Good Friday Morning! There’s too much news this week. It’s a fire hydrant to the face kind of week. You have the historic meeting between Donald Trump and Kim Jong Un. Next, the FBI OIG dropped their report on the investigation into Hilary Clinton. And between those stories, primaries are happening across the country, the Supreme Court releases more opinions, and the Trump Foundation is getting sued for basically being a slush fund.
I’m covering the DOJ report first this week, it’s the capstone to the Hilary Clinton email server investigation, and it’s incredibly thorough. People will write stories based on that report for weeks to come, especially as more comes out about FBI leak investigations. Next up, the Trump-Kim summit and how to view it. Finally, I wrap up with some thoughts on the DOJ’s decision to no longer defend Obamacare in court. The Trump Foundation lawsuit is complicated enough that I’m passing on it for now until more comes out. Links follow.
New this week at the Conservative Institute
Examining what the decision does and what it leaves open for future litigation.
A pre-summit piece that looks at the summit plans and what to expect.
The FBI OIG Report on the Clinton Emails investigation of 2016
The massive and thorough report from the Office of Inspector General for the FBI got released Thursday afternoon. It’s 568 pages long, meaning I haven’t gone through everything yet — nor do I know anyone who has at this stage. But it does examine in incredible depth, the main question I’ve had about the entire Clinton investigation: Why didn’t the FBI recommend prosecution of Clinton on gross negligence grounds?
The reason that point has always stuck out to me is that James Comey’s declination speech, on July 5, 2016, laid out all the evidence and arguments you’d need to prosecute anyone on criminal gross negligence grounds. And if you read Chapter Six of the report, Comey’s initial draft of his statement accused Clinton of violating gross negligence standards (page 187):
There is evidence to support a conclusion that Secretary Clinton, and others, used the private email server in a manner that was grossly negligent with respect to the handling of classified information…. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for such an email conversation. Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
While the FBI was internally discussing how to handle this situation, one of the counter-intel people flat out said Clinton violated the law, page 190:
I believe it’s equally important for the Director to more fully explain why the FBI can, in good faith, recommend to DOJ that they not charge someone who has committed a crime (as defined by the letter of the law). It’s important the Director explain our recommendation from the FBI perspective and not from the DOJ/prosecutorial perspective. The FBI is recommending that charges not be brought in this instance, not only because “no reasonable prosecutor would bring such a case,” but because the FBI believes it’s the right thing to do based on….
The point he was making was that the FBI had to explain why it wouldn’t prosecute based on someone who broke the law. That gets answered in chapters two and seven of the report, and if you want a really short summary, they effectively summarized that Clinton and her team were too stupid to have committed gross negligence.
To meet the gross negligence standard, the prosecutors involved believed you had to have some level of intent, as they lay out on page 32:
[C]harging a violation of Section 793(f) likely required evidence that the individuals who sent emails containing classified information “knowingly” included the classified information or transferred classified information onto unclassified systems (Section 793(f)(1)), or learned that classified information had been transferred to unclassified systems and failed to report it (Section 793(f)(2)). Thus, the Midyear prosecutors interpreted the “gross negligence” provision of Section 793(f)(1) to require proof that an individual acted with knowledge that the information in question was classified.
And based on the interviews with Hilary Clinton and her staff, the FBI concluded that these people had no idea what they were doing, didn’t understand what classified information was, nor did they know the dangers of running an utterly insecure email server.
The stupidity defense.
On some level I get and understand this defense, it’s the same one that will likely free Trump and his team at the end of the Russian collusion investigation. But it is unsatisfactory. It’s also utterly appalling, as one FBI official put it (page 166):
Baker told the OIG that he thought that the conduct of former Secretary Clinton and her senior aides was “appalling with respect to how they handled the classified information…[and] arrogant in terms of their knowledge andunderstanding of these matters.” He stated that he was concerned about former Secretary Clinton’s level of knowledge and intent, and thought that she should have recognized the sensitivity of information in the emails sent to her. Baker said that he “debated and argued” with Comey and the Midyear team about former Secretary Clinton’s criminal liability, but ultimately came to the conclusion that declining prosecution was the correct decision after reviewing a binder of her emails. Baker said that he recognized there was a lack of evidence establishing knowledge of criminal intent, and that based on “the volume of…communications coming at [Clinton] at all times, day and night, given the heavy responsibilities that a Secretary of State has, isn’t she entitled to rely on [the classification determinations by] her folks?” Baker stated that he “did not like it…. I eventually agreed with it, but I did not like it.”
When you combine those conclusions with Comey’s insistence throughout his testimony, and the OIG’s findings, that anyone else who committed these actions would get prosecuted, you get the impression Clinton went free because of her name. Pursuing her under the gross negligence standard would have been new for the DOJ, but certainly not outside the bounds for them. US Attorneys test the limits on various statutes all the time, that’s how case law develops.
Ironically, the FBI’s decision on Clinton’s email server sets precedence for Bob Mueller’s team. If Comey didn’t think he could do anything without direct intent with a smoking gun, or something else like obstruction or perjury, that suggests the same thought process constrains Mueller.
