Thursday, July 7, 2016

The House Oversight Committee's panel with James Comey

I was able to listen to a good portion of the House Oversight's interview of James Comey today. Now I was at work listening on my headphones, so I zoned in and out as I could, but I did get quite a bit of it. Here are my notes, analysis, and whatevers. I may be forgetting some things so there might be some edits.
  • Comey's competence. Comey comes off as intelligent, factual, rational, and pleasant. I find nothing wrong with him personally, actually I gained a lot of respect for him. He seems genuine, although you never want to trust a Washington bureaucrat too far, I suppose.
  • Not a Republican witchhunt. Despite many claims out there, Comey confirmed that the investigation was referred by an IG in the intelligence community. That is, by another bureaucrat, not a politician. He believed the referral was absolutely credible and valid. When asked, he stated he did not feel the Congressional inquiry was a Republican witchhunt.
  • No cover from Democratic administration. Comey has repeatedly and emphatically claimed that he operated with zero influence from his Democratic political superiors. My human intuition believes him. (Logically there is a cause for concern, which I will get to). Now, while we know he was getting signals from above (Obama's fucking endorsement, for one!!), he asserts they held no sway, and seems genuinely concerned that many people, understandably, feel otherwise. My take is that the investigation was unbiased. I think the conservatives clamoring that he is unfair or corrupted need to cool it asap. It's not helping anything right now. So seriously, even if you think so, drop it.
  •  Many potential crimes were not investigated. I would have assumed, and apparently so did the Committee Chairman Jason Chaffetz, that the FBI would investigate all aspects of former Secretary Clinton's and her staff's behaviors as they may have violated federal laws. Not the case. The referral was only for Clinton specifically, and only in regards to her use of a private email server in regards to national security. The following were not considered:
    • Perjury before both houses of the Congress (such as testifying that no classified information was ever sent in her emails).
    • Her use of the email server to circumvent the Freedom of Information Act
    • The actions of her staff
    • The Clinton Foundation
       As to the first two, I would expect to see Congressional inquiries, and possibly their own referrals to the FBI. I'm a little surprised here. Does the FBI not have the ability to self referral? If they learn about Federal Crime B while investigating Federal Crime A, is it standard practice to ignore it? Or was that special to this investigation?  As to the Clinton Foundation, well we'll come back to that.
  • The "gross negligence" clause may be unconstitutional. The whole issue boils down to the gross negligence clause. Apparently there was a lot of debate about its legality in 1917 when the law was written, and ever since prosecutor's have avoided it, because they think any conviction will end up thrown out. In the 99-year history, only once was it used, and that was part of a plea bargain. There are two questions to examine. Is this clause even necessary? To me gross negligence is you accidentally leave a briefcase somewhere public. Or you get drunk and start saying too much. But Clinton's decision to use a private server was far from unintentional. Second question is, if a law that punishes negligence is unconstitutional, then there are huge numbers of law and rulings to be overturned. Everyone who ever accidentally ran a stop sign, drove too fast, or killed someone should not be punished. Am I missing some legal argument here?
    One Republican asked, "how could we state the law any more clearly to make sure negligent actions are illegal?" It's a good question. Do we truly have a law on the books that is never enforced. Is there no punishment for prosecutors that decide never to enforce certain laws? If Comey is correct and his decision is valid, then the questions it brings up about our ability to legally protect state secrets are larger and more troubling than anything.
  • The Democrats were beyond worthless. I hate to sound like a partisan hack here. I'm not one (I swear). But good grief. The typical 5 minutes session was a long flowery introduction where they mostly talked about themselves or how noble Comey is and how just and fair the process and decision were. (I'd like to know how many were calling it a farce before the exoneration). Then maybe a softball question or two and out. Three at least did not even talk about the email investigation, but instead grandstanded about racism! All were black, and seem to feel justified in making any sort of public discussion a racial issue. It was tacky and unprofessional; their constituencies should be embarrassed.
        Even if it was a valid forum to bring up the issue, what do they expect Comey to do? Start some investigation? On what? Clearly you have to come at him with a narrowly defined objective, as we've already discussed. Of course they didn't actually expect any real response or result from Director Comey. They just wanted to highjack their few minutes in the spotlight to campaign. If the Democrats aren't disavowing this kind of behavior, they should be! It shouldn't be tolerated from any party. Business is business.
        Beyond that, the Democrats gave no impression that they were concerned with the gravity of the situation, or the chance that national security was put at risk and possibly compromised. In fact several made note of how pointless the whole venture was, and time should be spent on more important matter. Well Comey didn't agree with that. He believed the investigation to be justified and his summoning before the Committee to be appropriate. Apparently they have no concern that their candidate for office violated federal law, and is really only getting off the hook for lack of prosecution history for gross negligence. They should be very worried! First, her nomination is the most likely scenario to get their boogeyman Trump elected. And second, her tenure as president would be very risky. It might be a disaster, and what would that do to the Democratic Party? I doubt the House Democrats are thinking that far ahead. Believe me, I won't be heart-broken if Clinton is elected. I'll be getting my popcorn ready. But for the interest of the party, it is truly astounding that they show no concern whatsoever for the shortcomings of their nominee, nor for the federal laws that they write.
  • Clinton not sophisticated enough to understand classification markings. Most of the classified information was not marked, and what was did not have standard headers, but inline markup. Mr. Comey asserts that Clinton may not have been sophisticated enough to understand those markings, thus backing up his "no intent" argument. The argument, to be blunt, is that Clinton and her staff were too stupid to do there jobs. Not only does this apply to the marked documents, which he specifically mentioned, but it must to the unmarked documents as well. Much of it is born classified. That is, some information is inherently classified, and it is the owner's duty to know that. So Clinton was apparently too incapable to do her job in a way that protected national security. Is that really a legal defense? If it is, then the charges need to be applied to the person who appointed a grossly negligent person to the lofty position of US foreign minister. Is there no recourse when politicians give important positions to other politicians who are too incompetent to perform the job safely?
  • Clinton violated the law, with intent. The question posed by one of the Republicans was this: "did Hillary Clinton knowingly allow unauthorized personnel (her lawyers and server administrators) to access classified material?" Comey's response: "Yes." So there you have it! Allowing unauthorized personnel to access classified information is exactly what sunk Patraeus. Moving classified information to private media is exactly what they got Bryan Nushimura for. How is this not precedent? I don't know why Comey acts as if there was no criminal intent. She intended to setup the server. She intended to have her lawyers and technicians deal with it. She knew her job would routinely involve highly classified material, so those actions are implicitly criminal. Exactly what criminal intent is missing? I don't mind Comey's assertion that the DOJ won't prosecute. We know they won't, or will do everything possible not to. But to keep going to this lack of criminal intent argument, especially when the law specifically forbids gross negligence, is baffling.


