Several thoughts about Paul Krugman’s NYT column today – UPDATED regarding the Fourth Amendment issue, and (separately) the suddenly real possibility that Putin had the emails planted on Weiner’s laptop
Paul Krugman’s column today titled “Working the Refs,” which I linked to this morning in this post, is absolutely wonderful for its account of the breadth of what amounts to largely successful attempts at movement-rightwing takeover of so very much of American public life—journalism reportage and editing methodology, political punditry, decisonmaking by college and university academic hiring committees, self-styled-centrist fiscal policy organizations. (There is also the courts, but that’s really a separate matter.)
But there are two points I want to make about statements in his column. One concerns the nature of Comey’s misconduct, which Krugman describes as violating “longstanding rules about commenting on politically sensitive investigations close to an election; and [doing] so despite being warned by other officials that he was doing something terribly wrong.”
That is only part of it, albeit the most immediately harmful part. But pundits, and the public, should understand that it is a profound misuse of government investigatory and prosecutorial powers to release to the public raw information obtained through compulsory, and secret, investigatory information gathering—information gained through search warrants, grand jury testimony, etc.—and that this is so not only for politically sensitive investigations.
Comey’s deliberate decision, his acknowledged motive, to affect voters’ decisonmaking in an imminent election strikes me as criminal misconduct, as does the release of raw investigatory information irrespective of its political intent. But these are two distinct issues, of equal importance.
Then again, as I said here yesterday, by Comey’s definition of cover-up, he is engaging in it, as Harry Reid noted in the letter he released yesterday.
I also want to point readers to Orin Kerr’s Washington Post blog post from yesterday titled “Was it legal for the FBI to expand the Weiner email search to target Hillary Clinton’s emails?” Kerr blogs at the Washington Post’s The Volokh Conspiracy blog, whose contributors all are former law clerks to Republican-appointed justices, and current law professors. All are center-right libertarians. Kerr, perhaps the least right of them is a law professor at George Washington University and a former law clerk for Anthony Kennedy.
Kerr’s post begins:
FBI Director James B. Comey recently announced that the FBI had discovered new emails that might be relevant to the investigation of Hillary Clinton’s email server. The emails were discovered in an unrelated case, and the FBI now plans to search through the emails as part of the Clinton server investigation.
Comey’s announcement raises an important legal question: Does expanding the FBI’s investigation from the unrelated case to the Clinton case violate the Fourth Amendment?
We don’t know all the facts yet, so it’s somewhat hard to say. But here’s why the expansion of the investigation might be constitutionally problematic. Consider this a tentative analysis unless and until more facts emerge.
He goes on to raise two Fourth Amendment concerns, one which he says, and I agree, seems sort of weak, the other which he says is a significant concern, his take on which is the same as mine in the comments thread to this post.
The FBI obtained a search warrant late yesterday, so the judge who granted it thought the Fourth Amendment wasn’t a bar to it. But it should be noted that Comey issued his announcement before a search warrant was obtained and in the face of a potential Fourth Amendment issue that might have prevented the FBI from obtaining one.
The other point concerns Krugman’s awesome recitation, yet again, of how deficit mania grabbed a stranglehold on elite policymakers and so-called public intellectuals for so very, very long—and how devastating it has been throughout the last decade. What he doesn’t mention—appropriately, I think, in that column, whose point is much larger, but inappropriately in any discussion by him (there have been many) of Hillary Clinton and her candidacy in the two or three weeks since a stolen WikiLinks document—this one, a transcript of a paid speech by her to (I think) Morgan Stanley in 2013—in which she says she supports the really awful Bowles-Simpson proposal that Krugman has deconstructed so often since it was announced years ago.
I do get his reluctance during this campaign to address that. And Clinton clearly has reversed her views on virtually everything in that proposal, a change on her part that I believe is genuine. But what angers me about Krugman’s consistent refusal to acknowledge this and other significant changes in Clinton’s policy positions, prompted to a significant extent initially by Bernie Sanders’ campaign—not least the healthcare insurance “public option” proposal”, which Clinton should campaign on at rallies—is Krugman’s borderline-vile attacks on Sanders during the primary season.
