Seriously? A ‘CYA’ letter to Congress to insulate the FBI for a sloppy investigation?

FBI Director James Comey has been under intense criticism from Tea-Publicans and the conservative media entertainment complex for his conclusion at the end of the Hillary Clinton email investigation that, in his judgment, “no reasonable prosecutor would bring such a case.” FBI Statement. All the wingnuts have been falsely accusing the FBI of a “coverup” ever since because they did not get their lifelong dream of prosecuting Hillary Clinton.

Then on Friday, FBI Director James Comey sent a “cover your ass” (CYA) letter to Congress to notify Congress that the FBI had missed some electronic devices belonging to Clinton aide Huma Abedin, despite having interviewed and deposed her and obtaining access to her emails in the Clinton email investigation, emails discovered in the course of investigating Abedin’s estranged husband, former congressman Anthony Weiner. This CYA letter is politically motivated to insulate the FBI from further criticism from wingnuts of a “coverup,” because Comey has been sensitized to this criticism. How could the FBI investigation have missed these emails? Answer: sloppy investigation.

What Director Comey did is unprecedented, and is a violation of Department of Justice protocol and longstanding practices. Jane Myer at The New Yorker explains:

On Friday, James Comey, the director of the Federal Bureau of Investigation, acting independently of Attorney General Loretta Lynch, sent a letter to Congress saying that the F.B.I. had discovered e-mails that were “potentially relevant” to the investigation of Hillary Clinton’s private server. Coming less than two weeks before the Presidential election, Comey’s decision to make public new evidence that may raise additional legal questions about Clinton was contrary to the views of the Attorney General, according to a well-informed Administration official. Lynch expressed her preference that Comey follow the department’s longstanding practice of not commenting on ongoing investigations, and not taking any action that could influence the outcome of an election, but he said that he felt compelled to do otherwise.

Comey’s decision is a striking break with the policies of the Department of Justice, according to current and former federal legal officials. Comey, who is a Republican appointee of President Obama, has a reputation for integrity and independence, but his latest action is stirring an extraordinary level of concern among legal authorities, who see it as potentially affecting the outcome of the Presidential and congressional elections.

“You don’t do this,” one former senior Justice Department official exclaimed. “It’s aberrational. It violates decades of practice.” The reason, according to the former official, who asked not to be identified because of ongoing cases involving the department, “is because it impugns the integrity and reputation of the candidate, even though there’s no finding by a court, or in this instance even an indictment.”

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According to the Administration official, Lynch asked Comey to follow Justice Department policies, but he said that he was obliged to break with them because he had promised to inform members of Congress if there were further developments in the case. He also felt that the impending election created a compelling need to inform the public, despite the tradition of acting with added discretion around elections. The Administration official said that Lynch and Justice Department officials are studying the situation, which he called unprecedented.

The worst part of this is that Comey’s vaguely worded letter has fueled uninformed hysterical media speculation during the final 10 days of an election. Greg Sargent of the Washington Post has the best summary I have seen so far as to how little is actually known by the media, the facts be damned. James Comey needs to clean up his mess. Here’s what we need to know.

There is a lot of new reporting out there this morning about the letter that FBI director James Comey sent to Members of Congress, notifying them about newly discovered emails that may be pertinent to the FBI’s previous investigation into Clinton’s use of a private email server.

Those emails reportedly could number in the thousands and were discovered on a laptop used jointly by former Congressman Anthony Weiner and his wife, Huma Abedin, a top aide to Clinton, and were discovered in the course of an unrelated probe into Weiner’s sexting.

Unfortunately, the latest reporting is often contradictory and confusing. So here’s my best effort to sift through it.

Comey’s language is maddeningly opaque and cryptic. In his letter to lawmakers, Comey says that the new emails “appear to be pertinent” to the previous investigation into Clinton’s use of a private server. He also says the FBI is now seeking to “determine whether they contain classified information,” and “cannot yet assess whether the material may or may not be significant.” (Emphasis mine.)

