Truthdig
The Problems With the FBI's Email Investigation Went Well Beyond Comey
http://www.truthdig.com/report/item/the_problems_with_the_fbis_email_investi
gation_went_well_beyond_20170511/
Posted on May 12, 2017
By Peter Elkind / ProPublica
(https://www.propublica.org/article/problems-with-fbi-clinton-email-investig
ation-went-well-beyond-comey)
Former FBI Director James Comey shakes hands with a California Highway
Patrol officer in Los Angeles in this video still
(http://www.independent.co.uk/news/world/americas/us-politics/james-comey-fi
red-memo-letter-in-full-rod-rosenstein-read-trump-sacks-fbi-director-a772724
6.html) taken Tuesday, the day he was fired. (The Independent)
This piece is a collaboration between The New Yorker
(http://www.newyorker.com) and ProPublica
(https://www.propublica.org/article/problems-with-fbi-clinton-email-investig
ation-went-well-beyond-comey) .
On Tuesday, when Donald Trump abruptly dismissed the FBI director
(http://www.newyorker.com/news/john-cassidy/donald-trump-has-attacked-americ
an-democracy) , James Comey, his administration insisted that he was merely
following the recommendation of his attorney general and deputy attorney
general, the two most senior officials in the Justice Department.
In a three-page memorandum attached to Comey's termination letter, the
deputy attorney general, Rod J. Rosenstein, cited concern for the FBI's
reputation and credibility. He said that the director had defied Justice
Department policies and traditions and overstepped his authority in the way
he handled the Hillary Clinton email investigation.
This was a puzzling assertion from the Trump administration, not least
because Trump is widely acknowledged to have reaped the benefits of Comey's
actions on Election Day. After the FBI director sent his letter to Congress
(http://www.newyorker.com/news/john-cassidy/james-comeys-october-surprise) ,
on Oct. 28, about the discovery of new Clinton emails and the Bureau's plans
to assess them, Trump praised Comey for his "guts" and called the news
"bigger than Watergate."
In the aftermath of Comey's firing, Democrats and some Republicans in
Congress have proposed a far more credible explanation for Trump's action,
accusing the President of trying to halt the FBI's investigation
(http://www.newyorker.com/news/news-desk/how-comeys-firing-accelerates-the-r
ussia-investigations) into Russian interference in the election and
possible collusion with his campaign. Some of those legislators, as well as
many critics in the press, have said that Trump has ignited a constitutional
crisis, and they called for the appointment of an independent prosecutor to
carry out the Russia investigation.
Comey's dismissal came just as his Russia probe appeared to be widening.
Just last week, the FBI director went to Rosenstein, who had been in his job
only for a few days, to ask for significantly more resources in order to
accelerate the investigation, according to The New York Times. Tensions
between the Trump administration and Comey had been escalating already, and
Trump's fury over the FBI's Russia probe remained full-throated. On Monday,
Trump tweeted that the inquiry was a "taxpayer funded charade."
It is now clear that the aim of Rosenstein's memo was simply to provide a
pretext for Comey's firing. White House officials may have thought it would
be a persuasive rationale because Comey has come in for criticism from
leaders of both political parties. Trump had been harboring a long list of
grievances against the FBI director, including his continued pursuit of the
Russia probe. On Thursday, Trump confirmed in an interview with NBC News'
Lester Holt that, even before he received the deputy attorney general's
memo, he had already made up his mind to dismiss Comey. In the end, Comey's
conspicuous independence-for so long, his greatest asset-proved his undoing,
making him too grave a threat to Trump but also giving the president a
plausible excuse to fire him.
Rosenstein's memo does reflect genuine frustration inside the Justice
Department about the FBI's handling of the Clinton emails, and betrays
long-standing fissures between the two institutions, which are headquartered
across from each other on Pennsylvania Avenue. Rosenstein, a Trump appointee
who was previously the U.S. attorney in Maryland, titled his memo "Restoring
Public Confidence in the F.B.I." In the wake of Comey's ouster, the FBI's
impartiality and competence remains an essential issue, making understanding
what actually happened in the Clinton email inquiry urgent as well.
Comey's announcement about the discovery of the new Clinton emails did break
with written and unwritten Justice Department guidelines against interfering
with elections. Last week, during testimony before Congress
(http://www.newyorker.com/news/john-cassidy/james-comeys-remarkable-five-hou
rs-on-capitol-hill) , Comey cast the move as a singularly difficult decision
and an act of principled self-sacrifice, driven by events far beyond his
control. "I knew this would be disastrous for me personally," he said. "But
I thought this is the best way to protect these institutions that we care so
much about."
A close examination, however, of the FBI's handling of the Clinton emails
reveals a very different narrative, one that was not nearly so clear-cut or
inevitable. It is one that places previously undisclosed judgments and
misjudgments by the Bureau at the very heart of what unfolded.
"I could see two doors and they were both actions," Comey recounted in
testimony before the Senate Judiciary Committee. "One was labelled 'speak';
the other was labelled 'conceal. ... I stared at 'speak' and 'conceal.'
'Speak' would be really bad. There's an election in eleven days-lordy, that
would be really bad. Concealing, in my view, would be catastrophic, not just
to the FBI but well beyond. And, honestly, as between really bad and
catastrophic, I said to my team, 'We got to walk into the world of really
bad.' I've got to tell Congress that we're restarting this, not in some
frivolous way-in a hugely significant way."
But by the time Comey elected, on Oct. 28, to speak, rather than conceal, he
and his senior aides had actually known for more than three weeks that
agents sifting through files on a laptop belonging to the former congressman
Anthony Weiner, as part of a sex-crimes investigation, had stumbled across
emails sent by Clinton when she was secretary of state. The agents had been
unable, legally, to open the emails, because they fell outside the bounds of
their investigation of Weiner.
