This should have been much, much more litigated in the press in 2016. And there was some. But the media thought he couldn’t win and were very invested in torturing Hillary Clinton (and looking forward to many years of it) so there really wasn’t a lot of effort put into it.
They’ve done much better this time. But man, the damage that was caused is overwhelming.
Now it’s time for Democrats to pick it up and slap them in the face with it.
Amy Coney Barrett was sworn in to the Supreme Court last night in a blatantly partisan ceremony at the White House, something which until Trump, simply wasn’t done. They sealed their fate. There is going to be major judicial reform now and they aren’t going to like it.
Here’s a list from the Jay Michaelson of The Daily Beast of everything that is grotesquely undemocratic, irresponsible and illegitimate about this appointment:
1. Hypocrisy: President Barack Obama nominated Judge Merrick Garland on March 16, 2016. Republicans said that was too close to an election to confirm a new justice. Some even promised not to do so in 2020. Justice Barrett was nominated on September 29.
2. Disrespect: The actual, for-real dying wish of the late Justice Ruth Bader Ginsburg was that she not be replaced until after the election. Barrett’s nomination was announced three days after Ginsburg died, before she had even been buried.
3. Haste: In order to ram through their nominee before the election—it was the fastest nomination process since 1975—Republicans cut corners everywhere, with little investigation, a perfunctory and incomplete questionnaire, and a bogus process.
4. Magical Thinking: Because of the COVID-19 pandemic having spread to the Senate floor, the Senate was actually not in session while the Barrett confirmation hearings took place. How were senators both in session and not in session at the same time? Magic, I guess.
5. Anti-Life: Speaking of the pandemic, two members of the Judiciary Committee had COVID-19 during the confirmation process. One attended a hearing in person. Barrett’s nomination party was a super-spreader event. So much for “pro-life.” Meanwhile, the Senate did nothing to pass additional Coronavirus relief, because Majority Leader Mitch McConnell worried that however it went, the vote might hurt Republicans’ reelection chances.
6. Evasion: More than any other nominee in history, Justice Barrett dodged every question of any substance. She said nothing about Obamacare, abortion, even the peaceful transition of power.
7. Denial: Despite Trump and the Republican platform explicitly promising that he would appoint judges to overturn Obamacare and Roe v. Wade, Republican senators, and Justice Barrett, clutched their pearls in astonishment that anyone would ever suggest such a thing.
8. Puppet Theater: Except for a brilliant half-hour lecture by Senator Sheldon Whitehouse, hardly anyone mentioned the dark-money-funded networks, staffed by religious extremists, that have now placed three justices on the Supreme Court (and dozens on other courts) and that often bring the conservative-activist cases that their handpicked justices then decide.
9. Anti-Democracy: Republican presidents have now placed 15 of the last 19 justices on the court, despite losing the popular vote in 6 of the last 7 presidential elections. The Republican majority in the Senate represents 15 million fewer people than the Democrat minority. Our system, designed in the 18th century, never anticipated this.
And most importantly:
10. Delegitimization: Despite the best efforts of Chief Justice John Roberts, the Supreme Court has again lost legitimacy in the eyes of the American public. All three Trump justices are under a cloud: the first is in a seat stolen from President Obama; the second was pushed through despite serious rape allegations, which have only been further corroborated since his confirmation; and the third was appointed to the Court with all the seriousness and deliberation of a Las Vegas wedding.
We know what the agenda is. They are going to gut every bit of progress that’s been made in the last century and block all progress going forward. And they are going to be doing this from a position of a minority of the country.
That’s what McConnell and the Federalist Society set out to do. And as McConnell said this week, it’s going to last a very long time — unless the Democrats act.
Michelson lays out the immediate dangers:
In the short term, Justice Barrett may rule on two pending election challenges from Republicans, who are trying to stop as many people from voting as they can. Just as the Senate was voting on her confirmation, Justice Brett Kavanaugh authored an opinion on a third one, throwing out an extended deadline for mail-in ballots in Wisconsin.
