Wednesday, August 28, 2019

MAJOR UPDATE: First Comey Report Due From OIG Soon

Hannity's reporting it, saying the first OIG report on Comey could be out as soon as tomorrow. I think we've heard this kind of thing before. Anyway, this first report will deal with Comey's theft of government documents in the form of his memos re his meetings with Trump. The report will also document Comey's "lack of candor" in the inquiry and will recommend prosecution. Hannity states that AG Barr will hold off on prosecution on these matters pending the completion of several additional reports, all focusing on Comey--prominent among them the FISA report. Makes sense to wait for the full package, rather than start the Speedy Trial Act clock ticking at this point.

UPDATE: After listening to Hannity last night I listened to and read some other material and a clearer picture began to emerge. I'll provide transcripts and article excerpts below to explain what's going on, but first an overview.

First, Barr decided not to prosecute Comey on the mishandling (theft) of classified documents--Comey's memos on his conversations with Trump. The reason had to do the classification levels. Remember: "classified" doesn't mean "Secret" or "Top Secret" per se, and the Espionage Act has very specific requirements regarding what sort of intent must be proved. "Leaking" does not necessarily constitute espionage, even in the case of classified documents. That's simply the law, and Barr has to abide by that.

Now, there's another aspect. The IG report also documents "lack of candor" on Comey's part. As I've previously explained, "lack of candor" isn't necessarily the same as lying--despite what Victoria Toensing, Hannity, and others have repeatedly said. Lack of candor includes lying--false statements under 1001 and also perjury under other statutes--but may fall below actual lies to simple failure to be fully forthcoming and cooperative with investigators. That level of lack of candor may not be prosecutable, but it could well be a firing offense, as in the case of McCabe--except that Comey was already fired for other reasons. All we can do at this point is wait and see what the IG report documents. However, this aspect is what Hannity is talking about.

I also agree with what I regard as an important point from an article by Byron York that provides a concise account of the overall context within which to view Comey's actions. What I'll add to that is, although Comey's misuse of the memos and his lack of candor may not be prosecutable, that material may well be used as evidence in the overall conspiracy that Hannity also sets forth admirably. In other words, the purpose of acts (mishandling memos, lack of candor) that may themselves be non-prosecutable may nevertheless provide important evidence in proving the nature, extent, and purpose of the overall conspiracy. I regard this as very important. In this regard, this matter is very different from the McCabe leaks re the Clinton Foundation.

Everyone agrees that the major issue to come has to do with the FISA applications. Comey signed three of them and submitted them to the FISA court. Failure to prosecute on that issue would, to my mind, constitute a major failure for Barr. Maybe I'm wrong at this point, but I've been clear that to me the criminal violations at the origins of the Russia Hoax--and going forward to the inception of the Team Mueller operation--are no-brainers. All these aspects derive from essentially the same sources. IMO, they must be prosecuted.

So, documentation:

First, John Solomon, on why the mishandling of memos won't be prosecuted:

James Comey's next reckoning is imminent — this time for leaking

July 31, 2019

The Justice Department's chief watchdog is preparing a damning report on James Comey's conduct in his final days as FBI director that likely will conclude he leaked classified information and showed a lack of candor after his own agency began looking into his feud with President Trump over the Russia probe. 
Inspector General (IG) Michael Horowitz's team referred Comey for possible prosecution under the classified information protection laws, but Department of Justice (DOJ) prosecutors working for Attorney General William Barr reportedly have decided to decline prosecution - a decision that's likely to upset Comey's conservative critics. 
Prosecutors found the IG's findings compelling but decided not to bring charges because they did not believe they had enough evidence of Comey's intent to violate the law, according to multiple sources.  
The concerns stem from the fact that one memo that Comey leaked to a friend specifically to be published by the media - as he admitted in congressional testimony - contained information classified at the lowest level of "confidential," and that classification was made by the FBI after Comey had transmitted the information, the sources said. 
Although a technical violation, the DOJ did not want to "make its first case against the Russia investigators with such thin margins and look petty and vindictive," a source told me, explaining the DOJ's rationale.

