Tag Archives: James Comey

180 Former Federal Prosecutors Call For a Special Counsel

The Federal court for the Southern District of New York handles trials in New York City and neighboring counties. It’s the most respected trial court in America. That’s why it’s sometimes called “The Mother Court”:

We think of the Southern District as the Mother Court for many reasons beyond seniority and geographic significance. Nationally recognized for the outstanding quality of its judiciary, the excellence of the advocates who appear before it, its authoritative opinions grounded in real substance, the sensitive management of its docket, and its relevance to the rule of law, the Mother Court is the gold standard for trial courts around the United States. It is the country’s crucible of justice in the continuously unfolding history of our Nation. [American Bar Association]

It’s news, therefore, that 180 former Federal prosecutors for the Southern District are calling for Deputy Attorney General Rod Rosenstein to appoint a Special Counsel to oversee the FBI investigation into DT’s campaign and Russia [City Project]:

May 12, 2017

Rod J. Rosenstein, Esq.
Deputy Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Dear Mr. Deputy Attorney General:

We, the undersigned, are former United States Attorneys and Assistant United States Attorneys for the Southern District of New York. In view of the recent termination of James Comey as Director of the Federal Bureau of Investigation, we are writing to request that you appoint a special counsel to oversee the FBI’s continuing investigation of Russian interference with the 2016 Presidential election and related matters. This letter is addressed to you rather than the Attorney General since he has recused himself from this matter.

As you know, Jim has had a long and distinguished career with the Department of Justice, beginning with his appointment as an Assistant United States Attorney in the Southern District of New York serving under United States Attorneys Rudolph Giuliani, Benito Romano and Otto Obermaier from 1987 through 1993. He returned to the Southern District of New York in 2002 when he was appointed the United States Attorney and served in that capacity until he was confirmed as Deputy Attorney General in 2003. Most of us came to know Jim when he worked in the Southern District of New York. Many of us know him personally. All of us respect him as a highly professional and ethical person who has devoted more than 20 years of his life to public service.

While we do not all necessarily agree with the manner in which he dealt with the conclusion of the Hillary Clinton email investigation, we sincerely believe that his abrupt and belated termination for this conduct, occurring months later and on the heels of his public testimony about his oversight of the investigation of Russian interference with the 2016 presidential election, has the appearance – if not the reality – of interfering with that investigation. Even if this investigation continues unabated, there is a substantial risk that the American people will not have confidence in its results, no matter who is appointed to succeed him, given that the Director of the FBI serves at the pleasure of the President. We believe it is critical in the present political climate and clearly in the public’s interest that this investigation be directed by a truly independent, non-partisan prosecutor who is independent of the Department of Justice, as is contemplated by 28 C.F.R. §600.1.

We are Republicans, Democrats and independents. Most importantly, we are proud alumni and alumnae of the Department of Justice. We do not suggest that you or any other members of the Department of Justice or a newly appointed Director of the FBI would not conduct yourselves properly, but the gravity of this investigation requires that even the appearance of political involvement in this investigation be avoided. As former prosecutors, we believe the only solution in the present circumstances would be to appoint a Special Counsel pursuant to 28 C.F.R. §600.1, and we urge you to take that course.

