Deep State

by James B. Stewart

  As far as why she did it, “I thought it would be easier to carry just one device for my work and for my personal emails instead of two,” she maintained. (At the time, the BlackBerry phone used by Clinton didn’t accommodate multiple email accounts.)

  This did little to satisfy skeptics, who wasted little time in pointing out that Clinton had been seen publicly juggling multiple devices, including an iPad. And the explanation came too late, days after conspiracy theories were already taking root. As one Clinton staff member told the website Politico, “It took eight days to provide a pretty straightforward simple answer. All of us thought, why didn’t you give that [answer] a day and a half after?”

  The bad publicity did nothing to deter Clinton. A month later, on April 12, she made official what had been obvious: she was running for president, again. She had few serious challengers. (Bernie Sanders was widely dismissed as a socialist crank.) But ominously, nearly every article about her announcement mentioned the email affair.

  By comparison, the field of Republican contenders was packed, with the former Florida governor Jeb Bush seen as the likely front-runner. Donald J. Trump announced his campaign from the marble steps of Trump Tower on June 16. Few took the real estate mogul, self-proclaimed billionaire, and reality TV star all that seriously. The Times called his bid an “improbable quest” and his winning the nomination a “remote prospect.” The Washington Post said he faced “an uphill battle to be taken seriously.”

  The next day, Loretta Lynch, the U.S. attorney for the Eastern District of New York in Brooklyn, attended a swearing-in ceremony as attorney general, the first African American woman to hold the position. Unlike Eric Holder, whom she replaced, Lynch wasn’t a close friend or confidante to Obama. Both she and Comey spoke on June 17 at a packed ceremony in the Great Hall of Justice honoring David Margolis’s fifty years in the department.

  Margolis, at seventy-five the longest-serving lawyer in the department, was a deputy attorney general who had long served as the conscience of the department and guardian of its independence, under both Democratic and Republican appointees. He bristled at any hint of political interference while often taking the political heat for difficult decisions. He was equally well known for his keen intelligence, garish attire, and sense of humor. Asked once by a congressman how many people worked at the Justice Department, he’d replied, “About 60%.”

  Comey had spoken at Margolis’s fortieth anniversary, too, and this time he dressed up for the occasion, wearing a bold magenta checked shirt, a mismatched striped tie, and a rumpled jacket. While he lampooned Margolis for his sartorial taste and table manners, he said he always threw Margolis the “hairballs,” the most vexing problems, and praised him as the guardian of the department’s reservoir of public trust.

  Meanwhile, the Clinton email affair had attracted the interest of numerous congressional committees overseeing national security, all concerned that classified information might have been transmitted and compromised by Clinton. They referred the issue to the inspector general for the intelligence community, Charles McCullough III. On July 6, he made a formal referral to the FBI, citing the possibility that Clinton had mishandled classified information in violation of federal law.

  Four days later, the FBI formally opened a case file on Clinton. Like all FBI investigations, it had a code name: “Midyear Exam.” All FBI investigations, by their very nature, are criminal, whether or not they result in any charges.

  Most FBI investigations are run out of the bureau’s field offices, which in this case would have been Washington, D.C. But some, including investigations of political candidates, are classified as SIM—for “sensitive investigative matter,” “because of the possibility of public notoriety,” as the FBI operating manual puts it. FBI agents have traditionally referred to these cases as “specials.”

  Several days later, Randy Coleman, the FBI’s assistant director in charge of counterintelligence, called Peter Strzok and asked him to join the Midyear team as one of two lead investigators. Coleman had two basic but potentially inconsistent commands: be thorough and be fast. The investigation needed to be completed well before the next presidential election, which was just sixteen months away.

  To be tapped to run Midyear was the ultimate sign that Strzok had earned the trust and confidence of the FBI’s top officials, and he was proud to be chosen. Strzok was the product of a military family and Catholic schools. His father was in the U.S. Army Corps of Engineers, and an uncle was a Jesuit missionary serving in East Africa. An army veteran and Georgetown graduate, Strzok had already made a name for himself in counterintelligence operations, especially those involving Russia.

  As Edward William “Bill” Priestap, who succeeded Coleman as the FBI’s head of counterintelligence in late 2015, described him, Strzok “was considered one of, if not the foremost, counterintelligence expert on the agent end at the FBI.”

  At the same time, the assignment was daunting: Hillary Clinton was almost certain to be the Democratic nominee. She might well be the next president.

  Clinton’s use of a private server while secretary of state had already caused a political firestorm. Now, to a degree unprecedented in FBI history, the bureau had been thrust into the middle of it. There would be no easy way out.

  “You know you are totally screwed, right?” Comey’s deputy director, Mark Giuliano, told him.

  “Nobody gets out alive,” Comey replied.

