DOJ OIG - A Review of Various Actions by the FBI and DOJ in Advance of the 2016 Election

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Contents

Executive Summary[edit]

Background[edit]

In response to Congress, various organizations, and members of the public, the Department of Justice (Department) Office of of the Inspector General (OIG) undertook this review of various actions by the Federal Bureau of Investigation (FBI) and the Department in connection with the investigation into former Secretary of State Hillary Clinton's use of a private email server. Our review included examine:

  • Allegations that Department or FBI policies or procedures were not followed in connection with, or in actions leading up to or related to, then FBI Director James Comey's letters to Congress on October 28 and Novembers 6, 2016;
  • Allegations that certain investigative decisions were based on improper considerations;
  • Allegations that then FBI Deputy Director Andrew McCabe should have been recused from participating in certain investigative matters;
  • Allegations that the Department's then Assistant Attorney General for Legislative Affairs, Peter Kadzik, improperly disclosed non-public information and/or should have been recused from participating in certain matters;
  • Allegations that Department and FBI employees improperly disclosed non-public information during the course of the investigation; and
  • Allegations that decisions regarding the timing of the FBI's release of certain Freedom of Information Act (FOIA) documents on October 30 and November 1, 2016, and the use of a Twitter account to publicize this release, were influenced by improper considerations.

During the course of the review, the OIG discovered text messages and instantly messages between some FBI employees on the investigative team, conducted using FBO mobile devices and computers, that expressed statements of hostility towards then candidate Donald Trump and stamens of support for then candidate Clinton. We also identified messages that expressed opinions that were critical of the conduct and quality of the investigation. We included in our review an assessment of these messages and actions by the FBI employees.

OIG Methodology[edit]

The OIG reviewed significantly more than 1.2 million documents during the review and interviewed more than 100 witnesses, several on more than one occasion. These include former Director Comey, former attorney General (AG) Loretta Lynch, former Deputy Attorney General (DAG) Sally Yates, FBI agents and supervisors and Department attorneys and supervisors who conducted the investigation, former and current members of the FBI's senior executive leadership, and former President Bill Clinton.

Conduct of Midyear Investigation[edit]

The FBI and Department referred to the investigation as "Midyear Exam" or "Midyear." The Midyear investigation was opened by the FBI in July 2015 based on a referral from the Office of Intelligence Community Inspector General (IC IG). The investigation was staffed by prosecutors from the Department's National Security Division (NSD) and the U.S. Attorney's Office for Eastern District of Virginia Field Office to work at FBI Headquarters.

The Midyear investigation focused on whether Clinton intended to transmit classified information on unclassified systems, knew that information included in unmarked emails was classified, or later became aware that information was classified and failed to report it. The Midyear team employed an investigative strategy that included three primary lines of inquirers: collection and examination of emails that traversed Clinton's servers and other relevant evidence, interviews of relevant witnesses, and analysis of whether classified information was compromised by hostile cyber intrusions.

As described in Chapter Five of our report, we elected for examination particular investigative decisions that were subject of public or internal controversy. These included the following:

  • The preference for consent over compulsory process to obtain evidence;
  • Decisions not to obtain or seek to review certain evidence, such as the personal devices used by former Secretary Clinton's senior aides;
  • The use of voluntary witness interviews;
  • Decisions to enter into “letter use” or “Queen for a Day” immunity agreements with three witnesses;
  • The use of consent agreements and “act of production” immunity to obtain the laptops used by Clinton’s attorneys (Cheryl Mills and Heather Samuelson) to “cull” her personal and work-related emails; and
  • The handling of Clinton’s interview on July 2, 2016.

With regard to these investigative decisions, we found, as detailed in Chapter Five, that the Midyear team:

  • Sought to obtain evidence whenever possible through consent but also used compulsory process, including grand jury subpoenas, search warrants, and 2703(d) orders (court orders for non-content email information) to obtain various evidence. We found that the prosecutors provided justifications for the preference for consent that were supported by Department and FBI policy and practice;
  • Conducted voluntary witness interviews to obtain testimony, including from Clinton and her senior aides, and did not require any witnesses to testify before the grand jury. We found that one of the reasons for not using the grand jury for testimony involved concerns about exposing grand jurors to classified information;
  • Did not seek to obtain every device, including those of Clinton’s senior aides, or the contents of every email account through which a classified email may have traversed. We found that the reasons for not doing so were based on limitations the Midyear team imposed on the investigation’s scope, the desire to complete the investigation well before the election, and the belief that the foregone evidence was likely of limited value. We further found that those reasons were, in part, in tension with Comey’s response in October 2016 to the discovery of Clinton emails on the laptop of Anthony Weiner, the husband of Clinton’s former Deputy Chief of Staff and personal assistant, Huma Abedin;
  • Considered but did not seek permission from the Department to review certain highly classified materials that may have included information potentially relevant to the Midyear investigation. The classified appendix to this report describes in more detail the highly classified information, its potential relevance to the Midyear investigation, the FBI’s reasons for not seeking access to it, and our analysis;
  • Granted letter use immunity and/or “Queen for a Day” immunity to three witnesses in exchange for their testimony after considering, as provided for in Department policy, the value of the witness’s testimony, the witness’s relative culpability, and the possibility of a successful prosecution;
  • Used consent agreements and “act of production” immunity to obtain the culling laptops used by Mills and Samuelson, in part to avoid the uncertainty and delays of a potential motion to quash any subpoenas or search warrants. We found that these decisions were occurring at a time when Comey and the Midyear team had already concluded that there was likely no prosecutable case and believed it was unlikely the culling laptops would change the outcome of the investigation;
  • Asked Clinton what appeared to be appropriate questions and made use of documents to challenge Clinton’s testimony and assess her credibility during her interview. We found that, by the date of her interview, the Midyear team and Comey had concluded that the evidence did not support criminal charges (absent a confession or false statement by Clinton during the interview), and that the interview had little effect on the outcome of the investigation; and
  • Allowed Mills and Samuelson to attend the Clinton interview as Clinton’s counsel, even though they also were fact witnesses, because the Midyear team determined that the only way to exclude them was to subpoena Clinton to testify before the grand jury, an option that we found was not seriously considered. We found no persuasive evidence that Mills’s or Samuelson’s presence influenced Clinton’s interview. Nevertheless, we found the decision to allow them to attend the interview was inconsistent with typical investigative strategy.

For each of these decisions, we analyzed whether there was evidence of improper considerations, including bias, and also whether the justifications offered for the decision were a pretext for improper, but unstated, considerations.

The question we considered was not whether a particular investigative decision was the ideal choice or one that could have been handled more effectively, but whether the circumstances surrounding the decision indicated that it was based on considerations other than the merits of the investigation. If a choice made by the investigative team was among two or more reasonable alternatives, we did not find that it was improper even if we believed that an alternative decision would have been more effective.

Thus, a determination by the OIG that a decision was not unreasonable does not mean that the OIG has endorsed the decision or concluded that the decision was the most effective among the options considered. We took this approach because our role as an OIG is not to second-guess valid discretionary judgments made during the course of an investigation, and this approach is consistent with the OIG’s handling of such questions in past reviews.

In undertaking our analysis, our task was made significantly more difficult because of text and instant messages exchanged on FBI devices and systems by five FBI employees involved in the Midyear investigation. These messages reflected political opinions in support of former Secretary Clinton and against her then political opponent, Donald Trump. Some of these text messages and instant messages mixed political commentary with discussions about the Midyear investigation, and raised concerns that political bias may have impacted investigative decisions.

In particular, we were concerned about text messages exchanged by FBI Deputy Assistant Director Peter Strzok and Lisa Page, Special Counsel to the Deputy Director, that potentially indicated or created the appearance that investigative decisions were impacted by bias or improper considerations. As we describe in Chapter Twelve of our report, most of the text messages raising such questions pertained to the Russia investigation, which was not a part of this review. Nonetheless, the suggestion in certain Russia related text messages in August 2016 that Strzok might be willing to take official action to impact presidential candidate Trump’s electoral prospects caused us to question the earlier Midyear investigative decisions in which Strzok was involved, and whether he took specific actions in the Midyear investigation based on his political views. As we describe Chapter Five of our report, we found that Strzok was not the sole decisionmaker for any of the specific Midyear investigative decisions we examined in that chapter. We further found evidence that in some instances Strzok and Page advocated for more aggressive investigative measures in the Midyear investigation, such as the use of grand jury subpoenas and search warrants to obtain evidence.

There were clearly tensions and disagreements in a number of important areas between Midyear agents and prosecutors. However, we did not find documentary or testimonial evidence that improper considerations, including political bias, directly affected the specific investigative decisions we reviewed in Chapter Five, or that the justifications offered for these decisions were pretextual.

Nonetheless, these messages cast a cloud over the FBI’s handling of the Midyear investigation and the investigation’s credibility. But our review did not find evidence to connect the political views expressed in these messages to the specific investigative decisions that we reviewed; rather, consistent with the analytic approach described above, we found that these specific decisions were the result of discretionary judgments made during the course of an investigation by the Midyear agents and prosecutors and that these judgment calls were not unreasonable. The broader impact of these text and instant messages, including on such matters as the public perception of the FBI and the Midyear investigation, are discussed in Chapter Twelve of our report.

Comey’s Public Statement on July 5[edit]

“Endgame” Discussions[edit]

As we describe in Chapter Six of the report, by the Spring of 2016, Comey and the Midyear team had determined that, absent an unexpected development, evidence to support a criminal prosecution of Clinton was lacking. Midyear team members told us that they based this assessment on a lack of evidence showing intent to place classified information on the server, or knowledge that the information was classified. We describe the factors that the Department took into account in its decision to decline prosecution in Chapter Seven of our report and below.

Comey told the OIG that as he began to realize the investigation was likely to result in a declination, he began to think of ways to credibly announce its closing. Comey engaged then DAG Yates in discussions in April 2016 about the “endgame” for the Midyear investigation. Comey said that he encouraged Yates to consider the most transparent options for announcing a declination. Yates told the OIG that, as a result of her discussions with Comey, she thought the Department and FBI would jointly announce any declination.

Comey said he also told Yates that the closer they got to the political conventions, the more likely he would be to insist that a special counsel be appointed, because he did not believe the Department could credibly announce the closing of the investigation once Clinton was the Democratic Party nominee. However, we did not find evidence that Comey ever seriously considered requesting a special counsel; instead, he used the reference to a special counsel as an effort to induce the Department to move more quickly to obtain the Mills and Samuelson culling laptops and to complete the investigation.

Although Comey engaged with the Department in these “endgame” discussions, he told us that he was concerned that involvement by then AG Loretta Lynch in a declination announcement would result in “corrosive doubt” about whether the decision was objective and impartial because Lynch was appointed by a President from the same political party as Clinton. Comey cited other factors to us that he said caused him to be concerned by early May 2016 that Lynch could not credibly participate in announcing a declination:

  • An alleged instruction from Lynch at a meeting in September 2015 to call the Midyear investigation a “matter” in statements to the media and Congress, which we describe in Chapter Four of our report;
  • Statements made by then President Barack Obama about the Midyear investigation, which also are discussed in Chapter Four; and
  • Concerns that certain classified information mentioning Lynch would leak, which we describe in Chapter Six and in the classified appendix.

As we discuss below and in Chapter Six of our report, the meeting between Lynch and former President Clinton on June 27, 2016 also played a role in Comey’s decision to deliver a unilateral statement.

Comey did not raise any of these concerns with Lynch or Yates. Rather, unbeknownst to them, Comey began considering the possibility of an FBI-only public statement in late April and early May 2016. Comey told the OIG that a separate public statement was warranted by the “500-year flood” in which the FBI found itself, and that he weighed the need to preserve the credibility and integrity of the Department and the FBI, and the need to protect “a sense of justice more broadly in the country—that things are fair not fixed, and they’re done independently.”

Comey’s Draft Statement[edit]

Comey’s initial draft statement, which he shared with FBI senior leadership on May 2, criticized Clinton’s handling of classified information as “grossly negligent,” but concluded that “no reasonable prosecutor” would bring a case based on the facts developed in the Midyear investigation. Over the course of the next 2 months, Comey’s draft statement underwent various language changes, including the following:

  • The description of Clinton’s handling of classified information was changed from “grossly negligent” to “extremely careless;”
  • A statement that the sheer volume of information classified as Secret supported an inference of gross negligence was removed and replaced with a statement that the classified information they discovered was “especially concerning because all of these emails were housed on servers not supported by full-time staff”;

• A statement that the FBI assessed that it was “reasonably likely” that hostile actors gained access to Clinton’s private email server was changed to “possible.” The statement also acknowledged that the FBI investigation and its forensic analysis did not find evidence that Clinton’s email server systems were compromised; and

• A paragraph summarizing the factors that led the FBI to assess that it was possible that hostile actors accessed Clinton’s server was added, and at one point referenced Clinton’s use of her private email for an exchange with then President Obama while in the territory of a foreign adversary. This reference later was changed to “another senior government official,” and ultimately was omitted.

Each version of the statement criticized Clinton’s handling of classified information. Comey told us that he included criticism of former Secretary Clinton’s uncharged conduct because “unusual transparency…was necessary for an unprecedented situation,” and that such transparency “was the best chance we had of having the American people have confidence that the justice system works[.]”

Other witnesses told the OIG that Comey included this criticism to avoid creating the appearance that the FB was “letting [Clinton] off the hook,” as well as to “messag[e]” the decision to the FBI workforce to emphasize that employees would be disciplined for similar conduct and to distinguish the Clinton investigation from the cases of other public figures who had been prosecuted for mishandling violations.

The Tarmac Meeting and Impact on Comey’s Statement[edit]

On June 27, 2016, Lynch met with former President Clinton on Lynch’s plane, which was parked on the tarmac at a Phoenix airport. This meeting was unplanned, and Lynch’s staff told the OIG they received no notice that former President Clinton planned to board Lynch’s plane. Both Lynch and former President Clinton told the OIG that they did not discuss the Midyear investigation or any other Department investigation during their conversation. Chapter Six of our report describes their testimony about the substance of their discussion.

Lynch told the OIG that she became increasingly concerned as the meeting “went on and on,” and stated “that it was just too long a conversation to have had.” Following this meeting, Lynch obtained an ethics opinion from the Departmental Ethics Office that she was not required to recuse herself from the Midyear investigation, and she decided not to voluntarily recuse herself either. In making this decision, Lynch told the OIG that stepping aside would create a misimpression that she and former President Clinton had discussed inappropriate topics, or that her role in the Midyear investigation somehow was greater than it was.

On July 1, during an interview with a reporter, Lynch stated that she was not recusing from the Midyear investigation, but that she ”fully expect[ed]” to accept the recommendation of the career agents and prosecutors who conducted the investigation, “as is the common process.” Then, in a follow up question, Lynch said “I’ll be briefed on [the findings] and I will be accepting their recommendations.” Lynch’s statements created considerable public confusion about the status of her continuing involvement in the Midyear investigation.

Although we found no evidence that Lynch and former President Clinton discussed the Midyear investigation or engaged in other inappropriate discussion during their tarmac meeting, we also found that Lynch’s failure to recognize the appearance problem created by former President Clinton’s visit and to take action to cut the visit short was an error in judgment. We further concluded that her efforts to respond to the meeting by explaining what her role would be in the investigation going forward created public confusion and did not adequately address the situation.

Comey told the OIG that he was “90 percent there, like highly likely” to make a separate public statement prior to the tarmac meeting, but that the tarmac meeting “tipped the scales” toward making his mind up to go forward with his own public statement.

Comey’s Decision Not to Tell Department Leadership[edit]

Comey acknowledged that he made a conscious decision not to tell Department leadership about his plans to make a separate statement because he was concerned that they would instruct him not to do it. He also acknowledged that he made this decision when he first conceived of the idea to do the statement, even as he continued to engage the Department in discussions about the “endgame” for the investigation.

Comey admitted that he concealed his intentions from the Department until the morning of his press conference on July 5, and instructed his staff to do the same, to make it impracticable for Department leadership to prevent him from delivering his statement. We found that it was extraordinary and insubordinate for Comey to do so, and we found none of his reasons to be a persuasive basis for deviating from well-established Department policies in a way intentionally designed to avoid supervision by Department leadership over his actions.

On the morning of July 5, 2016, Comey contacted Lynch and Yates about his plans to make a public statement, but did so only after the FBI had notified the press—in fact, the Department first learned about Comey’s press conference from a media inquiry, rather than from the FBI. When Comey did call Lynch that morning, he told her that he was not going to inform her about the substance of his planned press statement.

While Lynch asked Comey what the subject matter of the statement was going to be (Comey told her in response it would be about the Midyear investigation), she did not ask him to tell her what he intended to say about the Midyear investigation. We found that Lynch, having decided not to recuse herself, retained authority over both the final prosecution decision and the Department’s management of the Midyear investigation. As such, we believe she should have instructed Comey to tell her what he intended to say beforehand, and should have discussed it with Comey.

Comey’s public statement announced that the FBI had completed its Midyear investigation, criticized Clinton and her senior aides as “extremely careless” in their handling of classified information, stated that the FBI was recommending that the Department decline prosecution of Clinton, and asserted that “no reasonable prosecutor” would prosecute Clinton based on the facts developed by the FBI during its investigation. We determined that Comey’s decision to make this statement was the result of his belief that only he had the ability to credibly and authoritatively convey the rationale for the decision to not seek charges against Clinton, and that he needed to hold the press conference to protect the FBI and the Department from the extraordinary harm that he believed would have resulted had he failed to do so. While we found no evidence that Comey’s statement was the result of bias or an effort to influence the election, we did not find his justifications for issuing the statement to be reasonable or persuasive.

We concluded that Comey’s unilateral announcement was inconsistent with Department policy and violated long-standing Department practice and protocol by, among other things, criticizing Clinton’s uncharged conduct. We also found that Comey usurped the authority of the Attorney General, and inadequately and incompletely described the legal position of Department prosecutors.

The Department’s Declination Decision on July 6[edit]

Following Comey’s public statement on July 5, the Midyear prosecutors finalized their recommendation that the Department decline prosecution of Clinton, her senior aides, and the senders of emails determined to contain classified information. On July 6, the Midyear prosecutors briefed Lynch, Yates, Comey, other members of Department and FBI leadership, and FBI Midyear team members about the basis for the declination recommendation. Lynch subsequently issued a short public statement that she met with the career prosecutors and agents who conducted the investigation and “received and accepted their unanimous recommendation” that the investigation be closed without charges.

We found that the prosecutors considered five federal statutes:

  • 18 U.S.C. §§ 793(d) and (e) (willful mishandling of documents or information relating to the national defense);
  • 18 U.S.C. § 793(f) (removal, loss, theft, abstraction, or destruction of documents or information relating to the national defense through gross negligence, or failure to report such removal, loss, theft, abstraction, or destruction);
  • 18 U.S.C. § 1924 (unauthorized removal and retention of classified documents or material by government employees); and
  • 18 U.S.C. § 2071 (concealment, removal, or mutilation of government records).

As described in Chapter Seven of our report, the prosecutors concluded that the evidence did not support prosecution under any of these statutes for various reasons, including that former Secretary Clinton and her senior aides lacked the intent to communicate classified information on unclassified systems. Critical to their conclusion was that the emails in question lacked proper classification markings, that the senders often refrained from using specific classified facts or terms in emails and worded emails carefully in an attempt to “talk around” classified information, that the emails were sent to other government officials in furtherance of their official duties, and that former Secretary Clinton relied on the judgment of State Department employees to properly handle classified information, among other facts.

We further found that the statute that required the most complex analysis by the prosecutors was Section 793(f)(1), the “gross negligence” provision that has been the focus of much of the criticism of the declination decision. As we describe in Chapters Two and Seven of our report, the prosecutors analyzed the legislative history of Section 793(f)(1), relevant case law, and the Department’s prior interpretation of the statute. They concluded that Section 793(f)(1) likely required a state of mind that was “so gross as to almost suggest deliberate intention,” criminally reckless, or “something that falls just short of being willful,” as well as evidence that the individuals who sent emails containing classified information “knowingly” included or transferred such information onto unclassified systems.

The Midyear team concluded that such proof was lacking. We found that this interpretation of Section 793(f)(1) was consistent with the Department’s historical approach in prior cases under different leadership, including in the 2008 decision not to prosecute former Attorney General Alberto Gonzales for mishandling classified documents.

We analyzed the Department’s declination decision according to the same analytical standard that we applied to other decisions made during the investigation. We did not substitute the OIG’s judgment for the judgments made by the Department, but rather sought to determine whether the decision was based on improper considerations, including political bias. We found no evidence that the conclusions by the prosecutors were affected by bias or other improper considerations; rather, we determined that they were based on the prosecutors’ assessment of the facts, the law, and past Department practice.

We therefore concluded that these were legal and policy judgments involving core prosecutorial discretion that were for the Department to make.

Discovery in September 2016 of Emails on the Weiner Laptop[edit]

Discovery of Emails by the FBI’s New York Field Office[edit]

In September 2016, the FBI’s New York Field Office (NYO) and the U.S. Attorney’s Office for the Southern District of New York (SDNY) began investigating former Congressman Anthony Weiner for his online relationship with a minor. A federal search warrant was obtained on September 26, 2016, for Weiner’s iPhone, iPad, and laptop computer. The FBI obtained these devices the same day. The search warrant authorized the government to search for evidence relating to the following crimes: transmitting obscene material to a minor, sexual exploitation of children, and activities related to child pornography.

The Weiner case agent told the OIG that he began processing Weiner’s devices on September 26, and that he noticed “within hours” that there were “over 300,000 emails on the laptop.” He said that either that evening or the next morning, he saw at least one BlackBerry PIN message between Clinton and Abedin, as well as emails between them. He said that he recalled seeing emails associated with “about seven domains,” such as yahoo.com, state.gov, clintonfoundation.org, clintonemail.com, and hillaryclinton.com. The case agent immediately notified his NYO chain of command, and the information was ultimately briefed to NYO Assistant Director in Charge (ADIC) William Sweeney on September 28.

As we describe in Chapter Nine of our report, Sweeney took the following steps to notify FBI Headquarters about the discovery of Midyear-related emails on the Weiner laptop:

  • On September 28, during a secure video teleconference (SVTC), Sweeney reported that Weiner investigation agents had discovered 141,000 emails on Weiner’s laptop that were potentially relevant to the Midyear investigation. The OIG determined that this SVTC was led by then Deputy Director Andrew McCabe, and that approximately 39 senior FBI executives likely would have participated. Comey was not present for the SVTC.
  • Sweeney said he spoke again with McCabe on the evening of September 28. Sweeney said that during this call he informed McCabe that NYO personnel had continued processing the laptop and that they had now identified 347,000 emails on the laptop.
  • Sweeney said he also called two FBI Executive Assistant Directors (EAD) on September 28 and informed them that the Weiner case team had discovered emails relevant to the Midyear investigation. One of the EADs told the OIG that he then called McCabe, and that McCabe told the EAD that he was aware of the emails. The EAD told us that “[T]here was no doubt in my mind when we finished that conversation that [McCabe] understood the, the gravity of what the find was.”
  • Sweeney said he also spoke to FBI Assistant Director E.W. “Bill” Priestap on September 28 and 29, 2016. Emails indicate that during their conversation on September 29, they discussed the limited scope of the Weiner search warrant (i.e., the need to obtain additional legal process to review any Midyear-related email on the Weiner laptop).

Initial Response of FBI Headquarters[edit]

McCabe told the OIG that he considered the information provided by Sweeney to be “a big deal” and said he instructed Priestap to send a team to New York to review the emails on the Weiner laptop. McCabe told the OIG that he recalled talking to Comey about the issue “right around the time [McCabe] found out about it.” McCabe described it as a “fly-by,” where the Weiner laptop was “like one in a list of things that we discussed.”

Comey said that he recalled first learning about the additional emails on the Weiner laptop at some point in early October 2016, although he said it was possible this could have occurred in late September 2016. Comey told the OIG that this information “didn’t index” with him, which he attributed to the way the information was presented to him and the fact that, “I don’t know that I knew that [Weiner] was married to Huma Abedin at the time.”

Text messages of FBI Deputy Assistant Director Peter Strzok indicated that he, McCabe, and Priestap discussed the Weiner laptop on September 28. Strzok said that he had initially planned to send a team to New York to review the emails, but a conference call with NYO was scheduled instead. The conference call took place on September 29, and five members of the FBI Midyear team participated. Notes from the conference call indicate the participants discussed the presence of a large volume of emails (350,000) on the Weiner laptop and specific domain names, including clintonemail.com and state.gov. The Midyear SSA said that NYO also mentioned seeing BlackBerry domain emails on the Weiner laptop.

Additional discussions took place on October 3 and 4, 2016. However, after October 4, we found no evidence that anyone associated with the Midyear investigation, including the entire leadership team at FBI Headquarters, took any action on the Weiner laptop issue until the week of October 24, and then did so only after the Weiner case agent expressed concerns to SDNY, prompting SDNY to contact the Office of the Deputy Attorney General (ODAG) on October 21 to raise concerns about the lack of action.

