A Higher Loyalty

by James Comey

  Nearly two decades later, on his final day in office, President Clinton had issued Rich a highly unusual pardon. It was unusual because the pardon was given to a fugitive, which was, to my knowledge, unprecedented. It was also unusual, and suspicious, because it had not gone through the normal review process at the Department of Justice. The pardon had only been seen by then–Deputy Attorney General Eric Holder, who, without seeking input from the prosecutors or agents who knew the case, cryptically told the White House he was “neutral, leaning positive.” The New York Times editorial board called the pardon “a shocking abuse of federal power.” Amid allegations the pardon had been issued in exchange for promises of contributions by Marc Rich’s ex-wife to Bill Clinton’s presidential library, my predecessor as United States Attorney in Manhattan, Mary Jo White, had opened an investigation focused on whether there was evidence of a corrupt bargain. When I became United States Attorney in January 2002, I inherited the investigation, which had been the subject of media stories.

  I knew something about the case because I had actually been in charge of the fugitive hunt for Marc Rich when I was a federal prosecutor in Manhattan a decade earlier. Rich was then represented by prominent lawyers, among them Scooter Libby, well before his tenure as Dick Cheney’s chief of staff. In 1992, I flew to Zurich with other law enforcement officials for what we were told by Rich’s attorneys would be negotiations for his surrender. According to his lawyers, Rich would turn himself in once he saw that his prosecutors were honorable people. Along with my boss, United States Attorney Otto Obermaier, I met Rich and Pincus Green in the presidential suite of a grand hotel overlooking Lake Zurich to make arrangements for them to surrender in New York. That was when we discovered that Rich actually had no intention of surrendering without first negotiating a deal that promised him no prison time. He went into a long discourse about his charitable works and the merits of his case, saying, “I don’t want to spend a day in jail.” Obermaier replied, “We won’t make that promise.” He explained that we would not negotiate cases with fugitives and Rich was welcome to make all these arguments after he had appeared in federal court in Manhattan. We had no power under Swiss law to arrest him, so we left Switzerland and continued our efforts to capture Rich when he traveled.

  Bill Clinton ended that fugitive hunt with a stroke of his pen. Now I was the United States Attorney investigating whether that pen stroke had been bought. I could see why that would have made Senator Clinton feel awkward about meeting me. In the end, we did not find sufficient evidence to bring any charges and closed the case. Our paths, I assumed, were unlikely to cross again.

  * * *

  On July 6, 2015, the Bureau received a referral from the inspector general of the intelligence community, a congressionally created independent office focused on finding risks and vulnerabilities across the nation’s vast intelligence community. The referral raised the issue of whether Secretary of State Hillary Clinton had mishandled classified information while using her personal email system. On July 10, the FBI opened a criminal investigation. The Obama administration’s Justice Department, then run by Attorney General Loretta Lynch, assigned prosecutors to support the investigation. As with hundreds of other investigations, the case was opened at the FBI far below my level, and I learned of it when the deputy director briefed me on it.

  The facts of the case were straightforward: Hillary Clinton had used her personal email system, on a server and with an email address that was entirely of her own creation, to conduct her work as secretary of state. She set the server up several months after taking office. For the first few months of her tenure, she had used a personal AT&T BlackBerry email address before switching to a Clintonemail.com domain. In the course of doing her work, she emailed with other State employees. In the course of emailing those people, the inspector general discovered, she and they talked about classified topics in the body of dozens of their emails.

  Though much has been made since of Hillary Clinton’s emails and the FBI’s investigation, the focus of the Bureau’s investigation is often lost. The criminal investigation was not centered on the fact that Secretary Clinton decided to use nongovernmental email to do her work. In an attempt to blur the seriousness of the case, her defenders often cite the fact that one of her predecessors, Colin Powell, also used nongovernmental email, in his case AOL, as if that were relevant to the investigation. In fact, it entirely misses the point. I have never seen any indication that Powell discussed on his AOL account information that was classified at the time, but there were numerous examples of Secretary Clinton having done so.

  Our investigation required us to answer two questions. The first question was whether classified documents were moved outside of classified systems or whether classified topics were discussed outside of a classified system. If so, the second question was what the subject of the investigation was thinking when she mishandled that classified information.

  Information is classified based on its potential for harm to the United States if it is disclosed. Information marked at the lower classification level of “Confidential” refers to information that can cause some damage to the security of the United States if released. Information labeled “Secret” refers to material expected to cause “serious” damage to national security. “Top Secret” information is material that, if disclosed, could be expected to cause “exceptionally grave” damage to the security of the United States. This system is enforced by a variety of possible administrative punishments, including possible loss of a person’s security clearance or loss of their job. For the most serious cases, criminal prosecution is a possibility. A variety of espionage statutes make it a felony to steal or to disclose national security information to people not permitted to receive it. Those statutes are used most often when someone is a spy or gives classified information to journalists for publication. More commonly used is a statute making it a misdemeanor—punishable by up to a year in jail—to mishandle classified information by removing it from appropriate facilities or systems. Even with the misdemeanor, the Department of Justice has long required that investigators develop strong evidence to indicate government employees knew they were doing something improper in their handling of the classified information.

