FBI Director James Comey testifies on July 7, 2016 ,on Capitol Hill to a State Department oversight committee focusing on the FBI's recommendation not to prosecute Democratic presidential candidate Hillary Clinton for maintaining a private email server during her time as Secretary of State.

FBI Director James Comey testifies on July 7, 2016 ,on Capitol Hill to a State Department oversight committee focusing on the FBI's recommendation not to prosecute Democratic presidential candidate Hillary Clinton for maintaining a private email server during her time as Secretary of State.

Federal investigators have obtained a warrant to search the email server of a close aide to Hillary Clinton. In a surprise move on Friday – just 11 days before the presidential election – FBI Director James Comey informed Congress about new emails possibly linked to Clinton. In July the FBI announced no charges would be filed after it completed an investigation of Clinton’s use of a private server while she was secretary of State. The FBI director has been sharply criticized by Democrats and even some Republicans for his ambiguous letter to Congress on Friday. Diane and her guests discuss the latest on the new probe and whether it could sway voters at the polls next week.

Guests

  • Naftali Bendavid Editor and reporter, The Wall Street Journal
  • Carrie Johnson Justice correspondent, NPR
  • Josh Gerstein Senior reporter, POLITICO
  • Matthew Miller Former chief spokesman for the Department of Justice

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. It's being called the October surprise. On Friday, FBI director James Comey told Congress about newly discovered emails that might or might not be connected to Hillary Clinton. The Clinton campaign and other Democrats blasted Comey for the timing of his actions, coming less than two weeks before the presidential election. Now, federal investigators have a search warrant and are under intense pressure to examine the emails and make a conclusion before Election Day, November 8th.

  • 10:07:32

    MS. DIANE REHMHere in the studio, Naftali Bendavid of The Wall Street Journal, Carrie Johnson of NPR and Josh Gerstein of Politico. I'll be interested in your comments, questions, 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. And welcome to you all.

  • 10:08:01

    MR. NAFTALI BENDAVIDGood morning.

  • 10:08:02

    MR. JOSH GERSTEINHello, good morning.

  • 10:08:03

    MS. CARRIE JOHNSONSo happy to be here.

  • 10:08:03

    REHMGood to see you all. Carrie Johnson, take us through the chain of events starting with last Friday.

  • 10:08:11

    JOHNSONOn Friday, a bombshell, Diane, more than three months after the FBI appeared to have closed the investigation of Hillary Clinton's personal email server for her emails as secretary of state, the FBI director sent a letter to Republicans on Capitol Hill saying they had found a newly discovered batch of emails that could be pertinent to the investigation. He couldn't tell how significant they were, but FBI agents were going to be taking investigative steps to find out and he wanted to notify lawmakers about that 11 days before the presidential election.

  • 10:08:45

    REHMAnd isn't there some rule about what does and does not happen within a certain period of time before an election?

  • 10:08:58

    JOHNSONJustice Department veterans there are strong guidelines and traditions, guidelines that are reiterated every four years about not acting in a way that could influence an election. Normally, Diane, those rules are for things like state House races, let alone the candidacy for the president of the United States. But Jim Comey apparently decided that it would look as if he were misleading Congress if he left the impression that the investigation was over and closed and according to some of my law enforcement sources, he was also apparently concerned about the possibility of leaks within the FBI that would make it look like the FBI was engaging in a cover-up to protect Hillary Clinton so close to the election. Now...

  • 10:09:42

    REHMJosh Gernstein, how did these emails emerge?

  • 10:09:46

    GERSTEINWell, as we understand it, there is a completely separate investigation into Anthony Weiner, the former congressman, who is the husband of Huma Abedin, a long time top aide to Hillary Clinton. There were allegations that he had engaged in sexually explicit internet chats with someone, may have been underage. And so the FBI was looking into that, got warrant to obtain computer devices from him and when they copied those devices, set them up the way the FBI does, make a mirror of them and start to go through them, suddenly they started seeing some messages that seem to be not really involving Weiner, but involving his wife and that seemed similar to a lot of the messages that had come up in the Clinton email probe.

  • 10:10:38

    GERSTEINAnd you need to remember that the agents looking at this were not the agents that handled the Clinton email probe. It was a completely separate investigation and then became a legal question of can we go ahead and just rummage through all these emails or do we need to do something else. And that's what seems to have lead to the about three-week delay from when they came across this stuff in the beginning of October and Friday, Thursday or Friday, when they decided they were going to sort of escalate this situation further.

  • 10:11:07

    REHMSo Naftali, the FBI agents knew about these particular emails that they are now questioning more than three weeks ago.

  • 10:11:17

    BENDAVIDThey did. And some people have put a sinister cast on that. My own view is that it's just as likely to be sort of bureaucratic delays while agents sort of figure out what they have, talk to other agents. Let's not forget this Clinton email investigation had been closed so there wasn't an obvious channel for it and I think it just took a while. But there's a couple striking things about it. One is, they really don't know what they have so it's this strange combination of an absolute bombshell politically with an extreme lack of knowledge from a legal or investigative perspective because the FBI hasn't seen the emails.

