Patterico's Pontifications

4/21/2018

James Comey and the Iron Law of Bureaucracy

Filed under: General — Patterico @ 5:00 pm

…in any bureaucratic organization there will be two kinds of people. First, there will be those who are devoted to the goals of the organization. … Secondly, there will be those dedicated to the organization itself. … The Iron Law states that in every case the second group will gain and keep control of the organization. It will write the rules, and control promotions within the organization.

— Jerry Pournelle’s Iron Law of Bureaucracy

James Comey’s new book doesn’t show him to be a political partisan. It shows him to be a shining example of Jerry Pournelle’s Iron Law of Bureaucracy: a man who cared more about the reputation of the institution he headed than he cared about the principles of justice for which it stands.

Why read this review? After all, there have been many reviews of, and articles about, James Comey’s new book. You may be tired of the topic. Based on what I’ve read, I am too. Because all we hear is he said about Donald Trump, because Donald Trump means eyeballs and clicks. We hear nonsensical conspiracy theories from those out to smear him at all costs (“HE WAS BLACKMAILING DONALD TRUMP!!!1!”), or uncritical praise from those looking to hold him up as a hero of the “Resistance.” It’s partisan noise.

I have something different to say because I don’t fall into one of these two categories. I’m just a normal person with a demanding day job, who didn’t get an advance copy and took three days to read it. So if you’re interested in a non-partisan’s take, read on.

I’m someone who agrees with Comey that Donald Trump is morally unfit for office. I tend to like Comey and (for the most part) find the universal disdain for him and his book befuddling. But this post constitutes a harsh criticism of Comey, because it’s the thing that has most bothered me about him — and it’s the part of the book that I found most jarring. It’s his inexplicable decision to let Hillary Clinton off the hook. And to my way of thinking, Comey just keeps digging that hole deeper in his book. To me, nothing demonstrates his elevation of the FBI’s reputation over equal justice under the law like his mishandling of the Hillary investigation.

While I can’t take the time and space to revisit the entirety of the Hillary email investigation, I think it’s worth spending some time on the central issue — in particular because a lot of inaccurate things have been written about it.

Comey in his book makes it clear that the central issue, for him, was Hillary’s “intent” in setting up a private system for communication concerning job-related information, including classified information:

Our investigation required us to answer two questions. The first question was whether classified documents were moved outside of classified systems or whether classified topics were discussed outside of a classified system. If so, the second question was what the subject of the investigation was thinking when she mishandled that classified information.

. . . .

In Secretary Clinton’s case, the answer to the first question—was classified information mishandled?—was obviously “yes.” In all, there were thirty-six email chains that discussed topics that were classified as “Secret” at the time. Eight times in those thousands of email exchanges across four years, Clinton and her team talked about topics designated as “Top Secret,” sometimes cryptically, sometimes obviously. They didn’t send each other classified documents, but that didn’t matter. Even though the people involved in the emails all had appropriate clearances and a need to know, anyone who had ever been granted a security clearance should have known that talking about top-secret information on an unclassified system was a breach of rules governing classified materials. Although just a small slice of Clinton’s emails, those exchanges on top-secret topics were, by all appearances, improper. Put another way, there were thirty-six email chains about topics that could cause “serious” damage to national security and eight that could be expected to cause “exceptionally grave” damage to the security of the United States if released. The heart of the case, then, was the second question: What was she thinking when she did this? Was it sloppy or was there criminal intent? Could we prove that she knew she was doing something she shouldn’t be doing?

Here’s the thing: that’s not the way the statute reads. The relevant statute is 18 U.S.C. § 793(f):

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) 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, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.

Comey admits that the information was removed from its proper place of custody. So her state of mind was indeed the only issue. But Comey misdescribes the required state of mind under the law. The issue is not whether she was “sloppy” (meaning no filing) or whether she had “criminal intent” (meaning a filing). The issue is whether she acted “through gross negligence…or having knowledge” (meaning a filing) or not (meaning no filing).

And, damningly, we know that the FBI itself initially considered her actions to be grossly negligent, but FBI agent Peter Strzok changed the wording to “extremely careless” in an apparent attempt to obscure the similarity between their view of her actions and the statutory language. And Comey went along with it:

Her actions in regard to her emails seemed really sloppy to us, more than ordinary carelessness. At one point the draft used the term “grossly negligent,” and also explained that in this case those words should not be interpreted the way a hundred-year-old criminal statute used the term. One part of that 1917 law made it a felony if a person “through gross negligence permits [classified material] 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.”

The history of that provision strongly indicated that Congress in 1917 meant the statute to apply only to conduct that was very close to willful—that is, driven by bad intent—and members of Congress who voted for it back then were very concerned that they not make merely careless behavior a felony. I was told that the Department of Justice had only charged one person under this statute since 1917—a corrupt FBI agent whose conduct was far worse than gross negligence—and no one had ever been convicted under it. This context strongly reinforced my sense that the statute simply did not apply in the Clinton email case and made use of the term “grossly negligent” inappropriate and potentially confusing, given the old statute. So I directed our team to consider other terms that more accurately captured her behavior. After looking at multiple drafts, I settled on “extremely careless” as the best way to describe the conduct.

If Comey had been trying to damage the reputation of the FBI, I can think of few ways better than to describe a presidential candidate’s actions in a manner that directly tracks with the language of a criminal statute, and then authorizing a change in that language for the express purpose of making it read differently from the language of the statute.

Comey makes matters worse by claiming that one of the few regrets he has about the handling of the investigation is using the phrase “extremely careless.” Why? Because it sounds so much like “grossly negligent” — meaning it made Hillary sound guilty.

Hindsight is always helpful, and if I had to do it over again, I would do some things differently. . . . More important, I would have tried to find a better way to describe Secretary Clinton’s conduct than “extremely careless.” Republicans jumped on the old statute making it a felony to handle classified information in a “grossly negligent” way — a statute that Justice would never use in this case. But my use of “extremely careless” naturally sounded to many ears like the statutory language -– ‘grossly negligent’ –- even though thoughtful lawyers could see why it wasn’t the same.

