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Exoneration First, Investigation Later: Comey Under Fire Over Draft Clearing Clinton Written Before Interviewing Key Witnesses

440px-Comey-FBI-PortraitBelow is my column in the Hill newspaper on the recent news about Comey drafting a statement declining to charge Hillary Clinton or her staff before key witnesses were interviewed or evidence reviewed.  The question is why Comey pursued the investigation if he felt comfortable months in advance in drafting the statement.  I do not share the President’s view that this draft shows a “rigged process,”  though some FBI agents have objected to the drafting of the statement in this context.  I take Comey at his word that he did not make up his mind until after all of the evidence was reviewed.  However, the draft does show a markedly different approach to the investigation of the Clinton emails and the Special Counsel investigation of the Trump Administration.

Here is the column:

Hillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziIt is never good when the Justice Department appears to be following the guidelines written by Lewis Carroll as opposed to the U.S. Attorneys Manual. The manual goes into great detail over the need to review evidence, witnesses and culpability before initiating or declining charges.  While there is no rule against drafting a letter exonerating or implicating a target in advance,  former FBI Director James Comey, reportedly drafted a statement declining charges in the Hillary Clinton email scandal in May 2016, before interviewing key witnesses, including Clinton herself. He issued his controversial announcement of no charges two months later.

thumb_rabbit_from_alice_in_wonderlandFor many, the timing looks like a weird variation of the Red Queen’s demand of “sentence first, verdict later” from Alice in Wonderland. In this case, it seems like “exoneration first, investigation later.” Notably, when the Red Queen uttered those infamous words, the court was debating whether to read evidence against Alice in the form of a letter. The White Rabbit told the King, “There’s more evidence to come yet, please your majesty,” but the court would have none of it. When the Queen insisted that there was there was no need for such evidence, Alice exclaimed, “Why, you don’t even know what they’re about!”

The same question might have been asked when Comey wrote his statement before actually speaking to the key witnesses. In fairness to Comey, even judges are known to draft opinions before oral argument. Both statements and opinions can be modified in light of new evidence before release. In a House Judiciary Committee hearing last September, Comey insisted that no decision (as opposed to no draft) had been made before Clinton’s July 2016 interview: “If colleagues of ours believe I am lying about when I made this decision, please urge them to contact me privately … All I can do is tell you again, the decision was made after that because I didn’t know what was going to happen in that interview.”

Of course, there were many at the time who questioned whether Obama administration Justice Department officials would truly pursue potential charges against Clinton with vigor and detachment. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Sen. Lindsey Graham(R-S.C.) obtained transcripts from the U.S. Office of Special Counsel, a government watchdog agency that launched an investigation into whether Comey violated a federal law against government employees engaging in political activity.

In a highly controversial press conference, Comey announced that he would not refer charges while adding that Clinton and others were “extremely careless in their handling of very sensitive, highly classified information.” While I am inclined to accept assurances from Comey that he did not finally decide on charges until after reviewing all of the evidence, the details from the Clinton investigation hardly support a view of a robust and dogged effort in comparison to the type of investigation of people like Paul Manafort.

In pursuing Manafort, special counsel Robert Mueller has now enlisted an army of investigators, reached a cooperative relationship with staunch Trump critic New York Attorney General Eric Schneiderman, and actively pursued tax and financial dealings far afield of the original Russian collusion allegations. He also ordered a heavy-handed (and unnecessary) “no knock” search in the middle of the night on Manafort’s home.

The Clinton investigation looks like Club Fed in comparison. Clinton and her staff refused to cooperate with State Department investigators seeking confirm any damage to national security. Key laptops were withheld and only turned over after Comey’s staff agreed to destroy the computers after their review, despite the relevance of the evidence to congressional investigations. Comey then cut five immunity deals with key Clinton staff members, including former State Department staffer, Bryan Pagliano, who set up a server in Clinton’s home in Chappaqua, N.Y., and worked for her at the State Department.

Pagliano refused to cooperate after invoking his Fifth Amendment right against self-incrimination and destroyed evidence after being given a preservation order. Those deals raised the concern over a type of prosecutorial planned obsolescence, making a viable case less likely. Once again, the drafting of the Comey statement does not prove that Comey had made up his mind regardless of the evidence. In that sense, it is not conclusive proof as President Trump has tweeted of “a rigged system.” Given the political importance of the investigation and discussion on the campaign trail, Comey may have wanted to have a base statement ready in the system but still subject to change.