Respectfully submitted,

Jonathan S. Abernethy Elkan Abramowitz Richard F. Albert
Marcus A. Asner Martin J. Auerbach Miriam Baer
Thomas H. Baer Kerri Martin Bartlett Maria Barton
Andrew Bauer Bernard W. Bell Richard Ben-Veniste
Neil S. Binder Laura Gossfield Birger Ira H. Block
Suzanne Jaffe Bloom Barry A. Bohrer Daniel H. Bookin
Jane E. Booth Katharine Bostick Laurie E. Brecher
David M. Brodsky Stacey Mortiz Brodsky William Bronner
Jennifer K. Brown Marshall A. Camp Bennett Capers
Michael Q. Carey Neil S. Cartusciello Sarah Chapman
Robert J. Cleary Brian D. Coad Glenn C. Colton
William Craco Nelson W. Cunningham Constance Cushman
Frederick T. Davis John M. Desmarais Rhea Dignam
Gregory L. Diskant Philip L. Douglas Sean Eskovitz
Jesse T. Fardella Meir Feder Ira M. Feinberg
Michael S. Feldberg Steven D. Feldman Edward T. Ferguson
David Finn Eric P. Fisher Sharon E. Frase
Steven I. Froot Maria T. Galeno Catherine Gallo
Robert Garcia Kay K. Gardiner Ronald L. Garnett
Scott Gilbert Barbara S. Gillers Mark Godsey
Joshua A. Goldberg James A. Goldston Mark P. Goodman
George I. Gordon Sheila Gowan Stuart GraBois
Paul R. Grand Helen Gredd Bruce Green
Marc L. Greenwald Jamie Gregg James G. Greilsheimer
Jane Bloom Grise Nicole Gueron Barbara Guss
Steven M. Haber Jonathan Halpern David Hammer
Jeffrey Harris Mark D. Harris Roger J. Hawke
Steven P. Heineman Mark R. Hellerer William Hibsher
Jay Holtmeier John R. Horan Patricia M. Hynes
Linda Imes Douglas Jensen James Kainen
Eugene Kaplan Steven M. Kaplan William C. Komaroff
David Koenigsberg Cynthia Kouril Mary Ellen Kris
Stephen Kurzman Nicole LaBarbera Kerry Lawrence
Sherry Leiwant Jane A. Levine Annmarie Levins
Raymond A. Levites Donna H. Lieberman Jon Liebman
Sarah E. Light Jon Lindsey Robin A. Linsenmayer
Edward J.M. Little Mary Shannon Little Walter Loughlin
Daniel Margolis Walter Mack Kathy S. Marks
Mark E. Matthews Marvin S. Mayell Sharon L. McCarthy
James J. McGuire Joan McPhee Christine Meding
Paul K. Milmed Judith L. Mogul David E. Montgomery
Lynn Neils Peter Neiman Rosemary Nidiry
Tai H. Park Robert M. Pennoyer Elliott R. Peters
Michael Pinnisi Robert Plotz Henry Putzel
T. Gorman Reilly Emily Reisbaum Peter Rient
Roland G. Riopelle Michael A. Rogoff Benito Romano
Amy Rothstein Thomas C. Rubin Daniel S. Ruzumna
Robert W. Sadowski Elliot G. Sagor Peter Salerno
Joseph F. Savage John F. Savarese Edward Scarvalone
Kenneth I. Schacter Frederick Schaffer Gideon A. Schor
Julian Schreibman Wendy Schwartz Linda Severin
David Siegal Marjorie A. Silver Paul H. Silverman
Charles Simon Carolyn L. Simpson David Sipiora
Dietrich L. Snell Peter Sobol Ira Lee Sorkin
David W. Spears Katherine Stanton Franklin H. Stone
Richard M. Strassberg Howard S. Sussman Erika Thomas
Richard Toder Timothy J. Treanor Paula Tuffin
Peter Vigeland David Wales Max Wild
Samuel J. Wilson Elaine Wood Paulette Wunsch
Thomas Zaccaro Ellen Zimiles  

cc: Jefferson B. Sessions III, Esq.
Attorney General of the United States

This letter reflects the signers’ personal views, not of the U.S. Attorney’s Office for the Southern District of New York, the U.S. Department of Justice, or any other government agency.

Note: It represents my personal views too, although I carry no weight with the Department of Justice and they’re too nice to Comey.

PS: It’s actually 179 former prosecutors, but as we used to say, that’s close enough for government work.

In Reaction to the Reactionary-in-Chief’s Latest Offense

The Federal Bureau of Investigation has only had seven Directors (as opposed to acting Directors) in its 82-year history. From what I can gather, none of the seven have been Democrats or liberals. Even Democratic Presidents have selected conservative Republicans for the job. There have only been three Democratic Presidents who had the chance to select an FBI Director and Jimmy Carter, Bill Clinton and Barack Obama were all known for their “bipartisan” tendencies. No doubt the three of them also wanted to appear “tough on crime”.

So it’s unlikely that our Republican President will nominate a Democrat to lead the law enforcement agency that’s looking into his Russian connection. But he could pick a respected Democrat. It would make the President look less like the criminal that he is.

