A Higher Loyalty: Truth, Lies, and Leadership

by James Comey

  Attorney General Lynch agreed that it made sense to do that. But then she quickly added, “Call it ‘a matter.’”

  “Why would I do that?” I asked.

  “Just call it ‘a matter,’” came her answer.

  It occurred to me in the moment that this issue of semantics was strikingly similar to the fight the Clinton campaign had waged against The New York Times in July. Ever since then, the Clinton team had been employing a variety of euphemisms to avoid using the word “investigation.” The attorney general seemed to be directing me to align with that Clinton campaign strategy. Her “just do it” response to my question indicated that she had no legal or procedural justification for her request, at least not one grounded in our practices or traditions. Otherwise, I assume, she would have said so.

  The FBI didn’t do “matters.” The term means nothing in our language, and it was misleading to suggest otherwise. It was probably a mistake that I didn’t challenge this harder. But in that moment, I decided that her request was too frivolous to take issue with, especially as my first battle with a new boss. I also was confident the press, and the public, would totally miss the distinction between a “matter” and an “investigation” anyway. Maybe she knew that, too. I know the FBI attendees at our meeting saw her request as overtly political when we talked about it afterward. So did at least one of Lynch’s senior leaders. George Toscas, then the number-three person in the department’s National Security Division and someone I liked, smiled at the FBI team as we filed out, saying sarcastically, “Well, you are the Federal Bureau of Matters.”

  I followed the attorney general’s direction at my regular quarterly press roundtable on October 1, 2015. When a reporter asked a question about the “investigation,” I replied that I was following it closely. I said I was confident we had “the resources and the personnel assigned to the matter, as we do all our work, so that we are able to do it in a professional, prompt, and independent way.”

  I did what my boss ordered me to do. I said “matter.” As expected, the press uniformly missed the distinction and reported that I had confirmed the existence of an investigation. From then on, I called it by its true name—we had an open “investigation” and I wouldn’t comment on it any further. Until I had to, many months later.

  * * *

  The Midyear Exam investigators worked hard all winter, digging for evidence that would help us determine what Secretary Clinton was thinking when she set up her email system and when she used it. They read every email they could find, they searched for emails in the mailboxes of others she might have written to, they tracked down the people who created her system, maintained it, and supplied her mobile devices, and they interviewed everyone who worked around her at the State Department. The supervisory investigator and analyst met with me about every two weeks to update me on their team’s work, much of which involved painstaking reconstruction of electronic records. For example, agents found a decommissioned server that had once hosted her personal email domain, but the email software had been removed by technical personnel as a routine matter when the server was replaced, which was like dropping millions of tiny email fragments into the bottom of the server. With incredible, painstaking skill, the FBI team put much of that mind-boggling jigsaw puzzle back together.

  Still, by early 2016, it was starting to look like we did not have a prosecutable case. We had more work to do, and needed to interview Secretary Clinton—something the investigators, as was typical in cases like this, were saving for late in the investigation, after we had gathered all available information. But so far we had not found evidence that would form a prosecutable case. We knew that the Department of Justice would never bring—and had never brought—criminal charges in such a situation without strong evidence that the subject of our investigation knew she was doing something she shouldn’t be doing. Accidents, sloppiness, and even extreme carelessness with regard to classified information were not things that were prosecuted. Ever. For a current government employee, of course, there would be severe consequences for such carelessness, including the real possibility of losing access to classified information or getting fired, but there would be no criminal prosecution.

  If the investigation continued on the same trajectory, the challenge was going to be closing the case in a way that maintained the confidence of the American people that their justice system was working in an honest, competent, and nonpolitical manner. We’d never convince extreme Clinton haters in the news media of that, of course, but hopefully we could persuade a majority of fair- and open-minded Americans.

  But in early 2016, there was a development that threatened to challenge that effort significantly. A development still unknown to the American public to this day. At that time, we were alerted to some materials that had come into the possession of the United States government. They came from a classified source—the source and content of that material remains classified as I write this. Had it become public, the unverified material would undoubtedly have been used by political opponents to cast serious doubt on the attorney general’s independence in connection with the Clinton investigation.

  I, for one, didn’t see any instance when Attorney General Lynch interfered with the conduct of the investigation. In fact, I had not spoken to her about the case at all since our “call it a matter” conversation in late September. Though I had been concerned about her direction to me at that point, I saw no indication afterward that she had any contact with the investigators or prosecutors on the case. But it bothered me that there was classified information that would someday become public—likely decades from now—and be used to attack the integrity of the investigation and, more important, call into question the independence of the FBI.

