The Unmaking of the President 2016

by Lanny J. Davis

  Bethany McLean’s aforementioned article in the February 2017 issue of Vanity Fair was one of the most extensive, multisourced reports about the background of James Comey’s October 28 letter.7 McLean got multiple quotes, both on the record as well as those without named attribution from former prosecutors and FBI agents, showing that Giuliani and Kallstrom were friends and had worked together to put public pressure on Comey to reverse his July 2016 decision to close the Hillary Clinton criminal investigation. She also reported, as did several other investigative reporters, that Giuliani and Kallstrom worked closely with current and former FBI agents (though Giuliani subsequently denied the former) to criticize not only Comey’s nonprosecution recommendation but also the failure of prosecutors in the New York Southern District office as well as at Justice in Washington to authorize an investigation of the Clinton Foundation.

  McLean wrote,

  The disquiet within the F.B.I. [over Comey’s July 5 nonprosecution recommendation] was made public largely by James Kallstrom, head of the F.B.I.’s New York office from 1995 to 1997. He is close to former U.S. attorney (and former New York City mayor) Rudy Giuliani, about whom he says, “When I was a young agent, he was a young prosecutor. We’ve known each other for 40 years . . .” In the weeks following Comey’s July [nonprosecution of Clinton] announcement, both Kallstrom and Giuliani were all over conservative news outlets talking about the “revolution,” as Giuliani called it, among the F.B.I. rank and file, who viewed the failure to indict [Hillary Clinton] as “almost a slap in the face to the F.B.I.’s integrity.” By late September, Kallstrom was telling the Daily Beast that he had talked to hundreds of people, “including a lot of retired agents and a few on the job” who were “basically disgusted” and felt they had been “stabbed in the back.”

  McLean quoted one former prosecutor who knew Kallstrom, who said: “He is full of shit.” Another said, “The fact that a retired agent [Kallstrom] is on [Fox] TV talking about a case usually proves that he doesn’t know the first damn thing about it.”

  Ronald Hosko, who was assistant director of the FBI’s Criminal Investigative Division until he retired in 2014, seemed to be criticizing the over-ideological, pro-Trump bias of Kallstrom and other anti-Clinton agents in the New York office when he said, “Some who criticize are completely unable to divorce themselves from their political beliefs, along with their feelings about the person [Clinton].”8

  On November 4, 2016, four days before the election, the Guardian published a detailed report reinforcing the widely held understanding that the FBI’s New York office contained a cell of rabid pro-Trump and anti-Clinton agents. The headline of the article was: “ ‘The FBI Is Trumpland’: Anti-Clinton Atmosphere Spurred Leaking, Sources Say.” The opening sentence summarizes this anti-Clinton complex within the Bureau: “Deep antipathy to Hillary Clinton exists within the FBI, multiple bureau sources have told the Guardian, spurring a rapid series of leaks damaging to her campaign just days before the election.” It quoted a “currently serving FBI agent” as calling the FBI “Trumpland,” then added, Clinton is “the antichrist personified to a large swath of FBI personnel” and “the reason why they’re leaking is they’re pro-Trump.”

  Another source of anger toward the Clintons from this group of FBI agents, according to the McLean report, beyond the emails and even the Marc Rich pardon, was their own inability to persuade their superiors in Washington to authorize a criminal investigation of the Clinton Foundation. The agents, of course, attributed their failure to pro-Clinton politics at “Main” Justice. But the real reason was that the New York agents couldn’t produce a single fact to support a causal relationship between a donation to the Clinton Foundation and a favor or financial benefit in which Secretary Clinton played any role—the bare minimum needed to begin an investigation of what is, in effect, a bribery scheme. It was reported that certain New York FBI agents, especially those who were Fox News viewers, grew even angrier after the publication of Clinton Cash, by right-wing author Peter Schweizer, a known anti-Clinton ideologue who is also editor at large for Breitbart News. Schweizer’s book cites numerous examples of donors to the Clinton Foundation who, he tries to show, received a financial benefit from the State Department during Secretary Clinton’s tenure, attempting to infer a cause-and-effect relationship between the contribution to the Foundation and the benefit from the Department, i.e., a bribe. His argument, as it turns out, confuses the distinction between correlation and causation, as in the famous example of a logical fallacy: “The rooster crows, the sun rises, therefore, the rooster causes the sun to rise.”* During a Fox interview, host of Fox News Sunday Chris Wallace asked him to cite a single instance of such a causal relationship between a donor and a favorable State Department decision influenced by Hillary Clinton. He could not name a single one. Nevertheless, the FBI agents, in arguing they should begin a criminal investigation, in effect also confused correlation with causation.

