An Outline of What Increasingly Exhibits the Hallmarks of a Criminal Conspiracy
Unlike the effect of Russian interference on the 2016 presidential campaign, the effect—in votes—of the now-infamous “Comey Letter” is knowable.
While various media outlets downplayed the effect at the time, the hard data is unmistakable: according to a Politico/Morning Consult poll taken immediately after FBI Director Comey’s end-of-October announcement that the FBI would be reviewing additional evidence in the Clinton email-server case, one-third of likely voters reported that the revelation made them “much less likely” to vote for Clinton.
In an election Clinton lost by just 77,143 combined votes in three states—out of well over 136 million votes cast—this sort of polling data is one indication that Comey’s announcement could have cost Clinton millions of votes nationwide. But looking inside the Politico/Morning Consult data, we find much more evidence for that conclusion: specifically, the fact that while 26% of the poll’s 33% figure comes from Trump voters, the remaining 7% comes from those reporting to be Clinton voters.
Seven percent of the total electorate on November 8th was just under ten million voters (around 9,550,000 voters, to be exact).
Divided by state using voter distribution data, that’s an estimated (ceteris paribus) 206,100 voters in Wisconsin, where Trump won by less than 23,000 votes; 332,500 voters in Michigan, where Trump won by less than 11,000 votes; and 423,600 voters in Pennsylvania, where Trump won by less than 45,000 votes.
If even the smallest fraction of these “much less likely” Clinton voters were telling pollsters the truth about their intentions approximately a week before the election, their changed votes (or even their decision to abstain from voting) was more than enough to cost Clinton the election.
In Wisconsin, only an estimated 11.2% of newly disgruntled Clinton voters needed to be telling the truth about their new view of Clinton for their lost votes to have swung the state; in Michigan, that figure is 3.3%; in Pennsylvania, 10.6%. Professional pollsters can tell you what percentage of their data is reliable a week out from a general election—and it’s a much higher percentage than that. (And note that all of these figures measure the effect of a would-be Clinton voter deciding not to vote at all due to the Comey Letter; any prospective Clinton voters who voted for Trump instead of Clinton because of the reopening of the FBI investigation into Clinton’s email server of course count, if we reverse their decision, as a vote lost for Trump and one gained for Clinton. So the percentages above are likely high—indeed, as much as double the appropriate figures.)
Even accounting for a significantly uneven state-by-state distribution of newly disgruntled Clinton voters after Comey’s October Surprise—not that we’d expect one; there were clearly more voters on the fence and “still convincible” in Midwestern swing states in the days before the election than elsewhere—it would still be the case that that seemingly minute 7% figure was in fact more than enough to swing an election Trump won by 0.7% or less in the three states that ultimately decided the contest. And this fact remains even if we eliminate those Election-Day voters who became aware of (and were consequentially swayed by) the second, exculpatory letter Comey issued less than 48 hours before Election Day, on November 6th.
So it’s clear the Comey Letter was more than enough—as a matter of math—to put Trump in the White House. But if you don’t want to take the above statistics as proof, you can look at any of the hard data on this question compiled by the nation’s top pollster, Nate Silver—who came to exactly the same conclusion about the decisive nature of the Comey Letter’s effect on the presidential election.
So what we do if (as now seems possible) it turns out that the brouhaha over the “Abedin emails” less than two weeks before the presidential election was the result of collusion between investigators at NYPD or the New York field office of the FBI trying to prosecute the husband of Hillary Clinton’s closest aide, FBI investigators trying to prosecute Clinton herself (and prevented from doing so because of decisions made by their boss), and one of Trump’s closest confidants and (until four days ago) a shoo-in to join his Cabinet, former Mayor of New York Rudy Giuliani?
What should the electors of the Electoral College do on December 19th if it’s confirmed, in the coming 72 hours, that Clinton lost the White House because of a scandal so much more far-reaching than Watergate as to make that impeachment-level conspiracy pale in comparison?
Obviously, before we get there, we have to look at the facts.
The purpose of this article is to detail facts that have already been reported—but not properly connected—in the major media, and to then use these facts to issue a rational and reasoned call for further investigation of this matter prior to the Electoral College vote this coming Monday.