Reengagement of FBI Headquarters[edit]

On Friday, October 21, SDNY Deputy U.S. Attorney Joon Kim contacted ODAG and was put in touch with DAAG George Toscas, the most senior career Department official involved in the Midyear investigation. Thereafter, at Toscas’s request, one of the Midyear prosecutors called Strzok. This was the first conversation that the FBI had with Midyear prosecutors about the Weiner laptop.

Toscas said he asked McCabe about the Weiner laptop on Monday, October 24, after a routine meeting between FBI and Department leadership. McCabe told us that this interaction with Toscas caused him to follow up with the FBI Midyear team about the Weiner laptop and to call McCord about the issue.

On October 26, NYO, SDNY, and Midyear team members participated in a conference call. The FBI Midyear team told the OIG that they learned important new information on this call, specifically: (1) that there was a large volume of emails on the Weiner laptop, particularly the potential for a large number of @clintonemail.com emails; and (2) that the presence of Blackberry data indicated that emails from Clinton’s first three months as Secretary of State could be present on the laptop. However, as we describe above and in Chapter Nine of our report, these basic facts were known to the FBI by September 29, 2016. The FBI Midyear team briefed McCabe about the information from the conference call on the evening of October 26, 2016. McCabe told us that he felt the situation was “absolutely urgent” and proposed that the FBI Midyear team meet with Comey the following day.

On October 27 at 5:20 a.m., McCabe emailed Comey stating that the Midyear team “has come across some additional actions they believe they need to take,” and recommending that they meet that day to discuss the implications “if you have any space on your calendar.” Comey stated that he did not know what this email was about when he received it and did not initially recall that he had been previously notified about the Weiner laptop.

We found that, by no later than September 29, FBI executives and the FBI Midyear team had learned virtually every fact that was cited by the FBI in late October as justification for obtaining the search warrant for the Weiner laptop, including that the laptop contained:

  • Over 340,000 emails, some of which were from domains associated with Clinton, including state.gov, clintonfoundation.org, clintonemail.com, and hillaryclinton.com;
  • Numerous emails between Clinton and Abedin;
  • An unknown number of Blackberry communications on the laptop, including one or more messages between Clinton and Abedin, indicating the possibility that the laptop contained communications from the early months of Clinton’s tenure; and
  • Emails dated beginning in 2007 and covering the entire period of Clinton’s tenure as Secretary of State.

As we describe in Chapter Nine of our report, the explanations we were given for the FBI’s failure to take immediate action on the Weiner laptop fell into four general categories:

  • The FBI Midyear team was waiting for additional information about the contents of the laptop from NYO, which was not provided until late October;
  • The FBI Midyear team could not review the emails without additional legal authority, such as consent or a new search warrant;
  • The FBI Midyear team and senior FBI officials did not believe that the information on the laptop was likely to be significant; and
  • Key members of the FBI Midyear team had been reassigned to the investigation of Russian interference in the U.S. election, which was a higher priority.

We found these explanations to be unpersuasive justifications for not acting sooner, given the FBI leadership’s conclusion about the importance of the information and that the FBI Midyear team had sufficient information to take action in early October and knew at that time that it would need a new search warrant to review any Clinton-Abedin emails. Moreover, given the FBI’s extensive resources, the fact that Strzok and several other FBI members of the Midyear team had been assigned to the Russia investigation, which was extremely active during this September and October time period, was not an excuse for failing to take any action during this time period on the Weiner laptop.

The FBI’s failure to act in late September or early October is even less justifiable when contrasted with the attention and resources that FBI management and some members of the Midyear team dedicated to other activities in connection with the Midyear investigation during the same period. As detailed in Chapter Eight, these activities included:

  • The preparation of Comey’s speech at the FBI’s SAC Conference on October 12, a speech designed to help equip SACs to “bat down” misinformation about the July 5 declination decision;
  • The preparation and distribution of detailed talking points to FBI SACs in mid-October in order, again, “to equip people who are going to be talking about it anyway with the actual facts and [the FBI’s] actual perspective on [the declination]”; and
  • A briefing for retired FBI agents conducted on October 21 to describe the investigative decisions made during Midyear so as to arm former employees with facts so that they, too, might counter “falsehoods and exaggerations.”

In assessing the decision to prioritize the Russia investigation over following up on the Midyear-related investigative lead discovered on the Weiner laptop, we were particularly concerned about text messages sent by Strzok and Page that potentially indicated or created the appearance that investigative decisions they made were impacted by bias or improper considerations. Most of the text messages raising such questions pertained to the Russia investigation, and the implication in some of these text messages, particularly Strzok’s August 8 text message (“we’ll stop” candidate Trump from being elected), was that Strzok might be willing to take official action to impact a presidential candidate’s electoral prospects. Under these circumstances, we did not have confidence that Strzok’s decision to prioritize the Russia investigation over following up on the Midyear-related investigative lead discovered on the Weiner laptop was free from bias.

We searched for evidence that the Weiner laptop was deliberately placed on the back-burner by others in the FBI to protect Clinton, but found no evidence in emails, text messages, instant messages, or documents that suggested an improper purpose. We also took note of the fact that numerous other FBI executives—including the approximately 39 who participated in the September 28 SVTC—were briefed on the potential existence of Midyear-related emails on the Weiner laptop. We also noted that the Russia investigation was under the supervision of Priestap—for whom we found no evidence of bias and who himself was aware of the Weiner laptop issue by September 29. However, we also did not identify a consistent or persuasive explanation for the FBI’s failure to act for almost a month after learning of potential Midyear-related emails on the Weiner laptop.

The FBI’s inaction had potentially far-reaching consequences. Comey told the OIG that, had he known about the laptop in the beginning of October and thought the email review could have been completed before the election, it may have affected his decision to notify Congress. Comey told the OIG, “I don’t know [if] it would have put us in a different place, but I would have wanted to have the opportunity.”

Comey’s Decision to Notify Congress on October 28[edit]

Following the briefing from the FBI Midyear team on October 27, 2016, Comey authorized the Midyear team to seek a search warrant, telling the OIG that “the volume of emails” and the presence of BlackBerry emails on the Weiner laptop were “two highly significant facts.” As we describe in Chapter Thirteen of our report, McCabe joined this meeting by phone but was asked not to participate, and subsequently recused himself from the Midyear investigation on November 1, 2016.

The issue of notifying Congress of the Weiner laptop development was first raised at the October 27 briefing and, over the course of the next 24 hours, numerous additional discussions occurred within the FBI. As we describe in Chapter Ten of our report, the factors considered during those discussions included:

  • Comey’s belief that failure to disclose the existence of the emails would be an act of concealment;
  • The belief that Comey had an obligation to update Congress because the discovery was potentially significant and made his prior testimony that the investigation was closed no longer true;
  • An implicit assumption that Clinton would be elected President;
  • Fear that the information would leak if the FBI failed to disclose it;
  • Concern that failing to disclose would result in accusations that the FBI had “engineered a cover up” to help Clinton get elected;
  • Concerns about protecting the reputation of the FBI;
  • Concerns about the perceived illegitimacy of a Clinton presidency that would follow from a failure to disclose the discovery of the emails if they proved to be significant;
  • Concerns about the electoral impact of any announcement; and

• The belief that the email review could not be completed before the election.

As a result of these discussions on October 27, Comey decided to notify Congress about the discovery of Midyear-related emails on the Weiner laptop. Comey told us that, although he “believe[d] very strongly that our rule should be, we don’t comment on pending investigations” and that it was a “very important norm” for the Department to avoid taking actions that could impact an imminent election, he felt he had an obligation to update Congress because the email discovery was potentially very significant and it made his prior testimony no longer true.

We found no evidence that Comey’s decision to send the October 28 letter was influenced by political preferences. Instead, we found that his decision was the result of several interrelated factors that were connected to his concern that failing to send the letter would harm the FBI and his ability to lead it, and his view that candidate Clinton was going to win the presidency and that she would be perceived to be an illegitimate president if the public first learned of the information after the election. Although Comey told us that he “didn’t make this decision because [he] thought it would leak otherwise,” several FBI officials told us that the concern about leaks played a role in the decision.

Much like with his July 5 announcement, we found that in making this decision, Comey engaged in ad hoc decision-making based on his personal views even if it meant rejecting longstanding Department policy or practice. We found unpersuasive Comey’s explanation as to why transparency was more important than Department policy and practice with regard to the reactivated Midyear investigation while, by contrast, Department policy and practice were more important to follow with regard to the Clinton Foundation and Russia investigations.

Comey’s description of his choice as being between “two doors,” one labeled “speak” and one labeled “conceal,” was a false dichotomy. The two doors were actually labeled “follow policy/practice” and “depart from policy/practice.” Although we acknowledge that Comey faced a difficult situation with unattractive choices, in proceeding as he did, we concluded that Comey made a serious error of judgment.

Department and FBI Leadership Discussions[edit]

On October 27, Comey instructed his Chief of Staff, James Rybicki, to reach out to the Department about his plan to notify Congress. As we describe in Chapter Ten of our report, Comey told the OIG that he decided to ask Rybicki to inform the Department rather than to contact Lynch or Yates directly because he did not “want to jam them and I wanted to offer them the opportunity to think about and decide whether they wanted to be engaged on it.” Rybicki and Axelrod spoke on the afternoon of October 27 and had “a series of phone calls” the rest of the day. Rybicki told Axelrod that Comey believed he had an obligation to notify Congress about the laptop in order to correct a misimpression that the Midyear investigation was closed.

Lynch, Yates, Axelrod, and their staffs had several discussions that same day as to whether Lynch or Yates should call Comey directly, but said they ultimately decided to have Axelrod communicate “the strong view that neither the DAG nor [AG] felt this letter should go out.” Yates told us they were concerned that direct contact with Comey would be perceived as “strong-arming” him, and that based on her experience with Comey, he was likely to “push back hard” against input from Lynch or her, especially if accepting their input meant that he had to go back to his staff and explain that he was reversing his decision. She said that she viewed Rybicki as the person they needed to convince if they wanted to change Comey’s mind. Accordingly, Axelrod informed Rybicki on October 27 of the Department’s strong opposition to Comey’s plan to send a letter.

Rybicki reported to Comey that the Department “recommend[ed] against” the Congressional notification and thought it was “a bad idea.” Although Comey told us that he would not have sent the letter if Lynch or Yates had told him not to do so, he said he viewed their response as only a recommendation and interpreted their lack of direct engagement as saying “basically...it’s up to you.... I honestly thought they were taking kind of a cowardly way out.” The following day, October 28, Comey sent a letter to Congress stating, in part, that “the FBI has learned of the existence of emails that appear to be pertinent to the [Midyear] investigation.”

Comey, Lynch, and Yates faced difficult choices in late October 2016. However, we found it extraordinary that Comey assessed that it was best that the FBI Director not speak directly with the Attorney General and Deputy Attorney General about how best to navigate this most important decision and mitigate the resulting harms, and that Comey’s decision resulted in the Attorney General and Deputy Attorney General concluding that it would be counterproductive to speak directly with the FBI Director. We believe that open and candid communication among leaders in the Department and its components is essential for the effective functioning of the Department.

Text and Instant Messages, Use of Personal Email, and Alleged Improper Disclosures of Non-Public Information[edit]

Text Messages and Instant Messages[edit]

As we describe in Chapter Twelve, during our review we identified text messages and instant messages sent on FBI mobile devices or computer systems by five FBI employees who were assigned to the Midyear investigation. These included:

  • Text messages exchanged between Strzok and Page;
  • Instant messages exchanged between Agent 1, who was one of the four Midyear case agents, and Agent 5, who was a member of the filter team; and
  • Instant messages sent by FBI Attorney 2, who was assigned to the Midyear investigation.

The text messages and instant messages sent by these employees included statements of hostility toward then candidate Trump and statements of support for candidate Clinton, and several appeared to mix political opinions with discussions about the Midyear investigation.

We found that the conduct of these five FBI employees brought discredit to themselves, sowed doubt about the FBI’s handling of the Midyear investigation, and impacted the reputation of the FBI. Although our review did not find documentary or testimonial evidence directly connecting the political views these employees expressed in their text messages and instant messages to the specific investigative decisions we reviewed in Chapter Five, the conduct by these employees cast a cloud over the FBI Midyear investigation and sowed doubt the FBI’s work on, and its handling of, the Midyear investigation. Moreover, the damage caused by their actions extends far beyond the scope of the Midyear investigation and goes to the heart of the FBI’s reputation for neutral factfinding and political independence.

We were deeply troubled by text messages exchanged between Strzok and Page that potentially indicated or created the appearance that investigative decisions were impacted by bias or improper considerations. Most of the text messages raising such questions pertained to the Russia investigation, which was not a part of this review. Nonetheless, when one senior FBI official, Strzok, who was helping to lead the Russia investigation at the time, conveys in a text message to another senior FBI official, Page, “No. No he won’t. We’ll stop it” in response to her question “[Trump’s] not ever going to become president, right? Right?!”, it is not only indicative of a biased state of mind but, even more seriously, implies a willingness to take official action to impact the presidential candidate’s electoral prospects. This is antithetical to the core values of the FBI and the Department of Justice.

We do not question that the FBI employees who sent these messages are entitled to their own political views. However, we believe using FBI devices to send the messages discussed in Chapter Twelve—particularly the messages that intermix work-related discussions with political commentary—potentially implicate provisions in the FBI’s Offense Code and Penalty Guidelines. At a minimum, we found that the employees’ use of FBI systems and devices to send the identified messages demonstrated extremely poor judgment and a gross lack of professionalism. We therefore refer this information to the FBI for its handling and consideration of whether the messages sent by the five employees listed above violated the FBI’s Offense Code of Conduct.

Use of Personal Email[edit]

As we also describe in Chapter Twelve, we learned during the course of our review that Comey, Strzok, and Page used their personal email accounts to conduct FBI business.

We identified numerous instances in which Comey used a personal email account to conduct unclassified FBI business. We found that, given the absence of exigent circumstances and the frequency with which the use of personal email occurred, Comey’s use of a personal email account for unclassified FBI business to be inconsistent with Department policy.

We found that Strzok used his personal email accounts for official government business on several occasions, including forwarding an email from his FBI account to his personal email account about the proposed search warrant the Midyear team was seeking on the Weiner laptop. This email included a draft of the search warrant affidavit, which contained information from the Weiner investigation that appears to have been under seal at the time in the Southern District of New York and information obtained pursuant to a grand jury subpoena issued in the Eastern District of Virginia in the Midyear investigation. We refer to the FBI the issue of whether Strzok’s use of personal email accounts violated FBI and Department policies.

Finally, when questioned, Page also told us she used personal email for work-related matters at times. She stated that she and Strzok sometimes used these forums for work-related discussions due to the technical limitations of FBI-issued phones. Page left the FBI on May 4, 2018.

Improper Disclosure of Non-Public Information[edit]

As we also describe in Chapter Twelve, among the issues we reviewed were allegations that Department and FBI employees improperly disclosed non-public information regarding the Midyear investigation. Although FBI policy strictly limits the employees who are authorized to speak to the media, we found that this policy appeared to be widely ignored during the period we reviewed.

We identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters. Attached to this report as Attachments E and F are two link charts that reflect the volume of communications that we identified between FBI employees and media representatives in April/May and October 2016. We have profound concerns about the volume and extent of unauthorized media contacts by FBI personnel that we have uncovered during our review.

In addition, we identified instances where FBI employees improperly received benefits from reporters, including tickets to sporting events, golfing outings, drinks and meals, and admittance to nonpublic social events. We will separately report on those investigations as they are concluded, consistent with the Inspector General Act, other applicable federal statutes, and OIG policy.

The harm caused by leaks, fear of potential leaks, and a culture of unauthorized media contacts is illustrated in Chapters Ten and Eleven of our report, where we detail the fact that these issues influenced FBI officials who were advising Comey on consequential investigative decisions in October 2016. The FBI updated its media policy in November 2017, restating its strict guidelines concerning media contacts, and identifying who is required to obtain authority before engaging members of the media, and when and where to report media contact. We do not believe the problem is with the FBI’s policy, which we found to be clear and unambiguous. Rather, we concluded that these leaks highlight the need to change what appears to be a cultural attitude among many in the organization.

Recusal Issues[edit]

Former Deputy Director Andrew McCabe[edit]

As we describe in Chapter Thirteen, in 2015, McCabe’s spouse, Dr. Jill McCabe, ran for a Virginia State Senate seat. During the campaign, Dr. McCabe’s campaign committee received substantial monetary and in-kind contributions, totaling $675,288 or approximately 40 percent of the total contributions raised by Dr. McCabe for her state senate campaign, from then Governor McAuliffe’s Political Action Committee (PAC) and from the Virginia Democratic Party. In addition, on June 26, 2015, Hillary Clinton was the featured speaker at a fundraiser in Virginia hosted by the Virginia Democratic Party and attended by Governor McAuliffe.

At the time his wife sought to run for state senate, McCabe was the Assistant Director in Charge of the FBI’s Washington Field Office (WFO) and sought ethics advice from FBI ethics officials and attorneys. We found that FBI ethics officials and attorneys did not fully appreciate the potential significant implications to McCabe and the FBI from campaign donations to Dr. McCabe’s campaign. The FBI did not implement any review of campaign donations to assess potential conflicts or appearance issues that could arise from the donations. On this issue, we believe McCabe did what he was supposed to do by notifying those responsible in the FBI for ethics issues and seeking their guidance.

After McCabe became FBI Deputy Director in February 2016, McCabe had an active role in the supervision of the Midyear investigation, and oversight of the Clinton Foundation investigation, until he recused himself from these investigations on November 1, 2016. McCabe voluntarily recused himself on November 1, at Comey’s urging, as the result of an October 23 article in the Wall Street Journal identifying the substantial donations from McAuliffe’s PAC and the Virginia Democratic Party to Dr. McCabe.

With respect to these investigations, we agreed with the FBI’s chief ethics official that McCabe was not at any time required to recuse under the relevant authorities. However, voluntary recusal is always permissible with the approval of a supervisor or ethics official, which is what McCabe did on November 1. Had the FBI put in place a system for reviewing campaign donations to Dr. McCabe, which were public under Virginia law, the sizable donations from McAuliffe’s PAC and the Virginia Democratic Party may have triggered prior consideration of the very appearance concerns raised in the October 23 WSJ article. Finally, we also found that McCabe did not fully comply with this recusal in a few instances related to the Clinton Foundation investigation.

Former Assistant Attorney General Peter Kadzik[edit]

In Chapter Fourteen, we found that Kadzik demonstrated poor judgment by failing to recuse himself from Clinton-related matters under federal ethics regulations prior to November 2, 2016. Kadzik did not recognize the appearance of a conflict that he created when he initiated an effort to obtain employment for his son with the Clinton campaign while participating in Department discussions and communications about Clinton-related matters.

Kadzik also created an appearance of a conflict when he sent the Chairman of the Clinton Campaign and a longtime friend, John Podesta, the “Heads up” email that included the schedule for the release of former Secretary Clinton’s emails proposed to the court in a FOIA litigation without knowing whether the information had yet been filed and made public. His willingness to do so raised a reasonable question about his ability to act impartially on Clinton-related matters in connection with his official duties.

Additionally, although Department leadership determined that Kadzik should be recused from Clinton-related matters upon learning of his “Heads up” email to Podesta, we found that Kadzik failed to strictly adhere to this recusal. Lastly, because the government information in the “Heads up” email had in fact been released publically, we did not find that Kadzik released non-public information or misused his official position.

FBI Records Vault Twitter Announcements[edit]

As we describe in Chapter Fifteen, on November 1, 2016, in response to multiple FOIA requests, the FBI Records Management Division (RMD) posted records to the FBI Records Vault, a page on the FBI’s public website, concerning the “William J. Clinton Foundation.” The @FBIRecordsVault Twitter account announced this posting later the same day. We concluded that these requests were processed according to RMD’s internal procedures like other similarly-sized requests, and found no evidence that the FOIA response was expedited or delayed in order to impact the 2016 presidential election. We also found no evidence that improper political considerations influenced the FBI’s use of the Twitter account to publicize the release.

Recommendations[edit]

Our report makes nine recommendations to the Department and the FBI to assist them in addressing the issues that we identified in this review:

  • We recommend that the Department and the FBI consider developing guidance that identifies the risks associated with and alternatives to permitting a witness to attend a voluntary interview of another witness (including in the witness’s capacity as counsel).
  • We recommend that the Department consider making explicit that, except in situations where the law requires or permits disclosure, an investigating agency cannot publicly announce its recommended charging decision prior to consulting with the Attorney General, Deputy Attorney General, U.S. Attorney, or his or her designee, and cannot proceed without the approval of one of these officials.
  • We recommend that the Department and the FBI consider adopting a policy addressing the appropriateness of Department employees discussing the conduct of uncharged individuals in public statements.
  • We recommend that the Department consider providing guidance to agents and prosecutors concerning the taking of overt investigative steps, indictments, public announcements, or other actions that could impact an election.
  • We recommend that the Office of the Deputy Attorney General take steps to improve the retention and monitoring of text messages Department-wide.
  • We recommend that the FBI add a warning banner to all of the FBI’s mobile phones and devices in order to further notify users that they have no reasonable expectation of privacy.
  • We recommend that the FBI consider (a) assessing whether it has provided adequate training to employees about the proper use of text messages and instant messages, including any related discovery obligations, and (b) providing additional guidance about the allowable uses of FBI devices for any nongovernmental purpose, including guidance about the use of FBI devices for political conversations.
  • We recommend that the FBI consider whether (a) it is appropriately educating employees about both its media contact policy and the Department’s ethics rules pertaining to the acceptance of gifts, and (b) its disciplinary provisions and penalties are sufficient to deter such improper conduct.
  • We recommend that Department ethics officials include the review of campaign donations for possible conflict issues when Department employees or their spouses run for public office.

Chapter One: Introduction[edit]

I. Background[edit]

The Department of Justice (Department) Office of the Inspector General (OIG) undertook this review of various actions by the Federal Bureau of Investigation (FBI) and Department in connection with the investigation into the use of a private email server by former Secretary of State Hillary Clinton. Clinton served as Secretary of State from January 21, 2009, until February 1, 2013, and during that time used private email servers hosting the @clintonemail.com domain to conduct official Department of State (State Department) business.

In 2014, in response to a request from the State Department to Clinton for “copies of any Federal records in [her] possession, such as emails sent or received on a personal email account while serving as Secretary of State,” Clinton produced to the State Department 30,490 emails from her private server that her attorneys determined were work-related. Clinton and her attorneys did not produce to the State Department approximately 31,830 emails because, they stated, they were personal in nature, and these emails subsequently were deleted from the laptop computers that the attorneys used to review them.

In 2015, at the State Department’s request, the Office of the Inspector General of the Intelligence Community (IC IG) reviewed emails from Clinton’s private email server that she had produced to the State Department and identified a potential compromise of classified information. The IC IG subsequently referred this information to the FBI.

The FBI opened an investigation, known as “Midyear Exam” (MYE or Midyear), into the storage and transmission of classified information on Clinton’s unclassified private servers in July 2015. Over the course of the next year, FBI agents and analysts and Department prosecutors conducted the investigation. Their activities included obtaining and analyzing servers and devices used by Clinton, contents of private email accounts for certain senior aides, and computers and email accounts used to back up, process, or transfer Clinton’s emails. The investigative team interviewed numerous witnesses, including current and former State Department employees.

On June 27, 2016, while the Midyear investigation was nearing completion, then Attorney General (AG) Loretta Lynch and former President Bill Clinton had an unscheduled meeting while their planes were parked on the tarmac at Phoenix’s Sky Harbor Airport. Former President Clinton boarded Lynch’s plane, and Lynch, Lynch’s husband, and the former President met for approximately 20 to 30 minutes. Following the meeting, Lynch publicly denied having any conversation about the Midyear investigation or any other substantive matter pending before the Department. Nevertheless, the meeting created significant controversy. On July 1, 2016, Lynch publicly announced that she would accept the recommendation of the Midyear investigative and prosecutorial team regarding whether to charge former Secretary Clinton.

The following day, Saturday, July 2, 2016, the FBI and Department prosecutors interviewed former Secretary Clinton at the FBI’s Headquarters building. Then, on July 5, 2016, without coordinating with the Department and with very brief notice to it, then FBI Director James Comey publicly delivered a statement that criticized Clinton, characterized her and her senior aides as “extremely careless” in their handling of classified information, and asserted that it was possible hostile actors gained access to Clinton’s personal email account. Comey concluded, however, that the investigation should be closed because “no reasonable prosecutor” would prosecute Clinton or others, citing the strength of the evidence and the lack of precedent for bringing a case on these facts. The following day, July 6, 2016, Lynch was briefed by the prosecutors and formally accepted their recommendation to decline prosecution.

On October 28, 2016, 11 days before the presidential election, Comey sent a letter to Congress announcing the discovery of emails that “appear[ed] to be pertinent” to the Midyear investigation. Comey’s letter was referring to the FBI’s discovery of a large quantity of emails during the search of a laptop computer obtained in an unrelated investigation of Anthony Weiner, the husband of Clinton’s former Deputy Chief of Staff and personal assistant, Huma Abedin.

