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How One Retired Federal Prosecutor With 23 Years As An AUSA Sees It

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How To Read The Clinton Email Explosion

 

Different life experiences make different people see the same set of facts and conclude  very different z

Based on my time in the Reagan DOJ –reviewing applications for warrants submitted to the Foreign Intelligence Surveillance Court over the Attorney General’s signature– plus tours in the White House Counsel’s Office and as General Counsel and Deputy Director of the OPM, I have always viewed the server as a disqualifying issue for Secretary Clinton. The recklessness of the actions, the indifference to security and the cover-up telegraphed to me that her server was compromised by foreign intelligence agencies, an opinion former CIA Deputy Director Mike Morell confirmed on the record on my show, a conclusion confirmed even more forcefully off-the-record by another senior Agency retiree whose stellar career there ended recently.  That’s my experience and those are my sources. Folks with different experiences see it differently.
How does a veteran, fairly recently retired DOJ prosecutor view the developments of the past 72 hours? The prosecutor, whom I have known for more than a decade both while the prosecutor was an Assistant United States Attorney (for more than 2 decades) and now in private practice (not with me) is always serious and professional in the assessments of the complex cases I ask for an opinion on. Here are the 6 emails the veteran DOJer sent me in the past 24 hours as facts emerged on the Huma Episode:
1. “Huma is the ‘second daughter’ — most trusted aide of 20 years duration.
While Clinton was SOS from 2009 to 2013, Abedin had her first child in 2011.  Following the birth, she traveled less overseas with Clinton, choosing to remain behind with her child.
Oftentimes when traveling overseas, US senior officials are told to not use electronic devices, and to not access the internet through local wifi.
But Clinton is doing SOS business using her personal email — which would be unavailable to her, and is a closely guarded secret.
Who would she trust back in the US to sign in to her Clinton.com email and retrieve/relay messages?   Huma, of course.
Now, based on some conversations and reading I’ve done, a little understood feature of Outlook for those who are not very computer savvy, is that it automatically backs up ALL EMAILS from the email server onto the computer’s local hard drive every time you sign onto your email account, unless you turn that feature off.  This function means that you can work on your email — read, write, delete, catalogue when you have no internet connectivity, you just can’t send and receive.  But ALL your emails are stored on the hard drive of the computer used to access the account.
IF Huma signed in to Clinton’s email account using Weiner’s computer, then ALL 55,000 CLINTON EMAILS COULD VERY WELL HAVE BEEN ARCHIVED ON THAT HARD DRIVE BY OUTLOOK.
Its not a file you would see — you would only find it via administrator rights if you went looking for it.
And no one would have thought to use BleachBit on that computer.
This would explain why there are “tens of thousands of emails” according to anonymous sources.  It would explain how they all got onto that computer.  It would explain why Comey would say “we’re not sure if there’s anything here yet”.  It would explain why he sent the letter to the Intelligence committees — he knows from the emails they already reviewed in the earlier part of the probe that there was classified information.”
2.  This next email arrived after I requested permission to use #1 in this column:
“Go ahead.  Its just speculation, but it would explain a lot.
There is some extended reporting in the NYT from ‘sources close to the investigation.’
I’m sure you have the same conclusion I have, but I’m certain senior DOJ officials have decided they have to counterbalance what Comey has done by giving ‘not for attribution’ info to the press on Clinton’s behalf, laying out what is known at DOJ about the new emails.  Some of this info — passing through the ‘favorable to Clinton’ filter — says that the emails go back many years, and are the product of the fact that Abedin had no habit of ever deleting old emails.  You’re an AOL user, so you would have a better idea than I do about how much storage space AOL gives you on their servers for old email.  Google gives you 15 GB for gmail accounts.  So its plausible that the ‘tens of thousands’ of emails might be nothing more than a 10+ year history of email traffic by a person who simply never deletes anything.
The article also mentions that what Comey authorized was for the agents to seek a search warrant to read the emails from the Weiner computer.  As a legality, that’s probably correct.
I’ve not yet found a definitive answer for how the Weiner computer came into the FBI’s possession, but various reports have referred to it as having been ‘seized’.  Standard procedure would have been to execute a search warrant at the Weiner/Abedin residence, and seize the computer and all electronic devices.  The NYT article says the seizure was on Oct. 3 — that seems odd to me, because the Weiner sexting case involving the 15 year old broke into the open in August, and I don’t think they would have waited 6 weeks to get their hands on his computers.  And it was a pretty ‘low profile’ for a search warrant of the residence of Clinton’s closest aid, but it might be that she had moved out of the residence when they separated so it didn’t implicate her.
As a legal matter, the search warrant for Weiner’s computer would have only authorized the agents to search for material on the computer relevant to the sexting investigation.  As is the case with all computer searches — or any searches for that matter — when the agents come across material that involves potential criminality separate and distinct from the crime under investigation, they must stop and apply for another search warrant to cover that additional information.  Since emails are “communications”, and share much in common with telephone conversations, the law is particularly sensitive to the idea of agents rummaging around stored emails on a computer.  If agents are accessing an active email account, and there are unread emails on that account, they actually have to get a wiretap order to view the unread emails in the same way they would need a wiretap to listen to a phone conversation.
