Asked about the resulting appearance of a conflict, she responded, “I completely get that question, and I think it is the question of the day.” She said the resolution of the Clinton investigation would be “reviewed by career supervisors in the Department of Justice and in the FBI and by the FBI Director. And then, as is the common process, they present it to me and I fully expect to accept their recommendations.” While she wouldn’t be formally recusing herself, “I’ll be briefed on it and I will be accepting their recommendations.”
Comey interpreted this as tacit encouragement to go ahead and make a decision. As Newman had feared, he saw Lynch’s position as “neither fish nor fowl” in that she wanted to remain the ultimate decision maker but at the same time accept his recommendation, thereby removing herself (and the Justice Department) from criticism.
With the nominating conventions drawing ever closer, Comey was eager to make the announcement as soon as possible and settled on Tuesday, July 5, the day after the national Independence Day holiday, and just three days after Clinton’s interview. He believed it was still possible, though unlikely, that Clinton would say something incriminating. But all planning was geared toward a recommendation that she not be charged. There was no plan B, not even any discussions of the explosive alternative, which might well have ended her campaign.
The plan was that Comey would call Yates at 8:30 a.m., followed by Lynch at 8:35. On July 1, Comey sent Rybicki an email, “What I will say Tuesday on phone.” He planned to read from a script to make sure he said nothing of substance about his decision:
I wanted to let you know that I am doing a press conference this morning announcing the completion of our Midyear investigation and referral of the matter to DOJ. I’m not going to tell you anything about what I will say, for reasons I hope you understand. I think it is very important that I not have coordinated my statement outside the FBI. I’m not going to take questions at the press conference. When it is over, my staff will be available to work with your team.
* * *
—
HILLARY CLINTON ARRIVED at FBI headquarters for her interview on the morning of July 2, 2016, entering through a basement garage. That, plus it being a Saturday of a holiday weekend, enabled her to escape any public attention. Representing the government were Strzok, two FBI agents, and five Justice Department officials. Neither Lynch nor Comey attended, as was customary, given their oversight roles.
Who and how many people would attend had been the subject of much discussion and debate—an absurd amount, in the view of Page, who had to coordinate the various requests and found it “wildly aggravating,” as she put it in a text message. Standard procedure was “two and two”—two FBI agents to do the questioning and two prosecutors. Any more risked intimidating the witness and made it difficult for agents to establish a rapport. But given Clinton’s celebrity, everyone wanted to pile on, which prompted a text from Page to McCabe: “Hey, you’ve surely already considered this, but in my view our best reason to hold the line at 2 and 2 is: She might be our next president. The last thing we need is us going in there loaded for bear, when it is not operationally necessary. You think she’s going to remember or care that it was more doj than fbi? This is as much about reputational protection as anything.” McCabe replied, “Agree. Strongly.”
Page’s concerns came to naught: ultimately eight government representatives attended (three from the FBI, five from Justice) as well as Clinton’s entourage.
As Comey and the Midyear team had assumed, Clinton was obviously well prepared. She was an experienced witness and had endured intense pressure before, notably when Independent Counsel Kenneth Starr asked her about the curious discovery in the White House of Rose Law Firm billing records that had been missing—and subject to a subpoena—for years. In many ways, the email investigation was easier. She and her lawyers knew the relevant laws and cases and thus that her state of mind was a critical element. During her interview she came across as open and credible on most subjects.
It also worked to Clinton’s advantage, as one of the agents later put it, that she was basically “technically illiterate.” She still used a woefully outdated BlackBerry handset. Even then, her staff printed out emails and documents for her to read. She didn’t even have a computer in her State Department office. (Bill Clinton was even worse. Although he sent the first email from the Oval Office in 1994, he had only used it on rare occasions since.)
While she might have known little about how they worked, Clinton did use many different devices—thirteen in all for her two phone numbers and eight while she was secretary of state. Huma Abedin said Clinton often lost track of them once she stopped using them. Another aide, Justin Cooper, said he’d disposed of two by breaking them with a hammer. (Clinton herself, however, never took a hammer to any device.)
