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More From My Recently Retired, Long Time Federal Prosecutor, “Old Hand.”

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A few days back I posted some emails from my long time, not-inside-the-Beltway friend and recently retired federal prosecutor.  Let’s call the prosecutor “The Old Hand.”  So yesterday The Old Hand lays down the files and reflected on the 48 hours of leaks pouring out of the FBI and DOJ:

In (almost) reverse order –I am saving a non-prosecutorial kicker for last.  Read from the bottom up of the four if you want to read them in the ordwer I received them


  1. Informed speculation — one of the big questions is “Who is the senior DOJ official on the other end of the phone with McCabe when he says “Are you telling me I have to shut down a properly predicated investigation?”
Remember I said in an earlier email that agency v. agency disputes that can’t be resolved at lower operational levels, if important enough, end up in a Dep. v. Dep. battle.
IMO, the DOJ official on the other end of the phone is Sally Yates, Dep. AG.
The FBI agents who seem to be doing the most on the Foundation investigation were from the NY Field Office.  But they were getting the cold shoulder from prosecutors in the EDNY.  So they ask McCabe for permission to take their findings to the SDNY prosecutors to see if they got a friendlier greeting.  SDNY has a reputation for more independence from DOJ, and often act like they are a mini-DOJ unto themselves, not bound by direction from Washington.  McCabe tells them “no.”  Bad form to “forum shop” prosecutors, and would hurt relationship between FBI Field Office and EDNY in other important matters.
But, the Public Integrity Section attorneys at Main Justice are co-equal jurisdiction with any US Attorney’s Office — they can bring cases in any district — and they tend to take larger cases that cover multiple districts.  Its completely up to them if they want to reach out and grab a case that is otherwise being handled by a US Attorney’s office.  Not regarded as “prosecutor shopping” in the same way to pitch a case to Main Justice.
The agents from NY make their case presentation, and get the could shoulder from Main Justice lawyers.  But the agents think they are getting stonewalled to protect Hillary.  This is where McCabe tells them “Keep doing what you are doing without using subpeonas or search warrants, and let me know what you find.”  So the NY agents keep the case going.
The prosecutors in the EDNY continue to hear that the agents are still working on an investigation of the Foundation, and they complain in house because all prosecutors believe its their job to tell the FBI how/when to do their job.  FBI agents disagree.
Here is the key — its reported today that Robert Capers, the US Attorney for the EDNY called Main Justice to complain about the FBI agents in the NY Field Office who wouldn’t let the Foundation investigation go, even though they had been told by the prosecutors to shut it down.  His call, in turn, led to a the call from the “Senior DOJ official” to McCabe which has been widely reported.
So, who would make that call  — really a call to the FBI Dep. Dir. on behalf of Capers.
Capers is a career prosecutor — starting his career with the NY County DA’s office under Robert Morgenthau, and joining the US Attorneys Office in the EDNY in 2003.  But he has been the US Attorney for only a couple years, and his bio does not scream out “Inside Player” in terms of DC Politics.
Sally Yates has been the Dep. AG for only 2 years, but before that she was the US Attorney in the NDGa.  So she would likely be friendly with Capers given their shared job experience, and the fact that Capers was the successor for Lynch.  I’m 99% sure on my GUESS that it was Yates who McCabe spoke with.  I doubt anyone lower in the Chain of Command at Justice would have felt they had the “gas” to make that call.
I doubt that Yates had much of a window into the Foundation investigation — it seems unlikely to me that much actual information about an investigation in the early stages, which line prosecutors in the Public Integrity Section didn’t think much of, would have made it up the chain all the way to Yates.  That’s why when McCabe tells her its “properly predicated” she would not be prepared to push back on the merits and argue that point with him.  Hence the description of a “pause” in the conversation, and then the DOJ Official saying “of course not.”
What McCabe meant by his comment is that in the Bureau’s view, there was sufficient known information to warrant further gathering of evidence, regardless of the view of prosecutors.  There is a lot of historical tension between prosecutors and agents over how much the prosecutor is entitled to serve in the role of “supervisor” in telling the agents what to do.  Its sometimes difficult to find that balance because the agents need the prosecutors, but they don’t want to be told how to do their jobs by prosecutors.  It was McCabe basically telling her to tell the prosecutors to stay out of their way while the agents did their work