What other language could he have used that would have both accurately described Clinton’s conduct — but would not have made her conduct sound like it fit within the statute? Comey offers no alternative, and the plain truth is, there is none. Because, no matter how you word it, Clinton’s behavior was grossly negligent. Use any phrase you like. It doesn’t change the facts.

And some “thoughtful” lawyers think Comey rewrote the statute. Andrew C. McCarthy made the case very effectively in a piece titled FBI Rewrites Federal Law to Let Hillary Off the Hook. Quote:

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.

By the way, Comey is just wrong that only one person had been charged with gross negligence in handling classified information since 1917. Andrew C. McCarthy has shown that the gross negligence standard has been used in military prosecutions. And in Fortune Magazine, Roger Parloff discusses two such cases of people being charged in the past on a gross negligence theory:

United States v. Rickie L. Roller: In 1989, a Marine Corps sergeant was working in a secured area where he habitually, and lawfully, placed classified material in his desk. After some nasty run-ins with his superior, he was transferred. On his last day, packing his office, he threw a bunch of personal effects from his desk into a gym bag including, as it happens, several classified documents, some of which were Top Secret. A few weeks later, he discovered the classified materials. Fearing reprimand, he hid them in his garage. He planned, he later testified, to destroy them when he got to his next duty station. When he did move to the new location, however, the professional movers helping him came across the classified documents. They notified the authorities. After a search, the remaining documents were found. Roller was sentenced to five years, which was commuted to 10 months confinement.

United States v. Arthur E. Gonzalez: In February 1979, an Air Force staff sergeant took a trip to visit an oil worker friend in Prudhoe Bay, Alaska. When he arrived, he discovered that he’d inadvertently intermingled two Top Secret messages with some personal mail he’d taken. He put the documents in a desk drawer in his friend’s room, intending to pick them up when he returned to his squadron. When he departed on February 25, however, he forgot the documents, leaving them in the desk. Gonzalez’s friend shared the room with another oil worker, with each occupying it on alternate weeks. In early March, the other oil worker discovered the documents, gave it to his oil company supervisor, who gave it to the Air Force authorities. Gonzalez was sentenced to five months confinement, which was commuted to 43 days.

Parloff claims: “Neither case closely resembles Clinton’s situation. In each instance, the perpetrator at some point realized that classified materials had been removed from a secure location and taken to an insecure one, and then failed to act promptly to report or fix the problem. The FBI researchers seemed to believe that Clinton and her colleagues never came to such a realization, even if they should have.” This is laughable on several levels. How could Clinton possibly think that the material on a private server is a “secure” location? Not even Comey tries to make this argument. As we have seen, Comey acknowledges that classified information was mishandled, and that “anyone who had ever been granted a security clearance should have known that talking about top-secret information on an unclassified system was a breach of rules governing classified materials.”

Even if intent were the standard, there was evidence to support it. In previous accounts, Comey always tried to distinguish other cases by pointing to attempts by those defendants to cover up what they had done, such as lying to investigators or taking other actions showing a guilty conscience. But there was evidence that Hillary knew she wasn’t supposed to do what she was doing, and there was evidence that she wasn’t truthful — all evidence Comey doesn’t discuss in his book.

For example, the Washington Post has reported: “A note sent to all State Department employees on Clinton’s behalf warned them against the risks of using personal email addresses for official business.” Clinton claimed not to remember this, but when you’re warning people not to engage in a particular pattern of behavior while engaged in that pattern of behavior yourself, it tends to support a notion that you know that what you are doing is wrong.

And Clinton said some laughable things during her FBI interview. I’ll cite one howler as an example: As NBC News reported on September 3, 2016:

Clinton also told FBI investigators that she wasn’t sure what the “c” meant next to paragraphs in one email that was used to designate confidential information.

This is laughable. But don’t take my word for it. Here is an excerpt from a contemporaneous podcast called Rational Security. The people on the podcast are Brookings Institute types. They’re not really big Hillary Clinton fans, but they are absolutely disdainful of Donald Trump, one and all. So when you hear this opinion, you know you’re not hearing from Trump partisans. Start listening beginning at 28:51, where Shane Harris, a Washington Post reporter, discusses Hillary’s answer that the “c” was possibly just one in a series:

SHANE HARRIS: For instance, there was a moment in the 302 that revealed that she was asked, she was shown an email that had the C, the letter C, next to it, indicating a classified, you know, passage, and they said “Well what did,” essentially “What did you think that this meant?”

SUSAN HENNESSEY: Indicating a confidential passage —

SHANE HARRIS: Confidential, right, confidential goes under the heading of classified, yes, confidential in that case, and she said, “Well, I don’t know. It could have been like C as in a sequence. A, B, C.” That is absolutely ridiculous, and at a press conference she would have been — I mean there would have been cackles in the audience when she said that. You could have followed up on it. You could say: “How in the world could you think that? How could you stand here and think we would believe that you, as the Secretary of State, thought that stood for like the letter C as in Part 3?”

But if you read Comey’s book, it’s clear that he didn’t make these decisions for partisan reasons, as much as partisans would like to claim that. He had no love for Hillary Clinton. He had a love for the FBI as an institution, and he spends pages and pages praising the institution and talking about how he was trying to protect it. It’s clear that the paramount thing in his mind was the organization. And it got to the point where protecting the organization outweighed the simple task of justice: deciding whether one person’s conduct had violated a statute.

Here’s what I said about all this in July 2016:

One rule for the little guy, another for the Important People.

I’m still confused about how deliberately setting up a private system for communication, including routinely sending and receiving classified information up to and including top secret information, is not “intent” to move that information from its proper place of custody. I’m also baffled as to when gross negligence was written out of the statute, or how “extremely careless” is different from being grossly negligent.

Ultimately, Comey’s inaction is the criminal referral analogue to John Roberts’s decision upholding ObamaCare. Someone with a reputation as a good guy had a failure of nerve when it mattered most, and elevated their judgment about the practical consequences to their institution over the rule of law. Weak people act differently when their actions are the subject of intense public scrutiny. They cave, and find ways to rationalize actions that minimize criticism rather than vindicate principles.

