Thursday, August 1, 2019

UPDATED: Are diGenova And Huber On The Same Page?

It occurs to me that it might be worthwhile to compare Joe diGenova's remarks last night with what we're hearing about USA John Huber's views re prosecution of James Comey, the disgraced former Director FBI, for mishandling classified documents. If you recall, last night I included in Joe DiGenova: John Durham’s 'Lightning' Fast Investigation--And A Case Theory! diGenova's response to Lou Dobbs regarding the connection between the Hillary email case and the overall Russia Hoax conspiracy. diGenova expressed the view that Comey's handling of the two are connected and that that connection should be dealt with in any report. As it happens, the IG is coming out with a report devoted to that--one that recommends prosecution to USA Huber. Huber, on the other hand, is said to take the view that, in the broader context of Barr's investigation, it might be wiser to pass on prosecution--in this instance.

Here's diGenova and Dobbs:

diGenova: Yes, yes, and by the way--by any traditional standard this thing is moving with lightening speed. In a very short period of time John Durham has interviewed, I understand, DOZENS of potential witnesses and has moved to setting up a grand jury. So it’s going to happen. I will say this. I think people need to be reasonable in the expectation of potential criminal charges. This is a very difficult area of the law, to bring criminal charges where government officials are claiming that they acted in good faith. We may see some initial cases which are not brought, but eventually Durham is focused on a very large criminal conspiracy involving defrauding the United States government of the faithful service of these agencies. I think ultimately he will get to the point of bringing charges. It isn’t going to happen quickly. And there are going to be some instances where he isn’t going to have enough evidence to charge even some pretty big people initially. But some of these players will be involved in more than one series of criminal investigations. So if they get a pass in one instance, they may not get it in another. It's gonna be rough, it's gonna be difficult, but believe me--Bill Barr is not going to pass up the opportunity to do the right thing.
Dobbs: Yeah. I can't even imagine making the comparison between Mueller's enterprise and that of John Durham or Bill Barr. But I do wanna ask you this, as we wrap it up. Is there any reason for us to expect an explanation, and a clear explanation, and a clear accounting for why Hillary Clinton could be exonerated by the FBI, and by the Special Counsel as well, even as we are watching evidence disappear and be disappeared, immunity given away like hotcakes to the staff of Hillary Clinton ...
Toensing: I predict that Hillary will be by the wayside and focus will be on what happened with the FISA authorization and the investigation of the Trump campaign. ...
diGenova: I have no idea if they're gonna give any further explanation of what happened to Hillary. I don't know how the IG could NOT do that, given the centrality of Comey's decision making to everything that followed. I think as a result of investigating all of this CIA, FBI, coverup stuff and the effort to frame President Trump I think they must explain how the Hillary exoneration fit in to that broad conspiracy to frame Donald Trump. So I think there will be an explanation of how the Hillary exoneration fed into a bigger conspiracy.
Toensing: But I think Lou still wants Hillary punished, right?
diGenova: That's never gonna happen. They're not gonna go back and try to indict her.

Now here's Lindsey Graham addressing the likely non-pros decision:

 "The worst thing you can do is over-charge somebody," he said. "It'll begin to fall apart, then it taints the thing that really is strong. 
"There's two ways to do this: Throw everything, the kitchen sink, at the accused and hope he pleads to something -- or, make sure that when you charge them it will not be undermined because you over-charged.

So it appears to me that diGenova and Huber may, in principle, agree and Huber's decision doesn't exclude the possibility that the report as a whole could be quite hard hitting. All I can say is that we'll find out soon enough.

UPDATE 1: It's worth reviewing John Solomon's account of exactly what's at issue in the IG report of Comey's mishandling of classified docs and his lack of candor:

The lack of prosecution is certain to demoralize some conservatives, who long have called for Comey’s head. But the IG report, set to be released within the next few weeks, likely will provide significant condemnations of Comey’s conduct, sources tell me.  
While they cautioned that the IG’s final report won’t be complete until it gets feedback from Comey’s lawyers in the next few days, it is expected to conclude that the former FBI director improperly took with him memos that were FBI property when he was fired, transmitted classified information via an insecure email account, and shared some of the memos with his private lawyers. Some of the Comey memos were classified up to the “secret” level, but the FBI has not disclosed whether those were shared with his lawyers like the classified confidential memo was. 
The memos, which mostly recount Comey’s interactions with Trump in the Russia case and include information about foreign leaders, were sensitive enough to require government officials to send a professional “scrub team” to a Comey lawyer’s office to ensure all classified information was deleted, sources previously told me. 
In addition, the IG is likely to find that Comey engaged in a lack of candor when FBI agents came to retrieve the classified memos in his possession, failing to tell the interviewing agent that he had forwarded some of the sensitive memos by email, according to sources familiar with the probe.

From my perspective, I can understand that this isn't the stuff that you want to lead with, when you believe you've got far more consequential violations to go after. OTOH, the report might allow these document handling violations to be introduced in evidence to prove things like intent in a trial on those more consequential violations. There are a lot of considerations involved, and I think everyone needs to take a deep breath for now.

UPDATE 2: I've certainly been critical of sundance lately, but it appears someone has talked him off the ledge. He's making a shrew suggestion regarding possible reasons for why DoJ might decline prosecution on these classified doc matters. Remember--IG Horowitz is simply doing his job. He examines the data and makes a recommendation. In this case he apparently decided that prosecution was warranted on the facts as he determined them. But that doesn't mean that DoJ has to adopt that recommendation, since Horowitz's recommendation is essentially an abstraction--it doesn't take into account difficulties that prosecution at this point might present for the larger case.

