The Unmaking of the President 2016

by Lanny J. Davis

  So if this was what the Times story was really about, then what was all the fuss about? How did it merit a rushed posting by the Times late on Thursday night and then front-page treatment in the July 24 morning paper? And how did the Times reporters, two of the most outstanding reporters in Washington, get the core fact wrong that there was no criminal referral made by McCullough, much less made by “two IGs”? By midday, after repudiation of the story by both Justice and the IGs, obviously the Times had to withdraw the story that Clinton was personally under criminal investigation. Condemnations of both the Times and the Justice Department for getting something so important so wrong, unfairly damaging Clinton’s presidential candidacy, poured in from all over the media and from the Clinton campaign. The Times was faulted by its own public editor for the “rush to publish,” and many others criticized Justice for the “rush to confirm.” The criticism was even worse when the Times’ public editor several days later acknowledged that the paper’s reporters had not seen the July 23 memo that was the basis for their entire story, even though the reporters said that they relied on confirmations of what they had been told from multiple sources at the Justice Department.

  Virtually everyone following the presidential campaign had the same questions: What the heck had happened? The Times gets confirmations, Justice reverses itself, and two inspectors general issue a public statement rebutting a newspaper story?

  These questions had answers, albeit troubling and only completely understandable two months after the election, when the FBI first posted on its “public vault” of website documents that had previously remained undisclosed. (They will be explained in the next chapter.)

  Let’s start with how the Times reported this story and how it got it so wrong. We begin during the afternoon and evening of July 23, inside the sausage factory process among a national newspaper trying to confirm a leak, a presidential campaign not knowing the substance of the leak, and the Justice Department hastily “confirming” the story.

  That afternoon, Brian Fallon, the national press secretary for the Clinton campaign, received a call from Times reporter Schmidt. Before joining the Clinton campaign, Fallon had served as public affairs director at the Department of Justice under Attorney General Eric Holder. Schmidt was a widely respected young reporter who had been covering Congress, including the Benghazi special committee work and hearings. Schmidt asked Fallon if he had heard about a memo or some written communication from “two IGs” from the State Department and the Intel Community raising the possibility of classified material traversing Secretary Clinton’s email system.

  Fallon, a pro when it came to reading and interpreting journalists, had the impression that Schmidt was fishing. He didn’t seem to have any hard information and was looking to “feed” from Fallon’s reaction the story he didn’t yet have. But Fallon had no idea what Schmidt was talking about and told him so. Schmidt said he would call Fallon back before writing a story. Fallon at that point did nothing further, as he didn’t take Schmidt’s call seriously.

  Unbeknownst to Fallon, a couple of hours later, at about 6:30 or 7 P.M., Apuzzo, the other Times reporter working on the same story, whose primary beat was the Justice Department, called a junior Justice official who dealt with the media. Apuzzo asked for confirmation that the department had received a written criminal referral from two IGs of Intel and State seeking a “criminal investigation” of Hillary Clinton over her handling of her emails.

  This official was not a lawyer. (To maintain the promised anonymity of the former Justice Department officials who were sources for this account, I will use the pronoun “he” for all, even though the gender could be male or female.) The junior official called a senior department official, an attorney who worked near the level of the attorney general. He asked whether Clinton was under criminal investigation. The senior official paused, then said yes, he could confirm.

  “Are you sure?” the junior official asked. He knew that confirming to Apuzzo would trigger a major Times story. Announcing that Hillary Clinton was under criminal investigation could be a game changer affecting the election. We had better be right in confirming, he thought. We can always give no comment tonight and wait to see whether we can get more information tomorrow morning, he said to the senior official.

  The senior official said he would check with others and call back, which he did shortly thereafter. He told the junior official that he had spoken to another department official. “He said I could confirm the criminal referral, saying, ‘It is what it is.’ ” The senior official also added, vaguely, that he had gotten the same confirmation from an FBI official.

  So the junior official, still with serious doubts, called Apuzzo back at about 8 P.M. on July 23 and said he had gotten confirmation of a criminal referral about Clinton’s emails.

  At 8:36, Schmidt called Fallon back. Unlike his earlier call in the afternoon, Schmidt now sounded far more definite and ready to go with a story. He told Fallon that the Times had received a “separate tip” that two IGs had sent a criminal referral to Justice about Hillary Clinton being under investigation over her emails. (Fallon had a hunch the leak came from someone on Capitol Hill. He guessed it was someone from the House Benghazi Committee, since that was the committee Schmidt had covered previously.)

  Fallon’s adrenaline spiked along with his heartbeat. If true, this was very serious; it could represent a grave threat to the Clinton campaign, which, in the summer of 2015, was already in a competitive contest with Vermont senator Bernie Sanders for the nomination.

  Fallon told Schmidt he hadn’t heard anything about a criminal referral to Justice about Clinton. He thought it was implausible since he figured someone from the legal advisers to Clinton (or himself, as a former Justice Department official) would have heard about it, even vaguely. Fallon asked Schmidt how certain was he about the truth of this tip. Had he challenged the “tipster” to show him the document that was the basis of the tip? No answer.