It is not the specific statement but the overall context of the investigation that raises obvious concerns over the relative levels of effort. The draft letter reflected a presumption that left the burden on others to shift. It is not necessarily a bad presumption in a system based on the presumption of innocence, so long as it is uniformly followed. However, when Manafort was awoken by a FBI search team in his bedroom recently, it seemed doubtful that a draft letter of exoneration is sitting in Mueller’s computer.

Alice_drink_meFor the public, there remains a concern over the different presumptions shown in such cases. In much the same way, the letter revealed against Alice said, “Don’t let him know she liked them best, for this must ever be a secret, kept from all the rest, between yourself and me.” When Alice maintained that she didn’t “believe there’s an atom of meaning in it,” the King was delighted to declare “If there’s no meaning in it that saves a world of trouble, you know, as we needn’t try to find any.”

Just as we should resist the president’s interjections into the Mueller investigation, we should show equal concern over the independence of the Comey investigation. There is meaning in the Comey draft and it is worth finding out what that meaning may be, even it produces a “world of trouble.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

165 thoughts on “Exoneration First, Investigation Later: Comey Under Fire Over Draft Clearing Clinton Written Before Interviewing Key Witnesses”

  1. Done need to be a lawyer to ask why exonerate before an investigation? Thus, why draft anything prior to an investigation? Is it not likely our FBI, CIA & DOJ have been overly politicized? Did ‘97%’ of DOJ not vote for Clinton? In short, the question remains what, indeed, is the ‘meaning in the Comey draft?’

  2. T r u m p ’ s L i e s (article linked below)

    “Many Americans have become accustomed to President Trump’s lies. But as regular as they have become, the country should not allow itself to become numb to them. So we have catalogued nearly every outright lie he has told publicly since taking the oath of office. Updated July 21: The president is still lying, so we’ve added to this list, and provided links to the facts in each case.”

    https://www.nytimes.com/interactive/2017/06/23/opinion/trumps-lies.html?_r=0

    2. From the New York Times? One can only laugh since they have had to retract so many statements they have already made.

      Trump has been trying to keep his pledges to the American public, but it’s hard with a self serving Congress that can’t seem to act. DACA is gone today, a major promise, and we didn’t even need a Supreme Court decision to find it was illegal. Now Congress has to act and pass a law that is legal and meets the nation’s needs.

          1. “Here’s another one for you, Darren.”

            Anonymous, why don’t you pick the most egregious lies that actually affect the nation and aren’t those types of things that aren’t really lies as mentioned in my earlier comment. See if you can defend them based upon their content rather than your personal ideology. If you find some fine and if you can defend them I might agree. No President is perfect and neither are we.

        3. anonymous, whether you understand it or not politicians are puffers and practice puffery. If you don’t understand its meaning you don’t understand politics or advertising and promoting (another part of Trump). Changing one’s mind is not a lie either rather it can be an advancement in knowledge and therefore a persons thinking. That is a good thing if a person changes his mind because of new information. Making a mistake or insignificant error is not a lie either. The President is quite transparent as one can see in his quick remarks and tweets that sometimes even cause consternation of his own supporters. Maybe you prefer a lack of transparency so that the public doesn’t know what the President is thinking. Of course at times this President has been secretive where necessary such as how he will defend the nation etc.

          I think in all these categories this President has been the most honest in recent times. On DACA alone Obama claimed he couldn’t do it because it would be unconstitutional. Over and over again he said it was against the Constitution and then did it despite the law. Hillary has been an absolute liar and a disaster as Secretary of State. While the left complains about Trump’s hair color or his wife’s shoes we have a militant nation, North Korea, developing nuclear weapons and delivery systems. This is what we should all be concentrating on, but that is too difficult for the leftists. Hillary Clinton taught Kim that like Ghadaffi if he gives up his nukes he will be killed so she has made it more difficult to deal with this dangerous leader.

          My prediction quite awhile back and continues today is that the Republicans have been so stubborn that Trump will start dealing with the Democrats and this might actually force the two parties together in their battle to look good to their voters. We have already heard a few potential feelers. We all want peace, security and a good economy.

          You can continue on the stupid road discussing hair colors and shoes or you can get with the program and start worrying about the security of the United States and its economy. Obama told us we might have to learn to live with poor growth in the mid ones, but this President has brought the economy to 3 and wants to do more. Salaries are rising and employment figures continue to rise.

          1. The unemployment rate was up last month as jobs growth has slowed. Other economic indicators have been weakening also.

              1. “And wage growth is non existent.”

                frankly, it seems to be doing better under Trump. You are not a serious player. Your concern for future generations, your children/ grandchildren, etc. seems non existent.

            2. frankly, From Jan to July the U6 under Obama fell .2 while during the same 7 months under Trump it fell .8 four times as quickly as under Obama without help from the Democrats or his own party, the Republicans.