Hillary Clinton knew there was a computer server at her home, but knew little about what servers actually did, or what documents might be preserved on them. In this light, it was plausible that she used her private email purely for reasons of convenience—she didn’t want to deal with multiple email accounts—rather than to conceal anything, evade security measures, or destroy official records.
On the key state-of-mind issue—whether she knew anything she transmitted was confidential—she stayed firmly with the story that she didn’t. The agents showed her numerous emails containing classified information. In every case, she said she didn’t believe it was classified and assumed her aides and others wouldn’t send her classified information via email.
The agents pressed her on the emails containing the Cs, meaning “confidential.” Clinton said she didn’t know what the C meant but “speculated it was a reference to paragraphs ranked in alphabetical order,” as the agents wrote in their interview summary. Given there was no A or B in the document, that struck them as far-fetched. The agents asked her about it four or five times, always getting the same answer.
On the other hand, Clinton maintained that she didn’t believe that information was confidential (she was mostly right; it was later determined that only one of the three paragraphs marked with a C was secret), and nowhere in the document was there any indication that C meant “confidential.” As one of the agents put it, “I can’t sit here and tell you I believed her. I can only tell you, in no particular could we prove that she was being untruthful to us.”
On the potentially damaging subject of the thousands of personal emails that had been deleted, Clinton said she had almost nothing to do with the decision. She testified (as her aides had previously) that she “never deleted, nor did she instruct anyone to delete, her email to avoid complying with Federal Records Act, FOIA, or State or FBI requests for information” and that she “trusted her legal team” would comply with any requests to preserve them, according to the interview notes.
When the agents showed her one of the emails that had been deleted as personal but contained official business, she readily agreed that it should have been retained and handed over.
For the FBI, the issue wasn’t whether they believed her but whether they could prove beyond a reasonable doubt that she lied. Not only was her state of mind inherently subjective, and thus difficult to prove or disprove, but her demeanor seemed relaxed and confident, something that Strzok and the agents stressed when they briefed Comey on the interview.
The interview lasted three and a half hours. Nothing Clinton said had changed anyone’s mind that she should not be charged with a crime.
In theory, of course, she could have been. She had been careless, and classified information had been transmitted on an insecure network. On the other hand, by that standard, half the State Department would have to be charged. There might even have been enough evidence to ask a jury to consider a misdemeanor or gross negligence standard, although the likelihood of conviction seemed remote. Comey wasn’t going to recommend prosecuting a case the department was almost sure to lose.
Of course it weighed on everyone involved that Clinton was the presumptive presidential nominee and, based on early polling, the likely next president. She was a former first lady and secretary of state. Had she been charged, with no clear precedent to justify it, a furor was certain to follow, and the damage to the credibility of the FBI would have been incalculable.
As Comey later explained, everyone involved in the investigation ultimately agreed “there isn’t anything that anybody could prosecute. My view was the same. Everybody between me and the people who worked this case felt the same way about it. It was not a prosecutable case. The decision there was not a prosecutable case here was not a hard one. The hard one, as I’ve told you, was how do we communicate about it.”
* * *
—
THE FIRST INKLING that something major was afoot reached the Justice Department at 8:08 a.m. on July 5, when a reporter contacted Melanie Newman in the press office. Newman tapped out an email:
Just heard that the Director is having a press briefing today at 11 a.m. I have not heard anything but have asked for guidance.
The FBI had worked out a carefully choreographed rollout of the news. Comey reached Yates at 8:28 a.m., two minutes ahead of schedule. He stuck to his script and refused to tell Yates the subject of the impending press conference.
Comey reached Lynch in her office shortly after and spoke from the same script. “Can you tell me what your recommendation is going to be?” Lynch asked.
“I can’t and I hope someday you’ll understand why,” Comey replied. “I can’t answer any questions. I’m not going to tell you what I’m going to say.”
While Comey was still on the phone, Strzok tried to reach George Toscas, but he was traveling. So McCabe sent Toscas an email:
The Director just informed [Yates] that at 1100 this morning he has convened a press conference to announce the completion of our investigation and the referral to DOJ. He will not tell her what he is going to say. It is important that he not coordinate his statement in any way. He will not take questions at the conference. His next call is to the AG. I wanted you to hear this from me. I understand that this will be troubling to the team and I very much regret that.
