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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.

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WHY OBAMA SHOULD FIRE COMEY*: Comey himself makes clear that he either does not understand what a law enforcement cover-up IS, or he knows what it is but acted out of fear that others may not. That’s a profoundly dangerous message to law enforcement and prosecutors nationwide. As well as to the public.

According to senior F.B.I. officials, Mr. Comey felt that he would be breaking his pledge of transparency to Congress if he did not reveal the new information from the Weiner case. And he believed that the bureau would be accused of suppressing details to benefit Mrs. Clinton — an accusation that he believed could do lasting damage to the F.B.I.’s credibility.

10 Questions (and Answers) About New Email Trove, Michael S. Schmidt and Matt Apuzzo, New York Times, yesterday

As it stands, we now have real-time, raw-take transparency taken to its illogical limit, a kind of reality TV of federal criminal investigation. Perhaps worst of all, it is happening on the eve of a presidential election. It is antithetical to the interests of justice, putting a thumb on the scale of this election and damaging our democracy.

James Comey is Damaging Our Democracy, Jamie Gorelick and Larry Thompson, Washington Post, yesterday

You know what is the scariest and most absurd part of Comey’s offered reasons? That he was afraid he would be accused of a cover-up.

Please understand, he’s saying one of two things: Either he himself thinks that not releasing raw information learned through a search warrant, the significance of which his agency does not yet know because it needs a new search warrant to learn more, amounts to a cover-up. Or he himself knows it does not, but is so cowed by the prospect that some political forces will erroneously call it that, that he releases raw information learned through a search warrant.

That alone should cause Obama to fire him. Does Comey also think it’s a cover-up to withhold from the public information learned through grand jury testimony? Does he think that OTHER law enforcement agencies should announce to the public raw information learned through a search warrant?

And does this definition of cover-up apply only just before an election, to information about a candidate? He did say, after all–stunningly; this IS the FBI director, remember–that his very purpose was to “inform” the public about new, utterly raw information about a candidate (for president, no less) obtained through law enforcement policy powers.

Where exactly does he think this use of police investigatory power ends?

I think Obama needs to make clear that it ends well before where Comey has now said it ends. And he needs to do that NOW, not after the election.

Something about informing the public before the election.  As Comey himself would say.

In this instance, though, it would be about informing both the public and law enforcement and prosecutors’ offices around the country that, the FBI director’s statement and actions notwithstanding, the law does forbid the use of raw investigatory information obtained through search warrants, grand jury testimony and other means, with the exception of information contained in police reports and in indictments and other court papers available to the public.

Comey has seven years remaining on his 10-year term, but the president can fire him for cause.  Anyone who thinks that statement of his does not constitute cause does not understand the significance of what Comey actually said.

Obama rarely explains things; that’s been a huge problem throughout his presidency and is a large part of the reason for the Democrats’ massive midterm electoral losses, in 2010 and 2014.  But this should not be hard to explain, because it’s just not very complicated.  He can quote this:

Actually, the idea that materials gathered in a governmental investigation resolved without prosecution should, in the name of transparency, be made known in summary form when relevant for the guidance of voters is quite frightening.

– Comey’s mistaken quest for transparency, Donald B. Ayer, Washington Post, yesterday

Donald B. Ayer, the post states under his byline, served as U.S. attorney for the Eastern District of California, principal deputy solicitor general and deputy attorney general under Presidents Reagan and George H.W. Bush.

Comey does not understand the fundamental nature of police and prosecutorial investigatory powers, either in and of itself or in that public misunderstandings of it should itself alter fundamental nature of police and prosecutorial investigatory powers.  He has misinformed the public, police and prosecutors about this.  This misinformation should not be allowed to stand.

It doesn’t matter whether the misinformation is because Comey is dismayingly weak or instead just stupidyingly stupid.  We need him gone, and his instruction on police and prosecutorial informational obligations corrected.   This is profoundly serious stuff.

Really.

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* UPDATED: Reader J.Goowin posted this in the Comments thread:

J.Goodwin

October 31, 2016 10:48 am

President Obama probably should not fire the director of the FBI for cause just before the election in reaction to the director’s apparent political efforts. Even asking for his resignation before the election is probably a bad political move.

He’ll certainly be packing up his desk the day after the election though.

Upon reconsideration, I agree that given how very close we are to the election, Obama should just wait until afterward to fire Comey.  But for the reasons I discussed in this post, Obama should fire him shortly after the election, and explain exactly why.

This post’s title originally was: WHY OBAMA SHOULD FIRE COMEY, NOW.  It no longer says “Now.”

Updated 10/31 at 12:15 p.m.

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