Why would that be? In Comey’s view, it came down to the same issues that had troubled investigators from the outset: precedent and intent. As he was preparing his draft, he asked the Justice Department for a chart summarizing every misuse of confidential information case over the past twenty years. George Toscas, the deputy attorney general overseeing national security, responded on May 23 with the chart, which he summarized in an email:
While it is not noted specifically in the chart, the vast majority of the listed cases involved documents or electronic files with classification markings on them. The few examples of charged cases where no markings were present involved photographs taken by the defendant (e.g., a case involving photos inside sensitive areas of a nuclear submarine) or handwritten notes where there were clear indications of knowledge of the sensitive nature of the materials (e.g., a case in which there was a recording of the defendant speaking about the classified nature of information in his handwritten notebooks). The “charging/plea information” column should make it clear, but the mishandling noted in the chart often occurred in conjunction with other criminal activity, including espionage, export control violations, and false statements, among others.
Notably, there were no “gross negligence” cases on the chart.
As Comey added to his draft, “All the cases prosecuted involved some combination of: (1) clearly intentional misconduct; (2) vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; (3) indications of disloyalty to the United States; or (4) efforts to obstruct justice. We see none of that here.”
Comey deliberately left his conclusion toward the end of the statement, not so much to heighten the drama as to keep the audience listening. It was important to him that they hear and understand his reasoning before he revealed the outcome.
On May 17, the wider FBI group met to discuss Comey’s proposed statement, and Strzok summarized comments and added more of his own and Page’s. He and Page hadn’t written any more texts commenting on the ongoing primaries or expressing any opposition to Trump since their flurry of texts in March. Still, given their earlier remarks, it was significant that both Strzok and Page advocated a more aggressive investigative approach than Comey had proposed.
Strzok, for example, suggested that Comey disclose the exact number of emails that contained classified information at the time the emails were sent in order to “more directly counter the continuous characterization by Hillary Clinton describing the emails involved in this investigation as having been classified after the fact.”
An ongoing concern in discussions of the draft was the use of the phrase “grossly negligent” to describe Clinton’s behavior, because it mirrored the statutory language of the Espionage Act. That could well cause confusion because why, if she were “grossly negligent,” wasn’t she being charged?
Comey said he just took the phrase off the top of his head and hadn’t focused on the language of the statute. As he described his thinking, he was “trying to find a way to credibly describe what we think she did,” and “mere negligence didn’t get it because it was not just ordinary sloppiness, it was sloppiness across a multiyear period.” He said if he had to do it over again, he wouldn’t have used the phrase “grossly negligent,” “but I haven’t thought of another term since then.”
After another round of discussions, Strzok, Page, and Moffa met in Strzok’s office on June 6 and used Strzok’s computer to delete the “grossly negligent” reference. Instead, the passage now read,
Although we did not find 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.
Some inside the FBI still found this slightly watered-down version to be too harsh on Clinton. Deputy General Counsel Trisha Anderson, for one, urged dropping the reference to “extremely careless” on grounds that it was superfluous and would only raise questions about why her behavior wasn’t grossly negligent. But Comey was insistent that “extremely careless” stay in as the best way to characterize Clinton’s behavior. Clinton wasn’t going to get a complete pass.
All of this, of course, was dependent on Clinton’s interview, scheduled for July 2, with Strzok and two other agents doing the questioning. Comey wanted to close the investigation as soon as possible after that, because the nominating conventions were fast approaching. Comey doubted that Clinton would admit wrongdoing or lie. She was a seasoned witness and had a team of top lawyers advising her. Still, anything was possible.
* * *
—
ON JUNE 15, on his newly created website, the secretive hacker known as Guccifer 2.0 emerged into public view: “Hi. This is Guccifer 2.0 and this is me who hacked Democratic National Committee.” Guccifer continued in the third person. “Guccifer may have been the first one who penetrated Hillary Clinton’s and other Democrats’ mail servers. But he certainly wasn’t the last. No wonder any other hacker could easily get access to the DNC’s servers.”
Attached to the email were an assortment of Democratic National Committee documents stolen by Guccifer 2.0, including donor lists, internal memos, and the party’s opposition research on Trump. Guccifer claimed he’d had access to the party’s server for over a year and had hacked “thousands of files and mails.” He said he’d recently turned them over to WikiLeaks.
The FBI had known since April that the party had been hacked, and mounting evidence suggested that Guccifer was an avatar for Russian intelligence officers whose aim was to disrupt the American election. But what galvanized Comey was the revelation that Guccifer, whoever “he” was, had turned his trove over to WikiLeaks.
It now seemed plausible, even likely, that the top secret email that was the subject of the earlier Russian intelligence analysis involving Lynch was among the emails that had been hacked. Far from remaining secret, as Comey had expected, it might now be published by WikiLeaks. Even if its contents were untrue and unfair, the email would cause an uproar and be fodder for accusations that Lynch had fixed the Clinton investigation.