2. Pete Williams in your shop now throwing cold water on the WSJ and Fox News (what about WaPo?), saying his sources are telling him that there is no active investigation into Clinton Foundation

I told you the leaks would be back and forth this week.  Yesterday the FBI was leaking about what they were doing on the Foundation, and how the Weiner computer might be significant, and today DOJ fights back saying they arent’ doing anything.Williams appeared on MSNBC with Chuck Todd

  1. Its clear from Williams comments that his sources are from inside DOJ.  He’s just basically reporting the comments of the Public Integrity Section prosecutors who didn’t think much of the evidence presented to them by the FBI last February, and who thought they — along with the EDNY prosecutors — had shut the investigation down, only to later learn that the NY FBI agents were still pursuing information.

    Its all semantic games.  The prosecutors don’t think there is an “investigation” if they aren’t on board, because the FBI can’t go anywhere with what they have if the prosecutors turn them down.

    The FBI thinks they are solely in charge of the “investigation” phase, and when they turn to the prosecutors its for the purpose of seeking an indictment with the evidence they present.  Its only at that stage that the prosecutors get to voice an opinion.

    An “Old School” FBI agent I met in the early 90s when I first started told me one time — “When I’m done with my investigation, I’ll call you.  If I need your help, I’ll call you.  If I want your input, I’ll call you.  There’s really no reason for you to ever call me.”

    But over the last 15 years, prosecutors have taken on more of a roll of “case supervisor”, and direct every thing the agents do.  They expect the agents to follow instructions, as if the agents worked for them.  Some agents like that arrangement — especially the ones who don’t like to think for themselves, and prefer to just take directions.

    So what Pete Williams is reporting is the POV of prosecutors in DOJ with the opinion that “The FBI Agents don’t really understand that they are not in charge here — we are.  If we say there’s no investigation, then there’s no investigation.”

    It will be interesting to see how Comey deals with this as a former prosecutor.

    3. My guess on one thing they learned in the 2 weeks that was significant.
    They likely “de-duped” the new emails by meta data comparison against the emails they already had.  De-duplification for Steeler fans (I’m a Raiders fan).

    That means they could likely index the new emails by sender/receiver/date, etc., and then used that data against the sender/receiver/date meta data in the emails they reviewed the first time around, and learn quickly if it was likely that Weiner’s computer had Abedin/Clinton emails that were new.

    They could then run a key terms search function on the new emails and get a list of positive hits for potential classified information.  Because they didn’t really need a warrant at that point to read the emails — at least not with respect to Clinton — my guess is that the agents then sampled those positive hits to see what they found.

    I think that’s a good guess about what Comey got back after 2 weeks

    4.  New revelation yesterday in WSJ and now WaPo that Comey waited 2 weeks after first learning of emails to send letter to Cong. last Friday, and in that time had the agents glean everything they could from the meta data and then get back to him, makes me rock-solid in my belief that his letter to Congress was done for the purpose of overcoming DOJ’s roadblocks to getting a warrant.

    He knew there were no warrants in the first go-round, and that was a matter of great embarrassment when he testified about the investigation before Congress. He was not going to let that happen again, and he knew that by going public there was no way the Clinton partisans in DOJ who were obstructing the case would be able to continue doing so 10 days before the election.  And he was exactly correct.

    But think about “why” he wanted a warrant, from a prosecutorial standpoint — and he is actually standing-in for DOJ prosecutors in the way he’s conducting this.

    Legally, there was nothing preventing the FBI from looking at all the emails on the laptop without a warrant.  If there was a 4th amendment violation in doing so, the only person who could assert that right in an effort to have the evidence suppressed is a person who had an expectation of privacy in the location where the evidence was found.   This is Weiner’s laptop — he’s got the most obvious 4th amendment expectation with regard to its contents.  Hillary Clinton has no expectation of privacy with regard to the contents in Weiners laptop, and it makes no difference that the emails came from her or were at one point on her server, which she would have an expectation of privacy over.

