Every email we recovered from all these different processes was reviewed to make an initial determination as to whether we thought it contained material that could be classified. Once that was done, the material we thought might be classified was sorted out by owner. Some of it belonged to the FBI, some to the CIA, some to the NSA, some to State, some to others. We then farmed all that material out to its origins—called its classification authority—and said, Please review and let us know if any of this stuff is classified.
That, in and of itself, became a massive endeavor: sending information out, following up, constantly asking, requesting, demanding. Responding to our requests required a significant amount of effort on the part of these other entities. They had to go back and review the old emails to try to figure out if the information was, in fact, theirs, and if it was, what was its classification status. As it turned out, none of the emails bore clear classification markings—headers, footers, or paragraph markings indicating confidential, secret, or top secret content. According to the inspector general’s report on Midyear, only a handful of emails bore paragraph markings indicating confidential content.
The human side of the case revolved around the question, What were they thinking? We had to find out each person’s intentions. Did people know they were discussing classified matters in their unclassified email exchanges with Secretary Clinton? What was the tech guy thinking when he took the data off one device, put it on another one, and then went back to the original device and reformatted it? What was some senior staffer thinking when she told the junior aide to hit Delete, Delete, Delete? What was Hillary Clinton thinking by not using her government email like every other cabinet secretary? Were people simply careless or stupid about how they handled information? Or were they trying to cover things up so Congress or anyone else couldn’t get to it—or processing and storing information in a way that was specifically designed to evade federal records-retention laws? The only way to answer such questions was by conducting interviews with people, to try to determine intent—which, again, was the key to any possible criminal charges.
Assessing intent, I would argue, is a feat just as indistinguishable from magic as drawing ones and zeroes out of the digital void and reassembling them into whole emails. And assessing intent is an FBI specialty. For more than a century, agents have been performing this feat. Sitting in rooms with witnesses, talking with them about things they’ve done and not done. Tuning out the noise. Tuning into lines of truth in people’s stories. Tracking the tells of behavior that was bad or careless, devious or dumb. Probing for statements that reveal what someone is thinking. Searching for evidence that corroborates or disproves those statements.
A Fatal Choice
At least once a week, the Midyear team had a standing meeting with the FBI’s senior leadership—Comey, his chief of staff, the Bureau’s chief counsel, and me. Midyear’s lead analyst would start by walking us through the numbers. Here’s what we’ve viewed so far. Here’s the new stuff we found in the slack space. Here’s how the agencies have responded. Here’s how many thousand emails are still out with the agencies. Here’s how many classified emails we have found on this server, here’s how many classified email strings. Here’s how many of those strings were not classified when they were written but now have been up-classified—classified in retrospect. Of those classified emails, here’s how many are confidential, how many secret, how many top secret. The level of detail was extreme.
Then Peter Strzok, the lead agent, briefed us on the interviews. Here’s who we talked to, what we expected to find, what we actually found. Here’s who’s next. But here’s the roadblock coming into view on that one. Here’s the problem we’re having with prosecutors as we try to schedule these next two witnesses.
From the time I joined the meetings on this investigation, in February 2016, the Midyear team was bridling at what they perceived to be a lack of aggression on the case among their partners at Justice. Bridling was in this team’s nature. It was a group of aggressive, determined people—typical FBI investigators. They knocked heads with Justice on many points of procedure.
Point of conflict number one: gathering evidence. In a different sort of investigation—in what some might call a normal investigation—if investigators wanted access to a device or if they wanted to seize evidence, they might serve a subpoena: You have to produce this evidence by Tuesday. In this investigation—of a candidate for president, lawyered up to here, in the middle of a campaign—Justice was mindful of the risks and wary of the tensions that might be activated by ordinary investigative techniques. The department didn’t want to risk subpoenas getting tied up in long litigation battles. It also wanted to have friendly conversations: Hey, we need to look at your client’s laptop—can we work this out? In the department’s view, negotiation would be better than compulsion in this case.
Point of conflict number two: interview techniques. In an ideal FBI world, as has been the case since long before my first partner and I went out for our very first interviews in Brighton Beach, an interview means two agents, one subject. For a big, important interview, a case under the spotlight, or in the homestretch of nailing down a prosecution strategy, it would not be unreasonable to have the assistant U.S. attorney sit in. But three’s a crowd. Midyear case interviews, in contrast, had become extravaganzas, with Barnum, Bailey, and every Ringling brother invited: two FBI agents, five attorneys, the witness, the witness’s attorney. My people would come to see me and complain—all these lawyers chill the witnesses—and then we would push back on Justice, and they would say, It’s been negotiated: They’re bringing six attorneys so we’re bringing six attorneys.
Lots of people, lots of feelings. In May, the issue came to a head over the interview with Clinton’s chief of staff, Cheryl Mills. Mills was the one who had supervised the sort on two computers that, at one point, each contained all sixty thousand emails. The interview with her was a big deal. We thought she was uniquely positioned to shed light on how the sort was done, where it was done, under what guidance and direction it was done, and steered by what intent. Was the intention simply to weed out Clinton’s private emails from the cache being turned over to Congress, or was a more nefarious purpose involved?