Clinton’s win in this election will be based on the sheer awfulness of Donald Trump and on the policy proposals Clinton adopted last summer because of the strength of Bernie’s campaign. All that matters now is a Clinton victory and Democratic control of the Senate and large gains in the House. And I plead with Bernie, with Elizabeth Warren, with Michelle and Barack Obama, to campaign maniacally for these candidates in the now-waning days of this campaign.
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UPDATE: About an hour ago, Politico posted a lengthy discussion of the Fourth Amendment issue, by Josh Gerstein, Politico’s legal-issues correspondent.
Gerstein’s article also discusses the fact that Abedin says she does not know how what appears now to be a huge trove of emails of Abedins came to be on Weiner’s personal computer–an issue I discussed here yesterday in a post suggesting the possibility that NYC FBI agents planted it on Weiner’s computer after they gained custody of it.
But Gerstein’s article notes this: that Abedin had an email account on Clinton’s server. Is it a reach to now suspect that Putin planted those emails on Weiner’s computer and planned somehow to make public just before the election that State Dept. emails are on Weiner’s computer hard drive? As I mentioned in the Comments thread yesterday on my earlier post, in response to a joke by a reader’s comment, I’d considered that possibility by rejected it as implausible.
It’s now not at all implausible. And it makes it imperative that, as Harry Reid demanded in his public letter to Comey yesterday, the Justice Department release the information it and other national security agencies have indicating direct coordination between Trump, or people on behalf of Trump, and Putin.
Adedin and Clinton and the Democratic National Committee should file an emergency court petition requesting a court order requiring release of that information. I absolutely mean that.
And as I suggested in my earlier post, they should petition a court to allow private computer forensics experts, along with FBI forensics experts from an office far from NYC and Washington, DC. to examine the computer in order to determine when and how those emails came to be on it.
I absolutely mean that, too.
And please remember: Trump kept saying that Abedin was a State Dept. security risk because Weiner would have access to her emails. He’s now saying he called it correctly. The court petition should note this.
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PS: Since I’m more or less the legal-issues guru on this blog, I want to point readers to Jennifer Rubin’s blog post on this, with which I agree in every respect.
And since I’m also one of the political-issues gurus here, I want to recommend two perfect political cartoons, one by Tom Toles, the other by Ann Telnaes.
Added 10/31 at 4:08 p.m.
A tangent, but one I haven’t seen raised: who says the FBI or the CIA or the Defense Department have the authority to declare State Department emails classified after the fact? The State Department has its own operating requirements that may not be the same as those of the more secretive agencies. That may include information that the CIA may wish to keep top secret but that has, in fact, become public and requires rapid diplomatic response (such as the drone program outside of official war zones).
The President may (as I understand it from recall of the Valerie Plame incident) declare any material classified or de-classified on his or her own initiative. By the same rationale, isn’t the State Department the final authority on whether its own communications are to be classified or not classified? And isn’t the Secretary of State the final authority within the Department? If so, that means the emails that otherwise would have been sent via the state.gov system that were not deemed classified by State Department professionals and accepted as such by the Secretary of State were simply not classified because of those decisions?
Is there some system in place whereby every internal communication within the Department must be run by the CIA or whomever before it is sent? I don’t think so. Without that, it means the State Department is on its own to decide what can and cannot be sent by a non-secure system (including the state.gov system as a particularly non-secure system). And that means the declarations after the fact by the CIA or the FBI are merely their opinions and should have no legal bearing on what State decides. In other words, as Colin Powell said, they are bullshit — and Clinton never should have been as defensive about the whole thing as (caught off guard by such an out-of-left-field assault) she has been. Her system was intended to be for non-classified business email only, and that’s the only way it was used. The opinions of the CIA or the FBI are nice, but they did not and do not have the authority to make those decisions for the State Department. Subject only to the President, I had that authority and I made that determination.
Oh, on this one, I disagree with you, Urban Legend. I guess I’d say that the Constitution, which provides for the federal government to provide for the safety and defense of the country and the public, authorizes it.