So here’s a recap of the facts that suggest a bigger-than-Watergate scandal having turned the tide in the 2016 election:
On October 3rd of this year, just over five weeks before the presidential election, Federal Bureau of Investigation agents received a computer from Anthony Weiner and almost immediately determined that the computer contained emails by a person at the heart of the then-closed investigation into Hillary Clinton’s home email server, that being Weiner’s estranged wife (and Clinton’s top aide) Huma Abedin. It’s as yet unclear whether NYPD had possession of the computer prior to the FBI, and how involved Weiner himself was in turning the computer over to law enforcement. But we know that the FBI had the computer beginning on October 3rd, and that agents in the New York field office immediately discovered emails from Abedin on its hard drive.
For 24 days, these FBI agents kept their discovery a secret from their own boss, FBI Director James Comey. They only informed him of their potentially history-altering discovery on October 27th, less than two weeks before the general election.
Even today, nobody knows why these agents kept their critical discovery secret from the one man with the power to immediately direct them as to how to proceed with what they’d found.
The result of the agents’ decision not to inform their superior of information that he and only he could decide what to do with was the now-infamous “Comey Letter”: that is, Director Comey felt compelled to write a letter to Congress on October 28th informing them of the potentially explosive discovery of additional emails from Abedin on a computer Abedin had previously shared with Weiner.
It was a letter that would have been sent—if it would have been sent at all—several weeks earlier, had the agents in charge of the Weiner case sent their discovery up the chain of command in a timely and professional way. And had that letter been sent weeks earlier, the infamous “second Comey letter,” in which Comey conceded that the new Abedin emails were of no legal significance, would have been written before the early voting period in most states began—rather than just 48 hours before Election Day.
In fact, numerous reports in the mainstream media have concluded that Comey’s October intervention in the 2016 election, while unsettling to the Clinton campaign and unusual in the extreme, would have had no electoral impact had it come at the very beginning of the month.
And yet, all this is just what everyone already knows. What has been reported but isn’t being talked about—yet—is much more interesting.
According to The Washington Post, the FBI agents who had been investigating the husband of Clinton’s closest aide for months failed to disclose their new evidence to Comey because “they were trying to better assess what they had.”
That’s an explanation that doesn’t pass the smell test, however, given that the agents were forbidden by law from looking at any emails written by Huma Abedin without a search warrant. And they were so precluded from the moment they saw the very first email by Abedin to anyone other than the subject of their investigation, Anthony Weiner.
And yet, an FBI official with knowledge of the Weiner case told The Washington Post, “this is not a team that sits on its hands.”
So this quick-moving team of FBI agents knew they had emails from Huma Abedin; they knew they couldn’t read them; they knew Director Comey was still heading up the investigation to which those emails were (on their face) relevant; they told him nothing about the emails (which they themselves couldn’t look at or do anything with) for weeks, even though they knew Comey had the authority and legal standing to immediately seek a search warrant to look at those emails and determine their relevance; they made no attempt whatsoever to ask the computer’s joint owners for access to the emails, despite ready access to both parties (Weiner and Abedin); and yet this was, per reports, “not a team that sits on its hands.”
It seems to have been a senior U.S. law enforcement official quoted by The Washington Post who summed it up best (though perhaps not in the way he or she intended): “I don’t think anyone was unaware of the calendar.”
The only explanation ever given for the delay—a legally incoherent one—was that the Weiner investigators needed three weeks to review the “meta-data” from the Abedin emails (per an article in The Guardian, the material to be reviewed was simply the “to” and “from” fields in the Abedin emails). This despite the fact that the moment the agents on the Weiner case saw even one email from Abedin to anyone else involved in the Clinton investigation, they’d have known they needed Comey to get a search warrant.
Indeed, they merely needed to find one email from Abedin to anyone, as Abedin had been required during the Clinton investigation to divulge the identities of and produce all computers with any emails of hers on them—and therefore the discovery of any Abedin email on any Abedin-accessed/Abedin-accessible computer not presently held by the FBI was an immediate indication that Abedin had withheld evidence from the Clinton-case investigators.
Therefore, the Weiner investigators had all the information they needed to send urgent word to Director Comey on October 3rd—the day they received Weiner’s computer and found their first Abedin email to someone other than Weiner.
