These outcomes—none involving any use of a “gross negligence” standard for criminal liability—were hardly a ringing endorsement of the Espionage Act. All the cases involved significant breaches of classified intelligence and evidence of illegal intent, such as lying to cover up the activity.
By the time McCabe became Comey’s deputy, on February 1, 2016, nothing more had emerged to suggest that the Clinton case had any of those elements. Notes of a December meeting between FBI officials and George Toscas, the deputy attorney general overseeing the Clinton investigation for the Justice Department, indicate the investigators still didn’t “have much on the intent side, right?” and everyone present had agreed.
Prosecutors’ notes from a January 2016 meeting concluded, “Don’t see prosecutable case at this point.”
* * *
—
IN MARCH, the FBI received a document that raised even more questions about Lynch and potential pro-Clinton bias at the Justice Department. Provided by a highly placed informant whose identity remains a closely guarded secret, the document contained what purported to be an analysis by Russian intelligence of an email from Deborah Wasserman Schultz, chair of the Democratic National Committee, to Leonard Benardo, an executive with the Open Society Foundations, founded by the billionaire and Democratic Party donor George Soros. In the email, Wasserman Schultz assured Benardo that Lynch wouldn’t let the Clinton investigation get very far, suggesting that Lynch would protect Clinton.
The analysis also suggested that Comey was deliberately dragging out the investigation to keep a cloud over the Clinton campaign as long as possible, thereby helping the Republicans.
That, Comey knew, was utter misinformation; if anything, the opposite was true. And though he didn’t doubt that the document actually was a Russian intelligence analysis, the part about Lynch was hearsay piled on hearsay. The analysis didn’t include the text of the email from Wasserman Schultz to Benardo; it merely summarized its contents: a conversation in which Lynch had supposedly reassured a Clinton campaign staff member about the limited scope of the email investigation. More fundamentally, other than the comment about “matters,” Lynch hadn’t betrayed any Clinton bias during the investigation and hadn’t done anything to limit the scope of the FBI probe.
Some wondered if it might even be disinformation deliberately planted by the Russians to sow discord. Yet if that were the Russian objective, it had chosen a peculiarly oblique way of going about it. Given that, and the level of specificity, it seemed plausible that there was such an email, even if its contents were largely false.
Comey was already highly sensitive to the issue of potential pro-Clinton bias at the Justice Department. The secret memo triggered a renewed discussion of whether the Justice Department could credibly dispose of the Clinton case or whether a special counsel should be appointed.
In a text to Page that month, Strzok suggested asking Comey’s friend Pat Fitzgerald, a tenacious prosecutor whom Comey had recruited to serve as special counsel in a perjury, false statement, and obstruction of justice investigation of I. Lewis “Scooter” Libby, former assistant to George W. Bush and chief of staff for Vice President Richard Cheney. (Libby was convicted on multiple counts.) Page responded enthusiastically, noting “how great he is.” (If Strzok and Page were trying to tip the election to Clinton, the last thing they would have wanted was for someone like Fitzgerald to be named special counsel.)
But none of that materialized, and the Russian information languished. The FBI didn’t launch a full-scale investigation into the document’s contents; they weren’t evidence of any crime. Given that the document itself and its source were confidential, it would be classified for the next fifty years. By then, Comey figured, he’d be long gone.
* * *
—
WORRIES ABOUT WHETHER Justice Department officials were biased in favor of Clinton, or whether they might appear to be biased, would have been moot had prosecutors decided to charge Clinton.
But by spring, Comey had pretty much decided the Clinton investigation was unlikely to yield any charges. As he later put it, he knew by then “there was no fricking way that the Department of Justice in a million years was going to prosecute that,” given the prior cases he’d reviewed. “There’s no way, unless we find something else in May and June, or unless Clinton lied in her interview,” which still had to be scheduled.
Not everyone inside the FBI was so confident Clinton shouldn’t be charged. Jim Baker, the FBI’s general counsel, later said he was “appalled” by how she and her State Department colleagues had handled classified information and said they were “arrogant in terms of their knowledge and understanding of these matters.”
As for Clinton’s state of mind, Baker thought she should have recognized the sensitive nature of the information she was receiving on an insecure personal email account. It was sufficient to make at least a misdemeanor case that Clinton intended to use her private email account and knew or should have known that confidential information was conveyed on it. Baker said he “debated and argued” with Comey and other Midyear team members over these issues.
There were also frequent complaints from members of the FBI team that Justice Department officials were being overly cautious about the investigation, were trying to arrange friendly, voluntary interviews rather than using subpoenas, and were generally dragging their heels—“slow walking” in FBI parlance—perceptions exacerbated by the fact that so many Justice Department officials were Obama political appointees and that Hillary Clinton might well be their next boss. Justice Department officials, for their part, thought the FBI was being needlessly aggressive, and some suspected anti-Clinton attitudes within the FBI’s ranks.