The odds of Mueller finding a smoking gun in the Russian collusion matters is incredibly low. People like Paul Manafort are bad apples who deserve prosecution, but that was true of him long before he jumped on the Trump campaign. If a smoking gun existed in the Mueller case, we’d know it by now because someone, either Mueller or Trump’s team would leak it.
All of which suggests Mueller needs the interview with Trump because that’s his only shot at perjury. Outside of that, I’d expect a lackluster report, similar to Comey. Where the conduct is appalling, but the prosecutions are thin.
Other interesting tidbits
David French noted an interesting bit on page xii, of the executive summary, FBI agents took bribes from journalists:
We identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters. Attached to this report as Attachments E and F are two link charts that reflect the volume of communications that we identified between FBI employees and media representatives in April/May and October 2016. We have profound concerns about the volume and extent of unauthorized media contacts by FBI personnel that we have uncovered during our review.
In addition, we identified instances where FBI employees improperly received benefits from reporters, including tickets to sporting events, golfing outings, drinks and meals, and admittance to nonpublic social events. We will separately report on those investigations as they are concluded, consistent with the Inspector General Act, other applicable federal statutes, and OIG policy.
The FBI profusely leaked during the investigation and 2016 campaign. FBI personnel were also taking bribes to leak information to the press. There are going to be other reports from the OIG on this point, as they conduct more investigation and disciplinary proceedings.
I’d expect multiple firings based on this bribes section.
The text messages
The text messages between various FBI agents have played a significant role in the media narratives, particularly on the right. And the executive summary on page xi and xii lays out what the OIG learned:
The text messages and instant messages sent by these employees included statements of hostility toward then candidate Trump and statements of support for candidate Clinton, and several appeared to mix political opinions with discussions about the Midyear investigation.
We found that the conduct of these five FBI employees brought discredit to themselves, sowed doubt about the FBI’s handling of the Midyear investigation, and impacted the reputation of the FBI. Although our review did not find documentary or testimonial evidence directly connecting the political views these employees expressed in their text messages and instant messages to the specific investigative decisions we reviewed in Chapter Five, the conduct by these employees cast a cloud over the FBI Midyear investigation and sowed doubt the FBI’s work on, and its handling of, the Midyear investigation. Moreover, the damage caused by their actions extends far beyond the scope of the Midyear investigation and goes to the heart of the FBI’s reputation for neutral factfinding and political independence.
The critical thing to consider is that there’s no documentary or testimonial evidence that the implicit bias by several FBI employees against Trump appeared to impact their conclusions. Take that judgment for what it’s worth because it’s going to be debated non-stop by the cable news pundit class for days.
Comey used a private email account
Clinton wasn’t the only one using private email to do official business, so was Comey and some of his subordinates:
As we also describe in Chapter Twelve, we learned during the course of our review that Comey, Strzok, and Page used their personal email accounts to conduct FBI business.
We identified numerous instances in which Comey used a personal email account to conduct unclassified FBI business. We found that, given the absence of exigent circumstances and the frequency with which the use of personal email occurred, Comey’s use of a personal email account for unclassified FBI business to be inconsistent with Department policy.
He faces all the same problems Clinton does, although her private server is worse because it was less secure than an average Gmail account.
The bulk of all hot takes on this report will come from the executive summary, which is the first few pages of the report. The summary is easy to understand and gives you the highlights. The meat of the report gives a far more nuanced picture of what happened behind the scenes, and more disturbing.
For instance, in one segment of the report, Comey described Hilary Clinton using her private, unsecured email server to communicate with President Obama, while on foreign soil. Meaning she might as well have let that nation’s spies read over her shoulder. Comey ended up deleting that from his end statement, which extraordinary.
To say Clinton was reckless with American secrecy is putting it mildly. She was grossly negligent. So negligent, in fact, that the FBI believed she violated the statute but had no clean way of proving it. That’s not a rousing endorsement. And watching her play into the liberal meme of “but my emails,” pretending it was a nothing-burger shows she’s either still stupidly unaware of how she endangered America or doesn’t care.
And for that, she deserved to lose the Presidential election.
I think Dan McLaughlin of National Review said it best: “Reminder: if the Democrats had not nominated a candidate who was publicly marinated in corruption for 25 years & under a thoroughly justified FBI investigation in 2016, Trump would not be president.”
Hard to disagree.
P.S. I typically send this out at 4:30 am cst. I fully expect a tweetstorm from the President on this entire report that will set the media world on fire. It seems tailor-made for that sort of thing.
The Trump-Kim Summit and what to think about it
There are four ways you can read the Trump-Kim summit in comparison to similar moves by President Obama with Iran and Cuba:
- What Obama did was right with Iran and Cuba. What Trump is doing is wrong with North Korea.
- What Trump is doing is right with North Korea. What Obama did was wrong.
- What Trump and Obama did was right in each case.
- What Trump and Obama did was wrong in each case.