If it appears after the fact that public disclosure of an email or any other correspondence would endanger individuals (identifying foreign agents, for example) or the country itself (information that when written did not imperil the country or an individual when it was written,but in light of changing circumstances does; e.g., sudden, unexpected hostilities or conflict with another nation; new military maneuvers), then of course retroactive classification is appropriate and necessary.
P.S. If there is any validity to this, she did not have very good advocates to vet the whole issue for both legal and political purposes, and help her come up with an aggressive response. An aggressive response like this — up yours — would have been dropped faster than the apology route. Weakness invites continuing punches.
UL asks: 1) “By the same rationale, isn’t the State Department the final authority on whether its own communications are to be classified or not classified?” and 2) ” And isn’t the Secretary of State the final authority within the Department? ”
Ans 1) Yes, except for that data/info originating outside DoS. If originally classified it will remain so until the originator or a higher authority changes it. Sec of State would usually not constitute such higher authority.
Ans 2) Only for DoS data/info.
Your discussion of mixing classified data over non-classified systems is exactly the problem with what is being discussed with the HRC server issue. If it was NEVER certified for use with classified data/info, then any such data/info should never have been on it. It is unlikely she had such certification authority, nor had the server so certified.
The Fed Gov has several secure networks for these types of communications. The networks are periodically tested and reviewed for compliance. Compliance requirements change frequently because of all the hack attacks. Unless HRC’s server was part of that compliance system it was uncertified and any classified data on it placed on it illegally. Even if inadvertent.
If such classified data is also found on Huma/Anthony’s laptop then they will also fall afoul these legal issues. If they originated from the HRC server, then it too afoul these legal issues, and the trail/search will continue backwards to the source.
The security field is highly paranoid for a reason.
I’ve updated my post to suggest that Abedin, the Clinton campaign, and the DNC should file an emergency court petition asking for the immediate public release of the FBI’s information on coordination between Putin and people close to Trump–the stuff Harry Reid was referring to in his letter yesterday–and also to request that the computer be examined immediately by private computer forensics experts along with FBI ones from an office far from NYC and Washington, DC. in order to determine when and how these emails came to be on Weiner’s computer hard drive.
Reports today say that there are tens of thousands of Abedin’s personal emails on that computer–a computer that was not hers and that she did not use. Abedin says she does not know how they got onto that hard drive. As I say in my update to the post, it now seems far from implausible that they were put there by Putin’s people.
Hmmm. All those secure systems proved not all that secure earlier this year, when Russia hacked several federal government computer systems, including email systems.
Soooo sorry, CoRev. Nice try, though.
The reason this is happening is that the Clintons are under investigation perpetually . There is always smoke and there is always fire because they are filthy corrupt animals . The FBI has all the emails from day 1 . The NSA reads and stores everyone’s emails all the time . Comey and the FBI and Justice Department tried to make it go away in July but the sheer volume of shit swirling around these idiots has just become overwhelming.
This is all self-inflicted. Obama should taint his own legacy further to save Hillary ? Seriously ?
Obama hates these people enough is enough. The Clinton’s are so stupid that even handing them the presidency on a silver platter by matching them up against Donald Trump isn’t enough they still find a way to fuck it up.
Your suggestion that Putin had the emails planted on Weiner’s laptop is hilarious. But let’s go with it for a moment. Wouldn’t Putin’s ability to get those emails off Her Special Highness’s private server be a demonstration of her wreckless mishandling of classified material that should only have been on secure government servers?
Indeed, Jane. And it would lead to the public’s learning that federal government email systems have been hacked recently by Putin. Probably including State.com. but certainly including other sensitive ones.
It has been reported that State.com has been hacked, but at the time it was unclear by whom, and the suspicions were that the Chinese government was the perpetrator. But whatever labyrinthine systems the federal government uses, it did not stop the recent Russian hacks.
So, as G.W. Bush would say: Bring it on.
Bev, your request: “…court petition asking for the immediate public release of the FBI’s information on coordination between Putin and people close to Trump…” would almost certainly be a classified report and certainly not a PUBLIC release.
I also think there is far more than a tinge of desperation in assigning blame to the Russians or any foreign entity instead of the more logical Huma did it. If there is evidence, then it too is highly classifie,d and will not be available for PUBLIC release.
And it almost certainly can be declassified and made public, by court order.
