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.
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.
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.