But this NYT claim — that what Comey has done is authorized the Clinton email case agents to seek a search warrant so they can read the emails on the computer — really raises the stakes here, and explains the complete duplicity of the Clinton campaign’s demands for Comey to release more information immediately about what they have found.  If my supposition is correct, the agents haven’t yet read the emails because they don’t have legal authority to do so — it would be a search without a warrant if they did, and the emails could potentially be suppressed in any later prosecution (though there are legal arguments on that point if you interested) on a 4th Amendment claim.  So friendly DOJ sources could be advising the campaign that the FBI hasn’t read the emails it has, can’t read the emails it has until it gets a warrant, so the calls for Comey tor release more information are duplicitous because the campaign likely knows that he cant’ do it.  Next thing you will hear are claims that because he hasn’t released info its completely unfair to the Clinton campaign, and his motives should be assumed to be partisan.
But, if what Comey has done is given the agents authorization to seek a warrant, the DOJ lawyers are going to have to go along because the lawyers are gatekeepers to get to the federal judge to issue a warrant.  You also have the question of where do you seek that warrant?   Normally you get a search warrant in the district where the item to be searched is located.  So if its in NY, then you would go to a judge in NY.  I don’t think anything prevents them from moving the computer to DC since its been lawfully seized, and then getting a warrant in DC.
So, what might be about to break loose is a battle between Lynch and Comey over whether the FBI can obtain a search warrant this week.  This is complicated by the fact that the No.2 guy at the FBI is now ‘tarred’ as a potential partisan given the episode involving his wife’s run for State Senate in Virginia as a McAuliffe team player.  The Dep. Dir. by job description oversees all FBI operations — as opposed to Administrative matters.  So, normally this kind of battle would be fought between the two deputies — the Dep AG and the Dep Dir. of FBI.
What’s interesting about this is that both Lynch and her Dep. AG, Sally Yates, are not Main Justice veterans — in fact, they never worked at Main Justice before getting their current positions.
Yates was a career prosecutor in the ND Georgia, starting as an AUSA there in 1989 after 4 years at King & Spaulding following law school.  She was US Attorney there from 2010 to 2015.
Lynch was an ‘almost’ career prosecutor in the EDNY, starting there as an AUSA from 1990 to 2001 — she was US Attorney for 2 years, departing after Bush’s election — and then returning as US Attorney in 2010, until becoming AG in 2015.
So these are two ‘outsiders’ to the halls of DOJ, and its turf-battles.
In this battle, a DC veteran like Comey has a lot of advantages in terms of connections both in Justice and on Capitol Hill.  It would be extremely foolish for DOJ to try and obstruct FBI efforts to get a search warrant this week.  My guess is that we’re going to know very quickly just how much DOJ and the WH are willing to go “in the tank” for Clinton’s campaign starting tomorrow.”
My expert’s emails 3, 4, 5 and 6 arrived late Sunday afternoon with some sound advice for Huma incorporated within them:
3.  “Fast moving stuff today — events may have overtaken what I took 30 minutes to write above.
Brett Baier says Weiner is cooperating.  Legal question remains whether he can consent to search everything on his computer, especially if agents have reason to believe what they want to search are records of a second person — records put there by Abedin (maybe unwittingly).  Question comes down to Fourth Amendment ‘expectation of privacy.’ Husband and wife sharing a computer — have never done the legal research.
A comment on Baier’s Twitter feed says Lynch has refused authorization to seek a search warrant — no idea if true or not.  Will keep looking.
Now THIS IS FUN!!!  If only I had a nationally syndicated radio show.”
4. “The great part of this is that its going to be a ‘leaky boat’ in terms of reading stuff in the press.  Both sides have reasons to want to inform reporters of their slant on events.  So leaks from one side are going to be met with counter-leaks from the other side.  Won’t be much mystery in what’s happening.”
5. “CNN reporting that DOJ attorneys in talks with Abedin attorneys for consent.  Some sources confirm, others deny.
Something to look for is a report suggesting that Abedin has changed attorneys.
When she was interviewed she was accompanied by Miguel Rodriguez of the BryanCave firm.  Never heard of him.
But what his page on the firm says is that he was Dir. of WH Office of Legis. Affairs.  Earlier he was Dep. Assist. Sec. at State Department for Senate Affairs — 2009 to 2011.  Who was SOS???
Prior to that he was Chief Counsel for Hillary.
So he’s in Clinton’s inner circle, and he’s got no criminal law background.
If Abedin has a different attorney now — especially if its a noted criminal defense attorney in DC circles — then I would think that suggests she breaking with the inner circle and thinking about her own exposure.   Having a four year old child and being told that you might be facing jail time for mishandling classified information can ‘focus’ one’s thinking.”
6. “A second lawyer with her in her interview with the FBI was Karen Dunn from David Bois’ law firm.
If Dunn is not still her attorney, that is even more significant IMO.
Dunn was an AUSA in the ED of Virginia, albeit for only a short time.
She’s a 2006 Yale Law grad, so she’s got about 10 years total experience.
Before going to law school, she was Communications Director and Senior Counsel to Clinton while she was a Senator.  I’m sure she was close to Abedin at that time.
After law school she clerked for Merrick Garland and then Steven Breyer.  Either before or after being an AUSA she was in the WH Counsel’s office — likely before from her bio page at the Bois firm’s website.  She likely jumped to the EDVA for trial experience.  But as I read her experience listed on the firm’s site, it seems wildly exaggerated to me.  It says she tried a number of multi defendant cases to verdict as an AUSA.  That’s not the way the job works — you’re lucky if you have 2 trials a year in federal cases.
She clerked for Breyer during the 2007-08 term, so the earliest she went into the WH Counsel’s  office was 2008 or 2009.  Figure she spend a year or two there, and its 2011 maybe before she’s an AUSA.  Maybe 2 years there, and its 2013 or 2014 when she goes to the Boies firm.
Her bio page says she’s been ‘co-lead trial counsel’ while at Boies for Oracle and an unnamed music industry company in 2 cases.  That’s just silly — no way firms like Oracle trust a big case for trial to an attorney with less than 5 years experience.
And, Huma Abedin should not be placing her legal advice in the hands of a woman who was an AUSA for 2 years.  I don’t care where she went to school or who she has worked for, she’d be way out of her league from a tactical and procedural standpoint.”
This is how media pundits develop their “informed views.”  Hopefully everyone commenting has at least a few of these sorts of sources to guide their “informed speculation.”
UPDATE: Another arrived today, after the search warrant issued:
 