I think a central question in any job interview should be: when have you ever taken a large risk or sacrificed something for a principle?

But then, people like that don’t tend to rise to the top.

I now think that assessment is little unfair when used to describe Comey’s entire career. I do think there are times he stuck his neck out for principle. He can be a bit santimonious about that. But he still did it — something I can’t imagine, say, Donald Trump doing.

But as to the Hillary email investigation, I still feel the same way as I did in July 2016. At the risk of patting myself on the back, I think I hit the nail on the head in particular with the phrase about how Roberts and Comey both “elevated their judgment about the practical consequences to their institution over the rule of law.”

And what is most maddening about Comey’s book is the way that he portrays himself as the guy who rises about politics — which he arguably did — while being completely blind to the way that he failed to rise above an excessive concern for the reputation of his institution. Comey, like Roberts before him, worried so much about what people would say about the institution he headed that he failed to set aside all outside concerns and judge the case on its own merits.

But these men are hardly unique in doing so. As much as they rationalize their actions with easily rebutted attempts at reasoning, they are ultimately putting the organization first, and the principles of the organization second.

And that’s so common that there’s a Law to describe it. An Iron Law.

[Cross-posted at RedState and The Jury Talks Back.]

89 Responses to “James Comey and the Iron Law of Bureaucracy”

  1. nobody has done more to expose the seedy corrupt FBI as the fascist joke it is than Jim Comey

    literally nobody has done more

    happyfeet (28a91b)

  2. ‘It’s his [Comey’s] inexplicable decision to let Hillary Clinton off the hook… He had no love for Hillary Clinton. He had a love for the FBI as an institution, and he spends pages and pages praising the institution and talking about how he was trying to protect it. It’s clear that the paramount thing in his mind was the organization. And it got to the point where protecting the organization outweighed the simple task of justice: deciding whether one person’s conduct had violated a statute.’

    Boom. This is spot on, Patterico.

    She’d lost any chance for my vote the day news surfaced of that ‘secret server’ anyway. But anybody else w/her years of experience at high levels of government handling materials– classified, secret and such– as she did would have had some kind of prosecution pressed upon them. ‘Sloppiness,’ ‘carelessness,’ ‘technophobia’… it was simply no excuse.

    She learned nothing from the 1990’s. And apparently none of her loyalists have, either.

    ___________

    ‘…in any bureaucratic organization there will be two kinds of people. First, there will be those who are devoted to the goals of the organization. … Secondly, there will be those dedicated to the organization itself. … The Iron Law states that in every case the second group will gain and keep control of the organization. It will write the rules, and control promotions within the organization.’

    That’s a fair assessment; within NASA, it’s more or less what led to the loss Challenger– and Columbia.

    DCSCA (797bc0)

  3. I’m sorry, Patterico, but I do not see how Comey was protecting the FBI. How? From what?

    Moreover, I do not see the two excerpts you quote about the use of of “extremely careless” as anything more than “Gosh, I wish I could have found an even weaselier ‘least-untruthful’ phrase to whitewash Hillary with”.

    nk (dbc370)

  4. I also disagree with Pournelle. It is not the second group in the organization who are the bad people. Because that would include just about every institution in the world, churches and governments being the first on the list.

    It is the third group. The one which uses the organization, its resources and its power corruptly for their own personal or factional interests. Like Stalin using the KGB to eliminate challengers within his own Politburo and Red Army, and Lois Lerner using the IRS against the TEA Party.

    nk (dbc370)

  5. These folks don’t seem to feel bound by the statutes. Even the judges seem read them according to their preconceived notions, so the actual language becomes a mere curiosity..

    Digger (bd8bb2)

  6. …putting the organization first…’

    You know, Patterico, it’s fair to ask just how pervasive this is; or how many others who may be in line for senior positions within the FBI would have acted differently given this manifestation of “an excessive concern for the reputation of his institution.” It certainly may not be unique to the FBI, either, nor a healthy trend.

    DCSCA (797bc0)

  7. One of your best, Pat. Thomas Sowell would be proud to read it.

    We do disagree as to Comey’s fundamental character. Happily, I don’t need intent to indict him. :)

    Ed from SFV (4f3559)

  8. When asked, Comey says he does not know if the allegations made in the Steele Dossier are true and yet it was used to secure the FISA warrant. Unless I misunderstand, that doesn’t meet requirements.

    Colonel Haiku (2601c0)

  9. @4. I also disagree with Pournelle. It is not the second group in the organization who are the bad people.

    Don’t look at it as a matter of ‘good’ or ‘bad’ but more a symptom of calcification; to preserve a status quo. Apply it to other bureaucratic institutions. For instance, the managers at NASA in the early shuttle days were all mostly old Apollo hands; good, experienced people. But as the hearings revealed after Challenger was lost, preserving the culture of the organization had encroached upon the goals of the organization itself. And 16 years later, it surfaced again w/t loss of Columbia.

    DCSCA (797bc0)

  10. Ditto. Good post, Patterico.

    DCSCA (797bc0)

  11. All Comey had to do was do his job and he’d still have it but he lost sight of that a long time ago. I miss reading Pournelle’s take. His telling of the night he crashed his beloved bronco in Death Valley is something else.

    crazy (d99a88)

  12. Right-minded vs. wrong-headed.

    DCSCA (797bc0)

  13. Things change after just a few days.

    harkin (379712)

  14. Today I saw a movie about a king whose son, the crown prince, rebelled against him. He could not execute him for treason because that meant that his grandson, the crown prince’s son, would not be able to inherit the throne (actually he would have been executed too under the attainder law), and that would be the end of the royal line since he had no other sons. So he adjudged him to be simply an insane person who had attempted fratricide and locked him up in a rice chest to die of thirst. Now that is the way to preserve an institution.

    nk (dbc370)

  15. I think a central question in any job interview should be: when have you ever taken a large risk or sacrificed something for a principle?

    I’d also ask: “when have you ever made a big decision that was taken against your personal interests?”