  An extensive study completed by Harvard and MIT in September 2017 on the mainstream media’s bias against Hillary Clinton9 used as a case study a New York Times front-page article in April 2015, mirroring similar treatment in the Schweizer book, concerning the government-approved sale of a uranium mine to Russian interests that benefited a Clinton Foundation donor. The Times’ front-page headline read: “Cash Flowed to Clinton Foundation Amid Russian Uranium Deal.”10 The Harvard-MIT authors wrote in their report:

  Buried in the tenth paragraph of the story was this admission: “Whether the donations played any role in the approval of the uranium deal is unknown. But the episode underscores the special ethical challenges presented by the Clinton Foundation, headed by a former president who relied heavily on foreign cash to accumulate $250 million in assets even as his wife helped steer American foreign policy as secretary of state, presiding over decisions with the potential to benefit the foundation’s donors.” Needless to say, it was the clear insinuation of corruption in the headline, not the buried admission that no evidence of corruption was in fact uncovered, that made the April 2015 story one of the Times’ most tweeted stories during the summer [of 2016].

  Moreover, the study stated the Times was almost certainly wrong that “whether the donations played any role in the approval of the uranium deal was unknown.” The sale was approved by a multidepartment federal body called the Committee on Foreign Investment in the United States (CFIUS), including the Departments of State, Defense, Treasury, Homeland Security, Justice, and Commerce, and national security representatives, which unanimously approved the sale, as well as the independent U.S. Nuclear Regulatory Commission. Even the conservative Republican Utah Nuclear Regulatory Commission approved of this sale to Russia. It is implausible, to say the least, that all these departments and entities would have been influenced by donations to the Clinton Foundation. This was just one of many all-innuendo articles by the mainstream media that created an aura of corruption around Hillary Clinton regarding the Clinton Foundation—just part of the many excuses used by Donald Trump to back up his “Crooked Hillary” label, as he led his rally audiences in shouts of “Lock her up” during the campaign.

  Yet as Bethany McLean reported in Vanity Fair, it appeared that New York FBI agents would not give up pressing for a criminal investigation of the Clinton Foundation, knowing full well that such an investigation would be immediately leaked and add to the bad news/innuendo/suspicion about Hillary Clinton’s honesty that had already raised voter doubts because of the emails investigation.

  The appearance and reality of leaks from the New York office were a major reason for Comey’s decision to send the October 28 letter to Congress rather than waiting to obtain a warrant to read the emails first from Weiner’s laptop, which Comey and his associates believed would be leaked.

  As McLean reported: “ ‘There is a renegade quality to the New York F.B.I.,’ says a former prosecutor, which, he claims, can take the form of agents leaking to the press to advance their own interests or to influence an investigation. �
�New York leaks like a sieve,’ concurs another former prosecutor.”

  The irony, of course, is that in the name of law and order and the prosecution of Bill and Hillary Clinton, these FBI agents were willing to risk committing a felony—which is what an agent does when he or she “leaks” to a reporter the contents of an ongoing or prior criminal investigation.

