Hillary Clinton emails - FBI investigation

FBI Recommends No Charges Following Clinton E-Mail Investigation
news release announcing statement by FBI Director James B. Comey
fbi.gov, 2016-07-05

FBI Director James B. Comey said today that the Bureau has recommended to the Department of Justice that no charges are appropriate following an extensive investigation of Hillary Clinton’s use of a personal e-mail system during her time as Secretary of State.

The FBI investigation followed a referral last July from the Intelligence Community Inspector General and focused on whether classified information was improperly stored or transmitted on Secretary Clinton’s personal e-mail servers during her four-year tenure.

“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” Comey said during a 15-minute press briefing to reporters at FBI Headquarters.

Director Comey’s full remarks
[Reproduced in full below, as they were on the web on 2016-07-06 1800 EDT.
I (KHarbaugh) have added paragraph numbers.
Also, all the emphasis has been added (none was present in the original),
and several questions and/or comments have been added, in this typeface and color.]

Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System
statement by FBI Director James B. Comey
Washington, D.C. July 05, 2016

FBI National Press Office (202) 324-3691

Remarks prepared for delivery at press briefing.

Good morning. I’m here to give you an update on the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State.

After a tremendous amount of work over the last year,
the FBI is completing its investigation
and referring the case to the Department of Justice
for a prosecutive decision.
What I would like to do today is tell you three things:
what we did; what we found; and what we are recommending to the Department of Justice.

This will be an unusual statement in at least a couple ways.
First, I am going to include more detail about our process than I ordinarily would,
because I think the American people deserve those details in a case of intense public interest.
Second, I have not coordinated or reviewed this statement in any way
with the Department of Justice or any other part of the government.
They do not know what I am about to say.

I want to start by thanking the FBI employees who did remarkable work in this case.
Once you have a better sense of how much we have done, you will understand why I am so grateful and proud of their efforts.

So, first, what we have done:

The investigation began as
a referral from the Intelligence Community Inspector General in connection with
Secretary Clinton’s use of a personal e-mail server
during her time as Secretary of State.
The referral focused on
whether classified information was transmitted on that personal system.

Our investigation looked at whether there is evidence
classified information was improperly stored or transmitted on that personal system,
in violation of a federal statute making it a felony
to mishandle classified information either intentionally or in a grossly negligent way,
or a second statute making it a misdemeanor
to knowingly remove classified information from appropriate systems or storage facilities.

Consistent with our counterintelligence responsibilities,
we have also investigated to determine whether
there is evidence of computer intrusion in connection with the personal e-mail server
by any foreign power, or other hostile actors.

I have so far used the singular term, “e-mail server,”
in describing the referral that began our investigation.
It turns out to have been more complicated than that.
Secretary Clinton used several different servers and administrators of those servers
during her four years at the State Department,
and used numerous mobile devices to view and send e-mail on that personal domain.
As new servers and equipment were employed,
older servers were taken out of service, stored, and decommissioned in various ways.
Piecing all of that back together—
to gain as full an understanding as possible of the ways in which
personal e-mail was used for government work—
has been a painstaking undertaking, requiring thousands of hours of effort.

For example,
when one of Secretary Clinton’s original personal servers
was decommissioned in 2013,
the e-mail software was removed.
[KH question: Who ordered that, and why?
There could have been no technical reason for that.
If the server was no longer the current, operational, one,
why not leave it "as is" in case in the future
it should be desired to have a look at what its status was
at the time of its "decommissioning".
In the computer world, we call that "taking checkpoints",
and it is an important part of any respectable computer management operation.]

Doing that didn’t remove the e-mail content,
but it was like removing the frame from a huge finished jigsaw puzzle
and dumping the pieces on the floor.
The effect was that millions of e-mail fragments end up unsorted
in the server’s unused—or “slack”—space.
We searched through all of it to see what was there,
and what parts of the puzzle could be put back together.

FBI investigators have also read all of the approximately 30,000 e-mails
provided by Secretary Clinton to the State Department in December 2014.
Where an e-mail was assessed as possibly containing classified information,
the FBI referred the e-mail to any U.S. government agency
that was a likely “owner” of information in the e-mail,
so that agency could make a determination as to
whether the e-mail contained classified information
at the time it was sent or received,
or whether there was reason to classify the e-mail now,
even if its content was not classified at the time it was sent
(that is the process sometimes referred to as “up-classifying”).

From the group of 30,000 e-mails returned to the State Department,
110 e-mails in 52 e-mail chains
have been determined by the owning agency
to contain classified information at the time they were sent or received.
Eight of those chains contained information that was Top Secret
at the time they were sent;
36 chains contained Secret information at the time; and
eight contained Confidential information, which is the lowest level of classification.
Separate from those, about 2,000 additional e-mails were “up-classified”
to make them Confidential;
the information in those had not been classified at the time the e-mails were sent.

The FBI also discovered several thousand work-related e-mails
that were not in the group of 30,000
that were returned by Secretary Clinton to State in 2014.

We found those additional e-mails in a variety of ways.
Some had been deleted over the years and we found traces of them
on devices that supported or were connected to the private e-mail domain.
Others we found by reviewing the archived government e-mail accounts
of people who had been government employees at the same time as Secretary Clinton,
including high-ranking officials at other agencies,
people with whom a Secretary of State might naturally correspond.

This helped us recover work-related e-mails that were not among the 30,000 produced to State.
Still others we recovered from the laborious review of the millions of e-mail fragments
dumped into the slack space of the server decommissioned in 2013.

With respect to the thousands of e-mails we found that were not among those produced to State,
agencies have concluded that three of those were classified at the time they were sent or received,
one at the Secret level and two at the Confidential level.
There were no additional Top Secret e-mails found.
Finally, none of those we found have since been “up-classified.”

I should add here that
we found no evidence that
any of the additional work-related e-mails
were intentionally deleted
in an effort to conceal them.

Our assessment is that, like many e-mail users,
Secretary Clinton periodically deleted e-mails
or e-mails were purged from the system when devices were changed.
Because she was not using a government account—
or even a commercial account like Gmail—
there was no archiving at all of her e-mails,
so it is not surprising that we discovered e-mails
that were not on Secretary Clinton’s system in 2014,
when she produced the 30,000 e-mails to the State Department.

It could also be that
some of the additional work-related e-mails we recovered
were among
those deleted as “personal” by Secretary Clinton’s lawyers
when they reviewed and sorted her e-mails for production in 2014.

[Really? If so, why does this not indicate possible malfeasance?]

The lawyers doing the sorting for Secretary Clinton in 2014
did not individually read the content of all of her e-mails,
as we did for those available to us;
instead, they relied on header information and used search terms
to try to find all work-related e-mails
among the reportedly more than 60,000 total e-mails remaining on Secretary Clinton’s personal system in 2014.
It is highly likely their search terms missed some work-related e-mails,
and that we later found them, for example,
in the mailboxes of other officials or in the slack space of a server.

[KH question: Um, wait a minute, sir.
Isn't this lack of care towards archiving and producing emails on request by the government
a neglect (negligence) of her duties as Secretary of State?
I know that's not necessarily a security concern,
but it sure seems to me to address (negatively) the issue of
whether she carried out her duties in a competent fashion.]

It is also likely that
there are other work-related e-mails
that they did not produce to State and
that we did not find elsewhere, and
that are now gone because they deleted all e-mails
they did not return to State, and
the lawyers cleaned their devices in such a way
as to preclude complete forensic recovery.

[KH question: How about asking those lawyers precisely why they did that?
And who ordered the cleaning?
I cannot believe they would take such an irrevocable step on their own,
without instructions from the person whose interests they were representing.

I have worked on computers for many years,
and would question why there was any technical reason whatsoever for
"clean[ing] their devices in such a way as to preclude complete forensic recovery".
Also, why did that not constitute destruction of government property and/or destruction of evidence (obstruction of justice)?

As to my opinion,
if DOJ and FBI don't see a real problem with the destruction of that potential evidence,
when the people who ordered the destruction knew of the questions swirling around what they turned over versus didn't turn over,
there is something very clearly wrong with DOJ and FBI.

Further amplification on this point is in the conclusion of
the statement from U.S. Representative Jim Jordan (R-Ohio) starting at 44:50
in the C-SPAN video of the 2016-07-07 House Oversight hearing
(a text of his statement appears in the transcript,
but hearing him say it amplifies his points).
The embed below is clipped to show his full five minute statement, with responses by Director Comey,
starting after about ten seconds of concluding remarks by Rep. Maloney.]

We have conducted interviews and done technical examination
to attempt to understand how that sorting was done by her attorneys.
[Note that that is precisely the question that Cheryl D. Mills refused to answer when it was asked during her deposition under Judge Sullivan's order for the Judicial Watch FOIA lawsuit.
Did she, for the FBI, answer questions which she refused to answer in that deposition?
And if so, is there a way that information on this topic can be made available to those who have a need to know about it?]

Although we do not have complete visibility
because we are not able to fully reconstruct the electronic record of that sorting,
we believe our investigation has been sufficient to give us reasonable confidence
there was no intentional misconduct in connection with that sorting effort.

[Really? How was that possibility downgraded to being out of "reasonable confidence"?]

And, of course, in addition to our technical work,
we interviewed many people,
from those involved in setting up and maintaining
the various iterations of Secretary Clinton’s personal server,
to staff members with whom she corresponded on e-mail,
to those involved in the e-mail production to State,
and finally, Secretary Clinton herself.

[It was reported that Brian Pagliano answered questions from the FBI.
I presume he is included in those to whom Director Comey refers.
If so, considering what Director Comey is saying,
Pagliano's statements were not as adverse to Ms. Clinton as some reports said they were.]

Last, we have done extensive work to understand what indications there might be
of compromise by hostile actors in connection with the personal e-mail operation.

That’s what we have done. Now let me tell you what we found:

Although we did not find clear evidence that Secretary Clinton or her colleagues
intended to violate laws governing the handling of classified information,
there is evidence that they were extremely careless
in their handling of very sensitive, highly classified information.

For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received.
These chains involved
Secretary Clinton both sending e-mails about those matters
and receiving e-mails from others about the same matters.

There is evidence to support a conclusion that
any reasonable person in Secretary Clinton’s position,
or in the position of those government employees with whom she was corresponding about these matters,
should have known that an unclassified system was no place for that conversation.

In addition to this highly sensitive information,
we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail
(that is, excluding the later “up-classified” e-mails).

None of these e-mails should have been on any kind of unclassified system,
but their presence is especially concerning because all of these e-mails were housed on
unclassified personal servers not even supported by full-time security staff,
like those found at Departments and Agencies of the U.S. Government—
or even with a commercial service like Gmail.

Separately, it is important to say something about the marking of classified information.
Only a very small number of the e-mails containing classified information
bore markings indicating the presence of classified information.
But even if information is not marked “classified” in an e-mail,
participants who know or should know that the subject matter is classified
are still obligated to protect it.