FBI officials kept the discovery to themselves. Without consulting or even
informing the Justice Department lawyers who had worked on the email
inquiry, FBI officials concluded that they lacked the evidence to seek a
search warrant to examine the emails right away. Several legal experts and
Justice Department officials I spoke to now say that this conclusion was
unnecessarily cautious. FBI officials also ruled out asking Weiner or his
wife, Huma Abedin, one of Clinton's closest aides, to allow access to the
laptop-
permission their lawyers told me they would have granted.
Instead, New York agents working the Weiner investigation, which centered on
allegations of an explicit online relationship with a 15-year-old girl, were
told to continue their search of his laptop as before but to take note of
any additional Clinton emails they came across.
In the days that followed, investigators slowly sorted through the laptop's
contents, following standard protocols in a case that was anything but
standard, and moving with surprisingly little dispatch to assess the
significance of the emails.
After weeks of work, the agents concluded that the laptop contained
thousands of Clinton messages, a fact they waited at least three more days
to share with Comey. Finally, as Comey recounted before Congress last week,
the FBI director convened his top aides in his conference room at Bureau
headquarters to weigh the political and institutional consequences of what
to do next.
At this point, Comey and his deputies were venturing far beyond their
typical purview as criminal investigators. Under normal circumstances,
department policies discouraged public discussion of developments in ongoing
cases of any kind; with the election fast approaching, there was the added
sensitivity of avoiding even the perception of interference with the
political process. But FBI officials worried that agents in New York who
disliked Clinton would leak news of the emails' existence. Like nearly
everyone in Washington, senior FBI officials assumed that Clinton would win
the election and were evaluating their options with that in mind. The
prospect of oversight hearings, led by restive Republicans investigating an
FBI "cover-up," made everyone uneasy.
One more misjudgment informed Comey's decision. FBI officials estimated that
it would take months to review the emails. Agents wound up completing their
work in just a few days. (Most of the emails turned out to be duplicates of
messages collected in the previous phase of the Clinton investigation.) Had
FBI officials known that the review could be completed before the election,
Comey likely wouldn't have said anything before examining the emails.
Instead, he announced that nothing had changed in the Clinton case-on Nov.
6, just two days before the election, and after many millions had already
cast their ballots in early voting.
The debate over Comey's effect on the 2016 election and, now, his historic
dismissal, is likely to persist for years. In the months since Donald Trump
became the nation's 45th president, a number of media organizations-most
recently, The New York Times-have scrutinized Comey's handling of the
Clinton emails. They have also examined Comey's accompanying silence about
the Bureau's investigation of possible ties between the Trump campaign and
Russia, an inquiry that began in July of 2016.
Clinton traces her loss directly to Comey; she asserted recently that if the
election had been held on Oct. 27, "I would be your president." Trump
retorted, in a tweet, that the FBI director was "the best thing that ever
happened to Hillary Clinton in that he gave her a free pass for many bad
deeds!"
This account is based on interviews with dozens of participants in the
events leading up to the election. They include current and former officials
from the FBI and the Justice Department who were eager to have their actions
understood but unwilling to be quoted by name. Comey himself declined my
requests for an interview. Back in early January, however, he replied
politely to a written interview request, acknowledging that he was aware of
my "ongoing work." He wrote from an email address whose whimsical name, he
said, "the Russians may have a harder time guessing."
Comey added a note of intrigue, suggesting that there were unappreciated
complexities to the story that hadn't yet become known: "You are right there
is a clear story to tell-one that folks willing to actually listen will
readily grasp-but I'm not ready to tell it just yet for a variety of
reasons."
***
During his testimony before Congress
(http://www.newyorker.com/news/john-cassidy/james-comeys-two-door-choice)
last week, Comey said that the possibility that he'd influenced the outcome
of the Presidential election made him "mildly nauseous." Previously, over
two decades of public service, Comey had made independence from partisan
politics the foundation of his political identity. Comey, who is 56 years
old, had been the rarest of creatures in Washington: A Republican even
Democrats could love.
A registered Republican for most of his adult life, Comey had made a point
of telling a congressional committee last July that he was no longer
affiliated with either party. (His distance from partisan politics extends
to the voting booth; records show that Comey hasn't voted in a primary or
general election in the past decade.)
Comey rose to prominence through the Justice Department, first as a federal
prosecutor in New York and Virginia, and then as the United States attorney
in Manhattan, and the deputy attorney general under President George W.
Bush. From early on, colleagues say, Comey carefully cultivated a reputation
for integrity and nonpartisanship. Until the events of the past year, it had
always served him well. "He knew what was the right thing to do," a former
federal prosecutor who worked with Comey told me. "But he figured out how to
execute it in a way that, whatever the result, Jim Comey would be protected.
I say that respectfully. He has an exceptional gift for that."
Comey liked to map out the ramifications of major decisions, often in
lengthy meetings with deputies. At critical moments in his career, Comey
showcased his independence-too eagerly, in the view of some who accuse him
of "moral vanity." "I think he has a bit of a God complex-that he's the last
honest man in Washington," a former Justice Department official who has
worked with him told me. "And I think that's dangerous."
Daniel Richman, a Columbia law professor and close friend of Comey who has
served as his unofficial media surrogate, acknowledged Comey's penchant for
public righteousness. "He certainly does love the idea of being a protector
of the Constitution," Richman said. "The idea of doing messy stuff and
taking your lumps in the press." But Richman, who worked with Comey as a
federal prosecutor in Manhattan, insisted that Comey's motivations were
sincere. "More than most people, he thinks that when it comes to making
really difficult decisions, transparency and accountability have incredible
value," Richman said.