    Plenty of people are willing to sacrifice MY interests for THEIR principles, but when it’s their own interests on the block it gets more complicated.

    Kevin M (752a26)

  16. The one which uses the organization, its resources and its power corruptly for their own personal or factional interests.

    It’s the same group, nk. Once the institutionalists get control, caring naught about the stated mission, they will then choose whatever mission is most likely to keep the organization funded.

    And so they audit the right people, or tap the right phones or send the right enemies to jail for picayune crimes. You see, they don’t view doing whatever-it-takes as “corrupt.” They view it as “smart”, or even “principled” as it protects the organization.

    Kevin M (752a26)

  17. he adjudged him to be simply an insane person who had attempted fratricide and locked him up in a rice chest to die of thirst. Now that is the way to preserve an institution.

    nk (dbc370) — 4/21/2018 @ 6:17 pm

    Do you think Steve Jobs watched that movie?

    Pinandpuller (69da0c)

  18. Sorry, I thought you meant a chest filled with rice.

    Pinandpuller (69da0c)

  19. That he was “protecting the FBI” is one way of looking at it. Then, there’s McCarthy’s column today pointing out that the real news from the McCabe investigation is the confirmation that Matthew Axelrod, the top aide to Sally Yates, called McCabe was “pissed off” the FBI was investigating the Clinton Foundation. Axelrod didn’t dispute the conversation, only the FBI “spin” creating a “totally unfair” impression of “political interference” https://www.nationalreview.com/2018/04/andrew-mccabe-collusion-obama-justice-department-clinton-campaign/

    Why would one ever think the DOJ or FBI committed “political interference” for the Hilary Clinton?

    pete (a65bac)

  20. BTW, I also applaud this post, as it puts a finger on my basic problem with Comey. The man who put Martha Stewart in prison for a face-saving lie would not file charges against an obviously willful government officer who had repeatedly and knowingly breached her trust.

    I have signed some of the forms she signed, and the statutes are repeated therein. You sign that you have read them (and only a fool does not).

    So, to me, everything Comey says is suspect and unreliable. His book is uninteresting in the extreme. This does not mean that I take Trump’s word over his, it means I refuse to play the “find the truth-teller” game. I’d rather watch “Bosch.”

    Kevin M (752a26)

  21. While it is quite possible that the [xxxxx] DA’s office is an exception to the Iron Law, it bodes ill for Patterico’s rise to vast prosecutorial power.

    Kevin M (752a26)

  22. I join my voices to the others who appreciate this post, Patterico.

    I miss the old curmudgeon Pournelle, and I do think he understood institutional behavior.

    Look around us. There are people who split words very finely indeed depending on whether or not they like or approve of the person involved. Thus we have HRC supporters who accept things from her campaign they would never accept from any other candidate. And DJT supporters doing the same blessed thing.

    So it isn’t a wonder that an institutional mindset evolves to protect that institution—regardless of what the voters or pundits say.

    It’s reminds me of some of the social parody from Swift’s “Gulliver’s Travels.”

    I think our current nonsense is starting to encourage people to ask a question. It’s not “when we do it, it is okay.” I think the very clear and blatant partisanship we see—all around—is starting to make people ask themselves to identify their principles. And, I hope against hope, to stand by them.

    My late father used to say that the quality of one’s character is defined by how they treat those who have wronged them. Do we truly believe what we say we do?

    So: I very much appreciate this essay of yours. And more to the point, the responses to it I have read here.

    Simon Jester (3697fa)

  23. On March 10, 2004, while United States Attorney General John Ashcroft was at the George Washington University Hospital for gallbladder surgery,[39] Comey received a call from Ashcroft’s wife informing him that White House Chief of Staff Andrew Card and White House Counsel Alberto Gonzales were about to visit Ashcroft to convince him to renew a program of warrantless wiretapping under the Terrorist Surveillance Program which the DOJ ruled unconstitutional.[39] Ashcroft refused to sign, as he had previously agreed, but the following day the White House renewed the program anyway.[39] Mueller and deputy attorney general James Comey then threatened to resign.[40] On March 12, 2004, after private, individual meetings with Mueller and Comey at the White House, the president supported changing the program to satisfy the concerns of Mueller, Ashcroft, and Comey.[41][40]

    President Bush is presented with an honorary FBI Special Agent credential, 2008
    As director, Mueller also barred FBI personnel from participating in enhanced interrogations with the CIA. At a dinner, Mueller defended an attorney (Thomas Wilner) who had been attacked for his role in defending Kuwaiti detainees. Mueller stood up, raised his glass, and said, “I toast Tom Wilner. He’s doing what an American should.” However, the White House pushed back, encouraging more vigorous methods of pursuing and interrogating terror suspects. When Bush confronted Mueller to ask him to round up more terrorists in the U.S., Mueller responded, saying, “If they [suspects] don’t commit a crime, it would be difficult to identify and isolate” them. Vice President Dick Cheney objected, by saying, “That’s just not good enough. We’re hearing this too much from the FBI.”[42]

    Heroes who would kill us all

    EPWJ (ade23f)

  24. what’s scary to think about is how passively and readily the slovenly and cowardly men and women of the fbi followed this corrupt lickspittle, even as it became clear he was working to undermine the peaceful transfer of power that’s been the hallmark of our government since it was founded

    happyfeet (28a91b)

  25. Perhaps I am a dunce, but I fail to understand how anybody would think that protecting Clinton from prosecution advances the goal of protecting the FBI, nor do I understand what it needed to be protected from. It has done nothing but irreparably harm the the reputation and integrity of the FBI.

    Getting rid of Comey won’t really help, because culture starts at the top. If Comey is corrupt so is everybody beneath him, as ideological conformity rather than crime-busting competence tends to be the route to promotion in that kind of organization. Unfortunately a bunch of them probably cannot be fired due to civil service rules, which means the FBI is all likelihood now a permanent arm of the progressive left, as much of the judiciary and the permanent bureaucracy already is.