Strzok, the co-lead investigator, took an especially aggressive approach toward Clinton—even as he was sending Page texts disparaging Trump. In a March message, he described the Justice Department’s cautious approach as “death by a thousand cuts.” As Strzok later put it, he was “aggravated by the limitations,” and “if you add up this delta over a bunch of decisions, all of a sudden it becomes substantive.” He often complained to Page, who suggested he compile a list of examples.
These tensions and mutual suspicions came to a head in a tug-of-war over the FBI’s demand that Cheryl Mills, the lawyer who helped sort Clinton’s emails, produce her laptop computers and agree to be questioned about how she made her decisions, even though that encroached on the attorney-client privilege. Clinton’s lawyers fiercely resisted. But Comey was determined to get access to the laptops as well as testimony about the culling process. On this he wasn’t going to compromise. He didn’t believe the investigation would be credible if it wasn’t thorough, especially in light of all the attention given the missing emails and how they’d disappeared.
In April, Huma Abedin and Mills, both Clinton aides and close confidantes, were interviewed by Strzok and other agents. Given their fierce loyalty to Clinton and their skilled legal representation, it came as no surprise that they volunteered nothing of significance. Abedin said she merely transmitted emails from others to Clinton, and it wasn’t her place to decide if anything was classified. Mills, even when shown emails containing classified information, said none of it was harmful or even secret, because most of it was simply repeating what had already appeared in the press.
A few days after the Mills interview, on April 12, Comey met with Sally Yates, the deputy attorney general, and Matthew Axelrod, the principal associate deputy attorney general, in Yates’s office. The FBI’s Rybicki also attended. Comey said it was time to think about winding up the Midyear investigation, although “I’m not done,” but his sense was that no charges would be brought. “How do you credibly decline this?” he mused. “And what can you say to people to support the credibility of the work that’s been done?” as Comey recalled the conversation. “The more information you are able to supply, the higher the credibility of the investigation and
the conclusion. And that especially in a poisonous political atmosphere, where all kinds of nonsense is said, the more you can fill that space with actual facts, the more reliable, believable, credible the conclusion is. People are still going to disagree. They are still going to fight, but at least there will be facts in the public square that show we did this in a good way, thought about it in a good way and here is our reasoning as to why we think there is no there there.”
But in the same conversation, Comey increased the pressure to get the laptops and the lawyers’ testimony that the Justice Department had been resisting. If that dragged on past the political conventions, when Clinton would be the formal nominee, he said he might well have to recommend the appointment of a special counsel, because Lynch, an Obama appointee, wouldn’t be able to credibly exonerate Clinton once she was the nominee.
Yates was startled by the suggestion of a special counsel, especially so late in the investigation. That would only lend credence to the allegations and would cause a political uproar. Axelrod later said he thought Comey’s suggestion might be “some sort of gambit to sort of say hey, if you guys don’t pick up the pace, right, this is going to get really ugly.”
Comey’s tactic broke the logjam. Within two weeks, the FBI had the laptops and testimony from the lawyers. But they, too, yielded nothing significant, nothing to suggest that anyone had deliberately tried to destroy incriminating evidence or mislabel State Department communications as personal. (That a few had slipped through the process, out of the thousands they reviewed, could hardly be considered deliberate obfuscation.)
Even Jim Baker, who’d argued that Clinton could be charged, had come around to Comey’s view. Baker later said he didn’t see enough evidence to establish knowledge or criminal intent and that he had to consider the sheer volume of “communications” coming “at all times, day and night, given the heavy responsibilities that a Secretary of State has.” He considered it reasonable for her to rely on others to make sure no classified information was compromised.
In the next few weeks, Comey pondered how best to make a public announcement that the FBI would not recommend charges against Clinton. Ordinarily, the FBI says nothing. It simply conveys a recommendation to the attorney general and Justice Department, which would make a decision to accept the recommendation or not. If the Justice Department declines to prosecute, it typically remains silent as well, so as not to unfairly tarnish the reputation of someone who was investigated but not charged.
Everyone at the Comey-Yates meeting agreed that wasn’t an option. The Clinton investigation had been public from the outset, Comey had publicly confirmed it, and Clinton was about to be the Democratic nominee for president. The media was understandably obsessed with the case.
As Ruth Marcus wrote in a column for The Washington Post that circulated within the Justice Department, “In the Clinton situation, there has to be a way to provide more information, in a timely way, from a credible source. Senior Justice officials will be mistrusted whatever they say, but what about FBI Director James Comey, who served in the Justice Department under George W. Bush?”
No decision was reached about how to proceed at the meeting with Yates. Axelrod said he had the vague idea that FBI and Justice Department officials would make a joint announcement while standing in front of a patriotic tableau of American flags.
But after the meeting, Comey had what he later called a “crazy idea”: What if he, Comey, simply made the announcement, without informing, including, or consulting the attorney general, Yates, or anyone else at Justice?
As Comey described his thinking, “This is a circumstance that has never happened before. We’re criminally investigating one of the candidates for president of the United States.” He also worried about public perceptions of fairness: “You’ve got the President who has already said there’s no there there. And so all of that creates a situation where how do we get out of this without grievous damage to the institution?” He wanted to demonstrate to the public, or at least fair-minded members of the public, that “things are fair not fixed, and they’re done independently.”