              Obama told the American people we might have to learn to live with an anemic GDP growth rate and CNN money said in Jan 2017, “One of the biggest criticisms of Obama’s economy is that growth has been sluggish. Historically, the U.S. economy has expanded 3% or more a year, on average.” Trump just hit that 3%

              But what do you care? You root for a “team” not the nation. We are in major trouble because prior administrations did not manage the future nuclear threats of North Korea and Iran, instead kicking the can down the road. Expect potential national security issues to possibly cause the economy to falter. The same can occur with an intransient Congress. Then you can be happy as the American people suffer.

          2. You make some good points, allan, but I’m completely out of time, tonight. I’ll try to get back to this, though.

      2. So, assuming momentarily for argument’s sake that the Times “ha[s] had to retract so many statements[,]” how does that make the source less credible? Would you prefer that they not retract statements which were discovered after publishing to be problematic? Just asking for a friend who says Pravda Faux News never retracts and believes everything it says….

        This is to also a “media expert” allan

        1. What a lame brain. You belong in the Hank Johnson Club. https://www.youtube.com/watch?v=mnk0tIqsbYM

          That the NYTimes so frequently reports news that doesn’t exist demonstrates it is a terrible news source. That after being made to appear so foolish it is forced to retract statements over and over again doesn’t mean that many other false statements are retracted. The New York Times also doesn’t know the difference between opinion and fact.

          It’s hard to tell who is the dimmer bulb you or Hank Johnson.

          1. allan – enquiring minds want to know; Will Guam topple over if they send more troops?

  4. While there is no rule against drafting a letter exonerating or implicating a target in advance,

    Sure, makes perfectly good sense. Why would any reasonable person think to include such a rule for an agency whose very purpose is in its name:

    For all those defending Comey, Clinton, etc., just stop already. You are embarrassing yourself. Yes, innocent people are claimed to have done bad stuff by those on the right, but that is not the case here. The scope of the illegal activity by Clinton and her subordinates is breathtaking. And to find her unworthy of investigation for lack of intent would be like finding the missing Nixon tapes as a clerical error. Any attempt to defend this completely destroys any expectation your opinion on anything is worth reading.

    2. Defend them. Hell no! We are stuck with the worst president since Andrew Johnson due to those two idiots.

      1. We are stuck with the worst president since Andrew Johnson due to those two idiots.

        That’s been your claim since before he was sworn in. Just another conclusion drawn before all the facts have been presented. those two idiots know their target audience well.

      2. Was “Crazy Abe” Lincoln before or after Andy Jackson?

        “Crazy Abe” had some wacky ideas in his head

        but somebody changed his mind.

  7. For those hoping to see Hillary Clinton behind bars, the only bars you will ever find her behind are Bemelmans’ Bar at the famed Carlyle Hotel in Manhattan and the famed King Cole Bar at the St. Regis Hotel, also in Manhattan. The Establishment Elite always takes care of its own.

      1. No, David. you are misinformed. Bemelmans’ Bar at the famed Carlyle Hotel and the King Cole Bar at the St. Regis Hotel do, indeed, actually exist, and have for many years. I am not making this up. And as for attacking Hillary Clinton, that’s always–like Geico–a correct answer to any question.,

      1. I’d let Hillary make my Bloody Mary. But, in my previous life as a bartender, I never talked politics or religion across the bar; it might interfere with money-time. As for the drink at issue, I like ’em spicy and stout. Just sayin’.

        This is to cocktail afficionado mespo

        1. Mark, sounds like you have had one too many Bloody Mary’s and now we all have to suffer through your inane comments that seldom if ever contain useful information. You definitely should be a member of the Hank Johnson Club.

          1. I was never a Bloody drinker. And I learned from tending bar that everyone has their own idea on how they should be made. So, I would mix the vodka and tomato juice and put all the accoutrements on the bar and let the patron make it the way they liked. I’ve been in bars that have kits, using beer 6-pack cartons, w/ all the stuff. That’s the way to do it. Martini drinkers can be fussy as well. I did drink martinis and liked them dry. But, unless I knew the bartender could make a true dry martini, I would just ask for Beefeater gin up. I was in a restaurant up on Lake Superior several years ago. It was a foodie place run by a Twin Cities guy. They had vermouth in misting bottles. Never seen that anywhere else. For me, one short mist on the glass and it was PERFECT.

              1. Mixology and Comey. Are you guys preparing a diet for Comey should he become incarcerated. One of my favorite mixed drinks that I have tried to reproduce at home with only partial success.