  TWO

  “THE DOORS THAT LED TO HELL”

  Less than two weeks after the Clinton email referral, The New York Times ran an article titled “Inquiry Sought in Hillary Clinton’s Use of Email,” though that wasn’t the original headline, which had referred to an “investigation,” not an “inquiry.” And the original article stated explicitly that the investigation was criminal.

  The article also cited a State Department memo concluding Clinton had sent or received “hundreds of potentially classified emails” on her personal account, which flatly contradicted Clinton’s statement that she had never transmitted classified information on her private email account.

  The revelation caused near panic and a strenuous counterattack from Clinton’s campaign staff. After the initial story appeared online, they persuaded the Times to change the headline and text and append a correction to the effect that the referral was a “security” referral and not a “criminal” referral.

  That was nonsense: all FBI investigations are potentially criminal. The referral had resulted in a criminal investigation of Clinton, as the original Times article had accurately reported.

  Campaign aides might be expected to shade the truth in their eagerness to shield their candidate from unwanted controversy. More troubling to Comey and others at the FBI was the Times’s assertion that “the Justice Department has not decided if it will open an investigation, senior officials said,” when one was already under way.

  That “senior” unnamed Justice Department officials might be trying to protect Clinton touched a raw nerve with Comey and his FBI colleagues. That the leading Democratic candidate for president and, until recently, secretary of state in the Obama administration was being investigated by Justice Department officials appointed by Obama was an inherent conflict of interest.

  There was certainly a case to be made for the appointment of a special counsel, thereby removing the investigation from any political influence. But naming a special counsel was an enormous step, one that risked elevating the importance and visibility of the investigation and damaging Clinton before any evidence of a crime had emerged.

  In any event, the decision to name a special counsel was the attorney general’s to make, not Comey’s. When he raised the possibility with Lynch, she insisted she and others in the department were capable of overseeing a fair and thorough investigation.

  Still, the anonymous comment had planted a suspicion within the upper ranks of the FBI that the Obama Justice Department wa
s not all that impartial and, even if it acted independently, had already sent a message that it was in league with the Clinton campaign.

  So concerned was Comey that he considered issuing a public statement contradicting the Clinton campaign and confirming the Times’s reporting. But doing so would reveal the existence of the investigation, something the FBI is usually loath to do, both to protect the reputations of possibly innocent people and to facilitate the gathering of evidence.

  Comey held off. But his suspicions about the impartiality of some Justice Department officials lingered.

  * * *

  —

  FOR STRZOK AND his team of about a dozen FBI agents, the principal technical challenge was retrieving the thousands of emails that Clinton’s aides had erased on the grounds they were personal. Two of Clinton’s aides, Cheryl Mills and Heather Samuelson, advised by lawyers from Clinton’s law firm, Williams & Connolly, had sorted through the vast trove of emails, separating those deemed personal and then ordering them to be erased permanently. Clinton herself didn’t participate.

  Nonetheless, those missing emails had caused a public furor. That Clinton’s aides had been allowed to decide which emails were personal naturally fueled suspicions that if there was anything incriminating, they would have destroyed them.

  So investigators needed to see all of the more than thirty thousand missing emails. Even then, their task was not to determine whether the destroyed emails were strictly personal or whether they contained potentially embarrassing information that might have some bearing on Clinton’s fitness to be president.

  The only question was whether classified information had been transmitted over an insecure network and whether Clinton knew that—a potential violation of the Espionage Act, as well as several other statutes intended to protect classified state secrets. As one FBI agent later put it, it was important that the FBI act “responsibly” and not engage in a fishing expedition “into the lives of the Clintons.”

  Passed in 1917, just months after the United States entered World War I, when anxiety about German spies and their sympathizers and collaborators was at a fever pitch, the Espionage Act has confounded legal experts for decades. The act has been criticized for being both too specific and overly vague. Probably the most famous cases under the Espionage Act were Julius and Ethel Rosenberg, convicted in 1951 and executed two years later for spying for the Soviet Union.

  Not even Clinton’s most virulent critics alleged that she was spying for a foreign power. Partly out of concerns over vagueness, over the years courts had erected a high barrier to prosecuting Espionage Act cases. In one ruling, a judge determined that the government had to prove beyond a reasonable doubt that the accused had “reason to believe” classified information “could be used to the injury of the United States or to the advantage of a foreign nation.”

  That made Clinton’s state of mind when she used her personal email a critical element.

  One part of the statute, however, seemed to require a lower standard of proof, that Clinton acted not willfully to harm the United States but with “gross negligence”: “Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same 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 . . . Shall be fined under this title or imprisoned not more than ten years, or both.”

  But what, exactly, constitutes “gross negligence”? Under common law, all crimes require what’s called mens rea, a guilty state of mind.

  Over the summer, the FBI team managed to retrieve 17,448 of the missing emails. Twelve were deemed by the FBI to both be work related and contain confidential information, though there was no smoking gun or other explosive revelation.