While not the focus of our investigation,
we also developed evidence that the security culture of the State Department in general,
and with respect to use of unclassified e-mail systems in particular,
was generally lacking in the kind of care for classified information found elsewhere in the government.

With respect to potential computer intrusion by hostile actors,
we did not find direct evidence that Secretary Clinton’s personal e-mail domain,
in its various configurations since 2009, was successfully hacked.
But, given the nature of the system and of the actors potentially involved,
we assess that we would be unlikely to see such direct evidence.
We do assess that hostile actors gained access to the private commercial e-mail accounts
of people with whom Secretary Clinton was in regular contact from her personal account.
We also assess that Secretary Clinton’s use of a personal e-mail domain
was both known by a large number of people and readily apparent.
She also used her personal e-mail extensively while outside the United States,
including sending and receiving work-related e-mails in the territory of sophisticated adversaries.
Given that combination of factors,
we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.

[I wonder if "possible" should be "probable" in that statement,
especially considering some of the statements from former DIRNSA Michael Hayden,
who certainly at least at one time knew about as much as anyone about our adversaries cyberintelligence capabilities and objectives.]

So that’s what we found. Finally, with respect to our recommendation to the Department of Justice:

In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect.
Although we don’t normally make public our recommendations to the prosecutors,
we frequently make recommendations and engage in productive conversations with prosecutors
about what resolution may be appropriate, given the evidence.
In this case, given the importance of the matter, I think unusual transparency is in order.

Although there is evidence of potential violations of the statutes regarding the handling of classified information,
our judgment is that no reasonable prosecutor would bring such a case.
Prosecutors necessarily weigh a number of factors before bringing charges.
There are obvious considerations, like the strength of the evidence, especially regarding intent.
Responsible decisions also consider the context of a person’s actions,
and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information,
we cannot find a case that would support bringing criminal charges on these facts.
All the cases prosecuted involved some combination of:
clearly intentional and willful mishandling of classified information; or
vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or
indications of disloyalty to the United States; or
efforts to obstruct justice.
We do not see those things here.

[Again, I would ask why the cleansing of the electronic storage media
could not be considered obstruction of justice.]

To be clear, this is not to suggest that in similar circumstances,
a person who engaged in this activity would face no consequences.
To the contrary, those individuals are often subject to security or administrative sanctions.
But that is not what we are deciding now.

As a result, although the Department of Justice makes final decisions on matters like this,
we are expressing to Justice our view that no charges are appropriate in this case.

I know there will be intense public debate in the wake of this recommendation,
as there was throughout this investigation.
What I can assure the American people is that this investigation was done competently, honestly, and independently.
No outside influence of any kind was brought to bear.

I know there were many opinions expressed by people who were not part of the investigation—
including people in government—
but none of that mattered to us.
Opinions are irrelevant, and they were all uninformed by insight into our investigation,
because we did the investigation the right way.
Only facts matter, and the FBI found them here in an entirely apolitical and professional way.
I couldn’t be prouder to be part of this organization.

[C-SPAN's video of Director Comey's statement:]

[I could not find a video of Directory Comey's statement at the FBI website as of 2016-07-06 1800 EDT,
however I found at least one video, prefaced by about 1 min 50 sec of comments from the uploader, at YouTube.
Here is a link to that video, plus an embed, both arranged to start with Director Comey's opening remarks.]

Link to video of Director Comey's statement.
Embed of the same:

[Another video of Comey's remarks, from "Hillary Clinton Speeches & Events".]

[In comparing the "remarks prepared" to what Director Comey said in the video,
there are some minor difference:
"the case" becomes "the matter",
"This will" becomes "This is going to be",
"foreign power" becomes "nation states",
and so on.]

Let's juxtapose two of Director Comey's statements about
the deletion of work-related emails:

  • [1.11]
    I should add here that
    we found no evidence that
    any of the additional work-related e-mails
    were intentionally deleted
    in an effort to conceal them.

  • [1.14]
    It is also likely that
    there are other work-related e-mails
    that they did not produce to State and
    that we did not find elsewhere, and
    that are now gone because they deleted all e-mails
    they did not return to State, and
    the lawyers cleaned their devices in such a way
    as to preclude complete forensic recovery.

According to [1.14], Clinton's lawyers willfully and intentionally ordered an act
which made impossible future examination of
whether some work-related emails might have been overlooked
in determining which emails would be provided to the government.
So how can Director Comey justify the quoted part of [1.11]?
How can he know that the intentional act the lawyers ordered was not part of
"an effort to conceal them [i.e., additional work-related emails]"?
Is he a mind reader?
How can he know what their intent was?

Now let's take a look at part of the exchange at the House Oversight hearing on 2016-07-07
between Representative Jim Jordan (R-Ohio) and Director Comey,
copied from the C-SPAN transcript, which uses all-caps.
This exchange starts at 3:15 in the video embed below.

Director Comey: I DON'T BELIEVE SO. >>
Dir. Comey: YES. >>
Dir. Comey: YES. >>
Two questions:
First, did Clinton give her statement under oath?
If not, why not?
Second, since Dir. Comey says that
Clinton was asked the very questions Rep. Jordan is asking,
why doesn't he tell us how she answered those questions,
rather than tell us what he (Director Comey) "thinks" and "believe"?
See the last exchange for a particular example of that.

Hillary Clinton’s email problems might be even worse than we thought
By Chris Cillizza
Washington Post, 2016-07-05

Here’s the good news for Hillary Clinton:
The FBI has recommended that no charges be brought
following its investigation of the former secretary of state's private email server.

Here’s the bad news: Just about everything else.

FBI Director James B. Comey dismantled large portions of Clinton's long-told story about her private server and what she sent or received on it during a stirring 15-minute news conference, after which he took no questions. While Comey exonerated Clinton, legally speaking, he provided huge amounts of fodder that could badly hamstring her in the court of public opinion.


Comey said Clinton had used not one but multiple private email servers during her time at State.
He said Clinton used multiple email devices during that time.
(She had offered her desire to use a single device for “convenience” as the main reason she set up the private server.)
He noted that the lawyers tasked by Clinton with sorting her private emails from her professional ones never actually read all of the emails (as the FBI did in the course of its investigation).
He argued that the Clinton lawyers had deleted emails they marked as personal that contained professional content,
and that while the FBI found some of those emails in its investigation,
it was certainly possible more existed that they were unable to track down.


It’s hard to read Comey’s statement as anything other than a wholesale rebuke of the story Clinton and her campaign team have been telling ever since the existence of her private email server came to light in spring 2015. She did send and receive classified emails. The setup did leave her — and the classified information on the server — subject to a possible foreign hack. She and her team did delete emails as personal that contained professional information.

Those are facts, facts delivered by the Justice Department of a Democratic administration. And those facts run absolutely counter to the narrative put forth by the Clinton operation: that this whole thing was a Republican witch-hunt pushed by a bored and adversarial media.


On Hillary emails, Comey’s evidence clashes with Comey’s conclusions
by Charles Hurt
Washington Times Opinion, 2016-07-05


The FBI director said there is “no evidence,” however,
“that any of the additional work-related emails
were intentionally deleted
in an effort to conceal them.”

OK, so they were unintentionally deleted,
or they were intentionally deleted,
but not in an effort to conceal them?
They were deleted in an effort to be transparent?
Deleted in order to make them public?
We are just having a hard time following here....


Clinton Makes the FBI’s Least-Wanted List
Explaining why he wasn’t recommending prosecution, Director James Comey instead showed that charges would have been justified.
By Michael B. Mukasey
Wall Street Journal, 2016-07-05 : July 5, 2016 7:20 p.m. ET


Unlike Mrs. Clinton’s own lawyers—
who decided which emails to produce by reading just the headings—
the [FBI] agents read each of the many thousands of emails and fragments that passed through their hands.
The job was made no easier
by the decision of those lawyers to obliterate the email record they had examined,
making it impenetrable to forensic examination.
All in all, these tasks of the agents bear comparison with the labors of Hercules.

Moreover, that the FBI seems to have limited its inquiry to the two federal criminal statutes mentioned in Mr. Comey’s statement appears entirely reasonable. The level of intent and specificity necessary to prove purposeful intent to destroy government records, or intent to obstruct justice—even assuming such activity was afoot—would have required testimony by an actively cooperating participant. Plainly, no such cooperation was forthcoming.

That left the two statutes discussed in Mr. Comey’s statement—one a felony, the other a misdemeanor—and here the announced decision is harder to understand.

It is a felony for anyone entrusted with lawful possession of information relating to national defense to permit it, through “gross negligence,” to be removed from its proper place of custody and disclosed. “Gross negligence” rather than purposeful conduct is enough. Yet Mr. Comey appears to have based his recommendation not to prosecute on the absence of “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information”—though he did say in the same sentence that there was “evidence that they were extremely careless in their handling of very sensitive, highly classified information.”


To be “extremely careless” in the handling of information that sensitive is synonymous with being grossly negligent.

And what of the finding that the investigation did not disclose “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information”? Even the felony statute requires no such evidence, and no such intent.

The misdemeanor involves simply the knowing removal of classified documents to an unauthorized location. That is the statute to which David Petraeus, the former U.S. Army general and Central Intelligence Agency director, pleaded guilty in 2015. (He had disclosed classified documents to his biographer/mistress, who also had top-secret clearance, returned the information to him and never disclosed it in his biography or elsewhere.)

Mr. Comey mentioned three considerations prosecutors weigh in considering charges: the strength of the evidence, “especially regarding intent”; “the context of a person’s actions”; and “how similar situations have been handled in the past.”

Criminal intent of the usual sort, as noted, is not a requirement of either statute.


Mr. Comey didn’t explain why, with evidence clearly fulfilling the requirements of the two statutes involved, no reasonable prosecutor would bring a case—except for the director’s inaccurate assertion that it had never been done before.

And finally, although there was transparency about process, there was no discussion of underlying facts, only conclusions. It may be that some day there will be the usual transparency: disclosure of facts. That day was not Tuesday, and it is little wonder that many in and out of government were left both puzzled and dismayed.

Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006).

FBI Rewrites Federal Law to Let Hillary Off the Hook
by Andrew C. McCarthy
National Review, 2016-07-05

There is no way of getting around this:
According to Director James Comey (disclosure: a former colleague and longtime friend of mine),
Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18):
With lawful access to highly classified information
she acted with gross negligence in removing and causing it to be removed it from its proper place of custody,
and she transmitted it and caused it to be transmitted to others not authorized to have it,
in patent violation of her trust.
Director Comey even conceded that former Secretary Clinton was “extremely careless”
and strongly suggested that her recklessness very likely led to communications
(her own and those she corresponded with)
being intercepted by foreign intelligence services.
Yet, Director Comey recommended against prosecution of the law violations he clearly found
on the ground that there was no intent to harm the United States.

In essence, in order to give Mrs. Clinton a pass,
the FBI rewrote the statute,
inserting an intent element that Congress did not require.
The added intent element, moreover, makes no sense:
The point of having a statute that criminalizes gross negligence
is to underscore that government officials have a special obligation to safeguard national defense secrets;
when they fail to carry out that obligation due to gross negligence,
they are guilty of serious wrongdoing.
The lack of intent to harm our country is irrelevant.
People never intend the bad things that happen due to gross negligence.