We had many questions for Mills. Our team was concerned about how to communicate that fact to her. From the get-go, they wanted Mills to know this was just the first of what might be several interviews. If the team had follow-up questions, it was going to require her to come back and sit down again. At the start of the interview, the team wanted to read a statement explaining that.
A day or two before the interview, the team showed me the statement. They said they were afraid to tell Justice they wanted to read it. They thought Justice would go off the deep end and force them to spend the next two weeks changing periods to commas and “happys” to “glads.” I saw their point, and I took their side. FBI agents know how to do interviews—know how to build rapport and have a conversation. FBI agents do not need to confer with lawyers to clear the language they intend to use when they introduce themselves to a witness. But that’s how pedantic Justice had gotten. Overwrought review, constant comment, six more meetings convened to converse about conversing. At the same time, the Midyear team was starting to overread Justice’s overreading, spinning it up into suspicion: Why are they doing this to us? Are they trying to slow us down?
Just do it, I told the agents—just read the statement. Get it done. If you feel you need to tell the witness you might have to talk to her again, it’s your interview, you’re conducting it, tell the witness what you need her to know.
So they did, and brought the interview to a screeching halt before it even started. Mills and her attorney had to leave the room and take a break. Consultation. Attorney came back, yelled at Justice: What is this? They all survived. Got through the interview. But the Justice team was so angry that the FBI team had done this, the next week we all had to have a follow-up meeting so everyone could air their grievances an
d apologize. That’s how fraught this thing was now. That’s how much pressure had built up on this case. At every step, everyone was aware that everything that happened could have potentially huge implications for God knew what.
The Midyear conflict between Justice and the Bureau went deeper than tactics. It was grounded in a difference between their natures. This conflict has existed for a long time. Though the Bureau represents the instrumental aspects of law enforcement, while Justice represents the ideal, both institutions are more complex than that. Each contains elements of the other’s defining characteristics. This raises the tension between them. Agents often unfairly read a Justice prosecutor’s caution as political. Similarly, prosecutors often view an agent’s intentions as overly aggressive or even reckless. And the tolerance among agents for any whiff of politics in prosecutions runs from low to zero. Politically appointed officials are not a big part of the internal FBI world. The Bureau’s only political appointee is the director, and few agents interact with that person day to day. A lot of the leadership at Justice, on the other hand, is politically appointed. Early on in Midyear, the politically appointed leadership—Attorney General Lynch and Deputy Attorney General Sally Yates—had decided not to recuse themselves. Somehow, they saw the investigation of Hillary Clinton—former First Lady and former secretary of state, current candidate for the presidency, likely nominee of the Democratic Party, who was being supported by the president of the United States, to whom they owed their jobs—as a case they could handle without prejudice. Recusal would have been a reasonable and, I would argue, better decision for those political appointees to have made. A special prosecutor could have been appointed to oversee the case, to work with the career professionals at Justice or other attorneys. It would have been an extreme choice but also a safe one. I don’t know why they didn’t do that.
Instead, they made a feckless compromise. They designated career professionals in the National Security Division as decision makers in this case but didn’t unambiguously commit to abide by those people’s decisions. The leadership at Justice chose not to be involved but also not to be recused—the worst possible choice afforded by the situation. They were not far enough removed to eliminate suspicion of partisan motivation, and not closely enough involved to exercise the active discernment that such a sensitive case demanded.
It was a fatal choice. Had there been a competent, credible special counsel running Midyear Exam independently—the way Bob Mueller’s Russia investigation has been run—I think circumstances might have been very different, and we would not have been where we ended up in July.
“Extremely Careless”
Investigation involves constant evaluation. What do I have? How does this case look? Is it getting stronger? Is it languishing? What sort of evidence do I need to build this charge or that one? The investigator steadily asks these kinds of questions. As does the prosecutor. Individually and together. On Midyear, we were having these conversations all along. With every update on the emails and the interviews. What were we seeing, what were we hearing? Were we learning anything that indicated to us a guilty state of mind—a level of intent that we could prove?
Consistently, time and time again, what the team was finding was, No, we’re not finding much of anything here. No smoking gun. No sign of any vast conspiracy to trick the House committee, the State Department, or the American people. By March or April, we all knew in what direction the investigation was heading. It was clear to the whole team.
Comey and I started having general conversations about how to proceed. The investigation had two possible outcomes. Option A would be the easy path. At the last minute, we would find evidence that, the FBI and DOJ would agree, should be put in front of a grand jury, and a charge would be pursued. An indictment would speak for itself. Option B would be the thorny path. What if we found no more evidence? After we’d looked under every rock and found nothing, what would we do? Typically, the case would be closed. Everyone would walk away quietly. Typically, out of fairness, we don’t make a public statement about not charging people. We try not to draw attention to that outcome. We keep silent, to avoid further damage to the reputations of people we’ve been investigating.