The FBI obtained a search warrant to review the emails 2 days later, on October 30, 2016. Over the next 6 days, the FBI processed and reviewed a large volume of emails. On November 6, 2016, 2 days before the election, Comey sent a second letter to Congress stating that the review of the emails on the laptop had not changed the FBI’s earlier conclusions with respect to Clinton.

The OIG initiated this review on January 12, 2017, in response to requests from numerous Chairmen and Ranking Members of Congressional oversight committees, various organizations, and members of the public to investigate various decisions made in the Midyear investigation. The OIG announced that it would review the following issues:

  • Allegations that Department or FBI policies or procedures were not followed in connection with, or in actions leading up to or related to, Comey’s public announcement on July 5, 2016, and Comey’s letters to Congress on October 28 and November 6, 2016, and that certain underlying investigative decisions were based on improper considerations;
  • Allegations that then FBI Deputy Director Andrew McCabe should have been recused from participating in certain investigative matters;
  • Allegations that then Assistant Attorney General for the Department’s Office of Legislative Affairs, Peter Kadzik, improperly disclosed nonpublic information to the Clinton campaign and/or should have been recused from participating in certain matters;
  • Allegations that Department and FBI employees improperly disclosed non-public information; and
  • Allegations that decisions regarding the timing of the FBI’s release of certain Freedom of Information Act (FOIA) documents on October 30 and November 1, 2016, and the use of a Twitter account to publicize the same, were influenced by improper considerations.

The OIG announcement added that “if circumstances warrant, the OIG will consider including other issues that may arise during the course of the review.” One such issue that the OIG added to the scope of this review arose from the discovery of text messages and instant messages between some FBI employees on the investigative team, conducted using FBI mobile devices and computers, that expressed statements of hostility toward then candidate Donald Trump and statements of support for then candidate Clinton, as well as comments about the handling of the Midyear investigation. We addressed whether these communications evidencing a potential bias affected investigative decisions in the Midyear investigation.

This review is separate from the review the OIG announced on March 28, 2018, concerning the Department’s and FBI’s compliance with legal requirements, and with applicable Department and FBI policies and procedures, in applications filed with the U.S. Foreign Intelligence Surveillance Court (FISC) relating to a certain U.S. person. We will issue a separate report relating to those issues when our investigative work is complete at a future date.

II. Methodology[edit]

During the course of this investigation, the OIG interviewed more than 100 witnesses, several on more than one occasion. These included former Director Comey, former AG Lynch, former Deputy Attorney General (DAG) Sally Yates, members of the former AG’s and DAG’s staffs, FBI agents and supervisors and Department attorneys and supervisors who conducted the Midyear investigation, personnel from the FBI’s New York Field Office (NYO) and the U.S. Attorney’s Office for the Southern District of New York (SDNY) involved in the Anthony Weiner investigation, former and current members of the FBI’s senior executive leadership, and former President Clinton.

All of the former Department and FBI officials we contacted to request interviews related to the Midyear investigation agreed to be interviewed. However, two witnesses with whom we requested interviews in connection with our review of whether Peter Kadzik, the former Assistant Attorney General for the Department’s Office of Legislative Affairs (OLA), should have been recused from certain matters declined our request for an interview or were unable to schedule an interview.

We also reviewed significantly more than 1.2 million documents. Among these were FBI documents from the Midyear investigation, including electronic communications (EC) and interview reports (FD-302s), agent notes from witness interviews, draft and final versions of the letterhead memorandum (LHM) summarizing the Midyear investigation, drafts of Comey’s public statement and letters to Congress, and contemporaneous notes from agents and supervisors involved in meetings about the statement and letters to Congress. We also obtained documents from prosecutors and supervisors in the Department’s National Security Division (NSD) and the U.S. Attorney’s Office for the Eastern District of Virginia (EDVA), as well as the Office of the Deputy Attorney General (ODAG) and the Office of the Attorney General (OAG). Importantly, among these documents were contemporaneous notes from the prosecutors and supervisors involved in the investigation.

In connection with our efforts to investigate the circumstances surrounding the FBI’s discovery of Midyear-related emails on Anthony Weiner’s laptop computer and Comey’s notification to Congress on October 28, 2016, we obtained documents from NYO and SDNY personnel. These documents included forensic logs from processing of the Weiner laptop by NYO Computer Analysis and Recovery Team (CART) personnel, NYO and SDNY communications about the discovery of the emails, and other documents.

We obtained communications between and among agents, prosecutors, supervisors, and FBI and Department officials to understand what happened during the investigation and identify the contemporaneous factors considered in making investigative decisions. In addition to a large volume of emails, we obtained and reviewed well in excess of 100,000 text messages and instant messages to or from FBI personnel who worked on the investigation.

Our review also included the examination of highly classified information. We were given broad access to relevant materials by the Department and the FBI, including the sensitive compartmented information (SCI) discussed in the classified appendix to this report and emails and instant messages from both the FBI’s Top Secret SCINet system and Secret FBINet system. Several of the State Department emails between Secretary Clinton and her staff from the underlying Midyear investigation included information relevant to a tightly-held Special Access Program (SAP), and we did not seek or obtain the required read-ins for that program. Based on our review of emails containing redacted SAP and the FBI’s explanation of the program, we determined that this information was not needed for us to make the findings in this report.

Finally, and as discussed in more detail below, our review included information obtained in the Midyear investigation and the Anthony Weiner child exploitation investigation pursuant to grand jury subpoenas and sealed search warrants. At the Inspector General’s request, the Department sought court orders authorizing the release of sealed information that does not otherwise affect individual privacy interests so that we can include relevant information in this report. This information is included in the report where appropriate.

III. Analytical Construct[edit]

As noted above, the OIG undertook this review to determine, among other things, whether “certain investigative decisions [taken in connection with the Midyear investigation] were based on improper considerations,” including political bias or concerns for personal gain. In conducting this portion of our review, it was necessary to select particular investigative decisions for focused attention. It would not have been possible to recreate and analyze every decision made in a year-long complex investigation. We therefore identified particular case decisions or other incidents which were the subject of controversy. These included the use of consent agreements and voluntary interviews to obtain evidence; grants of immunity to witnesses; and the decision to allow Cheryl Mills and Heather Samuelson, two of former Secretary Clinton’s attorneys, to attend her interview.

During our investigation, we looked for direct evidence of improper considerations, such as contemporaneous statements in emails, memoranda, or other documents explicitly linking political or other improper considerations to specific investigative decisions. We likewise questioned witnesses about whether they had direct evidence of improper considerations affecting decisionmaking. As noted above, we reviewed significantly more than 1.2 million emails, text messages, and internal documents relating to the investigation, and interviewed more than 100 witnesses who were involved in the matter.

We also analyzed the justifications offered for the investigative decisions we selected for focused review (including contemporaneous justifications and those offered after the fact) to determine whether they were a pretext for improper, but unstated, considerations. We conducted this assessment with appreciation for the fact that Department and FBI officials were required to make numerous decisions involving complex matters daily, under the unusual pressures and challenges present in the Midyear investigation.

In the January 12, 2017 memorandum announcing this review, we stated, “Our review will not substitute the OIG’s judgment for the judgments made by the FBI or the Department regarding the substantive merits of investigative or prosecutive decisions.” Consistent with this statement, we do not criticize particular decisions or infer that they were influenced by improper considerations merely because we might have recommended a different investigative strategy or tactic based on the facts learned during our investigation. The question we considered was not whether a particular investigative decision was perfect or ideal or one that we believed could have been handled more effectively, but whether the circumstances surrounding the decision indicated that it was based on considerations other than the merits of the investigation. If the explanations that we were given for a particular decision were consistent with a rational investigative strategy and not unreasonable, we did not conclude that the decision was based on improper considerations in the absence of evidence to the contrary. We took this approach because our role as an OIG is not to second-guess valid discretionary judgments made during the course of an investigation, and this approach is consistent with the OIG’s handling of such questions in past reviews.

We applied this same standard as we reviewed and considered the Department’s declination decision, the letterhead memorandum (LHM) summarizing the investigation, and contemporaneous emails and notes reflecting analysis and discussion of legal research conducted by the prosecutors.

IV. Structure of the Report[edit]

This report is divided into sixteen chapters. Following this introduction, Chapter Two summarizes the relevant Department policies governing the release of information to the public and to Congress and the conduct of criminal investigations, as well as the relevant statutes regarding the mishandling of classified information that provided the legal framework for the Midyear investigation.

In Chapter Three, we provide an overview of the Midyear investigation, including decisions about staffing and investigative strategy. In Chapter Four, we discuss the decision to publicly acknowledge the Midyear investigation and former President Obama’s statements about the Midyear investigation. In Chapter Five, we discuss the conduct of the investigation, focusing on the significant investigative decisions that were subject to criticism by Congress and the public after the fact. In Chapters Six and Seven, we describe the events leading to former Director Comey’s July 5 statement and the Department’s decision to decline prosecution of former Secretary Clinton. Chapters Eight through Eleven provide a chronology of events between the FBI’s discovery of Clinton-related emails on the Weiner laptop in late September 2016 and Comey’s letter to Congress on October 28, 2016, and describe the FBI’s analysis of those emails and letter to Congress on November 6, 2016.

Chapter Twelve describes the text messages and instant messages expressing political views we obtained between certain FBI employees involved in the Midyear investigation and provides the employees’ explanations for those messages. It also briefly discusses the use of personal email by several FBI employees, and provides an update on the status of the OIG’s leak investigations.

Chapters Thirteen and Fourteen address allegations that then Deputy Director Andrew McCabe and then Assistant Attorney General Peter Kadzik should have been recused from participating in certain matters, or violated the terms of their recusals.

Chapter Fifteen addresses allegations that the timing of the FBI’s release of FOIA documents and its use of Twitter to publicize the release were influenced by improper considerations or were otherwise improper.

Chapter Sixteen includes our conclusions and recommendations. We also include a non-public classified appendix, which discusses highly classified information relevant to the Midyear investigation (Appendix One), and a non-public Law Enforcement Sensitive (LES) appendix containing the complete, unmodified version of Chapter Thirteen (Appendix Two).

We are providing copies of our unclassified report and the classified appendix to Congress, and are publicly releasing our report without these appendices. We also are providing copies of our unclassified report to the Office of Special Counsel (OSC) for its consideration.

Chapter Two: Applicable Laws and Department Policies[edit]

In this chapter, we describe the applicable laws, regulations, policies, and practices that govern the conduct of the Midyear investigation and are relevant to the analysis in the report. We identify specific Department and FBI policies related to investigative steps taken during the Midyear investigation, overt investigative activities in advance of an election, and the disclosure of information to the media and to Congress. We also describe the Department regulations governing the appointment of a special counsel.

Finally, we summarize the criminal statutes relevant to the Midyear investigation. These statutes provide the legal framework for our discussion of the investigative strategy and the FBI’s and Department’s assessment of the evidence in subsequent chapters.

I. Policies and Laws Governing Criminal Investigations[edit]

Under federal law, investigators and prosecutors are given substantial authority and discretion in conducting criminal investigations. To navigate challenges and issues that they may face during these investigations, and to assist them in exercising their authority and discretion appropriately, the Department maintains the United States Attorneys Manual (USAM) as a “comprehensive...quick and ready reference for...attorneys responsible for the prosecution of violations of federal law.” USAM 1-1.2000, 1-1.1000. In reviewing investigative decisions made during the Midyear investigation, we identified several provisions of the USAM of potential relevance.

The principles guiding the exercise of decisions related to federal prosecutorial discretion and those relevant to criminal prosecutions can be found within USAM Title 9-27.000, the Principles of Federal Prosecution. There the Department lays out guidance for federal prosecutors with the intent of “ensuring the fair and effective exercise of prosecutorial discretion and responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of the facts and circumstances of each case.” USAM 9-27.001. USAM Section 9-27.220 specifies grounds for commencing or declining prosecution, stating that an attorney for the government should commence or recommend federal prosecution if he or she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless the prosecution would serve no substantial federal interest, the person is subject to effective prosecution in another jurisdiction, or there exists an adequate non-criminal alternative to prosecution. This section also states, “[B]oth as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”

A. Grand Jury Subpoenas[edit]

A federal grand jury is a group of sixteen to twenty-three eligible citizens, empaneled by a federal court that considers evidence in order to decide if there has been a violation of federal law. Fed. R. Crim. P. 6(a)(1). It is the responsibility of federal prosecutors “to advise the grand jury on the law and to present evidence for its consideration.” USAM 9-11.010.

Grand jury subpoenas are one tool frequently used by federal prosecutors to collect evidence to present to a grand jury. USAM 9-11.120, Fed. R. Crim. P. 17. There are two types of grand jury subpoenas: (1) a grand jury subpoena ad testificandum which compels an individual to testify before the grand jury; and (2) a grand jury subpoena duces tecum which compels an individual or entity, such as a business, to produce documents, records, tangible objects, or other physical evidence to the grand jury. G.J. Manual § 5.2; Fed. R. Crim. P. 17.[1]

Federal prosecutors have “considerable latitude in issuing [grand jury] subpoenas.” G.J. Manual § 5.4 (quoting Doe v. DiGenova, 779 F.2d 74, 80 (D.C. Cir. 1985)). Nonetheless, “the powers of the grand jury are not unlimited.” G.J. Manual § 5.1 (quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)). A court may quash a grand jury subpoena, upon motion, “if compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17. In addition, a grand jury subpoena cannot override the invocation of a valid “constitutional, common-law, or statutory privilege” and cannot be used when “a federal statute requires the use of a search warrant or other court order.” G.J. Manual § 5.1 (quoting Branzburg, 408 U.S. at 688) and §§ 5.6, 5.26. These limitations are discussed, insofar as they are relevant to this review, in subparts I.B., I.C., and 1.E. of this chapter.

There are also policy limitations governing the use of grand jury subpoenas. For example, the USAM provides guidelines for issuing grand jury subpoenas to attorneys regarding their representation of clients.[2] USAM 9-13.410. These guidelines are discussed in subpart I.B. of this chapter. In addition, the USAM generally advises prosecutors to consider alternatives to grand jury subpoenas, such as obtaining testimony and other evidence by consent, in light of the requirement that the government maintain the secrecy of any testimony or evidence accessed through the grand jury. USAM 9-11.254(1).

B. Search Warrants and 2703(d) Orders[edit]

The Fourth Amendment protects individuals from unlawful searches and seizures of their property. Generally, the government must obtain a search warrant before searching a person’s property in which the person retains a reasonable expectation of privacy. United States v. Ross, 456 U.S. 798, 822-23 (1982). Courts have held that individuals retain a reasonable expectation of privacy in data held within electronic storage devices, such as computers and cellular telephones E.g., Riley v. California, 134 S. Ct. 2473, 2485 (2014); Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001). To obtain a search warrant pursuant to Federal Rule of Criminal Procedure 41 (Rule 41 search warrant), the government must make a showing of facts under oath demonstrating probable cause to believe that the property to be searched contains evidence of a crime. Thus, while the government may issue a grand jury subpoena to obtain an electronic device, such as a computer or cellular telephone, the government generally will only be able to search the electronic device if it can demonstrate probable cause to believe the device contains evidence of a crime.

In addition, as discussed above, a grand jury subpoena cannot be used when “a federal statute requires the use of a search warrant or other court order.” The Stored Communications Act provides that the government must obtain a search warrant in order to require a “provider of electronic communication service” to produce the contents of a subscriber’s electronic communication that have been in electronic storage for 180 days or less. See 18 U.S.C. § 2703(a). For the content of electronic communications that have been in electronic storage for more than 180 days, the government must usually either obtain a search warrant or provide prior notice to the subscriber or customer and obtain a court order or subpoena.[3] See 18 U.S.C. § 2703(b). Thus, except for specific circumstances, in order to obtain the contents of an individual’s email communications that are older than 180 days from a communications service provider such as Yahoo! or Google (Gmail) without notifying the subscriber in advance, the government must first obtain a Rule 41 search warrant upon a showing of probable cause that the stored emails in possession of the provider contain evidence of a crime.

Independent of whether the government can make the requisite probable cause showing to warrant a Rule 41 search warrant, the government may be able to obtain a court order pursuant to 18 U.S.C. § 2703(d) (2703(d) order). A 2703(d) order requires a communications service provider to produce information related to an individual’s email account other than the content of the individual’s emails, such as subscriber information and email header information. A court will issue a 2703(d) order if the government “offers specific and articulable facts showing that there are reasonable grounds to believe that...the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).

C. Evidence Collection Related to Attorney-Client Relationships[edit]

The USAM contains guidelines for the use of subpoenas and search warrants to obtain information from attorneys related to their representation of clients.

When a subpoena issued to an attorney may relate to information concerning the attorney’s representation of a client, the USAM mandates additional process. USAM 9-13.410. As a preliminary matter, all reasonable attempts must be made to obtain the information from alternative sources (specifically including by consent) before issuing the subpoena to the attorney, unless such efforts would compromise the investigation. The Department thereafter exercises “close control” over the issuance of such a subpoena. Before seeking such a subpoena, it “must first be authorized by the Assistant Attorney General or a DAAG [Deputy Assistant Attorney General] for the Criminal Division” except in unusual circumstances. Before the Department official can authorize the subpoena, several principles must be examined regarding the submitted draft subpoena, including:

  • All reasonable attempts to obtain the information from alternative sources shall have proved unsuccessful;
  • The information sought is reasonably needed for the successful completion of the investigation;
  • In a criminal investigation, there must be reasonable grounds to believe that a crime has been or is being committed, and that the information sought is reasonably needed for the successful completion of the investigation or prosecution; and
  • The need for the information must outweigh the potential adverse effects upon the attorney-client relationship.

USAM 9-13.410.C.

The intent behind this additional process is to strike a “balance between an individual’s right to the effective assistance of counsel and the public’s interest in the fair administration of justice and effective law enforcement.” USAM 9-13.410.B.

The Department similarly exercises “close control” when law enforcement seeks the issuance of a search warrant for “the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients.” USAM 9-13.420. Such a search has the potential to “effect...legitimate attorney-client relationships” or uncover material “protected by a legitimate claim of privilege[.]” Id. Therefore, prosecutors “are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law.” USAM 9-13.420.A. Unless it would compromise an investigation, the USAM advises that consideration be given to obtaining needed information from other sources or through the use of consent or a subpoena, rather than issuing such a search warrant. USAM 9-13.420.A. Consultation with the Criminal Division and approval from an Assistant Attorney General or U.S. Attorney are required as well. USAM 9-13.420.B-C.

The use of process to recover materials from “disinterested third parties,” including disinterested third party attorneys, requires consideration of additional guidance under 28 C.F.R. § 59.1 and USAM 9-19.220. Pursuant to 28 C.F.R. § 59.1(b), “It is the responsibility of federal officers and employees to...protect against unnecessary intrusions. Generally, when documentary materials are held by a disinterested third party, a subpoena, administrative summons, or governmental request will be an effective alternative to the use of a search warrant and will be considerably less intrusive.” Similarly, USAM 9-19.220 provides, “As with other disinterested third parties, a search warrant should normally not be used to obtain...confidential materials” from a disinterested third party attorney.

D. Use of Classified Evidence Before A Grand Jury[edit]

The classification of information and evidence can be another significant challenge for a federal prosecutor advising a grand jury. See USAM 9-90.230. Because jurors lack security clearances, the disclosure of such information “may only be done with the approval of the agency responsible for classifying the information[.]” USAM 9-90.230. Though the Department offers measures to “increase the likelihood” a classifying agency will approve the use of such information, the Department encourages prosecutors to consider several alternatives to seeking such disclosures. Id. A significant number of limitations and high-level Department approvals make seeking approval from the classifying agency complex, and inevitably such approval takes additional time. See USAM 9-90.200, 210.

E. Immunity Agreements[edit]

When a witness invokes their Fifth Amendment right against self-incrimination, the government must either forgo the witness’s incriminating testimony or offer the witness protection from prosecution resulting from such testimony, a protection known as “use immunity.” 28 C.F.R. § 0.175(a), Crim. Resource Manual 716. The term “use immunity” encompasses several degrees of legal protections for a witness: transactional immunity, formal use immunity, letter immunity, and “Queen for a Day” agreements. Crim. Resource Manual 719.

1. Transactional Immunity[edit]

Transactional immunity offers the highest level of legal protection to a compelled witness, protecting the witness from actual prosecution for the offense(s) involved in the Grand Jury proceeding. Crim. Resource Manual 717. For decades prior to 1972, the Supreme Court only recognized transactional immunity as the government vehicle to compel testimony from a witness invoking their Fifth Amendment rights. See Kastigar v. United States, 406 U.S. 441, 449-52 (1972).

2. Formal Use Immunity[edit]

In 1970, Congress created a framework for the Department to grant formal “use immunity” for a witness offering testimony in a federal criminal investigation. 18 U.S.C. § 6002; Crim. Resource Manual 716. Unlike transactional immunity, use immunity only protects the witness against the government’s use of the immunized testimony in a subsequent prosecution of the witness, except for perjury or giving a false statement. Crim. Resource Manual 717. However, the Supreme Court subsequently found that the statutory framework creating formal use immunity also prohibits the government from using immunized testimony to discover new evidence that is then used to prosecute the witness. Kastigar, 406 U.S. at 453. This additional protection is known as “derivative use immunity.” Crim. Resource Manual 718. Thus, the government retains the ability to prosecute a witness given formal use immunity, but only with evidence obtained independently of the witness’s immunized testimony. Crim. Resource Manual 717-18. In order to do so, the government must overcome a “heavy, albeit not insurmountable burden, by a preponderance of the evidence” to demonstrate wholly independent discovery of such evidence. United States v. Allen, 864 F.3d 63, 92 (2d Cir. 2017) (citing Kastigar, 406 U.S. at 460).

To obtain formal, court-ordered use immunity, a U.S. Attorney, after obtaining the approval of the Attorney General or her designee and the Criminal Division, seeks a court order to compel testimony of a witness appearing before the grand jury. 18 U.S.C. § 6003(b); USAM 9-23.130. Such compelled testimony should be sought when the witness’s testimony, in the judgment of the U.S. Attorney, is necessary for the public interest and the witness is likely to invoke (or has invoked) their Fifth Amendment privilege against self-incrimination.[4] Id. The decision to grant immunity by a designated Department division ultimately requires final approval from the Department’s Criminal Division. Crim. Resource Manual 720. Once the U.S. Attorney receives Department approval, he or she submits a motion to the judge overseeing the grand jury requesting the order to compel testimony from the witness. Id. at 723.

3. Letter Immunity and “Queen for a Day” Agreements[edit]

In contrast with transactional and formal use immunity, a witness receiving either letter immunity or a “Queen for a Day” agreement is provided legal protections by the prosecutor pursuant to an agreement in exchange for the witness’s agreement to provide testimony. Crim. Resource Manual 719. The legal protections the witness receives for voluntary testimony result from the type of agreement the witness makes with the prosecutor. Id.

Letter immunity describes an agreement between the prosecuting office and the witness that results in a letter from the prosecuting office to the witness authorizing the grant of legal protections.[5] Id. While the provisions of the agreement can vary, as a general matter letter immunity, like formal immunity, only protects the witness against the government’s use of the immunized testimony in a subsequent prosecution of the witness, except for perjury or giving a false statement. Crim. Resource Manual 717; see United States v. Pelletier, 898 F.2d 297, 301 (2d Cir. 1990). Depending on the provisions of the agreement, the government may retain the ability to prosecute the witness with evidence obtained independently of the witness’s immunized testimony, but as with formal use immunity, the government bears a considerable burden in such a prosecution. Crim. Resource Manual 717-18; see also Pelletier, 88 F.2d at 303.

In a “Queen for a Day” agreement, often referred to as a “proffer” agreement, a witness “proffers” or informs prosecutors of what the witness would state under oath if called to testify and, in exchange, the federal prosecutor agrees to limited legal protection for the witness conditioned on the witness’s truthful testimony. Crim. Resource Manual 719. In a standard “Queen for a Day” agreement, the government agrees not to use any statements made by the witness pursuant to the proffer agreement against the witness in its case-in-chief in any subsequent prosecution of the witness, or in connection with the sentencing of the witness if the witness is subsequently prosecuted and convicted. However, unlike with formal use immunity or letter use immunity, the government typically may use leads obtained from the witness’s statements to develop evidence against the witness and may use the witness’s statements to cross-examine the witness in any future prosecution of the witness. United States v. Stein, 440 F. Supp. 2d 315, 322 (S.D.N.Y. 2006); see also Richard B. Zabel and James J. Benjamin, Jr., “Queen for a Day” or “Courtesan for a Day”: The Sixth Amendment Limits to Proffer Agreements, 15 No. 9 White–Collar Crime Rep. 1 (2001).