[Emphasis from the original.]


It is a common tactic of defense lawyers in criminal trials to set up a straw-man for the jury:
a crime the defendant has not committed.
The idea is that by knocking down a crime the prosecution does not allege and cannot prove,
the defense may confuse the jury into believing the defendant is not guilty of the crime charged.
Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime
is irrelevant to
the consideration of the crimes that actually have been charged.

It seems to me that this is what the FBI has done today.
It has told the public that because Mrs. Clinton did not have intent to harm the United States
we should not prosecute her on a felony that does not require proof of intent to harm the United States.
Meanwhile, although there may have been profound harm to national security
caused by her grossly negligent mishandling of classified information,
we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information.

I think highly of Jim Comey personally and professionally, but this makes no sense to me.

Finally, I was especially unpersuaded by Director Comey’s claim that
no reasonable prosecutor would bring a case based on the evidence uncovered by the FBI.
To my mind, a reasonable prosecutor would ask:
Why did Congress criminalize the mishandling of classified information through gross negligence?
The answer, obviously, is to prevent harm to national security.
So then the reasonable prosecutor asks:
Was the statute clearly violated, and if yes,
is it likely that Mrs. Clinton’s conduct caused harm to national security?
If those two questions are answered in the affirmative,
I believe many, if not most, reasonable prosecutors would feel obliged to bring the case.

5 ways Comey contradicted Clinton's email claims
On key points, the FBI director refuted several rationales behind her private server.
By Rachael Bade
Politico, 2016-07-06

FBI Director Comey’s Suggestion that Congress’s Gross Negligence Statute Is Invalid
by Andrew C. McCarthy
National Review, 2016-07-07

Director Comey’s explanation is now clear, though he did not lay it out in his report earlier this week:
The statute criminalizing gross negligence in mishandling classified information is invalid
because it does not require proof of intent to improperly transmit classified information to places it is not supposed to be or to people not authorized to have it.

The director claims that the statute has only been used once since its enactment in 1917,
and therefore its invocation as written in Mrs. Clinton’s case would be suspect.
He implies that the only way to save the statute is for the Justice Department to do
what prosecutors routinely tell judges that they are not permitted to do:
rewrite the statute – in this instance, to add a higher mens rea proof requirement.

With due respect, this argument is very unconvincing, for at least two reasons:

1. It is implausible to claim, as Director Comey does, that a criminal statute is implicitly invalid if the mens rea (state of mind) element merely requires proof of gross negligence rather than intent to cause harm.
Let’s consider the causing of death, a consequence similarly grave to compromising our national security by mishandling classified information.
I believe every state in our country criminalizes the negligent causing of death.

2. It would be contradictory to require proof beyond a reasonable doubt of both
(a) the intentional causing of harm, and
(b) the causing harm by gross negligence.
We know in our everyday lives that we do not intend the harm we cause when we act negligently.
The driver who texts behind the wheel never intends the harm that comes to the passengers when the highly likely accident happens.
If Director Comey is correct, though,
that would mean that Congress is powerless to criminalize
the extremely careless mishandling of classified information by high public officials
despite the catastrophic damage it can do to the United States.

This simply cannot be so.

Finally, Director Comey just testified that he did not rewrite the statute criminalizing grossly negligent mishandling of classified information (as I have argued he, in effect, did).
Knowing Jim Comey as I do,
I have no doubt that he says this because, on some technical level, he believes it to be true.
But I do not understand how that assertion can be squared with his opening statement,
in which he strongly suggested that the statute is suspect
and can only be saved if the Justice Department redefines Congress’s mens rea requirement –
raising it from gross negligence to intentional causing of harm.

Military Prosecutions Show That a Gross Negligence Prosecution Would Not Unfairly Single Out Mrs. Clinton
by Andrew C. McCarthy
National Review, 2016-07-07

In questioning by Congressman Trey Gowdy (R., S.C.), Director Comey seemed to concede that the statute criminalizing the mishandling of classified information through gross negligence may well be constitutional. That cuts against his testimony throughout the hearing, during which he argued that prosecuting a serious offense without requiring proof of an intent to cause harm would violate American tradition and, quite possibly, the Constitution.

The director maintains, however, that using the statute to prosecute Mrs. Clinton would be inappropriate even if the statute is valid. This, he reasons, is because the statute has only been used once since its enactment in 1917. The idea is that using it against her would amount to unlawful selective prosecution.

I am puzzled by this argument for several reasons, but I will limit this post to just one of them:
The fact that the statute has been used repeatedly in military prosecutions –
and that
at least one military court decision undermines arguments Director Comey has made
about the state-of-mind proof required.


Hillary Clinton Email Investigation, Part 1
C-SPAN, 2016-07-07

FBI Director James Comey testified at a hearing on
the FBI’s investigation into Hillary Clinton’s use of private email servers,
as well as the decision to not recommend criminal charges against her.
Director Comey defended the FBI’s decision not to recommend filing criminal charges
and responded to questions from Republicans on Hillary Clinton’s honesty.

Clips of some excerpts:
Jason Chaffetz Trey Gowdy Jim Jordan

Here is an excerpt from the exchange between Director Comey and Congress
(a cut and paste from the C-SPAN transcript, hence the all caps):

Rep. Scott DesJarlais (R-TN) [His questions start about 3:18:10 in the video; this is about 3:21:00]:
Director Comey: >> YES.

>> SO --

For completeness, here is C-SPAN's video of Part 2 of that hearing,
featuring the Inspector Generals from State and the IC:
click here or use the embed below:

Some excerpts:

FBI probe of Clinton's emails prompted by espionage fears, secret letters say
By Jason Leopold
Vice News, 2016-08-09

Two secret letters the FBI sent to the State Department have revealed for the first time that the bureau's investigation into Hillary Clinton's private email server, and the classified emails sent through it, stemmed from a so-called "Section 811" referral from the Intelligence Community's Inspector General (ICIG). The ICIG determined that classified, national security information in Clinton's emails may have been "compromised" and shared with "a foreign power or an agent of a foreign power."


The two letters, dated October 23, 2015 and January 20, 2016, and marked "For Official Use Only," were written by Peter Strzok and Charles H. Kable IV, the section chiefs of the FBI's counterespionage section, and sent to Gregory B. Starr, the assistant secretary at the State Department's Bureau of Diplomatic Security. They were written while the FBI was investigating Clinton's use of an unsecure, private email server and the dissemination of classified information.

"The potential compromise was identified when, as part of a Freedom of Information Act (FOIA) request [by VICE News], the U.S. Department of State (DoS) and the ICIG reviewed electronic mail (email) communications from the private email accounts previously used by a former Secretary of State during her tenure at DoS," Kable wrote. "An initial review of this material identified emails containing national security information later determined by the US Intelligence Community to be classified up to the Top Secret/Sensitive Compartmented Information Level."


FBI hands over Clinton email interview summary to Congress
By Rachael Bade and Josh Gerstein
Politico, 2016-08-16

[By the way, visiting the Politico web page linked to above
causes subsequent near-total freezeup of my Firefox browser.
The same problem recurred when I visited it using Internet Explorer.
Is Politico visiting malware on its visitors?]


"The fact that Secretary Clinton received emails containing '(C)' portion markings
is not clear evidence of knowledge or intent,"
[FBI Congressional Affairs official Jason Herring] wrote.
"In each of [the three] instances, the Secretary did not originate the information;
instead, the emails were forwarded to her by staff members,
with the portion-marked information located within the emails chains
and without header and footer markings indicating the presence of classified information."

I know calling Hillary a bimbo isn't very PC,
but how else can you explain ignoring the significance of paragraphs opening with a '(C)'?
In the context of her job, the content of these emails
(NOT about wedding plans, etc., but about sensitive government matters)
should have been sufficient to sensitize her on what those '(C)'s meant.

I really don't see the relevance of raising the "intent" issue here.]


Dispatch FBI agents to House committee to investigate Clinton classified emails
By Rand H. Fishbein
The Hill Opinion Column, 2016-08-19

Congressman [Jason Chaffetz] Says Some of Clinton Emails ‘Classified’ Simply to Avoid Embarrassment
by Chris White
LawNewz, 2016-08-22


Chaffetz then mentioned another other issue he has in all of this, saying it is “stunning” to him that the FBI turned over a second set of materials on Sunday in a classified setting that were different from an earlier set of materials sent over by the FBI.

“So we have a second set of documents that’s now different,” Chaffetz said. “When you turn them page by page, they’re different. I don’t know why that happened.”

Asked by regular panelist Mike Barnicle to clarify what he meant and to explain the difference, Chaffetz exclaimed, “Well, there new information!”

He continued, “A lot of this that they claim is classified is just flat-out embarrassing. There’s nothing classified about it, it’s just embarrassing. It’s a lot of immature name-calling, stuff like that.”

Chaffetz was careful not to question the motives of the FBI and made it clear he was not accusing them of trying to protect Clinton — or even implying as such. They just simply want to know why there is a difference. Here is how Chaffetz explained his thoughts on the discrepancy:

“Well here’s the full set of documents and then they give a copy by definition that would be the same, they’re not. You start turning the page and suddenly there’s new documents, new information in there and, so, we’re going back to square one. We’ve only had them for days and, still, the second copy is different than the first copy. Why is that? I don’t know.”


Public release of FBI information on Hillary Clinton's email and server
vault.fbi.gov, 2016-09-02

Part 03 of release, 2016-09-22, 189 page PDF : interviews


[Part 01, page 10}

The FBI investigation determined some Clinton aides and senior-level State employees were aware Clinton used a personal e-mail address for State business during her tenure.
Clinton told the FBI it was common knowledge at State that she had a private e-mail address because it was displayed to anyone with whom she exchanged e-mails. [175]
However, some State employees interviewed by the FBI explained
[Hey, FBI: Shouldn't that be "claimed"? Are you affirming their claim? What is your evidence that their claim is correct?]
that e-mails from Clinton only contained the letter "H" in the sender field and did not display her e-mail address. [176,177,178]
[One wonders how these employees could convince themselves that such an e-mail really was from Secretary Clinton, if it didn't show the sending e-mail address.]
The majority of the State employees interviewed by the FBI who were in e-mail contact with Clinton indicated they had no knowledge of teh private server in her Chappaqua reisence. [179, 180, 181, 182, 183, 184]
Clinton's immediate aides, to include Mills, Abedin, Jacob Sullivan, [33] and [redacted] told the FBI they were unaware of the existence of the private server until after Clinton's tenure at State or when it became public knowledge. [187,186,187,188]
[Whoa, whoa, whoa!
Wait a minute.
ALL of these named individuals SENT emails to Clinton at "clintonemail.com".
Did they think that was some sort of official U.S. Government email address?
If they thought that, what the hell were they doing serving at that level?
It is basic knowledge of the web that U.S. government accounts have a ".gov" suffix.
The statements of those employees just quoted by the FBI were manifestly a lie.
So why didn't the FBI recommend charges against them for lying to the FBI?]