But the agents had additional grounds to quickly resolve the nature of their “discovery,” which grounds they likewise ignored. Because of the email accounts involved in the “new” Abedin emails, it was clear from the start that all or nearly all of the emails discovered would be duplicates of those already held by the FBI—the reason being that the emails on Weiner’s computer were (quite conspicuously) mere backups “synched” to email accounts the FBI already had full access to. This is something that would have been immediately apparent to the trained forensic investigators at the FBI, but also could have been readily confirmed by speaking to either Weiner or Abedin (which the agents did not) or speaking to anyone working on the Clinton case (which the agents did). In any event, according to Newsweek, “from the opening moments of this inquiry, there were people in government who already knew what the outcome of this new FBI effort would be.” And yet, the agents in the New York field office of the FBI acted as though these new emails were a mystery and would require many weeks to understand and contextualize.
All of this is troubling, from the standpoint of a criminal attorney like myself, but it’s not enough to establish anything more than a sudden, inexplicable, catastrophic, and certainly inconveniently timed incompetence—with possibly some shoddy track-covering after the fact. (Put aside that we least expect incompetence in the most high-profile cases, and that this alone could lead a reasonable criminal attorney to at least suspect some systemic malfeasance here.)
But here, finally, are the twelve kickers—a dozen other data-points that make this whole narrative sound a lot more like a Watergate-level scandal.
(1) Abedin told people after the discovery that “she [was] unsure how her emails could have ended up” on the computer the FBI found them on, suggesting that if she’d ever been contacted by the FBI in early October she could have helped them dialogue through the situation (as the idea that she had deliberately withheld these emails from the FBI never made any sense, given the Bureau’s unwavering insistence that Abedin had always been cooperative with them, and the pointlessness of Abedin risking federal Obstruction of Justice charges and federal prison time to hide emails that were—as we now know—not just without any evidentiary value but in fact duplicates of emails she had already turned over to FBI investigators);
(2) consensus in the media and beyond, as summarized by The Washington Post, was that “an announcement from the FBI in early October, when the emails were discovered, might have been less politically damaging for Clinton than one coming less than two weeks before the Nov. 8 election,” a fact no one in the FBI could have failed to appreciate, given its obviousness (even notwithstanding the agents’ enormous, day-to-day professional investment in the situation);
(3) a report in The New York Times indicated that, during the more than three weeks the Weiner investigators kept their discovery from Director Comey, they nevertheless shared their new information with the ”tremendously angry” (see #6, below) rank-and-file FBI investigators from the Clinton email-server case (the New York Times having reported on October 30th that the discovery of “new” Abedin emails in early October “prompted a renewed interest among agents who had investigated Mrs. Clinton for her use of a private email server as Secretary of State” [emphasis supplied]);
(4) after the late-October revelation that the FBI had found new emails on Weiner’s computer on October 3rd, rank-and-file FBI agents told the media that “there was no chance the email review could be completed before Election Day” (thus ensuring it would disrupt the Clinton campaign through the casting of all ballots, early and in-person), only to be overruled by Director Comey within 24 hours, with Comey decreeing that the relevance of the new emails would be determined by Election Day (as it ultimately was, after many millions of Americans had voted early, and before many more millions could hear about the second, exculpatory Comey letter; nevertheless, the stark disparity between the rank-and-file’s comments to the media and Comey’s comments remains unexplained);
(5) a member of Trump’s inner circle, Rudy Giuliani, confessed on the Lars Larson radio program that current FBI agents working on the Clinton investigation had illegally leaked information to him about the Abedin emails before it became public and before Director Comey had been told of the emails, and, moreover, were intending to leak this information—if they were unable to get Comey to do it via the implicit threat of a leak—as an (in Giuliani’s words) pro-Trump “October Surprise,” thereby establishing a political motive among a faction of the FBI in the timing and dissemination of information about the emails (”Darn right I heard about it,” said Giuliani, “[and] I can’t even repeat the language I heard,” referring with this latter remark to the agents’ anger at not being able to indict Hillary Clinton for multiple federal felonies in July of 2016; concurrently, Jim Kallstrom, who headed the New York field office of the FBI in the 1990s, also admitted to Fox News to receiving leaks about the Clinton investigation from current FBI agents working on the case);
