The Unmaking of the President 2016 Read online

  Of course it is still a fact—the core fact of this book—that despite all the inflated and distorted press coverage of Clinton’s emails§1; despite various mistakes she made before and during the campaign, including, by her own admission, the decision to use a private email address stored on a private server; despite, too, the various second-guessed decisions by the Hillary Clinton campaign managers, some whose brilliant minds-by-hindsight were quick to anonymously whisper into the ears of authors and journalists to critique the campaign—yes, despite all this, according to all the respected polls, if the election had been held on October 27, 2016, Hillary Clinton would be in the White House today and Donald Trump would perhaps be tweeting that Hillary Clinton was actually not an American citizen.

  Let’s look closer at the key players who set the wheels in motion: the FBI, led by James Comey, who ordered its criminal investigation; the inspector general of the Intelligence Community, McCullough, who seemed unusually active in the series of events leading up to that investigation; and finally, the Justice Department, whose leaders failed to do their job of ensuring that Comey understood he was not an independent agency or power outside of our constitutional democracy but was subject to the department’s supervision and policies.

  * * *

  *. Inspectors general (IGs) are appointed by the president. They have independent authority to monitor and investigate conduct by members of any department of the executive branch. If they find wrongdoing, they can recommend disciplinary action within the department or civil or criminal investigation by the Justice Department.

  †. The Intelligence Community comprises sixteen intelligence agencies throughout the U.S. government, including the Central Intelligence Agency, the National Security Agency, and the Defense Intelligence Agency.

  ‡. For the remainder of this and the next chapter, all references to what McCullough thought or did are a result of the author’s interview with this knowledgeable source, who asked to remain anonymous because of the sensitivity of McCullough’s role as Intelligence Community inspector general. He agreed to try to correct the record. McCullough’s source insisted that McCullough was acting more as a “conduit” for concerns and judgments relayed to him by Intelligence Community experts, and not always expressing his own personal opinions. Yet he received the brunt of the criticisms from the Clinton campaign and supporters and Democratic members of Congress, and he could not respond to publically defend himself.

  §. For example, a September 2017 study by Harvard and MIT scholars titled “Partisanship, Propaganda, and Disinformation: Online Media and the 2016 U.S. Presidential Election” concluded that “the majority of mainstream media coverage was negative for both candidates, but largely followed Donald Trump’s agenda: when reporting on Hillary Clinton, coverage primarily focused on the various scandals related to the Clinton Foundation and emails. When focused on Trump, major substantive issues, primarily immigration, were prominent.”

  CHAPTER FOUR

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  The FBI Criminal Investigation

  It was Sunday night, January 8, 2017, exactly two months to the day after the election of Donald Trump. The FBI chose that time, when fewer people are online, to post three hundred pages of the records from its Hillary Clinton emails criminal investigation on its website, called its FOIA Vault.

  Among these posted documents were three important ones. The first was a July 10, 2015, FBI memo opening a criminal investigation of Hillary Clinton and her email practices. This memo, which appears on pages 58–60, claimed the decision was based on “documentation” provided by the ICIG, Charles McCullough, in a July 6 referral sent to the FBI. In other words, the New York Times got the fact of an FBI criminal investigation right in their July 23 story. What they got wrong was the source of the decision to investigate. It wasn’t the two IGs who asked for a criminal investigation, as reported by the Times, but the FBI.

  But on April 22, 2017, in a lengthy front-page story, bylined in part by Apuzzo and Schmidt, the Times reporters seemed to be minimizing the errors made in the July 23 story as more about semantics and a technical error than that the facts were wrong or they had broken any rules of Journalism 101.

  In fact, some facts were wrong, and they appear to have violated fundamental rules that journalists usually try to follow. They should have insisted that their sources show them the IGs’ alleged criminal referral—or gotten a direct confirmation from the two IGs before posting the story. Of course, hindsight is twenty-twenty. But these were not rookie reporters; they should have known not to rely solely on the late-night confirmations from the Justice Department, or other sources at Justice, including possibly FBI officials who also might have misunderstood the question being asked. Now, the story explained, what they were really trying to confirm was not a criminal referral by the IGs but rather the existence of the July 10 FBI memo that did, in fact, open a criminal investigation of Clinton’s emails.

  The second important document posted on the FBI’s public website was an FBI memo dated July 21, 2015, and hand-delivered on July 23, to Deputy Attorney General Sally Q. Yates, notifying her of that July 10 FBI opening of a criminal investigation of Clinton, noting it was based on the July 6 ICIG “referral.” This document, which appears on pages 62–63, was significant because it showed that Justice at the highest levels (including the attorney general) knew that a criminal investigation of Clinton had been initiated by the FBI two weeks before.

  So the Times and its reporters might ask: Why did the Justice Department withdraw its confirmation of the criminal investigation on July 24 while knowing that two weeks before the FBI had opened a criminal investigation?

  The answer is unclear. Perhaps it is because the department faced a dilemma.