  Still, there was no doubt that classified information had passed over Clinton’s insecure network—the FBI found eight instances of “top secret” and dozens of instances of “secret” information—contrary to Clinton’s claims that none had. But it wasn’t clear all the supposedly classified information was classified at the time it was sent. Much of it had already appeared in the press.

  And all the classified examples came from or were sent to State Department employees with security clearances.

  Did Clinton know the information was classified when she sent or received it? Only a few emails had any overt indication—three paragraphs within longer passages were marked with a capital C and no further designation. There was nothing to suggest that Clinton used her private email in an effort to harm the national security of the United States. There were no emails warning her that she was at risk of compromising classified information or telling her to stop using her private account for official business.

  By September, it was clear to at least one of the Justice Department prosecutors assigned to the case that they needed evidence that would amount to a “game changer” if they were going to charge Clinton with a crime. Comey himself, while he didn’t want to prejudge the evidence, was skeptical they’d find what they needed to prove any crime beyond a reasonable doubt, unless, he said, “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 lied to us in an interview.”

  * * *

  —

  OVER THE NEXT few months, Comey fielded repeated questions about the status of what most people assumed was a Clinton email investigation, no matter the protests by the Clinton camp. He knew the questions would arise again in October, at his quarterly press roundtable. So in September, he and other senior FBI officials met with Lynch and her team to suggest he confirm the existence of a Clinton email investigation but decline any further comment.

  Lynch felt it was premature to confirm any investigation, even if the referral was public. Many referrals didn’t result in investigations, and it was department policy not to comment.

  So Lynch suggested Comey “call it a matter.”

  Why, he asked, would he do that?

  “Just call it a matter,” she repeated.

  As Comey later recalled, the comment made him “queasy,” because it aligned the Justice Department and the FBI with the Clinton campaign’s contention that there was no investigation, just a “referral.” It brought back all the concerns he’d had after the Times story. Still, he decided not to say anything at the moment, not wanting to make a semantic issue his first showdown with the still relatively new attorney general, who was his boss.

  “Well, you are the Federal Bureau of Matters,” George Toscas, a senior Justice Department official, quipped as they left the meeting. The “FBM”—“Federal Bureau of Matters”—became a running joke inside the FBI.*

  At the press roundtable, Comey duly followed Lynch’s directive. Responding to a question about a Clinton email “investigation,” he said, “I am following this very closely, and I get briefed on it regularly. I am confident we have 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.”

  As Comey had suspected, reporters didn’t recognize any distinction, routinely referring to the “investigation,” even though Comey didn’t use the word. Still, Comey remained troubled by Lynch’s request. “That concerned me because that language tracked the way the campaign was talking about the FBI’s work, and that’s concerning,” Comey later told the Senate Intelligence Committee.

  Comey and others at the FBI were further alarmed in October, when President Obama, in an interview on 60 Minutes, described Clinton’s use of her own email server as a “mistake” that hadn’t endangered national security—this while the investigation into both those issues
was still in its early stages.

  “You know, she made a mistake. She has acknowledged it,” Obama told the CBS correspondent Steve Kroft. He added that Republicans had “ginned up” the controversy, and it was “not a situation in which America’s national security was endangered.”

  Comey’s concerns were widely shared in the FBI’s upper ranks. As Michael Steinbach, one of the top FBI officials assigned to the Clinton case, later put it, the president seemed to be “prejudging the results of an investigation before they really even have been started,” something that’s “hugely problematic for us.”

  Republicans in Congress pounced on Obama’s remarks. On October 28, forty-four members of the House of Representatives sent a letter to Lynch asking her to name a special counsel, arguing that the president had prejudged the case. The letter stated that a special counsel was warranted to ensure that the investigation was conducted free from undue bias from the White House.

  * * *

  —

  LATE THAT YEAR, the FBI’s deputy director, Mark Giuliano, announced he’d be retiring after twenty-eight years with the bureau. To replace him, Comey tapped McCabe, aged forty-seven, who was already at headquarters as the bureau’s assistant director, a largely administrative post. When he announced the decision in January 2016, he called McCabe the “perfect fit” for the job, praising McCabe’s “vision, judgment, and ability to communicate.”

  Still, Comey’s choice of McCabe was viewed with skepticism by some veteran agents. McCabe had completed the FBI’s demanding training program at the FBI Academy in Quantico, Virginia, and had been in the bureau for nineteen years. He was known and admired for his self-discipline. But McCabe lacked a measure of street credibility. He’d grown up in comfortable, suburban circumstances, the son of a corporate executive. He’d graduated from an elite private school. He hadn’t served in the military. His first assignment had been in New York City, and for the rest of his career he’d been in Washington, D.C. He could be reserved and cerebral. To many agents in the field, he was a headquarters kind of guy, someone adept at briefing his superiors, who had in turn rewarded him with promotions and rapid career advancement.