4. Act of Production Immunity[edit]

Act of production or “Doe” immunity describes a distinct type of immunity applying to a witness’s production of records, instead of witness testimony. USAM 9-23.250; United States v. Doe, 465 U.S. 605 (1984). The production of records by a witness in response to a grand jury subpoena potentially implicates the right against self-incrimination if the fact that the witness produced the records could be used against the witness in a future prosecution as an admission of the existence and possession of the records. USAM 9-23.250. The Department uses the same procedure to grant act of production immunity as it does for formal use immunity, producing a formal letter authorizing the U.S. Attorney to make a motion for a judicial order to compel the production of specifically enumerated records in exchange for not using the witness’ act of production against the witness in a subsequent prosecution of the witness. Id.; Crim. Resource Manual 722. Alternatively, the prosecutor can enter into a letter agreement with the individuals. In either situation, the act of production immunity does not provide any protection for the witness from a future prosecution.

II. Department Policies and Practices Governing Investigative Activities in Advance of an Election[edit]

Department policies require all Department officials to “enforce the laws...in a neutral and impartial manner” and to remain “particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.”[6] Various policies also address investigative activities timed to affect an election and require that prosecutors and agents consult with the Criminal Division’s Public Integrity Section (PIN) before taking overt investigative steps in advance of a primary or general election. No Department policy contains a specific prohibition on overt investigative steps within a particular period before an election. Nevertheless, various witnesses testified that the Department has a longstanding unwritten practice to avoid overt law enforcement and prosecutorial activities close to an election, typically within 60 or 90 days of Election Day. We discuss relevant Department policies and practices below.

A. Election Year Sensitivities Policy[edit]

In 2008, 2012, and 2016, the then Attorney General issued a memorandum “to remind [all Department employees] of the Department’s existing policies with respect to political activities.”[7] These memoranda are substantially similar. Each memorandum contains two sections, one addressing the investigation and prosecution of election crimes and the other describing restrictions imposed on Department employees by the Hatch Act.[8] In its election crimes section, the 2016 memorandum requires consultation with PIN at “various stages of all criminal matters that focus on violations of federal and state campaign-finance laws, federal patronage laws and corruption of the election process.”[9] However, the memorandum also states the following:

Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution.

Likewise, the 2016 memorandum recommends that all Department employees consult with PIN whenever an employee is “faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election,” without regard to the type or category of crime at issue.[10] Ray Hulser, the former Section Chief of PIN who currently is a DAAG in the Criminal Division, told us that this policy does not impose a “mandatory consult” with PIN, but rather encourages prosecutors to call if they have questions about investigative steps or criminal charges before an election.

B. The Unwritten 60-Day Rule[edit]

After the FBI released its October 28, 2016 letter to Congress informing them that the FBI had learned of the existence of additional emails and planned to take investigative steps to review them, contemporaneous emails between Department personnel highlighted editorials authored by former Department officials discussing a longstanding Department practice of delaying overt investigative steps or disclosures that could impact an election. These former officials cited the so-called “60-Day Rule,” under which prosecutors avoid public disclosure of investigative steps related to electoral matters or the return of indictments against a candidate for office within 60 days of a primary or general election.[11]

The 60-Day Rule is not written or described in any Department policy or regulation. Nevertheless, high-ranking Department and FBI officials acknowledged the existence of a general practice that informs Department decisions. Former Director Comey characterized the practice during his OIG testimony as “a very important norm which is...we avoid taking any action in the run up to an election, if we can avoid it.” Preet Bharara, the former U.S. Attorney for the Southern District of New York, told us that the Department’s most explicit policy is about crimes that affect the integrity of an election, such as voter fraud, but that there is generalized, unwritten guidance that prosecutors do not indict political candidates or use overt investigative methods in the weeks before an election.

Several Department officials described a general principle of avoiding interference in elections rather than a specific time period before an election during which overt investigative steps are prohibited. Former AG Lynch told the OIG, “[I]n general, the practice has been not to take actions that might have an impact on an election, even if it’s not an election case or something like that.” Former DAG Yates stated, “I look at it sort of differently than 60 days. To me if it were 90 days off, and you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now you don’t do it.” Former Principal Associate Deputy Attorney General Matt Axelrod stated, “...DOJ has policies and procedures on...how you’re supposed to handle this. And remember...those policies and procedures apply to...every election at whatever level.... They apply, you know, months before.... [P]eople sometimes have a misimpression there’s a magic 60-day rule or 90-day rule. There isn’t. But...the closer you get to the election the more fraught it is.”

Hulser told the OIG that there was “a sense, there still is, that there is a rule out there, that there is some specific place where it says 60 days or 90 days back from a primary or general [election], that you can’t indict or do specific investigative steps.” He said that there is not any such specific rule, and there never has been, but that there is a general admonition that politics should play no role in investigative decisions, and that taking investigative steps to impact an election is inconsistent with the Department’s mission and violates the principles of federal prosecution.

Hulser said that while working on the Election Year Sensitivities memorandum, they considered codifying the substance of the 60-Day Rule, but that they rejected that approach as unworkable, and instead included the general admonition described above. Citing PIN guidance, Hulser told OIG that a prosecutor should look to the needs of the case and significant investigative steps should be taken “when the case is ready, not earlier or later.”[12]

III. Public Allegations of Wrongdoing Against Uncharged Individuals and Disclosure of Information in a Criminal Investigation[edit]

The USAM instructs prosecutors that “[i]n all public filings and proceedings, federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third-parties” and that there is ordinarily no legitimate governmental interest in the public allegation of wrongdoing by an uncharged party. USAM 9-27.760. Accordingly, even where prosecutors have concluded that an uncharged individual committed a crime, Department policies generally prohibit the naming of unindicted individuals (as well as co-conspirators) because their privacy and reputational interests merit significant consideration and protection. See USAM 9-11.130, 9-16.500, 9-27.760.

Department regulations governing interactions with the media recognize that “[t]he availability to news media of information in criminal and civil cases is a matter which has become increasingly a subject of concern in the administration of justice.” 28 C.F.R. § 50.2(a)(1). Addressing this concern, the FBI issued a Media Relations Policy Guide for FBI personnel. The FBI Media Relations Policy Guide recognizes that the regulations found at 28 C.F.R. § 50.2 lay out specific and controlling guidelines addressing the release of information to the media from Department authorities as well as from subordinate law enforcement components, including the FBI. Id.; see also 28 C.F.R. § 0.1. The FBI Media Relations Policy Guide also recognizes that the USAM offers further specific guidance consistent with federal regulations in its Media Policy section “governing the release of information...by all components (FBI...and DOJ divisions) and personnel of the Department of Justice.” USAM 1-7.001. The Department’s policy and regulations forbid the confirmation or denial and any discussion of active investigations, except in limited, specified circumstances. USAM 1-7.530. Taken together, these documents offer an understanding of Department operations related to the media, particularly publicity around FBI investigations.

A. FBI Media Relations Policy[edit]

In October 2015, the FBI issued the version of its Media Relations at FBI Headquarters (HQ) and in Field Offices Policy Guide (“FBI Media Policy Guide”) pertinent to this review.[13] The FBI Media Policy Guide recognizes that the FBI Office of Public Affairs (FBI OPA) “works to enhance the public’s trust and confidence in the FBI by releasing and promoting information about the FBI’s responsibilities, operations, accomplishments, policies, and values.” The FBI Media Policy Guide confirms that FBI OPA “operations are governed by DOJ-OPA’s instructions, located at Title 28 Code of Federal Regulations (C.F.R.) § 50.2, and by the United States Attorneys’ Manual [USAM], Title 1-7.000, ‘Media Relations.’” As such, where the guidance in the FBI Media Policy Guide conflicts with the USAM or 28 C.F.R. § 50.2, the USAM and Code of Federal Regulations control FBI media practices.

In its provisions governing disclosure of information to the media from FBI Headquarters in Washington, the FBI Media Policy Guide states “the [FBI] Director, [FBI] deputy director (DD), associate deputy director (ADD), [Assistant Director] for [FBI] OPA, and [FBI] OPA personnel designated by the [OPA Assistant Director] are authorized to speak to the media.” However “[a]ll releases of information by...any FBI personnel...authorized to speak to the media must conform with all applicable laws and regulations, as well as policies issued by DOJ,” which includes specific reference to the USAM, among other Department legal authorities. The FBI Media Policy Guide itself constrains authorized disclosures, explaining “[d]isclosures must not prejudice an adjudicative proceeding and...must not address an ongoing investigation” except in specified circumstances.[14] The FBI Media Policy Guide offers limited justifications to release information regarding an ongoing investigation, specifying the need “to assure the public that an investigation is in progress[,]...to protect the public interest, welfare, or safety,...[or] to solicit information from the public that might be relevant to an investigation.” Any such release requires “prior approval of FBIHQ entities...[and] the careful supervision of OPA.”

The FBI Media Policy Guide specifies that when releasing information to the media via a press conference, FBI OPA personnel “must request approval...in advance from DOJ-OPA for any case or investigation that may result in an indictment.” Further, FBI personnel “must coordinate with DOJ OPA on any materials, quotes, or information to be released in the press conference.”

B. 28 C.F.R. § 50.2[edit]

In all criminal matters, federal regulations bar Department personnel from “furnish[ing] any statement or information...if such a statement or information may reasonably be expected to influence the outcome of...a future trial.” 28 C.F.R. § 50.2(b)(2). The regulation also provides that “where information relating to the circumstances of...an investigation would be highly prejudicial or where the release thereof would serve no law enforcement function, such information should not be made public.” 28 C.F.R. § 50.2(b)(3).

The regulations permit, subject to limitations, some facts to be released publicly, including a defendant’s name, age, and similar background information, the substance of the charges at issue, specified details regarding an investigation, and the circumstances surrounding an arrest. See 28 C.F.R. § 50.2(b)(3). But while permitting this limited release, the regulation specifies that the Department personnel making the public “disclosures should include only incontrovertible, factual matters, and should not include subjective observations.” Id. These strict limitations “shall apply to the release of information to news media from the time a person is the subject of a criminal investigation until any proceeding resulting from such an investigation has been terminated by trial or otherwise.” 28 C.F.R. § 50.2(b)(1). A Department official explained to the OIG that “otherwise” included criminal actions ended when the Department declines to prosecute.

The regulations do provide for exceptions, acknowledging situations in which the regulations “limit the release of information which would not be prejudicial under the particular circumstances.” 28 C.F.R. § 50.2(b)(9). When a Department official believes that “in the interest of the fair administration of justice and the law enforcement process information beyond these guidelines should be released, in a particular case, he shall request the permission of the Attorney General or the Deputy Attorney General to do so.” Id.

C. USAM Media Relations Guidance[edit]

The Attorney General’s central role to information disclosures to the media is also recognized in the USAM’s Media Relations policy.[15] See USAM 1-7.210. The USAM makes clear that “[f]inal responsibility for all matters involving the news media and the [Department] is vested in the Director of the Office of Public Affairs (OPA)” and, without exception, the “Attorney General is to be kept fully informed of appropriate matters at all times.” USAM 1-7.210.

The USAM’s Media Relations section offers several provisions governing how information disclosure to the media may permissibly take place. Overall, the USAM 1-701(E) requires “any public communication by any...investigative agency about pending matters or investigations that may result in a case, or about pending cases or final dispositions, must be approved by the appropriate Assistant Attorney General, the United States Attorney, or other designate responsible for the case.” Reinforcing a general principle of non-disclosure, the USAM declares “[a]t no time shall any component or personnel of the Department of Justice furnish any statement or information that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” USAM 1-7.500.

In keeping with that principle, USAM 1-7.530 instructs Department personnel that, except in unusual circumstances, they “shall not respond to questions about the existence of an ongoing investigation or comment on its nature or progress, including such things as the issuance or serving of a subpoena, prior to the public filing of the document.” Those unusual circumstances where comment may be appropriate included “matters that have already received substantial publicity, or about which the community needs to be reassured that the appropriate law enforcement agency is investigating the incident, or where release of information is necessary to protect the public interest, safety, or welfare[.]” USAM 1-7.530. But in any such circumstances, “the involved investigative agency will consult and obtain approval from the...Department Division handling the matter prior to disseminating any information to the media.” Id.

USAM 1-7.401 addresses specifically press conferences, emphasizing a preference for written press releases as the “usual method to release public information...by investigative agencies.” While permissible, press conferences “should be held only for the most significant and newsworthy actions, or if a particularly important deterrent or law enforcement purpose would be served. Prudence and caution should be exercised in the conduct of any press conference[.]” USAM 1-7.401. Repeatedly the USAM states that before holding a

IV. Release of Information to Congress[edit]

The provision of information from the Department and the FBI to Congress is governed by Department policy guidance, the USAM, and FBI rules.[16]

A. USAM Congressional Relations Guidance[edit]

Under the USAM Title 1-8.000, and consistent with 28 C.F.R. § 0.27, communications between Congress and the Department are the responsibility of the Assistant Attorney General, Office of Legislative Affairs (OLA).[17] As written, the USAM 1-8.000 generally addresses personnel within the staff of the various United States Attorneys’ Offices. However, USAM 1-8.000 explicitly applies to Department components and several provisions of the USAM guidance regarding the Department’s congressional relations bind all Department personnel.[18]

One such provision is USAM 1-8.030 requiring coordination of a Department response when Congress seeks information that is not public. USAM 1-8.030 states “[a]ll Congressional requests for information (other than public information), meetings of any type, or assistance must immediately be referred to the...OLA[.]” The USAM lists the following examples of congressional requests requiring referral to OLA: “requests for non-public documents or information; discussion of or requests for briefings on cases;...[and] suggestions or comments on case disposition or other treatment[.]” USAM 1-8.030. These standards apply “in both open and closed cases” and the USAM highlights a specific bar on “provid[ing] information on (1) pending investigations;...(3) matters that involve grand jury, tax, or other restricted information; (4) matters that would reveal...sensitive investigative techniques, deliberative processes, the reasoning behind the exercise of prosecutorial discretion, or the identity of individuals who may have been investigated but not indicted.”[19] Id.

B. FBI Guidance on Information Sharing with Congress[edit]

The FBI’s status as the primary investigative agency of the federal government makes its sharing of information with Congress of special concern. Relevant guidance is provided in The Attorney General’s Guidelines for Domestic FBI Operations (“AGG-Dom”) and the FBI’s Domestic Investigations and Operations Guide (“DIOG”). The AGG-Dom directs that the FBI may “disseminate information obtained or produced” through its domestic investigations “to congressional committees as authorized by the Department of Justice Office of Legislative Affairs.”[20] AGG-Dom § VI.B.1(c). This direction is reinforced in the DIOG’s section on the retention and sharing of information, which states “that the FBI may disseminate information obtained or produced through activities under the AGGDom...[t]o Congress or to congressional committees in coordination with the FBI Office of Congressional Affairs (OCA) and the DOJ Office of Legislative Affairs.” DIOG § 14.3.1(D). Notably, both the AGG-DOM and DIOG anticipate circumstances requiring departure from their rules. DIOG §§ 2.6-2.7. The DIOG spells out how such departures may occur, usually involving high-level FBI approval, coordination with the FBI Office of General Counsel, and notice and/or approval at the highest levels of the Department of Justice. Id.

C. Current Department Policy on Communication of Investigative Information to Congress[edit]

While the USAM, AGG-Dom, and DIOG lay out the consistent institutional relationships in the Department and its components for Congressional information flow, the Department also uses policy memoranda and other communications to provide guidance on how communication should be handled with Congress in sensitive, investigation-related circumstances. Among these are two memoranda governing Department communications with Congress and a letter addressing the principles of Department communications with Congress on ongoing investigations.

1. Policy Memoranda on Department Communications with Congress[edit]

On May 11, 2009, then Attorney General Holder issued a policy memorandum for all Department components (including the FBI) entitled Communications with Congress and the White House (“May 2009 Memo”). In addressing pending criminal investigations and cases, the May 2009 Memo explained that the heads of investigative agencies, tasked with the primary duty of initiating and supervising cases, “must be insulated from influences that should not affect decisions in particular criminal...cases.” The May 2009 Memo continues that for communications with Congress, consistent with “policies, laws, regulations, or professional ethical obligations...and consistent with the need to avoid publicity that may undermine a particular investigation,” congressional inquiries related to pending criminal investigations and cases “should be directed to the Attorney General or [DAG].”[21]

On August 17, 2009, then Attorney General Holder issued an updated memo (“August 2009 Memo”) entitled Communications with Congress. The August 2009 Memo clarified that all inquiries from congressional officials should be directed to DOJ OLA. The August 2009 Memo also spelled out that “all communications between the Department and Congress...should be managed by OLA to ensure that relevant Department interests and other Executive Branch interests are protected.” “[C]omponents should not communicate with members, committees, or congressional staff without advance coordination with OLA.” The August 2009 Memo concluded with direction for component heads to contact DOJ OLA for any questions on the policy.[22]

2. The Linder Letter[edit]

In a January 2000 letter from the Department’s AAG for OLA to then Congressman John Linder (“Linder letter”), the Department described in detail the principles that guide OLA and the Department in their decision to disclose or withhold information from Congress. The letter remains a reference guide for OLA.

The Linder letter lays out “governing principles” to foster “improved communications and sensitivity between the Executive and Legislative Branches regarding our respective institutional needs and interests.” After discussing the general tension between the interests of the two branches, the Linder letter examines the “inherent threat to the integrity of the Department’s law enforcement and litigation functions” that comes from congressional inquiries during pending investigations. The letter noted that this concern was “especially significant with respect to ongoing law enforcement investigations.” It then described the Department’s longstanding policy, “dating back to the beginning of the 20th Century,” to decline to provide congressional committees with access to open law enforcement files. One risk, according to the letter, is the possible public perception that such congressional inquiries amount to pressure resulting in “undue political and Congressional influence over law enforcement and litigation decisions.” Another risk is the “severe[] damage” to the reputations of those mentioned in disclosure of information on open matters, “even though the case might ultimately not warrant prosecution or other legal action.”

Finally, even when an investigation results in a declination, the Linder letter explains that the disclosure of information contained in such a declination memorandum “would implicate significant individual privacy interests as well.” Such information “often contain[s] unflattering personal information as well as assessments of witness credibility and legal positions. The disclosure of the contents of these documents could be devastating to the individuals they discuss.”

V. Special Counsel Regulations[edit]

Since the 1999 lapse of the Independent Counsel Reauthorization Act, Department regulations govern the process of appointing a special counsel. 28 U.S.C. §§ 591-599, 64 Fed. Reg. 37,038 (1999). According to 28 C.F.R. § 600.1, the Attorney General (or Acting Attorney General) may appoint a special counsel for the criminal investigation of a person or matter when it would be in the public interest and there exists a Department conflict of interest or other extraordinary circumstance.

The regulations provide that the Attorney General need not appoint a special counsel immediately when a possible conflict emerges. Instead, the Attorney General may authorize further investigation or mitigation efforts, such as recusal. See 28 C.F.R. § 600.2. The special counsel must come from outside the government.[23] See 28 C.F.R. § 600.3. The Attorney General sets the criminal jurisdiction of the special counsel through a “specific factual statement of the matter to be investigated,” though the Attorney General may authorize the additional areas of investigation.[24] 28 C.F.R. §§ 600.3-600.4. Day to day, the special counsel is not subject to Department supervision, but the Attorney General maintains the ability to review and overrule special counsel decisions in certain circumstances. 28 C.F.R. § 600.7.

VI. Criminal Statutes Relevant to the Midyear Investigation[edit]

Four statutes governing the handling and retention of classified information are relevant to the Midyear investigation: 18 U.S.C. §§ 793(d), 793(e), 793(f), and 1924.[25] Section 793(f)(1), which prohibits the grossly negligent removal of “national defense information,” became a central focus of the investigation and of subsequent prosecutive decisions. In addition to the mishandling and retention statutes, prosecutors also considered whether former Secretary Clinton or others violated 18 U.S.C. § 2071, a criminal statute prohibiting the willful concealment, removal, or destruction of federal records, in connection with the deletion of emails. We discuss the Department’s analysis of these statutes in Chapter Seven.

A. Mishandling and Retention of Classified Information[edit]

1. 18 U.S.C. §§ 793(d) and (e)[edit]

Sections 793(d) and (e) are felony statutes that apply to the willful mishandling and retention of classified information. Section 793(d) governs the mishandling of classified documents or information by individuals who are authorized to possess it — that is, who have the appropriate security clearance and require access to the specific classified information to perform or assist in a lawful and authorized governmental function (“need to know”).[26] Section 793(d) provides:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it...[is subject to a criminal fine or imprisonment].

Thus, to prove a violation of Section 793(d), the government must establish the following:

  • The individual lawfully had possession of documents or “information relating to the national defense;”
  • If information, he or she had reason to believe that the information could be used to the injury of the United States or to the advantage of a foreign nation; and
  • The individual willfully communicated, delivered, or transmitted the document or information to a person not entitled to receive it, or willfully retained the document or information and failed to deliver it to the officer or employee of the United States entitled to receive it.

Section 793(e) addresses the possession and transmission of classified information by persons who are not authorized to possess it, either because they lacked the requisite security clearance and need to know, or because they exceeded the scope of their authorization by removing classified materials from a secure facility.[27] Apart from this distinction, Sections 793(d) and 793(e) are substantially identical.

Information Relating to the National Defense[edit]

Both 793(d) and 793(e) apply to individuals who possess documents or “information relating to the national defense.” This term is not defined in the statute. Courts have not limited this phrase to any specific subject matter, but the Fourth Circuit has held that the government must establish first that the information is “closely held by the government,” and second, that its “disclosure would be potentially damaging to the United States or useful to an enemy of the United States.” United States v. Rosen, 445 F. Supp. 2d 602, 618, 620-21 (E.D. Va. 2006) (Rosen I) (citing Gorin v. United States, 312 U.S. 19 (1941)); United States v. Morison, 844 F.2d 1057, 1073 (4th Cir. 1988); United States v. Truong, 629 F.2d 908, 918-19 (4th Cir. 1980); United States v. Heine, 151 F.2d 813, 817 (2d Cir. 1945).

The classification level of information may be “highly probative of whether the information at issue is ‘information relating to the national defense’ and whether the person to whom they disclosed the information was ‘entitled to receive’ [it].”[28] However, classification level does not conclusively establish that a document or information is “information relating to the national defense.” In United States v. Rosen, 599 F. Supp. 2d 690, 694-95 (E.D. Va. 2009) (Rosen II), the court stated that the term “information relating to the national defense” is not synonymous with classified information. While the classification level of information may serve as evidence that the government intended that it be closely held, the defendant can rebut the conclusion by showing that the government in fact failed to hold it closely. The court also stated that the classification level could not be introduced to show that unauthorized disclosure of the information might potentially damage the United States or aid an enemy of the United States.[29]

Willfulness[edit]

Sections 793(d) and (e) both require that the prohibited act be done “willfully.” Courts have interpreted “willfully” to mean an act done “intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law.”[30]

In Rosen I, the court held that to prove that the defendants “willfully” committed the conduct prohibited under Sections 793(d) and (e), the government is required to prove beyond a reasonable doubt:

[T]hat the defendants knew the information was NDI [information relating to the national defense], i.e., that the information was closely held by the United States and that disclosure of this information might potentially harm the United States, and that the persons to whom the defendants communicated the information were not entitled under the classification regulations to receive the information. Further the government must prove beyond a reasonable doubt that the defendants communicated the information they had received from their government sources with “a bad purpose either to disobey or to disregard the law.” It follows, therefore, that if the defendants, or either of them, were truly unaware that the information they are alleged to have received and disclosed was classified, or if they were truly ignorant of the classification scheme governing who is entitled to receive the information, they cannot be held to have violated the statute.[31]
Additional Burden of Proof for Disclosures of Intangible Information[edit]

Courts have held that Sections 793(d) and (e) contain a “heightened” or “additional” mens rea req[32] In addition to showing that an individual acted willfully, the government must prove beyond a reasonable doubt that he or she possessed “reason to believe that the information could be used to the injury of the United States or to the advantage of a foreign nation.”[33]

Vagueness Challenges[edit]

The term “information relating to the national defense” in Sections 793(d) and (e) repeatedly has been challenged as unconstitutionally vague. Courts have rejected such challenges because the statute requires the government to prove that an individual “willfully” committed the prohibited conduct, a requirement that “eliminat[es] any genuine risk of holding a person ‘criminally responsible for conduct which he could not reasonably understand to be proscribed.’”[34]

2. 18 U.S.C. § 793(f)[edit]

Section 793(f)(1), known as the gross negligence provision, became a central focus in the controversy over the decision not to recommend prosecution of former Secretary Clinton or her senior aides, and former Director Comey’s public statement on July 5, 2016. Below we discuss the statutory requirements under Section 793(f), the Midyear prosecutors’ interpretation of Section 793(f)(1), and previous cases in which prosecution was declined under the gross negligence provision.

a. Statutory Requirements[edit]

Section 793(f) provides as follows:

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer...[is subject to a criminal fine or imprisonment].