For good measure, Justice Kavanaugh cited Bush v. Gore, which he helped to litigate in 2000, for the principle that the Supreme Court can overturn state courts’ election-law decisions if need be. Because look how well that turned out the last time.
A similar case is pending from Pennsylvania after an earlier 4-4 deadlock, which Justice Barrett may now break. That’s right, Justice Barrett’s first act may be to make it harder for people to vote.
The Supreme Court’s ultra-conservative supermajority doesn’t think like America, doesn’t look like America (racially, religiously, or in countless other ways), and doesn’t interpret the Constitution in a way that makes sense in America. (“Originalism” is preposterously selective–to take but one example, there’s no right to corporate personhood, or even corporations existing, in the Constitution, because the Founders generally hated corporations and thought they shouldn’t exist. But try telling that to the “Originalists” on the Court.)
But then again, neither do Republicans. The Grand Old Party is looking especially Old these days, is likely to lose big in next week’s election, and if Republicans don’t find a way to broaden their appeal beyond Trump’s rabid base of non-college-educated, mostly-older white men, together with their wives and assorted religious extremists, they’re going to lose even bigger in elections to come.
That’s true even if their hand-picked Court allows them to gerrymander, suppress the vote, and allow unlimited dark money to manipulate our elections. Which it has already been doing. It just might take a little longer.
The good news:
Fortunately, even moderate Democrats are now out for blood. After Garland/Gorsuch, Kavanaugh, and now Barrett, there is growing support for increasing the size of the Court, imposing term limits on justices, or both. (My own proposal: immediate term limits for all justices, which would create two immediate vacancies.)
No doubt, Republicans will cry that Democrats are threatening the legitimacy of the Supreme Court. They’re exactly wrong. In fact, structural change is the only way to restore it.
Look at that list again. After what they did, Democrats can no longer avoid the reality that they are going to have to use their power and use it ruthlessly. These people will stop at nothing.
Amelia Thomson-DeVeaux at 538:
We looked at two separate analyses of her record on the court this month, and we found whether it was in regular opinions or in special en banc decisions in which the entire appeals court ruled together, she was consistently on the right-most edge — if not the most conservative judge on the bench. And she was especially likely to rule in a conservative direction on civil rights issues.
Those findings underscore the idea that Barrett is likely to be a reliable conservative vote on the court. And her confirmation is even more significant because she’s replacing one of the court’s stalwart liberals. If Barrett ends up being ideologically similar to Justice Samuel Alito, who is currently the second-most conservative justice on the Supreme Court, her replacement of Ginsburg could be one of the biggest ideological swings in modern court history.
In this scenario, Justice Brett Kavanaugh would replace Roberts as the court’s new median justice, which could lead to a significant rightward turn on the court, as Roberts is often the lone conservative justice to side with the liberals. He has cast several recent pivotal votes with the liberals, too, including a dispute in which the justices deadlocked 4-4 on whether to halt a Pennsylvania Supreme Court decision that allowed state officials to count ballots that arrive up to three days late. With Barrett on the court, though, Roberts would lose that “swing justice” role.
In the short term, that means election-related cases could have very different outcomes — even including a new iteration of the Pennsylvania case, which Republican officials recently brought back to the court. And in the long term, conservative legal advocates may respond by bringing even more ambitious cases, questioning long-held precedents.
Kavanaugh is a partisan hack so whatever he’s doing must be seen in that light. If he has voted with liberals once in a while it is purely to position him as a “swing” justice so that he can really own the libs when the time comes.
He showed his hand last night with the Wisconsin opinion in which he cited Bush vs Gore (which he worked on) and made it clear that he’ll eagerly do whatever legally intellectual gyrations are necessary if the result might give Trump a win.
I have no doubt that Coney Barrett will join him, as will Thomas and Alito. So we are dependent upon those allegedly fair-minded jurists, John Roberts and Neil Gorsuch.
God help us.
Look at that humongous pile of eggs. There must be…let me count them…yes! There’s gotta be at least 270 eggs there. Next week, when they hatch, I’m gonna be rolling in adorable little chickens! Close to 300! I’m sure of it!!!