    Bob Smith (9a0676)

  26. If Comey is corrupt so is everybody beneath him

    The corruption’s become accepted and even condoned.

    How the sleazy FBI works is understood by everyone in America now: the FBI targets people (not crimes) and relentlessly combs through their affairs and associates until they have something they can use to destroy that person’s life.

    happyfeet (28a91b)

  27. It is hard to defend Comey’s handling of the Clinton emails. I haven’t read the book, but Patrick’s analysis of what Comey did rings true.

    But in “defending the organization”, didn’t he really make things much harder on *himself*?

    From what I understand, the decision to prosecute or not prosecute belongs to the DoJ – ultimately the Attorney General, although IIRC Lynch had recused herself due to the tarmac meeting with Bubba and some deputy would have made the call in her place. The FBI’s role is to make a recommendation, and normally this recommendation is not divulged publicly (but is usually, but not always, followed). The roles are similar to the local jobs of the police (who investigate, like the FBI) and the district attorney (who decides whether to press charges, and which charges, like the DoJ).

    From what I understand, he took it upon himself to hold a press conference announcing the recommendation, in violation of all precedent, when he could have passed the recommendation (silently) to the DoJ and let them take the heat for letting Clinton off the hook. In effect, he took ownership of the controversial decision, on behalf of the FBI. Which seems hard to square with his claimed motive of protecting the reputation of the organization.

    Remember too, the Democrats think that his rogue press conference, and the harsh public reproach of Clinton when there were no charges filed (and no opportunity for exoneration) was an irresponsible and inexcusable act of unprofessionalism. And even if you think Hillary was guilty (as I do) there is no denying that they have a point – Comey flagrantly ignored established policy that the FBI doesn’t reveal derogatory information about people who aren’t being prosecuting.

    It doesn’t seem like the behavior of a “weak” person to voluntarily take responsibility for an extremely controversial decision that will bring down unimaginable vituperation and hostility on their head – this case from both political tribes. It was gutsy. Misguided, but gutsy, IMO.

    Dave (445e97)

  28. I’m glad that I’m not the only “dunce”, Mr. Smith. I also don’t see what Comey was protecting the FBI from. Did he think that Bernie Sanders or Donald Trump, one of who would be the next President with Hillary in the pokey, would disband the FBI? No, no, no, he was as confident on July 5 as he was on October 28 that Hillary would be the next President and he was protecting his job is what I think.

    nk (dbc370)

  29. And how come nobody corrected me that killing one’s father is parricide, not fratricide? Fratricide is killing a brother.

    nk (dbc370)

  30. Perhaps Comey was devoted to the organization, and maybe that explains the actions taken. But, flip the script. If Trump had been in a position where classified info was accessible, and he mishandled it, does anyone seriously think Comey would’ve found a way to mitigate the offense? Sorry, no. Charges would be filed, and all of the usual suspects in the upper echelons (Clapper, Lynch, former directors like Brennan and, yes, Mueller) would be whooping it up. Not a spec of downside.

    Comey knew that filing charges would throw the election to Trump, when everyone thought Hillary would win easily. Let’s not make this more complicated than it is.

    random viking (fc723d)

  31. hillary was also in possession of two potentially historic boobies

    the pussyhat fbi looked upon these boobies and they were scared and confused

    and they knelt before them saying to each other

    these boobies are sacred and just; we will subvert the law to protect them

    happyfeet (28a91b)

  32. nk, was that movie Korean? The story rings a bell for me, and I dimly remember the locale as being Korea c.600 CE

    Kishnevi (5a999e)

  33. Thank you, happyfeet. You’ve helped clarify it for me. So you think that by “protecting the FBI” Comey means “not doing anything that might make the FBI look like it influenced an election”. Hmm.

    nk (dbc370)

  34. by “protecting the FBI” Comey means “protecting the lawless and rogue fbi’s freedom of movement”

    happyfeet (28a91b)

  35. I think he was trying to protect his bureaucracy, but utterly failed. I still remember the day he stood there and said he was not going into Hillary’s case further because “no attorney would ever file” against her. I gasped. What LEO would have the guts to say that in public? And yet he persists. SMH.

    I’m not a lawyer but Comey, McCabe, the Two Cheesy Lovers, all are making the FBI look like fools and criminals.

    Patricia (3363ec)

  36. Yes, Kishnevi. “The Throne.” It’s on Netflix.

    nk (dbc370)

  37. I’m sorry, Patterico, but I do not see how Comey was protecting the FBI. How? From what?

    Moreover, I do not see the two excerpts you quote about the use of of “extremely careless” as anything more than “Gosh, I wish I could have found an even weaselier ‘least-untruthful’ phrase to whitewash Hillary with”.

    I agree with all of this and am puzzled that you don’t realize we agree.

    He wasn’t protecting the FBI. He thought he was. But he was harming its credibilty.

    And yes. He seems to have been looking for another weasel phrase. That was my point.

    Patterico (115b1f)

  38. I agree with all of this and am puzzled that you don’t realize we agree.

    I got caught up in Comey’s narrative and missed your points?

    nk (dbc370)

  39. I don’t Netflix….

    Kishnevi (5a999e)

  40. nk:

    From the post:

    If Comey had been trying to damage the reputation of the FBI, I can think of few ways better than to describe a presidential candidate’s actions in a manner that directly tracks with the language of a criminal statute, and then authorizing a change in that language for the express purpose of making it read differently from the language of the statute.

    Patterico (115b1f)

  41. I went back and reread it, Patterico. With more attention to your analysis.

    nk (dbc370)

  42. It was a long piece. Probably should have been shorter and clearer.

    Patterico (b1f26f)

  43. He wasn’t protecting the FBI. He thought he was. But he was harming its credibility.

    You pegged it, P.

    Right-minded vs. wrong-headed.

    DCSCA (797bc0)

  44. It doesn’t seem like the behavior of a “weak” person to voluntarily take responsibility for an extremely controversial decision that will bring down unimaginable vituperation and hostility on their head – this case from both political tribes. It was gutsy. Misguided, but gutsy, IMO.

    It would have been gutsier to recommend a filing.

