The Unmaking of the President 2016 Read online

  This could be the explanation why, at that same time, Comey said that the FBI had found a “small number” of emails that had a portion with classified markings but then two days later was forced to take that back late in the day at a public congressional hearing. That retraction or modification of his July 5 statement was little noted in the media—a tree falling in the forest. And of course, no one in the media at that point knew about the secret July 10, 2015, memo opening the criminal investigation and that the memo stated no predicate facts or identified no Clinton marked emails in violation of the Bureau’s Section 7.5 of its Operations Guide.

  Even if the FBI claims that it had a reasonable suspicion it would find marked Clinton emails if it took more time to find them, including a few thousand that seemed not to have been transferred to her private server from her BlackBerry in her first few months as secretary, why did it take Comey and the FBI a full year to complete the investigation? In fact, it could have taken no more than two days to review all thirty thousand of Clinton’s State Department–related emails to determine whether any had classified markings. How do we know this? As already noted above, in the FBI’s interview of an ICIG inspector on July 23, 2015, the third document referenced above, the inspector is quoted as saying that on June 26–27, 2015, a review of all the thirty thousand emails was completed. That’s right: two days to inspect thirty thousand emails. A source close to McCullough claimed that this review was cursory and the ICIG inspector was “kicked out” after two days. Even if that is true, the State Department would not have refused to allow FBI agents in the middle of a criminal investigation full access for as long as they needed to confirm that not one of those thirty thousand emails was appropriately marked as classified. So why didn’t the FBI just go to State and ask to review Clinton’s emails?

  What would have happened if Comey had done this and announced on October 5, 2015—or December 5, for that matter, five months after the fact—that there was no prosecutable case against Clinton, rather than waiting until the following July? We will never know.

  * * *

  Meanwhile, once the July 10, 2015, secret decision to open the criminal investigation had been made, the FBI senior leadership wanted to be certain that the number-two official of the Justice Department, Deputy Attorney General (DAG) Sally Q. Yates, knew about it. That doesn’t seem unusual. But it seemed that they wanted to be very, very certain she knew—especially certain that she knew on July 23.

  So they notified her verbally on July 13.

  They notified her a second time verbally, on July 20, just in case she hadn’t heard the first time that the FBI had opened an investigation of the front-running Democratic presidential candidate.

  Then to be absolutely sure DAG Yates understood after two verbal notifications, they wrote her a memo stating the same, dated July 21.

  Then to be absolutely positively sure that she had received the memo, on—guess what date?—July 23, 2015, Deputy Director Mark Giuliano and the assistant director, Counterintelligence Division, Randall C. Coleman, hand-delivered the letter to Yates. How do we know this? Because of a handwritten note someone scrawled at the bottom of the second page, under the signature line: “Hand-delivered to DAG by DD [Deputy Director Giuliano] & AD [Assistant Director Coleman]” and then “7/23.”This is a very conscientious effort by senior management of the FBI.

  * * *

  Concerning the role played by the Intelligence Community inspector general, Charles McCullough, according to a source close to him, he was increasingly frustrated that the State Department resisted allowing his Intel Community colleagues to help in the review process of the Clinton emails. He claims that had he been allowed to do so, he would not have sent the same kind of referral to the FBI, complaining about the State Department’s noncooperation and resistance to allowing the Intel Community to be involved in the FOIA review process. His referral, his source says, to the FBI would have been more benign, more in the nature of a notice, “we are all working well together.” He even speculated, according to the source, that he might not have needed to send any referral to the FBI had there been full participation by the IC classification experts, the FBI counterintelligence experts, and the State Department. In such an event, he says, he would not have needed to use the language he used in his July 23 memo, warning that classified information that “should have been” marked might be released under FOIA, and Intelligence Community experts needed to be involved in the State Department FOIA review process.

  McCullough also insisted, through this source, that he was not making judgments about the existence of classified information. He was passing along the judgments of experts in the Intelligence Community, he said. McCullough’s explanation remains suspect. He worked as a senior FBI official in the 1990s under the then openly anti–President Clinton FBI director, Louis Freeh.

  And he could hardly credibly claim to be “shocked, shocked” by the leaks of his anti-Clinton memos from a Republican-led congressional committee. It is a simple fact that State Department officials had plenty of reason to doubt that McCullough and some members of the Intelligence Community were neutral arbiters in reviewing Clinton’s emails. Their history of overclassifying was a reality in Washington and well known. The best example remained their insistence that a Clinton email forwarding a published article about U.S. drones being used in Pakistan’s Tribal Areas was classified information. Why should State classification experts trust that given their tendency to overclassify, inviting in Intelligence Community officials would not just lead to protracted debates and inevitable leaks to Republican partisans in Congress, who would then leak to the media?

