Unfortunately, the latest reporting is often contradictory and confusing. So here’s my best effort to sift through it.
Comey’s language is maddeningly opaque and cryptic. In his letter to lawmakers, Comey says that the new emails “appear to be pertinent” to the previous investigation into Clinton’s use of a private server. He also says the FBI is now seeking to “determine whether they contain classified information,” and “cannot yet assess whether the material may or may not be significant.” (Emphasis mine.)
But Comey’s own declaration that the new emails “appear to be pertinent” suggests that they are significant. Comey surely knew that news organizations would conclude as much, which is what they are now doing, with screaming headlines and with analysis claiming this could impact the presidential race.
Perversely, we are being told by news outlets that the new info may not be substantively significant, but it may be politically significant, which, you’d think, is an outcome Comey would have wanted to avoid.
Comey’s latest justification requires more explanation. Sari Horwitz reports that Comey sent a second letter to FBI employees yesterday to explain his decision to brief lawmakers, perhaps anticipating that his move would come under scalding criticism. In that second letter, Comey said that he felt it would be “misleading to the American people” if he did not let them know that he had turned up new emails, after having said in July that the investigation was completed, with no recommendation of charges. Yet in this letter, Comey also conceded: “given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression.”
Opinions differ on whether Comey really had to do this. Jane Mayer reports that Justice Department officials are furious, seeing it as a violation of longstanding department protocols, which discourage public comment on ongoing investigations and advise taking care not to influence elections. Others have defended it, arguing that Comey had an obligation to notify Congress about any potentially relevant new findings.
But putting that dispute aside, one thing seems inarguable: Comey had to know that releasing such a vaguely worded letter to lawmakers at this time would allow Republicans to argue that new evidence of Clinton’s criminality has been discovered. This is of course exactly what has happened. This risks “misleading” the American people, which Comey’s latest justification claims he wanted to avoid, and which Comey has now facilitated and enabled in a huge way. If he actually does want to avoid this, he should rectify the situation by providing more clarity right now.
Of course, it’s not clear how much the FBI actually knows about the current emails. Here’s what we don’t know:
We don’t know whether Clinton sent any of these emails. The Los Angeles Times reports that according to one official, “the emails were not to and from Clinton.” But the Post reports something different: according to a law enforcement official, the “correspondence included emails between Abedin and Clinton.” That could simply mean emails were sent by Abedin to Clinton, and that Clinton didn’t send any. But we just don’t know.
Meanwhile, Kurt Eichenwald’s sources offer a fuller explanation: They say Abedin frequently printed out emails she had received that she thought Clinton should read, and in some cases printed out emails that Clinton had forwarded to her for that purpose. Abedin used several email accounts for this task, Eichenwald reports, and this is how the newly discovered ones ended up on the shared device. Eichenwald adds:
If the FBI determines that any of the documents that ended up on the shared device were classified, Abedin could be deemed to have mishandled them. In order to prove that was a criminal offense, however, investigators would have to establish that Abedin had intended to disclose the contents of those classified documents, or that she knew she was mishandling that information.
In this telling, the FBI may now be looking at whether Abedin improperly handled emails with classified info in them. But as has already been established, the FBI doesn’t even know yet whether they contain classified info. Eichenwald adds, however, that “none” of the newly found emails were sent from Abedin to Clinton, which would seem to suggest they were all emails Abedin had received from other sources that she wanted to print for Clinton to read.
What’s unclear to me is how even much of this is known. Pete Williams reported last night that the FBI will need to get a court order to even read the newly found emails. So it’s not clear how we know the little bit we have been told. But the reporting suggests that FBI officials who are leaking to the press do know more than they’ve publicly acknowledged.
Many of these emails may be duplicates. The Post report includes this:
Officials familiar with the inquiry said it was too early to assess the significance of the newly discovered emails. It is possible, they said, that some or all of the correspondence is duplicative of the emails that were already turned over and examined by the FBI.
Some or all of them could be duplicates. If so that would dovetail with the notion that the discovered emails do not contain new significance, which, again, Comey repeatedly conceded is a genuine possibility. (See update below.)
This is an absurd mess. Comey should do whatever he can to clean it up as quickly as possible. Unfortunately, if the FBI cannot get immediate access to the emails, he may not be able to. Which calls into question the original decision to release such a vaguely worded letter in the first place. Even if it was in some ways understandable, the current outcome it has produced surely is unacceptable.
UPDATE: The New York Times reports some important additional detail:
Justice Department officials were particularly puzzled about why Mr. Comey had alerted Congress — and by extension, the public — before agents even began reading the newly discovered emails to determine whether they contained classified information or added new facts to the case.Law enforcement officials have begun the process to get court authority to read the emails, officials said. How soon they will get that is unclear, but there is no chance that the review will be completed before Election Day, several law enforcement officials said. Many of the emails are most likely copies of messages that the F.B.I. has already read, said the officials, who spoke on the condition of anonymity because they were not authorized to comment publicly.
If this reporting is right, FBI agents have not read the newly discovered emails, and thus could not know whether they were duplicates of emails already examined in the course of the previous examination. Indeed, officials think they probably are duplicates, which would mean nothing new was discovered here.
Again, we still do not know for sure either way. But it’s looking increasingly like this is what might have happened.