Huh? Hold on, wait a minute… what just happened? The eggs, they’ve all disappeared! And with them, all those chickens I was so sure I had. Maybe some Fox ate ’em. Nooooooooooo!
There’s a moral to this story somewhere…
Meanwhile, if you haven’t done so already, get the fuck off your ass and vote. Got it?
Seriously, does anyone really need to keep track besides the Justice Department, the Southern Poverty Law Center, the Anti-Defamation League, and … okay, maybe it’s good people are keeping track.
Via TMZ:
The “60 Minutes” interview President Trump cut short over what he felt was unfair questioning from Lesley Stahl has left her, and her family, in a dangerous situation … TMZ has learned.
Multiple sources tell us … CBS is now providing Stahl with around-the-clock security due to a death threat made to the home of one of her immediate family members on the west coast.
[…]
Law enforcement sources tell us the death threat call was reported to LAPD around 9 AM Thursday, October 22. We’re told the caller directed the threat toward Lesley and her family, and also said something about neo-Nazis.
Varieties of Democracy (V-Dem) operating out of the Department of Political Science, University of Gothenburg, Sweden and the Kellogg Institute at the University of Notre Dame are also keeping track, The Guardian reports:
The Republican party has become dramatically more illiberal in the past two decades and now more closely resembles ruling parties in autocratic societies than its former centre-right equivalents in Europe, according to a new international study.
In a significant shift since 2000, the GOP has taken to demonising and encouraging violence against its opponents, adopting attitudes and tactics comparable to ruling nationalist parties in Hungary, India, Poland and Turkey.
The shift has both led to and been driven by the rise of Donald Trump.
V-Dem’s ‘illiberalism index’ “shows Republican party has retreated from upholding democratic norms.” You hadn’t noticed, had you?
Bloomberg notices that before the “illiberal right” led by Trump gets around to dealing with its enemies, it is experimenting with eliminating its friends. Trump is holding a flurry of superspreader rallies that seem to be accomplishing nothing except stroking his ego:
“The rapid-fire Trump rallies, while clearly well-received by the base, have done nothing to tip the scale in President Trump’s direction,” said Tim Malloy, a pollster from Quinnipiac University.
Trump has held five rallies each in Florida and Pennsylvania since his recovery from the coronavirus, more than any other states, along with repeat stops in North Carolina, Wisconsin and Arizona. Democrat Joe Biden has kept a limited travel schedule, holding two events since last Thursday’s debate. And when he does, they are sparsely attended by design, often staged as drive-in rallies, to prevent the spread of coronavirus.
[…]
Alan Abramowitz, an Emory University professor who studied Trump’s rally impact in the 2016 and 2018 cycles, found they didn’t move the needle in the states where they were held. He expects the same in 2020.
“It doesn’t seem like you’re getting any additional benefit,” he said.
But additional COVID-19 cases? He’ll get those.
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For The Win, 3rd Edition is ready for download. Request a copy of my free countywide GOTV mechanics guide at ForTheWin.us. This is what winning looks like.
To overcome the 20 GOP voter suppression tactics I counted here 10 days ago, Democrats have to mount the voting equivalent of a human wave attack. Wikipedia defines that as “an unprotected frontal assault” sweeping away an adversary “with sheer weight and momentum.” Considering the hazards of standing in line for hours to vote during a deadly panic, there likely will be casualties.
The massive early voting numbers being reported suggest a human wave is what we are seeing. Across the country as of this morning, roughly 63 million Americans have voted early, or 133% of total 2016 early voting. One in five did not vote in 2016. That early vote may not benefit Democrats in every state. “The Reidout” Monday night reported that early voting in Texas favors Republicans 54-37 percent. But elsewhere (based on voter registration), the early vote seems to favor Democrats.
The wildcard, of course, is how the “Others” in the tables above will split — voters registered independent or unaffiliated. For reference, two-thirds of unaffiliated voters selected a Democratic ballot in North Carolina’s March 3 primary.
Younger voters trend Democratic.
