Congressional investigators find irregularities in FBI's handling of Clinton email case
By John Solomon
The Hill
January 2, 2018
Republicans on key congressional committees say they have uncovered new irregularities and contradictions inside the FBI’s probe of Hillary Clinton’s email server.
For the first time, investigators say they have secured written evidence that the FBI believed there was evidence that some laws were broken when the former secretary of State and her top aides transmitted classified information through her insecure private email server, lawmakers and investigators told The Hill.
That evidence includes passages in FBI documents stating the “sheer volume” of classified information that flowed through Clinton’s insecure emails was proof of criminality as well as an admission of false statements by one key witness in the case, the investigators said.
The name of the witness is redacted from the FBI documents but lawmakers said he was an employee of a computer firm that helped maintain her personal server after she left office as America’s top diplomat and who belatedly admitted he had permanently erased an archive of her messages in 2015 after they had been subpoenaed by Congress.
The investigators also confirmed that the FBI began drafting a statement exonerating Clinton of any crimes while evidence responsive to subpoenas was still outstanding and before agents had interviewed more than a dozen key witnesses.
Those witnesses included Clinton and the computer firm employee who permanently erased her email archives just days after the emails were subpoenaed by Congress, the investigators said.
Lawmakers on the House Judiciary Committee who attended a Dec. 21 closed-door briefing by FBI Deputy Director Andrew McCabe say the bureau official confirmed that the investigation and charging decisions were controlled by a small group in Washington headquarters rather the normal process of allowing field offices to investigate possible criminality in their localities. The Clinton email server in question was based in New York.
In normal FBI cases, field offices where crimes are believed to have been committed investigate the evidence and then recommend to bureau hierarchy whether to pursue charges with prosecutors. In this case, the bureau hierarchy controlled both the investigation and the charging decision from Washington, a scenario known in FBI parlance as a “special,” the lawmakers said.
The FBI declined comment on McCabe’s closed-door testimony and the evidence being shared with Congress.
Some Republicans on the committee say the findings and revelations have left them more convinced than ever that FBI leadership rigged the outcome to clear Clinton.
“This was an effort to pre-bake the cake, pre-bake the outcome,” said Rep. Matt Gaetz (R-Fla.), a House Judiciary Committee member who attended the McCabe briefing before the holidays. “Hillary Clinton obviously benefited from people taking actions to ensure she wasn’t held accountable.”
Gaetz said he could not divulge the specifics of what McCabe told lawmakers, but that he left the Dec. 21 session believing the FBI had deviated from its “normal objective practices” while investigating Clinton.
The top Democrat on the panel acknowledged the FBI’s handling of the case was unique, but argued Republicans are politicizing their own panel’s work.
“To the extent that the Assistant Director of the FBI was involved in that investigation, and recognizing that the investigation itself presented a unique set of circumstances, his testimony did not raise any concerns that would justify the Republicans’ outsized obsession with Hillary Clinton’s emails two years after the fact,” said Rep. Jerrold Nadler (D-N.Y) who recently took over as the top Democrat on House Judiciary after former Rep. John Conyers Jr. (D-Mich.) stepped aside after sexual misconduct allegations were made against him.
Gaetz said he has growing questions about the role the Obama Justice Department played in the case.
Former FBI Director James Comey has testified he made the decision not to seek criminal charges against Clinton — with no Justice Department input — because he feared any involvement from the department might taint the findings after then-Attorney General Loretta Lynch met with former President Bill Clinton on a tarmac during the closing days of the probe in June 2016.
He also argued in an initial July 5, 2016, press conference announcing the decision that he did not believe he could show that Clinton intended to send classified information over her server.
But Gaetz said his panel has evidence the FBI took actions while writing the exoneration statement that required Justice input, such as immunizing witnesses in June 2016. He said he would like to learn more about what instructions, sentiments and communications were conveyed between the department and the FBI.
“I think we have more questions than answers based on what we’ve learned,” Gaetz said.
Both parties are likely to learn more in the first quarter of 2018 when the Justice Department inspector general is expected to release initial findings in what has become a wide-ranging probe into the FBI’s handling of the Clinton email case as well as whether agents and supervisors had political connections, ethical conflicts or biases that affected their work.
In the meantime, Republicans on three House committees and the Senate Judiciary Committee have pieced together new evidence from recent interviews and document productions.
That information wasn’t available to them when Comey announced in July 2016 that he would not seek charges against Clinton even though she and her aides had transmitted more than 110 pieces of classified information through her insecure email server, some of it at the “top secret” and “secret” levels.
One storyline that has emerged is that the FBI’s own documents stated there was evidence some laws had been broken, but bureau leaders declined to pursue charges on the grounds they could not prove Clinton and her aides intended to violate the law.
Those concerns were reflected in the initial draft statements Comey and his leadership team began writing in spring 2016. The Hill first reported in November that Comey’s original May 2, 2016, draft included the words “grossly negligent” — the language supporting a criminal charge for mishandling classified information — but it was later changed to the softer “extremely careless.”
GOP congressional investigators told The Hill multiple drafts of the statement also included specific language acknowledging there was “evidence of potential violations of the statutes regarding the handling of classified information.”