[Part 02 (the FBI interview with Clinton), page ?]

CLINTON could not recall when she first received her security clearance
and if she carried it with her to State via reciprocity from her time in the Senate.
CLINTON could not recall any briefing or training by State
related to the retention of federal records
or handling of classified information.


CLINTON recalled being briefed on Special Access Program (SAP) information
but could not recall any specific briefing on how to handle information associated with SAPs.
CLINTON was certain she signed an agreement memorializing [is that the right word?] her access to SAP material,
but she could not recall specific detail.
In general, CLINTON knew SAP information was of great importance and needed to be handled carefully.


Clinton told FBI she relied on others' judgment on classified material
By Louis Nelson and Nick Gass
Politico, 2016-09-02 : 09/02/16 01:22 PM EDT, Updated 09/02/16 04:22 PM EDT


The 12 juiciest bits from the FBI's Clinton report
From smashing phones to Colin Powell's warning to 'be very careful,'
here are the most revealing portions of the FBI's investigation notes.
By Nick Gass
Politico, 2016-09-02 : 09/02/16 04:04 PM EDT


From the drones to hammers to Colin Powell,
here are 12 of the most remarkable sections from
the FBI’s notes related to its investigation and from
its July 2 interview with Clinton at its Washington headquarters.

1. The ‘oh shit’ moment

After Clinton’s staff members completed their response to the State Department for her email records in December 2014,
Clinton said she told staff that she did not need them anymore.

“In or around this same timeframe
the retention policy for her email was changed
as part of her move to a new personal office account,”
the FBI stated in notes from Clinton’s interview.

Former chief of staff Cheryl Mills said that
Clinton in December 2014
decided she did not need access to any of her emails older than 60 days.

But, according to a redacted source,
another redacted entity
did not modify the retention policy on Clinton’s clintonemail.com account until March 2015.

“In his interviews with the FBI,
[redacted] indicated that sometime between March 25-31, 2015,
he realized” that he did not make the changes requested by Mills the previous December,
and in a Feb. 18, 2016, interview with the FBI, [redacted] indicated that
he did not “recall conducting deletions based upon this realization.”
Clinton: 'I am sure' that there are no damaging emails

Speaking to the FBI on May 3, 2016,
“[redacted] indicated he believed he had an ‘oh shit’ moment
and sometime between March 25-31, 2015
deleted the Clinton archive mailbox from the PRN server
[that's Platte River Networks]
and used BleachBit to delete the exported .PST files he had created on the server system containing Clinton’s e-mails.”


FBI Data Dump Shows Clinton is Criminal and Clueless
Hillary is either dishonest or dumb—there is no third choice
By John R. Schindler
Observer.com, 2016-09-02 • 09/02/16 4:05pm

Today, on the Friday afternoon before the long Labor Day weekend, the Federal Bureau of Investigation released documents on its investigation of Hillary Clinton and her mishandling of email while she was secretary of state. The Friday afternoon data dump is a venerable Washington cliché, a shady way to bury a story that the bureaucracy doesn’t want covered in depth, but even by Beltway standards this was a shocker.

Nobody expected much from the FBI here, given the Bureau’s recent punting on its formal inquiry into Hillary’s dubious activities with her “unclassified” email of bathroom server infamy. I’ve been covering the EmailGate story for over a year, from the beginning, and I too didn’t expect the FBI to reveal much about what Hillary did that was unwise and perhaps criminal.

To be fair, a good amount of today’s release has been redacted. The original documents were classified at the Secret/Not Releasable to Foreign Nationals level, and to make it Unclassified about a third of the text has been cut out.

But what’s there is awful enough for Team Clinton. Although the FBI’s press release is terse, the documents themselves indelibly portray the Democratic presidential nominee as dishonest, entitled, and thoroughly incompetent.

Considering that Hillary has been accused of mishandling classified information on an almost industrial scale, what shines through is that Clinton is utterly clueless about classification matters, betraying an ignorance that is shocking when encountered in a former top official of our government—and one who wants to be our next commander-in-chief.

Our Federal classification system isn’t particularly complicated, the basics can be explained in a quarter-hour, and there are courses of instruction that exist precisely to explain how to identify classified information and properly handle it. In fact, they’re mandatory. Since Hillary blew off those courses, even though they are required for government workers at all levels, it’s not surprising that she has no idea what she’s talking about.


As the FBI noted, “Clinton stated deliberation over a future drone strike did not give her cause for concern regarding classification.” This would be stunning news to the thousands of American military and intelligence personnel who have to treat such Top Secret SAP information according to the strict rules and regulations that apply to anybody not named Clinton.

Here Hillary has confirmed what many have long suspected—that there’s one set of laws for Clintons and Friends, and a very different set for the rest of us. Classes on how to handle classified materials—much less actually following those rules on pain of arrest and prosecution—are for Little People, not for Clintons and their charmed retinue.


Hillary Clinton’s Mind-Boggling FBI Interview – What Was Cheryl Mills Doing There?
by Andrew McCarthy
National Review "The Corner", 2016-09-02


Finally, something else about those lawyers.
I nearly fell out of my chair upon reading the very first paragraph of the notes of Clinton’s interview,
which identifies the lawyers for Clinton who were permitted to be present for the interview.
Among them is Cheryl Mills, Clinton’s longtime confidant and chief-of-staff at the State Department.

Readers may recall that I suggested back in May that “the fix” was in in the investigation of the Clinton emails.
The reason was that the Justice Department was allowing Cheryl Mills –
a witness, if not a subject, of the investigation –
to invoke attorney-client privilege on behalf of Mrs. Clinton in order to thwart the FBI’s attempt to inquire into the procedure used to produce Clinton’s emails to the State Department.
Mills was a participant in that procedure – and it is the procedure in which, we now know, well over 30,000 emails were attempted to be destroyed,
including several thousand that contained government-related business.

When she worked for Clinton at State, Mills was not acting in the capacity of a lawyer –
not for then-Secretary Clinton and not for the State Department.
Moreover, as Clinton’s chief-of-staff,
Mills was intimately involved in issues related to Clinton’s private email set up,
the discussions about getting her a secure BlackBerry similar to President Obama’s,
and questions that were raised (including in FOIA requests) about Clinton’s communications.

That is to say,
Mills was an actor in the facts that were under criminal investigation by the FBI.
Put aside that she was not Mrs. Clinton’s lawyer while working for the State Department;
as I explained in the May column,
Mills, after leaving the State Department,
was barred by ethical rules from acting as Mrs. Clinton’s lawyer
“in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee.”

There is no way Mills should have been permitted to participate as a lawyer
in the process of producing Clinton’s emails to the State Department nearly two years after they’d both left.
I thought it was astonishing that the Justice Department indulged her attorney-client privilege claim,
which frustrated the FBI’s ability to question her on a key aspect of the investigation.
But it is simply unbelievable to find her turning up at Mrs. Clinton’s interview –
participating in the capacity of a lawyer under circumstances where
Clinton was being investigated over matters
in which Mills participated as a non-lawyer government official.

According to the FBI’s report,
Mrs. Clinton had four other attorneys (one whose name is deleted from the report for some reason)
representing her at the interview.
She clearly did not need another lawyer.
And it is Criminal Investigations 101 that law enforcement never interviews witnesses together –
the point is to learn the truth, not provide witnesses/suspects with an opportunity to keep their story straight,
which undermines the search for truth.

Why on earth was Cheryl Mills permitted to sit in on Hillary Clinton’s FBI interview?

Newly Released FBI Records Raise Questions of Intentional Destruction of Evidence By Clinton Contractor
by Jonathan Turley
jonathanturley.org, 2016-09-06


I cannot imagine a private company or most individuals destroying an archive while under subpoena
and not facing a series investigation for criminal charges.
I may be missing something in this timeline,
but it is hard to justify the destruction of an archive
after the receipt of such a subpoena or constructive notice.
PRN could claim that they were not subject to the subpoena
but the record indicates that they were aware that a congressional committee was demanding all email evidence on the private server.
Moreover, one would expect that one of the large number of lawyers working for Clinton
would have immediately contacted their contractor
to tell them to halt any further deletions or scrubbing and to preserve all records.
Even when files are deleted on regular schedules in corporations,
the Justice Department has reacted with charges in some cases
for the failure to halt such “house cleaning” measures.
This was not even a regular practice
but an effort to scrub computer after the State Department demanded records
and then a congressional committee sent a subpoena.

Justice Dept. Granted Immunity to Specialist Who Deleted Hillary Clinton’s Emails
New York Times, 2016-09-09 (Friday)

A computer specialist who deleted Hillary Clinton’s emails
despite orders from Congress to preserve them
was given immunity by the Justice Department during its investigation into her personal email account,
according to a law enforcement official and others briefed on the investigation.

Republicans have called for the department to investigate the deletions,
but the immunity deal with the specialist, Paul Combetta,
makes it unlikely that the request will go far.
Representative Jason Chaffetz of Utah, the top Republican on the House oversight committee,
asked the Justice Department on Tuesday to investigate whether Mrs. Clinton, her lawyers or the specialist obstructed justice when the emails were deleted in March 2015.


According to the F.B.I. documents, Mr. Combetta told the bureau in February [2016] that he did not recall deleting the emails.
But in May, he told a different story.

In the days after Mrs. Clinton’s staffers called Platte River Networks in March 2015
[the FBI summary mentions a conference call on 2016-03-25 between PRN and "President Clinton's staff",
and that the computer specialist only made the (numerous) deletions AFTER that conference call],
Mr. Combetta said realized that he had not followed a December 2014 order from Mrs. Clinton’s lawyers to have the emails deleted.
Mr. Combetta then used a program called BleachBit to delete the messages, the bureau said.

In Mr. Combetta’s first interview with the F.B.I. in February,
he said he did not recall seeing the preservation order from the Benghazi committee,
which Mrs. Clinton’s lawyer, Cheryl D. Mills, had sent to Platte River.
But in his May interview, he said that at the time he made the deletions
“he was aware of the existence of the preservation request
and the fact that it meant he should not disturb Clinton’s email data” on the Platte River server.

Clinton Contractor Who Reportedly Destroyed Emails After Preservation Order Was Given Immunity By FBI
by Jonathan Turley
jonathanturley.org, 2016-09-09


Now, as the record appears to confirm that email records were knowingly destroyed
after the issuing of a congressional subpoena to preserve such record,
it also appears that the Justice Department gave immunity to
the other person most at risk of a criminal charge —
and the person some are likely to argue would have been
the most likely to be able to implicate others.
He is computer specialist, Paul Combetta.


In fairness to the Clinton camp, the account of the FBI could support a claim that
the specialist realized on his own that the final record had not been scrubbed
and took this action unilaterally in what is described as an “Oh Shit” moment.
Indeed, that conversation with unnamed Clinton aides
could be exonerating rather than incriminating
if they stressed that all records should be preserved.
Most investigators however would be curious
why a contractors, if expressly told by a client to preserve any emails,
would unilaterally destroy them.