  • 10:11:49

    BENDAVIDThey're just starting to look at them now. They didn't have a warrant or court order at the time. They don't know if they're relevant. They don't know if Hillary sent or received any of them. There's a lot of vagueness and it's a real contrast between the sharp political impact and the very vague reality what we know about them.

  • 10:12:06

    REHMWell, frankly, that's what I don't understand. If the FBI did not know whether any of these emails were either to or from Hillary, why would Director Comey go before the Congress or send them a letter?

  • 10:12:25

    BENDAVIDWell, I think the road for this was paved some time ago, starting in July when he did a very unusual thing, which is he held a press conference to say we don't recommend charging Hillary Clinton in the email matter. We do, however, think she was extremely careless. And it's a very unusual thing to do from several perspectives that managed to infuriate everybody. Republicans were angry that charges weren't being filed. Democrats were angry because there's another prosecutorial tradition that if you don't think you have a case to make in court, you shut up and go home.

  • 10:12:54

    BENDAVIDYou don't sort of trash the person. Then, of course, he was called before Congress...

  • 10:12:57

    REHMAnd trashing the person by virtue of saying, she was extremely careless. Is that the phrase?

  • 10:13:04

    BENDAVIDYes. That was the phrase and, you know, maybe my own phrase was, you know, colorful, but I mean, in the sense that he's criticizing her behavior without bringing her, you know, to court. Then, he went before Congress and talked about it at great length. Then, the FBI released a bunch of internal investigative documents about it so that when this came up, I think he felt like had he not said something, he would've been seen as withholding. He would've been seen as violating the standard he had set for openness in this case.

  • 10:13:30

    BENDAVIDSo I think in some way, he's in a tight spot, but it was sort of set up by his own previous actions.

  • 10:13:35

    REHMDo I understand correctly, the attorney general advised against sending this letter, but did not prohibit him from sending the letter, Carrie?

  • 10:13:49

    JOHNSONLaw enforcement sources are telling me both the attorney general and the deputy attorney general sent word to the FBI director that they did not want him to send this letter and that, in fact, in their view, by doing that, he would be violating these DOJ rules and traditions against influencing an election or a political campaign. But the FBI director acted independently on his own and sent the letter anyway.

  • 10:14:14

    REHMJosh.

  • 10:14:15

    GERSTEINAnd my sources tell me the same thing. And remember, as Naftali was saying, these statements that Comey had made previously, he also made those -- quite proudly, he said he did those without clearing them in advance with the Justice Department when he came out and made the statement about the investigation. It's not only unusually for a prosecutor -- prosecutors to come out and speak about somebody that's not being indicted, but Comey wasn't the prosecutor on this case. He was the lead investigator as the head of the FBI.

  • 10:14:42

    GERSTEINNow, that may sort of not be his fault because remember, Attorney General Loretta Lynch essentially recused herself from this case after having that conversation on the tarmac with President Bill Clinton. And so there is a mess here. It is mostly, I think, of Comey's making. It perhaps is somewhat of Attorney General Lynch's making as well in that, you know, she did things here that lead to this situation where Comey ended up essentially being in charge of both the prosecution and the investigation.

  • 10:15:09

    REHMSo now, the FBI has a search warrant to do what?

  • 10:15:16

    GERSTEINA search warrant to go through these emails and basically do what they did with the tens of thousands of emails, if not hundreds of thousands they already went through in connection with the Clinton email investigation, which is to look at them, mainly looking to see if they're classified or if they might be classified. But that's not even a decision that the FBI can make on its own. It has to refer those emails out to the intelligence community. And when Carrie spoke earlier about the possibility of leaks, it really seems inevitable, if you were going to start to taking stacks of emails and circulating them around the government for an additional inspection, it's almost inconceivable to me that somebody in the government wouldn't have leaked that this was going on, again, especially if it was going on in the weeks before a presidential election.

  • 10:15:59

    REHMBut how likely is it that the FBI could possibly go through these emails and give the public, as well as the Congress, some indication of what's in those emails before the election?

  • 10:16:18

    BENDAVIDI think it's almost impossible. I mean, it's, you know, it's not just that they have to go through thousands of emails. But they really do need to figure out what they have and to sort of characterize them and if any of them may have contained classified information. Remember the whole issue previously was emails that contained classified information, but weren't marked classified. So that means you actually have to go through them and see if, retrospectively, they really should've been marked classified.

  • 10:16:42

    BENDAVIDI think this is a process the clearly will take weeks if not months. And so it creates a situation where there's this overhang over the last week and a half of the campaign where this could be something or it could not be something, but it's not going to be resolved until well after the election itself. It's a very strange situation for the electorate to be in.

  • 10:16:58

    REHMCarrie.

  • 10:16:59

    JOHNSONWell, you know, immediately following the director's letter and the disclosure that the FBI didn't even have a warrant to look at these things yet, people were guiding me in the law enforcement community that this might take weeks if not months. Yesterday, a slightly different message coming from law enforcement, the notion that if they go through these thousands of emails and they find many if not all of them are duplicates of what they have already seen, they could potentially have something to say on this later in the week.

  • 10:17:29

    JOHNSONThat said, it's hard to imagine, with that many emails, there isn’t some kind of new information in there that will require a more careful review.