Number 7:
Partisan DOJ:  Here”s how it works, and I was there for 23 years.
Most senior DOJ officials are career prosecutors.  But they get into those positions by promotions from political appointees that head up most of the Department Sections.
But, when you are in year 7.9 of a two-term administration, you’re at the point where most of the career prosecutors who were in those senior positions under the prior administration (Bush’s second term), have long since departed, and the people currently in those positions have been put there by the political appointees of the party in the WH.
But, more significantly, the political appointees now in those positions — Assistant AGs, Dep. Assis. AGs, etc., — are themselves the 2nd or 3rd political appointees to hold the offices they are in since the Obama Administration came into office.
This is important because these folks tend to be the most political in their views, and sometimes of questionable qualifications.  The get appointed to these prestigious slots — which springboard them to big law firm jobs after the administration ends — with these resume entries.  Many come out of Congress — especially where the party in the WH is the minority in Congress, and/or from staffs of retiring office holders.   They are by their very nature more “political” than the people they are replacing.
The next line down are the career slots that have to be filled as career prosecutors move on to other jobs.  So now, for say the last 18-24 months of an administration, you have very “political” folks in the appointed positions, promoting career prosecutors into the section chief positions.  I saw it over and over again — career prosecutors whose politics match the administration end up getting promoted into the senior positions.  So you have political appointees and career prosecutors who all have the same political views running the department at this point in a two term Presidency.
Number 8 on why the search warrant issued:

650,000 emails:

FBI has electronic tools that allow them quickly scan a computer drive for key terms in the docs that are on the the drive.
Nothing special about a “key term” search tool.  So the FBI tech agents could scan all 650,000 emails for terms like “Benghazi”, etc., and very quickly get a report from their software telling them how many emails contain the terms searched for.  That would right there give them “probable cause” to believe a crime has been committed because its a crime to store classified information on an unclassified network/device.  The scan would tell the agents that the computer being examined, an unclassified computer, likely had classified information on it.
That alone would be enough for a search warrant.

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