[I would be more than just curious.
This is inherently implausible.
Why, indeed, would he delete those emails against the explicit wishes of his companies client?]


GOP Lawmaker: FBI Gave Immunity to Top Clinton Aide
By michael biesecker
ABC, associated press, 2016-09-23 : WASHINGTON — Sep 23, 2016, 1:34 PM ET


[Jason] Chaffetz said in addition to [Cheryl] Mills, others granted immunity include John Bentel, then-director of the State Department's Office of Information Resources Management, and Heather Samuelson, Clinton's executive assistant.

The revelation brings the total number of people who were granted immunity as part of the FBI's investigation to at least five.

It had previously been reported immunity had been granted to Bryan Pagliano, a tech expert who set up Clinton's email server, as well as Paul Combetta, a computer specialist for a private firm that later maintained Clinton's email setup.


12 Biggest Bombshells In FBI’s Clinton Investigation Notes
by Chuck Ross
Daily Caller, 2016-09-25

Clinton confidant's immunity deal looms over debate
by Jonathan Turley
USA Today, 2016-09-26


[T]he news this week of a previously undisclosed immunity deal with a top Clinton aide raises serious questions over the handling of the FBI investigation.

The latest recipient of an immunity deal from the Justice Department is one of Clinton’s closest aides and a figure at the heart of the email scandal, Cheryl Mills. She joins two other central figures in benefiting from such deals: former State Department staffer, Bryan Pagliano and tech specialist Paul Combetta. In addition to at least two other immunized witnesses according to the Associated Press, they represent the big three of officials involved in the underlying allegations of Clinton’s potential criminal conduct. Their collective immunization is baffling.

For the Obama Administration, the criminal investigation into the Democratic presidential nominee and its prior secretary of State came with a heightened level of public scrutiny and skepticism. Many doubted that the administration would seriously pursue the Clintons, a family of political royalty in both Democratic and establishment circles. The easiest way for prosecutors to scuttle a criminal case is to immunize those people who are at the greatest risk of criminal indictment. Often prosecutors will avoid immunity deals in favor of offering plea bargains to key players, tying their cooperation against others to reduced sentences. Although a witness can lose an immunity deal by withholding evidence or lying, a witness can undermine cases against superiors by tailoring their accounts or memories to avoid statements showing intent or knowledge.

Before the disclosure of the Mills immunity deal, the two prior deals were curious given the evidence against both Pagliano and Combetta.

Mills is a participant in key emails and features prominently in allegations of destroyed emails. She was alleged to have been informed repeatedly of the dangers to national security, particularly regarding Clinton’s use of a personal BlackBerry. She was also central in the deletion of tens of thousands of emails that Clinton claimed were purely personal and not work related.

Many of those emails are now known to have discussed official issues and potentially embarrassing disclosures. Mills’ role in the later investigations has also been controversial. Surprisingly, defense attorney Beth Wilkinson agreed to jointly represent various former aides, including not just Mills but Deputy Chief Jake Sullivan, Mills’ deputy Heather Samuelson, and Clinton spokesman Philippe Reines. Wilkinson is a very accomplished lawyer and there is no evidence of unethical acts. However, attorneys rarely represent parties with potential conflicts of interest and the agreement allowed for a single attorney to monitor the consistency of aides in their accounts.

The joint representation of the Clinton aides increased the chance for a uniform account in the controversy. Making this even more concerning is that Mills was allowed by the FBI to sit in on the interviews with Clinton, despite that fact that she was a key witness herself in the investigation. Mills, who is a lawyer, did not hold a legal position at the State Department and should have been excluded from the interviews. Finally, Mills has continuing interests in the election of Hillary Clinton, a development that would place her at the very top of the government.

Of all of the individuals who would warrant immunity,
most would view Mills as the very last on any list.
If one assumes that there may have been criminal conduct,
it is equivalent to immunizing H.R. Haldeman and John D. Ehrlichman in the investigation of Watergate.

Mills appears repeatedly at critical moments as one of the most senior figures making decisions or monitoring events,
including being informed as Clinton chief of staff of the search for emails by the State Department in response to a Freedom of Information demand in 2012 (three years before the disclosure of Clinton’s use of a private email server).
In such circumstances, immunity can amount to impunity. Immunity does not remove the threat of prosecution, but it certainly reduces that threat, while the value of defending prior benefactors or loyalties can remain.
Given the overlapping immunity deals, many will now find it unsurprising that Comey did not find evidence of “intentional misconduct or indications of disloyalty . . . or efforts to obstruct justice.”

Comey removed the greatest threat that could have been used to get two underlings to implicate senior officials, and then gave immunity to the senior official most at risk of a charge.
In the land of the immunized, the degree of cooperation can sometimes be as difficult to establish as the truth.

Fifteen Years After 9/11: Threats to the Homeland
Senate Homeland Security and Governmental Affairs Committee

in the video, audio starts at 13:00

Also available as C-SPAN video (2:58:35)


The Honorable Jeh C. Johnson
U.S. Department of Homeland Security
The Honorable James B. Comey
Federal Bureau of Investigation, U.S. Department of Justice
The Honorable Nicholas J. Rasmussen
National Counterterrorism Center, Office of the Director of National Intelligence

Comey: FBI looked 'hard' for obstruction of justice in Clinton email probe
By Josh Gerstein
Politico, 2016-09-27 : 09/27/16 12:58 PM EDT, Updated 09/27/16 03:51 PM EDT

FBI Director James Comey said Tuesday his investigators looked very intently at whether there was obstruction of justice in the investigation into Hillary Clinton's email account, but concluded they could not prove a criminal case against anyone.

"We looked at it very hard to see if there was criminal obstruction of justice," Comey said at a Senate Homeland Security Committee hearing, under questioning by Chairman Sen. Ron Johnson (R-Wis.)

"We looked at it very hard. We could not make an obstruction case against any of the subjects we looked at," Comey said. He did not identify those whose conduct the FBI investigated for potential obstruction.

However, Comey did note that prosecutors gave immunity to a computer technician, Paul Combetta. He admitted that he deleted some emails after Clinton's use of a private server came under investigation by Congress. According to an FBI report, Combetta said he been told to delete the messages months earlier and forgot to do so, then did it after the issue blew up in the news.

Many of Clinton's top aides were told they were considered witnesses in the case, and not subjects, a term prosecutors use for people whose conduct is more troubling.

Johnson said the failure to prosecute anyone in the case created the appearance of a two-tiered system of justice, but Comey insisted that was not the case and that other cases where there was a prosecution involved aggravating factors not present in the Clinton probe.

"I think had we recommended prosecution it would have been a two-tiered system of justice," Comey declared.


An FBI report released earlier this month showed five attorneys accompanied Clinton to her interview, Mills, David Kendall, Kathleen Turner, and Heather Samuelson, who was also interviewed as a witness in the email probe.

POLITICO has learned that the fifth lawyer, whose name was redacted from the report, is a colleague of Kendall and Turner at Williams & Connolly, Amy Saharia. It's unclear why her name was deleted from the report, since her representation of Clinton in federal court litigation related to the email matter has been a matter of public record since July.


House Judiciary Committee hearing of 2016-09-28:
Oversight of the FBI
Testimony by Director James B. Comey

House Judiciary Committee, 2016-09-28

YouTube VIDEO of the hearing (4:16:11, hearing begins at 21:45, House Committee on the Judiciary Hearings )

YouTube VIDEO of the hearing (3:53:00, FreePundant)

Washington, D.C. – On Wednesday, September 28, 2016, Director James Comey testified before the House Judiciary Committee at an oversight hearing on the Federal Bureau of Investigation. At the hearing, members of the House Judiciary Committee pressed Director Comey on his recommendation and the Department of Justice’s decision to not prosecute Secretary Clinton for mishandling classified information through private email servers.

Judge Napolitano: Obama Doing His Best to Protect Clinton From Criminal Prosecution
Fox News, 2016-09-29

Comey: Combetta Insisted That He Acted Alone In Destroying Evidence After He Was Given Immunity
by Jonathan Turley
Res ipsa loquitur, 2016-09-29


[T]he timeline is now becoming clear and it makes the immunity deal even more bizarre
given what the FBI knew about Colorado-based tech specialist Paul Combetta
and Clinton aides Cheryl Mills and IT specialist Bryan Pagliano.

In July 2014, then-chief of staff Cheryl Mills was told that Clinton’s emails were being sought.

On July 23, 2014 Combetta got a call from Mills on the server and emails.

On July 24, 2014, Combetta received an email from Clinton IT specialist Pagliano.

On July 24, Combetta then went online to Reddit
to solicit help on stripping out “a VIP’s (VERY VIP) email address from a bunch of archived emails.”
He revealed that “they don’t want the VIP’s email address exposed to anyone.”

What is incredible is that
the Justice Department would give immunity to
the parties on both ends of those communications —
guaranteeing that a criminal prosecution is no longer a real threat.

Comey deepened those concerns with his testimony.
After these conversations with Mills and Clinton aides, Combetta destroyed the evidence.
Comey admits that that Mills did disclose the preservation order.
Combetta however mysteriously then destroys the evidence.

Comey was asked what he got from the immunity deal with Combetta.
He said “We learned no one directed him to do that.”
First, that is a pretty poor showing for immunity,
particularly when there is usually a proffer offered before an immunity grant on the expected content of immunized testimony.
The greater problem is that it makes little sense.
Why would Combetta take it upon himself to destroy evidence
that he knew was being sought by Congress
and was already a matter of intense national attention.

Comey could not explain why he simply accepted Combetta’s word or why that denial was worth an immunity deal.

None of that makes any logical sense if you are trying to build a criminal case.
It certainly strains credulity to believe that a techie in Colorado
decided to unilaterally defy the United States Congress and destroy evidence

in one of the nation’s greatest scandals.

The fact that this occurred immediately after calls from Clinton figures like Mills
would raise considerable doubt in most investigators.
Yet, the Justice Department jumped at the chance to immunize the key players in the key communications.
That is a legitimate matter of congressional concern . . . and investigation.

Jim Comey’s Blind Eye
The FBI director can’t defend immunity for Hillary Clinton’s aides—
which says volumes.
by Kimberley A. Strassel
Wall Street Journal, 2016-09-29

Two revealing, if largely unnoticed, moments came in the middle of FBI Director Jim Comey’s Wednesday testimony before the House Judiciary Committee.
When combined, these moments prove that Mr. Comey gave Hillary Clinton a pass.

Congress hauled Mr. Comey in to account for the explosive revelation that the government granted immunity to Clinton staffers Cheryl Mills and Heather Samuelson as part of its investigation into whether Mrs. Clinton had mishandled classified information.
Rep. Tom Marino (R., Pa.), who was once a Justice Department prosecutor and knows how these investigations roll, provided the first moment.
He asked Mr. Comey why Ms. Mills was so courteously offered immunity in return for her laptop—
a laptop that Mr. Comey admitted investigators were very keen to obtain.
Why not simply impanel a grand jury, get a subpoena, and seize the evidence?

