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What’s behind Comey’s unprecedented reveal to Congress about Clinton probe?

October 31, 2016 at 6:40 PM EDT
FBI Director James Comey revealed last week there are new emails possibly related to Hillary Clinton’s private server. Judy Woodruff learns more about the investigation from The New York Times’ Michael Schmidt and Politico’s Josh Gerstein and then discusses Comey’s actions with Peter Zeidenberg of Arent Fox and Daniel Richman of Columbia Law School.
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JUDY WOODRUFF: For more now on the FBI’s investigation into the newly discovered e-mails which may be related to Hillary Clinton’s e-mail server, we turn to New York Times reporter Michael Schmidt and Politico reporter Josh Gerstein.

And we welcome both of you to the “NewsHour.”

Josh Gerstein, to you first.

We know that, late this afternoon, there was a letter sent by the Department of Justice to congressional committee chairs. Tell us what was in the letter. Why was it sent?

JOSH GERSTEIN, POLITICO: Well, it didn’t say very much.

It was basically responding to Democratic complaints that what Comey did, FBI Director Comey did, on Friday, notifying that they had essentially reactivated this Clinton e-mail investigation, had a lot of spawned speculation and had a political impact. And they wanted more details on if this complied with Justice Department policy and what’s going on in the investigation.

There were only really like two substantive sentences in this letter. One of them said that they’re working on getting this investigation done as expeditiously as possible. And the other one really didn’t address this issue of whether Comey might have violated Justice Department policy.

It just simply said the department appreciated the lawmakers’ concerns. We know from our other reporting that Attorney General Loretta Lynch and Deputy Attorney General Sally Yates strongly advised Comey against sending the letter, but he felt he needed to, so he did it anyway.

JUDY WOODRUFF: Right.

Let me turn to you, Michael Schmidt.

How is the Justice Department, how is the FBI handling this cache of hundreds of thousands of e-mails?

MICHAEL SCHMIDT, The New York Times: What they’re doing is, they’re putting it in a computer program to allows them to see whether there’s duplicates. That’s the real question here, whether any of the e-mails they’re in possession of are ones they had before that they know are classified or they know they looked at or if these are entirely a new batch.

If it’s a new batch, this could be a very time-consuming process, because the FBI would then have to take those e-mails and send them out to other government agencies and departments, where the information could have originated from to see if they’re classified.

JUDY WOODRUFF: How is that going? Do we know how fast it’s going?

MICHAEL SCHMIDT: Well…

JUDY WOODRUFF: Is this a laborious — go ahead.

MICHAEL SCHMIDT: The process of figuring out the duplicates isn’t hard. The computer program can do that pretty quickly.

So, they may have an idea even right now or even by tomorrow about sort of the universe of these. There’s hundreds of thousands of e-mails, but the computer will be able to quickly weed out which ones are new. So, at that point, they will sort of have a sense of, OK, we have dozens, hundreds, thousands of new e-mails that we really need to dig into.

JUDY WOODRUFF: So, Josh Gerstein, what is known about what could be here? They’re looking for e-mails that came from Hillary Clinton’s server. Is there a belief that there is classified material here?

JOSH GERSTEIN: Well, you know, the definitions of classified have proved fairly malleable in this investigation.

So it really wouldn’t surprise me if there are additional copies, as Michael says, of the same e-mails. I don’t think that would change much in the way this investigation went forward. Of course, if there are more e-mails of a different kind or a different ilk and then particularly if there are any messages on here that reflect people’s thoughts on this issue, for example, if anyone talks about, like, I know this is classified, but I’m sending it anyway — it seems very unlikely anyone would do that.

There wasn’t really much evidence of that in the first tens of thousands of e-mails that the FBI went through. But any message like that could be potentially incriminating for someone who sent it, if that exists.

JUDY WOODRUFF: Michael Schmidt, is it your understanding from your reporting that FBI officials already know what’s here or are they truly looking for something unknown?

MICHAEL SCHMIDT: If you look at Director Comey’s letter to Congress, he basically says, we haven’t had a chance to look at these yet.