(6) Giuliani further disclosed that a faction of rank-and-file FBI agents within the New York field office felt “tremendous anger” toward both Director Comey, Hillary Clinton (the subject of their investigation, who they believed should have been indicted in July), and “a pretty corrupt Obama Justice Department” (many of whose officials might have retained their posts if Clinton were to win election to the presidency), and we know from The Chicago Tribune that Comey wrote “the Comey Letter” only because he believed these same rogue FBI agents in New York were planning to leak the “new” evidence in the Weiner case (which leak would have violated numerous federal criminal statutes, and which plan to leak would already be regarded as a criminal conspiracy by law);
(7) the Abedin emails turned out to have no evidentiary value, and indeed were in many instances duplicates of emails already held by the FBI, which fact Comey likely could have determined himself even from meta-data alone (had he been given the opportunity to do so during the first week of October);
(8) Giuliani mysteriously took himself out of the running for any position within the Trump administration on the very same day (December 9th) that The Washington Post and The New York Times ran stories about Russian interference with the 2016 presidential election, thereby beginning a period of heavy scrutiny for both the FBI and CIA’s actions before and during the election, with the stated reason for Giuliani’s demurral from a once-certain Cabinet position being his potential conflicts of interest abroad (which conflicts are reportedly far fewer in number than those of either the President-elect or the President-elect’s nominee for Secretary of State, and occur in the context of an administration that has thus far expressed no concern at all about foreign business entanglements);
(9) as reported by The Chicago Tribune, a Los Angeles attorney, E. Randol Schoenberg, is now asking a New York City judge to release, on Thursday, the search warrant the FBI sought for the Abedin emails on Weiner’s computer—with what probable cause to believe they contained evidence of criminal conduct one can, in view of the facts in this article, only begin to imagine—with Schoenberg’s stated purpose being to determine whether “someone in the Manhattan orbit of then-candidate Donald Trump may have provided a false lead to the FBI” regarding the Abedin emails (alternatively, as observed by The Gothamist, the search warrant could turn up “funny business by overly zealous conservative FBI agents”);
(10) the lawsuit in New York was made necessary by the FBI’s inexplicable refusal to turn over its FOIA-eligible investigatory materials to Attorney Schoenberg in the 20-day window mandated by law, or even to respond to Schoenberg’s request at all, which refusal would have assured, absent Schoenberg’s lawsuit, that this information would remain under wraps prior to the Electoral College vote;
(11) the judge in the New York lawsuit now says he may release the entirety of the search warrant prior to the meeting of the Electoral College on Monday, December 19th, acknowledging thereby the potential political relevance of the material; and
(12) if the search warrant is in any way irregular, or the FBI’s redactions from it suspicious, this could confirm political collusion at the FBI and thereby increase the number of “Hamilton Electors” from their current reported 20 to the 38 needed to throw the 2016 presidential election to the House of Representatives—which temporary delay in Trump’s ascension to the presidency would allow ample time for investigations of both FBI collusion with the Trump campaign and multifaceted Russian interference with the presidential election.
Per Haaretz, “Schoenberg suspects somebody in Trump’s inner circle—perhaps former New York Mayor Rudy Giuliani, who boasted on television of having some sort of retaliation planned for Clinton on the eve of Comey’s October surprise—may have provided a false lead to the FBI to secure the warrant. ‘If this is traced back to Donald Trump, it might be cause for impeachment,’ Schoenberg wrote on his blog. ‘It deserves to be investigated fully and openly, and quickly because if a crime was committed in the course of the FBI investigation, it is the crime of the century.’” (In the past 24 hours, another entity, Vice News, has initiated a suit against the FBI seeking “records related to [the FBI’s] curious disclosures, behind-the-scenes actions, and apparent leaks in the days leading up to the U.S. presidential election.” A previous FOIA request from Vice News disclosed evidence that the FBI was also investigating Trump prior to the general election—on grounds only slightly less flimsy than the “Abedin emails” of the reopened Clinton investigation—yet worked as hard as it could, unlike in the Clinton case, to ensure that neither the media nor the public caught wind of its investigation.)