Lynch was Comey’s boss, and she could have ordered him to stop. So could Yates, as Lynch’s deputy. Indeed, one of the reasons Comey didn’t want to reveal anything about what he had to say was that he feared they would block him.
But no one at Justice gave that any consideration. Neither Yates nor Lynch thought Comey would go much beyond a brief statement. It never occurred to Lynch that Comey might go into the results of an investigation that, so far as she knew, wasn’t even over. After all, Clinton had been interviewed just three days earlier. And all the machinery of a nationally televised press conference had already been set in motion. For the attorney general to block an announcement by the FBI director on a matter of such political significance risked a public relations nightmare.
* * *
—
LIKE MILLIONS OF Americans, Lynch watched Comey’s press conference on a television in her office. Yates, joined by Axelrod, watched in her office. “Good morning,” Comey began. “I’m here to give you an update on the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State.”
As Comey continued with a detailed account of what the FBI had done, and what they found, they listened with mounting dismay: “110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were ‘up-classified’ to make them Confidential; the information in those had not been classified at the time the e-mails were sent.”
At one point, Lynch wondered if she could stop him but concluded it was too late, “short of dashing across the street and unplugging something.”
And then came the conclusion: “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
Especially damning: “For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later ‘up-classified’ e-mails).
“None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.
“Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked ‘classified’ in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.”
It sounded as though Comey were about to recommend that Clinton be charged. But then he delivered the bottom line: “In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”
Comey’s July 5 presentation lasted fifteen minutes. Lynch, Yates, and Axelrod were stunned. They’d been totally blindsided. Comey and his top aides had been discussing the statement and how it would be conveyed since May. They’d had time to become comfortable with it. At Justice, it was a shock.
As Yates later put it, “I was stunned A, at the level of detail that he went into,” and “B, that he then made judgments and said things like extremely careless.” She felt Comey stressed the incriminating aspects, neglecting the elements that the case lacked. This was especially troubling because by long tradition, “We don’t trash people we’re not charging. And we don’t get to just make value or moral judgments about their conduct.” In her view, “that was way out of order.”
Toscas described Comey’s press conference as “beyond strange” and “incredibly dangerous” given the departure from department precedent, especially in the context of an ongoing presidential campaign. Lynch, too, thought Comey’s statement was “a huge mistake.”
Within minutes of Comey’s appearance, Trump unleashed a barrage of tweets:
11:37 a.m.: The system is rigged. General Petraeus got in trouble for far less. Very very unfair! As usual, bad judgment.
11:39 a.m.: FBI director said Crooked Hillary compromised our national security. No charge
s. Wow! #RiggedSystem
That evening, Trump lit into Comey’s decision at a raucous rally in Raleigh, North Carolina. “Today is the best evidence we have ever seen that our system is totally rigged. Hillary Clinton put the entire country in danger,” he began. “It was confirmed today that she routinely sent classified emails on an insecure, private server that could be easily hacked by hostile foreign agents. And we learned that people she emailed were hacked and probably, I think maybe definitely were hacked by these hostile actors and these are bad, but very, very smart people. Our enemies may have a blackmail file on Crooked Hillary, and this alone means that she should not be allowed to serve as President of the United States.”
Trump was interrupted by cheers. He continued, “We now know that she lied to the country when she said she did not send classified information on her server. She lied! She sent vast amounts of classified information including information classified as top secret. Top secret. OK? And this is where they said that she was extremely careless and, frankly, I say grossly incompetent. She would be such a lousy president. So sad. OK. The lives of American people were put at risk by Hillary Clinton so that she could carry on her corrupt, financial dealings and that’s probably why she didn’t want people to see what the hell she was doing. She went through extraordinary lengths to carry out a purge of her emails, 33,000 emails are missing and they say she’s fine.” He went on, “Like a criminal with a guilty conscience, Clinton had her lawyers delete, destroy and wipe away forever except I still say there are geniuses that can find them, 30,000—think of this, 30,000 emails. This, again, disqualifies her from service.”
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