I can’t think of anything else to say about this crisis that’s not already being said. For instance:

John Cassidy, The New Yorker:

Ever since [DT] took office, many people have worried about his commitment to democratic norms, the Constitution, and the rule of law. From the hasty promulgation of his anti-Muslim travel ban onward, he has done little to salve these concerns. Now he has acted like one of the authoritarian leaders he so admires—a Putin, an Erdoğan, or an El-Sisi.

Congress must restrain him and reassert the principles of American democracy by appointing an independent special prosecutor to take over the Russia investigation. If the legislature won’t act unprompted—and the initial signs are that most of the G.O.P. intends to yield to the President’s abuse of his power—it will be incumbent on the American people to register their protests forcefully, and to put pressure on their elected officials. [DT] is a menace. He must be stopped.

David Cole, The New York Review of Books:

Current investigations in both the House and the Senate are controlled by Republicans, and as House Intelligence chair Devin Nunes has shown, party loyalty can all too easily compromise a meaningful inquiry. In early April, Nunes was forced to step down from his committee’s investigation… That’s why Comey was such a threat to [DT]. He was the only official independent of the administration and its party reviewing the campaign’s ties to Russia….

The vitality of the rule of law in the United States will depend on whether the American people are willing to hold the Trump administration accountable. As Archibald Cox said, shortly after Richard Nixon fired him as Watergate special prosecutor: “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people.” We remain a democracy, at least for the time being, and if we the people insist on an independent investigation, we will get one. But only if we insist—including by demanding that our elected representatives take full responsibility for addressing this crisis with every power at their disposal. As Ben Franklin reportedly warned some 240 years ago, the Framers gave us “a republic, if you can keep it.” [DT]’s latest action puts that question once again to the test.

So far, Congressional Republicans are either supporting the President’s obstruction of justice or expressing “concerns”. (If he were to murder a nun in the middle of Pennsylvania Avenue, the most thoughtful Republicans might be moved to express “deep concerns”.)

It’s not clear, therefore, that putting pressure on Republicans will make much of a difference. If you want to see what members of Congress are saying, however, The New York Times is keeping track.

As of 3:40 p.m. today

138 Democrats (or independents) have called for a special prosecutor 

84 Democrats (etc.) and 5 Republicans have called for an independent investigation.

41 Republicans and 9 Democrats have questions or concerns (the Democrats have deep concerns)

96 Republicans are neutral or support the President’s action

146 Republicans and 12 comatose Democrats haven’t said a thing 

Zero members of Congress have called for the President’s immediate impeachment (I added this category myself. It doesn’t hurt to mention it.)

In Case You Missed It, Let’s Review the Crime That’s Still in Progress

Republican Senator Mitch McConnell and Republican FBI Director James Comey, with help from Vladimir Putin and Julian Assange, are in the process of stealing our election. They’ll do it unless the Electoral College does its constitutional, patriotic duty nine days from now and elects Hillary Clinton or some other qualified person.

The indictment:

According to the CIA, and probably the NSA too, neither of which are generally considered left-wing organizations, Russia hacked both Democrats and Republicans this year, but the Russians only gave the Democrats’ stolen information to Wikileaks. Wikileaks then gave the information, some of which was embarrassing to the Democrats and the Clinton campaign, to the world.

In September, President Obama informed Congressional leaders that the Russians had done this in order to elect the Orange Menace. Obama also requested a bipartisan declaration opposing the Russian interference in our election. But Senator McConnell, the Republican Majority Leader, wouldn’t make a joint statement, arguing that it would interfere with the election.

Instead, on October 7th, the Department Of Homeland Security and the Office of the Director of National Intelligence issued their own watered-down joint statement on Russia’s hacking activity, not pointing out that only information damaging to the Democrats was being revealed:

The U.S. Intelligence Community [which includes the CIA, FBI, NSA and thirteen other agencies] is confident that the Russian Government directed the recent compromises of e-mails from US persons and institutions, including from US political organizations…. These thefts and disclosures are intended to interfere with the US election process….We believe, based on the scope and sensitivity of these efforts, that only Russia’s senior-most officials could have authorized these activities.