This was exactly what Comey was worrying about—that Americans wouldn’t trust Democratic political appointees to resolve the Clinton investigation fairly and objectively.
* * *
—
ON JUNE 27, Loretta Lynch, her husband, and an entourage of Justice Department employees flew to Phoenix for the start of a weeklong tour to highlight community policing efforts. They arrived on the department’s private jet at about 7:00 p.m., several hours late.
Lynch and her husband were about to leave the plane when the head of her security detail said, “Former President Clinton is here, and he wants to say hello to you.”
“What?” She was taken aback, having had no idea Clinton was even in the vicinity.
Her security detail spoke to someone outside the plane, then said, “Can he come on and say hello to you?”
Lynch was uneasy. She was especially sensitive to appearances given the upcoming elections. She wouldn’t allow herself to be photographed with any candidate for office. She was well aware that Bill Clinton was actively campaigning for his wife, who was also the subject of an ongoing criminal investigation by the very agency Lynch ran. But she agreed, assuming she and the former president would shake hands, exchange a few pleasantries, and then leave the plane. It wasn’t in her nature to refuse. As one of her staff said, “She’s like the most polite, Southern person alive. I don’t know in what circumstances she would have said no.”
In a matter of “seconds,” Lynch recalled, the former president was on the plane. Twenty minutes later, he was still there.
THREE
A SIGHTING ON THE TARMAC
That Lynch thought she could escape an encounter with Bill Clinton with a handshake and a few pleasantries confirmed the fact that she
barely knew the garrulous former president.
Clinton talked about his grandchildren. He discussed his golf game in detail, including some rounds he’d just played in Phoenix, where he’d also spoken at a fund-raiser. He discussed the heat (it was 110 degrees). He sprinkled compliments on Lynch, telling her what a great job she was doing as attorney general.
As his monologue continued, with Lynch murmuring little more than occasional pleasantries, Clinton moved Lynch’s tote bags off a seat, sat down, and made himself more comfortable, even as Lynch and her husband remained standing. “What brings you to Phoenix?” he asked.
To be polite, Lynch and her husband finally sat down, which seemed only to encourage him. Clinton brought up Brexit and how the press had failed to recognize (as he had) the reaction to globalization and the resulting identity crisis and how Brexit was simply a manifestation of that.
“We’ve got to get going to the hotel,” Lynch said. “And I’m sure you’ve got somewhere to go.”
“Yes,” Clinton said, mentioning the next stop on his trip but then moving on to a lengthy discourse on coal miners in West Virginia and “how their problems really stem from policies that were set forth in 1932. And he talked about those policies for a while,” Lynch recalled. “And I said, okay, well.”
Waiting impatiently in a van outside were Lynch’s staff. As Lynch’s deputy chief of staff, Shirlethia Franklin, put it, she was “shocked,” and they all “just felt completely blindsided.” Lynch’s counselor, Uma Amuluru, agreed. The “optics,” to put it mildly, “were not great.” The longer the encounter went on, the worse it looked.
Amuluru finally got out of the van and headed toward the plane, thinking, “I don’t know what’s going on up there, but I should at least go up to intervene or help her if she needs help,” recognizing that “this is a bad idea.” Once on the plane, she stood conspicuously near the group, hoping to break up the conversation. She shook hands with Clinton, who, unfazed, continued talking. But face to face with a former president, she hesitated to interrupt, so she just stared at them a little longer.
Finally Lynch interrupted to say that Amuluru was too polite to say so, but the reason she was standing there was that they had to go.
“Oh, she’s mad at me, because I’d been on the plane too long,” Clinton said. “And she’s come to get you.”
“We do have to go,” Lynch repeated.
“And then he kept talking about something else,” Lynch recalled. After about another five minutes, she stood up and firmly thanked him for coming. After a round of handshakes, he finally left.
Amuluru looked at Lynch. The attorney general, she recalled, looked “gray” and “not pleased.”
“That was not great,” she said.
“Yeah,” Lynch acknowledged.
* * *
—
THAT BILL CLINTON would be so tone-deaf as to initiate an extended private conversation with the attorney general, the very person weighing criminal charges against his wife, just five days before her FBI interview astonished Lynch’s staff. Franklin was furious that Lynch’s FBI security guard let Clinton on the plane in the first place.
Clinton was defensive when asked about the encounter and said it was a spontaneous, unplanned gesture and he didn’t “want her to think I’m afraid to shake hands with her because she’s the Attorney General.” He did raise with his own chief of staff the issue of how it would look but went ahead anyway because “I thought it would look really crazy” if “I couldn’t shake hands with the Attorney General, you know, when she was right there.” As for the ongoing email investigation, he never thought it “amounted to much, frankly, so I didn’t probably take it as seriously as maybe I might have in this unusual period.”