Harvard’s 2020 Youth Poll reports:
Since the Spring 2020 Harvard Youth Poll conducted in March, former Vice President Joe Biden’s favorability has increased to 56% among likely voters, while the percentage who view him unfavorably remains unchanged (41%). This is an increase compared to our Spring 2020 poll where only 34% of all young adults viewed Biden favorably and 47% who viewed him negatively. The poll also found Biden is viewed favorably by 55% of young Hispanics and unfavorably by 28% of young Hispanics, a significant increase since our Spring 2020 survey which saw his favorability draw even at 38% favorable and 38% unfavorably.
Significantly:
Nearly half (49%) of young black voters plan to cast their ballots on election day, compared to 28% who report they plan to vote by mail. They also have lower levels of confidence that their votes will be counted. Only half (50%) report that they are at least very confident their ballots will be counted, compared to 70% of white non-Hispanic voters.
I’m still looking for turnout data on voters 30-45 for obvious reasons. They are needed to help save democracy too.
● ● ● ● ● ● ● ●
For The Win, 3rd Edition is ready for download. Request a copy of my free countywide GOTV mechanics guide at ForTheWin.us. This is what winning looks like.
“And as we all know, in the United States political system of the early 2000s, what goes around comes around. . you sowed the wind, now I fear that the whole country will reap the whirlwind.” — Justice Brett Kavanaugh at his confirmation hearing.
Amy Coney Barrett was sworn in tonight. She will not recuse from the election cases. You know how Dear Leader feels about that.
And tonight the Supreme Curt (without Coney Barrett) decided that Wisconsin cannot count ballots that arrive after election day.
Brett Kavanaugh wrote a separate concurrence:
It is going to be very radical. So radical that they may just think they can steal this election:
Although George W. Bush prevailed in the Bush v. Gore decision, it’s often forgotten that the Supreme Court declined to affirm his chief legal argument. This claim was so radical, so contrary to basic principles of democracy and federalism, that two conservative justices stepped back from the brink. Instead, the majority fabricated a novel theory to hand Bush the election—then instructed lower courts never to rely on it again.
But the court has changed. Republican lawmakers revived the original Bush v. Gore argument in fraught election cases this year, and, following Amy Coney Barrett’s nomination, four sitting justices appeared to endorse it. Barrett’s confirmation on Monday will almost certainly tip the balance to make that argument the law of the land on the eve of an election. The result would be an immediate invalidation of thousands of disproportionately Democratic ballots in Pennsylvania and North Carolina—two swing states that could decide the outcome of the election. Put simply, Barrett’s first actions on the court could hand Donald Trump an unearned second term, and dramatically curtail states’ ability to protect the right to vote.
Most Americans know that, in Bush v. Gore, the Supreme Court effectively ruled that Bush would be the next president of the United States. But few can likely explain the court’s justification for that holding, and for good reason: It doesn’t make any sense, and the Supreme Court has not invoked it since. In an unsigned opinion that allegedly spoke for the five conservative justices, the court held that Florida’s recount used procedures that violated “the equal dignity owed to each voter.” Because the standards used to recount ballots varied between counties, the court concluded, the process violated the U.S. Constitution’s equal protection clause. Then, in an unprecedented move, the court declared that this analysis was a ticket good for one ride only, and that lower courts should never invoke its made-up principle again. This disclaimer acknowledged that SCOTUS had never applied such strict scrutiny to ballot tabulation and never would again
This rationale shocked legal observers at the time, because Bush’s lawyers had barely bothered to raise it. It was an afterthought in their briefings and oral arguments, a backstop tacked onto their chief argument: that, in ordering a recount, the Florida Supreme Court had unconstitutionally usurped the authority of the Florida legislature. This argument was so extreme that Justices Sandra Day O’Connor and Anthony Kennedy refused to support it, leaning instead on the risible equal protection rule that carried the day.
But the other three conservative justices—William Rehnquist, joined by Antonin Scalia and Clarence Thomas—embraced it in a separate opinion. Rehnquist’s concurrence rested on the electors clause of the Constitution, which says that “Each State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.” He accused the Florida Supreme Court of having “impermissibly distorted” the state’s election code when it ordered a recount. Because the court ran afoul of the “clearly expressed intent of the legislature,” Rehnquist concluded, it had violated the electors clause.