Among scores of people I interviewed, not even Comey's harshest critics
believe that he acted out of a desire to elect a Republican president. Comey
built his reputation by taking on powerful figures of both parties. Most
famously, while serving as acting attorney general under George W. Bush,
he'd raced to the hospital bedside of the ailing attorney general, John
Ashcroft, to confront administration officials seeking Ashcroft's
reauthorization for a domestic surveillance program that the Justice
Department considered illegal. Comey's congressional testimony, in 2007,
about the confrontation raised his public profile, earning him encomiums
from both parties. In 2013, after Comey completed a seven-year interlude in
the private sector, Barack Obama chose the Republican lawyer as the director
of the FBI. "To know Jim Comey is also to know his fierce independence and
his deep integrity," the president declared, in a Rose Garden ceremony. The
Senate confirmed him 93 to 1.
The FBI is a division of the United States Department of Justice, and its
director reports to the attorney general. But, from the start of his 10-year
term at the FBI, Comey asserted a belief in the agency'ss right to chart its
own course. "The FBI is in the executive branch," Comey likes to say, "but
not of the executive branch."
***
The investigation of Clinton's emails was exactly the sort of challenge
Comey seemed to have spent his career preparing for. The FBI formally opened
its probe on July 10, 2015, just three months after Clinton announced her
candidacy for president. "We all recognized it was a no-win situation," the
former FBI Executive Assistant Director John Giacalone, who helped oversee
the investigation's first seven months, said. At the outset, the goal was to
finish the investigation by the end of 2015-before the first primary votes
were cast. It took twice that long, barely ending before the party
conventions in July 2016.
The focus of the inquiry, run out of FBI headquarters because of its
sensitivity, was whether Clinton's use of an unclassified email system
housed on private servers in the basement of her Chappaqua home violated any
laws or allowed hackers and foreign governments to access government
secrets. It was staffed by a core team of a dozen FBI agents and analysts,
along with two prosecutors from the Justice Department's National Security
Division and two from the Eastern District of Virginia.
Much of their time was taken up trying to find and examine all of the
roughly 62,000 messages from Clinton's four years as secretary of state,
which began in January 2009; two of Clinton's lawyers had deleted about half
of the emails, deeming them purely personal. This had sent the FBI on an
often frustrating hunt for the missing emails. Agents fanned out to locate,
examine and reconstruct scattered hardware and data backup systems from
Clinton's private network, as well as all the BlackBerrys, iPads, computers
and storage drives that Clinton, her aides and her lawyers had used.
Forensic recovery would eventually help the FBI to find 17,448 deleted
emails, including thousands that agents deemed work-related.
Even as thousands of messages remained elusive, the investigators ultimately
reached consensus that the evidence didn't warrant criminal charges, which
required proof of intentional misconduct, gross negligence or efforts to
obstruct justice. After nearly a year and more than 90 interviews, they had
identified 81 message chains deemed to be classified that passed through her
private server. Clinton's practices were sloppy, irresponsible and in
defiance of State Department policies, but investigators found no proof of
criminal conduct-just a misguided effort by Clinton to maintain control over
what the public, and her opponents, could learn about her.
As the inquiry neared its end, Comey, who had closely monitored it from the
start, requested summaries of more than 30 government prosecutions involving
mishandling of classified information. He waded through the records, seeking
to understand the cases' rationale and how they had been resolved. In the
end, he agreed with the investigators' unanimous conclusion: Clinton should
not face criminal charges.
***
By June 2016, the FBI and the Justice Department were jointly weighing the
question of how to reveal their decision in the midst of the presidential
campaign. FBI and Justice officials had been discussing for weeks a major
departure from the usual handling of a criminal inquiry that ended without
charges.
The final interview, with Clinton herself, was scheduled for Saturday, July
2, at FBI headquarters. Agents planned to spend the next week completing a
confidential memo detailing their findings, assuming nothing new
materialized. Then, in accord with standard Justice Department procedure,
the supervising prosecutors and agents, along with top officials from both
the Justice Department and the FBI, would privately brief the attorney
general, Loretta Lynch, on their recommendation against bringing charges.
She would accept, closing the case.
Lynch was a widely respected 17-year Justice Department veteran who had
previously served as the United States attorney for the Eastern District of
New York, under President Bill Clinton and, then, President Obama. In April
2015, a Republican-controlled Senate confirmed her to replace Eric Holder as
attorney general. The first African-American woman to serve as attorney
general, Lynch was a graduate of Harvard Law School, the daughter of a
librarian and a Baptist preacher and the sister of a Navy SEAL. She'd
prosecuted corrupt politicians from both parties and was viewed as a career
prosecutor, not a political figure. But the Trump campaign and conservative
websites called her integrity into question. Any exoneration of Clinton,
they said, would be tainted because Lynch was an Obama appointee.
So the Justice Department and the FBI together plotted an unusual strategy.
Over weeks of meetings, they discussed a plan in which Comey and Lynch would
appear together at a news conference. After announcing the FBI's
recommendation and the attorney general's acceptance of it, they would
affirm their mutual confidence in the thoroughness and integrity of the
investigation. Given the public appetite for more information, officials
also considered sending a limited summary of their findings to the inspector
general for the intelligence community. He had referred the matter for
investigation in the first place, and could choose to make the summary
public.
"It hadn't all been sketched out," a former Justice Department official
familiar with the matter told me. "But there were conversations about how it
could go. There were these discussions between the buildings, leadership to
leadership. Everyone knew how this rolled out was really important."
Comey had his own ideas. Unbeknownst to his Justice Department colleagues,
Comey had resolved to proceed alone with the announcement. Since May, he had
been holding a parallel series of meetings with top FBI confidants to thrash
through his plan. He would publicly announce-and explain-the Clinton
decision without Lynch at his side. "We had discussions for months about
what this looked like," Michael Steinbach, who retired as the FBI's
executive assistant director for national security in February 2017, said.
"This, for us, was the best course of action, given the political situation
that we were in-for us to do it independently."
As Comey saw it, according to Steinbach and others familiar with his
thinking, the public doubted Lynch's independence and would be less likely
to accept the decision if she were involved in announcing it.