  Contributing to this problem, regrettably, was President Obama. He had jeopardized the Department of Justice’s credibility in the investigation by saying in a 60 Minutes interview on October 11, 2015, that Clinton’s email use was “a mistake” that had not endangered national security. Then on Fox News on April 10, 2016, he said that Clinton may have been careless but did not do anything to intentionally harm national security, suggesting that the case involved overclassification of material in the government. President Obama is a very smart man who understands the law very well. To this day, I don’t know why he spoke about the case publicly and seemed to absolve her before a final determination was made. If the president had already decided the matter, an outside observer could reasonably wonder, how on earth could his Department of Justice do anything other than follow his lead? The truth was that the president—as far as I knew, anyway—had only as much information as anyone following it in the media. He had not been briefed on our work at all. And if he was following the media, he knew nothing, because there had been no leaks at all up until that point. But his comments still set all of us up for corrosive attacks if the case were completed with no charges brought.

  In early spring, as I began to see the end of the investigation coming with insufficient evidence to support a prosecution, I urged the deputy attorney general—my immediate boss—to give thought to what the endgame might look like if the case were to be closed without charges. Sally Yates was a career prosecutor whom I had known casually for years. She and one of my close friends had been federal prosecutors together in Atlanta, where she earned a reputation as tough, thoughtful, and independent. Everything I saw as FBI director was consistent with that reputation. Because this was not a normal case, and 2016 was not a normal year, I suggested to Yates that unusual transparency might be necessary to reassure the American people and to protect the institutions of justice. I said I hoped she would put people to work researching what was possible under the law. I never heard back.

  Any investigator or prosecutor who doesn’t have a sense, after nearly a year of investigation, where their case is likely headed, is incompetent. Prosecutors routinely begin drafting indictments before an investigation is finished if it looks likely to end up there, and competent ones also begin thinking ab
out how to end investigations that seem likely to end without charges. In neither case are minds closed to a different outcome if subsequent evidence dictates, but competent people think ahead.

  One weekend in early May, I typed a draft statement laying out the findings of this case with the most aggressive transparency possible assuming the investigation ended in the current position. Unless we suddenly found a smoking-gun email or directive clearly pointing to Clinton’s intent, or unless she lied to us in an FBI interview, both of which were possibilities, this was the way I expected the case to end. In such a poisonous political environment, I knew we needed to think far in advance how best to present our decision. Many changes were made to those early drafts. I tried out different ways to most accurately describe the nature of Secretary Clinton’s conduct. Her actions in regard to her emails seemed really sloppy to us, more than ordinary carelessness. At one point the draft used the term “grossly negligent,” and also explained that in this case those words should not be interpreted the way a hundred-year-old criminal statute used the term. One part of that 1917 law made it a felony if a person “through gross negligence permits [classified material] to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.”

  The history of that provision strongly indicated that Congress in 1917 meant the statute to apply only to conduct that was very close to willful—that is, driven by bad intent—and members of Congress who voted for it back then were very concerned that they not make merely careless behavior a felony. I was told that the Department of Justice had only charged one person under this statute since 1917—a corrupt FBI agent whose conduct was far worse than gross negligence—and no one had ever been convicted under it. This context strongly reinforced my sense that the statute simply did not apply in the Clinton email case and made use of the term “grossly negligent” inappropriate and potentially confusing, given the old statute. So I directed our team to consider other terms that more accurately captured her behavior. After looking at multiple drafts, I settled on “extremely careless” as the best way to describe the conduct.

  I gave my draft statement to senior FBI personnel and asked them to think about three things: the accuracy of the facts laid out in the draft; any policy or other limitations around making such a statement; and the wisdom and mechanics of presenting it to the American people. This was the farthest I could imagine us going. I have made no final decision, I said, but let’s use this draft to start our discussions. What is possible under the law? What makes sense? If we were going to provide some kind of public statement, how would we do it? Standing with the attorney general? In some kind of written report to Congress? Alone? Let’s talk about it.

  The FBI leadership team chewed on it, marked it up, debated it, and slept on it. I wanted as much feedback as possible, with one big exception: to protect the FBI’s independence if necessary down the line, I didn’t want the Department of Justice to know what we were doing. The most aggressive step to demonstrate the independence of our investigation would be for the FBI to announce something without involving the Justice Department at all. I didn’t know whether that made sense—and at times the idea struck me as crazy—but this would no longer be even a theoretical option if we told anyone at Justice about our deliberations. They might well direct me not even to consider such a thing, and I would be bound to follow that order, as I had when ordered to call it “a matter.” So we kept it inside the FBI and continued debating it as the investigation moved toward the final step—interviewing Hillary Clinton.