  • 10:17:36

    REHMWell, we shall see. Carrie Johnson, she's justice correspondent for NPR, Naftali Bendavid of The Wall Street Journal, Josh Gernstein of Politico. When we come back, we're going to take your calls, your questions, 800-433-8850.

  • 10:20:01

    REHMAnd welcome back. We're talking about the huge new issues raised by FBI Director Comey when he announced last Friday he had sent a letter to members of Congress saying he was reopening the investigation into Hillary Clinton's emails. That came out of an investigation of Anthony Weiner's emails. Anthony Weiner being the estranged husband of Clinton aide Huma Abedin. What might be in these emails, Josh?

  • 10:20:47

    GERSTEINWell, there could be emails here to her from Hillary Clinton, maybe directly. There could be messages, if we go and look at what came up in the previous investigation, a lot of messages forwarded from other people, top aides to Hillary Clinton. People like Jake Sullivan, Cheryl Mills that -- whom Abedin was regularly in correspondence with. So it seems, I would guess, that there probably are some messages from Clinton, either directly or indirectly in this set, whether of duplicates of what she had before. Also, people don't know is how did this even up on this laptop?

  • 10:21:21

    REHMExactly.

  • 10:21:22

    GERSTEINBecause Huma Abedin has indicated to colleagues that she didn't know she had any emails at all on this laptop. She never placed them on there. It's not clear how that happened. It's possible that maybe it was a backup of another laptop that Anthony Weiner -- maybe they moved from one to another and they simply copied everything on it, as many people do and then go forward with the new more powerful computer.

  • 10:21:46

    GERSTEINSo it remains unclear. Most of these messages, Wall Street Journal's reporting there are as many as 650,000 messages on this laptop. Most of them probably don't even have to do with Huma Abedin at all. They probably have to do with Weiner. And -- but now the, you know, FBI is gonna have to go through them one by one and try to match them to emails that were already discovered during these earlier phases of the Clinton email investigation.

  • 10:22:11

    REHMNaftali?

  • 10:22:12

    BENDAVIDYeah, I mean, right. So the 650,000 refers to the total number of emails. There's probably a few thousand that have to do with possibly being related to Clinton email investigation. And there is some actual contradiction about the laptop itself and whether Huma Abedin used it or whether she didn't use it. So, I mean, just to go back to this point, there's still so much vagueness about this that it's really, I think, gonna take a while to sort it all out.

  • 10:22:37

    BENDAVIDAnd of course the electorate has to vote in eight days, plenty of people vote early, but a lot of people are voting November 8th. And they're gonna have…

  • 10:22:45

    REHMAnd have already voted.

  • 10:22:45

    BENDAVIDRight. And so they're gonna have this sort of incomplete picture. And so what you're seeing on the campaign trail, of course, is both sides trying to characterize this and push it and pull it into a shape that makes sense for them in the remaining time before the vote.

  • 10:22:57

    JOHNSONAnd it's worth remembering, Diane, that in July when James Comey apparently closed this case, only to take another look at it, he concluded no reasonable prosecutor would have brought any charges against Hillary Clinton or her close aides. He said it was not a close call because he didn't see any evidence of obstruction of justice, lying or betraying the country or bad intent. This was just a mistake, a careless -- more than careless in some ways, but not criminal. And it's hard to imagine, I'm hearing from law enforcement sources, absent something really big being in those emails, that a prosecutable case could be made now.

  • 10:23:33

    REHMOkay. And here's an email from Jackie, who says, "It's so troubling that Comey was intimidated by the Republican Oversight Committee. This committee has been extremely rude and bullying. Now, with this latest action, Comey has rewarded the bullies. And why didn't they even look into Donald Trump's background instead of focusing on Clinton?" Naftali?

  • 10:24:04

    BENDAVIDWell, this is a point that Democrats have made repeatedly. We don't know that they're not looking into Donald Trump's background. There may be an investigation of who knows what. But that has not been made public. But the investigations into Hillary Clinton have been made public. And so that's something the Democrats complain about. I mean, we -- you heard a lot about Donald Trump talking about the election being rigged, but Hillary Clinton's folks have always said that she is somehow treated differently and this kind of feeds that sentiment. And it's something that they're talking about a lot to their supporters these days.

  • 10:24:34

    REHMAnd joining us now is Matthew Miller. He's former chief spokesman for the Department of Justice. And for the record, he does support Hillary Clinton. Matt, thanks for joining us.

  • 10:24:51

    MR. MATTHEW MILLERThanks for having me.

  • 10:24:52

    REHMHow unusual is it for an FBI director to have done what Comey did so close to a national election?

  • 10:25:01

    MILLERThere's no precedent for it in history, either by an FBI director, an attorney general or anyone connected to the Department of Justice. You know, the Department typically doesn't comment on investigations anyway, that are ongoing. Comey has, in this case, set a lot of new precedents. He's shared more about internal FBI deliberations. He's sometimes offered his own opinions about the case in a way that contradict typical department practice.

  • 10:25:31

    MILLERAnd this time he went even further than that and violated the long-standing practice, something that was reiterated as recently as four years ago by Attorney General Holder, that the Department doesn't do anything that could be seen as putting its thumb on the scale in the closing days before an election. Usually that's interpreted as 60 days before the election, let alone 11.