Clinton’s and Lynch’s recollections of their extended and, at least for Lynch, awkward encounter differ in some details but agree on the central issue: the Midyear investigation never came up, nor was there any mention of Comey, nor any discussion of positions Lynch might look forward to in a Hillary Clinton administration.
Then again, none of those things needed to be mentioned: they were implicit in Clinton’s presence. However benign his intent, had Clinton wanted to sabotage his wife’s campaign, he would have been hard-pressed to find a more effective means.
(To many, it was reminiscent of Clinton’s damaging remarks in 2008 dismissing his wife’s loss to Obama in the South Carolina primary, when he noted that Jesse Jackson had won there in 2000 and 2004 before being trounced elsewhere. Those comments caused such an uproar that Hillary apologized, saying her husband never meant to inject race into the campaign. Bill was muzzled, but her campaign never recovered.)
Less than twenty-four hours later, a local ABC reporter in Phoenix, Christopher Sign, received a tip that Lynch and Clinton had been huddled on the attorney general’s plane for half an hour. An ABC reporter in Washington contacted Lynch’s director of public affairs for comment, which triggered a series of phone calls and some “talking points” for Lynch.
Later that day, Sign asked Lynch about the meeting at her Phoenix press conference and asked if they’d talked about Hillary Clinton and Benghazi.
“No,” Lynch replied. “Actually, while I was landing at the airport, I did see President Clinton at the Phoenix airport as I was leaving, and he spoke to myself and my husband on the plane.” She said the conversation was “primarily social” and ticked off the topics they’d covered, starting with his grandchildren. “There was no discussion of Benghazi, no discussion of the State Department emails, by way of example.”
Justice Department officials were initially relieved that Sign asked no follow-up questions. But after he broke the story on the next morning’s news, Fox News ran with it on multiple programs. The Fox host Bill O’Reilly had Sign appear on his show, and Sign said his “jaw dropped” when his source told him Clinton was meeting privately with Lynch on her plane. Soon the Justice Department was fending off a media frenzy, with every major news outlet asking the same question: Why would Lynch meet with Clinton when his wife was under investigation?
As Amy Chozick wrote in The New York Times, the encounter “caused a cascading political storm for Mrs. Clinton’s campaign; provided fodder for Republicans who have accused the Justice Department of bias in its inquiry into Mrs. Clinton’s use of a private email server at the State Department; and even had Mrs. Clinton’s allies asking Friday: What was he thinking?
As Melanie Newman, Lynch’s head of public affairs, later put it, Lynch “doesn’t take mistakes lightly, and she felt like she had made an incredible mistake in judgment by saying yes instead of no, that he could come on the plane.”
At FBI headquarters, Comey, McCabe, and other top officials viewed the furor with mounting dismay. Comey forwarded a link to the first Fox News report—“Why Did Bill Clinton and Loretta Lynch Meet at Her Airplane in Phoenix?”
Strzok, who was busy preparing for the climactic Clinton interview, texted Page: “All the airport tarmac articles finally burst out.” He said it was “not a big deal, just ASTOUNDINGLY bad optic.” So bad that he wondered if the Clinton interview should be postponed, but decided not. As he said in an email to Priestap, “Timing’s not ideal in that it falsely adds to those seeking the ‘this is all choreographed’ narrative. But I don’t think it’s worth changing. Later won’t be better.”
For Comey, the tarmac incident and resulting publicity erased any lingering doubts about what he’d earlier considered his “crazy,” go-it-alone strategy to end the investigation without consulting Lynch or anyone else at Justice.
As he later put it, the tarmac meeting “made it easy for me” and “tipped the scales.”
On June 30, he added a paragraph to his proposed statement that made his unorthodox approach explicit:
This will be an unusual statement in at least a couple ways. First, I am going to include more detail 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.
The media furor over the tarmac meeting triggered another round of discussions inside the Justice Department about whether Lynch should step aside and hand supervision of the case over to her deputy, Yates. But doing so might only inflame the perception that she and Clinton had discussed something improper, when she insisted she hadn’t.
And although Lynch was the ultimate decision maker about whether Clinton would be charged, she had always planned to follow the recommendations of career officials at the department and Comey at the FBI.
Not everyone agreed with this approach. Newman, for one, felt Lynch should step aside, and failing to do so, while at the same time saying she’d accept whatever recommendation she got, risked trying “to have it both ways.”
But Newman was overruled, and Lynch decided to stress this element during her talk at the Aspen Ideas Festival moderated by Jonathan Capehart, a Washington Post columnist, on July 1, just a day before Clinton’s interview. Capehart asked about the tarmac meeting and whether Lynch regretted not kicking Clinton off the plane. “I certainly wouldn’t do it again,” she said of the former president’s visit.
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