  Fallon still had a feeling that Schmidt didn’t have it all completely nailed down and hadn’t seen the document that had triggered his call. Fallon asked whether he could have more time to check this out with senior campaign officials. Schmidt said that was fine, that Fallon “had time,” suggesting publication of the story was not imminent.

  Despite the late hour—it was close to nine o’clock, and Fallon was now alone at Clinton’s Brooklyn campaign headquarters, still not having eaten dinner—Fallon knew he needed to immediately assemble the high command of the campaign. He called communications director Jennifer Palmieri, who had gone out to dinner, and told her about the most recent call from Schmidt. She immediately returned to Clinton HQ. Palmieri and Fallon organized a conference call of senior advisers and lawyers. Fallon told everyone what Schmidt had said and asked whether anyone knew anything. The answer was no. He asked everyone to check with their sources at Justice and Capitol Hill and get back to him ASAP. He heard back not too long after: No one had heard anything.

  Fallon was relieved. If Justice was initiating a criminal investigation of Hillary Clinton, Fallon, a veteran of breaking news stories, believed there would have been various leaks already occurring and maybe other news organizations chasing the same leak.

  Fallon was certain of one thing: Schmidt and the Times would not go with a story of such importance and potential damage to Clinton’s presidential candidacy without calling back to seek a comment, and perhaps share the basis of the information that had been confirmed as true.

  Meanwhile, Apuzzo had apparently received confirmation of the criminal referral from other sources at Justice. Even though neither he nor Schmidt had read the July 23 memo that had been characterized by the “tipster” as a “criminal referral,” both reporters were confident that they had multiple sources at the Justice Department confirming the story.

  When Fallon hadn’t heard back from Schmidt after 10 P.M., he was a little concerned. At 10:36, he attempted to call Schmidt on his cell phone. No answer. He left a voice mail. But Fall
on was still confident that there could be no story written before he heard back from Schmidt. The Times and Schmidt would never do such a thing, he thought.

  Eighteen minutes later, Fallon called again. Voice mail again. Fallon left another message. He was now more concerned.

  Just before eleven o’clock, Fallon’s cell phone rang. It was Schmidt. “I assume you are not writing and still checking out the ‘tip,’ ” Fallon said.

  Schmidt replied, “Sorry, that’s not correct. The story has just been published on the Times website.”

  “What?” asked Fallon. He hung up in a fury. He and Palmieri immediately went to the Times website. They were horrified to see the headline and story that Hillary Clinton was under criminal investigation at the request of two IGs for possibly mishandling sensitive information on her private emails.

  Fallon was angry at Schmidt and the Times for violating what he thought was a fundamental rule of fairness between a journalist and a source: You don’t publish a story that could do damage to anyone, much less a front-running presidential candidate, without calling and giving the subject a chance to respond.

  Fallon immediately called Schmidt to express his anger. He also spoke to Apuzzo. It was apparent to Fallon that neither reporter had read the memo from the IGs that seemed to be the basis for the “tip” they had received. Fallon still didn’t know that Justice Department officials had already confirmed the story.

  After heated discussion back and forth, with each reporter separately hearing Fallon’s protests that they didn’t have a hard confirmation that Hillary Clinton was under personal criminal investigation, Fallon sensed that aspect of their story might be shaky. A short time later, by then near midnight on July 23, Fallon learned that the Times had filed a revised version of the story, deleting the personal reference to Clinton as the subject of the criminal investigation. The revised version switched to a passive tense, omitting Clinton’s name—now the “criminal referral” by the “two IGs” was about “whether a sensitive government investigation was mishandled.”

  But the Times made this subtle tense change in the story without informing the readers at the time. (Four days later, on July 27, a relatively lengthy Editors’ Note acknowledged that the failure to inform the readers of the deletion of Hillary Clinton as a personal subject of the investigation was an error.) However, that change didn’t help Clinton at all.

  The story as first posted, with “criminal investigation” in the headline, was repeated across mainstream websites and social media overnight and on all the Friday morning network and cable news shows. The Clinton campaign’s frantic efforts to inform other media outlets about the deletion of Hillary Clinton as personally the subject of the “referral” were ineffectual.

  The damage was done. As the Times public editor put it in her lengthy July 27 critique of the article, “You can’t put stories like this back in the bottle—they ripple through the entire news system.”

  The next morning, at the usual early morning senior staff meeting attended by top Justice Department officials, no one in the room offered any objections to the Times story. Other news organizations—as well as the Times again—called the Justice Department that morning and got the same confirmation that had been given to the Times the night before.

  Meanwhile, according to a close source to ICIG McCullough, he was unaware of the Times’ front-page story in the early morning of July 24, and was driving on the Washington, DC, Beltway, heading for his Virginia office, when his cell phone rang. It was State’s IG, Steve Linick.

  “Have you seen this morning’s Times?” Linick reportedly asked.

  “Not yet,” McCullough is said to have replied. McCullough pulled over to look at his phone.

  “There’s a real shit storm going on,” Linick is reported to have said. “Neither of us made a criminal referral about Hillary Clinton and emails—am I right?”