  • 10:25:51

    REHMSo from your knowledge of the inner workings of Justice, why do you think that the Justice officials did not overrule Comey's decision to go to Congress 11 days before the election?

  • 10:26:08

    MILLERWell, I think he's put them in a very bad position. He has made clear, going back to July, that he's not really interested in what the attorney general or the deputy attorney general think about how he ought to handle this case. You know, he gave them -- as I think your reporter -- the reporters on the panel discussed -- he gave them a last minute heads-up about what he was gonna do without telling them the content of what he was gonna do in July.

  • 10:26:31

    MILLERAnd now, you know, he basically listened to their advice from all the reporting, listened and, you know, they told him that it would be a violation of the rules and decided to do it anyway. So, you know, if your boss tells you what you're about to do is a violation of the rules, they shouldn't have to actually give you a direct order. And I think if they had, you know, he probably would have either disobeyed it or he could have even offered, you know, it's possible he would have offered his resignation, which is, you know, a bit of an overreaction for something like this, but obviously something that if you're sitting in the attorney general's office you don't want to provoke.

  • 10:27:05

    REHMDo you think he still might offer his resignation?

  • 10:27:11

    MILLERYou know, I don't think he would over any interference from the attorney general or deputy attorney general because, from all accounts, they're not interfering with him. They're letting him sort of run wild and violate rules and violate practice and precedent.

  • 10:27:28

    REHMDo you…

  • 10:27:29

    MILLERI do think though, I was just gonna say, I do think that the position that he has put the Department of Justice in now is untenable. You cannot have an FBI director that is completely accountable to no one. The job -- the person in that job has a great deal of power and a great deal of authority and a great deal of independence by design. But they can't be accountable (sic). And they certainly can't be allowed to just flagrantly violate the rules and substitute their own judgment for long-standing practice.

  • 10:27:57

    REHMWhat about J. Edgar Hoover?

  • 10:28:00

    MILLERWell, a lot of the reason we have some of the rules in place we have today are because of the example of J. Edgar Hoover. It was such, you know, the way he operated as a kind of one man above the law, the -- a very troubling precedent for the country. And I don't think anyone's suggesting that Comey has come anywhere near approaching the kind of example that Hoover set, but, you know, we're only in year three of his term and he has seven years to go. And the fact that he's already, you know, willing to operate kind of on his own and disregard rules is troubling for the rest of his tenure.

  • 10:28:35

    REHMAnd, Matt, just taking Comey's point of view for a moment, didn't he have an obligation to alert Congress? Wouldn't it have looked worse if it were to have come out after the election that the FBI knew something and did not disclose it?

  • 10:28:55

    MILLERWell, I think that going back to July he's made a series of mistakes. And each mistake has begat the other one or the following on. And I think he probably did feel he had to notify Congress, which, by the way, the Department doesn't usually do in these types of cases because of what he's done in the past. I disagree with that. I don't think you ought to let one bad decision force you into making another decision.

  • 10:29:17

    MILLERBut even if so, there was no requirement that he alert Congress before the election. I think if you look at the balance of equities, he could have decided, you know, I do feel an obligation to Congress to notify them, but there's also long-standing practice that we don't do anything that puts our thumb on the scale of the election. And given that we're not actually providing any new information to the public, to Congress, to voters, there's nothing here but a bunch of speculation and innuendo, it would be well within his rights to wait and do that sometime down the road.

  • 10:29:46

    REHMWe have a caller who is asking for clarification on exactly what it is that is criminal in this investigation. The use of a private server, while wrong, surely is not criminal.

  • 10:30:05

    MILLERThat's absolutely right. It wasn't criminal. The -- what the FBI looked at was whether there were issues with, you know, classified information being intentionally sent on unclassified networks, which would have been the case whether it was a private server or an unclassified State Department server, if Hillary Clinton had just had a HClinton@State.gov email for example. And they concluded that there was no violation of law.

  • 10:30:29

    REHMJosh Gerstein of Politico wants to get in.

  • 10:30:33

    GERSTEINYeah, part of also what I think we're seeing here is the FBI, in this type of an investigation, actually does have a -- something of a dual role. It's not strictly actually solely about whether a crime was committed. That's usually what the FBI looks at. But when you're talking about a potential breech of classified information, the FBI has counterintelligence responsibilities for leaks of classified information within the U.S., whether they're criminal or non-criminal.

  • 10:30:58

    GERSTEINSo one of the things they're looking at is what type of classified information got outside the wall that the government usually tries to keep it in, how sensitive was it, where is it now, what do we need to do about it, you know, do we need to rein in certain operations or wind them down maybe because some word of some very sensitive operation went out. And that's a standard operating procedure.

  • 10:31:21

    GERSTEINSo I'm shocked that if they came across emails that looked like they might be additional or have additional information in them that could possibly be classified, that they'd want to go through them carefully and see what programs are discussed. That said, I think we're gonna find that most of the emails are accumulative, duplicative or don't add to the judgment about whether somebody should or shouldn't be prosecuted. There would have to be an extraordinary smoking gun in there where somebody says something completely incriminating, which we haven't seen in the tens of thousands of emails that have been publicly released and looked at by the FBI so far.