Rehnquist’s position constituted a breathtaking assault on state sovereignty. It is black letter law that state courts hold ultimate authority to determine the meaning of their own state’s statutes and constitution. And the Florida Supreme Court had simply provided its best interpretation of a “legal vote” under Florida law. Secretary of State Katherine Harris rejected ballots with “hanging chads” on which voters had indicated their preference but failed to punch through the hole all the way. The Florida Supreme Court disagreed, citing a state statute that required the counting of defective ballots “if there is a clear indication of the intent of the voter.” Federal judges had a constitutional obligation to accept that (eminently plausible) reading of the law. By refusing to do so, Rehnquist, along with Scalia and Thomas, impermissibly substituted the Florida Supreme Court’s judgment with their own.
After the 2000 election, Rehnquist’s concurrence faded into the mists of history, and for good reason. It would, after all, transform SCOTUS into a national board of elections with veto power over each state’s election rules. Rehnquist’s position was categorically distinct from typical election cases, in which federal courts decide whether some regulation complies with the U.S. Constitution and federal statutes like the Voting Rights Act. Rather than defer to state courts protecting the franchise, SCOTUS would grant itself freewheeling authority to rewrite election laws based on its own subjective sense of a legislature’s intent. And a right-leaning Supreme Court could use this power to crush state efforts to expand voting rights. Since 2000, there has always been at least one conservative justice who would not go along with this power grab.
Until now. By confirming Barrett on Monday, Senate Republicans may well create a five-justice majority that is ready, willing, and able to make Rehnquist’s position the law of the land. There are currently two cases pending before SCOTUS that ask the justices to nullify thousands of mail ballots in Pennsylvania and North Carolina. Both rest on Rehnquist’s Bush v. Gore concurrence. Both give the far-right majority a chance to stomp on states’ ability to protect voting rights.
These cases present similar claims. In Pennsylvania, the state Supreme Court ordered officials to count mail ballots that are sent by Election Day and arrive by Nov. 6. In North Carolina, the state board of elections, with approval from the state judiciary, ordered officials to count mail ballots that are sent by Election Day and arrive by Nov. 12. These decisions rested on interpretations of state law passed with the participation of the legislature. There is nothing unusual, let alone unconstitutional, about them.
Yet four SCOTUS justices—Thomas, Alito, Gorsuch, and Kavanaugh—voted to block the Pennsylvania ballot deadline extension on Oct. 19. (Update: Gorsuch and Kavanaugh endorsed Rehnquist’s position in Bush v. Gore on Monday night.) Because Chief Justice John Roberts sided with the liberals, the court split 4–4, upholding the extension. But Pennsylvania Republicans quickly came back to SCOTUS and asked for a do-over in light of Barrett’s imminent confirmation. They are plainly banking on Barrett joining the ultraconservatives to scrap the extension.
The story is similar in North Carolina. Three conservative judges on a federal appeals court voted to block the state’s deadline extension, too. These judges, citing Rehnquist’s Bush v. Gore concurrence, urged the plaintiffs to take their case to SCOTUS “immediately.” Republicans complied, timing their request to ensure that Barrett would be able to hear it. Like their Pennsylvania counterparts, North Carolina Republicans believe Barrett will prevent their state from counting late ballots.
In other words, Barrett’s first decisions as a justice may determine the outcome of the election. Late-arriving ballots skew disproportionately Democratic. FiveThirtyEight reports that Pennsylvania or North Carolina may be the “tipping point state,” or the state that delivers the 270th vote in the Electoral College. If Barrett blocks the deadline extensions, she will force these states to throw out a large number of ballots that were mailed on time but arrive late. In a close race, those ballots could be decisive.
Election law expert and Slate contributor Rick Hasen has provided two reasons why SCOTUS should turn away the Pennsylvania case, both of which apply to the North Carolina case, too. First, it’s quite late in the day for the court to change the rules; voters have come to rely on the deadline extension, and it would be unfair to pull the rug out from under them. Second, it would seem that only the legislature has standing to claim that courts have usurped its power, but the legislature is not a plaintiff in either case.