It is important to remember that the Watergate investigation began with reports of minor political figures being involved in the break-in at the Watergate Hotel. At first, the media as a whole didn’t take the story seriously, and indeed it took some time for the involvement of more powerful figures in Washington—including President Nixon—to be confirmed by well-placed sources.
Here, we have the president-elect’s close confidant having already (a) confessed on national television that the FBI illegally leaked information to him on a topic that may have swung a national election to his friend, Donald Trump, and (b) established that a core group of disgruntled agents within the FBI had a motive to act unprofessionally in a manner directly detrimental to Clinton’s White House ambitions.
We then have unprofessional actions by this same group of FBI agents with no valid legal or law enforcement explanation, which actions demonstrably affected the presidential race, per hard data and innumerable media accounts of the Comey Letter and its after-effects.
We then have what very much looks like a cover-up: rank-and-file FBI agents wrongly trying to set up the narrative in the press that the “new” Abedin emails couldn’t be fully reviewed before the election, and getting immediately overruled by their superiors; Giuliani changing his tune (in a way none, it must be said, have credited) on the source of his information about the Weiner and Clinton investigations; the FBI refusing to turn over its search warrant in the Clinton case in the face of a valid FOIA request; the FBI violating the Federal Rules of Criminal Procedure by never disclosing its October 30th warrant to either Anthony Weiner or Huma Abedin, nor making any attempt to contact either (fully cooperative) witness for further assistance in their investigations; Giuliani mysteriously excusing himself from any further involvement in the Trump administration, despite prior promises from the President-elect that he could have a Cabinet-level position; and continued recalcitrance on the part of the FBI in the matter of Russian interference in the presidential election, with the agency being one of the only U.S. intelligence agencies to not yet—prior to the Electoral College vote—confirm that the Russians sought to hand Donald Trump the U.S. presidency. Many others besides me have noted that this is consistent with an anti-Clinton atmosphere among the FBI’s rank-and-file—an observation that of course is no longer controversial, given how often it’s been made by Trump’s closest advisers and Trump himself.
Through it all, we have Huma Abedin at once being termed a fully cooperative witness by the FBI but also telling everyone who’ll listen that she did not have any emails on the computer that Weiner gave the FBI. And yet, by October 29th, nearly four weeks after the “new” emails were discovered, the FBI still had not contacted Abedin—not even once—about her emails being on Weiner’s work computer. This was an exceedingly odd investigatory decision for a law enforcement agency that (given what they knew at the time) could have seriously considered charging Abedin with a federal crime for withholding evidence from them. Indeed, it’s a strange enough decision that it begs the question of whether the FBI didn’t want to give Abedin a public or even private platform to deny knowledge of how her emails came to be on her estranged husband’s work computer. Whatever the reason for the appearance of “new” Abedin emails on Weiner’s computer—with all signs pointing to a readily detectable, passive “email account synching” process—why was the FBI not at all interested in getting answers from Abedin herself in the four weeks after such an critical discovery? Why did they not use those four weeks to interview Abedin at least once, the better to brief their boss when they finally deigned to tell him that his old, nationally important case potentially had reams of new evidence?
Given that Weiner was estranged from Abedin at the time he voluntarily gave his computer to the FBI (various initial reports said it had been “seized,” but it’s since been clarified that Weiner is cooperating with the FBI), and that his release of the computer was to the very entity then criminally investigating him, should more questions be asked about his motives and role in this sequence of events? What attention has been given to other leaks (either to media, former FBI agents, or political operatives) by agents investigating Clinton at the New York field office of the FBI, besides those listed above? Certainly, basic questions must be asked about whether the agents investigating Clinton followed any of the chain-of-command protocols established at the Bureau in handling the Abedin emails, as well as why an FBI forensics team was unable to see, immediately upon viewing the meta-data for these emails, that they were mere duplicates and without novel evidentiary value. This stands sufficiently in defiance of common sense and what we know about the forensic capabilities of the FBI that it should be raising alarms throughout the national media.