  • 10:31:54

    REHMDo you want to comment, Matt?

  • 10:31:56

    MILLERNo. Josh is absolutely right about the role of the FBI in cases like this I think. I also agree with his conclusion, that it's really hard to imagine that there's something in there that changes the FBI's determination and the Department of Justice's determination from July. Which I think just goes to the point that, you know, given that, why did the director, you know, feel the need to make such a public splash. And obviously he did know that as soon as he sent this letter it would become public, so close to an election. It's just really hard to justify.

  • 10:32:29

    REHMNaftali Bendavid?

  • 10:32:31

    BENDAVIDYeah, I mean, I just think in all this we should sort of be careful not to impugn the director's motives. I mean, a lot of people are arguing whether he made a mistake, didn't make a mistake…

  • 10:32:40

    REHMOr whether he was pressured by some group.

  • 10:32:44

    BENDAVIDOr -- right. And I think that, you know, from his perspective, what he has said publicly, is that in a case of this sort of great national interest, transparency is very important, it outweighs some other considerations. You know, he -- this is the guy who came to national attention under the Bush administration when he -- at least by his own account -- ran to the hospital room of John Ashcroft to prevent White House officials from the Bush administration into pressuring him on interrogation techniques. So I think, you know, I mean, I think it's one thing to say that he has made mistakes, or hasn't made mistakes, now that debate. But there's nothing to indicate that there was anything sort of nefarious in terms of his motivation.

  • 10:33:21

    REHMAnd you're listening to "The Diane Rehm Show." Matt Miller, some people are arguing that Comey actually broke the law. The White House ethics lawyer, Richard Painter, wrote a piece in The New York Times published this morning that Comey broke the Hatch Act. What's your feeling?

  • 10:33:47

    MILLERNo. I don't think there's a good case that the broke the Hatch Act. I think there's a good case that he's violated several Department of Justice rules and practices and precedents, but not the Hatch Act. And I think that goes to the point that Naftali was making about questioning his motivations and his integrity. I don't question his motivations from a partisan standpoint. He's a registered Republican, but I don't agree with those that think he did this to somehow, you know, tilt the election against Hillary Clinton.

  • 10:34:13

    MILLERAnd I don't question his integrity. But I do think that there are times with Jim Comey that the own high regard he holds himself in and the own high regard he holds for his own integrity allows him to -- or leads him to substitute his own judgment for the rules that exist to govern people like him. You know, the FBI director, he has an important job and he is an man of integrity, but that doesn't mean that he is free to, you know, decided unilaterally that we can just throw all these rules out the window.

  • 10:34:45

    MILLERI think, you know, in cases of public interest like this, which is the justification he used for his actions, the -- all of the rules around not commenting and when you comment were designed for cases of public interests. No one cares if you comment or not -- don't comment about an uninteresting case. It's for these exact type of matters that the rules exist.

  • 10:35:05

    REHMBut what about the idea that had he not sent the letter and commented on it the news would have leaked from other FBI agents?

  • 10:35:18

    MILLERWell, I think there are two points about that. One, the FBI, apparently, we know from reporting, had -- knew about these emails for several weeks and it hadn't leaked. It wasn't until Comey himself was briefed on Thursday that he decided to send this letter. So I don't know, after having not leaked for several weeks, what made him think it was suddenly going to leak. The second…

  • 10:35:38

    REHMCarrie Johnson -- oh, sorry. Go ahead.

  • 10:35:40

    MILLERAnd the second point, quickly, is that goes to more of a management issue. And if he's concerned about leaks in his building, he needs to do something to prevent those from happening. It doesn't mean that you make a decision to violate the rules and notify Congress. If there was a leak the FBI could have managed that after the fact. But, you know, the activity he has exhibited actually, you know, in any sense, you know, could motivate more leaks. And I think we've seen that over the last few days.

  • 10:36:10

    REHMCarrie Johnson?

  • 10:36:11

    JOHNSONThis whole episode has exposed real tension between the Justice Department and the FBI, not just the leadership of both buildings, but also in the rank and file. And it's worth pointing out that Hillary Clinton, in her campaign, and their allies have been drumming up support and letters from prosecutors all over the country, targeting the FBI director. The FBI director has seven years left in his term. So if she wins the White House and he does not resign, she's going to have to live with him.

  • 10:36:40

    JOHNSONAnd I can imagine a situation where we're back in the 1990s again, when President Bill Clinton lived with Louis Freeh, his FBI director who was in persistent conflict with Attorney General Janet Reno. This is setting up a dynamic, a possible dynamic moving forward, Diane, for the next four years that could be quite undermining of public confidence in the justice system.

  • 10:37:05

    REHMMatt, I'm wondering if you can stay on with us through the hour.

  • 10:37:11

    MILLERHappy to.

  • 10:37:11

    REHMOkay. Short break here and after that we'll start taking your calls, your email. Stay with us.