  But at that point the investigation got bogged down. A big issue in the case, and in the public debate over the case, was Secretary Clinton’s process for deciding which of her emails to return to the State Department after State requested she turn over work-related emails. By her account, there were about sixty thousand total emails on her personal server as of late 2014, when State asked for the work emails. The secretary’s personal lawyers reviewed those emails, producing about half of them and deleting the rest. I, and the entire FBI Midyear team, believed our investigation would not be credible if we did not dive into that culling process. We weren’t just going to take their word for it. We needed to know firsthand how the lawyers made those decisions and we wanted to see the devices they used so our experts could look for traces of the deleted emails.

  For understandable reasons, this made the Justice Department lawyers very nervous. The laptops that the Clinton lawyers used to review Secretary Clinton’s emails also contained their work for other clients. Our examination of those laptops could potentially violate the attorney-client privilege and attorney work-product protections, not just for their client Hillary Clinton but for other, unrelated clients as well. The attorney representing Clinton’s lawyers, Beth Wilkinson, was talking tough to the Justice Department: there was no way she and those lawyers were going to talk about work for a client, and no way they were going to produce their laptops so the FBI could look at them. That was something that Wilkinson intimated she would fight until the bitter end. FBI General Counsel Jim Baker knew Wilkinson, so I asked him to speak to her and emphasize our determination to get those laptops. He did so, and she promptly told the Department of Justice lawyers the FBI was going around them. A chill descended on the relationship between the FBI and the department attorneys.

  We were at an impasse. The FBI could not, with a straight face, tell the American people we had done a competent investigation if we didn’t move heaven and earth to understand that email review and deletion process. It didn’t matter to us that it involved her lawyers. I would not agree to complete the investigation without seeing those laptops and interviewing those lawyers. Period. If Secretary Clinton wanted to still be under criminal investigation for the next two years, fine. Despite the force of that argument, by mid-May, we still had not gotten access to the laptops. We faced the real prospect of the investigation going on into the summer and after the political conventions, when the presidential candidates would be nominated.

  In May, I went to Sally Yates and told her this was dragging on too long. We were now weeks from the conventions and I was close to the point where I was going to recommend the appointment of a special prosecutor. My predecessors had done that from time to time, most prominently when Director Louis Freeh recommended in writing that the attorney general appoint one to investigate then–President Bill Clinton’s fund-raising activities. I said that soon it would be too late for this Department of Justice to complete the investigation without grievous damage to public faith in our work. It would require a prosecutor outside the control of the political leadership of the department. I didn’t know the date I would recommend such a thing, I said, but we were getting close, unless we got those laptops.

  Yates understood. I don’t know what she did, but almost immediately the Midyear team could feel an injection of energy and backbone into the junior lawyers at the Justice Department. Suddenly they were hell-bent on getting those laptops. Within a week or two, the lawyers had negotiated a deal that got us what we needed—the physical laptop devices and interviews of the lawyers who used them to sort Clinton’s emails. I don’t know how they convinced the private lawyers to make the deal, because the FBI was not involved in the negotiations. We got the access we wanted and found nothing that changed our view of the case, but I was now satisfied that we had done what a credible investigation required.

  While all this wrestling over the lawyer laptops was going on, I spent June still struggling with what I thought was the endgame. How do we close the Clinton email case—six weeks before the Democratic Convention—in a way that maximizes public confidence that the institutions of justice have acted justly? Two things happened that brought me back to the crazy idea of personally offering the American people unusual transparency, and doing it without the leadership of the Justice Department.

  First, in mid-June, the Russian government began dumping emails stolen from institutions associa
ted with the Democratic Party. It began with entities calling themselves DCLeaks and Guccifer 2.0. They were stolen emails intended to harm Clinton and the Democrats. This made very real the prospect that the classified material relating to Loretta Lynch might drop at any moment, not decades from now. As noted earlier, the release of that material, the truth of which we had not verified, would allow partisans to argue, powerfully, that the Clinton campaign, through Lynch, had been controlling the FBI’s investigation.

  Then, on Monday, June 27, on a hot Phoenix airport tarmac, Bill Clinton and Attorney General Lynch met privately aboard an FBI Gulfstream 5 jet for about twenty minutes. When I first heard about this impromptu meeting, I didn’t pay much attention to it. I didn’t have any idea what they talked about. But to my eye, the notion that this conversation would impact the investigation was ridiculous. If Bill Clinton were going to try to influence the attorney general, he wouldn’t do it by walking across a busy tarmac, in broad daylight, and up a flight of stairs past a group of FBI special agents. Besides, Lynch wasn’t running the investigation anyway. But none of these basic realities had any impact on the cable news punditry. As the firestorm grew in the media, I paid more attention, watching it become another corrosive talking point about how the Obama Justice Department couldn’t be trusted to complete the Clinton email investigation.