Comey and his aides had another motivation for acting alone. In their view,
the American people were entitled to hear the investigators' views of
Clinton's conduct, something they believed Lynch would not allow. Justice
Department policies frown upon officials commenting on investigations,
especially if they are making subjective remarks about people whom
prosecutors have declined to charge. But with Election Day just four months
away, FBI officials felt that it was essential to provide a fuller
accounting "that allowed the American people to make an informed decision,"
Steinbach said. "Our concern, as we got closer to the election, was to make
sure that the American people understood we found no evidence of a crime but
we did find evidence of misconduct."
FBI officials began drafting a lengthy statement that explained their
recommendation not to prosecute but was, nevertheless, harshly critical of
Clinton. "For the director to get that out, he's either doing it alone or
he's not doing it," Steinbach told me. "DOJ's not going to let it happen."
Then, on the evening of June 27, former President Bill Clinton and Lynch
both happened to be on the tarmac at the Phoenix Sky Harbor International
Airport, and the ex-president strode aboard her government plane. When news
of the visit
(http://www.newyorker.com/news/daily-comment/bill-clintons-bad-judgment)
inevitably spilled out, both Lynch and Clinton insisted that they'd merely
discussed golf and family matters during a 30-minute conversation.
For those who felt that the Obama administration was doing everything it
could to help Hillary Clinton win, the encounter was conclusive proof.
"SNAKES ON A PLANE," the New York Post screamed. "Bill's shady meeting
taints probe." Lynch declined to recuse herself from the case but said that
she fully expected to accept whatever recommendation the FBI agents and
career prosecutors made.
The tarmac episode reinforced Comey's conviction to act on his own. The FBI
interviewed Clinton the following Saturday, July 2. Justice Department
officials settled in to wait for a draft of the FBI's report.
Instead, at about 10:30 a.m. on July 5, Justice Department officials
received an informal heads-up: In 30 minutes, Comey was going to hold a live
televised press briefing at FBI headquarters. Before stepping in front of
cameras, Comey sent an email to all FBI employees with a copy of his
prepared remarks and an explanation of why he was speaking so freely and on
his own. "I am doing that," Comey wrote, "because I think the confidence of
the American people in the FBI is a precious thing, and I want them to
understand that we did this investigation in a competent, honest, and
independent way."
Moments later, Comey delivered what he called an update on the FBI's
investigation. He told reporters, "This is going to be an unusual statement
in at least a couple of ways. First, I'm going to include more detail about
our process than I ordinarily would, because I think the American people
deserve those details in a case of intense public interest. And, second, I
have not coordinated this statement or reviewed it in any way with the
Department of Justice or any other part of the government. They do not know
what I'm about to say."
Comey then described Clinton as "extremely careless" in handling "very
sensitive, highly classified information." As "any reasonable person" in her
position "should have known," Comey declared, a private, unclassified email
server "was no place for that conversation." Despite these statements, Comey
concluded that, because there was no evidence of intentional misconduct or
efforts to obstruct justice, "no reasonable prosecutor would bring such a
case."
Late the following afternoon, Lynch met with the FBI director, agents and
prosecutors for their formal briefing. In a two-sentence statement, the
Justice Department announced that the attorney general had accepted their
"unanimous recommendation."
Partisan outrage was immediate. Conservative media and Trump surrogates
accused Comey of protecting Clinton and preventing rank-and-file FBI agents
from pursuing the truth. During nine hours of congressional hearings in
which Comey elaborated further on his opinions of Clinton's conduct,
Republicans repeatedly questioned his reasoning for ending the investigation
without charges.
Perhaps more worrisome to Comey was the rising discontent within the FBI.
The retired assistant director James Kallstrom, a Trump backer who had run
the New York field office from 1995 to 1997, became a fixture on Fox News
and Fox Business, where he attacked Comey's "nonsensical conclusion" in the
Clinton probe and highlighted the "disgust" of "hundreds" of active and
retired agents, including some "involved in this thing" who "feel like
they've been stabbed in the back." Kallstrom said, "I think we're going to
see a lot more of the facts come out in the course of the next few months.
That's my prediction."
For their part, Justice Department officials were incredulous at Comey's
decision to proceed without them. On Tuesday, in his Comey memo, Rosenstein
said that the FBI director was "wrong to usurp the Attorney General's
authority" by announcing "his own conclusions about the nation's most
sensitive criminal investigation." He added, "It is not the function of the
Director to make such an announcement," and "the Director ignored another
longstanding principle: we do not hold press conferences to release
derogatory information about the subject of a declined criminal
investigation."
A recent report in The New York Times raised the prospect of another factor
in Comey's calculations. Early last year, another FBI investigative team had
found a memo or email hacked by the Russians in which a Democratic operative
expressed confidence that Lynch would protect Clinton. According to the
Times, Comey worried that if Lynch were involved in the Clinton announcement
and the Russians leaked the document, then voters would not trust the
inquiry.
But Comey did not confront Lynch, demand that she recuse herself or raise
the matter with the deputy attorney general, Sally Yates, former Justice
Department officials told me. Instead, he sent an aide to confer with David
Margolis, a respected senior Justice Department official, who has since
died. Margolis never raised the issue with department leadership. Two former
officials who have seen the document told me that it was never a real
concern. Comey and his defenders, they insisted to me, are now engaged in
"revisionist history."
***
In May 2016, just as the FBI's investigation into the Clinton emails was
nearing its final stages, a young woman in Indiana named Sydney Leathers
received a Facebook message from someone she did not know.
Three years earlier, Leathers had earned notoriety as Anthony Weiner's most
famous sexting partner. Leathers, then a 23-year-old college student, had
come forward, at first anonymously, with details about her online
relationship with the disgraced former congressman, who had gone by the
screen name Carlos Danger. Leathers' story inspired countless tabloid
headlines and ended Weiner's political comeback
(http://www.newyorker.com/news/amy-davidson/anthony-weiner-his-sex-messages-
and-his-wife) as a candidate for mayor of New York City. Leathers quickly
cashed in, selling her story to tabloid media, letting "Inside Edition"
record her cosmetic surgery makeover, starring in porn films and charging
for phone sex and webcam services.