  • REHMWelcome back. As we look at the extraordinary crisis in our election process, that the statement by FBI Director James Comey made last week, saying he was going to reopen the investigation into Hillary Clinton's emails. And now, has gotten a warrant to do just that. Here in the studio, Naftali Bendavid of the Wall Street Journal. Carrie Johnson of NPR. Josh Gerstein of Politico. And on the line with us, Matthew Miller, former Chief Spokesman for the Department of Justice under Attorney General Eric Holder.

  • 10:40:52

    REHMWe did invite a representative of the FBI to join the program, but received no response. Let's open the phones now, first to Chuck in St. Louis, Missouri. You're on the air.

  • 10:41:08

    CHUCKYeah, thanks for taking my call.

  • 10:41:10

    REHMSure.

  • 10:41:11

    CHUCKI have a question about this. As opposed to the server, where the emails are actually saved, using a personal computer, usually it's my understanding they're not saved, so are they accessing these forensically? And if they are, how does a government employee handle their email or are they not allowed to use their personal computers? Or, I guess I'm a little bit confused on the nature of these emails. If they weren't actually saved, how are they getting at them?

  • 10:41:41

    REHMMatt Miller.

  • 10:41:43

    MILLERIt's a great question. I don't think we know how -- what emails they are looking at now. It's one of the outstanding questions that we're waiting to get an answer to. I will say though, in terms of what's permissible and what's not permissible, you are supposed to only do government business on a government computer. I will tell you, though, that, that it is the wide standing practice that a lot of people, when they're working from home, when they're working on the road, will forward a document or forward an email from their personal laptop.

  • 10:42:16

    MILLEROr I should say from their government account, usually on a Blackberry or now an iPhone. To a personal computer so they can print it or so they can work on it. It's not permitted by the rules, but I will -- it is one of those things that I think the vast majority of government employees actually do.

  • 10:42:31

    REHMAll right, and to Martha in Ithaca, New York. You're on the air.

  • 10:42:37

    MARTHAHi, thanks. I love your show, as always. To that last point, let's remember this was 2009 to 2013. Practices have changed. I think Comey's silence since Friday has been outrageous. That's one comment. Shouldn't it also be relatively quick to search? I can search my email by clicking, you know, to or from and look for a name on there. Takes a second. And finally, what about Harry Reid's letter and the accusation about that they're hiding -- that they're not releasing information about ties between Trump and Russia?

  • 10:43:18

    JOHNSONI've been getting emails all weekend from tech companies in the Silicon Valley, advertising their service to quickly search emails. That's not exactly the problem. The problem is if they search these, they find out there are some emails that are not duplicates, not copies of what they already saw in the FBI. They need to take a close look at each of those messages to make sure there's no classified information, top secret information, government secrets in there.

  • 10:43:44

    JOHNSONAnd that could implicate a process that involves communicating with the Director of National Intelligence and the State Department and the FBI and a whole bunch of bureaucracy which will take a long time.

  • 10:43:53

    REHMWhat about Trump's relationship to Russia?

  • 10:43:57

    GERSTEINWell, again, we don't know what the FBI is investigating relating to Donald Trump. And it's not for a lack of asking. I mean, certainly, many journalists that I know have tried to find that out, and -- but the Democratic argument I think essentially is surely they are looking into various elements that have been raised regarding him and his university and his charities and his ostensible relationships with Russia. And they're angry that all this information about Hillary Clinton is front and center and there's no information about Donald Trump.

  • 10:44:24

    GERSTEINIt's just a difficult question for us to answer without knowing more details about if, in fact, there are FBI investigations of Mr. Trump, what they might be, what stage they're at, and what's going on with them.

  • 10:44:33

    REHMAnd yet, we know everything that's happening regarding Hillary Clinton.

  • 10:44:38

    BENDAVIDYeah, and I do think that it's fair to assume that there are ongoing government investigations, US government investigations into some of the people in Trump's world. He has some very interesting connections in terms of advisors and former advisors, who have done a lot of work overseas in Russia, in countries allied with Russia. That has drawn the interest, I think, of US Intelligence Agencies, it's fair to say. But whether that implicates Donald Trump directly.

  • 10:45:05

    BENDAVIDWhether that necessarily implicates his current set of campaign advisors, I don't know that. And, you know, the normal way these kinds of investigations is handled is that you don't really talk about those kinds of steps until you do something dramatic like you arrest somebody or you indict somebody or maybe, you know, we see a bunch of FBI agents running into a building with cardboard boxes to haul stuff away.

  • 10:45:29

    REHMBut our caller mentioned that Comey has not said a word over the weekend.

  • 10:45:37

    JOHNSONNo, he has not spoken over the weekend. He talk with some members of Congress on Saturday, who requested an update. And several Democrats in the Senate have sent Jim Comey a letter, the FBI Director a letter, demanding some more answers about what the FBI is doing exactly. The deadline is today, so if today passes and no word from the FBI, it will be a very interesting situation.

  • 10:45:58

    REHMHow about the letter from Harry Reid, Naftali?

  • 10:46:02

    BENDAVIDRight, so Harry Reid is alleging what we heard before, this question of whether or not it's a violation of the Hatch Act, which prohibits government employees from engaging in political activity on the job. I mean, I think it's a little bit of a stretch, whatever you want to say about this action. It wasn't, sort of, overtly political. Perhaps in its effects it might have been, but it certainly wasn't in its intent or in the nature of the activity. I think it's Harry Reid's way of raising the issue of the FBI Director doing something that damages one Presidential candidate rather than anything that's realistically going to be a Hatch Act violation.

