What FBI director James Comey did not say

The media is proclaiming that Hillary Clinton has been exonerated by FBI director James Comey because of a letter Comey wrote on November 6, 2016 to the chairpersons and ranking members of various congressional committees. 

In his letter, Comey stated:

I write to supplement my October 28, 2016 letter that notified you the FBI would be taking additional investigative steps with respect to former Secretary of State Clinton’s use of a personal email server. Since my letter, the FBI investigative team has been working around the clock to process and review a large volume of emails from a device obtained in connection with an unrelated criminal investigation. During that process, we reviewed all of the communications that were to or from Hillary Clinton while she was Secretary of State.

Based on our review, we have not changed our conclusions that we expressed in July with respect to Secretary Clinton.

This is not an exoneration of Hillary Clinton or anybody else on her staff.  Comey states that in reviewing “a large volume of emails,” the FBI “reviewed all of the communications that were to or from Hillary Clinton while she was Secretary of State.” Comey does not say that the “large volume of emails” consisted entirely of emails “that were to or from Hillary Clinton while she was Secretary of State.”

There is nothing in Comey’s letter that eliminates the possibility that the “large volume of emails” also included emails that were to or from Hillary Clinton while she was not secretary of state.  If the device was a computer used by Anthony Weiner and Hillary’s close aide Huma Abedin, and there were over 650,000 emails on the computer, as the Washington Post has told us, then it is possible that the “large volume of emails” includes emails predating and postdating Hillary’s term as secretary of state, which was from January 21, 2009 to February 1, 2013.  Comey’s letter is silent on whether any such emails have been reviewed, and if so, their contents.

There is nothing in Comey’s letter that eliminates the possibility that the “large volume of emails” also included emails that were neither to nor from Hillary Clinton.  It is possible that the “large volume of emails” includes emails between Abedin and people other than Hillary.  Is there an email from Abedin to Hillary’s close aide Cheryl Mills, or some other aide, containing statements showing that the intent to have the private server was to avoid FOIA disclosures and disclosures to Congress that would demonstrate bribery through the Clinton Foundation for State Department favors to the foundation donors?  Such statements would provide the “intent” element that Comey erroneously found lacking in his July 2016 announcement.  Again, Comey’s letter is silent on whether any such emails have been reviewed, and if so, their contents.

Unless every one of the emails on the device was “to or from Hillary Clinton while she was Secretary of State,” which appears unlikely, then the FBI’s investigation of the emails on the device is incomplete, as far as we can tell from Comey’s letter.  Nowhere in his letter does Comey state that the investigation of whether Hillary violated national security laws has been closed.  Apart from the issue of whether a thorough review of the emails “to or from Hillary Clinton while she was Secretary of State” occurred, if Comey’s letter is taken at face value, he does not exonerate Hillary or anybody on her staff regarding violation of national security laws.  He merely states the results of a review of what appears to be a subset of the emails on the device.  He is not commenting on what a review of any other emails on the device has shown or might show in the future.

The only reason I can see for Comey to send this carefully worded letter now is to influence the election in favor of Hillary because he knows that the media will report it as an exoneration of Hillary.  It appears that Comey has succeeded as to the media.  Whether he succeeds in getting Hillary elected president is up to you.

Allan J. Favish is an attorney in Los Angeles.  His website is allanfavish.com.  James Fernald and Mr. Favish have coauthored a book about what might happen if the government ran Disneyland, titled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).

The media is proclaiming that Hillary Clinton has been exonerated by FBI director James Comey because of a letter Comey wrote on November 6, 2016 to the chairpersons and ranking members of various congressional committees. 

In his letter, Comey stated:

I write to supplement my October 28, 2016 letter that notified you the FBI would be taking additional investigative steps with respect to former Secretary of State Clinton’s use of a personal email server. Since my letter, the FBI investigative team has been working around the clock to process and review a large volume of emails from a device obtained in connection with an unrelated criminal investigation. During that process, we reviewed all of the communications that were to or from Hillary Clinton while she was Secretary of State.

Based on our review, we have not changed our conclusions that we expressed in July with respect to Secretary Clinton.

This is not an exoneration of Hillary Clinton or anybody else on her staff.  Comey states that in reviewing “a large volume of emails,” the FBI “reviewed all of the communications that were to or from Hillary Clinton while she was Secretary of State.” Comey does not say that the “large volume of emails” consisted entirely of emails “that were to or from Hillary Clinton while she was Secretary of State.”

There is nothing in Comey’s letter that eliminates the possibility that the “large volume of emails” also included emails that were to or from Hillary Clinton while she was not secretary of state.  If the device was a computer used by Anthony Weiner and Hillary’s close aide Huma Abedin, and there were over 650,000 emails on the computer, as the Washington Post has told us, then it is possible that the “large volume of emails” includes emails predating and postdating Hillary’s term as secretary of state, which was from January 21, 2009 to February 1, 2013.  Comey’s letter is silent on whether any such emails have been reviewed, and if so, their contents.

There is nothing in Comey’s letter that eliminates the possibility that the “large volume of emails” also included emails that were neither to nor from Hillary Clinton.  It is possible that the “large volume of emails” includes emails between Abedin and people other than Hillary.  Is there an email from Abedin to Hillary’s close aide Cheryl Mills, or some other aide, containing statements showing that the intent to have the private server was to avoid FOIA disclosures and disclosures to Congress that would demonstrate bribery through the Clinton Foundation for State Department favors to the foundation donors?  Such statements would provide the “intent” element that Comey erroneously found lacking in his July 2016 announcement.  Again, Comey’s letter is silent on whether any such emails have been reviewed, and if so, their contents.

Unless every one of the emails on the device was “to or from Hillary Clinton while she was Secretary of State,” which appears unlikely, then the FBI’s investigation of the emails on the device is incomplete, as far as we can tell from Comey’s letter.  Nowhere in his letter does Comey state that the investigation of whether Hillary violated national security laws has been closed.  Apart from the issue of whether a thorough review of the emails “to or from Hillary Clinton while she was Secretary of State” occurred, if Comey’s letter is taken at face value, he does not exonerate Hillary or anybody on her staff regarding violation of national security laws.  He merely states the results of a review of what appears to be a subset of the emails on the device.  He is not commenting on what a review of any other emails on the device has shown or might show in the future.

The only reason I can see for Comey to send this carefully worded letter now is to influence the election in favor of Hillary because he knows that the media will report it as an exoneration of Hillary.  It appears that Comey has succeeded as to the media.  Whether he succeeds in getting Hillary elected president is up to you.

Allan J. Favish is an attorney in Los Angeles.  His website is allanfavish.com.  James Fernald and Mr. Favish have coauthored a book about what might happen if the government ran Disneyland, titled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).