Mr. Comey’s answer was enlightening: “It’s a reasonable question. . . .
Any time you are talking about the prospect of subpoenaing a computer from a lawyer—
that involves the lawyer’s practice of law—
you know you are getting into a big megillah.”
Pressed further, he added:
“In general, you can often do things faster with informal agreements,
especially when you are interacting with lawyers.”

The key words: “The lawyer’s practice of law.”
What Mr. Comey was referencing here is attorney-client privilege.
Ms. Mills was able to extract an immunity deal, avoid answering questions, and sit in on Mrs. Clinton’s FBI interview
because she has positioned herself as Hillary’s personal lawyer.
[Or Hillary positioned here there, or they agreed on this strategy.]
Ms. Mills could therefore claim that
any conversations or interactions she had with Mrs. Clinton about the private server
were protected by attorney-client privilege.

Only here’s the rub:
When Ms. Mills worked at the State Department she was not acting as Mrs. Clinton’s personal lawyer.
She was the secretary's chief of staff.
Any interaction with Mrs. Clinton about her server, or any evidence from that time,
should have been fair game for the FBI and the Justice Department.

Ms. Mills was allowed to get away with this “attorney-client privilege” nonsense
only because she claimed that she did not know about Mrs. Clinton’s server
until after they had both left the State Department.
Ergo, no questions about the server.

The FBI has deliberately chosen to accept this lie.
The notes of its interview with Ms. Mills credulously states:
“Mills did not learn Clinton was using a private email server
until after Clinton’s tenure” at State.

It added:
“Mills stated she was not even sure she knew what a server was at the time.”

Which brings us to the hearing’s second revealing moment.
Rep. Jason Chaffetz (R., Utah) pointed out that
the FBI’s notes from its interview with Clinton IT staffer Bryan Pagliano
expose this lie.
In late 2009 or early 2010, Mr. Pagliano told investigators,
he approached Ms. Mills to relay State Department concerns that
the private server might pose a “federal records retention issue.”
According to Mr. Pagliano, Ms. Mills told him not to worry about it,
because other secretaries of state had used similar setups.

More damning, Mr. Chaffetz held up
an email that Ms. Mills sent in 2010 to Justin Cooper,
whom the Clintons personally employed to help maintain the server.
The email reads:
“hrc email coming back—is server okay?”
Mr. Cooper responds: “Ur funny. We are on the same server.”

To be clear: When Mrs. Clinton had an email problem,
Ms. Mills didn’t call the State Department’s help desk.
She didn’t call Yahoo customer service.
She called a privately employed Clinton aide and
asked specifically about Mrs. Clinton’s “server.”
She did this as chief of staff at the State Department.
Mr. Chaffetz asked Mr. Comey why the FBI wrote that
Ms. Mills was ignorant about the server until later.

Mr. Comey suddenly sounded like a man with something to hide.
“I don’t remember exactly, sitting here,” he said,
in what can only be called the FBI version of “I don’t recall.”
He then mumbled that
“Having done many investigations myself,
there’s always conflicting recollections of facts, some of which are central, some of which are peripheral.
I don’t remember, sitting here, about that one.”

Really? Only a few minutes before he had explained that
the Justice Department was forced to issue immunity to Ms. Mills
because she had asserted attorney-client privilege.
Yet he couldn’t remember all the glaring evidence proving she had no such privilege?
Usually, the FBI takes a dim view of witnesses who lie.
Had the FBI pursued perjury charges against Ms. Mills—
as it would have done against anyone else—
it would have had extraordinary leverage to force her to speak about
all of her communications regarding the server.
It might have even threatened to build a case that Ms. Mills was part of a criminal scheme.
Then it could have offered immunity in return for the real goods on Hillary.

But going that route would have required grand juries, subpoenas, warrants and indictments—
all things that Mr. Comey clearly wanted to avoid in this politically sensitive investigation.
Much easier to turn a blind eye to Ms. Mills’s fiction.
And to therefore give Mrs. Clinton a pass.

Comey: ‘I Don’t Remember’ Why FBI Let Hillary Aide Lie
by Joel B. Pollak
Breitbart, 2016-09-30


former Secretary of State Hillary Clinton’s chief of staff at the State Department,
and now her lawyer,
wrote personally to Clinton’s private staff about the server,
but then told the FBI she did not even know what a “server” was.
As the Wall Street Journal‘s Kimberly Strassel notes in a column on Friday [see above],
the deception ought to have earned Mills a prosecution for perjury —
and a deeper probe of Hillary Clinton —
but the FBI chose to look the other way.

Not only did Mills receive immunity from the Department of Justice,
but she was also allowed to sit in on the FBI’s interview with Clinton —
and to walk out of her own interview with the FBI
when she was asked questions about the email scandal
that she decided she did not have to answer.

Central to Mills’s apparent super-immunity is
her assertion of attorney-client privilege.
The privilege, which can only be waived by the client,
prevents an attorney from disclosing any communications from his or her client.
Mills asserted that she did not have to tell the FBI about the server
because she only learned about it once she was Clinton’s attorney —
i.e. after she left the State Department,
where she had been a “counselor” and chief of staff
but did not represent Clinton personally.

The only way to square these contradictory facts
is to believe the incredibly unlikely theory that
Mills knew about the server when she was at the State Department,
but forgot about it when she left,
then was reminded about it by Clinton once she was her attorney,
but could not talk about it without permission from Clinton at that stage,
thanks to the attorney-client privilege she conveniently enjoyed.


Why Didn't the FBI Give Hillary Clinton Immunity and Spare Us the Drama?
The DOJ seemed to hand immunity out like candy.
David Harsanyi
Reason.com, 2016-09-30


FBI Director James Comey, who testified in front of two congressional committees this week, still maintains that he was unable to recommend that the DOJ charge Clinton with mishandling classified documents because of insufficient evidence proving "intent"—although the actions themselves are irrefutably illegal.

Well, how exactly did he anticipate gathering this proof, when the DOJ had proactively shielded the five people tasked with setting up the private system and then destroying it? Was he hoping to extract a confession directly from Clinton?

Why would, for instance, a Clinton functionary like Cheryl Mills help prosecutors once she'd already secured safeguards against any criminal prosecution? While testifying in front of the House Judiciary Committee, Comey claimed that Mills was already "cooperative" and that the Justice Department had assured the FBI she had done nothing wrong.


Comey admitted Wednesday that one of Clinton's lawyers—"it might have been Cheryl Mills"—told Paul Combetta, Clinton's IT specialist, to delete email files from Clinton's secret server only days after Congress ordered them to be preserved. And Comey assures us that none of this is obstruction of justice.

Then, at another point, he told the committee that the DOJ agreed to give immunity because the FBI didn't feel like wrangling with lawyers for years. "The FBI judgment was we need to get to that laptop. We need to see what it is," he explained. "This investigation's been going on for a year."

So I guess Mills was less than cooperative. Yes?

And why is Comey, who doesn't "give a hoot about politics," concerned about timetables, rather than making the best case? If the laptop was important enough to hasten a deal that protected a potential witness from prosecution, why wasn't it important enough for the FBI to subpoena? If Mills' lawyer is worried about potential criminality, why take a plea bargain off the table? Is this how it works for everyone?

It was rather amazing to hear Comey concede that the DOJ's immunity spree was "unusual." More unusual, perhaps, was that three of the people with those deals still ended up taking the Fifth, and another didn't even bother showing up when Congress called him. It's also unusual that a high-profile case featuring numerous immunity deals resulted in no charges.

To Comey, it was also "very unusual" that the FBI would conduct an interview with the target of an investigation—where wholly innocent Clinton was surrounded by nine lawyers—with two of the immunized witnesses in the case present. That's something Comey admitted had never happened in his career.

Jonathan Turley, a law professor at George Washington University, who first defended the FBI's decision not to prosecute Clinton, put the decision in historical context: "Of all of the individuals who would warrant immunity, most would view Mills as the very last on any list. If one assumes that there may have been criminal conduct, it is equivalent to immunizing H.R. Haldeman and John D. Ehrlichman in the investigation of Watergate."

Comey claimed that it was not his purview to decide who people use as their lawyers. That is true. What he failed to mention was that he determined the parameters of the interview. He could have pressured Clinton to leave Mills home, by impelling the target of the investigation to appear rather than allowing it to be voluntary interview. In a deposition about the email scandal, Mills claimed client-attorney privilege, though she was chief of staff, not Clinton's lawyer, during her tenure at the State Debarment.

Comey attempted to distance himself from the immunity deals by pointing out that he had not personally struck them. "It's a decision made by the Department of Justice, I don't know at what level inside," Comey said in the House panel. He continued, saying, "In our investigations, any kind of immunity comes from the prosecutors, not the investigators."

Surely, the DOJ doesn't offer witnesses protection from prosecution in high-profile cases without asking FBI investigators. If they did, then it would suggest a politicized process—something this case reeks of already.

Congressman Gohmert gives a detailed discussion of proffers, and questions why immunity was granted without an adequate understanding of what would be said

Former FBI Assistant Director James Kallstrom criticizes James Comey over Hillary Clinton investigation
Fox Business channel, 2016-10-07????

FBI, DOJ roiled by Comey, Lynch decision to let Clinton slide by on emails, says insider
By Malia Zimmerman, Adam Housley
Fox News, 2016-10-13


“No trial level attorney agreed, no agent working the case agreed, with the decision not to prosecute -- it was a top-down decision,” said the source, whose identity and role in the case has been verified by FoxNews.com.

A high-ranking FBI official told Fox News that while it might not have been a unanimous decision, “It was unanimous that we all wanted her [Clinton’s] security clearance yanked.”

“It is safe to say the vast majority felt she should be prosecuted,” the senior FBI official told Fox News. “We were floored while listening to the FBI briefing because Comey laid it all out, and then said ‘but we are doing nothing,’ which made no sense to us.”


Andrew Napolitano, former judge and senior judicial analyst for Fox News Channel, said many law enforcement agents involved with the Clinton email investigation have similar beliefs.

“It is well known that the FBI agents on the ground, the human beings who did the investigative work, had built an extremely strong case against Hillary Clinton and were furious when the case did not move forward,” said Napolitano. “They believe the decision not to prosecute came from The White House.”

The claim also is backed up by a report in the New York Post this week, which quotes a number of veteran FBI agents saying FBI Director James Comey “has permanently damaged the bureau’s reputation for uncompromising investigations with his cowardly whitewash of former Secretary of State Hillary Clinton’s mishandling of classified information using an unauthorized private email server.”

“The FBI has politicized itself, and its reputation will suffer for a long time. I hold Director Comey responsible,” Dennis V. Hughes, the first chief of the FBI’s computer investigations unit, told the Post. Retired FBI agent Michael M. Biasello added to the report, saying, “Comey has singlehandedly ruined the reputation of the organization.”

Especially angering the team, which painstakingly pieced together deleted emails and interviewed witnesses to prove that sensitive information was left unprotected, was the fact that Comey based his decision on a conclusion that a recommendation to charge would not be followed by DOJ prosecutors, even though the bureau’s role was merely to advise, Fox News was told.