  • 10:46:35

    REHMMatt Miller, how would you see Hillary Clinton's campaign dealing with this news and their new strategy if any?

  • 10:46:46

    MILLERYou know, they're in such a -- they've been put in such a bad spot by Director Comey, because most people, when they hear that the FBI is investigating something, most, you know, voters and others, they automatically, you know, assume that something's wrong. When, in fact, it may be that there's nothing at all here amiss at all. As we've discussed at length, you know, some of these emails could be duplicates. So, they're really in a situation where they're trying to prove a negative, which, of course, is impossible.

  • 10:47:11

    MILLERSo I think, you know, they were right to come out and question the timing of this letter, to question why it was sent. And now to come up, or, to ask the FBI for what is really an imperfect solution, which is to try to deal with all this before Election Day. I think, you know, it's hard to see how that happens, and, you know, we're in this world now where you wouldn't want the FBI Director to come out and give a partial update as an investigation is ongoing. But having opened the door through his statement on Friday, if there is nothing to see here, he really owes it to Secretary Clinton to say that.

  • 10:47:49

    REHMJosh.

  • 10:47:49

    GERSTEINIt's also awkward for the Clinton campaign, because you have to remember through most of year, as this investigation was winding forward, they intentionally put all their eggs in the Comey basket. They said, we trust the FBI, we trust the FBI Director to reach the right conclusion here. To do a professional job. We don't trust people on Capitol Hill. We don't trust the Inspector General at the State Department. In some cases, we may not even cooperate with those entities because we are going to just focus on cooperating with the FBI investigation.

  • 10:48:19

    GERSTEINWe're so confident in the job they're going to do. And then, beginning in July, but even in a more extreme way over the weekend, we have the Clinton campaign attacking James Comey, saying that he's engaged in outrageous activity, and that his announcement on Friday was way over the line. Which may or may not be true on the facts, but it's a little bit odd, given the amount of faith they had put in him earlier in the process.

  • 10:48:41

    REHMAll right, let's take a hypothetical here. Suppose Hillary Clinton were elected. And suppose the FBI investigation continued and suppose criminal activity were found. What happens next, Matt Miller?

  • 10:49:06

    MILLERFirst of all, let me start by saying I think that's extremely unlikely, given what we know about this situation and given the determination the FBI has already made. But if that -- in the very unlikely event that were to occur, you know, there are processes and procedures set up to deal with that. Presumably, the FBI Director would make a recommendation to the Justice Department. You know, they would, you know, concur or disagree with that. And then decide about moving forward with charges.

  • 10:49:34

    MILLERYou then get into interesting Constitutional questions about whether the Department of Justice would bring charges against a sitting President, and whether it's the role of Congress then to intervene with impeachment. But I think that is such an unlikely scenario in this case. It's, you know, never likely to come to pass.

  • 10:49:51

    REHMNaftali.

  • 10:49:52

    BENDAVIDYeah, I mean, I think, I think less likely than that is just sort of what's going to happen at the end of this campaign. I mean, let's remember where we were right before Friday. Hillary Clinton had clear leads, nationally and in key states. Trump was arguably closing a little bit, but I think she undeniably was the favorite. Then this hits. They -- the plan of the Clinton campaign had been to hit a positive, upbeat note as their closing argument. And to try to come into office, if not maybe with a mandate, at least with a positive message.

  • 10:50:21

    BENDAVIDAnd not just a feeling that like, they were the least bad candidate and managed to sneak in. And this throws all of that off balance and off kilter and puts her in a difficult situation for the remaining time.

  • 10:50:30

    REHMTo Dorothy in Pittsburgh, Pennsylvania. You're on the air.

  • 10:50:35

    DOROTHYThank you, Diane, for taking my question.

  • 10:50:38

    REHMSurely.

  • 10:50:38

    DOROTHYAbout a week ago, I saw on a news cast the Trump children being interviewed. They said that they had a bombshell coming at the end of October. The interviewer said that October is almost over. They answered with a smile, we have time. Now, the question in my mind is could they have had previous knowledge and/or could there have been pressure on the FBI to create this temporary chaos? Thank you so much.

  • 10:51:19

    REHMAll right. And Josh Gerstein.

  • 10:51:22

    GERSTEINI mean, look, I don't know what they knew. It's not inconceivable that they might have had some hint that this was going on, but I would say if they really did have a bombshell, especially with the fact of early voting and so forth, it's really in Donald Trump's interest to try to change the dynamic of the campaign as quickly as possible. So, it didn't -- doesn't seem very smart to me, strategically, if they had explosive information, to be sitting on it through the month of October to try to unveil it in the days just immediately before the election.

  • 10:51:53

    REHMMatt Miller, is there any indication of why the FBI started looking at Weiner's computer, thinking about Hillary Clinton? Or was it totally by accident that her email showed up? I mean, do we know anything about why?