The messages Leathers received in 2016 were from someone who identified
herself as a 15-year-old in North Carolina. The sender said she had been
sexting with Weiner, but Leathers was skeptical. "I just thought it was a
crazy person," she told me.
Leathers changed her mind after the girl sent screen shots from months of
exchanges with the former congressman. The teenager wanted to go public, but
Leathers urged her to call the police instead. "I don't claim to be a
morality queen," Leathers said. "I don't care if he was sexting another
adult. But, if it's a child, it's another story. I felt a little protective
of her."
After it became clear that the teenager was determined to tell her story,
Leathers said she shifted to "damage control."
"How can I at least make you some money?" she said she asked the teenager.
"I basically said, 'The only way you should do this is if they pay you.'
Certain outlets will pay you to talk, and I had made deals with a lot of
them." Leathers' agent alerted dailymail.com, the online version of a
British tabloid with which she'd previously done business. Both Leathers and
the girl received a sizable fee; the teen's father, an attorney, helped
negotiate her payment.
On July 30, Leathers took another step. She had not communicated with Weiner
for years, but she decided to send him a private Facebook message that
amounted to a half-warning, half-scold:
This is super awkward but you need to know something. There's a 15-year-old
girl named [redacted] messaging me and she's claiming you guys sext and
skyped. And that you know how old she is. For once I'm keeping my mouth
shut. I want nothing to do with this. Frankly, I hope it isn't true. But she
showed me a screenshot that looks legit to me. How have you not learned your
lesson? This is another level of fucked up. I suggested to her not to talk
to the press so you're welcome but you may want to refrain from messaging
anyone under 18 for gods sake. If she is really someone you've been talking
to, you better cut that off quickly. She's talking about potentially messing
with Hillary's campaign. I am kind of pissed to be put in this situation to
be honest.
The Daily Mail story appeared on Sept. 21. The 2,200-word article was
accompanied by dozens of screen captures, displaying half-clad photos and
suggestive texts that Weiner had sent the teenager, a high school sophomore
whose name was withheld. She told the Daily Mail that she had contacted
Weiner, then 51, in late January 2016. During online video chats, she said,
Weiner had invited her to undress and masturbate. She said he'd urged her to
engage in "rape fantasies." The girl's father said that he'd learned of the
relationship in April but did not alert the police because his child
believed the relationship was "consensual" and "I didn't want to exacerbate
anything that she has mentally going on." The article included four pictures
of Weiner's wife, Huma Abedin, including one of her with Hillary Clinton.
Abedin was perhaps Clinton's closest aide
(http://www.newyorker.com/news/news-desk/understanding-huma) , often
described as a surrogate daughter. She had met Clinton in 1996, while she
was a White House intern, and spent her entire adult life working for her.
When Abedin married Weiner, in 2010, Bill Clinton officiated at the
ceremony; the couple had a son a year later.
When the FBI began investigating the Clinton emails, in 2015, agents had
taken special interest in Abedin because she was one of the four aides who
served as conduits for most of Clinton's State Department messages,
screening them, forwarding them and printing them out for her boss. When
agents interviewed Abedin on April 5, 2016, she told them that she had used
Yahoo and state.gov accounts while working in the State Department, as well
as an email address on Clinton's private basement server,
huma@xxxxxxxxxxxxxxxx.
They asked Abedin what devices she used for email, at work and home, and
whether she'd kept any archive. According to FBI notes of the interview,
Abedin said that she had already turned over everything she had to the State
Department. The agents did not ask to inspect any personal computers at her
Manhattan apartment, where she lived with Weiner and their son. Her lawyer
would later publicly insist that Abedin had no idea that her exchanges with
Clinton were on his laptop. The couple has since separated.
The Daily Mail story raised the possibility of serious criminal charges for
Weiner. If he had encouraged an underage female to take explicit photos or
video of herself, he could be charged with producing child pornography, a
felony that carries a minimum prison term of 15 years. FBI agents in New
York immediately began investigating.
On Sept. 26, after federal prosecutors in New York obtained a search
warrant, and the FBI collected Weiner's iPhone, iPad and laptop. Agents
began examining the computer-a silver, 15.6-inch 2015 Dell Inspiron 7000-for
any pictures, videos or other evidence involving Weiner's teenage sexting
partner. An agent sorting through the contents of the hard drive came across
a jolting find: a State Department memo and some emails between Abedin and
Hillary Clinton. The documents were not covered by the sex-crimes warrant,
which meant that the FBI had no legal right to examine them.
The presidential election was five weeks away.
The agent went to the office of the U.S. Attorney for the Southern District
of New York for guidance. Prosecutors there wanted no part of the email
case, which had been staffed by a special team of agents, FBI analysts, and
Justice Department lawyers working out of FBI headquarters, in Washington.
The New York prosecutors told the agent to seek advice from that team. They
said nothing to their own bosses at Justice Department headquarters.
By Oct. 3, senior officials at the FBI-including Comey-had been alerted that
the Weiner laptop contained an unknown number of Clinton emails. By this
point, the email controversy had receded as an issue in the presidential
race. Any news of the discovery would surely have profound consequences for
the Clinton campaign, especially as the election drew ever closer. Yet, over
the following three weeks, FBI agents proceeded unhurriedly with their
investigation, on the premise that what they knew of the discovery was not,
as one official put it to me, "investigatively significant."
FBI officials decided not to share news of the new emails on the laptop with
the Justice Department prosecutors who had worked with them on the Clinton
case. A former high-ranking Justice Department official, who dealt
frequently with the FBI, blamed the failure on institutional distrust.
"There is a general tendency, with everything at the Bureau, to keep things
inside the Bureau until they figure out what to do," he told me.