Bev, your request: “…should file an emergency court petition asking for the immediate public release of the FBI’s information on coordination between Putin and people close to Trump–…” would almost surely result in a classified and not be available for public release.
There is a tinge of desperation in assigning blame on a foreign entity instead of ccepting the more logical explanation: Huma did store her emails locally.
Desperation? The more logical explanation? Excuse me?
What are you talking about? Are you saying that she is lying and that she herself put tens of thousands of her personal emails on Weiner’s personal computer? Or are you saying that Weiner broke into her email accounts, and did that?
Wanna explain why you think one or the other of these is logical?
Point taken on material judged to require secrecy now based on current circumstances, but second-guessing decisions made five years ago by people who have been dealing with classified information for years or decades is a different matter. The security agencies are going to apply a “when-in-the-slightest-of-the-slightest-doubt, classify” standard. Clinton has tried to push back a little on Comey’s “careless” description, and briefly suggested that State officials who had to communicate on potentially sensitive issues knew how to phrase things for a non-secure system. They also apparently had opinions about when use of the secure system was necessary, and used it extensively, so it doesn’t look from a fair view as if they were willy-nilly throwing highly sensitive information around.
“Data/info originating outside DoS” is an awfully loose standard, CoRev. Application without intelligence would mean departmental paralysis. And was it possible from everywhere to use the secure system for instantaneous communication? One question to ask is, if these emails had been sent via the state.gov system, would there have been any issue made of this? The answer is obviously no, but it appears from reports that the state.gov system is leaky as a sieve — probably even less secure than a system using a server under personal and Secret Service protection.
In other words, if no issue could have been made about sending materials over the non-secure department system, then use of the private system should be completely irrelevant. It was, apparently, purely a matter of being able to use a single device which she in her technology-challenged condition knew how to use, and not having to apply a cumbersome procedure of switching back and forth between two devices or sign into and out of two different accounts for information that was not classified in the first place. Avoiding cumberome and time-wasting procedures for the second most important offiial in the U.S. government would seem to be a worthwhile pursuit.
Bev, you are getting wrapped in a labyrinth of misunderstanding of the differences between secure and non-secure systems. Breaking into non-secure systems containing personnel privacy data is not the same thing. I was a victim of the OPM break in.
I’m sure you understand the difference between law & regulations involving personal privacy versus a different set of laws and regulations concerning national security and secure systems. Most email systems do not fall into this latter category. Even the bulk of internal systems also do not fall into this category. And, those are the systems to which you are referring as being hacked by ???? Strangely, one of the most locked down federal systems is the IRS tax calculation and forms review system. Locked down not necessarily from outside entities but US citizens.
I will remind you Weiner is the family name and use of the computer could have been a shared over the several years. One explanation was it was her backup system for some time.
You give the courts serious powers by thinking they can declassify, will nilly, already classified documents in this government driven by separation of powers. Moreover there is the FISA court to review such matters. If it were to be requested it is highly unlikely to be litigated and finalized before the election. What c/would be made public in in a heavily redacted document?
We’re talking about State.gov. Was it any more secure than the ones that were hacked? From what I’ve read, it was not. It was not, as I understand it, intended or set up as a means to communicate seriously sensitive things.
CoRev, I gather, from your comment on the complexities of revealing the information Comey referred to, that you would agree that he should have buttoned his lip and allowed customary Justice Dept. procedures to be followed.
Maybe the Conservative Legal Movement put those emails on Weiner’s laptop.
Hey, you’re catching on, Hansberry!
Bev, http://www.state.gov/ is the DoS face to the public, and not a classified network. As you go deeper into the DoS systems you will find them increasingly hardened against intrusion. Finally you will reach the secured system/networks where even these will have various levels of hardening mostly starting at and higher than the internal non-classified.
Please understand that within the levels of the secured systems there may be multiple email systems. None of these will connect with the lower level email systems.
If/when you find classified docs from the secure systems/networks on a non-secured network then some human physically did something to move them. When found on a home computer OR SERVER then some one made a decision to make it happen, and that decision was not sanctioned by security regulations.
JackD, Comey did not release any classified information.
CoRev: I didn’t say that he did.