 I said at the beginning that I intuitively felt that Comey was genuine in asserting the investigation was nonpartisan, professional, etc. And yet, his reasons for his decision not to recommend charges are puzzling. It certainly is the kind of conclusion we might expect if he was providing political cover. And as time goes on, if this whole thing goes to rest and is never heard from again, I think more and more people will adopt the opinion that he was investigating under the influence. Because if isn't the case, then where does that leave us? That a government employee can be grossly negligent with national security, can intentionally give access to unauthorized personnel, and once out of office there is zero legal action the government can take.

What if tomorrow the Russians release their Clinton email stash (hypothetical, but possible according to Comey)? He said that would not change anything. So someone can waltz into office, disregard all protocol, inadvertently hand over 60,000 of her emails, some with black-world level sensitivity, and there is no legal recourse? Is this not absurd, that the our trillion dollar (or whatever) federal intelligence and law enforcement apparatuses are powerless to enforce negligence, and must rely on the relevant policies of the offender's department for compliance? Apparently if Clinton had put those secrets online accidentally, and then a big foreign donation hit the Clinton Foundation by coincidence, the government is legally neutered from responding. This is disturbing. The alternative, that Comey was in fact politically influenced, is equally disturbing. Both scenarios are disturbing.

 The Hail Mary

Speaking of the Clinton Foundation, there is just one more thing. When Chaffetz was questioning Comey about the things that were not investigated, he asked if they had looked at the Clinton Foundation. Comey replied that, pay attention here, he replied in an uncharacteristically brusk tone that he did not want to comment on other potential ongoing investigations. When pressed further, he said he would answer no more question on the matter.

Now this is the strongest indication yet to validate rumors that the FBI opened a second investigation to see if RICO charges are appropriate regarding the foreign bribe machine that is the Clinton Foundation. I don't want to get anyone's hopes up, but it would make some sense. Maybe Comey doesn't want the country to get bogged down in the email issue if something much juicier is in the pipline.

It's a long-shot, but it's why I'm adamant that people lay off the cries of foul play. If there was influence, it's already done. We lost. If it is truly a proper investigation with a crummy conclusion, then we should adopt the attitude of the House Republicans, who respect Comey and his process but do question the outcome. And if there really is a RICO investigation in the works, we need to be in a position where the FBI and its decisions are already held in high regard. The Democrats have already outdone themselves on this. Let's not counter that. The whole thing is not over by a long shot, so everyone needs to calm the fuck down, get some popcorn, and watch as C-SPAN wins national ratings in the drama genre.

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