But the Supreme Court can do whatever it wants when it has five votes.
The only thing that will absolutely save us is if Democrats win outright on election day. I don’t know if they’ll let them do it. But they have to try.
QOTD:
It doesn’t look like he’s having fun anymore. What a shame.
If Donald Trump loses, these people aren’t going away — because they’ve always been there. They’re just getting more overtly political. He has shown that you can let it all hang out and nothing will happen to you.
The Republican Party is going to be an openly Christian Nationalist Party:
The new congregation is gathered in a barn in Lenoir City, Tenn., with a roof that has a 60-foot American flag painted on it. And they are praying for a Trump landslide.
Standing in a circle, the dozen or so men and women, young and old, lay their hands on their pastor, Ken Peters, as he raises their requests to God.
He prays that “communism and socialism and transgenderism and homosexuality and abortion will not have their way in this land.”
“Yes, Lord,” someone cries.
He prays that the nation’s “Christian roots” will remain, that the church of Jesus Christ will be a “restraining power.”
“God, this nation is a miracle for you,” Peters continues. “You rescued us, and you gave us our independence for a purpose.”
This is a Patriot Church, part of an evolving network of nondenominational start-up congregations that say they want to take the country back for God. While most White conservative Christian churches might only touch on politics around election time and otherwise choose to keep the focus during worship on God, politics and religion are inseparable here. The Tennessee congregation is one of three Patriot Churches that formed in September. The other two are near Liberty University in Lynchburg, Va., and in Spokane, Wash., and Peters says he is talking with several more pastors of existing churches who want to join them.
The 50 or so people in attendance may identify as born-again or just as generic “Bible-loving” Christians. Peters’s flock is not affiliated with a specific denomination, but it does have a distinct identity. The Patriot Churches belong to what religion experts describe as a loosely organized Christian nationalist movement that has flourished under President Trump. In just four years, he has helped reshape the landscape of American Christianity by elevating Christians once considered fringe, including Messianic Jews, preachers of the prosperity gospel and self-styled prophets. At times, this made for some strange bedfellows, but the common thread among them is a sense of being under siege and a belief that America has been and should remain a Christian nation.
From his lectern during the worship service, Peters rails against perceived attacks on First Amendment freedoms, decrying government mandates and calling masks “face diapers.”
Having launched the Patriot Church outside Knoxville, Tenn., on the weekend of Sept. 11, he declares that the Christian faith in America is “under attack.”
“Black Lives Matter isn’t being powered by the Holy Spirit. Antifa isn’t being powered by the Holy Spirit. They can’t save this land,” Peters says. “There’s only one organization that has a shot at saving America, and that’s the church of Jesus Christ.”
For many churchgoers in suburban Knoxville, the political boldness in worship is a breath of fresh air. They complain that social media restricts their free speech, and they fear government-mandated vaccines. And whether Trump wins or loses, religion experts believe these Americans are building powerful networks that are expected to endure long after Trump has left the White House.
Yeah well, they can’t escape the fact that they have been worshipping an immoral monster. So, let’s just call it what it really is: white nationalism.
I think it’s important to remember what really happened in 2016. The election was so close that you could find a dozen things that could have changed the outcome. But really, it was the Comey letter.
This interview with Devlin Barrett of the Washington Post, who has written a new book about it, is a fascinating look back at an event that never should have happened. It changed the world for the worse. And I don’t think James Comey has ever really understood that:
A running joke of this presidential election year has been to acknowledge the speed and proximity of big, head-spinning events—this happened, and that happened, and it’s only Wednesday—but memories have smoothed out the similar chaos of the last presidential election year.
On Oct. 7, 2016, at 3:30 p.m., the CIA released a bombshell statement that the Russian government had been behind numerous email-hacking incidents and was threatening to disrupt the upcoming election. An hour later, the Washington Post posted audio of Donald Trump telling Access Hollywood reporter Billy Bush, “When you’re a star, they let you do it. You can do anything. Grab ’em by the pussy. You can do anything.”