Section 793(f)(1) addresses the removal, delivery, loss, theft, abstraction, or destruction of any document or “information relating to the national defense” through gross negligence, while Section 793(f)(2) penalizes the failure to report the removal, loss, theft, abstraction, or destruction of any document or “information relating to the national defense,” if an individual has knowledge that it has been removed from its proper place of custody.

Section 793(f), like sections 793(d) and (e), requires that the information in question be “information relating to the national defense.” In United States v. Dedeyan, 584 F.2d 36, 39 (4th Cir. 1978), the Fourth Circuit upheld jury instructions in a Section 793(f)(2) case that required the government to prove that “disclosure of information in the document would be potentially damaging to the national defense, or that information in the document disclosed might be useful to an enemy of the United States.”

b. Prosecutors’ Interpretation of the “Gross Negligence” Provision in Section 793(f)(1)[edit]

Section 793(f)(1) does not define what constitutes “gross negligence,” nor have any federal court decisions interpreted this specific provision of the statute. However, the prosecutors analyzed the legislative history of Section 793(f)(1) and identified statements made during the 1917 congressional debate indicating that the state of mind required for a violation of Section 793(f)(1) is “so gross as to almost suggest deliberate intention,” criminally reckless, or “something that falls just a little short of being willful.” The prosecutors cited a statement by Congressman Andrew Volstead during the 1917 debate about the predecessor to Section 793(f)(1):

I want to call attention to the fact that the information that is covered by this section may be, and probably would be, of the very highest importance to the Government.... It is not an unusual provision at all. It occurs in a great many criminal statutes. Men are convicted for gross negligence, but it has to be so gross as almost to suggest deliberate intention before a jury will convict. For instance, a person is killed by a man running an automobile recklessly on a crowded street. He may, and under the laws of most States would be, adjudged guilty of manslaughter, and can be sent to State prison.... We have, as I have already stated, a number of statutes of that kind. This provision is not revolutionary. It is the ordinary practice to apply such statutes to cases where lack of care occasions the death or serious injury of persons. This section should be, and probably would be, applied only in those cases where something of real consequence ought to be guarded with extreme care and caution.[35]

Given the absence of a definition of “gross negligence” in Section 793(f), the prosecutors researched state manslaughter statutes in effect at the time of the 1917 congressional debate, and determined that gross negligence was interpreted in that context to require wantonness or recklessness that was equivalent to criminal intent. However, the prosecutors also identified contemporaneous state court decisions interpreting other criminal statutes using “gross negligence” to require proof that ranged from something more than civil negligence to willful, intentional conduct.

The Midyear prosecutors did not find any court cases addressing the state of mind required for a violation of Section 793(f)(1). However, the prosecutors analyzed United States v. Dedeyan, 584 F.2d 36, 39 (4th Cir. 1978), a Fourth Circuit decision interpreting Section 793(f)(2). This case involved a civilian employee who completed a military vulnerability analysis and marked it “Secret,” then took a copy of it home to proofread. While at home, his cousin secretly photographed part of the analysis with a camera provided by the Soviet Union. When the defendant later learned that his cousin had taken these photos, he accepted $1,000 as a “payment for remaining silent” rather than reporting that the information had been compromised. Upholding the statute against a challenge that it was unconstitutionally vague, the court held that Section 793(f)(2) requires the government to prove that the defendant knew that the document had been illegally abstracted, and that this knowledge requirement was sufficient to save the statute from vagueness.

In addition, the Midyear prosecutors reviewed previous prosecutions under Section 793(f)(1) in federal or military courts and concluded that these cases involved either a defendant who knowingly removed classified information from a secure facility, or inadvertently removed classified information from a secure facility and, upon learning of its removal, failed to report its “loss, theft, abstraction, or destruction.”[36] The prosecutors concluded that based on case law and the Department’s prior interpretation of the statute, charging a violation of Section 793(f) likely required evidence that the individuals who sent emails containing classified information “knowingly” included the classified information or transferred classified information onto unclassified systems (Section 793(f)(1)), or learned that classified information had been transferred to unclassified systems and failed to report it (Section 793(f)(2)). Thus, the Midyear prosecutors interpreted the “gross negligence” provision of Section 793(f)(1) to require proof that an individual acted with knowledge that the information in question was classified.[37]

As noted above, sections 793(d) and (e) have survived constitutional vagueness challenges because of the existence of a scienter requirement in the form of the requirement to prove “willfulness.” Such a challenge has not yet been raised in a Section 793(f)(1) “gross negligence” case. The Midyear prosecutors stated:

[T]he government would likely face a colorable constitutional challenge to the statute if it prosecuted an individual for committing gross negligence who was both unaware he had removed classified information at the time of the removal and never became aware he had done so.... Moreover, in bringing a vagueness challenge, defense counsel would also likely point to the significant disagreement as to the meaning of “gross negligence.”
c. Previous Section 793(f)(1) Declinations[edit]

The Midyear prosecutors also reviewed at least two previous investigations where prosecution was declined under the gross negligence provision in Section 793(f)(1). The Midyear prosecutors told us that these declinations informed their understanding of the Department’s historical approach to Section 793(f)(1). We discuss these previous declinations below.

Gonzales Declination Decision[edit]

One of these previous cases involved an OIG investigation into the mishandling of documents containing highly classified, compartmented information about a National Security Agency (NSA) surveillance program by former White House Counsel and Attorney General Alberto Gonzales. In 2004, while Gonzales was the White House Counsel, he took handwritten notes memorializing a meeting about the legality of the NSA program. The notes included operational details about the program, including its compartmented codeword. Although Gonzales did not mark the notes as classified, he said that he used two envelopes to doublewrap the notes and may have written an abbreviation for the codeword on the inner envelope. On the outer envelope, Gonzales said that he wrote “AG – EYES ONLY –TOP SECRET.” He stored these notes in a safe in the West Wing of the White House and said that he took them with him when he became the Attorney General in February 2005. Gonzales said that he did not recall where he stored the notes after removing them from the White House, but that he may have taken them home. Gonzales also stored the notes and several other documents containing TS//SCI classification markings in a safe in the Attorney General’s office that was not approved to hold such materials.

The OIG referred investigative findings to NSD for a prosecutive decision. According to information reviewed by the OIG, on August 19, 2008, NSD analyzed Gonzales’ handling of the notes under the gross negligence provision in section 793(f)(1). NSD concluded that prosecutors likely could show that the documents were removed from their proper place of custody, but that the question was whether that removal constituted “gross negligence.” After discussing the legislative history of Section 793(f)(1), NSD stated that the government likely would have to prove that Gonzales’ conduct was “criminally reckless” to establish that he acted with gross negligence under Section 793(f)(1). NSD concluded that Gonzales’ inability to recall precisely where he stored the notes detracted from prosecutors’ ability to “show a state of mind approaching ‘deliberate intention’ to remove classified documents from a secure location.”

AUSA Declination Decision[edit]

The Midyear prosecutors also reviewed another 2008 case in which prosecution was declined under Section 793(f)(1). This case involved an AUSA who sent numerous boxes of documents to his personal residence in the United States following an overseas tour as a legal attaché. According to the prosecutors’ analysis, the boxes contained a large number of documents that were classified at the Secret and Confidential levels. Many of these documents were organized haphazardly or were improperly marked. The AUSA testified that he did not purposely ship classified documents to his house, but acknowledged that it was highly likely that the documents he shipped included some classified materials.

Interpreting section 793(f)(1), NSD stated that prosecutors likely would be required to prove that the AUSA’s conduct was “criminally reckless.” NSD identified factors suggesting that the AUSA’s conduct did not rise to the level of gross negligence, including that he testified that he did not purposely ship classified documents to his house, and thus he did not deliberately intend to remove the classified documents from a secure location. In addition, the documents were not separated into classified and unclassified categories, and they did not contain proper classification markings in that the first few pages of certain documents were not marked but later pages in the same document contained classification markings. Based on these and other factors, NSD concluded that prosecution was not warranted.

3. 18 U.S.C. § 1924[edit]

Section 1924 is a misdemeanor statute that prohibits the “knowing” removal of documents or materials containing classified information without authority and with the “intent to retain” such documents or materials at an unauthorized location. To establish a violation of this statute, the government must show that an individual knowingly removed classified materials without authority and intended to store these materials at an unauthorized location. To remove “without authority” means that the classified materials were removed from the controlling agency’s premises without permission.[38] Although no reported cases interpret this provision, the Midyear prosecutors concluded that Section 1924 requires the government to show beyond a reasonable doubt that the defendant had knowledge that the location where he or she intended to store classified material was an “unauthorized” or “unlawful” place to retain it, citing the legislative history, the Petraeus case we describe below, and other previous prosecutions under this provision.

High profile cases considered by the Midyear prosecutors and by FBI leadership involving plea agreements under Section 1924 include former Central Intelligence Agency (CIA) Director David Petraeus, former National Security Advisor Samuel “Sandy” Berger, and former CIA Director John Deutch. In each of these cases, the defendants knew the information at issue was classified or took actions reflecting knowledge that their handling or storage of it was improper.

Petraeus, a retired U.S. Army General, served as the Commander of the International Security Assistance Force in Afghanistan from July 2010 to July 2011, and as the Director of the CIA from September 2011 to November 2012. While in Afghanistan, Petraeus kept notes in black notebooks that included information about the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and discussions with the President. Petraeus retained these notebooks when he returned from Afghanistan and later shared them with his biographer, Paula Broadwell, admitting to her in a recorded conversation that the notebooks were “highly classified” and contained “code word stuff.” He also stored them in an unlocked desk drawer in his home office. During a subsequent investigation into his mishandling and retention of classified information, Petraeus falsely told the FBI that he never provided or facilitated the provision of classified information to Broadwell. In March 2015, Petraeus pled guilty to one count under 18 U.S.C. § 1924, and was sentenced to 2 years of probation, a $25 special assessment, and a $100,000 fine.[39]

Sandy Berger, the National Security Advisor under former President Bill Clinton, visited the National Archives and Records Administration to review documents for production to the 9/11 Commission. During his visits, Berger concealed and removed documents by folding the documents in his clothes, walking out of the National Archives building, and placing them under a nearby construction trailer for later retrieval.[40] Berger removed a total of five copies of classified documents, stored them in his office, and later destroyed three of them by cutting them into small pieces and discarding them. All of these documents were marked classified. Berger also created and removed handwritten notes of classified material that he had reviewed, and was aware that he removed these notes from the National Archives without authorization. Berger pled guilty to a criminal information charging one count of 18 U.S.C. § 1924.[41] He was sentenced to 2 years of probation, a $56,905.52 fine, a $25 special assessment, and 100 hours of community service, and was precluded from accessing classified information for 5 years.

Former CIA Director John Deutch was investigated for using unclassified, Internet-connected computer systems to create and process classified documents and storing classified memory cards in his personal residence. During an investigation by the CIA Inspector General (CIA IG), investigators recovered files from a computer at Deutch’s residence that were labeled as unclassified but contained words indicating that the information was “Secret” or “Top Secret Codeword,” or was otherwise highly sensitive. For example, recovered documents included reports on covert operations, communications intelligence, memoranda to then President Bill Clinton, and classified CIA budget information. The CIA IG report states that Deutch told investigators that he “fell into the habit” of using the unclassified system “in an inappropriate fashion,” and admitted that he had intentionally created highly sensitive documents on unclassified computers. In addition, witnesses testified that Deutch was considered to be an “expert” or “fairly advanced” computer user. Following a criminal investigation, Deutch agreed to plead guilty to one count under 18 U.S.C. § 1924, but was pardoned by President Clinton on January 19, 2001, before the plea was consummated.

Examples of conduct prosecuted under Section 1924 include a former government employee who stored boxes of marked classified documents in his personal residence; a contractor who downloaded classified information from a secure network to a thumb drive, transferred the information to an unclassified computer, and shared it with others; and a government employee who concealed and removed highly classified documents from a Sensitive Compartmented Information Facility (SCIF) where he worked and stored the documents in his vehicle and house.

B. 18 U.S.C. § 2071(a)[edit]

Section 2071(a) is a felony statute criminalizing the concealment, removal, or mutilation of government records filed in any public office. To establish a violation of this provision, the government must prove the following beyond a reasonable doubt:

  • An individual concealed, removed, or destroyed a record, or attempted to do so, or took and carried away a record with the intent to do so:
  • The record was filed or deposited in a public office of the United States; and
  • The individual acted willfully and unlawfully.

The purpose of t[42] The Midyear prosecutors concluded that every prosecution under Section 2071 has involved the removal or destruction of documents that had already been filed or deposited in a public office of the United States (i.e., physical removal of a document). In addition, to fulfill the requirement that the individual acted “willfully and unlawfully,” Section 2071 requires the government to show that he or she acted intentionally, with knowledge that he or she was breaching the statute.[43]

Chapter Three: Overview Of The Midyear Investigation[edit]

In this chapter, we provide an overview of the Midyear investigation. More specifically, we describe the referral and opening of the investigation, the staffing of the investigation by the Department and the FBI, and the investigative strategy.

I. Referral and Opening of the Investigation[edit]

A. Background[edit]

1. Clinton’s Use of Private Email Servers[edit]

Source page 37

Hillary Clinton served as Secretary of State from January 21, 2009, until February 1, 2013. During that time, she used private email servers hosting the @clintonemail.com domain to conduct official State Department business.[44] According to FBI documents, former Secretary Clinton and her husband, former President Bill Clinton, had a private email server in their house in Chappaqua, N.Y., beginning in approximately 2008 (before Clinton’s tenure as Secretary of State) for use by former President Clinton’s staff. Former Secretary Clinton told the FBI that, in or around January 2009, she “directed aides...to create the clintonemail.com account,” and that this was done “as a matter of convenience.”

According to the FBI letterhead memorandum (LHM) summarizing the Midyear investigation, Clinton used her clintonemail.com account and personal mobile devices linked to that account for both personal and official business throughout her tenure as Secretary of State. The LHM states that Clinton “decided to use a personal device to avoid carrying multiple devices.” Clinton never personally used an official State Department email account or State Department-issued handheld device during her tenure, although there were official State Department email accounts from which emails were sent on her behalf.

2. Production of Emails from the Private Email Servers to the State Department and Subsequent Deletion of Emails by Clinton’s Staff[edit]

Source page 37

On September 11 and 12, 2012, terrorists attacked the U.S. Temporary Mission Facility and a Central Intelligence Agency (CIA) Annex in Benghazi, Libya, killing four Americans.[45] On May 8, 2014, the U.S. House Select Committee on Benghazi (House Benghazi Committee) was established to investigate the Benghazi attack and, thereafter, sought documents from the State Department as part of its investigation. In the summer of 2014, State Department officials contacted Cheryl Mills, who had served as former Secretary Clinton’s Chief of Staff and Counselor, concerning the State Department’s inability to locate Clinton’s and other former Secretaries’ emails to respond to Congressional requests. Mills later told the FBI that she suggested that the State Department officials search State Department systems for Clinton’s clintonemail.com email address. In addition, Mills told the FBI that State Department officials requested that she produce former Secretary Clinton’s emails and advised her that it was Clinton’s or Mills’s “obligation to filter out personal emails from what was provided to State.”

Former Secretary Clinton asked Mills and Clinton’s personal attorney, David Kendall, to oversee the process of providing her emails to the State Department. In late summer 2014, Mills contacted Paul Combetta, an employee of the company that administered Clinton’s private server at the time, and requested that he transfer copies of Clinton’s emails onto Mills’s laptop and a laptop belonging to Heather Samuelson, a lawyer who had served in the State Department as Secretary Clinton’s White House Liaison. Mills, Samuelson, and Kendall then developed a methodology for Samuelson to “cull” former Secretary Clinton’s work-related emails from her personal emails, to produce her work-related emails to the State Department.

In October and November 2014, the State Department sent letters to four former Secretaries of State, including Clinton, requesting that they “make available copies of any Federal records in their possession, such as emails sent or received on a personal email account while serving as Secretary of State.”[46] In December 2014, former Secretary Clinton produced to the State Department “from her personal email account approximately 55,000 hard-copy pages, representing approximately 30,000 emails that she believed related to official business.”[47] After receiving these documents, the State Department, in addition to responding to the House Benghazi Committee’s document request, reviewed Clinton’s emails for potential public release in response to Freedom of Information Act (FOIA) requests.

As described in Chapter Five, Mills, Samuelson, and Combetta told the FBI that in late 2014 or early 2015 Mills and Samuelson asked Combetta to remove former Secretary Clinton’s emails from their laptops. Combetta then used the commercial software “BleachBit” to permanently remove or wipe former Secretary Clinton’s emails from Mills’s and Samuelson’s laptops.[48] Mills told the FBI that at some point between November 2014 and January 2015, Clinton decided she no longer wished to retain on her server emails that were older than 60 days and Mills instructed Combetta to change Clinton’s email retention policy accordingly. Combetta, however, failed to do so until late March 2015.

On March 3, 2015, the House Benghazi Committee sent preservation orders requiring former Secretary Clinton to preserve emails on her servers.[49] As described in more detail in Chapter Five, Combetta told the FBI that later in March 2015 he realized that he had neglected to make the change to former Secretary Clinton’s email retention policy earlier that year, had an “oh shit” moment, and, without consulting Mills, used BleachBit to permanently remove Clinton’s emails from her server. These included emails that had been transferred from a prior server. According to FBI documents, former Secretary Clinton’s attorneys advised Combetta about the congressional preservation order before he made the deletions. As a result of Combetta’s actions, 31,830 emails that former Secretary Clinton’s attorneys had deemed personal in nature were deleted from three locations on which they had previously been stored—Mills’s and Samuelson’s laptops and the Clinton server.

B. State Department Inspector General and IC IG Review of Clinton’s Emails and Subsequent 811 Referral[edit]

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On March 12, 2015, three Members of Congress requested that the State Department Inspector General (State IG) conduct a review regarding State Department employees’ use of personal email for official purposes. The Members of Congress requested that the State IG coordinate with the Office of the Intelligence Community Inspector General (IC IG) to determine whether classified information was transmitted or received by State Department employees over personal systems. Following this request, the IC IG reviewed 296 of the 30,490 emails that former Secretary Clinton’s attorneys had provided to the State Department and determined that at least two of these emails contained classified information. The 296 emails, including the two determined to contain classified information, had already been publicly released by State Department FOIA officials.

In a June 24, 2015 letter, Kendall told the State IG and the IC IG that a copy of the 30,490 emails provided by former Secretary Clinton to the State Department was stored on a thumb drive in his law office and that her personal server was in the custody of the company “Platte River Networks” (“PRN”). Based on this information, the IC IG concluded that “the thumb drive and personal server contain classified information and are not currently in the Government’s possession.”

On July 6, 2015, the IC IG made a referral to the FBI pursuant to Section 811(c) of the Intelligence Authorization Act of Fiscal Year 1995 (811 referral). This provision requires Executive Branch departments and agencies to advise the FBI “immediately of any information, regardless of its origin, which indicates that classified information is being, or may have been, disclosed in an unauthorized manner to a foreign power or an agent of a foreign power,” and is typically used to refer to the FBI a loss or unauthorized disclosure of classified information. The IC IG referred the matter to the FBI “for any action you deem appropriate.”

C. FBI’s Decision to Open a Criminal Investigation[edit]

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On July 10, 2015, the FBI Counterintelligence Division opened a criminal investigation in response to the 811 referral from the IC IG. Although only a small percentage of 811 referrals result in criminal investigations, witnesses told the OIG that a criminal investigation was necessary to determine the extent of classified information on former Secretary Clinton’s private server, who was responsible for introducing the information into an unclassified system, and why it was placed there. The FBI gave the investigation the code name “Midyear Exam,” choosing it from a list of randomly generated names.

The FBI predicated the opening of the investigation on the possible compromise of highly sensitive classified secure compartmented information (SCI). One of the Midyear case agents told us that the Midyear investigative team was focused at the outset on the “potential unauthorized storage of classified information on an unauthorized system and then where it might have gotten [sic] from there.” A Department prosecutor assigned to the investigation similarly described the scope of the investigation as “related to the email systems used by Secretary Clinton, and whether on her private email server there are individuals who improperly retained or transmitted classified information.”

The FBI designated the Midyear investigation as a Sensitive Investigative Matter (SIM). According to the DIOG, a SIM includes “an investigative matter involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security)” as well as “any other matter which, in the judgment of the official authorizing an Assessment, should be brought to the attention of FBI [Headquarters] and other DOJ officials.” FBI witnesses told us that the SIM designation is typically given to investigations involving sensitive categories of persons such as attorneys, judges, clergy, journalists, and politicians, and that that SIM investigations are overseen more closely by FBI management and the FBI Office of General Counsel than other investigations.

The Midyear investigation was opened with an “Unknown Subject(s) (UNSUB),” and at no time during the investigation was any individual identified by the FBI as a subject or target of the investigation, including former Secretary Clinton. FBI witnesses told us that the “UNSUB” designation is common and means that the FBI has not identified a specific target or subject at the outset of an investigation. According to FBI witnesses, this allowed the FBI to expand the focus of the investigation based on the evidence without being “locked into a particular subject.” With respect to the Midyear investigation, witnesses told the OIG that the FBI did not identify anyone as a subject or target during the investigation because it was unclear how the classified material had been introduced to the server and who was responsible for improperly placing it there.

Despite the UNSUB designation, witnesses told us that a primary focus of the Midyear investigation was on former Secretary Clinton’s intent in setting up and using her private email server. An FBI OGC attorney assigned to the Midyear team (FBI Attorney 1) told the OIG, “We certainly started looking more closely at the Secretary because they were her emails.” Randall Coleman, the former Assistant Director of the Counterintelligence Division, stated, “I don’t know [why] that was the case, why it was UNSUB. I’m really shocked that it would have stayed that way because certainly the investigation started really kind of getting more focused.”

In his OIG interview, Comey described former Secretary Clinton as the subject of the Midyear investigation and stated that he was unaware that the investigation had an UNSUB designation. Similarly, in his book, Comey referred to former Secretary Clinton as the subject of the Midyear investigation, stating that one question the investigation sought to answer was what Clinton was thinking “when she mishandled that classified information.”[50]

D. Initial Briefing for the Department[edit]

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On July 23, 2015, Coleman and then Deputy Director Mark as’ met with Deputy Attorney General (DAG) Sally Yates and Principal Associate Deputy Attorney General (PADAG) Matt Axelrod to brief them on the opening of the Midyear investigation. According to Coleman, he and Giuliano told Yates and Axelrod why the Midyear investigation was opened and laid out their vision of how the investigation would be conducted, including that the FBI planned to run the investigation out of headquarters.

Yates recalled being briefed by Giuliano and Coleman at the beginning of the Midyear investigation, but said that she did not recall having concerns about the information they presented at the meeting or remembering anything significant about it. Axelrod told the OIG that Giuliano and Coleman showed them a copy of the 811 referral that the FBI had received, and either showed them or told them about some of the emails that had been identified as potentially classified. Axelrod stated:

That, my recollection is that the way they explained it was that review of the certain emails contained on the personal server that Secretary Clinton had been using showed that some of those emails contained classified information. And so that, and that they, one of the things that was sort of standard practice when there was classified information on non-classified systems was that a review needed to be done to sort of contain the, I think the word they use in the [intelligence] community is a spill…. The spill of classified information out into sort of [a] non-classified arena. And so that they needed to, this was a referral so that the Bureau could help contain the spill and identify if there was classified information on non-classified systems so that that classified information could be contained and either, you know, destroyed or returned to proper information handling mechanisms.

Asked whether he considered the Midyear investigation to be criminal as of the date of this initial briefing, Axelrod replied, “Not in my view.” According to Axelrod, “it was some time...before I, at least I understood that it had morphed into a criminal investigation.”

The prosecutors and career Department staff assigned to the Midyear investigation told us that they considered it a criminal investigation from early on. Deputy Assistant Attorney General (DAAG) George Toscas, who was the most senior career Department official involved in the daily supervision of the investigation, told us that he approached it as a criminal investigation from the beginning of NSD’s involvement. Prosecutors 1 and 2, both of whom were assigned to the investigation by late July 2015, understood that it was a criminal investigation from very early in the investigation. Prosecutor 1 told us, “I mean, pretty quickly this seemed like a, a criminal investigation…. [I]t looked, looked and it smelled like a criminal investigation to me.”

II. Staffing the Midyear Investigation[edit]

A. FBI Staffing[edit]

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The Midyear investigation was conducted by the FBI’s Counterintelligence Division. For the first few weeks, the investigation was staffed by FBI Headquarters personnel and temporary duty assignment (TDY) FBI agents. Thereafter, FBI management decided to run the investigation as a “special” out of FBI Headquarters. This meant that the investigation was staffed by counterintelligence agents and analysts from the FBI Washington Field Office (WFO) who were temporarily located to headquarters and received support from headquarters personnel. FBI management selected WFO personnel based on WFO’s geographic proximity to headquarters and its experience conducting sensitive counterintelligence investigations. FBI witnesses told us that previous sensitive investigations also had been run as “specials,” and that this allowed FBI senior executives to exercise tighter control over the investigation.