I offered one reason for declining prosecution at this stage, but that was a seat of the pants surmise. Sundance offers another, and there may be others still that we're not aware of. Thus, sundance points out:

The DOJ has reportedly declined prosecution on the referral; however, there may be extrajudicial reasons why that declination has taken place. [ex. if the DOJ wants to declassify and release the memos, as part of a larger investigative release.] 
Now, it’s important to remember…. No-one knows the number of memos that James Comey has written.  [We may get that answer in the IG report.]  There are nine memos written by James Comey surrounding contact and conversations with President-elect and then President Trump (2016/2017). 
However, based on the court declarations by Mueller’s former lead FBI investigator David Archey, it sounds like there are many more memos than anyone currently understands; including memos about the investigation of candidate Trump, that were written during the “Crossfire Hurricane” investigation 2016 and 2017, that describe investigative details, sources, operations and code-names of intelligence assets used in the investigation. 
It is also worth remembering that James Comey leaked his memos to Daniel Richman so that Richman could act as a go-between to pass the information along to the New York Times.  Richman was not only Comey’s friend, it was later discovered that Richman was an unpaid FBI employee given special access by James Comey. 


  1. On the memos, I would satisfied if the IG and/or Huber simply wrote, "While we decline prosecution, we have not exonerated James Comey, we would if we could, but we cannot."

    1. Much as I genuinely appreciate Yancey's humor, I think everyone needs to avoid making light of a push to "guilty until proven innocent or exonerated by the nobility". That needs to be called out as un-American whenever it is spoken. (my humble $0.02) -- MR

    2. You're right, of course, and perhaps that's an area in which Barr deserves criticism. Perhaps he should have really blasted Friend Bob on that score. Scorched him.

  2. Leaking the no prosecution decision was an unforced error. That decision could have been delayed or sealed, thereby preventing the public relations debacle that has now occurred. The average citizen doesn't get into the weeds of legal manuevering and likely won't see anything other than that Comey was allowed to skate on a Class I felony to which he confessed in sworn public testimony before Congress. They will see a heinous DC Double Standard; one set of rules for average people and a pass for DC elites caught redhanded.

    Where was this judicial deference for Flynn and Papadopolus? When the FBI went to Comey's home to retrieve the illegally stolen Classified memos, why didn't he get the same Gestapo treatment as Manafort and Stone? This stuff gets noticed by average people and those memories will not fade anytime soon.

    1. That's a point, re PR, and I hope that sundance's and my guesswork is at least "over the target." Conservative commentators have responded to the "Gestapo" stuff by saying that Barr doesn't want to fight fire with fire, but to return the nation to true rule of law according to normal standards. That's valid, IMO, but part of that must be both equal protection as well as equal enforcement.

  3. they must explain how the Hillary exoneration fit in to that broad conspiracy to frame Donald Trump

    Comey, Clapper, Brennan and their ilk feared that Russian Intelligence had proof that Hillary Clinton had operated a pay-to-play operation as the US Secretary of State. The proof included:

    * E-mails obtained from Clinton's private server

    * Details about pay-to-play actions involving Russians

    Supposedly, Russian Intelligence might arrange for such proof to be revealed shortly before the Democrat Party's Convention in July 2016 or shortly before the general election in November 2016.

    Supposedly, Donald Trump was involved in this situation.

    The initial idea was that Russian Intelligence had scandalous information (e.g. urinating prostitutes) about Trump too and might reveal it likewise during the election race.

    Supposedly, the Russians' motive was to discredit American Democracy.

    I am not saying that Russian Intelligence actually was doing any of this. Rather, I am saying that Comey, etc., feared that Russian Intelligence intended to act along those lines.


    The Holman Jenkins explanation never made sense to me, but since he repeats it so persistently, Jenkins might be informed by an insider.

    Jenkins' explanation is basically that Comey acted for Lynch because Comey had seen some Lynch communication saying that Clinton's culpability would be covered up. Russian Intelligence had this communication and might have altered or even forged it.

    What matters here is that Comey (it doesn't matter what we think) feared that Russia would reveal ...

    1) the proof of Clinton's pay-to-play crimes

    2) Lynch's cover-up communication.

    shortly before the Democratic Party's convention or else shortly before the general election. In this situation, Comey felt compelled to intervene -- to cut Lynch out -- to speak publicly about Clinton's e-mail problems.

    That's my speculation about the intersection of Comey's actions related to Clinton's e-mails and related to Trump's collusion with Russia.

    1. Interesting, Mike. I will say, there are aspects to the big picture as we know it that are hard to figure out. Your speculation addresses some of that.

  4. I don't buy Bob's "Mr. Magoo" routine. Just another version of the sudden memory issues so many officials seem to have to avoid pleading the 5th. -MR

    1. I think he has definitely slowed down, but I agree with you that that isn't the full explanation.

  5. I don't want Barr and company to abuse the law the way that the Dems have. Then we truly are not a constitutional republic. We have to trust that this is being done right.

    I agree with the commenter above that we can't move to a standard of "guilty until proven innocent." I'm not really a fan of the leaking, either. I speculate that it is done to put enormous pressure on Comey, Brennan, et. al.

    I still am pinning my hopes that minor (and major) players are cooperating. This is backed up by Joe D. who says it is one reason that the Horowitz report is delayed. You'd better believe that McCabe thinks "If I go down, Comey does, too." I believe that Comey has similar feelings for Lynch, Brennan and Clapper. And so on.