Over the next month and right through the 2016 election, the hits would keep coming: Donald Trump pal Roger Stone’s revelation of “back-channel communication” with email leaker Julian Assange; the FBI’s continuing investigation of Trump foreign-policy adviser Carter Page (that would not become public until after the election); the revelation that the FBI had discovered tens of thousands of Hillary Clinton’s “missing” emails on former Rep. Anthony Weiner’s laptop; the further revelation that those emails were essentially meaningless; and the Election Night stunner that Donald Trump would become the next president of the United States.
Washington Post reporter Devlin Barrett recounts those events from deep inside an embattled and politicized FBI in his new book October Surprise: How the FBI Tried to Save Itself and Crashed an Election. Barrett sat down with The Daily Beast to talk about how—and why—former FBI director James Comey unwittingly steered the 2016 election to Donald Trump and whether the still-reeling FBI will ever recover.
Did you conclude that the FBI changed the outcome of the 2016 election?
I did, and I put a lot of thought into that. After looking at the polling numbers and talking to people who were watching the polling numbers in real time, I was convinced that James Comey’s letter of Oct. 28 tipped the balance to Trump.
Why did Hillary Clinton have a private email server when she was Secretary of State?
She has said that she did it for the sake of convenience, and there’s probably some truth to that. She came to the State Department from the Senate, where her emails were not subject to the Freedom of Information Act the way they would be in the Executive Branch. She and her staff viewed the private server as a way to shield themselves from the FOIA laws, and they grossly misjudged what the consequences of that would be.
Did she also have a State Department email address?
She did not. She never made the bare-minimum gesture of doing some of her work on a State Department email address.
The discussion of Clinton’s email server during the 2016 campaign was that 33,000 of Clinton’s emails were “missing.” Where were they?
The FBI determined that Clinton sent 60,000 emails when she was Secretary of State. About half of those were turned over to the State Department in response to FOIA requests, and the other half were deleted as personal or not otherwise related to State Department work. An official responding to a FOIA request can determine whether certain emails are government records. You could argue whether that’s a good rule or not, but that’s the rule.
Clinton’s lawyers deleted the emails that they determined to be unrelated to official work, and that creates an obsession on the right about finding the 33,000 emails. The deleted emails became a Holy Grail that would supposedly prove corruption at the Clinton Foundation and supposed health problems if anyone could ever find them.
Was James Comey acting according to FBI and Justice Department rules when he had a press conference in the summer of 2016 to announce the end of the investigation?
That was definitely not in keeping with Justice Department policy, and he now essentially concedes that point. His argument was that the investigation was so important and so unusual that he had to go beyond the regular practice of not commenting publicly on investigations. He announced that the FBI would not recommend any criminal prosecution.
Does the FBI ordinarily make a recommendation about whether to charge someone?
They do, but that would ordinarily be a private process. That’s generally a conversation between the FBI and the Justice Department with the Justice Department making the final call as the prosecuting authority. Comey effectively made the decision himself, which is why people at the Justice Department were and still are furious with him about that.
So that happened during the summer of 2016, and then in the fall the FBI determined that Anthony Weiner, who was married to one of Clinton’s top aides, had tens of thousands of Clinton’s emails on his computer. What did you make of Comey disclosing that with a letter to Congress?
I think he sent the letter to Congress to give himself some cover that he was not making a press announcement, but that’s fairly disingenuous. Within a minute of that letter going up to the Hill, a member of Congress was tweeting it out.
He was commenting on an ongoing investigation, which was a bigger violation of FBI guidelines than commenting on the end of an investigation.
Right, absolutely. He was reopening a case that everyone thought was closed, and he made, essentially, a public announcement about the investigation of a presidential candidate 11 days before the 2016 election. He justified it because, one, he didn’t think Trump would win, and, two, he wanted to make sure that the Republicans wouldn’t come for him after the election.
When Comey sent another letter to Congress saying the FBI didn’t find anything of any significance on Anthony Weiner’s computer, that didn’t have the impact of a press conference.