There were approximately 15 agents, analysts, computer specialists, and forensic accountants assigned on a full-time basis to the Midyear team, as well as other FBI staff who provided periodic support. Four WFO agents served as the Midyear case agents and reported to a WFO Supervisory Special Agent (“SSA”). Several FBI witnesses described the SSA as an experienced and aggressive agent, and the SSA told us that he selected the “four strongest agents” from his WFO squad to be on the Midyear team.

The SSA reported to Peter Strzok, who was then an Assistant Special Agent in Charge (ASAC) at WFO.[51] Comey and Coleman told us that Strzok was selected to lead the Midyear investigative team because he was one of the most experienced and highly-regarded counterintelligence investigators within the FBI.

There were also several analysts on the Midyear team. Some analysts assigned to Midyear were on the review team, which reviewed and analyzed former Secretary Clinton’s emails. These analysts reported to a Supervisory Intelligence Analyst, who in turn reported to the Lead Analyst. FBI witnesses, including Coleman, told us that the Lead Analyst was highly regarded within the FBI and very experienced in counterintelligence investigations. Other analysts were on the investigative team, which assisted the agents with interview preparation and performed other investigative tasks. These analysts reported to the SSA and Strzok, in addition to reporting directly to the Lead Analyst. Several analysts were on both the review and investigative teams.

Until approximately the end of 2015, the Lead Analyst and Strzok both reported to a Section Chief in the Counterintelligence Division, who in turn reported to Coleman for purposes of the Midyear investigation.[52] The remainder of the reporting chain was as follows: Coleman to John Giacalone, who was Executive Assistant Director (EAD) of the National Security Branch; Giacalone to DD Giuliano; and DD Giuliano to Director Comey.

During the course of the investigation, some FBI officials involved with the Midyear investigation retired or changed positions. In late 2015, Coleman became the EAD of the FBI Criminal, Cyber, Response, and Services Branch and was no longer involved in the Midyear investigation. At the same time, E.W. (“Bill”) Priestap replaced Coleman as AD of the Counterintelligence Division. EAD Giacalone and DD Giuliano retired from the FBI in early 2016 and were replaced by Michael Steinbach and Andrew McCabe, respectively.

In addition, Lisa Page, who was Special Counsel to McCabe, became involved in the Midyear investigation after McCabe became the Deputy Director in February 2016. Page told the OIG that part of her function was to serve as a liaison between the Midyear team and McCabe. Page acknowledged that her role upset senior FBI officials, but told the OIG that McCabe relied on her to ensure that he had the information he needed to make decisions, without it being filtered through multiple layers of management. Several witnesses told the OIG that Page circumvented the official chain of command, and that Strzok communicated important Midyear case information to her, and thus to McCabe, without Priestap’s or Steinbach’s knowledge. McCabe said that he was aware of complaints about Page, and that he valued her ability to “spot issues” and bring them to his attention when others did not do so.

The FBI Office of General Counsel (OGC) assigned FBI Attorney 1, who was a supervisory attorney in the National Security and Cyber Law Branch (NSCLB), to provide legal support to the Midyear team. A second, more junior attorney (FBI Attorney 2) also was assigned to the Midyear team. FBI Attorney 1 reported to Deputy General Counsel Trisha Anderson, who in turn reported to then General Counsel James Baker.[53]

Figure 3.1 describes the FBI chain of command for the Midyear investigation. This figure does not include intervening supervisors who had limited involvement in the investigation.

OIG-report-figure3.1.jpg

B. Department Staffing[edit]

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Within the Department, the Midyear investigation was primarily handled by the Counterintelligence and Export Control Section (CES) of the National Security Division (NSD), with support from two prosecutors in the United States Attorney’s Office for the Eastern District of Virginia (EDVA). All of the prosecutors assigned to the Midyear team had significant experience handling national security investigations or white collar criminal cases.

The lead prosecutor (Prosecutor 1) was a supervisory attorney in CES. Prosecutor 1 told us that he selected the “best” nonsupervisory line attorney within CES (Prosecutor 2) to handle the Midyear investigation with him. The two CES prosecutors reported directly to the Chief of CES, David Laufman, who in turn reported to DAAG George Toscas. Toscas was the highest level career Department employee involved in the Midyear investigation, and the prosecutors and supervisors below him who were involved in the Midyear investigation were also career employees. As described in more detail below, Department officials above Toscas, including then Assistant Attorney General (AAG) John Carlin, Axelrod, Yates, and Lynch, received briefings about the Midyear investigation but were not involved in its day-to-day management.

In August 2015, EDVA was brought into the Midyear investigation. EDVA assigned two supervisory attorneys to work with the CES prosecutors: Prosecutor 3 and Prosecutor 4. The role of the EDVA prosecutors initially was to facilitate the issuance of legal process, including grand jury subpoenas, search warrants, and 2703(d) orders. However, the NSD prosecutors told the OIG that ultimately they consulted and worked closely with the EDVA prosecutors on many issues and decisions throughout the course of the Midyear investigation. Prosecutor 3 similarly told us that as the investigation progressed, he and Prosecutor 4 were considered “equal partners” with the NSD prosecutors.

EDVA senior leadership, including then U.S. Attorney Dana Boente, received briefings on the Midyear investigation from the EDVA prosecutors and were informed of significant developments, but they were not involved in investigative decisions. Axelrod told the OIG that he recalled that he spoke to Boente early in the Midyear investigation and “let[] them know that this was NSD’s investigation.” Axelrod stated:

[S]ometimes when you have a U.S. Attorney’s office and a Main Justice component, you know, things have to go up two chains and...that’s cumbersome.... [I]n...an investigation like this we figured it was easier just to have everything centralized in NSD. There’s a reason why NSD has the ticket on, you know, all these matters, right? They’re the subject matter experts[.]

Axelrod explained that NSD has primary responsibility for counterterrorism and counterintelligence cases not only because it has subject matter expertise in those areas, but also because those cases are nationwide. He stated that there are certain areas of law where it is important to ensure nationwide consistency in how the law is applied, because if “one district does something really different than another district it can have very bad...ramifications or consequences.” As noted previously, the USAM requires NSD to expressly approve in advance charges involving certain national security statutes, including those that were considered in this investigation.

Prosecutor 2 stated that NSD’s typical role varies from case to case, and depends on the resources and experience of the specific U.S. Attorney’s Office. This prosecutor told the OIG that NSD typically “drives” counterintelligence cases, but that its role “runs the gamut” from taking the lead on cases to playing a supporting role. Prosecutor 2 stated that EDVA has been more willing to allow NSD attorneys to play an active role in charged cases and is “very open to [NSD’s] partnership and support.”

Prosecutor 3 similarly told the OIG that EDVA’s supporting role in the Midyear investigation was unusual, but he attributed this to logistics. This prosecutor stated, “[Prosecutors 1 and 2] were right across the street from FBI Headquarters.... [I]t was pretty work intensive, more so for them because they would have to go over there at the drop of a hat for meetings. You know, we were always kept in the loop of what was going on. But [the] FBI kept a pretty tight hold of the classified documents.” Prosecutor 3 also said that running the case out of NSD, supervised by Toscas, allowed the Department to keep “one central location of control by a career person over the investigation.”

Several witnesses told us that the FBI was frustrated at the perceived slow pace of bringing a U.S. Attorney’s Office into the Midyear investigation. However, Toscas told us that it is not unusual for a U.S. Attorney’s Office not to be involved in the beginning of an investigation, and that it took some time to determine the proper venue and select the most appropriate U.S. Attorney’s Office. Prosecutor 1 told us that although the U.S. Attorney’s Office for the District of Columbia also was considered, EDVA was selected in part based on the good historical working relationship between NSD and EDVA.

Boente told the OIG that he expressed concerns that EDVA was not the appropriate district given that former Secretary Clinton lived in New York. He said that they potentially could establish venue through an email server or victim agency server located in EDVA, but that it would be unusual to select venue to prosecute a high-profile public figure on that basis. Boente said that while no one explained why the Department chose EDVA, he assumed that it was because “we move quicker and do things a lot quicker than some districts can.”

III. Role of Senior FBI and Department Leadership in the Investigation[edit]

A. FBI Leadership[edit]

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The Midyear investigation was closely supervised by FBI leadership from the outset. Comey told the OIG that he received frequent briefings on the Midyear investigation:

And then once it got underway, either in July or maybe in August [2015], I told them I wanted to be briefed on it on a much more frequent basis then I would normally on a case because I was keen to make sure that they had the resources they need and that there was no—that I could both support them if they needed additional things and protect them in the event anybody outside of the investigative team tried to monkey with them in any way or exert any pressure on them or anything like that. Because I could see immediately how significant the matter was.... So I think they got into a rhythm of briefing me maybe every couple of weeks.

Comey said that briefings took place roughly every two to three weeks at the beginning of the investigation, and occurred on a weekly basis as the investigation progressed.

Comey said that the Midyear briefings typically were attended by a core team of senior officials:

  • The Deputy Director (Giuliano, then McCabe);
  • FBI OGC personnel including Baker, Anderson, and FBI Attorney 1;
  • The EAD of the National Security Branch (Giacalone, then Steinbach);
  • The AD of the Counterintelligence Division (Coleman, then Priestap);
  • Deputy Director McCabe’s counsel, Lisa Page (beginning in February 2016); and
  • Strzok and the Lead Analyst.

Other FBI officials periodically attended these briefings, including then Associate Deputy Director (ADD) David Bowdich after his appointment in April 2016, but witnesses told us that briefings were carefully controlled and limited to a select group of senior FBI managers.

Comey said that the Midyear team typically produced a biweekly or weekly written summary of their progress in the investigation, and that briefings generally focused on what the team had completed and what needed to be done. Comey stated, “[T]he way it tended to break down is [the Lead Analyst] would talk about exploitation of media and sorting through emails and things. And Pete [Strzok] would focus on investigative steps, interviews, things like that.” Comey told the OIG:

[I]t would typically be here in the [Director’s] conference room at the table and they would give me a progress report on where they were and I would typically ask the questions that were rooted in my interest in it to begin with which is— do you have the resources you need? Any problems that I can help you with? I just felt the need to stay close to it[.]

As described in more detail in Chapter Six, the same officials were involved in discussions about whether to do a public statement announcing the closing of the Midyear investigation. Comey characterized these discussions as “great family conversations,” stating that he was a great believer in oppositional argument and encouraged people to bring up different points of view.

In addition to the Midyear-specific meetings, Comey and the Deputy Director (first Giuliano, then McCabe) had daily morning and late afternoon meetings about significant developments or issues that were impacting the FBI. The Midyear investigation was sometimes discussed immediately following these meetings in “sidebar” meetings involving a smaller group of participants due to the sensitivity of the investigation.[54]

As the result of these frequent briefings, Comey and McCabe knew about and were involved in significant investigative decisions. McCabe stated:

[Comey] relied on me for kind of my advice and recommendation on those decisions. But he was very involved in the decisions on Midyear.... Not decisions like what time is the interview with John Jones going to take place tomorrow, but...we think we should serve a subpoena on so-and-so for these records, and the Department of Justice is saying no, we want to try to work it out with a letter. And so...as that conflict was brewing, he would learn about it and weigh in on it and not necessarily decide it. But he was up-to-speed on all of the kind of significant things that were happening in the case.

McCabe told the OIG that although Strzok and Priestap made the day-to-day investigative decisions, he and Comey were informed about any problems that arose during the investigation, as well as any significant information that the team discovered.

As described in more detail in Chapter Five, our review found examples where Comey or McCabe approved or directed specific investigation decisions. These included directing the Midyear agents to deliver a preamble at the first interview of Cheryl Mills about the need to answer questions about the process used to cull former Secretary Clinton’s personal and work-related emails, without informing the prosecutors; authorizing Baker to contact Beth Wilkinson, counsel to Mills and Samuelson, again without telling the prosecutors; approving the consent and immunity agreements used to obtain the Mills and Samuelson laptops; and not prohibiting Mills and Samuelson from attending the interview of former Secretary Clinton as her counsel.

B. Department Leadership[edit]

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Unlike the FBI’s senior leadership, senior Department officials played a more limited role in the Midyear investigation. Although Lynch, Yates, Axelrod, and Carlin described making a conscious decision to allow the career staff to handle the Midyear investigation with minimal involvement by political appointees, they also told us that their involvement was consistent with their normal role in criminal investigations.

Lynch[edit]

Lynch told the OIG that she received limited briefings on the Midyear investigation. She explained that the Midyear investigation was not discussed at her morning meetings or staff meetings because it was a sensitive matter and involved potentially classified information. Lynch said that she had a monthly meeting with NSD, and that although the Midyear investigation was too sensitive to discuss during that meeting, afterward the meeting would “skinny down” to discuss sensitive cases among a smaller group of people that included Yates, Axelrod, Carlin, Toscas, and sometimes members of her staff. She said that the cases discussed among this smaller group included not only the Midyear investigation, but also other sensitive counterterrorism and classified cases.

Lynch said that she understood that there were political sensitivities inherent in the Midyear investigation, and she wanted to protect the Midyear team from perceived pressure from Department leadership. She stated:

Because we knew that it was going to be scrutinized, we wanted to make sure that not only was the team supported, but they also were insulated from a lot of people talking about it and just discussing it in general throughout the office.... And so, my view was that unless you need me for something, you know, I don’t want to be on top of the team for this. They, they should work as they always work. They should know that [they have] whatever they need to have, whatever resources they need to get. But the Front Office is not, you know, breathing down their neck on this.

Asked whether there was ever a conscious decision by the political appointees to step back and allow the career employees to handle the investigation, Lynch replied:

Certainly it was my view, and I can’t recall having discussions about that. But that was how I viewed the setup, was that we wanted to make sure that this was always handled by the career people, and that essentially even though they would need input, and certainly toward the end of anything you’d have to make certain decisions. But not to have, at least certainly from...the fifth floor level where I was, not to have that kind of input early on. Although I typically wouldn’t have had input...in the inner workings of an investigation.

Lynch said that Toscas was the most senior career Department official involved in making decisions about the Midyear investigation, and that she had faith and confidence in his ability to handle the case.

Lynch explained that she was not involved in the day-to-day investigative decisions about how to staff the investigation, what witnesses to interview, or any of the other “things that [she] used to do as a line [Assistant U.S. Attorney (AUSA)].” Nor did she intervene in conflicts between the prosecutors and agents. She told the OIG that this was not unique to the Midyear investigation but rather represented her standard practice, stating:

[M]y view is that...whoever is, is leading the team needs to deal with that initially because they’ve got to keep working with each other. And based on my experience as an AUSA, if you can resolve it at that level first, you will have a team that is, is, is more solid and can work together more easily. If not, then I think the, the next level supervisor has got to be involved in that.... [M]y view is that the chain of command is set up is there for that reason.
But I wouldn’t, if someone said to me the agents want to interview this person, and the prosecutors don’t, my first question before I got involved would be to say what do the supervisors think? Because if, if I as AG, or even as U.S. Attorney immediately step in and make that decision, then what I’ve done is I may have solved a problem, but I’ve cut the knees off of every supervisor in between me and them. And, and that creates bigger problems down the road.

Lynch said her view was that problems or conflicts should not be elevated to the Attorney General unless the parties had exhausted all other remedies.

Yates and Axelrod[edit]

Yates told the OIG that although Department leadership understood the significance of the Midyear investigation, they agreed that it should be handled like any other case. She said that the role of Department leadership in the Midyear investigation represented their normal approach to criminal investigations, stating:

[L]ook, we got the sensitivity of this matter obviously even from the beginning. And I remember we wanted to make certain that NSD had all the resources that they needed, that they were on top of it. That we stayed briefed on what was going on but from the very beginning it was important to us for this to be handled like any other case would be handled. That we wanted to make sure that the line prosecutors and lawyers who were doing this didn’t feel like they had the leadership office breathing down their neck because that’s going to put a layer of pressure on them that is not appropriate we felt like here. So it was important to us for NSD to be handling the day to day aspects of this. But at the same time we wanted to make sure that they were getting what they needed. And that we were staying apprised of significant developments in it....
Not only doing it the right way but making sure that we did this, that it had the appearance of doing it the right way too. And public confidence was going to be important. We knew that from the very beginning. And that we wanted to make sure that we had a process in place that was going to be the right process. And that would be for NSD to handle the day to day aspects of it. And so we had [that] conversation. You know, the DAG’s office is really sort of more the operational one between the two leadership offices. And so I certainly had conversations with the AG about how we set this up and we’re running it. But again, there was no real dispute with anybody about this. This seemed like the natural and right way to do things....

Asked whether her role in the Midyear investigation differed at all from her usual process, Yates replied:

Every other case is not on the radar screen of...[the] DAG, obviously. But this was a significant matter for the Department that was one of those small handful of cases that how you do it can be defining for the Department of Justice.... And we were very aware of that from the very beginning. So when I say we were handling it like any other case what I mean is that we wanted to ensure that the factors that went into a decision about how we should proceed in that matter and how, the kind of latitude that the line people were handling had to do it in that matter, that that should be done like any other case. Nobody should get any special treatment. Nobody should be treated more harshly...because of who they were. That’s what I mean it should be like any other case. But we weren’t stupid. I mean, we recognized that the profile and import of this matter was such that we needed to make sure that things were done correctly.

Yates explained that the DAG typically gets involved in an investigation from a decisionmaking standpoint if there is disagreement between one of the Department’s litigating components and another government agency, or between a Department component and a U.S. Attorney’s Office, or if there is “real uncertainty” about whether to take a potential investigative step. She stated, “Normally the DAG’s office is not running an investigation and we weren’t running this one.”

Yates told the OIG that she received more frequent updates on the Midyear investigation than she did on other cases, attributing this to the profile and time sensitivity of the investigation. Yates told the OIG that it was hard to generalize how frequently she received updates, but that she had regular meetings with NSD every other week. Although the Midyear investigation was not discussed with the larger group present during these meetings, afterward they would “skinny down” to a smaller group to discuss sensitive matters, including the Midyear investigation. This smaller group included Carlin, Toscas, and Mary McCord, who was at the time the Principal DAAG in NSD. Yates said that she also participated in Lynch’s regular meetings with NSD, which would similarly “skinny down” at the end.

The NSD and EDVA prosecutors told the OIG that they were concerned at various points during the Midyear investigation that there was a disparity between the involvement of Department and FBI leadership in discussions about investigative steps. For example, while McCabe (the second in command at the FBI) attended meetings at which the Midyear agents and prosecutors debated whether and how to obtain the Mills and Samuelson laptops, the highest ranking official representing the Department’s position at those meetings was Toscas. Asked whether she was informed of these concerns, Yates told the OIG that she was not. She said that she was not aware that McCabe attended meetings with the Midyear prosecutors, nor did she know that Comey was closely involved in the investigation. Yates stated that she spoke to McCabe regularly about various issues, and that she thought he was “relaxed enough” with her to tell her that she needed to be at any meetings. Yates said that any disparity resulted from the unusually high level of involvement by FBI leadership, not a decreased role by Department leadership.

Axelrod similarly told the OIG that at the outset of the Midyear investigation, senior Department officials “made efforts to...set up a structure that would maintain the integrity of this matter.” He explained that they were aware that no matter how the investigation turned out, there was likely to be criticism at the end. As a result, he said that they considered it “extra important to make sure things were...done...by the book, following procedures. Making sure that when people criticize[d] whatever the outcome was that we’d be able to say no, this was done straight down the middle on the facts and on the law.”

Axelrod said that he met with Toscas at the outset of the investigation and explained that Toscas would be the primary supervisor over the investigation. Axelrod stated:

[W]e were going to have sort of a lighter touch from the leadership offices than we might on a sort of high profile case. In other words, we were there for him for whatever he needed. But we weren’t going to be sort of checking in day to day or week to week for updates or briefings. When...something significant happened...that we needed to know about he would let us know....
And I, when I say a lighter touch I don’t mean that folks weren’t engaged or paying attention. I, not at all. I just mean we wanted to give them the space they needed to do whatever they thought necessary in the investigation. So that at the end...I just wanted to make sure that any allegation that there was some sort of political interference with this investigation wouldn’t hold water.

Axelrod told the OIG that the difference between the role of Department leadership in the Midyear investigation and the typical high-profile investigation was “just a matter of degree.” He said that he and Yates relied on Toscas to bring issues to their attention at “skinny down” sessions following the biweekly meetings with NSD, but that “it wasn’t us saying okay, and what’s the latest on the email investigation?”

Carlin[edit]

Carlin told the OIG that NSD’s standard practice is for cases to be handled by the career staff, supervised by a DAAG. He said that at the beginning of the Midyear investigation, he held a meeting with McCord, Toscas, and the NSD prosecutors in which he emphasized the need to “go more by the book” and to follow the normal procedure. Carlin said that he wanted one person in the NSD Front Office to be in charge of the Midyear investigation, and that he chose Toscas based on his historical expertise with investigations involving “espionage, the straight-up a spy [cases], and the leak mishandling type portfolio.”

Carlin said that he preferred having one person who was clearly accountable and in charge. He stated:

I tend to like that as former career person...I knew what it felt like when you’re in one of those spots. So, in general, I prefer that type of structure. In this case, I knew, as well, at the end of the day, whatever decision was made in the case, it was going to be a high-profile controversial decision. And so...you might need to explain later what process do we follow at the Department. And so, I wanted to make that clear, internally and to our partners, that this was the process we were following...at the National Security Division.
And just, seeing some other cases in my career that were, they were high profile. They were handled in a way than was different than the norm. More people got involved in trying to make the day-to-day decisions. I didn’t think that that redounded to the benefit of the case. Not just for appearance purposes, but...it also just created confusion and frustration among the relevant teams. And kind of, inconsistencies in how they were staffed, sometimes, when someone had a great idea later, and came in over the top, and changed the way they were approaching the case. So, right from the beginning, I wanted to, to set it up, and structure...it that way. I felt pretty strongly about it.

Carlin said that he discussed this with Lynch and Yates and made it clear to them that the team had the authority to make investigative and prosecutorial decisions. Carlin said that he told Lynch and Yates that “like other sensitive matters, we would periodically update them.” According to Carlin, Lynch and Yates knew that this was how Carlin was handling the investigation and supported this structure. Carlin said that he also explicitly communicated this to the FBI, explaining it to both Giacalone and McCabe.

IV. Investigative Strategy[edit]

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The Midyear team sought to determine whether any individuals were criminally liable under the laws prohibiting the mishandling of classified information, which are summarized in Chapter Two. To do so, the team employed an investigative strategy that included three primary lines of inquiry: collection and examination of the emails that traversed former Secretary Clinton’s servers and other relevant evidence, interviews of relevant witnesses, and analysis of whether classified information was compromised by hostile cyber intrusions.[55]

A. Collection and Examination of Emails that Traversed Clinton’s Servers and Other Relevant Evidence[edit]

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The Midyear team sought to collect and review any emails that traversed Clinton’s servers during her tenure as Secretary of State, as well as other evidence that would be helpful to understand classified information contained in those emails. This included a review of the 30,490 work-related emails and attachments to those emails that former Secretary Clinton’s attorneys had produced to the State Department.

The team also attempted to recover or reconstruct the remaining 31,830 emails that Clinton’s attorneys determined were personal and did not produce to the State Department. As described above and in Chapter Five, before the Midyear investigation began, these emails had been deleted and “wiped” from former Secretary Clinton’s then current server. The Midyear team also believed that some work-related emails could have been deleted from Clinton’s servers before her attorneys reviewed them for production to the State Department.

The Midyear investigators sought to recover and review deleted emails by obtaining and forensically analyzing, among other things, Clinton’s servers and related equipment; other devices used by Clinton, such as Blackberries and cellular telephones; laptops and other devices that had been used to backup Clinton’s emails from the server; and the laptops used by Clinton’s attorneys to cull her personal emails from her work-related emails. The team also obtained email content or other information from the official government or private email accounts of certain individuals who communicated with Clinton by email, originated the classified email chains that were ultimately forwarded to Clinton, or transferred Clinton’s emails to other locations.

As described in Chapter Five, the Midyear team did not seek to obtain every device or the contents of every email account that it had reason to believe a classified email traversed. Rather, the team focused the investigation on obtaining Clinton’s servers and devices. Witnesses stated that, due to what they perceived to be systemic problems with handling classified information at the State Department, to expand the investigation beyond former Secretary Clinton’s server systems and devices would have prolonged the investigation for years. They further stated that the State Department was the more appropriate agency to remediate classified spills by its own employees.

Analysts examined both the original 30,490 emails produced by former Secretary Clinton to the State Department and the emails recovered through other means to identify potentially classified information. Once the analysts identified information that they suspected to be classified, the team sought formal classification review from government agencies with equities in the information. The analysts also examined the emails for evidence of criminal intent. For example, they searched for:

  • Classification markings to assess whether participants in classified email chains were on notice that the information contained in them was classified;
  • Statements by former Secretary Clinton or others indicating whether Clinton used private servers for the purpose of evading laws regarding the proper handling of federal records or classified information;
  • Statements by former Secretary Clinton or others indicating whether they knew that emails contained information that was classified—even if they were not clearly marked—when they sent or received them on unauthorized systems;
  • Evidence as to whether former Secretary Clinton or others forwarded classified information to persons without proper clearances or without the need to know about it; and
  • Documentation showing whether originators of classified emails had received classified information in properly marked documents before transferring the information to unclassified systems without markings.

