Witch Hunt

by Gregg Jarrett

  Comey was also just plain wrong when he boldly declared that “no reasonable prosecutor would bring such a case.” In truth, prosecutors had brought several similar cases against government officials who had mishandled classified information in much the same way that Clinton did, including military convictions. They included former national security advisor Samuel “Sandy” Berger, former CIA directors David Petraeus and John Deutch, former national security contractor Harold T. Martin III, navy engineer Bryan Nishimura, and navy sailor Kristian Saucier.22 Comey’s assertion that “we cannot find a case that would support bringing charges on these facts” was demonstrably untrue.23

  A subsequent review of Comey’s decision making was conducted by the DOJ’s inspector general, Michael Horowitz, and released in June 2018. He determined that the director’s unilateral actions in clearing Clinton were both “extraordinary and insubordinate,” concluding that he had “usurped the authority of the Attorney General and inadequately and incompletely described the legal position of Department prosecutors.” In other words, Comey had no business acting as a prosecutor who terminated the case against Clinton. “We did not find his justifications for issuing the statement to be reasonable or persuasive,” wrote Horowitz.24

  Those same reasons were cited by the Justice Department when it eventually recommended that Comey be fired ten months later on May 9, 2017: he had acted without authorization and in dereliction of his duty to follow established policies and regulations. This was a view “shared by former Attorneys General and Deputy Attorneys General from different eras and both political parties.”25 Comey’s obstinate refusal to admit his errors only reinforced the need to fire him. He demeaned the work of the agency he led, damaged the integrity of the nation’s premier law enforcement agency, and breached the public’s trust.

  Comey’s hubris and bias led him to twist the facts and contort the law to absolve Clinton. He took it upon himself to assume the authority that rightly belonged to others. Or, as the inspector general found, he “engaged in his own subjective, ad hoc decision-making.”26 Comey’s maladroit behavior was so acute that he should have been fired the same day he stood in front of television cameras to exonerate Clinton. But, of course, President Obama took no such action—an obvious indication of his tacit approval of Comey’s decision to clear the path for the candidate that Obama would endorse to succeed him in the Oval Office.

  How do we know? In April 2016, the president sat down for an interview with Fox News Sunday host Chris Wallace. On national television, Obama insisted that Clinton had not jeopardized national security but had merely been “careless” in her mishandling of classified documents.27 That was a thinly veiled directive to Comey and the FBI that the president of the United States did not want criminal charges brought against his former secretary of state, incriminating evidence notwithstanding. Obama made the same statements in two other television interviews. We now know that that message was received by Comey loud and clear. The former director confessed to it during questioning by the IG:

  COMEY: [P]resident [Obama’s] comments obviously weighed on me as well. 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?28

  The salient phrase is “how we get out of this?” That is, how could Comey thread a legal needle that would disregard evidence inculpating Clinton and circumvent the law that would ordinarily result in charges, all the while maintaining some semblance of credibility at the FBI without tarnishing its vaunted reputation? With his marching orders from Obama, the FBI director proceeded to disfigure the facts and adulterate the relevant criminal statutes. He rewrote federal law and, in the process, literally rewrote his original findings that Clinton had been “grossly negligent.”

  The disparate treatment of the Trump-Russia investigation versus the Clinton email investigation is exemplified by Comey’s admission to the IG. The director suggested that his decision was motivated by the wishes of Obama. Yet Comey never accused Obama of attempting to influence or obstruct the FBI’s investigation. However, when Trump allegedly remarked that he “hoped” fired national security advisor Michael Flynn would be cleared by the Bureau, Comey later told Congress and the public, he interpreted it to be an attempt by Trump to influence or obstruct the FBI’s investigation.29 When Obama comments about a pending case, it’s perfectly all right in Comey’s sphere. When Trump purportedly does the same, it’s a felony. Not only did the director’s bias influence his views and actions toward the two presidents he served, but that same prejudice motivated him to distort the law to disadvantage one over the other.

  The standard Comey and his colleagues set is that a politician must be excused for anything less than a calamitous betrayal. It would be wrong to investigate a major political figure and prosecute him or her—or any of his or her aides—without incontrovertible evidence of evil intent and significant negative consequences.

  Clinton violated the law. Comey and others at the FBI and DOJ knew it. During my interview with President Trump on June 25, 2019, he spelled it out in blunt terms: “Comey kept her out of jail.”30

  Comey Sanitizes His Statement

  One of the more stunning revelations contained in the inspector general’s report is that Comey claimed he did not remember the moment he decided—and reduced to writing—that Clinton had committed crimes.