  Senior Justice officials learned on Friday morning that they had wrongly confirmed on Thursday night that the two IGs had made a criminal referral to the FBI to investigate Clinton. The ICIG publicly stated (and undoubtedly told these top officials sometime that morning) that he had not made a criminal referral to the FBI but rather a “security referral.”

  But, again, why didn’t Justice, after it retracted its confirmation to the Times, volunteer that there was, in fact, an open FBI criminal investigation of Clinton as of two weeks before? Most legal experts would agree that they made the right decision not to do so. The long-standing policy of the Justice Department and, indeed, all criminal justice systems in the United States—federal, state, and local—is not to confirm (or deny) the existence of an ongoing criminal investigation. This is based on the principle of due process and the presumption of innocence. To confirm an investigation is to cast a shadow over a citizen who is still supposed to be protected by the due process rights and the presumption of innocence under our Constitution. A person whom the media reports to be under “FBI investigation” is often presumed guilty even before an indictment, much less trial and a verdict—and certainly subject to innuendo of wrongdoing by headlines and partisans, even leading a reckless presidential candidate to lead chants of “Lock her up!” (Ironically, as we shall see in Chapter Six, only James Comey thought that policy and those constitutional principles did not apply to him.)

  There was a less important, but still interesting, third document posted: an FBI report of its interview (called a 302) of an inspector in the ICIG’s office in Virginia. This document appears on pages 65–67. What made that interview significant is that the second to last paragraph on page 67 confirmed that Clinton’s thirty thousand emails were in fact reviewed in two days—June 26–27, 2015. Also, this interview happened to occur on July 23. As we shall see, many of the ICIG and FBI actions adversely affecting Hillary Clinton happened on that day.

  These three documents, taken together, raise troubling questions about the judgments and conduct of the FBI and James Comey; the Intelligence Community inspector general, Charles McCullough; and the top management of the Justice Department—questions that can be linked, directly or indirectly, to the decision by Comey on October 28, 20
16, to send his letter to Congress.

  * * *

  But first let’s go back to July 10, 2015—the memo opening the FBI criminal investigation that was not public, that no one in the media knew about at the time and never had a chance to read until it was posted on January 8, 2017—two months after the election—on the FBI’s public “vault.” A close reading of that secret FBI July 10 memo reveals that the Bureau’s decision to open a criminal investigation was based on facts in part allegedly “provided” in ICIG McCullough’s July 6 “referral,” which raises the first question about that decision: How can the FBI justify opening a criminal investigation based on what the ICIG stated when, two weeks later, on July 24, the ICIG publicly stated its referral was “not criminal”?

  The memo is from “FBIHQ, Counterespionage Section,” the Bureau’s headquarters in Washington. This means that FBI director James Comey himself presumably authorized the opening of this criminal investigation of Hillary Clinton. (Although her name is redacted from the memo, there are many indications that she is the subject, such as the fact that the investigation was designated as a “Sensitive Investigative Matter due to a connection to a current public official, political appointee or candidate . . .”) That is another reason why it is safe to assume that James Comey as director likely personally approved the opening of this investigation.

  The first page of the memo states the synopsis of the investigation: “FBIHQ, Counterespionage Section, is opening a full investigation based on specific articulated facts provided by an 811 referral from the Inspector General of the Intelligence Community, dated July 6, 2015 regarding the potential compromise of classified information.”

  Section 811 of the Intelligence Authorization Act of 1995 allows an executive branch officer, such as the ICIG, to advise the FBI of any information that “indicates that classified information . . . may have been disclosed in an unauthorized manner to a foreign power or agent of a foreign power.” It does not necessarily involve a criminal investigation. Often an 811 referral from a department to the FBI merely advises the need for a review by the FBI’s noncriminal counterintelligence division experts to determine whether unmarked documents requested under the Freedom of Information Act should be marked “classified” and, thus, withheld from disclosure. As the Los Angeles Times reported, Section 811 referrals from the ICIG “may or may not ultimately launch an investigation. Experts say such referrals from an intelligence agency inspector general are routine and often do not lead to much.”1

  This is what a source close to McCullough described as McCullough’s understanding of the document he sent to the FBI on July 6, 2015: When he sent his July 6 “referral” to the FBI, it was not necessarily about initiating a criminal case. Rather, he sent his referral to the FBI as a notice under Section 811 for “counterintelligence purposes.” What he meant by that was summarized in the July 23, 2015, memo, which he has said to the source was virtually identical to the July 23 memo to Congress that was made public the next day, on July 24, after the New York Times story ran.

  McCullough’s referral, the source said, was intended to seek support from the FBI to pressure State to allow representatives of the Intelligence Community, as well as the Counterintelligence Division of the FBI, to participate in State’s ongoing FOIA review process of Hillary Clinton’s emails. McCullough expressed concerns in that July 6 referral (and the July 23 memo) that the State Department had rejected requests for such participation in that FOIA review process by representatives from the Intel Community and FBI counterintelligence experts. The source said that McCullough never intended his submission to the FBI on July 5 to be characterized as a “criminal referral,” because it was not.