This case was different. It was public before we got it. The inspector general’s referral had been public. The world knew we had this investigation. There was nothing private about it. The attorney general and the director had publicly acknowledged it. A front-page refrain had repeated itself all through the spring: What’s the FBI finding? When will the FBI be done? So if we concluded there was no criminal case to bring, we could not just put the genie back in the bottle. We would have to somehow publicly acknowledge our decision.
How would we do that? Would we push a two-sentence press release out into the world, give no answers to the questions people would ask, let them screech and howl? Or would we do something more? Should we issue a long statement, reviewing details and spelling out a rationale for the choice not to go forward? Should it be a written memo? Should it be a speech? Who would make a speech like that? The attorney general? The FBI director? Would they do it as a duet?
A leader on the Justice team, John Carlin, pushed for Comey to be out front on this. Nobody has Director Comey’s credibility, Carlin said. Nobody can deliver a speech like Comey can. In a general way, I agreed with that logic. But I didn’t want to sign the Bureau up for all the dirty work. The signal was clear, though. Justice wanted the director to be prominently involved in the announcement, whatever form it took. Comey and I had been talking about the same thing. With his chief of staff, Jim Rybicki, and the general counsel, Jim Baker, we’d been having these same sorts of theoretical conversations about the forms that Option B could take.
Then one day, when the four of us were talking, Comey said, I’ve been thinking, I had this kind of crazy idea: What if I just went out there and did it? What if I just spelled out our conclusion for people? What if I just told them? What if I did it solo? When Comey said this, I was sitting to his right, Rybicki to his left. Our normal seating arrangement. I looked over at Rybicki and could tell without a word his reaction, which was the same as mine. Oh, my God, I thought. We don’t do that. That is not what we do. I remember looking at Comey and just kind of shaking my head, and saying, Ooofff, I don’t know, that seems like really putting us out there. That’s really abandoning tradition and practice, and could set a bad precedent. I don’t know that there’s a specific policy about that, but that’s not who we are most of the time.
Comey reacted: I know, I know, I feel the same way about it, it seems crazy—but just think about it.… He argued that we were in a situation and a fact pattern that, with even a small amount of luck, would never, ever happen to this agency again: investigating a candidate for president in the middle of the campaign for using a private email server. Umpteen investigative efforts had rendered zero prosecutable results. Comey acknowledged that announcing the null result would break with precedent. But he believed that his announcement could be a singular event.
He also doubted the Department of Justice’s credibility to make this sort of an announcement because of its half-in, half-out posture of involvement in the case. And because the attorney general had said odd things about it from the start. In September 2015, the first time Lynch and Comey discussed how they would publicly acknowledge the case, she told him not to call it an investigation. She told him to refer to it as a “matter.” This became a running joke whenever anyone at the FBI felt like Justice was dragging its feet. If someone on our side of the street felt slowed down by someone on their side of the street, someone would ask, What have we become, the Federal Bureau of Matters? The matter of the “matter” did have a serious effect on the director. It planted the question, Was the attorney general trying to minimize what we were doing? The question festered. He’d heard that the Clinton campaign was trying to avoid the word “investigation,” too.
I want to be clear. Neither Attorney General Lynch nor Deputy Attorney General Ya
tes at any time during the course of this investigation ever said or did anything that caused me to believe that they were sandbagging, obstructing, slowing down, or influencing the investigation in any way. Much less in any way based on politics. Those two officials didn’t talk about it with us. We didn’t talk about it with them. We never briefed them. Maybe they were getting information on the case from the Justice team—I don’t know. As far as we knew, they were totally hands-off.
As tends to happen, thought became action. One weekend, Comey wrote a draft statement to work up an idea of what he might say if he were to make the close-out announcement solo. On Monday, May 2, he sent it to Rybicki, Baker, and me. I read it and talked to him about it. The more I thought about the situation, the more I also believed, as Comey did, that Justice couldn’t make a statement like this—but somebody needed to. I thought it would be important that the country knew three things. What we had done, what we had found, and what we thought about it.
What we had done—people needed to know the scope and the significance of the investigative effort. What we had found—people needed to know the result of all that effort, literally the numbers of emails, numbers of classified emails. What we thought about it—people needed to know not just our conclusion, but how much study and consideration went into drawing that conclusion. We had asked Justice to go back through more than half a century of records and produce for us the results of every single prosecution for mishandling classified information. We made a comprehensive review of who had been charged, be it misdemeanor or felony; whether prosecution resulted; whether cases were dropped; whether pleas were guilty or not guilty; and what the sentences were. We knew with great specificity what it took to go forward with a case. Comey asked for all this. Justice sent a huge spreadsheet, thirty or forty pages long, with all the details on those sorts of cases over a long period of time. It showed how weak this case was compared to cases that had actually been prosecuted.
The Threat Page 19