  * * *

  When testifying before the Senate Intelligence Committee on May 3, 2017, Comey didn’t exactly tell the full story when he described the timeline of his knowledge about the Clinton emails on Weiner’s laptop. These are the words he used: “When the Anthony Weiner thing landed on me on October 27 and there was a huge—this is what people forget—new step to be taken, we may be finding the golden missing emails† that would change this case. If I were not to speak about that, it would be a disastrous, catastrophic concealment.”11

  It has already been noted that the emails on Weiner’s laptop were discovered by New York’s FBI agents investigating him on October 3. Thus it raises the question what Comey meant that it wasn’t until October 27 that the “Anthony Weiner thing landed on me.” It was not until late on October 27 that Comey met with senior FBI officials and decided to send a letter to Congress about the finding of Clinton emails, even though Comey had no information at all regarding what the emails were about or whether any of them had not already been seen prior to his July 5 nonprosecution decision.

  We still don’t know whether Comey and his colleagues in DC intentionally slow-walked the decision to obtain a warrant and do a review of the emails before notifying Congress. But what we do know with certainty is that the New York City FBI agents knew about the Clinton emails on Weiner’s laptop, even though they had not been read because the agents lacked a warrant. What also is not in dispute is that many of the New York FBI agents were openly hostile to Hillary Clinton and wanted her to lose the election. So for at least three weeks, these agents took their own sweet time before bringing this crucial, potentially history-changing information to Washington headquarters.

  Why?

  The New Yorker’s Peter Elkind asked a similar question of FBI officials in Washington: “Why hadn’t agents, who had access to [Huma] Abedin’s emails and could, presumably, see that she had forwarded two classified messages to her husband, taken the opportunity to examine his laptop much earlier, as part of the original email inquiry? If they had done so, what ensued in October might never have happened. The FBI declined to comment.” Had they not waited so long, they would have had plenty of time to obtain a warrant, review the emails, determine there was nothing to justify a new investigation, and thus no reason to send a letter to Congress.

  On April 22, 2017, the New York Times reported that Comey and the leadership of the FBI had assumed that the email review would take many weeks or months. Michael B. Steinbach, the former senior national security official at the FBI who worked closely with Comey, told the Times, “If we thought we could be done in a week, we wouldn’t say anything.”12

  According to Peter Elkind, “Given the number of Clinton-related messages on Weiner’s laptop (the FBI had identified 49,000 as ‘potentially relevant’) [far fewer than the original estimate of six hundred thousand leaked by the New York investigators and widely published in the media], no one felt confident promising the FBI director that they could be examined in time. ‘I was thinking, I hope we can get this done in a couple of months,’ Steinbach told me.”

  In the next chapter, we will return to this bogus framing of just two choices by Comey, as reflected by Steinbach and other advisers. The choice wasn’t between sending a letter to Congress on October 28 and doing nothing.

  Later Elkind reported that when they made the attempt, they discovered it was relatively easy to pare down the thousands of emails and complete the review in a matter of days.

  The government obtained its search warrant on Sunday, Oct. 30, two days after Comey’s letter, and agents immediately began scouring a copy of Weiner’s hard drive, which an agent had carried to Washington from New York. . . . FBI agents had told their bosses that reviewing the new emails would take them well past Election Day. But, as the 10-member team began working around the clock, the process quickly accelerated. The FBI agents rapidly ruled out huge batches of messages that weren’t work-related, ‘de-duped’ thousands of emails they’d seen before, and isolated the relative few—about 6,000, according to Comey [other estimates were about 3,000]—that required individual scrutiny. Potentially classified emails went to analysts for review.13

  So here is the one clear conclusion: Had Comey been promptly informed and then promptly sought a warrant, there would have been sufficient time to review all Clinton’s emails on Weiner’s laptop and conclude in October—rather than two days before the election—that there was nothing new to justify opening a new investigation. The crucial, history-changing consequence is that had Comey and the FBI moved expeditiously, there would have been no Comey letter to Congress on October 28, and thus Hillary Clinton, according to all the data detailed in Chapter Eight, would have won the presidency.