  There are specific rules governing when the FBI is allowed to open a criminal investigation. They are contained in the Domestic Investigations and Operations Guide (DIOG or FBI Operations Guide). DIOG Section 7.5 states that to open a full criminal investigation, the FBI must have a specific “articulable factual basis” that “reasonably indicates . . . an activity constituting a federal crime or threat to the national security has or may have occurred.”

  The FBI memo includes on page 2 only a single fact to satisfy its criterion of a specific “articulable factual basis” for the belief that Clinton may have committed a crime “regarding the potential compromise of classified information”: “. . . a sample unclassified e-mail that allegedly contains information at a classified and SCI [Sensitive Compartmented Information] level. According to the ICIG, this e-mail was part of a larger trove of other unclassified e-mails they were reviewing during their own investigation.”

  However, this single fact cannot possibly satisfy the Operations Guide criteria as stated. While this single email allegedly contained information at a classified and SCI level, that does not establish that a crime may have been committed because neither ICIG McCullough nor the FBI in this memo stated the email in question had appropriate classified markings. And we know that without such classified markings, Secretary Clinton could not be said even “possibly” to have committed a crime, because, in the absence of the secretary ignoring emails that were appropriately marked as classified, the FBI had no basis for finding that she had criminal intent. How do we know this? Because Comey himself said so, on July 5, 2016, when he announced that no reasonable prosecutor could bring a criminal case against Clinton for her email practices.

  These rules do not allow a criminal investigation to be opened based on a “hunch” that there “possibly” could be marked emails if the FBI looked at all thirty thousand Clinton emails. Indeed, the words of Section 7.5 of the FBI’s Operations Guide require a “specific, articulable fact” to be possessed by the FBI first—suggesting the possibility a crime has been committed before a criminal investigation can be opened—not after the criminal investigation has been opened, so that FBI agents can go on a fishing expedition in search of predicate facts.

  So, since there were no emails properly marked as classified that could serve as predicate facts, what did the FBI include in its July 10, 2015, memo as “predicate facts” to justify opening the criminal investigation under Section 7.5’s standards? The memo referred to five documents. However, not one of the five cited a marked Clinton email—or any other known predicate facts that could possibly lead to a criminal prosecution.

  The first document cited in the July 10 secret FBI memo was McCullough’s July 6 ICIG “referral.” Significantly, the FBI header for the July 6 referral was “Potential Compromise of Classified Information.” “Potential” is not a fact. To make it a fact requires a search for a fact. That conflicts with the requirements of Section 7.5. Moreover, just consider: The FBI was using the McCullough July 6 referral as a basis for opening a criminal investigation. Yet, two weeks later—on July 24—McCullough himself publicly announced that the document he sent to the FBI was “not” a criminal referral but a noncriminal “security referral”—meaning for counterintelligence purposes to prevent classified information from being disclosed under FOIA requests.

  Looking more closely at McCullough’s July 23, 2015, memo sent to Congress two weeks after his “referral” to the FBI, it can be seen there were only two facts asserted in the entire memo. (See page 34.)

  First: “We note that none of the emails we reviewed had classification or dissemination markings, but some included IC-derived classified information and should have been handled as classified, appropriately marked, and transmitted via a secure network. Further, my office’s limited sampling of 40 of the emails revealed four contained IC information which should have been marked and handled at the SECRET level.”

  This couldn’t be clearer: McCullough stated that “none” of the emails reviewed by his office had classified markings; thus there could never have been criminal intent found regarding Secretary Clinton, as Comey announced a year later on July 5. McCullough’s statement that some of these emails “should have” been marked was, as he stated, for the purpose of withholding them from FOIA disclosure. But “should
have” is not a predicate fact that could be the basis of a criminal prosecution.

  The second fact asserted by McCullough was: “The 30,000 emails in question are purported to have been copied to a thumb drive in the possession of former Secretary Clinton’s personal counsel, Williams and Connelly [sic] attorney David Kendall.”

  This fact cannot possibly constitute a factual predicate for opening a criminal investigation of Secretary Clinton. The transfer of these emails to Clinton’s attorney on a private thumb drive, kept under lock and key in Kendall’s law offices, cannot possibly be the basis of a criminal investigation. As we know, a year later, the FBI never suggested, nor did Comey on July 5 even mention, such transfer from Clinton to her personal attorney under conditions of strict security.

  In sum: There is not a single specific articulable fact that the FBI cited in its July 10 memo based on what ICIG McCullough stated in his July 6, 2015, noncriminal referral to the FBI, or any other fact independently cited by the FBI in the memo, that meets the standard of Section 7.5 of the FBI’s Operations Guide. It appears that from the beginning the FBI never had the “predicate fact” required for them to initiate the full criminal investigation of Hillary Clinton, according to their own rules. And a year later, Comey confirmed that there was no crime possible, with the requisite criminal intent, in the absence of emails that were appropriately marked as classified.