  In Secretary Clinton’s case, the answer to the first question—was classified information mishandled?—was obviously “yes.” In all, there were thirty-six email chains that discussed topics that were classified as “Secret” at the time. Eight times in those thousands of email exchanges across four years, Clinton and her team talked about topics designated as “Top Secret,” sometimes cryptically, sometimes obviously. They didn’t send each other classified documents, but that didn’t matter. Even though the people involved in the emails all had appropriate clearances and a need to know, anyone who had ever been granted a security clearance should have known that talking about top-secret information on an unclassified system was a breach of rules governing classified materials. Although just a small slice of Clinton’s emails, those exchanges on top-secret topics were, by all appearances, improper. Put another way, there were thirty-six email chains about topics that could cause “serious” damage to national security and eight that could be expected to cause “exceptionally grave” damage to the security of the United States if released. The heart of the case, then, was the second question: What was she thinking when she did this? Was it sloppy or was there criminal intent? Could we prove that she knew she was doing something she shouldn’t be doing?

  Knowing and proving what is in someone’s head is always a hard task. At the front of my mind from the start of this investigation was the recent case of former CIA Director David Petraeus, which had concluded only a few months earlier. In 2011, Petraeus had given multiple notebooks containing troves of highly sensitive, top-secret information to an author with whom he was having an affair. In contrast to those Hillary Clinton corresponded with, the author did not have the appropriate clearance or a legitimate need to know the information, which included
notes of discussions with President Obama about very sensitive programs. Petraeus was the CIA director, for heaven’s sake—in charge of the nation’s secrets. He knew as well as anyone in government that what he did was wrong. He even allowed the woman to photograph key pages from classified documents. And then, as if to underscore that he knew he shouldn’t do what he did, he lied to FBI agents about what he had done. Despite all of this clear and powerful evidence, on facts far worse for him than for Secretary Clinton, and after he demonstrably lied to the FBI, the Department of Justice charged him only with a misdemeanor after he reached a plea-bargain agreement. In April 2015, he admitted guilt and agreed to a forty-thousand-dollar fine and probation for two years.

  The misdemeanor charge Petraeus received for mishandling classified material was reasonable and consistent with past cases, but I argued strongly to Attorney General Holder that Petraeus also should be charged with a felony for lying to the Bureau. Replaying in my mind the Martha Stewart, Leonidas Young, and Scooter Libby cases, I argued that if we weren’t going to hold retired generals and CIA directors accountable for blatantly lying during investigations, how could we justify jailing thousands of others for doing the same thing? I believed, and still believe, that Petraeus was treated under a double standard based on class. A poor person, an unknown person—say a young black Baptist minister from Richmond—would be charged with a felony and sent to jail.

  Despite the endless drumbeat in the conservative media, filled with exaggerated scandals and breathless revelations of little practical import, Hillary Clinton’s case, at least as far as we knew at the start, did not appear to come anywhere near General Petraeus’s in the volume and classification level of the material mishandled. Although she seemed to be using an unclassified system for some classified topics, everyone she emailed appeared to have both the appropriate clearance and a legitimate need to know the information. So although we were not going to prejudge the result, we started the Clinton investigation aware that it was unlikely to be a case that the career prosecutors at the Department of Justice would prosecute. That might change, of course, if we could find a smoking-gun email where someone in government told Secretary Clinton not to do what she was doing, or if we could prove she obstructed justice, or if she, like Petraeus, lied to us during an interview. It would all turn on what we could prove beyond a reasonable doubt, a very different standard from that of television talk shows or Congressional sound bites.

  Washington being a tribal city, prominent Republicans immediately and predictably began chanting that the Obama administration couldn’t be trusted to investigate the Democratic Party’s presidential front-runner and a former official in the Obama administration. Many Republicans, prodded by self-appointed legal and investigative experts on their favored media outlets, and often reacting to inaccurate or misleading news reporting, seemed certain the former secretary of state had committed the worst crimes since the Rosenbergs gave our nuclear secrets to the Russians in the 1950s and were executed for it. The Democrats, in turn, were dismissive of the case from the outset, claiming the examination of the emails wasn’t even an “investigation” but merely a “review” or some other tortured euphemism.

  Under intense pressure from the Clinton presidential campaign, The New York Times walked back a story, published on July 23, 2015, reporting that the Justice Department was considering opening a criminal investigation into Clinton’s handling of her emails. As a result of the Clinton team’s tenacious pushback, the Times appended two separate corrections to its original article—first claiming that Mrs. Clinton herself was not the focus of any investigation and then, a day later, changing the description of the inspector general’s transmission to the FBI from “criminal referral” to “security referral.” Though the Times may have thought those clarifications were necessary, their original story was much closer to the mark. It was true that the transmission to the FBI from the inspector general did not use the word “criminal,” but by the time of the news story we had a full criminal investigation open, focused on the secretary’s conduct. We didn’t correct the Times and contradict the Clinton campaign because—consistent with our practice—we were not yet to a point where it was appropriate to confirm an investigation. Still, the bitterly fought episode, parsing word choices, was only a small taste of what was to come, and many within the FBI knew it.