B. Witness Interviews[edit]

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The Midyear team told us that witness interviews covered several areas of investigative interest. First, the team interviewed individuals involved with setting up and administering former Secretary Clinton’s servers to understand her intent in using private servers and to assess what measures they used to protect the servers from intrusion. These witnesses also helped FBI analysts understand the server structures to inform subsequent analyses. Additionally, they helped FBI investigators identify additional sources of evidence, such as devices containing backups of Clinton’s emails.

Second, the Midyear team interviewed individuals who introduced, transmitted, or received information on unauthorized systems, including the originators of classified information, Clinton’s aides who forwarded the originators’ emails to her, and Clinton herself. The originators included State Department employees and employees of other government agencies. The team interviewed these witnesses to, among other things, assess: (1) whether they believed the information contained in the emails was classified; (2) how or from where they originally received the classified information (and whether based on those circumstances they should have known that the information contained in the emails was classified); and (3) why they sent the information on unclassified systems.

Third, the Midyear team interviewed individuals with knowledge of how and why 31,830 of former Secretary Clinton’s emails were deleted from her servers and other locations. The team sought to assess whether Clinton or her attorneys deleted or directed the deletion of emails for an improper purpose, such as to avoid FOIA or Federal Records Act (FRA) requirements.

Fourth, the Midyear team interviewed State Department employees with knowledge of the State Department’s policies and practices regarding federal records retention. The team sought to determine whether Clinton’s use of a private server was sanctioned by the State Department, as well as what measures the State Department put in place to protect Clinton’s private server from intrusion.

C. Intrusion Analysis[edit]

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The FBI also conducted intrusion analyses to determine whether any classified information had been compromised by domestic hostile actors or foreign adversaries. Agents and analysts specializing in forensics examined the servers, devices, and other evidence to assess whether unauthorized actors had attempted to log into, scan, or otherwise gain access to the email accounts on the servers and, if so, whether their efforts had been successful. They also examined various FBI datasets to assess whether emails containing classified information had been compromised.

Chapter Four: Decision to Publicly Acknowledge the Midyear Investigation and Reaction to White House Statements About the Investigation[edit]

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In this chapter, we address the decision of the FBI and the Department to publicly acknowledge an investigation following the public referral from IC IG, including the allegation that former Lynch instructed former Director Comey to refer to the Midyear investigation as a “matter.” We also discuss public statements by former President Barack Obama about the Midyear investigation, which raised concerns about White House influence on the investigation. As we describe in Chapter Six, Comey cited the events set forth in this chapter as two of the factors that influenced his decision to deliver a public statement announcing the closing of the Midyear investigation on July 5, 2016, without coordinating with the Department.

I. Public Acknowledgement of the Investigation[edit]

A. Statements about the Investigation in Department and FBI Letters to Congress in August and September 2015[edit]

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Following the public referral to the FBI from the IC IG in July 2015, the Department and the FBI received questions from the media and Congress asking whether they had opened a criminal investigation of former Secretary Clinton. According to emails exchanged in late August 2015, there was a significant disagreement between ODAG and FBI officials regarding whether to acknowledge that a criminal investigation had been opened. FBI officials, according to the emails, wanted to acknowledge “open[ing] an investigation into the matter,” while ODAG officials approved language “neither confirm[ing] nor deny[ing] the existence of any ongoing investigation,” based on longstanding Department policy. FBI and Department letters sent to Congress on August 27 and September 22, 2015, and a letter sent by the FBI General Counsel to the State Department on September 22, 2015, used the “neither confirm nor deny” language.

Contemporaneous emails show that former Director Comey disagreed with this approach. In an August 27, 2015 email to Deputy Director (DD) Giuliano, Chief of Staff James Rybicki, and FBI Office of Public Affairs (OPA) Assistant Director (AD) Mike Kortan, he stated, “I’m thinking it a bit silly to say we ‘can’t confirm or deny an investigation’ when there are public statements by former [S]ecretary Clinton and others about the production of materials to us. I would rather be in a place where we say we ‘don’t comment on our investigations.’” Rybicki told the OIG that Comey thought that the Department and FBI needed to say more about the investigation because the IC IG referral was made publicly, and refusing to acknowledge an investigation would “stretch...any credibility the Department has.”

B. September 28, 2015 Meeting between Attorney General Lynch and Director Comey[edit]

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In late September and early October 2015, Comey and Lynch each had upcoming media and congressional appearances. Anticipating that they would be asked whether the Department and FBI had opened an investigation into former Secretary Clinton, Comey asked to meet with Lynch to coordinate what they would say. Comey told the OIG that it was the first time the two of them would be asked questions about the investigation publicly, and he wanted to discuss how they should talk about it given that there had been news coverage of the referral and “a lot of public discussion about that the FBI is already looking [into] this.”

The meeting was held on September 28, 2015, and lasted approximately 15 minutes. Participants in the meeting included Lynch, Axelrod, and Toscas from the Department, and Comey, Rybicki, and then DD Giuliano from the FBI.

1. Comey’s Account of the Meeting[edit]

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Comey told the OIG that during this meeting AG Lynch agreed they needed to confirm the existence of the investigation, but she said not to use the word “investigation,” and instead to call it a “matter.” Comey said that Lynch seemed slightly irritated at him when she said this, and that he took it as a direction. Comey stated:

And I remember saying, “Well, what should I call it?” And she said, “Call it a matter.” And I said, “Why would I do that?” And she said, “I just want you to do that and so I would very much appreciate it if you would not refer to it as an investigation.” And the reason that gave me pause is, it was during a period of time which lasted, where I knew from the open source that the Clinton campaign was keen not to use the word investigation.... [A]nd so that one concerned me and I remember getting a lump in my stomach and deciding at that moment should I fight on this or not.

Comey told the OIG that he decided not to fight this instruction from the AG, but that it “made [his] spider sense tingle” and caused him to “worry...that she’s carrying water for the [Clinton] campaign[.]” As described in Chapter Six, Comey told the OIG and testified before Congress that this instruction from Lynch was one of the factors that influenced his unilateral decision to make a public statement on July 5, 2016, without coordinating with the Department.[56] However, Comey also said to us that he had no other reason to question Lynch’s motives at that time, stating, “[I]n fact my experience with her has always been very good and independent, and she always struck me as an independent-minded person[.]”

Comey stated that one of the reasons he remembered this meeting so well was that Toscas made a comment after the meeting about the “Federal Bureau of Matters,” indicating to Comey that Toscas “had the same reaction I did to it.” He said that Toscas did not say explicitly that he shared Comey’s concerns about the meeting, but was “signaling” agreement to him through “body language and humor.”

Rybicki and Giuliano did not specifically recall the discussion that took place at the meeting, other than that AG Lynch told Comey to refer to the investigation as a “matter.” Giuliano stated, “I don’t remember that specific [meeting]. I do remember the topic. And I do remember thinking that (A) it’s ridiculous, and (B) quite honestly, I didn’t care what they called it.... It wasn’t going to change what we did.” He recalled discussions with the Midyear team after the meeting with Lynch, telling the OIG that “a lot of people got wrapped around the axle” about the issue and “thought that that was kind of getting into the politics of the investigation.” He also stated that Comey was “definitely troubled by it.”

However, Rybicki said that he did not recall Comey being troubled by the meeting or expressing concern that the instruction from Lynch was an effort to coordinate with the Clinton campaign. Rybicki also said that he personally did not come away from the meeting with the view that Lynch was biased. Rybicki did recall Toscas joking about the “Federal Bureau of Matters.”

2. Lynch’s Recollection of the Meeting[edit]

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Lynch told the OIG that Comey expressed concern during the meeting about how to comply with the Department’s longstanding policy of neither confirming nor denying ongoing criminal investigations in the face of direct questions about the number of agents assigned to the case and the resources dedicated to it, because answering those questions implicitly would acknowledge that there was an open investigation. Lynch said that providing testimony about the allocation of resources or the way that the Department works a case is a normal practice, but that in her view, they were not ready to publicly confirm an investigation.

Lynch stated that her discussion with Comey was framed in terms of how they could testify about the resources dedicated to the investigation without breaking Department policy. Lynch said that Comey was seeking guidance on how to handle those issues, particularly given that the referral was public, and that detailed information about the investigation had been discussed in the press.

Lynch said that she was aware of numerous letters from Members of Congress requesting information about the investigation, and that her meeting with Comey took place around the same time as a telephone call she had with Senator Charles Grassley, who wanted to discuss the Department’s handling of Bryan Pagliano, a State Department employee who set up one of Clinton’s servers, in order to inform Congress’s decision as to whether to grant him immunity to compel his testimony before Congress.[57] Lynch told the OIG:

Senator Grassley was asking me literally will I confirm that there is a criminal investigation of Secretary Clinton, who are the other targets, who are the subjects, has a grand jury been impaneled, has this young man [Pagliano] been given immunity, would I give him a copy of the immunity order, and all the things that, that Oversight typically asks for.
So I knew, and I certainly had the view, that we had to be clear and open with Oversight. You know, whether it’s me or the Director. But consistent with our law enforcement obligations, there are some doors that we do not open. And I did not think that we were ready to open that door on the Hill at that time.

Lynch said that her concerns about opening the door to detailed questions about the investigation informed her view that the Department should not confirm that there was an investigation. She said that she recalled stating at the meeting with Comey, “[T]hey don’t need us to tell them that there is an investigation. They need us to confirm that there is an investigation. And there is a difference.” She explained:

And once we confirm it publicly, either by saying yes there is an investigation, or by talking about it in a way that confirms it, the next series of questions is going to be is it criminal. And it’s all going to be about is the Secretary a subject or a target. And there were others involved as well. There are other people beyond her who may or may not be named, but, you know, you start having these discussions. When will it be over? What are you finding? All those things that in fact Grassley did ask.

The OIG asked Lynch if she instructed or told Comey, “I want you to call it a matter.” Lynch said that she did not and would not have, because that was not how she spoke to people. She told the OIG that she remembered saying the following at the meeting:

Well I, I do remember saying, you know, we typically say we have enough resources to handle the matter.... I don’t know if I used other words like the case, you know, the inquiry, or something like that. But I do remember saying that, and I think I may have been saying that because, again, I was always careful not to talk about an investigation.
I was getting questioned about the referral...and is it going to lead to an investigation and, you know, we have it, we acknowledge it, we’re going to handle it. And that’s all I can say kind of thing.
And so I know that in addition to saying...yes, everyone knows there’s an investigation. They don’t need us to tell them that. They need us to confirm it, and we don’t do that. And here’s why we don’t do that. I remember making those statements. And I remember saying but of course you’ve got to...respond. And one way to respond is just to say...you’ve got what you need to handle the matter.

Lynch said that she thought that there had been agreement at the meeting about what to say. Her takeaway was that they were going to take steps not to confirm that there was an official investigation open and would be careful not to do so in how they discussed it. Lynch stated, “[I]t wasn’t a long meeting. It was that, it wasn’t contentious. Nobody seemed upset. So it was more of a discussion.” She said that she did not recall Comey or anyone else expressing disagreement, or Comey asking, “Why on earth would I do that?”

Lynch said that the decision to avoid confirming an investigation was not made with any political motive in mind, and that she did not coordinate messaging with the Clinton campaign. Lynch told the OIG that she was surprised to learn from Comey’s later congressional testimony that he interpreted the discussion at this meeting as evidence of potential political bias. She stated:

I was surprised. I was disappointed, somewhat angry. And mostly surprised that he had never raised it either at the time or later, that if it was a concern—I was surprised that if he thought that it was a problem, he was okay also handling things in that way. I just had never viewed him as someone who was reluctant to raise issues or concerns, given that I had known him for, for some time [.]

Lynch recalled Toscas making a joke about the “Federal Bureau of Matters” to one of the agents who was sitting beside him, and people laughing. She said that she took this as a joke, as good-natured “ribbing” or “teasing,” and that the laughter told her that others in attendance also took it as a joke.

Axelrod told us that the discussion about whether to acknowledge an “investigation” was just one small part of that meeting. He said that Lynch suggested using the term “matter” as a way of “thread[ing] the needle” to avoid violating Department policy while also not appearing evasive. According to Axelrod, no one from the FBI raised objections during the meeting, and the tone of the discussion was collegial. He said that he thought that Comey and Lynch had reached a “mutual agreement that using the term ‘matter’ was the best way to thread the needle.” Axelrod told the OIG that he was surprised to hear Comey’s later congressional testimony that he (Comey) felt uncomfortable with the discussion, which Axelrod said was not consistent with his recollection of Comey’s reaction in the room, and did not “square with...[his] recollection of the facts.”

3. Toscas’s Notes and Recollection of the Meeting[edit]

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Toscas took detailed notes at the September 28 meeting, which he provided to the OIG. Toscas said that his notes were unusually lengthy for such a brief meeting because AAG Carlin was out of town and he was asked to attend in Carlin’s place, and he wanted to be able to tell Carlin what happened.

Referencing his notes, Toscas testified to the OIG at length about what took place during the meeting. According to Toscas, Comey told Lynch that he planned to acknowledge at a House Permanent Select Committee on Intelligence (HPSCI) roundtable that the FBI had received the referral from the IC IG and that it was being properly staffed and receiving all necessary resources. Comey stated that he planned to say that the FBI does not comment on its investigations per longstanding policy, but that all of its investigations are done professionally and timely. Toscas said that Comey assured Lynch that he would not say that they had opened an investigation, but that this would be implicit in what he said, and there would be news reports afterwards saying that there was an investigation.

According to Toscas, Lynch replied that she preferred “to discuss it in terms of a matter.... [T]his is the way I do it and then it avoids this issue because we should neither confirm nor deny.” Toscas said that he interpreted Lynch’s statement as expressing her preference rather than telling Comey what he should do. Toscas stated he did not recall Lynch instructing Comey to call it a matter, and he thought he would have remembered that if it had occurred. He also said that he did not interpret Lynch’s comment as her “trying to shade [the investigation] into something it wasn’t for some particular reason.” However, he acknowledged that he was not the FBI Director, and that Comey may have had a different perspective.

Toscas said that after Lynch’s comment, Axelrod stated that they needed to coordinate what to say with a letter sent by the FBI General Counsel to the State Department the previous week and attached to a public filing in FOIA litigation, in which the FBI took “great pains to not call this an investigation, so as not to confirm the existence of an investigation.” According to Toscas, the Department and the FBI had used the same language in other letters to Congress, and Lynch had a call scheduled later that day with Senator Charles Grassley in which she planned to tell him that it would be premature to acknowledge or share information about any investigation.

Toscas said that Axelrod’s statement led to a back and forth between Comey and Axelrod, during which Comey proposed modifying the letters to Congress to acknowledge that the FBI had opened an investigation. Toscas said that he was not sure if Comey was “toying with [Axelrod] at that point because I don’t think we would ever reissue letters that...clearly state normal positions.” Toscas said that Comey then asked Axelrod directly, “Why not use the word, you know we’re trying to treat it like any other case and would we do that ordinarily?” In response, Axelrod again mentioned the need to be consistent with the letters that were sent the previous week.

Toscas told the OIG that he mentioned at the meeting that the Department opens only a small fraction of the referrals it receives from the intelligence community as criminal investigations, and that the Department may not want to publicly acknowledge an investigation into former Secretary Clinton because it could serve as precedent for other referrals. Toscas said he also made clear to the group that Midyear was a criminal investigation, and that the prosecutors had referred to it as an investigation in letters to counsel and in search warrant applications.

Toscas said that Comey concluded the meeting by agreeing to call it a matter, stating, “OK, I think that will work.” This statement also appeared in Toscas’s contemporaneous notes. Toscas told the OIG that there was no indication at the time that Comey was concerned about the meeting or that the meeting had led him to question Lynch’s impartiality.

Asked whether he made a comment to Comey about the “Federal Bureau of Matters,” Toscas said that he did not specifically recall doing so but may have. He said that, if he did, he intended it as a joke rather than as a criticism of Lynch. He told the OIG:

I don’t know if I ribbed [Comey] walking out. You know he’s a friend of mine.... In any event, maybe I said that, maybe I didn’t. It wouldn’t faze me if I did, because it was in line with what I was saying to them [about “investigation” being part of the FBI’s name]. But it makes it appear as though I was sort of knocking the AG [Lynch] in the way they reported it, which is obviously why some goofball felt that they should talk about that to the newspapers....[58]

C. October 1, 2015 Comey Meeting with Media[edit]

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In a “pen and pad” with reporters on October 1, 2015, Comey used the term “matter” in response to questions about whether the FBI had opened an investigation. According to a transcript of the appearance, Comey told reporters that he recently had a closed session with HPSCI and would say publicly what he told the committee: that the FBI had received a referral involving former Secretary Clinton’s use of a private email account and the possible exposure of classified information through that account, but that he was limited in what he could say because the FBI does not talk about its ongoing work. Comey stated, “I am following this very closely and I get briefed on it regularly.... I am confident that we have the resources and the personnel assigned to the matter, as we do all our work, so we’re able to do it as we do all our work in a professional, prompt and independent way.” Asked about the timeline for completing any investigation, Comey stated, “Again, I’m not going to talk about this particular matter.... Part of doing our work well is we don’t talk about it while we do it.”

Following Comey’s appearance, various news articles reported that Comey had acknowledged the existence of an investigation into former Secretary Clinton’s use of a private email server.[59] Comey received an email containing news clips summarizing several of these articles and forwarded it to Rybicki, stating, “Will leave it to you to tell DOJ that I never used the word investigation.” Rybicki replied, “Already covered. I read back your statement to them and told them this is exactly the type of confusion we were concerned about as we were crafting.”

II. Reaction to White House Statements about the Midyear Investigation[edit]

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On Sunday, October 11, 2015, an interview of then President Barack Obama was aired on the CBS show 60 Minutes. During this interview, Obama characterized former Secretary Clinton’s use of a private email server as a “mistake,” but stated that it did not “pose[] a national security problem” and was “not a situation in which America’s national security was endangered.” Obama also stated that the issue had been “ginned up” because of the presidential race. Two days later, on October 13, 2015, Obama’s Press Secretary, Josh Earnest, was asked whether Obama’s comments “should be read as an attempt to steer the direction of the FBI investigation.” Earnest replied that Obama made his comments based on public information, and they were not intended to influence an independent investigation.

Former President Obama’s comments caused concern among FBI officials about the potential impact on the investigation. Former EAD John Giacalone told the OIG, “[W]e open up criminal investigations. And you have the President of the United States saying this is just a mistake.... That’s a problem, right?” Former AD Randy Coleman expressed the same concern, stating, “[The FBI had] a group of guys in here, professionals, that are conducting an investigation. And the...President of the United States just came out and said there’s no there there.” Coleman said that he would have expected someone in FBI or Department leadership to contact one of Obama’s national security officials, and “tell [him or her], hey knock it off.” Michael Steinbach, the former EAD for the National Security Branch, told the OIG that the comments generated “controversy” within the FBI. Steinbach stated, “[Y]ou’re prejudging the results of an investigation before they really even have been started.... That’s...hugely problematic for us.”

Department prosecutors also were concerned. Responding to an email from Laufman about Obama’s 60 Minutes interview, Toscas stated, “Saw this. And as [one of the prosecutors] and I discussed last week, of course it had no—and will never have any—effect whatsoever on our work and our independent judgment.” Prosecutor 4 told the OIG that Obama’s statement was the genesis of the FBI’s suspicions that the Department’s leadership was politically biased. This prosecutor stated, “I know that the FBI considered those [statements] inappropriate. And that it...[generated] a suspicion that there was a political bias...going on from the Executive Branch.”

Asked about former President Obama’s statements, Lynch stated, “I never spoke to the President directly about it, because I never spoke to him about any case or investigation. He didn’t speak to me about it either.” She told the OIG that she did not think the President should have made the comment on 60 Minutes. She stated, “I don’t know where it came from. And I don’t know, I don’t know why he would have thought that either, to be honest with you. Because, to me, anyone looking at this case would have seen a national security component to it. So I don’t, I truly do not know where he got that from.”

Former President Obama’s Press Secretary, Josh Earnest, made additional comments about the Midyear investigation during a press conference in early 2016. On January 29, 2016, in response to a question about whether the White House thought that former Secretary Clinton would be indicted, Earnest stated:

That will be a decision that is made by the Department of Justice and prosecutors over there. What I know that some officials over there have said is that she is not a target of the investigation. So that does not seem to be the direction that it’s trending, but I’m certainly not going to weigh in on a decision or in that process in any way. That is a decision to be made solely by independent prosecutors. But, again, based on what we know from the Department of Justice, it does not seem to be headed in that direction.

After this press conference, Melanie Newman, the Director of the Department’s Office of Public Affairs (OPA), received a transcript of Earnest’s statements about the investigation and forwarded it to Axelrod and three other Department officials. Newman stated in the email to these officials, “I’ve spoken to the [White House] and asked that they clarify this, to make clear they have no insight into this investigation. And if they don’t correct it, I will. I’m waiting to hear back.” This email also was forwarded to Lynch.

Asked about this email, Newman said that she spoke to Earnest that day. Newman said that Earnest told her that he had based his comments on what he had read in news stories, not conversations with anyone in the Department. She said that no one in the White House ever reached out to her about the Midyear investigation, nor was she aware of White House staff reaching out to anyone else in the Department, noting, “They were very, very, very careful about engaging with us on that topic.” Axelrod similarly told the OIG that Earnest’s comments implied that the White House had received a briefing on the Midyear investigation, which he said “never happened.”

Lynch’s Chief of Staff stated that Department officials were “very upset” about Earnest’s statement, because “as far as we knew, no one at Department of Justice had spoken to anyone in the White House about it.” The Chief of Staff told the OIG that they were particularly concerned by Earnest’s statement that former Secretary Clinton was not a target. The Chief of Staff said that she spoke to officials in the White House Counsel’s Office to tell them that the Department did not know where Earnest was getting his information, and to ask them to talk to Earnest. The Chief of Staff did not specifically recall Lynch’s reaction to this statement, but said that she was “[p]robably very upset.... [A]nytime there was ever any suggestion that the White House, or that DOJ had improperly done something in an investigation, or discussed something of...a political nature, she would not be happy about it.”

Prosecutors again were concerned by these comments. On January 29, 2016, Toscas sent the following email to Laufman, seeking to assure the team that the investigation would not be influenced by White House statements:

As discussed, I spoke with ODAG and they are not aware of anybody from DOJ sharing any such information or assessment with the White House, as the below statements appear to suggest. I want to reiterate what I’ve told you and the team throughout our work on this investigation—the explicit direction we received from the AG and DAG on multiple occasions is that they have total confidence in the team of prosecutors who are working on this case and they have instructed us to proceed with this matter as we would any other, without interference of any kind, and with the independence we have in all of our cases. They have never wavered from that and have never said or done anything to send or suggest a contrary message. With respect to the below statements that erroneously imply that the Department has shared information about, or an assessment of, this matter with the White House, we should not and will not allow such irresponsible statements to have any effect at all on our work. We will continue to thoroughly and professionally investigate this matter as we would any other—and, as always—and as you, John [Carlin], and I have said repeatedly—we will follow the facts wherever they lead. Thanks.

Toscas emailed Laufman a second time, stating, “Please feel free to share this with the whole team (if you haven’t already).” During his interview with the OIG, Toscas described Earnest’s statements as “goofy” and “ridiculous,” expressing frustration that he had to address comments by the White House when preparing Lynch to testify before Congress because of the perception of political bias that they created.

Asked about Earnest’s statements, prosecutors told the OIG that the only interactions they had with the White House concerning the investigation were with the White House Counsel’s Office to obtain a classification review of documents in a Special Access Program (SAP) controlled by the White House and to interview a National Security Council staffer. Prosecutor 1 told the OIG that he was not aware of contacts between Department leadership and the White House Counsel’s Office or White House staff. Notes taken by Laufman indicate that on January 30, 2016, one of the prosecutors reached out to their point of contact in the White House Counsel’s Office and asked about Earnest’s comments. According to these notes, this prosecutor was told that the content of the discussions between the White House Counsel’s Office and the Midyear team about the classification review and the interview of the staffer was limited to a small group of people in the White House Counsel’s Office, and that nothing that the prosecutors had discussed with the White House Counsel’s Office would be known to Earnest.

Lynch testified before the Senate Judiciary Committee on March 9, 2016. Asked about the investigation, Lynch stated that she had never discussed the investigation with former President Obama or anyone in the White House. Lynch stated, “[I]t’s my hope that when it comes to ongoing investigations that we all would stay silent. And I can assure you that neither I nor anyone from the Department has briefed to Mr. Earnest or anyone at the White House about this matter or other law enforcement matters.... I’m simply not aware of the source of his information.”[60]

Lynch told the OIG that she recalled that Newman spoke with the White House Communications Office after Earnest’s comments and was clear that they were inappropriate and needed to be corrected. Asked whether she perceived these comments as an effort to direct where the investigation was going or felt influenced by them, she said that she did not. Lynch said that she also had a discussion with the White House Counsel after she testified, and that during this discussion he acknowledged that the comments should not have happened.