    Patterico (b1f26f)

  45. They knew she mishandled the information and they knew she had been grossly negligent. They just didn’t like where that took them.

    Patterico (b1f26f)

  46. If the suspect was anybody but a Presidential candidate in an election year, they would have recommended charges. It seems clear. Because it was, they rationalized like mad.

    Patterico (b1f26f)

  47. 46.They knew she mishandled the information and they knew she had been grossly negligent. They just didn’t like where that took them.

    You keep hitting home runs like this and you’re gonna get a call from the front office of the New York Yankees. Your analysis of Comey’s quandary is excellent.

    DCSCA (797bc0)

  48. If the suspect was anybody but a Presidential candidate in an election year, they would have recommended charges. It seems clear. Because it was, they rationalized like mad.

    Ah! Maybe that’s where we disagree? Do you give Comey and the other “they” credit for good faith? Because I don’t. I think there was collusion between the Clintons and Lynch, and it went down to Comey, McCabe and Strzok, with Obama at the very least being aware of and smiling approvingly.

    nk (dbc370)

  49. So is HRC off the hook completely for the email thing now?

    Wasn’t the destruction of 30K emails a bigger crime than setting up private server in first place?

    Does HRC still have a security clearance?

    What about all the govt folks who corresponded with her, saw that her email address was NOT .gov, and yet still did not report her? Are they culpable?

    gp (0c542c)

  50. Agree nk, Obama be laughing his A off, while he remodels the old magnum p.i. Property.

    mg (9e54f8)

  51. Perhaps I am a dunce, but I fail to understand how anybody would think that protecting Clinton from prosecution advances the goal of protecting the FBI

    Everybody expected Hillary to win, at least until the final week. Pitting the FBI against the sure-thing next President seemed a bad idea. As it happened, Comey tried to play both sides and got caught at it.

    Kevin M (752a26)

  52. Does Trump really call Rosenstein Mr. Peepers? Boy, I hope so.

    Pinandpuller (69da0c)

  53. Everybody expected Hillary to win, at least until the final week. Pitting the FBI against the sure-thing next President seemed a bad idea.

    Except if indicted, it’s quite possible Clinton would have been forced out of the race before the Dem convention. Had she stayed in while under Federal indictment for a felony, it would have changed the dynamic of the race significantly, and not in her favor.

    Dave (445e97)

  54. Comey is a equivocator and a sea lawyer. Look at the dossier, where the Congress asked to source of it and he failed to discloser that it had been commissioned by the Clinton campaign. The school I went to would kick people out for an honor violation for equivocation. It’s because it is “intent to deceive”. He doesn’t belong teaching ethics. Wouldn’t want to serve with him. Don’t trust him. He’s a typical DC area stuffed shirt.

    Anonymous (d41cee)

  55. @53. If you can’t build a wall, build up Wally Cox, PP.

    DCSCA (797bc0)

  56. “If the suspect was anybody but one of the Democratic Party elite, they would have recommended charges.”

    Fyp

    Harkin (379712)


  57. Had she stayed in while under Federal indictment for a felony, it would have changed the dynamic of the race significantly, and not in her favor.
    Dave (445e97) — 4/22/2018 @ 1:40 am


    Right, because democrats have proven to be so ethical in the past they would never elect criminals like Ted Kennedy, Marion Barry, Bill Clinton, Weiner, Ceco Valasquez, Ron and Tom Calderon…..the list is almost endless. But neverTrumpers are willing to let a grifter from Haiti and Don of the Clinton Crime Family win because voting for Trump was just so, so morally bad. Ha!

    Rev.Hoagie (1b0402)

  58. Like grist for your mill, Hoagie…

    Colonel Haiku (2601c0)

  59. Except if indicted, it’s quite possible Clinton would have been forced out of the race before the Dem convention.

    Pissing off the entire Democrat Party, and it’s not like that buffoon Trump was going to win, eh?

    Kevin M (752a26)

  60. …still can’t outrun the Kennedys (pardon the source): http://www.cnn.com/2018/04/21/politics/romney-utah-gop-convention/index.html

    urbanleftbehind (08649a)

  61. … And it got to the point where protecting the organization outweighed the simple task of justice: deciding whether one person’s conduct had violated a statute.

    Deciding whether a statute was violated isn’t really the end of the inquiry. If you construe the statures strictly enough you could prosecute lots of people for inadvertent violations of the rules. This would destroy morale among people who work with classified material and so isn’t done. If Clinton was prosecuted for conduct that as a matter of practice is never (or almost never criminally charged) this would also be seen as a political decision.

    James B. Shearer (a9b467)

  62. I don’t see what FBI reputation Comey was supposedly concerned about. Sure, he told us Hillary had done all these things. Then, after Weiner’s commo was found, she’d done more. But no reasonable prosecutor was going to hew to the statute and prosecute her. This is why Hillary’s fans claim she’s the most investigated woman in the world and is always shown to be innocent. DoJ isn’t going to prosecute Hillary no matter what. Apparently when the fix is in, getting the advantage of the fix means either you didn’t do it or Hillary’s fans can make themselves sick laughing about how she got away with yet another illegal or crappy action.
    The FBI’s rep survived Whitey Bulger, Tsarnaevs, Mateen, Waco, Ruby Ridge, Ted Stevens, Hasan, Richard Jewell. Why on Earth burying Hillary’s misdeeds until after the election was going to leave a mark is hard to figure. So it doesn’t seem that the reputation argument Comey is making is actually true.

    Richard Aubrey (10ef71)

  63. Right, because democrats have proven to be so ethical in the past they would never elect criminals

    Senator Robert Torricelli was unavailable for comment.

    Dave (445e97)

  64. Just waiting for the new law that lets convicts vote and keeps soldiers from casting a ballot. Lawyers are clueless.

    mg (9e54f8)

  65. Only ten states now don’t allow convicts, not in prison or on probation or parole, not to vote. Of the remainder and DC, two allow convicts to vote from prison. This “convicts voting ilegally” is #FakeIssueWithBellsOn.