Furthermore, on October 31st, the Financial Times reported that the Republican Director of the FBI was against making even that announcement:

FBI chief opposed US statement blaming Russia for hacks

Government official says James Comey had election timing concerns

Of course, only three days before, and only eleven days before the election, Director Comey ignored the Department of Justice policy against making such announcements near an election and sent a letter to Congressional leaders announcing a new investigation into emails possibly involving Hillary Clinton.

That letter was immediately leaked to the press and led to a blizzard of news coverage. The Orange Menace immediately declared that “this changes everything”. Although nothing at all came of the investigation, the Clinton and T—p campaigns agree that the FBI’s new suggestion of scandal was the crucial last-minute event that swayed enough voters to change the election. From Politico:

Top officials for both campaigns said the revelation—which turned out to be an inconsequential cache of previously parsed emails kept on the laptop of Clinton aide Huma Abedin’s estranged husband, Anthony Weiner—was a game-changer in a race in which Clinton had little margin for error. Elan Kreigel’s team saw her numbers collapse in the most volatile swing demographic: educated whites who had been repulsed by Trump’s sexual misdeeds.

To sum up: Vladimir Putin releases hacked emails in order to defeat Clinton. Julian Assange makes the emails public. Mitch McConnell and James Comey interfere with voters being told about Russia’s plan on the grounds that it will affect the election, i.e. hurt the Republican candidate. Meanwhile, Comey ignores Department of Justice policy and tells the world that there is more to the supposed Clinton email scandal, not caring that his last-minute “revelation” will affect the election, i.e. hurt the Democratic candidate.

Despite everything, Clinton gets almost 3 million more votes than T—p nationwide. But in three “swing” states that Clinton expected to win, T—p gets 77,000 more votes than Clinton, giving him the Electoral College majority necessary to become President.

As the saying goes, can you spell “coup d’état”? How about “treason”? If you think that’s too harsh, how about “putting party ahead of country”?

The solution:

At this late date, the only ones who can prevent this crime from succeeding are the Republican members of the Electoral College. Thirty-seven of them can deny an unqualified, dangerous person the presidency and let the House of Representatives choose someone else. Forty-eight of them can switch to Hillary Clinton and elect the qualified person who got more votes. It’s that simple. 

And yet it’s that unlikely. What are the odds that there are more than a handful of Republicans among the 306 who will vote on December 19th who are sufficiently patriotic and sufficiently respectful of the Constitution to do what Alexander Hamilton said was necessary? Regarding the Electoral College, from The Federalist Papers, number 68:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?…

But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment….

All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President….

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.

I mean, how amazing would it be, if a band of brave citizens, now being referred to as “Hamilton Electors”, rose to the occasion, saved the world and got complimentary tickets to the Broadway smash “Hamilton” too?

PS – Forgot to mention that T—p is going to appoint Senator McConnell’s wife to a cabinet position. Others in T—p’s cabinet, like the head of Exxon who will be Secretary of State, are very pro-Russian. But emails!

PPS – Nate Silver, respected political analyst and statistician, on Twitter: “Clinton lost 4 states (FL, MI, WI, PA) by ~1 point. If not for Comey/Russia, she probably wins them all by ~2 points & strategy looks great.”

The Director of the F.B.I. Adds His Two Cents

I wasn’t surprised when James Comey, head of the F.B.I., announced that Hillary Clinton would not face criminal charges as a result of her email practices. But I was relieved. There was always the possibility that Comey, a Republican, might complicate the election by calling for an indictment. So it was good news when Comey said:

….no reasonable prosecutor would bring such a case…. In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.

That could have been the end of the matter. The F.B.I.’s job was to determine the facts and make a recommendation to the Attorney General. In this case, the recommendation was: “No prosecution is called for”.

But Comey had much more to say that morning (actually he had 2,300 words to say in his prepared statement). In an attempt at explanation, he included this preamble:

This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

As you’ve probably heard, Comey then went into some detail about what the F.B.I. found. He also strongly criticized Clinton for being careless with national security (although no actual breach of national security was detected) and offered critiques of some of Clinton’s statements.