Furthermore, the May 2, 2016, draft included a second passage that suggested the large amount of highly classified information — eight top secret passages and 37 secret passages — that passed through Clinton’s private server suggested criminality.
“The sheer volume of information that was properly classified as Secret at the time it was discussed on email (that is, excluding the “up classified” emails) supports an inference that the participants were grossly negligent in their handling of that information,” the FBI’s original draft read, according to a source who has seen it.
Comey used some of the language the agents had put in the initial drafts of the memo when he made his announcement of no charges.
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” Comey said.
The FBI also confirmed that a key witness, a computer technician who deleted Clinton emails from her server in March 2015 after a congressional subpoena had been issued for them, originally lied to the FBI during his interviews, memos show. The witness's name was redacted from documents released by the FBI but he was identified as an employee of a computer firm that helped maintained Clinton’s email server.
His admission of false statements came one day after the Comey statement was already being drafted, investigators told The Hill.
The computer employee originally told the FBI in a February 2016 interview that he did not recall making any deletions from Clinton’s server in March 2015, FBI records show.
But then on May 3, 2016, the same employee in a subsequent FBI interview told agents he had an “oh shit moment” and in late March 2015 deleted Clinton’s email archive from the server, according to FBI documents reviewed by The Hill.
Lying to the FBI is a federal felony, a crime that former Trump national security adviser Michael Flynn recently pleaded guilty to. But the FBI decided not to pursue criminal charges against the witness, and instead gave the technician an immunity deal so he could correct his story, congressional investigators said.
Republican investigators say the most glaring irregularity they have found is the decision to begin drafting a statement exonerating Clinton before much of the investigative interviewing and evidence gathering was even done.
While the first draft of the statement was dated May 2, 2016, FBI records gathered by congressional investigators show agents were still receiving evidence responsive to grand jury subpoenas well after that, including documents and other evidentiary items logged on May 13, May 19 and May 26.
A House GOP lawmaker told The Hill his staff also has identified at least a dozen interviews that were conducted after the drafting effort began, including of some figures who would have key information about intent or possible destruction of evidence.
Senate Judiciary Committee Chairman Chuck Grassley's (R-Iowa) staff has a higher number: 17 witnesses including Clinton were interviewed after the decision was already made.
“Making a conclusion before you interview key fact witnesses and the subject herself violates the very premise of good investigation. You don't lock into a theory until you have the facts. Here the evidence that isn't public yet shows they locked into the theory and then edited out the facts that contradicted it,” the GOP lawmaker said, speaking only on condition of anonymity because the documents are not yet authorized for release.
A senior law enforcement official directly familiar with the investigation, speaking only on condition of anonymity because he was not authorized to talk to the media, told The Hill that the FBI “did have evidence of statutory violations” but the decision not to prosecute was driven by a belief that there wasn’t enough proof Clinton and aides intended to violate those laws or even knew they were violating them.
The official also acknowledged evidence gathering continued even as Comey began drafting the public statement, including the execution of an immunity deal on June 10, 2016, with Clinton advisers Cheryl Mills and Heather Samuelson that resulted in laptops with evidence being turned over to agents late in the probe.
“The leadership had a sense of where the evidence was likely headed and the idea was they would begin drafting their conclusions and if we found anything that changed that sense we’d alert them,” the official said.
The official said the decision to grant immunity to the Clinton advisers as well as the computer technician involved in the email deletions was made “with the idea it would be better to know all the circumstances” before the case was closed out.
Comey has told Congress he made the decision not to charge Clinton after she was interviewed on July 2, 2016.
Congressional investigators told The Hill they also have found some contradictions between the FBI’s official account of what happened and what more recently released documents show.
One that is being pursued aggressively by Grassley involves whether the FBI actually investigated possible violations of the Federal Records Act, which required the preservation of all of Clinton’s work-related emails.
The FBI admits it recovered thousands of State emails that originated or passed through Clinton’s private server — some which had been deleted — that were never turned over to the State Department as government records by Clinton’s team.
While the FBI believed none of those were deleted intentionally to keep them from the government, the Records Act allows for a misdemeanor charge in each instance where a government document is destroyed carelessly, investigators said.
Comey told Grassley back in 2016 that the FBI did investigate whether the unlawful destruction of federal records occurred.
But Grassley’s staff has now obtained a sworn affidavit from an FBI agent that directly contradicts the former director’s assurance. The agent testified under penalty of perjury that the Clinton email case did not address the destruction of federal records, Grassley said.
The longtime Senate chairman went to the Senate floor before the holidays to raise another concern: the FBI did not pursue criminal charges when Clinton’s email archives were permanently deleted from her private server days after a subpoena for them was issued by a congressional committee investigating the 2012 attack on the U.S. diplomatic compound in Benghazi.
The deletion occurred on the same day Clinton’s former chief of staff and her lawyer had a call with the computer firm that handled the erasure using an anti-recovery software called BleachBit, Grassley said.
“You have a conference call with Secretary Clinton’s attorneys on March 31, 2015, and on that very same day her emails are deleted by someone who was on that conference call using special BleachBit software,” Grassley said. “The emails were State Department records under subpoena by Congress.
“What did the FBI do to investigate this apparent obstruction?” Grassley asked. “According to affidavits filed in federal court — absolutely nothing. The FBI focused only on the handling of classified information.”
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