No, and at that point he felt like saying anything about Clinton’s emails would be bad for her. Clinton’s own pollsters have said that any story about her emails was bad for Clinton. Even absolving her publicly for a second time was politically bad for Clinton.
That’s a pretty grim place for the director of the FBI to find himself. The fact that he ever talked publicly about the emails put him in an untenable position.
It’s unbelievable. The original sin was the press conference in July; once he says those things on the record—on television—he was beholden to updating it with facts as they happened. To this day, a lot of people at the Bureau do not understand how he thought that it would go any way other than awful.
Parallel to the Hillary Clinton investigation, the FBI was investigating a Trump associate named Carter Page. What was that about?
The Trump campaign added him to its list of foreign-policy advisers at a time when it was desperate to find foreign-policy people willing to associate their names with Donald Trump. The FBI had long-running concerns about Page for reasons that involved Russia but had nothing to do with the Trump campaign; those concerns became more intense when he became involved with the Trump campaign.
Donald Trump has been saying during the 2020 campaign that Barack Obama “spied” on him during the 2016 campaign. What is Trump referring to?
He is referring to the use of informants to surreptitiously record and question Carter Page and a lower-level aide named George Papadopoulos. I think what Trump is trying to say is that the investigation of those aides was unfair and unfounded.“
[…]
The FBI announced it was investigating Hillary Clinton’s emails, announced two weeks before the election that it was reopening that case, and didn’t announce anything about investigations that would lead to federal convictions for several people close to Donald Trump. Has the FBI reckoned with what it did?
I think things have changed. The FBI is trying very hard this year to stay out of the election, and that’s with President Trump calling for the FBI to make investigations and arrests within a month of Election Day.
What do you think would be the focus of the Justice Department and FBI under a President Biden?
If Joe Biden wins, a big question is going to be how much house-cleaning to do. There’s generally a view that a new administration would need a fresh start because of how politicized the Justice Department and FBI have become in the Trump years, but you run the risk that you focus all of your energy on that.
There is the possibility that you can never stop the politicization of the FBI because it’s so valuable politically; it’s already made someone president. How will you ever get the two political parties to stand down from that?
Preet Bharara, who was formerly the United States Attorney for the Southern District of New York, told me in 2019 that he thinks Trump will eventually be prosecuted for the campaign violations that sent Michael Cohen to prison.
That will be probably the biggest decision that a Biden administration’s Justice Department would have to make.
That and potentially hundreds of counts of obstruction of justice against Donald Trump and members of his administration.
For sure. Those are huge choices, and there are huge constituencies on both sides of those choices that will make them difficult choices. I don’t know if Preet is right about that; there are huge political and institutional costs to prosecuting an ex-president. That would be the mother of all fights over politicization of the Justice Department, and it could make that politicization permanent.
My bet has been for months that they would not have the guts to prosecute Trump, particularly after Trump spent his entire campaign threatening to prosecute his predecessor and political opponents and Democrats have been accusing him of turning the US into a banana republic because of it. It was a trap. Democrats should ignore their caterwauling about hypocrisy but I doubt they will.
This is why I’m in favor of some kind of independent presidential crime commission that lays out ALL the corruption and other criminality as well as the destruction of important norms and rules. I just doubt that the Department of Justice will be willing to go here unless a case they already have going is ready to pop after the inauguration.
I do think that the Trump crime family may be in trouble with the State of New York, possibly the SEC/ IRS and, who knows, maybe some foreign courts. It would be very, very nice if they, at the very least, lost a whole lot of money.
I don’t mean to say that I don’t they should be prosecuted. They should! And I will be thrilled if the new AG decides that the evidence of criminality is so overwhelming that they have to go ahead. In a normal world it wouldn’t be a question. I’m just afraid that Trump and Barr’s lawless politicization of the DOJ has had the perverse effect of inoculating Trump against prosecution after he’s left office.
But there are many ways of getting accountability. And America should pursue every avenue they have to get it. If we don’t, we’ll regret it. There are always wingnuts and Trump showed them a new path: they don’t need to even pretend to have ethics and their followers will be fine with it.