Without the involvement of their Justice Department colleagues, the FBI
eschewed options that might have expedited matters. Former Justice
Department officials familiar with the case told me that the FBI's failure
to move more quickly in this phase of the investigation represented a
serious blunder. "It probably would have helped to have the prosecutors on
the investigation involved at the earliest moment," the former high-ranking
official told me.
A crucial question was whether the discovery of the first few emails and a
State Department document was sufficient to obtain a new search warrant to
locate and examine all the Clinton messages right away. The former federal
magistrate judge John Facciola, now an adjunct law professor at Georgetown
University, told me that he would have granted such a warrant request, even
after the discovery of just a "handful" of Clinton emails. The FBI's earlier
investigation had revealed that some messages from the Clinton server
contained improperly stored classified information, Facciola noted. "If the
headers show transmittal from Clinton to Abedin, it follows as night to day
that others bearing that header may also be classified, and we have a right
to search. What more you need than that, I don't know."
Former Justice Department officials told me that they also could have sought
consent from Weiner and Abedin to examine the emails without a warrant.
Lawyers for both told me that they were never asked and would have readily
acceded. FBI officials, who were not fond of consent agreements, reportedly
did not do this because they worried that Weiner would have sought
concessions on any sex-crime charges; lawyers familiar with the matter
dismiss the notion that he had any bargaining leverage.
Officials at FBI headquarters instructed the New York agent examining
Weiner's hard drive for evidence of sex crimes to continue his work as
before and to keep a log of any further Clinton emails he came across.
By all accounts, this phase of the process went slowly. The software that
the Bureau used to inventory the contents of Weiner's laptop kept crashing.
It would take about ten days before agents were able to retrieve a complete
record of the messages saved on the laptop, showing dates, senders and
recipients. But, even then, the FBI did not immediately seek a warrant.
By mid-October, inside the U.S. attorney's office in Manhattan, the handful
of officials who knew about the discovery of the Clinton emails were openly
wondering what was going on. Any effort to obtain a second warrant would
have to go through their office, and they had heard nothing.
On Friday, Oct. 21, Joon Kim, the deputy U.S. attorney for the Southern
District, called an official in the deputy attorney general's office at
Justice Department headquarters to ask what was being done about the Clinton
emails on Weiner's laptop. Recognizing the importance of the call, Kim wrote
a memo noting it.
For Justice Department officials, the call was the first they'd heard of the
emails. The following Monday, FBI and Justice Department lawyers finally
gathered in Washington to discuss what to do. The New York agents had
finished tabulating the emails between Abedin and Clinton, and they numbered
in the thousands. FBI investigators who had been part of the Clinton inquiry
decided that they were eager to examine the new emails.
Throughout their yearlong investigation, FBI investigators had been
frustrated by their inability to locate all of Clinton's emails, especially
those sent during the first eight weeks of her tenure as secretary of state,
a troubling gap in their records. Some of those now appeared to be on
Weiner's laptop, and they might reveal incriminating information about
Clinton's motivation in setting up the private server in the first place.
Investigators recognized that, in all likelihood, the new emails would not
change the decision to close the case without charges. Most were probably
duplicates of what the FBI had already seen. It seemed improbable that
agents would find written proof that Clinton intended to violate the law.
Still, it seemed foolish not to examine the emails. The Justice Department
lawyers readily agreed to seek a court order, leading Comey's deputies to
schedule a meeting with their boss on the morning of Oct. 27.
More than three weeks had passed from the time that Comey and his top
deputies had been alerted to the initial discovery of Clinton emails on
Weiner's laptop. Yet, in his congressional testimony, Comey described what
he heard in his briefing that Thursday morning as a startling new
development. "The Anthony Weiner thing landed on me on October 27 and there
was a huge-this is what people forget-new step to be taken," he said. "We
may be finding the golden missing emails that would change this case. If I
were not to speak about that, it would be a disastrous, catastrophic
concealment."
Comey immediately approved plans to seek a new warrant. Such warrants are
typically obtained in secret before a magistrate judge and not made public,
but Comey told his deputies that he wanted to send a letter to congressional
leaders the next day.
Justice Department policies bar employees from interfering with elections
and discourage taking any action that might be perceived as interference in
the weeks before votes are cast. Election Day 2016 was less than two weeks
off; early voting had already begun in 36 states.
Comey would justify his Oct. 28 disclosure as a matter of moral obligation:
He'd told two congressional committees that the investigation was complete,
and plans to review the new material meant that that was no longer true.
Before Congress last week, he characterized his decision as a choice between
"speak" and "conceal."
In his memo released on Tuesday, Rosenstein scorned this characterization.
"'Conceal' is a loaded term that misstates the issue," he wrote. "When
federal agents quietly open a criminal investigation, we are not concealing
anything; we are simply following the longstanding policy that we refrain
from publicizing non-public information. In that context, silence is not
concealment."
There was another motivation for Comey's decision to "speak": FBI officials
feared that news of the new emails would leak out, damaging the Bureau and
its director. The primary source of anxiety was the FBI's own New York field
office, which was handling the Weiner case and harbored deep pockets of
anti-Clinton sentiment. New York agents had already been griping to the
media about headquarters' curbs on their investigation of the Clinton
Foundation. Two prominent Trump surrogates with close local FBI
ties-Kallstrom and Rudy Giuliani, a former U.S. Attorney and New York
mayor-had for weeks been warning about agent fury over Comey's decision in
the email case. Lately, Giuliani had been chortling on Fox News about the
Trump campaign's plans for "some pretty big surprises" that "you're going to
hear about in the next few days." (He would later claim that he had advance
knowledge of the new emails.)
Comey and his aides had considered saying nothing about the discovery until
agents could assess its significance, but only if their task would be
completed by the election. "If we were of the belief we'd get through it
before the election, we wouldn't have said anything," Steinbach said. But,
given the number of Clinton-related messages on Weiner's laptop (the FBI had
identified 49,000 as "potentially relevant"), no one felt confident
promising the FBI director that they could be examined in time. "I was
thinking, I hope we can get this done in a couple of months," Steinbach told
me.