  On or about May 2, 2016, Comey composed a statement summarizing Clinton’s mishandling of classified documents, concluding that she had been “grossly negligent.”31 As noted earlier, those pivotal words have a distinct legal meaning because they are drawn directly from the Espionage Act. In describing Clinton’s actions, Comey used the exact phrase not once but three times (Exhibit C in IG report). Under questioning, he readily admitted to Horowitz that he had authored the May 2 statement and penned every word of it himself. Then he offered the implausible claim that “he did not recall that his original draft used the term ‘gross negligence,’ and did not recall discussions about that issue.”32

  Comey’s amnesia is preposterous. He participated in subsequent discussions with top officials at the FBI about Clinton’s “gross negligence” and how to creatively alter the language to sidestep an indictment. Email discussions and meetings were held on the thorny subject, and contemporaneous notes and electronic evidence obtained by the IG prove that Comey was in attendance and intimately involved.33 Those records show that although Comey had determined that Clinton had been “grossly negligent” in violation of the law, he resolved to clear her notwithstanding. To achieve that remarkable somersault and absolve the soon-to-be Democratic nominee, the legally damning terminology would have to be stricken from his statement.

  Metadata show that on June 6, the FBI’s lead investigator on the case, Peter Strzok, deputy assistant director of counterintelligence, sat down at his office computer to cleanse his boss’s statement of the vexing term “gross negligence.” With the assistance of his paramour and FBI lawyer, Lisa Page, the words “extremely careless” were substituted to make Clinton appear less criminally culpable.34 Page told the IG that “to use a term that actually has a legal definition would be confusing.”

  It most certainly would. After all, how could Clinton be exonerated under the “gross negligence” provision of the Espionage Act if that very phrase was used to describe her behavior? The two phrases are indistinguishable and synonymous in the law, but only one appears in the statute. It was a clever feint of semantics: create the appearance that Clinton had barely skirted the law, even though she had trampled on it.

  Strzok and Page also expunged from Comey’s statement his reference to another statute that Clinton had plainly violated. In his original statement, Comey determined that “there is evidence of potential violations” of 18 U.S.C. § 1924 [cited earlier], which makes it a crime to retain classified information in an unauthorized place.35 Clinton’s home was not authorized to house classified records, an
d her private nongovernmental server was unprotected. She knew it because she’d been instructed accordingly during a comprehensive security briefing. She had affixed her signature to two documents acknowledging that she understood the law and the penalties.36 But Comey’s finding of that crime was also completely expurgated from his public announcement, likely by the same people who removed the other incriminating findings. Having cleansed the director’s statement twice, the FBI wasn’t yet finished with its sanitation project.

  One of the more damaging conclusions drawn by Comey in his initial statement was this sentence: “The sheer volume of information that was properly classified as Secret at the time it was discussed on email . . . supports an inference that the participants were grossly negligent in their handling of that information.”37 That one sentence framed a damning indictment of Clinton. She had mishandled so many secret and protected documents that she must have known she was violating the law with impunity. However, the director saw to it that that conclusion was also purged in its entirety from his statement when he absolved Clinton.

  Though this may seem to some like the distant past, it’s essential to understand the standard the FBI publicly set for investigating a presidential candidate.

  In a confidential email discussion with his FBI colleagues, E. W. “Bill” Priestap, the assistant director of counterintelligence, was blunt in his assessment of their predicament. He cautioned that it was “important for the Director to more fully explain why the FBI can, in good faith, recommend to DOJ that they not charge someone who has committed a crime (as defined by the letter of the law).”38 In fact, there was no “good faith” way of explaining how someone who had broken the law could be relieved of the consequences. The scheme the FBI settled on was wrapped in bad faith: it would recast the letter of the law to achieve an unjust, but politically expedient, result.

  Where did Comey and others come up with the term “extremely careless” to dilute Clinton’s felonious conduct? From the president himself. Recall that Obama had employed the term “careless” in his meticulously worded public remarks just a month earlier and in two other televised statements. That, coupled with the director’s admission that the president’s “comments weighed on me” provides the inevitable and unmistakable answer: Comey and his subordinates did what Obama wanted them to do. They cleared Clinton of three sets of crimes that should have amounted to more than a hundred felony charges.

  Though the FBI director insisted that he had no memory of writing the words that should have indicted Clinton, he claimed to have remarkable recall of the little-known history of the Espionage Act. He informed the IG that he thought “Congress intended for there to be some level of willfulness present even to prove a ‘gross negligence’ violation.”39 In other words, he argued that “intent” was required under the law. But it is not. That tortured interpretation by Comey is patently and provably untrue.

  If Comey had honestly read the legislative history, he would have learned that in 1948, Congress amended the original Espionage Act of 1917 to add a new “gross negligence” provision that did not require intent or willfulness.40 Lawmakers plainly and deliberately omitted that. Indeed, eliminating the necessary element of “willfulness” was the whole purpose of modifying and expanding the statute. During World War II, Congress had come to realize that there were increasing instances of government and military officials becoming complacent. All too frequently, they had personally kept and handed out classified material cavalierly and to the detriment of national security. Congress sought to remedy the problem by establishing a new category of crime. Willfulness need no longer be a legal requirement of proof. Grossly negligent behavior provided a lesser alternative to willful conduct in presenting a case under the Espionage Act. Thus, Comey applied a legal standard to the Clinton case that did not exist. He just made it up. He read “intent” into the statute after Congress had removed it.

