if the emails were from Clinton’s private server (which it would not be if they hadn’t peeked.) There are no quoted anonymous statements in this story, only paraphrases.
  • The LA Times reported that “one [anonymous] official” said that the emails were not to or from Clinton and appeared to be duplicates of emails already examined. There are no quoted anonymous statements in this story, only paraphrases.
  • Conversely, the Washington Post reported that “a [anonymous] law enforcement official” said that there were emails between Abedin and Clinton. There are no quoted anonymous statements in this story, only paraphrases.
  • Not so fast! Yahoo News reports: “agents had not been able to review any of the material, because the bureau had not yet gotten a search warrant to read them, three [anonymous] government officials who have been briefed on the probe told Yahoo News.” There are several quoted anonymous statements in this story.

Based on the amount of wiggle room in the anonymous source attributions, my gut is to go with Yahoo. It is the stronger story of the four.

No warrant = no peeky.

No peeky = no one knows if these alleged emails are relevant to the prior investigation into the Clinton’s private mail server.

I believe Comey went public to put pressure on the DOJ to give him that warrant, even though the warrant — and his behavior — is antithetical to DOJ policy in the run-up to an election. Much less on its eve.

Can someone please explain how a law enforcement agency could have a citizen’s computer in its possession but no warrant to look inside it? At least one analyst argues that the “FBI may have violated the Fourth Amendment in expanding the investigation from Weiner to Clinton.”

Is the FBI investigating the links between the Republican candidate and Russia, now that it is investigating hacking of American computers by Russian agents?

As former Bush Administration ethics lawyer Richard Painter writes in the Sunday New York Times, we don’t know but “it would not be surprising.”

But it would be highly improper, and an abuse of power, for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election. It would be an abuse of power for the director of the F.B.I., absent compelling circumstances, to notify members of Congress from the party opposing the candidate that the candidate or his associates were under investigation. It would be an abuse of power if F.B.I. agents went so far as to obtain a search warrant and raid the candidate’s office tower, hauling out boxes of documents and computers in front of television cameras.

In effect, Painter says, this is what Comey did on Friday to Clinton. Which is why he has “filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics.”

The take-away

Everything you’ve read or heard this weekend is speculation.

Speculation is the very reason that acts like Comey’s are expressly prohibited by the DOJ. The DOJ communicated that prohibition to Comey but he went his rogue way, anyway.

News organizations are doing themselves, democracy and civic participation no favors when a reader has to know, understand and parse arcane newsroom attribution policy regarding anonymous sources in order to make sense of a story. Plus, who reads multiple news sources except academics, journalists and news junkies?

Waiting for the next “October surprise.”

Notes

[1] Memos to government staff are, as a general statement, public information that can be surfaced via a FoIA request. It is to be expected that any Comey memos to staff about Clinton would be shared with a reporter. [2] NYT, anonymous “law enforcement officials”; ABC (video); WBUR (NPR), anonymous source familiar with the matter; FOX, an anonymous FBI source; LAT, anonymous law enforcement officials.

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