“Basically, James Comey hijacked the DOJ’s role by saying ‘no reasonable prosecutor would bring this case,’” the Fox News source said. “The FBI does not decide who to prosecute and when, that is the sole province of a prosecutor -- that never happens.

“I know zero prosecutors in the DOJ’s National Security Division who would not have taken the case to a grand jury,” the source added. “One was never even convened.”

Napolitano agreed, saying
the FBI investigation was hampered from the beginning,
because there was no grand jury, and no search warrants or subpoenas issued.

“The FBI could not seize anything related to the investigation,
only request things.
As an example, in order to get the laptop, they had to agree to grant immunity,”

Napolitano said.


Mills’ dual role as Clinton’s attorney and a witness in her own right should never have been tolerated either.

“Mills was allowed to sit in on the interview of Clinton as her lawyer. That's absurd. Someone who is supposedly cooperating against the target of an investigation [being] permitted to sit by the target as counsel violates any semblance of ethical responsibility,” the source said.

“Every agent and attorney I have spoken to is embarrassed and has lost total respect for James Comey and Loretta Lynch,” the source said. “The bar for DOJ is whether the evidence supports a case for charges -- it did here. It should have been taken to the grand jury.”

Also infuriating agents, the New York Post reported, was the fact that Clinton’s interview spanned just 3½ hours with no follow-up questioning, despite her “40 bouts of amnesia,” and then, three days later, Comey cleared her of criminal wrongdoing.


FBI Agents Say Comey ‘Stood In The Way’ Of Clinton Email Investigation
by Kerry Picket
Daily Caller, 2016-10-17

Ex-FBI agent details origin of Clinton email 'quid pro quo' claim
By Josh Gerstein
Politico, 2016-10-18

FBI reviewing new evidence in Clinton email probe
The agency doesn't yet know if the new material is 'significant,' Comey writes.
By Josh Gerstein and Madeline Conway
Politico, 2016-10-28 : Updated 10/28/16 03:04 PM EDT

The FBI on Friday dropped a bombshell on Hillary Clinton’s campaign less than two weeks before Election Day, with director James Comey announcing that the agency is reviewing new evidence in its investigation into her use of a private email server as secretary of state.

In a letter to several congressional committee chairmen, Comey wrote that, “In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to this investigation.”

Comey said he was briefed on those emails on Thursday and that he “agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.”

He did not specify where the additional emails came from.

Comey wrote that the FBI does not yet know if the new material is “significant” and did not provide a timeframe for investigating in the letter, which overall contained sparse details.


FBI in Internal Feud Over Hillary Clinton Probe
Laptop may contain thousands of messages sent to or from private server
By Devlin Barrett
Wall Street Journal, 2016-10-30 : Updated Oct. 30, 2016 4:58 p.m. ET

As federal agents prepare to scour roughly 650,000 emails to see how many relate to a prior probe of Hillary Clinton’s email use, the surprise disclosure that investigators were pursuing the potential new evidence lays bare building tensions inside the bureau and the Justice Department over how to investigate the Democratic presidential nominee.

Metadata found on the laptop used by former Rep. Anthony Weiner and his estranged wife Huma Abedin, a close Clinton aide, suggests there may be thousands of emails sent to or from the private server that Mrs. Clinton used while she was secretary of state, according to people familiar with the matter. It will take weeks, at a minimum, to determine whether those messages are work-related from the time Ms. Abedin served with Mrs. Clinton at the State Department; how many are duplicates of emails already reviewed by the Federal Bureau of Investigation; and whether they include either classified information or important new evidence in the Clinton email probe.

The FBI has had to await a court order to begin reviewing the emails, because they were uncovered in an unrelated probe of Mr. Weiner.

The new investigative effort, disclosed by FBI Director James Comey on Friday, shows a bureau at times in sharp internal disagreement over matters related to the Clintons, and how to handle those matters fairly and carefully in the middle of a national election campaign. Even as the previous probe of Mrs. Clinton’s email use wound down in July, internal disagreements within the bureau and the Justice Department surrounding the Clintons’ family philanthropy heated up, according to people familiar with the matter.

The latest development began in early October
when New York-based FBI officials notified Andrew McCabe
[Whose Democratic-candidate-for-office-in-Virginia wife, Jill McCabe,
last year received around $500K in campaign contributions
from Hillary's great pal and ally, Virginia Governor Terry McAuliffe!
Talk about incestuous relations.]
the bureau’s second-in-command,
that while investigating Mr. Weiner for possibly sending sexually charged messages to a minor, they had recovered a laptop with 650,000 emails.
Many, they said, were from the accounts of Ms. Abedin, according to people familiar with the matter.

Those emails stretched back years, these people said, and were on a laptop that hadn’t previously come up in the Clinton email probe. Ms. Abedin said in late August that the couple were separating.

The FBI had searched the computer while looking for child pornography, people familiar with the matter said, but the warrant they used didn’t give them authority to search for matters related to Mrs. Clinton’s email arrangement at the State Department. Mr. Weiner has denied sending explicit or indecent messages to the teenager.

In their initial review of the laptop, the metadata showed many messages, apparently in the thousands, that were either sent to or from the private email server at Mrs. Clinton’s home that had been the focus of so much investigative effort for the FBI. Senior FBI officials decided to let the Weiner investigators proceed with a closer examination of the metadata on the computer, and report back to them.

At a meeting early last week of senior Justice Department and FBI officials, a member of the department’s senior national-security staff asked for an update on the Weiner laptop, the people familiar with the matter said. At that point, officials realized that no one had acted to obtain a warrant, these people said.

Mr. McCabe then instructed the email investigators to talk to the Weiner investigators and see whether the laptop’s contents could be relevant to the Clinton email probe, these people said. After the investigators spoke, the agents agreed it was potentially relevant.

Mr. Comey was given an update, decided to go forward with the case and notified Congress on Friday, with explosive results. Senior Justice Department officials had warned Mr. Comey that telling Congress would violate policies against overt actions that could affect an election, and some within the FBI have been unhappy at Mr. Comey’s repeated public statements on the probe, going back to his press conference on the subject in July.

The back-and-forth reflects how the bureau is probing several matters related, directly or indirectly, to Mrs. Clinton and her inner circle.

New details show that senior law-enforcement officials repeatedly voiced skepticism of the strength of the evidence in the bureau’s investigation of the Clinton Foundation, sought to condense what was at times a sprawling cross-country effort, and, according to some people familiar with the matter, told agents to limit their pursuit of the case.

That led to frustrations among some investigators, who viewed FBI leadership as uninterested in probing the charity, these people said. Others involved disagreed sharply, defending FBI bosses and saying Mr. McCabe in particular was caught between an increasingly acrimonious fight for control between the Justice Department and FBI agents pursuing the Clinton Foundation case.

It isn’t unusual for field agents to favor a more aggressive approach than supervisors and prosecutors think is merited. But the internal debates about the Clinton Foundation show the high stakes when such disagreements occur surrounding someone who is running for president.

The Wall Street Journal reported last week that Mr. McCabe’s wife, Jill McCabe, received $467,500 in campaign funds in late 2015 from the political action committee of Virginia Gov. Terry McAuliffe, a longtime ally of the Clintons and, until he was elected governor in November 2013, a Clinton Foundation board member.

Mr. McAuliffe had supported Dr. McCabe in the hopes she and a handful of other Democrats might help win a majority in the state Senate. Dr. McCabe lost her race last November, and Democrats failed to win their majority.


In February of this year, Mr. McCabe ascended from the No. 3 position at the FBI to the deputy director post. When he assumed that role, officials say, he started overseeing the probe into Mrs. Clinton’s use of a private email server for government work when she was secretary of state.

FBI officials have said Mr. McCabe had no role in the Clinton email probe until he became deputy director, and by then his wife’s campaign was over.

But other Clinton-related investigations were under way within the FBI, and they have been the subject of internal debate for months, according to people familiar with the matter.

Early this year, four FBI field offices—New York, Los Angeles, Washington and Little Rock, Ark.—were collecting information about the Clinton Foundation to see if there was evidence of financial crimes or influence-peddling, according to people familiar with the matter.

Los Angeles agents had picked up information about the Clinton Foundation from an unrelated public corruption case and had issued some subpoenas for bank records related to the foundation, these people said.

The Washington field office was probing financial relationships involving Mr. McAuliffe before he became a Clinton Foundation board member, these people said. Mr. McAuliffe has denied any wrongdoing, and his lawyer has said the probe is focused on whether he failed to register as an agent of a foreign entity.

Clinton Foundation officials have long denied any wrongdoing, saying it is a well-run charity that has done immense good.

The FBI field office in New York had done the most work on the Clinton Foundation case and received help from the FBI field office in Little Rock, the people familiar with the matter said.

In February, FBI officials made a presentation to the Justice Department, according to these people. By all accounts, the meeting didn’t go well.

Some said that is because the FBI didn’t present compelling evidence to justify more aggressive pursuit of the Clinton Foundation, and that the career public integrity prosecutors in the room simply believed it wasn’t a very strong case. Others said that from the start, the Justice Department officials were stern, icy and dismissive of the case.

“That was one of the weirdest meetings I’ve ever been to,” one participant told others afterward, according to people familiar with the matter.

Justice Department officials told the FBI at the meeting they wouldn’t authorize more aggressive investigative techniques, such as subpoenas, formal witness interviews, or grand-jury activity. But the FBI officials believed they were well within their authority to pursue the leads and methods already under way, these people said.

About a week after Mr. Comey’s July announcement that he was recommending against any prosecution in the Clinton email case, the FBI sought to refocus the Clinton Foundation probe, with Mr. McCabe deciding the FBI’s New York office would take the lead, with assistance from Little Rock.

The Washington field office, FBI officials decided, would focus on a separate matter involving Mr. McAuliffe. Mr. McCabe had decided earlier in the spring that he would continue to recuse himself from that probe, given the governor’s contributions to his wife’s former political campaign.

Within the FBI, the decision was viewed with skepticism by some, who felt the probe would be stronger if the foundation and McAuliffe matters were combined. Others, particularly senior officials at the Justice Department, felt that both probes were weak, based largely on publicly available information, and had found little that would merit expanded investigative authority.

According to a person familiar with the probes, on Aug. 12, a senior Justice Department official called Mr. McCabe to voice his displeasure at finding that New York FBI agents were still openly pursuing the Clinton Foundation probe, despite the department’s refusal to allow more aggressive investigative methods in the case. Mr. McCabe said agents still had the authority to pursue the issue as long as they didn’t use those methods.

The Justice Department official was “very pissed off,” according to one person close to Mr. McCabe, and pressed him to explain why the FBI was still chasing a matter the department considered dead. Others said the Justice Department was simply trying to make sure FBI agents were following longstanding policy not to make overt investigative moves that could be seen as trying to influence an election. Those rules discourage investigators from making any such moves before a primary or general election, and, at a minimum, checking with public integrity prosecutors before doing so.