  * * *

  In January 2017, Michael E. Horowitz, inspector general of the U.S. Justice Department, announced an independent investigation of Comey and the FBI for their overall handling of the Clinton emails investigation. Whether Comey ever communicated with Giuliani during this critical three-week time period prior to the October 28 letter should be a crucial fact to be investigated by Justice Department IG Horowitz as part of his investigation. Also, Horowitz should ask other agents in the New York office whether they ever talked to Giuliani or Kallstrom during this period or to former agents who could play the role as cutouts to leak to Giuliani, to allow him to go on Fox or other right-wing media to build pressure on Comey.

  Let’s look at the public statements made by Giuliani on TV (mostly on Fox & Friends) and radio in the three days before Comey’s letter to Congress, which certainly leaves a strong inference that he was the recipient of leaked information.‡

  October 25: Giuliani tells Fox & Friends, in the context of a lengthy discussion about the FBI investigation into Clinton’s email server, that “surprises” should be expected in the closing days of the campaign from the Trump campaign and perhaps from others. When the host, Brian Kilmeade, asks if Trump has anything planned in the fourteen days before the election, Giuliani says yes—and then laughs, “ha, ha, ha,” in a way that can only be described as strange, almost maniacal. “You’ll see. . . . We’ve got a couple of surprises left.” Later in the interview, he seems to imply he is referring to the FBI’s Clinton investigation. Giuliani just smiled when someone on the Fox panel mentioned the FBI as the possible source of the October surprise.

  October 26: Unprompted, as Fox News guest host Martha MacCallum is trying to end her interview of him, Giuliani says of Trump: “He’s got a surprise or two that you’re going to hear about in the next few days. I’m talking about some pretty big surprises.”

  October 28: Before the Comey letter has been publicly released, Giuliani goes on the Lars Larson radio program and says that he was the recipient of leaked information from current FBI agents, information which, with the events of the day, clearly appears to be about the Weiner/Clinton emails investigation. As CNN reported, “The former mayor said he was in contact with former agents ‘and a few active agents, who obviously don’t want to identify themselves.’ ”

  That same morning, Giuliani was on Fox & Friends, appearing to confirm he had inside knowledge concerning the allegedly reopened emails investigation, from leaks within the FBI or from “former” FBI agents. “To tell you the truth I thought it was going to be three or four weeks ago.” Then he walks back his earlier statements implying he was told about what was coming not by current FBI agents. “I heard about it from the former FBI agents,” he says now. So Giuliani seems to admit that he first heard about the discovery of the Clinton emails on Weiner’s computer “four weeks ago”—just a few days after September 26, when the first Clinton email
s were discovered.

  November 4: On Fox & Friends, Giuliani is asked about prior knowledge of Comey’s letter to Congress and the “reopening” of the Clinton emails investigation. This time he is less discreet, although he is more careful to refer to “former” FBI agents rather than “active” ones: “Did I hear about it? You’re darn right I heard about it, and I can’t even repeat the language that I heard from the former FBI agents.”

  That same day, on CNN, Giuliani continues to walk back his original story, perhaps after realizing he has put active FBI agents and even himself at legal risk. He tries to persuade Situation Room host Wolf Blitzer that he didn’t really mean it when he explicitly told Lars Larson on October 28 that he received information from “active” (current) FBI agents. He now claims he had “no heads-up” on Comey’s letter, despite all evidence and logic to the contrary. He explains he was really referring to foreknowledge about a Trump ad campaign, although he doesn’t say that the campaign ad he had in mind was about Comey’s new Clinton emails investigation. (Indeed, there was no evidence that any such ad was ever created.) He also claims (not under oath, of course) that he hasn’t talked to any current FBI agents in ten months.14

  A November 4 story by Sophia Tesfaye on Salon.com summarized it all succinctly with this headline: “Rudy Giuliani Is Now Openly Boasting That the Trump Campaign Got Advance Notice of James Comey’s Letter,” with the sub-headline, “The Trump campaign isn’t even bothering to hide its ties to the FBI at this point.”

  Several Democratic members of Congress called for an investigation of these leaks. Congressmen Elijah E. Cummings (D-MD) and John Conyers (D-MI) wrote: “These unauthorized and inaccurate leaks from within the FBI, particularly so close to a presidential election, are unprecedented.”15