  • 10:52:24

    MILLERI take it at face value. I don't have an independent knowledge of this, but I take it at face value, the reporting that says they were investigating Anthony Weiner for charges that he engaged -- or that he exchanged lewd texts with a minor. And that they stumbled across these emails in the process of searching that. I take that at face value. It -- I don't think there, you know, it's likely that they were, you know, looking to extend the Clinton investigation by rummaging through Weiner's materials.

  • 10:52:53

    REHMAnd you're listening to The Diane Rehm Show. Carrie Johnson, at this point, what is Huma Abedin's future?

  • 10:53:06

    JOHNSONWell, she has told friends and people on the campaign that she's quite surprised that any of her correspondence was on this laptop. She was travelling with Secretary Clinton on the plane on Friday when this bombshell was dropped by the FBI Director. She did not travel on the plane over the weekend. There is no sense right now that she's in any criminal jeopardy, although the investigation is ongoing. It's not clear to me, at this point, whether she's going to be a close presence, close in proximity and personal relationship to Secretary Clinton for the remainder of this campaign or not.

  • 10:53:44

    REHMNaftali.

  • 10:53:46

    BENDAVIDI mean, I've, we've been told that she's going to get back on the campaign trail, you know, and will be seen. She -- the thing is, she's had this very long time, very close, personal relationship with Hillary Clinton. She's been, perhaps, her closest confidante for her whole career. And so, the idea that there would be a sudden sharp rift, I think, is unlikely. And also, part of it, going forward, should Hillary Clinton become President, we'll have to see what the outcome is of this new material. And I think if it's pretty exonerating, I think Huma Abedin is likely to be a big part of the administration.

  • 10:54:13

    REHMWhat do you think, Josh?

  • 10:54:14

    GERSTEINWell, I'm just struck by the fact that it's sort of a visual representation to me. That's why, maybe, she wasn't out over the weekend. And a visual representation of the fact that this controversy is certainly going to extend through the election. No matter what James Comey may say or not say in the course of the next eight days. And frankly, that either candidate, either Trump or Clinton, is going to have a legal overhang and an investigative overhang that will extend well after the campaign.

  • 10:54:40

    GERSTEINWhether it's women, you know, 14 women that have come out accusing him of various impropriety. That he's going to sue for liable. Or they may sue him for liable. Or the Trump University case. Or this Clinton email case. I'm not drawing equivalences between any of them, but there will be a continuing mess that I think a lot of Americans are going to find kind of deflating and unpleasant that is going to continue for months if not years after either of these candidates is elected.

  • 10:55:05

    REHMMatt Miller, are there any early polls to give us any indication that voters' attitudes have been affected by this controversy?

  • 10:55:18

    MILLERThere was one poll I saw over the weekend, where I think it was 63 percent of the people polled said that it didn't -- that the revelation didn't affect their opinion of the election. And, you know, a smaller number said it either made them feel worse about Hillary Clinton, which you imagine are probably Republicans that would answer that way. I think it was around 20, 25 percent. And a very small number that said it made them feel better. I think it will be several days before we can actually measure the impact on the election. And we'll just have to wait and see.

  • 10:55:48

    REHMNaftali.

  • 10:55:48

    BENDAVIDYeah, I feel like I've seen polls that suggest no effect and polls that show something of a negative effect. It's just very hard to see. At this stage of the campaign, polls are notoriously difficult. Things are shifting very rapidly, and so it's hard to say. I mean, myself, I don't doubt that it's slowed her momentum somewhat, that it may affect some down-ballot races. But it's really hard to tell at this point.

  • 10:56:06

    REHMOne caller that we couldn't get to says, Trump has deleted business emails in defiance of court orders. Newsweek is reporting on this. Well, Newsweek is no longer Newsweek. Do we know anything about this?

  • 10:56:25

    GERSTEINI've heard stories like this. You know, he's been involved, I think, in like thousands of lawsuits over the course of his career. And his companies have been involved in thousands of lawsuits. They're often very hard fought, there are often all kinds of allegations back and forth about whether records were kept or not kept. In many cases, he's filed the lawsuits against people, and so I'm not at all surprised that there would at least be an allegation that some records weren't preserved.

  • 10:56:50

    GERSTEINBut we don't know -- we don't believe that Trump himself is a prolific emailer. So if there are emails missing, they're probably not his.

  • 10:56:55

    REHMQuick question. Could this controversy affect down-ballots? Naftali?

  • 10:57:01

    BENDAVIDI mean, I think it could, just because some of these races have been so incredibly close, particularly some of the outstanding Senate races. In New Hampshire, in Florida, and in various places. And so, I think even a little hiccup like this could make a difference in some of those races.

  • 10:57:14

    REHMNaftali Bendavid of the Wall Street Journal, Carrie Johnson of NPR, Josh Gerstein of Politico, and Matt Miller, former Chief Spokesman for the Department of Justice under Attorney General Eric Holder. Thank you all.

  • 10:57:34

    MILLERThank you.

  • 10:57:34

    JOHNSONThank you.

  • 10:57:34

    GERSTEINThank you.

  • 10:57:34

    BENDAVIDThank you.

  • 10:57:35

    REHMAnd thanks for listening all. I'm Diane Rehm.

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