  In any event, even had McCullough not sent any referral to the FBI on July 6 or a benign one, signs suggest that the FBI and Comey would have found another reason to open a criminal investigation. As it was, they had no predicate facts—no Clinton emails marked classified—and yet they secretly began the criminal investigation as set forth in their secret July 10, 2015, memo. They seemed determined to open the investigation regardless of their own rules, as the memo shows.

  As it turned out, the tensions between McCullough and the State Department continued and got worse through the rest of 2015, and McCullough’s continued concerns about classified information getting into the public domain—that is, what he believed to be classified information—undoubtedly continued to infect the attitude of the FBI that there was something being concealed by the Clinton camp, particularly on the hard drive or in deleted emails that needed to be part of a criminal investigation.

  For example, on January 19, 2016, the Hill newspaper reported that it had obtained a letter—“first reported by Fox News”—that McCullough had written to Congress stating that among Clinton’s emails stored on her server was “highly classified information known as ‘special access programs’ (SAP).” The McClatchy newspaper chain reported the next day that McCullough had written a letter to two Republican senators saying that “several dozen” emails Clinton sent and received while she was secretary of state contained “classified material at the highest levels.”

  McCullough, according to the source close to him, became defensive about the charges that were made about him as anti-Clinton or making stretched judgments about what was classified information. “I was just a conduit for the judgments of others in the Intel Community,” he told his source. But his insistence that he sent his information to congressional oversight committees chaired by partisan Republicans without understanding they would be used for partisan purposes against Hillary Clinton—or, more accurately, misused and mischaracterized—or leaked to the media is at best naïve, and is difficult for Washington veterans on both sides of the aisle to believe.

  Brian Fallon unsurprisingly commented to CNN about the McCullough-to-Congress-to-the-media pattern of leaks: “I think this is a very coordinated leak.”

  This wasn’t just a complaint from the Clinton campaign. On March 5, 2016, seven congressional Democrats—four Democratic ranking U.S. senat
ors and three members of the House Intelligence, Foreign Affairs, and Government Oversight Committees—wrote a letter to both ICIG McCullough and State’s IG Linick, expressing concerns that the offices of both IGs were not conducting their reviews of Clinton’s emails appropriately. The seven Democrats referenced “errors and transgressions in misclassifying” documents that turned out not to contain any classified information at all, information shared with just Republican members of Congress and not Democrats, and briefing journalists in a way that was “not transparent and neutral.”2

  IG Linick subsequently conducted a review of email practices of four previous secretaries of state and issued a report as a result of that review on May 26, 2016. While the media focused its headlines on the critique of Clinton using a private email system and waiting two years to turn over all her official business emails, downplayed was the fact that Linick had found general problems of explaining and enforcing policy and rules on using private email systems by the State Department going back many administrations. Linick also disclosed that former secretary of state General Colin Powell also used a private email system outside the State Department server, on AOL.

  In this story on the State IG’s report, the media showed its tendency to blow up critical evaluations of Clinton and ignore ones that mitigated the criticism as it had throughout the reporting of the Clinton email story. A typical example was the Washington Post headline “State Department Slams Clinton Over Emails.”*3

  * * *

  Let us now ask whether Deputy Attorney General Yates, who had supervisory authority over Comey and the FBI in any criminal investigation of Hillary Clinton (since Attorney General Loretta Lynch had recused herself after Bill Clinton’s June 27 visit with her on the tarmac at Phoenix International Airport), exercised any oversight at all.

  As we now know, Yates had been informed by a hand-delivered letter on July 21 from the deputy director of the FBI that the FBI had received a July 6 referral from ICIG McCullough and had opened a full criminal investigation, as memorialized in a memo four days later, on July 10. Indeed, the letter from the FBI stated she had been verbally notified two times of the Clinton email criminal investigation.

  Little is known about what Yates did when she learned about that secret July 10 memo and the criminal investigation of Clinton.

  Did Yates ask to read the secret July 10 memo? Did she ask to see the “specific articulable predicate facts” required under FBI rules to open that investigation? At least by July 24, Yates knew that McCullough had contradicted the New York Times report that he had made a criminal referral to the FBI. Did she ever question Comey as to his basis for opening a criminal investigation? In other words, did Deputy Attorney General Yates exercise, prudently and responsibly, her supervisory authority over Comey and the FBI? Did she make it crystal clear to Comey that he reported to her and that, while she would not compromise the independence and thoroughness of his investigation, she expected it to be high priority and expedited as much as possible?

  If the deputy attorney general did not ask any of these questions, and did not convey to Comey clearly that he was subject to her supervision and accountability, that would have been a very bad omen for Hillary Clinton.

  * * *

  *. A full reading of the report challenges the Post’s decision to use the hyperbole “slams” in the headline—as did most other mainstream media reports—while omitting the mitigating findings that the department for many years had failed to articulate clear and coherent policy and rules on private emails.