Finally, why was the Director of the FBI so certain, per The New York Times, that there would be criminal leaks by members of his New York field office, so much so that he—without further explanation, and without being queried on this point by the media then or since—felt compelled to ignore countless requests by the Justice Department not to write his now-infamous late-October letter? As The New York Times reported, “although Mr. Comey told Congress this summer that the Clinton investigation was complete, he believed that if word of the new emails leaked out—and it was sure to leak out, he concluded—he risked being accused of misleading Congress and the public ahead of an election” (emphasis supplied). Which person or group or persons within the FBI’s New York field office so concerned Comey that he knew if he didn’t violate longstanding FBI protocol, information about the Abedin emails would come out—possibly with a number of deliberate, election result-changing inaccuracies—from other (clandestine) sources? And what actions, if any, did Comey take after the election to investigate this person or these persons and take appropriate disciplinary (or criminal) action against them? Or even to determine to what extent they had been in communication with the Trump campaign, given that Rudy Giuliani and Jim Kallstrom and possibly others were telling reporters and national television audiences that they had access to current FBI agents working on the Clinton case? And what to make of the fact that Erik Prince, a proiminent Trump supporter, spoke at shocking length with Breibart about getting a flood of confidential investigatory information regarding Weiner and Abedin from his “well-placed sources” at NYPD, which sources (he says) had Weiner’s computer and read Abedin’s emails well before the FBI did, thereafter threatening the FBI by saying they would leak details from the emails before Election Day? Did former Breitbart Executive Chair Steve Bannon, who left his job at Breibart to become Chief Executive Officer for Trump’s campaign, communicate or coordinate at all with Breitbart staff about their intention to run illegally leaked NYPD information from Erik Prince on November 4th, just 96 hours before the election? And who (at the FBI or otherwise) is investigating these leaks at NYPD?
Has consideration been given to the possibility that someone at NYPD accidentally or intentionally fed bad intel to the FBI to assist them in writing up their October 30th search warrant application, partially explaining the Bureau’s unwillingness to disclose that application to Weiner and Abedin as required by law? Has consideration been given to the likelihood that Rudy Giuliani, a key member of the Trump team, had much better access than Erik Prince to the Weiner investigators at NYPD, given his former role as Mayor of New York City? Or that, therefore, one source of Giuliani’s foreknowledge of the Trump team’s “October Surprise” could have been his contacts at NYPD (in addition to multiple agents in the New York field office of the FBI)?
(NB: Per Prince, whose account more than strains credulity, but which certainly demands investigation by media and government entities, “The amount of garbage that they [NYPD] found in these emails [on Weiner’s computer], of criminal activity by Hillary, by her immediate circle, and even by other Democratic members of Congress, was so disgusting they gave it to the FBI, and they [the NYPD] said, ‘We’re going to go public with this if you don’t reopen the investigation and you don’t do the right thing with timely indictments.’” Does this mean that the leaks Comey was afraid of were, first, from the NYPD instead of the FBI, and, second, certain to be inaccurate and an attempt to sway the election toward Trump, as Prince’s false accusations clearly were?)
One wonders, then, why no one in the media is asking these questions, especially in the face of confirmed anti-Clinton bias at the FBI; repeated anti-Clinton leaks—to the Trump campaign or Trump supporters like Jim Kallstrom—at the FBI; confirmed (and unexplained) deviations from standard operating procedures by an anti-Clinton faction within the FBI; and, finally, clear polling evidence that this systemically unprofessional and in multiple instances illegal conduct did in fact cost Clinton the White House?
Again, the purpose here is to note that publicly available information paints a picture of illicit collusion between the Trump campaign and the FBI to swing a presidential election. We cannot know why, for all the hours of senseless television punditry we’re assaulted by daily, the media have made no effort to connect the dots they themselves have drawn with such care. We cannot know how much or little fire there is here, given the exceedingly large volume of smoke, but we certainly do know that the nation can’t afford to confirm a President-elect on Monday without us getting some answers about how and why the FBI and certain members of the Trump campaign acted as they did before and during the election.
At a minimum, we’ll get some answers we already know the FBI doesn’t want America to get if new materials are released—as seems very likely—by a New York judge on Thursday. But more than this is owed to the American electorate. Must the nation really wait until after Trump is inaugurated to discover the truth behind what, at the moment, looks like another Watergate—or worse?