  * * *

  “You know you are totally screwed, right?”

  The FBI deputy director in the summer of 2015 was a plainspoken, smart, and darkly funny career special agent named Mark Giuliano.

  I smiled tightly. “Yup,” I said. “Nobody gets out alive.”

  This of course was not my first time in the middle of something guaranteed to antagonize, even outrage, some very powerful people. In a way I couldn’t have imagined then, Martha Stewart, Scooter Libby, Stellar Wind, and the Bush administration’s torture policy were all preparation for what lay ahead. Under great pressure in all those situations, we had tried to push outside voices aside, and to follow the law and the facts. Even in hindsight, I still thought we had done the right thing.

  The Clinton investigation, or inquiry, or referral, or whatever people on either side of the political spectrum chose to call it, was already a major topic in the emerging presidential campaign. Giuliano’s point, which I saw clearly, was that this was a no-win scenario for the FBI. At the core of Mark’s gallows humor was a gallows. No matter what the honest outcome, the institution’s credibility—and mine—would be damaged; the only question was how much. As strange as it might sound, there is a certain freedom in being totally screwed, in knowing you will be attacked no matter what you do. Half the country will howl either way, so tune out the critics and let only the facts and the law dictate which half. At the time, of course, it never occurred to me that our decisions could outrage both halves.

  To handle the case, the FBI’s Counterintelligence Division brought together a group of about twenty experts—made up of agents, analysts, and support personnel. As the division normally did, they gave the case an obscure code name: Midyear Exam. The group I regularly dealt with about Midyear ranged from the senior-most FBI executives to the supervisory agent and analyst supervising the case together day-to-day, and included lawyers from three different levels in the general counsel’s office. I frequently referred to this collection of twelve people as “the Midyear team.” I didn’t meet with the “line-level” agents, analysts, and support folks except to periodically thank them for their hard work.

  Over the next eighteen months, I relied on the twelve-member Midyear team to help me make decisions on the case—though the ultimate decisions would be mine. Some members moved in and out as a few senior executives retired, but the group remained a collection of very bright people with strong personalities, who frequently clashed with one another, as siblings might. I liked that. One of the junior lawyers was given to exhaling in disgust at statements she didn’t like and then interrupting aggressively, no matter who was speaking. This annoyed many of her colleagues. I loved it. I wanted her on the team because I knew she didn’t care about rank at all. Her directness added value even when she was wrong. I wanted to hear her perspective and knew it would come without prompting, even if she interrupted a senior official to offer it. That interruption would stimulate great conversation.

  Each of my advisers undoubtedly had their own political opinions and views. They were human beings, after all. They also had spouses, friends, or family members who had their own points of view as well. But I didn’t know what those views were. I never heard anyone on our team—not one—take a position that seemed driven by their personal political motivations. And more than that: I never heard an argument or observation I thought came from a political bias. Never. Instead we debated, argued, listened, reflected, agonized, played devil’s advocate, and even found opportunities to laugh as we hashed out major decisions. I ordered the team to keep me closely informed so I could make sure the investigators had all the resources they needed
and all possible protection from outside pressure. And so I could make all the major decisions, which was ultimately my job.

  The first decision that had to be made was whether to talk about the case publicly. As was customary, the FBI refused to confirm the existence of any investigation concerning Secretary Clinton’s email usage after we opened it that July. But by late September 2015, almost three months into the case, that “no comment” seemed increasingly silly. The investigation, after all, had started with a public referral from an inspector general. The campaigns themselves and both parties in Congress were talking about our work. Agents were out doing interviews with people connected to the case and interacting with people who could, and did, tell the press about it. Congress also wanted some on-the-record assurance that we were looking into the issues, especially because the press was clamoring.

  Department of Justice and FBI policies contained established exceptions to our no-comment policy, for investigations of extraordinary public interest or where our investigative activity is apparent to the public. We had already utilized this exception a number of times in my tenure as director, confirming a criminal investigation into whether there had been unlawful targeting by the IRS of so-called Tea Party political organizations, as well as confirming a criminal civil rights investigation in Ferguson, Missouri. In each of those situations, as in many others during my career, the department made a judgment that the public needed to be assured that law-enforcement professionals were investigating those controversial cases.

  As it happened, Attorney General Loretta Lynch and I had scheduled appearances with reporters at the beginning of October where it was obvious that we each would be pressed on whether the Justice Department was acting on the referral we’d received from the intelligence community inspector general. If we were going to confirm an investigation, I thought this would be a sensible time to do it. So, in late September, I scheduled a meeting with the attorney general to discuss this possibility. The senior leadership of DOJ and the FBI also attended the meeting, which was held in a conference room in the Justice Department’s Command Center.