I don’t see much difference between the deals struck by Obama and Trump with any of these countries. The US is getting nothing in return and giving up a lot. If you like one agreement and not the others, it’s likely because you’re saying you trust one President over the other.
The “agreement” Trump signed with Kim is shallow and empty. It only covers four vague points:
- The United States and the DPRK commit to establishing new US-DPRK relations by the desire of the peoples of the two countries for peace and prosperity
- The United States and the DPRK will join their efforts to build a lasting and stable peace regime on the Korean Peninsula
- Reaffirming the April 27, 2018, Panmunjom Declaration, the DPRK commits to working toward complete denuclearization of the Korean Peninsula
- The United States and the DPRK commit to recovering POW/MIA remains, including the immediate repatriation of those already identified.
The DPRK has promised denuclearization six times since 1992, seven if you include the Trump-Kim summit. While denuclearization would be great, it’s something North Korea has often talked about but never done. They view nukes as the sole reason they exist.
Trump’s decision to halt “war games” with South Korea, really they’re military exercises, gives the North Koreans something they want for nothing in return. Trump also gave Kim legitimacy and allowed Kim and the North Korean flag legitimacy. I can’t even begin to describe the disgust I have for the American flag to sit next to the flag of the DPRK.
If Trump can somehow get denuclearization, all of this will be a success. But if he doesn’t, he’s given away a lot to the North Koreans for nothing in return.
Which would make this the worst deal cut in decades.
DOJ is no longer defending ACA (Obamacare) in court
Facing a federal lawsuit from Texas and several other red states who want the entire law overturned, the Justice Department announced late Thursday that it won’t defend a core ACA provision in court: the guarantee of coverage for preexisting conditions. In a legal filing, the department essentially agreed with much of the lawsuit’s rationale, which is that recent legislation has voided most of the ACA’s most important provisions. While it’s unclear whether this unusual decision by the DOJ will help the lawsuit’s chances, it is yet another signal that the ACA remains vulnerable to being dismantled in pieces.
One of the DOJ attorneys who was instrumental in crafting the Obama-era defenses of the ACA in court resigned in protest. Not a huge surprise given his career was built around defending the law across multiple jurisdictions and years.
AG Sessions’ decision raises the question of what powers the Executive Branch has in ignoring laws passed by Congress. Typically, under the separation of powers doctrine, the executive branch is tasked with enforcing the laws Congress passes. If the Executive Branch starts creating or ignoring laws passed by Congress, it can violate that separation of powers norm.
On that front, Trump is following recent norms by the Executive Branch in selectively enforcing some laws, while ignoring others. The discretion exercised here is the same power used by the Obama administration in 2011 when they declined to defend DOMA, the Defense of Marriage Act that defined marriage as between a man and a woman.
The Obama administration used prosecutorial discretion in the DOJ to help defeat laws they didn’t want to enforce. Trump is following that norm, which if you want a federal government that stays within its boundaries, you need a return to those norms:
Taken together with other preexisting trends — chief among them Congress’s decades-long abdication of power to the presidency — it’s becoming increasingly clear that America actually needs the federal government to depart from previous norms and restore constitutional values.
“Whataboutism” is a much-maligned term, but it has its uses. Ideally it should convince Americans of the longstanding degradation of America’s constitutional government. Instead, it’s now the ace-in-the-hole argument that enables additional legal abuses. No one is willing to be the first party to stop the slide. It’s seen as weakness. It’s seen as yielding a partisan advantage. But it’s time for a humbling national realization: Often, when decrying lost American values, the proper partisan reaction isn’t to point the finger; it’s to look in the mirror.
Links of the week
FBI agent who wanted to ‘stop’ Trump has really just helped him – John Podhoretz, New York Post
Scott Pruitt Should Go – The Editors, National Review
Bill Clinton’s Lessons – Jim Geraghty, National Review
Watch What You Say. Someone Else Is.: How the social justice mob decides who goes down, and who doesn’t. – Kevin D. Williamson, The Weekly Standard
The Terrible Arguments Against the Constitutionality of the Mueller Investigation – George Conway, Lawfareblog (Note: This piece is noteworthy because Conway is Kellyanne Conway’s husband, and a well-known/respected conservative lawyer)
Religion: A Viewpoint Diversity Blind Spot? – Seth Kaplan, Heterodox Academy
Business Class: Inside the strange, uniform politics of today’s MBA programs—and what it says about America’s elites – John Benjamin, The New Republic
Trump’s not wrong about pardoning himself – Michael W. McConnell, The Washington Post
The Democrats’ Radical Turn – Kyle Smith, National Review
Satire piece of the week
MENLO PARK, CA—In an effort to dismiss widespread criticism, Facebook CEO Mark Zuckerberg reportedly insisted Thursday that anyone with the same skewed values and tenacious thirst for power could have made the same mistakes he did. “I know I screwed up, and I understand why you’re all upset, but if you were a morally corrupt megalomaniac hell-bent on manipulating society to your twisted whims, you would have done the exact same thing,” said Zuckerberg
Thanks for reading!