But Comey’s own declaration that the new emails “appear to be pertinent” suggests that they are significant. Comey surely knew that news organizations would conclude as much, which is what they are now doing, with screaming headlines and with analysis claiming this could impact the presidential race.

Perversely, we are being told by news outlets that the new info may not be substantively significant, but it may be politically significant, which, you’d think, is an outcome Comey would have wanted to avoid.

Comey’s latest justification requires more explanation. Sari Horwitz reports that Comey sent a second letter to FBI employees yesterday to explain his decision to brief lawmakers, perhaps anticipating that his move would come under scalding criticism. [I take this as an admission by Comey that he knows he violated department protocol and practices.] In that second letter, Comey said that he felt it would be “misleading to the American people” if he did not let them know that he had turned up new emails, after having said in July that the investigation was completed, with no recommendation of charges. Yet in this letter, Comey also conceded: “given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression.”

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[O]ne thing seems inarguable: Comey had to know that releasing such a vaguely worded letter to lawmakers at this time would allow Republicans to argue that new evidence of Clinton’s criminality has been discovered. This is of course exactly what has happened. This risks “misleading” the American people, which Comey’s latest justification claims he wanted to avoid, and which Comey has now facilitated and enabled in a huge way. If he actually does want to avoid this, he should rectify the situation by providing more clarity right now.

Of course, it’s not clear how much the FBI actually knows about the current emails. Here’s what we don’t know:

We don’t know whether Clinton sent any of these emails. The Los Angeles Times reports that according to one official, “the emails were not to and from Clinton.” But the Washington Post reports something different: according to a law enforcement official, the “correspondence included emails between Abedin and Clinton.” That could simply mean emails were sent by Abedin to Clinton, and that Clinton didn’t send any. But we just don’t know.

Meanwhile, Kurt Eichenwald’s sources offer a fuller explanation: They say Abedin frequently printed out emails she had received that she thought Clinton should read, and in some cases printed out emails that Clinton had forwarded to her for that purpose. Abedin used several email accounts for this task, Eichenwald reports, and this is how the newly discovered ones ended up on the shared device. Eichenwald adds:

If the FBI determines that any of the documents that ended up on the shared device were classified, Abedin could be deemed to have mishandled them. In order to prove that was a criminal offense, however, investigators would have to establish that Abedin had intended to disclose the contents of those classified documents, or that she knew she was mishandling that information.

In this telling, the FBI may now be looking at whether Abedin improperly handled emails with classified info in them. But as has already been established, the FBI doesn’t even know yet whether they contain classified info. Eichenwald adds, however, that “none” of the newly found emails were sent from Abedin to Clinton, which would seem to suggest they were all emails Abedin had received from other sources that she wanted to print for Clinton to read.

What’s unclear to me is how even much of this is known. Pete Williams reported last night that the FBI will need to get a court order to even read the newly found emails. So it’s not clear how we know the little bit we have been told. But the reporting suggests that FBI officials who are leaking to the press do know more than they’ve publicly acknowledged.

Many of these emails may be duplicates. The Post report includes this:

Officials familiar with the inquiry said it was too early to assess the significance of the newly discovered emails. It is possible, they said, that some or all of the correspondence is duplicative of the emails that were already turned over and examined by the FBI.

Some or all of them could be duplicates. If so that would dovetail with the notion that the discovered emails do not contain new significance, which, again, Comey repeatedly conceded is a genuine possibility.

But we just don’t know. And by the way, the Trump campaign and the Clinton campaigns are both demanding to know more information about what Comey found, as is Judicial Watch, the conservative legal organization that has long pursued the Clintons. So this isn’t a partisan demand.

This is an absurd mess. Comey should do whatever he can to clean it up as quickly as possible. Unfortunately, if the FBI cannot get immediate access to the emails, he may not be able to. Which calls into question the original decision to release such a vaguely worded letter in the first place. Even if it was in some ways understandable, the current outcome it has produced surely is not.