Mark Pollitt, a Syracuse University information studies professor who ran
the FBI's national computer forensics lab program during his career as a
special agent, said that this mistaken judgment was likely born of excessive
bureaucratic caution. "If you know this one's going to go to the director
and attorney general and maybe the president of the United States, we're
going to give them the worst-case scenario so we don't get yelled at for
dragging our feet," he said. "I'm not going to say I can get it done in a
particular time frame and then not make that deadline."
This time, Comey decided to alert the Justice Department of his plans.
Officials there tried vigorously to dissuade him from sending the letter.
Heated discussions took place between a Comey deputy and an official in the
deputy attorney general's office, acting as surrogates for their bosses. The
Justice official retrieved a transcript of Comey's congressional testimony
to point out that the director had never explicitly promised an update of
every development in the case. Comey's deputy acknowledged that this was the
case but said the director's view was that it didn't matter; he had a "duty"
to correct the "impression" he'd left that the FBI's work was done.
According to the former Justice official, Comey's deputy also made clear
that the FBI director was "very concerned" about a leak-that the news "was
coming out anyway."
The Justice official reminded Comey's deputy about department policy
regarding overt investigative steps before an election. Criticism was
inevitable, he argued; the best defense was to consistently follow the
normal process. The FBI's response: "This one's different."
"This wasn't a policy-position disagreement," the former Justice Department
official told me. "Comey felt this was his credibility on the line. He was
the one who had testified before Congress. Their view is, 'We get the policy
and procedures. But he's the one who had to personally suffer the fallout if
he doesn't update the Hill. It's his ass in the sling.'"
Lynch and Yates had the power to order Comey not to send the letter. But
Comey's high-minded characterization of his "obligation" made that option
seem perilous to senior Justice Department officials. If they gave Comey
such an order, it wasn't clear that he would comply. And if he did, there
was a chance that it could be portrayed as the attorney general ordering the
FBI director to hide information from Congress. None of that would play
well, especially in the aftermath of the tarmac incident. So the Justice
Department officials stuck to pleading through staff.
Comey deliberated with his deputies into Thursday night about exactly what
to say, generating multiple drafts of his letter. The first ran just two
sentences; later versions offered far more detail, then somewhat less, as
Comey and his staff struggled to find the right balance. Steinbach joined a
conference call about the language while shopping for Halloween pumpkins in
Virginia with his daughter. "The intention was to write a statement that was
as politically neutral as possible-that did not allow for incorrect
inference," one person familiar with the situation told me. Predictably,
that would prove impossible.
During a conference call the next morning with a half-dozen participants,
FBI officials read portions of their draft to their Justice Department
counterparts, who argued that the letter was certain to be used to political
advantage by Trump. They urged Comey to add language that made clear that
the director was making the disclosure because of the obligation he felt
from his testimony, not because of the gravity of the discovery-and that the
emails had been found on the laptop of an aide's husband, not in Clinton's
possession.
Comey declined to make any changes. He dispatched his three-paragraph letter
to 16 congressional leaders shortly before noon on Friday, Oct. 28. It
disclosed the discovery of new Clinton emails "that appear to be pertinent,"
as well as plans to "assess their importance," before noting, "The FBI
cannot yet assess whether or not this material may be significant, and I
cannot predict how long it will take us to complete this additional work."
Comey explained his actions more fully in an email to FBI staff:
Of course, we don't ordinarily tell Congress about ongoing investigations,
but here I feel an obligation to do so given that I testified repeatedly in
recent months that our investigation was completed. I also think it would be
misleading to the American people were we not to supplement the record. At
the same time, however, given that we don't know the significance of this
newly discovered collection of emails, I don't want to create a misleading
impression. In trying to strike that balance, in a brief letter and in the
middle of an election season, there is significant risk of being
misunderstood.
Within hours, "law enforcement officials" disclosed to the press that the
"unrelated case" was the Weiner sexting investigation. Trump, who'd
previously been bashing Comey, celebrated the news at a New Hampshire rally.
Clinton's "corruption is on a scale we have never seen before," he declared,
amid chants of "Lock her up!" "We must not let her take her criminal scheme
into the Oval Office." Democrats, who had praised Comey since July, were
outraged. A Clinton spokesman blamed Comey for "unleashing a wildfire of
innuendo."
Clinton's campaign set up a war room at its Brooklyn headquarters to respond
to the news. The campaign highlighted an open letter signed by 99 former
Justice Department officials from both parties who declared that they were
"astonished and perplexed" by Comey's actions. "The strategy was not to
debate what Comey had done," the Clinton pollster Joel Benenson told me.
"The strategy was to aggressively discredit his actions with these
bipartisan prosecutors."
As the campaign-and debate over Comey's actions-churned on, the FBI faced
enormous pressure to complete its review of the new emails before Election
Day, on Nov. 8. The government obtained its search warrant on Sunday, Oct.
30, two days after Comey's letter, and agents immediately began scouring a
copy of Weiner's hard drive, which an agent had already carried to
Washington from New York.
Exactly how thousands of Clinton emails ended up on Weiner's laptop remains
somewhat mysterious. In his testimony last week, Comey said that Abedin had
forwarded "hundreds and thousands" of emails-including some containing
classified information-to her husband's email account, so that Weiner could
print out the messages for delivery to Clinton. But two sources familiar
with the matter told me that Abedin forwarded only a handful of Clinton
emails to her husband for printing. Most of the old Clinton messages found
on the laptop trace to backups of Abedin's BlackBerry, which might have been
first stored on a desktop computer at the couple's home before ending up on
Weiner's laptop inadvertently, as part of a bulk transfer of old files.
After Abedin's lawyer and I pressed the FBI to clarify the matter, and I
wrote an article about it
(https://www.propublica.org/article/comeys-testimony-on-huma-abedin-forwardi
ng-emails-was-inaccurate) , the Bureau released a letter correcting Comey's
testimony.