  PART II

  * * *

  The Dangers of a Righteous Man

  CHAPTER FIVE

  * * *

  Policy and Fairness Be Damned

  On July 5, 2016, after nearly a year of an extensive investigation by the FBI’s Counterintelligence Division, involving hundreds of agents mostly out of DC headquarters, James Comey decided to hold a press conference to announce the findings.

  The news was very positive for Hillary Clinton. Here is the headline that should have dominated coverage over the next days, accurately describing the contents of Comey’s 2,314-word statement, read to a huge international TV audience: “FBI Director Comey Recommends No Prosecution of Clinton over Emails Practices; Finds No Intent to Violate Law, No Emails Marked Classified; No Evidence Private Server Hacked.”

  This fictional headline accurately reflects what James Comey concluded. It should have been the end of the media’s preoccupation with emails, and Hillary Clinton’s poll numbers should have significantly improved.

  But instead, almost all the media reaction was negative and Clinton’s standing went down. If anything, the media’s obsession with her emails increased. Negativity increased. Donald Trump continued to lead cheers of “Lock her up!”

  Why did this happen? How could such a positive outcome result in such negative political consequences for Clinton? And how could the media be so complicit?

  The answer is not complicated; it’s a combination of two factors. First, Comey’s statement downplayed the positive findings and repeatedly qualified them with such words as “possible” or “potential” in referring to wrongdoing. For example, it wasn’t until the thirty-second paragraph out of a total of thirty-seven that he stated his conclusion that no reasonable criminal case could be brought against Clinton. You had to read and reread the statement to recognize that Comey had validated Clinton’s repeated insistence that she had never sent or received emails marked classified. And therefore, in the absence of classified emails, there was no evidence of criminal intent. Moreover, even when he articulated positive conclusions about Clinton’s conduct, such as that no prosecution was justified and no hacking had been detected despite extensive FBI forensic investigations, he qualified those factual findings with the reminder that there could have been “potential” violations or “possible” hacking.

  Let’s examine exactly what Comey said—and then how he spun the positives into negatives with innuendo, and with a compliant mainstream media following suit.

  Although there is evidence of potential violations of the statutes regarding the handling of classified information, . . . no reasonable prosecutor would bring such a case. . . . No charges are appropriate . . .

  As noted, “no reasonable prosecutor . . .” is the heart of the news that everyone in the Clinton camp had been waiting for after a year-long FBI investigation. Comey could have started and stopped there, perhaps adding a single sentence of explanation: After reviewing the more than thirty-three thousand* Clinton emails, he and his FBI team could find none with “recognizable” classified markings as required by the classification manual.

  Instead, Comey preceded this positive conclusion for Clinton with the qualifier “although” and with “potential violations of the statutes . . .” You don’t have to be a lawyer or even a defender of Hillary Clinton to wonder about the propriety of the director of the FBI publicly using the word “potential” in this situation.

  Why did Comey do this? It is hard to resist seeing this as an effort to balance his positive conclusions with red meat rhetoric aimed at Republican critics, who were likely to be upset by his no-prosecution recommendation. It arguably appears to represent bias: stating good facts and conclusions for Clinton . . . and then undermining them with innuendo and weasel words that suggest wrongdoing.

  Comey explained why he said no reasonable prosecutor would bring a case against Clinton by comparing Clinton’s case with others that had been brought under the Espionage Act for mishandling of classified information. He continued:

  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 [applicable to Secretary Clinton’s conduct]. 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 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.

  In other words, Clinton did none of these things—nothing intentionally or willfully. And given the absence of classified markings on the emails, that conclusion was inevitable. This arguably meant the FBI investigation had been a rabbit hole from the start. It just took $20 million and a full year to reach that conclusion.

  Comey concluded that no case could be brought against Clinton because FBI agents were unable to identify emails marked as classified. As noted, that was true when the FBI opened its criminal investigation of Clinton. Twelve months later, he could still not cite a single email that had recognizable classified markings among the thirty-three thousand reviewed.

  But then Comey added a misleading and harmful assertion. He stated that contrary to Clinton’s many prior statements throughout the campaign that she had never sent or received emails marked as classified, the FBI had, in fact, found a “small number” of marked emails that Clinton had “sent or received” that contained information with classified markings—in effect accusing Clinton of making false statements. But a close reading of the words Comey chose to use in the July 5 statement suggested that he was not being entirely forthcoming. Here is what Comey said: “It is important to say something about the marking of classified information. Only a very small number of the emails containing classified information bore markings indicating the presence of classified information” (emphasis added).

  Strange wording. Seemed intentionally vague, incomplete. Why didn’t he just say a very few number of emails were “marked classified” instead of “indicated the presence of . . .”? Why use such circuitous language? Why “very few”? Why not state the actual number?