    And I don’t like absentee voting or voting by mail or internet. That’s where the real potential for fraud is. How do you verify ID and maintain the secrecy of the ballot, eh? I’d abolish it even if it means soldiers don’t vote.

    nk (dbc370)

  66. The fix was in from the start. Strike one. Comey had no right to give a press conference and play DOJ attorney General. Strike two. Comey refuses to admit he was wrong. Strike three.

    Trump should have fired him on day 1.

    rcocean (a72eb2)

  67. Unless he’s prosecuted for leaking classified material, it looks like Comey’s 15 minutes of fame are almost up.

    And thank God for that.

    Now, Trump needs to fire Rosenstein, and if Sleepy Jeff wants to resign over that, good riddance.

    rcocean (a72eb2)

  68. “If Clinton was prosecuted for conduct that as a matter of practice is never (or almost never criminally charged) this would also be seen as a political decision”

    I would agree, if it weren’t for the creation and ongoing use of an email server designed to evade accountability and oversight. That’s deliberate and knowing action, not mere inadvertent violation.

    Bob Smith (9a0676)

  69. Trump should put Rosenstein’s initial letter out there that detailed the reasons why Comey should be fired. Gingrich says it is “devastating”.

    Colonel Haiku (1a00eb)

  70. Clinton wasn’t prosecuted because she was emailing Obama and other senior administration officials. She may be arrogant and entitled but she’s not stupid. She made them all guilty. No prosecutor working for Obama was going to touch that case. Comey failed at rescuing her sure-thing candidacy and stand up for the Bureau because you didn’t have to be a deplorable to see what he was doing. The more he talks the more obvious the motive(s) for his actions are. He’d be wise to go away but he won’t be.

    crazy (d99a88)

  71. Poor Mr James Comey, he cared and cared just ever oh so much about the reputation of his beloved FBI that he refused to investigate his preferred presidential candidate’s gross criminal destruction of evidence for the purpose of obstructing justice.

    Comey was so caught up in his emotional attachment to A that he betrayed A’s reason to exist.

    Patterico makes a different but similar error when he attempts to devine Hillary’s ‘intent’ by examining the emails she didn’t destroy.

    There’s nothing quite like letting the perp sort through the evidence beforehand so that damning information can be omitted. Then, clearly, subsequent attempts to inform the conclusions of others predicated on Hillary’s self-serving and self-sanitized record just can’t be taken as a valid exercise.

    That dog won’t hunt.

    ropelight (e06d37)

  72. I believe that most of Donald Trump’s February 14, 2017 conversation with FBI Director Janes Comey did not concern Mike Flynn (which would not have taken up too much time also) but concerned leaks, and specifically one leak, a New York Times story that had appeared that day

    https://www.nytimes.com/2017/02/14/us/politics/russia-intelligence-communications-trump.html

    …which Comey later went to great lengths to assure everybody was false..

    Comey actually admitted in his spoken testimony that Trump mostly spoke about leaks.

    If you read Comey’s prepared statement closely, you see he has Trump talking about leaks only when Comey suspects they might have been overheard.

    https://www.cnn.com/2017/06/07/politics/james-comey-memos-testimony/index.html


    February 14 Oval Office Meeting

    On February 14, I went to the Oval Office for a scheduled counterterrorism briefing of the President. He sat behind the desk and a group of us sat in a semi-circle of about six chairs facing him on the other side of the desk. The Vice President, Deputy Director of the CIA, Director of the National CounterTerrorism Center, Secretary of Homeland Security, the Attorney General, and I were in the semi-circle of chairs. I was directly facing the President, sitting between the Deputy CIA Director and the Director of NCTC. There were quite a few others in the room, sitting behind us on couches and chairs.

    The President signaled the end of the briefing by thanking the group and telling them all that he wanted to speak to me alone. I stayed in my chair. As the participants started to leave the Oval Office, the Attorney General lingered by my chair, but the President thanked him and said he wanted to speak only with me. The last person to leave was Jared Kushner, who also stood by my chair and exchanged pleasantries with me. The President then excused him, saying he wanted to speak with me.

    When the door by the grandfather clock closed, and we were alone, the President began by saying, “I want to talk about Mike Flynn.” Flynn had resigned the previous day. The President began by saying Flynn hadn’t done anything wrong in speaking with the Russians, but he had to let him go because he had misled the Vice President. He added that he had other concerns about Flynn, which he did not then specify.

    The President then made a long series of comments about the problem with leaks of classified information — a concern I shared and still share. After he had spoken for a few minutes about leaks, Reince Priebus leaned in through the door by the grandfather clock and I could see a group of people waiting behind him. The President waved at him to close the door, saying he would be done shortly. The door closed.

    The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.” (In fact, I had a positive experience dealing with Mike Flynn when he was a colleague as Director of the Defense Intelligence Agency at the beginning of my term at FBI.) I did not say I would “let this go.”

    The President returned briefly to the problem of leaks. I then got up and left out the door by the grandfather clock, making my way through the large group of people waiting there, including Mr. Priebus and the Vice President….

    Sammy Finkelman (02a146)

  73. 69. yes but the rivate email took the place of teh State Dept’s unclassified </I. system.

    Sammy Finkelman (02a146)

  74. 69. yes but the private email took the place of the State Dept’s *unclassified* system.

    Bombshell: In Email, Hillary Ordered Aide to Strip Classified Marking and Send Sensitive Material

    happyfeet (28a91b)

  75. Right, because democrats have proven to be so ethical in the past they would never elect criminals like Ted Kennedy, Marion Barry, Bill Clinton, Weiner, Ceco Valasquez, Ron and Tom Calderon…..the list is almost endless. But neverTrumpers are willing to let a grifter from Haiti and Don of the Clinton Crime Family win because voting for Trump was just so, so morally bad. Ha!

    Rev.Hoagie (1b0402) — 4/22/2018 @ 6:45 am

    Thing is, Marion Barry was actually one of the most well educated and accomplished Democrats ever but cocaine is a hell of a drug.