FBI agents had told their bosses that reviewing the new emails would take
them well past Election Day. But, as the 10-member team began working around
the clock, the process quickly accelerated. The FBI agents rapidly ruled out
huge batches of messages that weren't work-related, "de-duped" thousands of
emails they'd seen before, and isolated the relative few-about 6,000,
according to Comey-that required individual scrutiny. Potentially classified
emails went to analysts for review.
Midway through a final all-night push, on Saturday, Nov. 5, two agents left
FBI headquarters for a pizza-and-soda run. Outside, they found lime-green
spray-painted graffiti near the building's main entrance, some of it
covering the FBI seal. It read "ASSHOLE" and "CORRUPT."
At about 2:30 a.m. on Sunday, the FBI agents finished their work, and the
team's leader dispatched a message to their bosses. They had found new State
Department messages but none, after all, from the missing period at the
start of Clinton's term, and nothing that suggested a criminal motive.
Twelve email threads contained classified information; none of them were
new.
That afternoon, Comey wrote to Congress again, revealing that the FBI had
completed its review without finding anything to change the conclusions that
he had announced back in July.
***
The days after Comey's revelation had been devastating to Clinton's
campaign. "Comey put a hole through the wall, and Trump drove a Mack truck
through it," Benenson told me. The news dominated the home-stretch coverage;
even the announcement that the review was over didn't help. "You are in no
good position at that point," Benenson said. "Any discussion of emails and
investigations is going to be a losing proposition."
Trump's campaign made the most of the Comey letter. "Decades of lies,
coverups, and scandal have finally caught up with Hillary Clinton," a new
Trump TV ad intoned. "Hillary Clinton is under FBI investigation again,
after her emails were found on pervert Anthony Weiner's laptop. Think about
that! America's most sensitive secrets, unlawfully sent, received and
exposed by Hillary Clinton, her staff, and Anthony Weiner. Hillary cannot
lead a nation while crippled by a criminal investigation!
"The Trump campaign was using it to the hilt," Benenson said. "They took
Comey's statement, and they drove it. The most effective thing they did with
it is to say, 'This will never end. If she's president, it will never end.'"
The "Comey effect" set in quickly. In a uniquely volatile electorate,
enamored of neither candidate, weighing Trump's temperament versus Clinton's
ethics, many of those who had finally been ready to vote for the Democrat
fled. Her numbers slipped in key states. "It was enough of a lingering
concern that at the end they said, 'Screw it. I'm not going to vote for
her,'" Benenson said. "They went with the third-party candidate or stayed
home."
Many analysts concluded that Comey's actions tilted the presidency to Trump.
Nate Silver, the polling guru at the website FiveThirtyEight, said that
Comey's letter produced a swing of about three points in the popular vote in
the handful of states that won Trump the presidency. In a post-campaign
interview, the Trump pollster Tony Fabrizio put it this way: "When you
really drill down on this election, if you change the vote in five counties,
four in Florida, one in Michigan, we'd be having a totally opposite
conversation right now."
FBI officials remain bitter at how Clinton and her supporters have blamed
them for Trump's election. "I don't find it credible," Steinbach said. "It's
a mess she helped create from start to finish, with start being when she
elected to use a private server. Even if you were to assume the
investigation influenced the election, her actions created the environment.
You can second-guess how it played out. But our guiding principle was to
protect the American people and the Constitution of the United States."
In January, the Justice Department's inspector general announced that he
would review charges that Comey's public disclosures about the Clinton
investigation violated department policies. Comey issued a statement saying
that he welcomed "thoughtful evaluation and transparency" on the matter.
Some of Comey's friends and colleagues had weighed making public a letter of
support for him, before eventually deciding against it. In conversations
with reporters, they began seeking to explain his actions.
Some of the most withering criticism of Comey focused on his refusal, before
the election, to disclose the FBI's investigation into the possibility of
collusion between the Russian government and Trump associates-even as he
spoke at length about Clinton's emails. In late March, quoting two anonymous
sources, Newsweek reported that Comey had actually wanted to talk about the
Russian political meddling, through a personal, bylined newspaper column,
but the White House had blocked him from doing so. People familiar with the
matter told me that the Obama administration had wanted to respond in a more
direct way, through an official finding. That came on Oct. 7, through a
statement about Russian hacking from the secretary of Homeland Security and
the director of National Intelligence. Comey declined to be included on the
statement, telling administration officials that he believed it was too
close to the election.
During conversations I had with Richman, he began to hint at something in
the Russian email hack that had influenced Comey's decision to go it alone
with his July 5 announcement on the Clinton inquiry. "It's not just the
stupid tarmac visit," he told me in late February 2017. "You don't get to
always defend yourself when you're in his position." Two months later, the
The New York Times disclosed the existence of the document claiming that
Lynch would protect Clinton.
Last week, Comey finally got his chance to defend himself. Called before the
Senate Judiciary Committee, he offered an emotional account of his handling
of the email investigation but then made his misstatement about Abedin
forwarding "hundreds and thousands" of emails to Weiner. This week, after
FBI officials clarified the issue, I asked the Bureau another question: Why
hadn't agents, who had access to Abedin's emails and could, presumably, see
that she had forwarded two classified messages to her husband, taken the
opportunity to examine his laptop much earlier, as part of the original
email inquiry? If they had done so, what ensued in October might never have
happened. The FBI declined to comment.
On Wednesday, in a farewell letter emailed to Bureau employees, Comey said
he was not dwelling on his firing and urged his former colleagues not to,
either. "I have long believed that a President can fire an FBI Director for
any reason, or for no reason at all," Comey wrote. "I have said to you
before that, in times of turbulence, the American people should see the FBI
as a rock of competence, honesty, and independence."
Peter Elkind worked for 20 years at Fortune magazine as an investigative
reporter. He is co-author of "The Smartest Guys in the Room," an examination
of the Enron collapse.
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Integrity' (Video)
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