  Amnesia must be contagious at the FBI. Testifying before Congress in July 2018, Strzok claimed to have no recollection of using his computer to make the critical alteration that cleared Clinton. He did, however, directly implicate the FBI director when he asserted, “Ultimately, he [Comey] made the decision to change that wording.”41 Curiously, Strzok recalled that his boss had ordered him to change words he didn’t remember changing. But the critical alterations clearing Hillary were made.

  The FBI’s Blatant Bias in Favor of Clinton

  Comey’s actions in absolving Clinton were roundly condemned by the inspector general, citing misjudgments, bias, insubordination, and unprofessionalism. But many of his top lieutenants were guilty of the same. Notes and emails show that it was a collective endeavor to sanitize the director’s initial statement. Clinton was the beneficiary of what FBI deputy director Andrew McCabe described as the “HQ special”—that is, special status at the Bureau’s headquarters.42 Comey and his deputies handled the case instead of agents at the Washington, DC, field office. That departure from normal procedures allowed the case to be massaged in a way that would achieve the preconceived outcome they desired. Had the field office investigated and managed the case, Clinton almost certainly would have been indicted for her criminal acts.

  Though Comey publicly maintained that the Clinton “matter,” as Attorney General Lynch insisted it be called,43 was managed in an apolitical and professional manner, private text messages exchanged between Strzok and Page contradicted this. Both individuals played pivotal roles in clearing Clinton. They were neither fair nor impartial. Their texts, uncovered by the IG, were replete with adoring compliments of the very woman they were supposed to be investigating. They lauded Clinton’s nomination and stated, “God, she’s an incredibly impressive woman” and “She just has to win now.”44

  But the fix was in several months before Clinton secured the nomination. As she was still being investigated and more than four months before the FBI would even interview her, Page predicted that Clinton would become president. Of course, that would have been impossible if the FBI had recommended a criminal indictment. That was not what top officials at the agency intended to do. In a text to Strzok on February 24, 2016, Page warned him that any aggressive tactics would backfire on the Bureau once they absolved Clinton and she became president:

  PAGE: She might be our next president. The last thing you need [is] us going in there loaded for bear. You think she’s going to remember or care that it was more DOJ than FBI?

  STRZOK: Agreed.45

  It’s worth underlining how unusually naked the concern is here. It’s easy to suspect that Clinton benefited from special treatment because agents feared retribution, but it’s astonishing to see that someone put it in writing.

  At the same time, a similar message was sent to McCabe and another FBI official. Page, Strzok, and others at the Bureau were operating their investigation on the assumption or, more likely, advance knowledge that Clinton would never be charged. That was reinforced by another text sent by Strzok on March 3, 2016, when he wrote, “God, Hillary should win 100,000,000–0.”46 Pause for a moment to consider what that message meant. Those two key FBI officials were prophesizing a Clinton presidency that could happen only if they first ensured that she would escape criminal charges.

  Many members of Congress were outraged over the Strzok-Page texts when they were discovered and released by the inspector general. They demanded answers, but the FBI stonewalled efforts to force Strzok and Page to testify. Under intense pressure and repeated demands, both of them submitted to closed-door interviews in the summer of 2018. The transcripts, however, were kept private until March 2019. The record shows that Representative Trey Gowdy (R-SC) confronted Strzok as follows:

  GOWDY: You had her running and winning before you had concluded the investigation . . . before you even bothered to interview her. That’s what we’re left with.47

  Strzok had no real answer, except to assert that his personal beliefs had not impacted the investigation. That is an implausible claim, given all of the other evidence showi
ng that Comey and his confederates dismissed incriminating facts and rewrote the meaning of criminal statutes to reach their improbable result. In the absence of an outright admission or some other confessional document, the IG was unable to declare definitively that bias had driven the FBI to clear Clinton. Horowitz did state that it had been “potentially indicated.”48

  The confidential testimony of both Strzok and Page might have remained secret but for the decision by Representative Doug Collins (R-GA) to take matters into his own hands. As the ranking member of the House Judiciary Committee, he felt authorized to release them to the public in March 2019. The transcripts provided stunning new details of how Obama’s Justice Department, with Lynch at the helm, had actively intervened to protect Clinton.

  Strzok revealed that the FBI’s access to Clinton’s personal servers, including emails related to the Clinton Foundation, had been restricted by the DOJ during the probe. He stated, “We did not have access. My recollection is that the access to those emails were based on consent that was negotiated between the Department of Justice attorneys and counsel for Clinton.”49 To a great extent, the FBI’s investigation seems to have been controlled by Clinton’s allies at the DOJ and, perhaps, by the White House. Deals were struck with Clinton’s lawyers, her computer server was largely kept out of reach, and immunity agreements were given out to her closest associates like party favors.

  Attorney General Loretta Lynch and President Obama both claimed they had never interfered with the FBI’s investigation. But Strzok undermined those claims when he was asked about how the language in Comey’s exoneration statement had been changed from “gross negligence” to “extremely careless.” He said, “My recollection is attorneys brought it up, and these, of course, were DOJ attorneys.” Page concurred that the DOJ had interfered when she was questioned by Representative John Ratcliffe (R-TX):