                Nolte Gin, St Germaine, mint and lime, has a lychee taste, but I never could get it quite right even after getting instructions over and over again so I gave up. No other bar has made me a drink with the two alcohols nearly as good so I stick with my Bombay Saphire martini or straight Scotch.

  8. The media is the message. The message is all itShay. I watched Hannity tonight on Fox and he hit some nails on the head.

  9. “Oh, better far to live and die
    Under the brave black flag I fly,
    Than play a sanctimonious part,
    With a pirate head and a pirate heart.
    Away to the cheating world go you,
    Where pirates all are well-to-do;
    But I’ll be true to the song I sing,
    And live and die a Pirate King.
    For I am a Pirate King!”

    Later…

    “Major-General:
    Away with them, and place them at the bar!

    Enter Ruth

    Ruth:
    One moment! let me tell you who they are.
    They are no members of the common throng;
    They are all noblemen who have gone wrong.

    All:
    They are all noblemen who have gone wrong.

    Major-General:
    No Englishman unmoved that statement hears,
    Because, with all our faults, we love our House of Peers.
    I pray you, pardon me, ex-Pirate King!
    Peers will be peers, and youth will have its fling.
    Resume your ranks and legislative duties,
    And take my daughters, all of whom are beauties.”

    Not much has changed since Lewis Carroll and Gilbert & Sullivan observed the political class…

      1. Apparently you would have preferred I post a YouTube clip with Kevin Kline singing.

        Comey was not elected, but he still seems to have a pirate head and a pirate heart.

        Your sense of humor needs a mustache.

  12. Barak means Lightnng and Lightning is The Destroyer. Guess he lived to his name perfectly.

  13. Of course, Comey is a lying sack of guttersheis and has served as a whore for the Elite Establishment. Give me some news I don’t already know.

        1. Typical. Rhodes Scholars are the best of the best. But a know-nothing Luddite who likely believes the world is 6,000 years old, or that Bozo Hannity “hit some nails” wouldn’t understand, care, or appreciate what intellect and talent can do for humanity. Pathetic. Go try on your $40 MAGA hat again and post the ridiculous photo of your clown act.

          This is to “doesn’t know what he doesn’t know” george

          2. Wait. Wasn’t “Slick Willy” a roadesian schooler with zero accomplishments and even less acumen – a celebrated intellectual communist political officer?

  16. The Shadow Government has made the decision that Hillary and Obama are “Too Big To Jail” and “Too Big To Be Expendable.” Going after Hillary would bring down Obama and bringing down Obama would bring down the Western World. Auditing the books of the Clinton Foundation would achieve critical mass on “pay-for-play.” You ain’t seen nothin’ yet. Seth Rich and Joseph Rago were allegedly assassinated. There may have been means, motive and opportunity.

    A compelling example from Hal Turner Radio Show is “Veropharm.”

    To wit,

    “VEROPHARM”

    Joseph Rago –

    “Wall Street Journal Reporter Asks Russia For “Clinton Information” —-Turns Up DEAD 2 Days Later”

    “A Wall Street Journal Editor who was investigating how a Russian
    Pharmaceutical firm could have been purchased in 2014 by an American
    Pharmaceutical firm while Sanctions against Russia existed against such
    business transactions, has been found dead in his New York City
    apartment. The crux of the dead journalists investigation was how
    then-Secretary of State Hillary Clinton influenced the transaction to be
    finalized, but only AFTER her husband Bill was paid $500,000 for giving
    a speech in Moscow.

    The Russia Consulate General’s office in New York City was contacted
    by Wall Street Journal reporter/editor Joseph Rago who requested a
    Thursday (20 July) in person interview with consular officials regarding
    an upcoming article he was preparing on Hillary Clinton and her links
    to Russia. Rago failed to attend the meeting and was later discovered
    dead in his apartment of as yet “unknown causes” just hours prior to
    this meeting occurring.”

    http://halturnerradioshow.c…

      1. Allow me to apologize,

        I had no idea that the cold hard truth would have such an adverse effect on your fragile psyche.

        I am so sorry.

        Let me warn you off of the video below, the abrogation of DACA and the looming military strike on North Korea which President Donald J. Trump is on the verge of loosing.

        Life’s dynamics outside of academia can be challenging for some, huh?

        Oh wait! Is that mom bringing lunch down now?

        Bon appetit.

    1. Charles Ortel might be the next name on the Clinton Body Count website.

      Oops. Looks like they took the Clinton Body Count website down.

      Why would they do that?

  18. I’ve come to expect honesty, despite the political differences he might have with others, from Jonathon Turley. Its sad to see him twisting a squirming in an attempt cover Comey’s ass.

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