I sort of find it hard to believe that the FBI would go with such an aggressive step of telling Congress without really having some idea of what is truly here. If these end up to be just a bunch of duplicates, then this will have been a big hubbub over nothing.

So I wonder what the FBI really knows here. And did that lead them to push as far as they did?

JUDY WOODRUFF: Well, it certainly raises that question.

Josh Gerstein, I understand you just recently heard from Huma Abedin’s attorney. What are they saying? What is she saying?

JOSH GERSTEIN: Well, we reported on this, this morning, that Huma Abedin told colleagues that she was mystified by why there were any of her e-mails on this computer. She insisted this is Mr. Weiner’s laptop, not hers, and she never stored any e-mails intentionally on this computer at any point.

And so she’s not sure exactly how this all came to pass. She says she’s cooperating with the FBI, but that they actually never reached out to her in connection with this most recent dramatic development in the investigation. There was thought maybe that she would be asked for her consent to go through the e-mails. That never happened.

The FBI instead ended up getting a warrant, perhaps because the laptop does belong to Mr. Weiner. He probably wouldn’t have consented to them going through it further. And so they decided to go that route. But she is saying she doesn’t know how her messages got on to this laptop in the first place.

JUDY WOODRUFF: And, finally, Michael Schmidt, the reporting over the weekend about whether Director Comey acted because of pressure of some sort from FBI agents who felt that he wasn’t being tough enough on Hillary Clinton, what has your reporting told you about that?

MICHAEL SCHMIDT: Yes, I find that hard to believe.

I think that the line FBI agents who really knew what was going on with the e-mail investigation understood why Director Comey came out and said that the bureau wasn’t recommending charges. I think they realized that there wasn’t criminal intent there. So the idea that Director Comey would do this facing some insurrection by FBI agents, I think, is probably not true.

JUDY WOODRUFF: All right, we’re going to leave it there for now. But I know both of you continue to watch this very closely. Michael Schmidt, Josh Gerstein, we thank you.

MICHAEL SCHMIDT: Thank you, Judy.

JOSH GERSTEIN: Thanks for having me.

JUDY WOODRUFF: And now for a closer look at Director Comey’s decisions and some of the behind the scenes at the FBI, we turn to Peter Zeidenberg. He’s an attorney and partner at Arent Fox. He spent 17 years at the Justice Department as a federal prosecutor. He’s also joined 100 others in an open letter critical of Comey’s actions. And Daniel Richman, he’s professor at Columbia Law School. He’s a former federal prosecutor, himself, and current policy adviser to Director Comey.

And we welcome both of you to the program.

Daniel Richman, let me start with you.

As we have been discussing, there is a lot of criticism being directed at Director Comey for what he did on Friday. What do you know about what motivated him and whether this was a result of criticism from the FBI or something else?

DANIEL RICHMAN, Columbia Law School: I think this is less about criticism from anybody and more about protecting the credibility of the organization and of his own credibility with Congress.

Here, we had him having made statements about the completion of the investigation, about the completion of the review of the e-mails back in July. All of a sudden, he’s confronted with very little notice with a trove of e-mails that appeared to be pertinent.

The next step is what to do. And I think what he figured he needed to do immediately is get the information that he had these right out. Was this extraordinary? Yes. But this is at a time when, as everyone focused on, there is an election going. The last statement he made was about the investigation having been completed.

The last thing he wanted was somewhere down the line information coming out that he sat on these e-mails while the election was — and during its final days, and while Congress was obviously monitoring the progress.

JUDY WOODRUFF: Peter Zeidenberg, what do you make of that explanation?

PETER ZEIDENBERG, Arent Fox: Well, I think it was premature.

I think it was premature to notify Congress before he had had a chance to actually examine these e-mails. And so I think it was a mistake. And, frankly, I think it was irresponsible to do it and drop this bomb.

And, as Josh Gerstein mentioned, it’s very possible, if not likely, that all these e-mails have been looked at already. They could all be duplicates.

JUDY WOODRUFF: So, do you — are you saying you think he was trying to influence the outcome of the presidential race?

PETER ZEIDENBERG: No, I’m not. And I’m not questioning Mr. Comey’s motives or his integrity. I just think it was a bad decision.