Next, a transcript of portions of Hannity's remarks from last night. Focus on the big picture and ask yourselves: Could Comey's transgressions be used to help prove the nature of that big picture? I think they could be compelling evidence:

We're also being told the report the Inspector General is putting out tomorrow has referred Comey for federal prosecution. For stealing government documents, leaking confidential government memos that detail conversations with the president, a clear violation of the Espionage Act. ... [As above--not so clear.] 
As of now, the Attorney General, he has reportedly decided NOT to--at this moment--charge Comey over this criminal referral. HOWEVER, this is what is a TINY piece of what the bigger report will be, and the three major reports that are coming. And without a doubt Comey should be sweating a lot tonight about what might be in those reports. This report is expected to be the tip of the iceberg when it comes to Jim Comey. [Re the FISA report] Jim Comey is playing a starring role in that investigation. Remember, he signed three of those FISA applications. All of them--he had been warned about on multiple occasions--all of them the bulk of the information Hillary Clinton's bought and paid for Russian dossier. ... That's where premeditated fraud on the FISA court for the purpose of spying on a presidential candidate, a president elect, and a president of the United States were all obtained under false pretenses--fraud before a court--and were also used in an attempt to destroy a duly elected president. ... We're also waiting for the Durham/Barr report on what are the origins of the Russia probe ...

Byron York buttresses that big picture and shows how the memos and lack of candor play into the big picture conspiracy. Remember, all the evidence that Comey knew that Trump-Russia collusion was a HOAX plays into this:

Comey told Congress that he sent some of the memos to a friend for the purpose of being leaked to the New York Times. Comey hoped media reports would set off a firestorm that would ultimately result in the appointment of a special counsel to investigate the Trump-Russia matter. 
That is precisely what happened with the appointment of Robert Mueller.

Here we have Rudy Giuliani on the Ingraham Angle, explaining that the leaking may only be "unethical"--a firing offense--but not criminal. The FISA applications are totally different. Not a couple of things that show that Rudy, a seasoned prosecutor, really gets this stuff. First, implicit in his statement is the prosecutorial distinction between false statements and perjury--different statutes are involved and there's a different standard of proof. Second, he's clearly thinking in terms of proof of a conspiracy--what evidence do we have--and he appears to be tying that in to the unethical conduct. Unethical may not be prosecutable, but it can be evidence of other crimes that are prosecutable:

Laura Ingraham: Is there a crime here or is… 

Rudy Giuliani: How about a simple one. The signature on the FISA affidavit is a crime. It’s a crime because it’s a false statement under oath. He signed under penalty of perjury… The leaking can be more unethical than illegal. I think however there was a conspiracy to frame him. Trump. I think this was a conspiracy to frame Trump… This is a counter intelligence conspiracy… Comey played his part as a liar to the court. It’s no confusion about a crime.

Finally Victoria and Joe with Lou Dobbs. Victoria says this report is "no big deal," but I think she's failing to think ahead like Rudy is doing:

Toensing: I don't know. It doesn't make sense to me that there was a decision not to prosecute Comey and now the IG report is coming out. So I don't think it's any big deal ... it may criticize him, but the decision has already been made not to prosecute him. [Hopes FISA related charges] 
diGenova: ... I can understand the reasons because of the classification problems. But I agree with Victoria ... To me what matters is the FISA application process.


  1. One account I have reads this a.m. says that the IG found Comey violated his FBI Employment Agreement. If so it seems reasonable that his pension should be in jeopardy. I am no fan of Admin Law as a weapon but Comey, Mueller, Weismann, would not hesitate. I am inclined to say hit him as often as possible and make it hurt.
    Tom S.

    1. Unfortunately, the laws and regs covering federal employment are beyond me. From Quora--and I believe this is correct:

      "Comey was a political appointee. Above a certain position in government, they become political appointees and aren’t protected by the Civil Service Code. As such, unless they are investigated for crimes (and found guilty), being fired doesn’t mean anything at all. Comey’s 22 years of service will probably not be affected."

      His net worth is reported to be $11 million, so the pension ding wouldn't mean a lot to him.

    2. Perhaps not but every sting lets him know we ants haven't forgotten (and it would sting his pride) and it might prove salutary to the behavior of Imperium Tribus members who haven't yet been able to so luxuriously feather their nest in .gov 'service'.
      Tom S.

    3. Oh, I agree. BTW, I here he's demanding an apology for something or other.