  McCullough scanned the Times story. He may have said words that would require an “expletive deleted” expression. “No, of course not,” McCullough said. The referral he had made early in the month to the FBI, and summarized in his July 23 memo to Congress, was about bolstering State’s efforts to review Clinton’s emails for possible classified information before any decisions on disclosure should be made under FOIA. That was a security referral, not a criminal referral, he said.

  Both McCullough and Linick reportedly knew they had to do something fast to correct the misreporting by the Times and calm down the “shit storm.” McCullough raced to his office of the ICIG in northern Virginia to begin drafting a corrective statement, reportedly also in touch with the Justice Department about what he and Linick were working on to correct the misreporting.

  Meanwhile, Justice officials, embarrassed about their erroneous confirmation to the Times the night before that the two IGs had made a criminal referral, were also at work on a corrective statement. Sources report that by then they actually had read a copy of the McCullough July 23 memo to Congress. It didn’t take long to read the two-page document and to see that there was no “criminal referral” mentioned. So the difficult and embarrassing decision was made at senior levels at Justice to reverse its prior confirmations. The junior official who had confirmed to Apuzzo the night before heard the news and called Apuzzo immediately to tell him. He deserved to hear first, the official explained. His reaction was not positive.

  At 12:15 P.M. on Friday, the Justice Department announced its retraction of its prior confirmations of a “criminal referral” by the ICIG. Rather, they described it, for some reason without further explanation, as a “security referral.” The media reaction critical of Justice was severe not only for the department’s haste to confirm but also its failure to explain its reversal.

  * * *

  At about the same time, the two IGs—ICIG McCullough and State’s IG Linick—issued their unusual joint public statement directly contradicting the Times front-page story that morning, saying they had not made a “criminal referral” regarding Hillary Clinton’s handling of the emails, but rather a “security referral” for “counterintelligence purposes.”

  A close examination of this crucial joint July 24 public statement by the two IGs sheds light on a lot of the subsequent misreporting on the Clinton email issue by mainstream media through the rest of Hillary Clinton’s campaign. The key reporting errors made by the mainstream media can be seen, in retrospect, to go back to the distinction between a noncriminal “security referral” versus a criminal referral. The media consistently failed to report the crucial distinction between Clinton emails that had no appropriate classified markings and those unmarked emails that were described as “containing classified information,” based on post-facto judgments by some Intel Community members that were, at the very least, subject to debate and that occurred in a tiny fraction (well below 1 percent) of the thirty thousand plus Clinton State Department emails sent to her private server. The distinction is crucial: between what was legal versus what was illegal.

  Now let’s examine the key sentences of the July 24 public statement by the two IGs with comments about their implications for the handling of the Clinton email issue by the media for the remainder of the campaign:

  Yesterday [July 23] the Office of the Inspector General of the Intelligence Community (ICIG) sent a congressional notification to intelligence oversight committees updating them of the ICIG support to the State Department IG (attached).

  The ICIG found four emails containing classified IC-derived information in a limited sample of 40 emails of the 30,000 emails provided by former Secretary Clinton. The four emails, which have not been released through the State FOIA process, did not contain classification markings and/or dissemination controls.

  Note no “classification markings and/or dissemination controls” on four out of forty. These four emails were identified after an inspector in McCullough’s IG office in Virginia visited the State Department for two days at the end of June and reviewed the thirty thousand plus Clinton emails. He was
forced to stop after two days but was allowed to take a sample of forty emails that he believed might “possibly” include classified information. Subsequently, Intel Community experts reviewed these forty and identified four that they believed contained classified information.

  As we shall see, although this sample was only forty out of thirty thousand, at the end of the year-long FBI investigation, none of the thirty thousand Clinton emails would be found to have appropriate classification markings. This was confirmed by the source close to ICIG McCullough. Yet the crucial distinction between documents appropriately marked and not marked was either ignored or confused by Republicans, intentionally conflated to suggest that unmarked documents could be the basis of criminal prosecution. Note also that the reference to “30,000 emails provided by former Secretary Clinton” does not distinguish between emails she received from others and simply forwarded and those she created. We now know that most of the more than three hundred senior State Department officials sent Hillary Clinton emails through unsecure channels, using the state.gov system. Therefore, these officials did not believe the emails contained any classified information. In his July 23 memo, the ICIG seemed focused only on Secretary Clinton’s transfer of the emails to her private server, and not the more than three hundred diplomats who sent her these emails through the state.gov unsecure system. Why?

  These emails were not retroactively classified by the State Department; rather these emails contained [unmarked] classified information when they were generated and, according to IC classification officials, that information remains classified today. This classified information should never have been transmitted via an unclassified personal system.

  While this sentence states that the “classified information should never have been transmitted via an unclassified personal system,” the statement omits the word “unmarked”—which was not disputed by McCullough. Indeed, according to the knowledgeable source, McCullough was not aware of any Clinton emails that were appropriately marked as required by the Classified Manual. McCullough would not dispute that his use of the word “should” in “should never have been transmitted” is based on the subjective judgment of some Intel Community officials who made that judgment—a judgment that was vulnerable to dispute by other experts at State and elsewhere.