Comey unveiled his “crazy idea” at a meeting with McCabe, Baker, the general counsel, and his chief of staff, Jim Rybicki, the next day. “What do you think about the prospect of just me doing something solo?” Comey asked.
Some of the air went out of the room. McCabe and Rybicki looked at each other. As McCabe recalled, “The both of us are just kind of like, oh my God, you know? And I, I mean honestly I, I, at first blush I was like, whew, wow, that’s, that could go really wrong. Because for, you know, for the obvious reason. It’s just so not what we do.”
McCabe finally spoke up, warning Comey that going solo would be a “complete departure” from FBI protocol and could set a “potentially dangerous precedent.”
Comey said he realized that and agreed that “conventional wisdom” would argue against it. Everyone at the meeting assumed it was just a trial balloon. On the other hand, Comey had never set much store in conventional wisdom.
And there were some who felt the idea very much appealed to Comey’s vanity and ego, a quality Comey himself has acknowledged. Making a unilateral announcement on such a controversial topic would thrust him into the national spotlight in a way he hadn’t experienced since the incident at Ashcroft’s bedside.
Over the following weeks, Comey continued his discussions and tried out the idea with a widening circle of trusted advisers. Baker said he pushed back “aggressively” and tried to “think about how others would think about things.” He and Comey considered a range of options, trying, as he put it, “to find some door other than the doors that led to hell.”
Chuck Rosenberg, Comey’s former chief of staff in what now seemed the tranquil early years of his tenure, worried that what he was proposing was “outside the norm,” and wavered over whether it was a good idea. But he also felt Comey was a “compelling and credible public servant” whom the public would trust.
Not even those who thought Comey might be prone to grandstanding questioned his motive, which was to protect the reputation of the FBI for independence and to bolster public confidence in the rule of law, even (and especially) when it was being applied to someone who might well be the next president.
Although he later castigated himself for it, McCabe, too, resolved his initial doubts and came around to Comey’s unorthodox view: “Ultimately I was convinced that he was doing what he thought was right and what was right for the case.”
* * *
—
IT WASN’T JUST Comey and his FBI advisers who thought he should have a starring role in announcing the results to the American public. The Ashcroft incident had cemented Comey’s national reputation for probity, a quality that even Justice Department officials agreed uniquely qualified him for the announcement. When McCabe had lunch with John P. Carlin, head of the national security division at the Justice Department (and former chief of staff for Mueller), Carlin said he felt strongly that Comey should play a “very active and prominent role” in the announcement.
As one of the prosecutors put it, “I wanted Comey up there on a podium. I didn’t care whether the AG [Lynch] was sitting next to, standing next to him, or not. But I wanted Comey to make the announcement that the investigation was closed and that in the FBI’s viewpoint there was not a prosecutable case.” Because “Comey was a Republican, or had a Republican background. He’d been a Republican-appointed U.S. Attorney. He had been a Republican-appointed” deputy attorney general. And “he was widely respected on both sides of the aisle, before this case especially. And I thought that he had the gravitas, that no matter what he did, it was going to be questioned, but that it would be, that there would be an air of legitimacy to what I thought was a legitimate investigation if he made the announcement.”
Still, no one at the Justice Department contemplated that Lynch might be cut out altogether. Indeed, some time after their earl
ier meeting, Yates was dumbfounded when Comey, in a phone call, told her the FBI might not make any recommendation at all, but would simply hand over the facts and let the Justice Department decide. “Jim, I thought we had talked about it the last meeting,” and “we were all going to hold hands and jump off the bridge together.” Her assumption was “we were all going to stand there together. We were going to announce it together.”
With the idea still gestating, Comey began thinking of what he might say. On May 2, he sent an email to McCabe, Baker, and Rybicki, the same group to which he’d already broached the idea. A few days later he expanded the circle to include Strzok, Page, and Priestap.
“I’ve been trying to imagine what it would look like if I decided to do an FBI only press event to close out our work and hand the matter to DOJ. To help shape our discussions of whether that, or something different, makes sense, I have spent some time crafting what I would say, which follows. In my imagination, I don’t see me taking any questions. Here is what it might look like.”
The draft was tough on Clinton and in some crucial ways echoed Baker’s earlier arguments that she could be charged. The draft stated, “There is evidence to support a conclusion that Secretary Clinton, and others, used the private email server in a manner that was grossly negligent with respect to the handling of classified information.” There was evidence that Clinton “should have known that an unclassified system was no place for such an email conversation.” There was evidence that Clinton and her aides “were extremely careless in their handling of very sensitive, highly classified information,” and “the sheer volume of information that was properly classified as Secret at the time it was discussed” supports “an inference that the participants were grossly negligent in their handling of that information.” He concluded, “Although there is evidence of potential violations of the statute proscribing gross negligence in the handling of classified information and of the statute proscribing misdemeanor mishandling, our judgment is that no reasonable prosecutor would bring such a case.”
Deep State Page 7