    Here is a real world example — I had a fraud case where the defendant was in jail on other charges.  We didn’t have enough evidence to get a search warrant for the defendant’s office.  I got a call about 2 months after the guy had been in jail from the landlord of the guy’s office. He said the guy was 4 months behind on his rent for his office and he wanted to evict him, but didn’t want to interfere with the investigation.  I told him to do in the ordinary course of business what he would do to any other tenant under the same circumstances.  He said he would change the lock and put all the tenant’s property on the curb for the tenant to pick up or the garbage company to haul away.  I told him to do whatever he would normally, do, but just give the FBI a call on the day he planned on doing so.

    Once the defendant’s stuff was on the curb, he lost his expectation of privacy since the public at large could pick through all his stuff and take what they wanted.  For legal purposes it was “abandoned” property.  MY agents were on the scene when the stuff was being placed on the curb, and they loaded up all the file cabinets, computers, etc., and hauled them away.  No warrant necessary.

    So Comey didn’t a warrant for either the email case or the Foundation investigation — because the Clintons didn’t have an expectation of privacy in Weiner’s laptop so they would have lacked standing to assert a violation of Weiner’s 4th Amendment rights.

    For Abedin its a closer call since they were married at the time she used it, and it was in their shared residence.  But its possible that when she moved she abandoned that expectation of privacy.  That’s a question that would need to be researched.

    He truly only needed another warrant for Weiner’s laptop if they suspected there was evidence on the laptop of other crimes by Weiner which would have been beyond the scope of their original authorized search.  But even in that instance, Weiner was cooperating and would have likely just provided consent.

    So, why does Comey lay the ground work for, and then publicly go after a warrant????   So he can breach that firewall at DOJ, and knock down the obstacles that DOJ’s partisans had put in front of the investigations of the Clintons by denying the agents the tools they regularly get in the same kinds of investigations.

    I predicted for you over the weekend that this week would be a “leak-fest”.  And Ed Rendell was exactly correct in his warning to the Clintons to not attack the FBI.  Today’s articles in the WSJ and WaPo on the nature and extent of the investigations into the Clinton Foundation, and the history of obstruction from DOJ attorneys and the EDNY, is “payback” from inside the Bureau.

Then there was this missive:

Guardian article quotes current agent as calling FBI “Trumpland.”  Can’t say that’s too far off — at the street agent level.  This is part of what I want to talk about on the phone.

Things to know about line agents — over the last 10 years, a significant influx of young ex-military officers — comm and non-comms — have come into federal law enforcement, including the Bureau.
Remember when Obama started cutting active duty force levels?  Where do you find people to cut besides curtailing enlistments?  Junior officers who are not in line for promotion, and non-comms.
They needed a job, and federal law enforcement has a “veteran’s preference” in hiring.
What’s the current support level for active duty military between Trump and Clinton?  Similar analysis would apply to this significant slice of the Bureau.  Same in DEA.  Going into fed law enforcement also allows them to enhance their pension status.
But for agents who have been around the Bureau for a greater length of time, and don’t necessarily have the military background, a BIG BIG issue with the Clintons involves the coziness during Bill Clinton’s two terms with the Chinese.  A lot of agents who do counter-espionage work, especially with regard to military secrets, have long-standing problems with the ways the Clintons courted and benefited from Chinese money while Clinton was in office.  Now they see Chinese companies, who are fronts for the military and communist government, using money from the massive trade imbalance to buy up US companies, including US tech companies, and acquire high level technology in that fashion.  Much of it is “dual use” technology that has military applications, thus the sales have a detrimental impact on national security.  The agents know this but the public at large generally doesn’t.
Why work so hard to counter Chinese espionage efforts if the Dems are going to simply open the door and sell everything in exchange for campaign donations so they can stay in power???
The FBI is “Trumpland,” yes, but the reason its Trumpland is because its “Anti-Clinton Land”.
Than, and because they think Hillary Clinton is personally corrupt.
I’ll be talking to “Old Hand” later today and will keep his cards and letters coming.


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