    Pinandpuller (16b0b5)

  76. B*tch set ‘im up…

    Colonel Haiku (1a00eb)

  77. Sammy everything I said @71 about HRC’s emails is true regardless. Her immunity came from the fact that she routinely exchanged classified information with other senior administration officials, including Obama, over unclassified systems. They’re all guilty. Charge her and you have to charge them. She knew it wasn’t going to happen. That’s why she was never concerned about being charged.

    As to her privately owned and operated server that was a clear violation of Department policy not to use private systems for government business that she issued to all department personnel. But that’s a subject for another day.

    crazy (d99a88)

  78. 69

    I would agree, if it weren’t for the creation and ongoing use of an email server designed to evade accountability and oversight. That’s deliberate and knowing action, not mere inadvertent violation.

    But as I understand it the accountability she was trying to avoid was that of the Freedom of Information Act which doesn’t apply to classified material. It appears the State Department email system she didn’t use was “low side” and therefore also should not contain any classified information.

    James B. Shearer (a9b467)

  79. This is not a good theory. Nothing Comey did to “throw” the case against Hillary and her obvious crimes protected the FBI. The Bureau looks like a bunch of dishonest jerks no matter what the rationale for the jerky behavior may be. So, assuming Comey’s not totally stupid, a desire to make his organization look good has nothing to do with the Hillary whitewash. More likely Mr Non-Partisan expected Hillary to be his future boss, indicted or not, and wanted to get a leg up on the suck-up game.

    tom swift (308b70)

  80. the fbi is diseased

    happyfeet (28a91b)

  81. Comey admits that the information was removed from its proper place of custody. So her state of mind was indeed the only issue. But Comey misdescribes the required state of mind under the law. The issue is not whether she was “sloppy” (meaning no filing) or whether she had “criminal intent” (meaning a filing). The issue is whether she acted “through gross negligence…or having knowledge” (meaning a filing) or not (meaning no filing).

    I’m not an attorney — just a layman — but I can’t figure out from the reading of the statute that you quoted where there’s a “state of mind” at issue, although it is perhaps merely legal semantics. Does the law consider “having knowledge” a “state of mind”?

    The reason that I ask is that, as a layman, I see it as an either-or question. You either have the knowledge or you don’t. I thereforse see that because of her (Hillary’s) briefings on classified materials (you know, the ones that she signed off on having taken) that she understands — i.e., that she legally knows — the nature, the procedures and the gravity of the classification system. After all, that’s the purpose of the briefings: to make sure that she’s responsible, personally, for maintaining the classification system. You know, like everyone else in the system is personally responsible for their actions.

    As such, she is legally presumed to “know” classified material when she sees it and it is patently obvious that, given her knowledge of the purpose and structure of the classification, that quite obviously she took pains to circumvent the system. She therefore cannot claim that a) she didn’t “know” that there wasn’t a classification system in place and b) didn’t “know” the purpose to the said classification system and thus, c) that her actions to deliberately circumvent it was in fact in violation of the rules of the system.

    So “intent” is either irrelevant or it’s obvious. It’s irrelevant in that Hillary had legal knowledge of the requirement to use the classification security system. The statute declares that anyone “having knowledge” of violations must report them immediately. I simply don’t see “intent” as an option here (apart from Hillary’s intent to avoid using the classification system in the first place.) She “knew” of the violations, whether she “intended” anything or not. At that point, she is legally required to report the violation and she didn’t.

    And, with respect to being “obvious”, since she was in fact briefed on the security system, her deliberate circumvention of the system over the period of years is obviously a conscious violation of the security protocols. Either way, intent is a legally settled issue.

    At any rate, what has happened is that the bureaucracy has taken an objective violation of the law — i.e., a fact — and through the Iron Laws of the bureaucracy made a subjective determination of law that — surprise! — protects their interests. This is exactly what liberalism has been doing for decades in the courts — destroying objective law — and this is a clear example that they have no qualms about doing it through the deep state bureaucracy either.

    J.P. (bb0956)

  82. Comey is a weasel. He has proven this repeatedly as we all have seen in this past year+.

    thpfister (8c7074)

  83. Comey showed me his character when he was asked about not informing Congressional oversight on the monitoring of the Republican campaign. Leave aside the issue of the wiretapping or of not informing Congress. The ethical insight is when asked about it, he said the decision was from a subordinate.

    What, one of the biggest things going on and huge political problem and you don’t take responsibility? I could care less who made the initial decision. Comey OWNS that not-informing-Congress. It was a big deal and happened on his watch. It was not some minor matter out of hundreds of cases going on. But his first instict is to shimmy away.

    Sorry buddy. That’s not “ethics professor” behavior. Thank God, he is heading to W&M instead of USNA. Wouldn’t want our warriors getting infected with his sea lawyer excuses.

    Anonymous (d41cee)

  84. …Sorry buddy. That’s not “ethics professor” behavior. Thank God, he is heading to W&M instead of USNA. Wouldn’t want our warriors getting infected with his sea lawyer excuses.

    Anonymous (d41cee) — 4/23/2018 @ 4:33 pm

    I was intel. Once you lie you can never get any trust back. Never. The only currency you have is the truth.

    And I can hear the laughter. We in intel are used to being the butt of the joke. Our motto was, “If we couldn’t take the blame, they wouldn’t keep us around.” And here’s the dealio, daddy-O. There are (Shocka!) intel officers who will lie to you. The joke is that an Admiral calls his staff officers in to ask how much is two plus two. The first guy is his commo, who proceeds to give him a complicated math question. The Admiral shuts him down, saying he doesn’t need all that. So he calls in his OPSO, who shrugs his shoulders and sez, “Dunno.”

    So now he calls in his intel officer, and asks him, “How much is two plus two.”

    And the intel officer looks around, peeks out the door, draws the curtains, and whispers in the Admiral’s ears, “How much do you want it to be?”

    Steve57 (0b1dac)

  85. Oh, I’ve lied. “Does this dress make me look fat?”

    Steve57 (0b1dac)

  86. But never about a Sang-O being out of port.

    Steve57 (0b1dac)


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