“Are you telling me that I need to shut down a validly predicated investigation?” Mr. McCabe asked, according to people familiar with the conversation. After a pause, the official replied, “Of course not,” these people said.

For Mr. McCabe’s defenders, the exchange showed how he was stuck between an FBI office eager to pour more resources into a case and Justice Department leaders who didn’t think much of the case, one person said. Those people said that following the call, Mr. McCabe reiterated past instructions to FBI agents that they were to keep pursuing the work within the authority they had.

Mr. McCabe’s defenders in the agency said that following the call, he repeated the instruction that he had given earlier in the Clinton Foundation investigation: Agents were to keep pursuing the work within the authority they had.

Others further down the FBI chain of command, however, said agents were given a much starker instruction on the case: “Stand down.” When agents questioned why they weren’t allowed to take more aggressive steps, they said they were told the order had come from the deputy director—Mr. McCabe.

Others familiar with the matter deny Mr. McCabe or any other senior FBI official gave such a stand-down instruction.

For agents who already felt uneasy about FBI leadership’s handling of the Clinton Foundation case, the moment only deepened their concerns, these people said. For those who felt the probe hadn’t yet found significant evidence of criminal conduct, the leadership’s approach was the right response.

In September, agents on the foundation case asked to see the emails contained on nongovernment laptops that had been searched as part of the Clinton email case, but that request was rejected by prosecutors at the Eastern District of New York, in Brooklyn. Those emails were given to the FBI based on grants of partial immunity and limited-use agreements, meaning agents could only use them for the purpose of investigating possible mishandling of classified information.

Some FBI agents were dissatisfied with that answer, and asked for permission to make a similar request to federal prosecutors in Manhattan, according to people familiar with the matter. Mr. McCabe, these people said, told them no and added that they couldn’t “go prosecutor-shopping.”

Not long after that discussion, FBI agents informed the bureau’s leaders about the Weiner laptop, prompting Mr. Comey’s disclosure to Congress and setting off the furor that promises to consume the final days of a tumultuous campaign.

John Podesta's Best Friend At The DOJ
Will Be In Charge Of The DOJ's Probe Into Huma Abedin Emails

by Tyler Durden
Zerohedge, 2016-10-31


In the letter to Congress, the DOJ writes that it “will continue to work closely with the FBI and together, dedicate all necessary resources and take appropriate steps as expeditiously as possible,” assistant attorney General Peter J. Kadzik writes in letters to House and Senate lawmakers.

So far so good, even if one wonders just how active the DOJ will be in a case that has shown an unprecedented schism between the politically influenced Department of Justice and the FBI.

And yet, something felt odd about this.

Kadzik... Kadzik... where have we heard that name?

In other words, the best friend of John Podesta, Clinton's Campaign char, at the DOJ will be in charge of a probe that could potentially sink Hillary Clinton.


As the Daily Caller noted, the dinner arrangement "is just the latest example of an apparent conflict of interest between the Clinton campaign and the federal agency charged with investigating the former secretary of state’s email practices." As one former U.S. Attorney tells told the DC, the exchanges are another example of the Clinton campaign’s “cozy relationship” with the Obama Justice Department.

The hacked emails confirm that Podesta and Kadzik were in frequent contact. In one email from January, Kadzik and Podesta, who were classmates at Georgetown Law School in the 1970s, discussed plans to celebrate Podesta’s birthday. And in another sent last May, Kadzik’s son emailed Podesta asking for a job on the Clinton campaign.


It gets better because, as we further revealed, if there is one person in the DOJ who is John Podesta's, and thus the Clinton Foundation's inside man, it is Peter Kadjik.

Kadzik represented Podesta during the Monica Lewinsky investigation. And in the waning days of the Bill Clinton administration, Kadzik lobbied Podesta on behalf of Marc Rich, the fugitive who Bill Clinton controversially pardoned on his last day in office. That history is cited by Podesta in another email hacked from his Gmail account. In a Sept. 2008 email, which the Washington Free Beacon flagged last week, Podesta emailed an Obama campaign official to recommend Kadzik for a supportive role in the campaign.
Podesta, who would later head up the Obama White House transition effort,
wrote that Kadzik was a “fantastic lawyer” who “kept me out of jail.”


James Comey did the right thing
By William Barr
William Barr was U.S. attorney general from 1991 to 1993.
He is supporting Donald Trump in the presidential election.
Washington Post Op-Ed, 2016-11-01

The continuing refrain from Hillary Clinton supporters and other observers
that FBI Director James B. Comey’s action was “contrary” to Justice Department policy
is flatly wrong.
Given the particular circumstances facing Comey, it is absurd.
While I do not agree with everything done and said over the summer in connection with the email investigation,
I think that, last week, Comey had no choice but to issue the statement he did.
Indeed, it would have violated policy had he not done so.

Earlier this year, everyone was calling for a responsible investigation and rapid resolution of the email matter.
The FBI pushed ahead, and in July,
Comey announced that the matter had been thoroughly investigated
and that he would not recommend prosecution.
That announcement was a great boon to Clinton’s campaign —
she touted it as a vindication, and, in the wake of Comey’s announcement,
her poll numbers appreciably improved.

The FBI then discovered that the investigation
had not, in fact, been a complete one.
It appears that thousands of emails exist
on a computer belonging to former congressman Anthony Weiner and Clinton aide Huma Abedin
that had not been turned over during the investigation.
The failure of the Clinton camp to provide all pertinent evidence
rendered Comey’s July announcement misleading.
The FBI’s investigation was not comprehensive and not complete,
and the conclusions announced by Comey three months ago were therefore premature.

If the FBI remained silent about
the newly discovered incompleteness of its earlier investigation,
it would be deliberately leaving uncorrected
a misleading statement being used by the Clinton campaign
to its political advantage.

Thus, failure to correct the record would have been deceitful
and would have represented a political decision to influence the election
by leaving in place a misleading statement.
At this point, the right choice was honesty —
explaining that new emails had been found and would have to be reviewed.
To the extent this step might affect the election,
its effect arises from correcting a previous erroneous statement —
in other words, from truthfulness.

Much is being made of the point that
Comey does not know whether the new trove of emails is significant.
That misses the point.
The two critical facts conveyed to the public in July were that
the investigation was completed
and that, based on that completed investigation,
no prosecution was warranted.
Disclosing these facts did not run afoul of
the policy against commenting on investigations while they are underway.
There is nothing wrong with conveying such facts;
in cases of overriding public interest, it is done all the time,
as for example in the House banking scandal
and the so-called Iraq-gate matter during the 1992 election.
But once the new emails were discovered,
these statements could not stand.
They were invalidated precisely because
more investigation of the emails was necessary
to complete the investigation
and make a final determination of Clinton’s culpability.
That is all that Comey’s letter says —
that the FBI now has to review more emails
before it can say it has completed the investigation.
In other words, Comey simply said the FBI had more work to do.

Another complaint made is that,
in July, a Justice Department prosecutor, rather than the FBI,
should have made the ultimate call on whether the facts justified prosecution.
That is true, but in this case
it does not appear that Comey was usurping power so much as
receiving a punt from the Justice Department.
The department was all too happy to let Comey take the lead
because his judgment would stand up as nonpartisan.
In any event, this criticism is irrelevant to
whether he was right to inform Congress
that his earlier statement that the investigation was complete
was not true.

The claim that Comey’s actions violated a Justice Department policy is just wrong.
There is no policy — and never has been —
that the department avoid any action that could affect an election.
Rather, the policy has been twofold.
First, prosecutors should not take any action for partisan reasons,
i.e., for the purpose of affecting an election.
Second, where the timing of an otherwise bona fide investigative or prosecutive step
could affect the outcome of an election,
those actions should be deferred absent a strong public interest
that justifies taking the action before the election.
Sometimes this requires difficult judgments.
Here, it did not.
Indeed, if anything would have “violated” Justice Department policy,
it would have been to remain mute and fail to correct the record.

Finally, it must be remembered that this whole situation could have been avoided
if those in the Clinton camp
had provided all pertinent information to the FBI to begin with.
They were looking for early resolution of the matter,
and it was in their interest to be as thorough as possible
in supplying information to the government.
Whether through an innocent oversight or not, they failed to do this.
To the extent the timing of Comey’s correction of the record is difficult for Clinton,
it is a self-inflicted wound.

FBI never asked Clinton aides for all their devices
Republicans insist the agency gave too much deference to the former secretary and her team.
By Josh Gerstein
Politico, 2016-11-01 : 11/01/16 07:35 PM EDT

The FBI never asked Hillary Clinton's top aides to turn over all the computers and smartphones they used while Clinton was secretary of state,
an omission that is now triggering questions from Republican lawmakers.

While the FBI made a concerted effort to obtain all the computers that were used as Clinton's private server and ultimately asked two of Clinton's lawyers for laptops used to review her email messages, investigators never requested or demanded all equipment her top staffers used for work purposes during her four years at State, a source familiar with the investigation told POLITICO.

"No one was asked for devices by the FBI," said the source, who asked not to be named.

The decision left the FBI at least partially dependent on the aides' attorneys' decisions about which messages were work-related and therefore might have contained classified information the agents were looking for. Those messages were turned over to State in response to its request last year.

GOP lawmakers say the decision not to demand the aides' electronics, or even to ask for them, raises doubts about how the FBI and prosecutors handled the probe.


BOOM! Documents Show KADZIK, PODESTA, and CLINTON Got Mark Rich Pardoned
by Jim Hoft
Gateway Pundit, 2016-11-02


According to a newly released FBI document —

Peter Kadzik, John Podesta and Bill Clinton got Mark Rich pardoned!
Podesta made the request to Kadzik in 2000 before Bill Clinton left office.

KADZIK, a close Podesta friend and ally,
is heading the server and email investigation of Hillary Clinton at the DOJ!


Court releases search warrant in Clinton email probe
By Josh Gerstein
Politico, 2016-12-20


New Clinton email files detail FBI-State tussle over Benghazi message
By Josh Gerstein
Politico, 2017-01-09


The newly-released FBI emails and memos also contain some other details about the Clinton email probe that have not been previously reported or received little notice:

--The Secret Service rebuffed the FBI's initial request for assistance in the investigation, according to a memo which suggests some tensions between the two law enforcement agencies.

At a July 28, 2015, meeting, a Secret Service official "advised that his management told him that any FBI request for information or assistance related to this matter would need to come via written request from the Department of Justice to the Department of Homeland Security, which would then forward the request to the USSS," an FBI memo said. After consulting with Secret Service managers about the requested assistance, the official "refused to identify [to the FBI] the specific USSS manager(s) to whom he spoke."


--The FBI obtained a special "one-time" approval to show Clinton confidant Sidney Blumenthal a copy of one of his own emails to Clinton about the political situation in Kyrgyzstan. A January 5, 2016, FBI memo says the email has "since been deemed to contain classified FBI information.” The "SECRET" portion of the April 2010 message relates to what Blumenthal called an "ongoing criminal investigation."


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