Immediately, what seemed like a good day for Clinton seemed like a very bad day. Reporters and pundits repeated Comey’s language about carelessness and drew conclusions about the negative effects the F.B.I. director’s remarks would have. One reporter for the New York Times went so far as to write a theoretical attack ad for Trump’s campaign. It was presented on the front page of the Times as “news analysis”.

Since then, of course, the Republicans have strongly criticized Comey’s recommendation that Clinton not be prosecuted. And other facts have come out. For example, it turns out that some of the information that was labeled “classified” shouldn’t have been, according to the State Department, and that the labeling wasn’t done according to the rules in a clearly visible way.

Compared to the other issues we’re confronting, and considering who Clinton is running against, it’s possible that the email issue will fade away as the election approaches and our ballots are finally cast. (I’ve always thought this story was mainly interesting because it demonstrates how too much information is “classified” by overzealous government employees.) Nevertheless, after the initial blast of “analysis”, I saw an article and a letter to the editor that characterized Comey’s two-thousand-word statement in an interesting way.

The article in The Washington Post was written by a former director of the Justice Department’s public affairs office. It’s called “James Comey’s Abuse of Power” and is worth quoting at length:

When FBI Director James B. Comey stepped to the lectern to deliver his remarks about Hillary Clinton on Tuesday, he violated time-honored Justice Department practices for how such matters are to be handled, set a dangerous precedent for future investigations and committed a gross abuse of his own power.

…his willingness to reprimand publicly a figure against whom he believes there is no basis for criminal charges should trouble anyone who believes in the rule of law and fundamental principles of fairness.

Justice Department rules set clear guidelines for when it is appropriate for the government to comment about individuals involved in an ongoing investigation, which this matter was until prosecutors closed it Wednesday. Prosecutors and investigators can reassure the public that a matter is being taken seriously, and in some rare cases can provide additional information to protect public safety, such as when a suspect is loose and poses a danger.

And when the department closes an investigation, it typically does so quietly, at most noting that it has investigated the matter fully and decided not to bring charges.

These practices are important because of the role the Justice Department and FBI play in our system of justice. They are not the final adjudicators of the appropriateness of conduct for anyone they investigate. Instead, they build cases that they present in court, where their assertions are backed up by evidence that can be challenged by an opposing party and ultimately adjudicated by a judge or jury.

In a case where the government decides it will not submit its assertions to that sort of rigorous scrutiny by bringing charges, it has the responsibility to not besmirch someone’s reputation by lobbing accusations publicly instead. Prosecutors and agents have followed this precedent for years.

In this case, Comey ignored those rules to editorialize about what he called carelessness by Clinton and her aides in handling classified information, a statement not grounded in any position in law. He recklessly speculated that Clinton’s email system could have been hacked, even while admitting he had no evidence that it was. This conjecture, which has been the subject of much debate and heated allegations, puts Clinton in the impossible position of having to prove a negative in response….

While Clinton shouldn’t have received special treatment, she does not deserve worse treatment from her government than anyone else, either. Yet by inserting himself into the middle of a political campaign and making unprecedented public assertions, that is exactly what Comey provided.

Finally, a professor of legal ethics at the New York University school of law wrote this letter to The Times:

James B. Comey, the F.B.I. director, was out of line in holding a press briefing to deliver his verdict on Hillary Clinton’s use of a private server. The F.B.I. investigates crime and reports its findings and recommendations to federal prosecutors, who then decide whether to seek indictments.

The F.B.I. is neither judge nor jury. And it certainly has no business characterizing the noncriminal conduct of subjects of investigation, as Mr. Comey did. Cops, even top cops, should not play this role.

While it may gratify the country to hear Mr. Comey’s independent views on the server controversy, his press briefing sets a bad precedent that can harm the fair administration of justice. Few people under investigation have the resources Mrs. Clinton has to defend herself….

Once a decision is made not to indict, a prosecuting agency should say nothing more. Its job is to prosecute crime, and if there is no crime, it should remain silent.

My conclusion is that Comey’s statement was unusual in a way he didn’t think to mention, i.e., it was wrong for him to make it.