JUDY WOODRUFF: You mean just on the spur of the moment? I mean, how do you explain it?

PETER ZEIDENBERG: I think that, from the context, that he was — Congress put a lot of pressure on him, and I think he was concerned about being viewed as being not completely forthright.

But I think it would — and he was in a difficult position. But the fact is, he’s going to get criticism either way. And if there were criticism after the fact of not being forthcoming enough, I think the response is, I didn’t know what I had, and it would have been irresponsible to make a pronouncement before examining these e-mails.

JUDY WOODRUFF: Daniel Richman, how do you explain his decision to do this against the advice of both the attorney general, Loretta Lynch, the deputy attorney general? That’s a pretty significant recommendation to go against.

DANIEL RICHMAN: Those are significant recommendations, but I should note that had they wanted him not to do that, they could have ordered him not to do that. They do have hierarchical power over him.

And I think it’s really interesting to note that they didn’t. And there is a reason why they didn’t. The fact is that this is an extraordinary place to be already. Yes, there are important departmental guidelines that have really good reasons, but, at the same time, all guidelines are in the hands in enforcement and interpretation and in application in the highest Justice Department officials, of which the director is one.

So, here you had two officials who are hierarchically above him who decided not to prevent him from doing it, left it to his decision. He made his decision. Obviously, reasonable minds can differ, and they have differed. But to put him out alone, as they seem to have done, and then snipe at him from the sides, seems to be not very professional.

JUDY WOODRUFF: Peter Zeidenberg, how do you comment on that?

PETER ZEIDENBERG: Well, I think, as I said, he act on his own, apparently, against advice. And, you know, I think it’s, as I said, surprising, disappointing and unprecedented.

JUDY WOODRUFF: We have been hearing about divisions inside the Justice Department. FBI officials — there’s been reporting, most of it anonymous, about FBI officials critical of Director Comey, that he was perhaps feeling pressure in that way.

We heard the reporters. We heard Michael Schmidt of The New York Times say he didn’t think that was the case. How do you read the atmosphere inside the Department of Justice over all this?

PETER ZEIDENBERG: That would call for a bit of speculation on my part.

I would say it’s unfortunate how we got here. There’s a series of events. I think, you know, President Clinton getting on the plane, Bill Clinton getting on the plane, and then Loretta Lynch feeling that she had to recuse herself, and then handing it over to Jim Comey, who then felt constrained, for some reasons, to give this press conference, which was really incredible, back in July.

And then he testified and said, I will keep you apprised, to Congress. I think that was a mistake, to say, I will keep you apprised.

It was premature. The Congress shouldn’t be involved intimately with an ongoing investigation.

JUDY WOODRUFF: And just quickly, Daniel Richman, back to you.

Today, the Clinton campaign and others pointed out that there is now new reporting that Director Comey didn’t want it to be known that the administration had confirmed that the Russians were behind the hacking of the Democratic National Committee, arguing that it was too close to the election, that this would influence the election.

Is there inconsistency here?

DANIEL RICHMAN: There is only inconsistency, in the sense that there are really different facts.

And I certainly don’t know all the facts with regard to the internal deliberations with regard to the Russian hacking. But, yes, it certainly is the norm that the department doesn’t confirm or deny investigations and doesn’t confirm or deny the focus on any particular party.

This goes back, as Mr. Zeidenberg said, to what was thought to have been the need — and I think the director decided it was — back in July to make a statement about there not being an investigation here. Once you make the statement — or rather that it was completed — once you make that statement, I think it does come with an obligation to correct it.

JUDY WOODRUFF: Right.

Peter Zeidenberg, just finally, the public watching all this, how much confidence can they have that the Justice Department in general is not suffused with politics?

PETER ZEIDENBERG: Well, they — that really has been my experience when I was in the public integrity section.

And I believe that still to be the case that the career prosecutors are not political. And, you know, unfortunately, this has gotten pulled into that, and I think it will raise questions in people’s mind that’s unfair and very unfortunate.

JUDY WOODRUFF: Peter Zeidenberg, Daniel Richman, we thank you both.

DANIEL RICHMAN: Thank you.

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