However, former President Obama again made public comments about the Midyear investigation in an interview with FOX News Sunday on April 10, 2016. Obama stated that while former Secretary Clinton had been “careless” in managing her emails while she was Secretary of State, she would never intentionally do anything to endanger the security of the United States with her emails. He also stated that he would not interfere in the FBI’s investigation into her private email server. Obama stated, “I guarantee that there is no political influence in any investigation conducted by the Justice Department, or the F.B.I.—not just in this case, but in any case.”[61]

Chapter Five: Investigative Methods Used in the Investigation[edit]

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The Midyear team used several types of investigative methods and made various strategic decisions during the course of its investigation. Some of these decisions have been the subject of criticism and allegations that they were based on improper considerations.

In this chapter, we describe the following investigative methods and decisions made by the Midyear team: efforts to identify relevant sources of physical evidence; efforts to understand and access Clinton’s servers; use of criminal process, including subpoenas, 2703(d) orders, and search warrants to obtain physical evidence; use of consent to obtain physical evidence; efforts to obtain evidence related to Clinton’s senior aides; use of voluntary interviews; decisions to grant certain witnesses use immunity; strategies employed to secure voluntary interviews and voluntary production of evidence from Cheryl Mills and Heather Samuelson; and investigative decisions surrounding the voluntary interview of Hillary Clinton. We describe the reasons given for these decisions, disagreements among members of the Midyear team about them, especially between the FBI and the prosecutors, and the impact of these decisions on the investigation’s access to relevant information and the completeness of the investigation. We also describe an internal file review of the Midyear investigation conducted by the FBI’s Inspection Division (INSD) in September and October 2017 following our discovery of concerning text messages between Strzok and Page.

In addition, we discuss instant messages in which Agent 1 expressed concerns about the quality of the Midyear investigation. We considered these messages as part of our analysis of whether the Midyear team conducted a thorough and impartial investigation.

In the analysis section of this chapter, we assess whether the evidence supports a conclusion that any of the investigative decisions we reviewed were based on improper considerations, consistent with the analytical construct described in Chapter One.

I. FBI’s Efforts to Identify and Review Relevant Sources of Evidence[edit]

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The Midyear team began its investigation by reviewing the 30,490 emails that Clinton had produced to the State Department. They reviewed them to identify emails that appeared to contain classified information and evidence of intent to mishandle classified information.[62] Witnesses told us that to search for evidence of intent, the analysts looked for, among other things, classification markings on the documents, statements indicating that email participants knew information was classified, and statements indicating that Clinton decided to use a private server for an improper purpose, such as to avoid FOIA or other laws. One analyst told us that there were at least six analysts consistently involved with reviewing these emails, and, at times, there were as many as fifteen or sixteen analysts doing so. Once the team identified emails that appeared to contain classified information, they sent them to other agencies within the U.S. Intelligence Community (“USIC agencies”) with equities in them for formal classification review.

FBI agents and Department prosecutors told us that, thereafter, a large focus of the investigation was locating the remaining 31,830 emails that made up the entire 62,320 emails that Clinton’s attorneys had reportedly reviewed before producing her work-related emails to the State Department. Clinton’s attorneys did not produce those 31,830 emails to the State Department because, they stated, they were personal in nature; instead, the attorneys instructed Paul Combetta of Platte River Networks (“PRN”)—the company that managed Clinton’s server— to remove the emails from their own laptops and modify the server’s email retention period so that emails older than 60 days would not be retained. In March 2015, Combetta removed the emails from Clinton’s server using BleachBit after realizing he had failed to implement the new email retention period several months earlier. The FBI team wanted to review these emails, if possible, to determine whether any were work-related or contained classified information, and to search for evidence of Clinton’s intent in using a private server.

FBI agents and analysts, including the Supervisory Special Agent (SSA) assigned to the Midyear investigation, told us that to find the missing 31,830 emails, the team attempted to identify and obtain access to any server or device—“whether it was a BlackBerry, iPad, PC [or] phone”—Clinton used during her tenure, as well as devices used to back up her emails. The FBI also sought email content or header information from the official U.S. government and private email accounts of certain individuals who were known to communicate directly with Clinton by email or who were involved in email chains that ultimately resulted in classified information being forwarded to Clinton. However, as discussed in Section V.C of this chapter, the FBI did not seek to obtain the personal devices of State Department employees, besides Clinton, who sometimes used private email for State Department work and who used those devices to communicate with Clinton while she was Secretary of State.

Based on our review, the FBI sent preservation requests to the State Department for nearly one-thousand official State Department email accounts. One analyst told us that the State Department was unable to supply many of the email records the FBI requested due to, among other things, limitations in the State Department’s recordkeeping systems. However, the FBI obtained records from the official State Department email accounts of certain employees, including the three senior aides with whom Clinton had the most email contact. The FBI also made requests of other government agencies, including the CIA, the Defense Intelligence Agency (DIA), the Department of Defense (DOD), and the Executive Office of the President (EOP), to search their official email systems for emails to or from email accounts on the clintonemail.com domain. In addition, as discussed in Sections III and V below, the Midyear team used compulsory process to obtain email records from certain private email accounts.

The FBI also requested the State-Department-issued computers and handheld devices used by certain employees during their State Department tenure. However, with the exception of a desktop computer used by Bryan Pagliano (a State Department employee who set up Clinton’s second server), the State Department told the FBI that it either did not preserve or could not locate those devices.

FBI witnesses told us that both FBI agents and analysts were involved in determining what devices and other evidence to obtain. Based on our review of the evidence, the FBI obtained more than 30 devices; received consent to search Clinton-related communications on most of these devices; and identified numerous work-related emails that were not part of the 30,490 emails produced by Clinton’s attorneys to the State Department, many of which they sent to other agencies for classification review. The thirty devices included two of Clinton’s servers, each of which consisted of multiple devices; storage devices used alongside Clinton’s servers; numerous devices that were used to back up Clinton’s emails during her tenure; some of Clinton’s handheld devices; Pagliano’s State Department desktop computer; several flash drives and laptop computers that contained copies of the 30,490 emails that Clinton’s attorneys produced to the State Department; and the two laptops used by Clinton’s attorneys to cull her emails for production to the State Department. Once the FBI received consent to review a device, staff from the FBI’s Operational Technology Division (OTD) generally imaged the device and prepared the image for a filter team to remove material that was privileged or otherwise not subject to search pursuant to the terms of a consent agreement. OTD then uploaded the emails and other data from the device for FBI analysts to review. OTD also attempted to de-duplicate emails. The analysts reviewed the emails recovered from each device for the same purposes as they reviewed the initial 30,490—to identify both suspected classified information and evidence of intent to mishandle classified information.

The Midyear team also sought and obtained a wide range of other information relevant to the investigation, such as Clinton’s cable, telephone, and Internet subscriber and service information; financial information for certain witnesses; business records pertaining to the services provided by the companies that supported Clinton’s servers; records related to security services protecting Clinton’s servers; and information from mail carriers related to the delivery of a laptop that at one time stored Clinton’s archived emails. Prosecutor 1 told us that the team sought records from at least three different companies in an effort to find the Blackberry emails from the beginning of Clinton’s tenure as Secretary of State.[63] Analysts told us that they reviewed these materials to search for, among other things, evidence of mishandling classified information and additional leads for information. For example, one analyst stated that through records obtained from various phone companies, he was able to identify the 13 devices that were associated with two telephone numbers that Clinton used.

According to the LHM, the FBI found and reviewed “approximately 17,448 unique work-related and personal emails from Clinton’s tenure” containing her email address that were not part of the original 30,490 that Clinton’s lawyers had produced to the State Department. Comey stated in his July 5, 2016, press conference that the FBI found “several thousand” work-related emails that were not part of the 30,490 emails. However, one analyst told us, and documentation we reviewed showed, that the FBI did not conduct its review in such a way that it could calculate the precise amount of work-related emails discovered by the FBI that had not been produced to the State Department. Instead, as described below, they focused on identifying the number of classified emails that both were and were not included in the 30,490.

None of the emails, including those that were found to contain classified information, included a header or footer with classification markings. As we discuss further in Chapter Seven, this absence of clear classification markings played a significant role in the decision by the Midyear prosecutors to recommend to Attorney General Lynch in July 2016 that the investigation should be closed without prosecution. According to the LHM, the FBI, with the assistance of other USIC agencies, identified “81 email chains containing approximately 193 individual emails that were classified from the CONFIDENTIAL to TOP SECRET levels at the time the emails were drafted on UNCLASSIFIED systems and sent to or from Clinton’s personal server.” In other words, the USIC agencies determined that these 81 email chains, although not marked classified, contained information classified at the time the emails were sent and should have been so marked. Twelve of the 81 classified email chains were not among the 30,490 that Clinton’s lawyers had produced to the State Department, and these were all classified at the Secret or Confidential levels. Seven of the 81 email chains contained information associated with a Special Access Program (“SAP”), which witnesses told us is considered particularly sensitive. The emails containing Top Secret and SAP information were included in the 30,490 provided to the State Department.

In June 2016, near the end of the investigation, investigators found three email chains, consisting of eight individual emails, that “contained at least one paragraph marked ‘(C),’ a marking ostensibly indicating the presence of information classified at the CONFIDENTIAL level.” According to a June 13, 2016 text message exchange between Strzok and Page, the emails containing the “(C)” portion markings were part of the 30,490 that Clinton’s attorneys had provided to the State Department in 2014 but the FBI did not notice them until June 2016 after the IC IG discovered them. By that point in time, as discussed in Chapter Six below, Comey had been drafting his statement announcing the closing of the investigation. Strzok wrote to Page that “DoJ was Very Concerned about this.... Because they’re worried, holy cow, if the fbi missed this, what else was missed?” Strzok further wrote, “No one noticed. And while minor, it cuts against ‘I never send or received anything marked classified.’”[64] According to the prosecutors, Mills, Abedin, and Jake Sullivan were each parties to at least one email in the chains with the (C) markings. However, none of them were ever asked about the emails, because the FBI had not discovered the markings before their interviews and did not seek to reinterview them.[65]

Witnesses told us that although the FBI found work-related emails, including classified emails, that were not part of the 30,490 produced to the State Department by Clinton’s lawyers, they were not able to determine whether these emails were part of the original 62,320 reviewed by Clinton’s attorneys. This is because some of the emails they found through other sources could have been deleted from Clinton’s account or “overwritten in the ordinary course” before Clinton’s attorneys reviewed her emails for production to the State Department. Thus, they also were unable to determine how many of the 31,830 deleted emails were never recovered.

The FBI also conducted “intrusion analyses” on each of the devices and other evidence to determine whether any classified information had been compromised. An FBI agent assigned to the Midyear team to conduct intrusion and other forensic analysis (“Forensics Agent”) described the team’s efforts in this regard as exhaustive. He stated that these efforts included (1) examining the servers and others devices to identify suspicious logins or other activity, and (2) searching numerous datasets to determine whether foreign adversaries or known hostile domestic actors had accessed emails that the Midyear team had confirmed to contain classified information.

Comey stated the following in his July 5, 2016, press conference regarding possible cyber intrusion of Clinton’s email servers:

With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton's personal email domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton's use of a personal email domain was both known by a large number of people and readily apparent. She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton's personal email account.

The LHM stated, “FBI investigation and forensic analysis did not find evidence confirming that Clinton’s email server systems were compromised by cyber means.” However, the LHM also stated that the FBI identified one successful compromise of an account belonging to one of former President Clinton’s staffers on a different domain within the same server former Secretary Clinton used during her tenure. The FBI was unable to identify the individual responsible for the compromise, but confirmed that the individual had logged in to the former staffer’s account and “browsed email folders and attachments.” According to evidence we reviewed, the FBI also confirmed compromises to email accounts belonging to certain individuals who communicated with Clinton by email, such as Jake Sullivan and Sidney Blumenthal.[66]

The LHM stated that the FBI was limited in its intrusion analysis due to the “FBI’s inability to recover all server equipment and the lack of complete server data for the relevant time period.” According to the LHM, the FBI also identified vulnerabilities in Clinton’s server systems and found that there had been numerous unsuccessful attempts by potential malicious actors to exploit those vulnerabilities. Nonetheless, the FBI Forensics Agent told the OIG that, although he did not believe there was “any way of determining...100%” whether Clinton’s servers had been compromised, he felt “fairly confident that there wasn’t an intrusion.” When asked whether a sophisticated foreign adversary was likely to be able to cover its tracks, he stated, “They could. Yeah. But I, I felt as if we coordinated with the right units at headquarters...for those specific adversaries.... And the information that was returned back to me was that there was no indication of a compromise.”

II. The Midyear Team’s Efforts to Understand and Access Clinton’s Servers[edit]

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Prosecutor 1 told us that it took the Midyear team time to understand the setup and sequence of the various servers Clinton used. This prosecutor stated that an understanding of the server setup was a necessary foundation for the Midyear team’s investigation. According to the LHM, the FBI discovered three servers that for different periods stored work-related emails sent or received by Clinton during her tenure as Secretary of State. Collectively, we refer to these three servers as the “Clinton servers.”

The first server was set up in 2008 by Justin Cooper, a former aide to former President Clinton, and is referred to in the LHM as the “Apple Server.” Based on evidence we reviewed, the Apple Server was primarily set up for former President Clinton’s staff, but Secretary Clinton also used it for her work purposes from January 2009 until approximately March 18, 2009, about two months into her tenure. During this time, Clinton primarily used a personally acquired BlackBerry device that was connected to the Apple Server.

The LHM indicates that the second server, referred to in the LHM as the Pagliano Server, was used from March 2009 through June 2013. Cooper told the FBI that “in or around January 2009 the decision was made to move to another server because the Apple Server was antiquated and users were experiencing problems with email delivery on their Blackberry devices.” Cooper contacted Bryan Pagliano, an information technology specialist who worked on Hillary Clinton’s presidential campaign, to help him set up the Pagliano server. Numerous individuals had email accounts on the Pagliano Server, including former President Clinton, former President Clinton’s staff, Huma Abedin—who was Clinton’s Deputy Chief of Staff at the State Department—and Clinton herself. Clinton and Abedin were the only State Department employees with accounts on the @clintonemail.com domain on the Pagliano Server.

The third server, which is referred to in the LHM as the “PRN server,” was active after Clinton’s tenure as Secretary of State ended, from approximately June 2013 through October 2015. The LHM stated that in early 2013, staff for Clinton and former President Clinton discussed transitioning to a new vendor for email services, “due to user limitations and reliability concerns regarding the Pagliano Server.” The staff chose the “Denver-based information technology firm Platte River Networks (PRN)” for this purpose. According to the LHM, PRN employee Paul Combetta migrated the email accounts from the Pagliano Server to the PRN server. Following the migration, the Pagliano Server was stored in a data center in New Jersey, although it no longer hosted email services and Microsoft Exchange was uninstalled from it on December 3, 2013.

According to the LHM, the FBI learned through witness interviews that the Apple Server, in use from 2007 to March 2009, was ultimately discarded and, thus, the FBI was never able to access it for review. However, based on evidence we reviewed, the Midyear team obtained access to certain back-up data from the Apple Server held on Cooper’s personal laptops through consent agreements with Cooper’s attorney. The Midyear team obtained both the Pagliano and PRN servers through consent agreements with David Kendall and Clinton’s other attorneys at Williams and Connolly.

The FBI’s ability to review emails on both the Pagliano and PRN servers was limited. With respect to the Pagliano Server, most of the emails that remained on the Pagliano server following the transition to the PRN server were in the “unallocated space” due to the removal of Microsoft Exchange in December 2013. FBI analysts told us that emails in the unallocated space were often fragmented and difficult to reconstruct. With respect to the PRN server, the FBI discovered through forensic analysis and witness interviews that Combetta had transferred most of Clinton’s archived emails from her tenure as Secretary of State to the PRN server, but subsequently deleted and “wiped” them from the server using “BleachBit.”

Based on the LHM, FD-302s, and PRN documents collected by the FBI, the transfer of emails to the PRN server and subsequent wiping of the PRN server occurred as described in the paragraphs below.

At around the time of the transition to the PRN server in the spring of 2013, Clinton’s former aide, Monica Hanley, created two archives of Clinton’s emails from the Pagliano Server, one on a thumb drive (Archive Thumb Drive) and one on a laptop computer (Archive Laptop).[67] In early 2014, Hanley mailed the Archive Laptop to Combetta to transfer Clinton’s archived emails to the PRN server. She further directed him to “wipe” the Archive Laptop and mail it to Clinton’s office assistant at the Clinton Foundation after he completed the transfer. Combetta used a “dummy” email account to transfer Clinton’s archived emails into a mailbox entitled “HRC archive” on the PRN server.[68] Combetta told the FBI that he then, per Hanley’s instructions, deleted the emails from the Archive Laptop and mailed the Archive Laptop to Clinton’s office assistant, but did not “wipe” the laptop. Email records obtained by the FBI showed that Clinton’s office assistant sent emails to Combetta in both March and April 2014 asking when she should expect to receive the “wiped laptop;” however, Clinton’s office assistant told the FBI that she did not recall ever receiving it.

An analyst told us and FBI records show that the team sought and obtained records from multiple mail carriers in an effort to locate the Archive Laptop. Based on these records, the FBI was able to confirm that the laptop was delivered to Paul Combetta on February 24, 2014; however, the FBI found no records showing that Combetta mailed the Archive Laptop to Clinton’s office assistant as requested. The FBI also attempted to obtain the Archive Thumb Drive from Hanley, but she stated she could not recall what happened to it.

According to the LHM, FD-302s from Combetta’s, Mills’s, and Samuelson’s interviews, and PRN documents collected by the FBI, in the summer of 2014, Combetta uploaded .pst files of Clinton’s archived emails to Mills’s and Samuelson’s laptops to enable them to review Clinton’s emails and produce her work-related emails to the State Department. In late 2014 or early 2015, after Clinton produced her work-related emails to the State Department, Mills and Samuelson requested that Combetta remove Clinton’s emails from their laptops, and he did so using BleachBit. At around the same time, Mills directed Combetta to change the email retention policy on Clinton’s clintonemail.com account to 60 days, because Clinton had decided that she no longer needed access to her personal emails that were older than 60 days. Combetta told the FBI that he mistakenly neglected to make the change at the time and realized his mistake in March 2015. He stated that, despite the intervening issuance of a congressional preservation order on March 3, 2015, he “had an ‘oh shit’ moment” and wiped the HRC archive mailbox from the PRN server using BleachBit sometime between March 25 and March 31, 2015.

Despite the use of BleachBit, the FBI was able to recover some of Clinton’s archived emails from both the PRN server and the laptops used by Mills and Samuelson to cull Clinton’s emails. The FBI also recovered some of Clinton’s archived emails from a search of the dummy email account that Combetta used to transfer Clinton’s emails from the Archive Laptop to the PRN server and, as discussed in Section I of this chapter, from various other sources.

III. Use of Criminal Process to Obtain Documentary and Digital Evidence[edit]

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Despite the public perception that the Midyear investigation did not use a grand jury, and instead relied exclusively on consent, we found that agents and prosecutors did use grand jury subpoenas and other compulsory process to gain access to documentary and digital evidence. According to documents we reviewed, at least 56 grand jury subpoenas were issued, five court orders were obtained pursuant to 18 U.S.C. § 2703(d) (2703(d) orders), and three search warrants were granted. The Midyear team also sent numerous preservation letters to various entities, including Internet Service Providers, former Secretary Clinton’s attorneys, and U.S. government agencies. We were told that FBI agents generally worked directly with the EDVA prosecutors to obtain subpoenas and 2703(d) orders, without seeking approval from the CES prosecutors, Laufman, Toscas, or any higher level Department officials. Toscas told us that he was the highest level Department official that approved search warrant affidavits, and that he provided general information about search warrants that were being sought in briefings to Carlin, Yates, and Lynch.

The FBI served 2703(d) orders on commercial email service providers, such as Google (Gmail) and Yahoo!, for information maintained on their servers associated with the private email accounts used by Huma Abedin, Paul Combetta, Cheryl Mills, and two other individuals.[69] The FBI sought 2703(d) orders for these individuals after discovering from other sources that emails containing classified information were sent from or received by their accounts. FBI witnesses told us that the purposes of obtaining the 2703(d) orders were to determine whether the known classified emails continued to reside in the unauthorized email accounts and whether they were forwarded to other unauthorized locations, thus posing risks to national security. If they confirmed that the known classified emails continued to reside in the email accounts, they would then consider seeking search warrants for email content within the same accounts.

Based on the 2703(d) results, the FBI was able to confirm that classified information continued to reside in just one of these five accounts—the account belonging to Combetta. Thus, on June 20, 2016, the FBI sought a search warrant for this account. According to the search warrant, the FBI initially sought the 2703(d) order for Combetta’s account after observing numerous emails containing metadata for Combetta’s dummy email account in the original 30,490 emails provided to the State Department and determining that many of these emails contained classified information. Combetta told the FBI that he created the dummy email account to transfer Clinton’s archived emails from the Archive Laptop to the PRN Server. Based on the results of the 2703(d) order, the FBI determined that 820 of Clinton’s emails, dated between October 25, 2010, and December 31, 2010, remained in the dummy email account. The Midyear team obtained a search warrant to view the content of these emails and search for other emails relevant to the investigation.

Prosecutor 2 told us that the Midyear team sought compulsory process when evidence could not be obtained through consent or when “the terms of the consent were such that additional process needed to be sought.” For example, on August 28, 2015, the Midyear team obtained a search warrant for the Pagliano Server even though Clinton’s attorneys had voluntarily produced and provided consent for the FBI to search it. According to the search warrant application, upon conducting a preliminary examination of the Pagliano server, the FBI discovered that it contained three domains—two besides the clintonemail.com domain—and email accounts of numerous individuals unrelated to the FBI’s investigation, such as former President Clinton’s staff. The FBI further discovered that Microsoft Exchange had been uninstalled from the Pagliano Server in December 2013. As a result, the three different domains were commingled in the server’s unallocated space and the FBI could not segregate the accounts without “a complete forensic analysis of the Pagliano Server.” Because Clinton’s attorneys were only able to provide consent to search Clinton’s email accounts on the server, the FBI obtained a search warrant to examine the unallocated space.

IV. Use of Consent to Obtain Physical Evidence[edit]

A. Debate over the Use of Consent[edit]

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Based on the evidence we reviewed, although the Midyear team used compulsory process on multiple occasions as described above, the prosecutors sought to obtain digital and documentary evidence by consent whenever possible. Witnesses told us that this caused frustration within the FBI, which preferred obtaining evidence with search warrants or subpoenas. The witnesses generally agreed that this debate is common among prosecutors and agents and was not unique to Midyear. To the extent the disagreement about the use of criminal process was more pronounced in Midyear, witnesses stated that they believed this was due to Midyear being a high-profile investigation. The Lead Analyst explained that “everyone [was] under intense pressure,” which enhanced the “magnitude” of this disagreement.

Numerous Department and FBI witnesses told us that the debate over how to obtain evidence was mostly about efficiency—the prosecutors believed they could obtain evidence faster through consent and the FBI believed that criminal process was more efficient. The prosecutors stated that, in their view, consent is more efficient than process when witnesses are cooperative and, as Prosecutor 4 noted, when there is no concern that evidence will be destroyed to obstruct an investigation. Based on the evidence we reviewed, Clinton’s attorneys contacted Department prosecutors numerous times to express Clinton’s willingness to cooperate by being interviewed and providing evidence voluntarily. Prosecutor 4 told us it was his view that the risk of destruction of evidence, in response to a voluntary production request, is less likely in cases where parties are represented by experienced attorneys, such as “firms like Williams and Connolly” (which represented Clinton), because the attorneys are aware of the risks associated with destroying evidence. Prosecutor 4 stated, “I’m not saying that they’re more ethical. I’m just saying they’re smarter.” The prosecutors stated that seeking evidence through consent also saved time by allowing the government to avoid motions to quash subpoenas based on privilege or lack of probable cause.

A few FBI witnesses told us that they believed the prosecutors in CES were generally more “risk averse” in their handling of cases than prosecutors in other parts of the Department. Prosecutor 1 explained that there are reasons to be especially cautious in the types of cases CES handles, including protecting the sensitive and classified information involved in those cases. This prosecutor told us that CES prosecutors must consider questions such as whether the intelligence community will permit the use of classified information in their cases, whether moving a “case forward” is worth the risk that the “use of information gathered by a human source could...identify sources and methods,” and whether “the criminal prosecution of someone [is] more valuable than the continued collection[.]”

Laufman and Prosecutor 4 told us that the use of criminal process tends to increase the risk of leaks and public disclosures. Prosecutor 4 told us that leaks undermine investigations and that “unfair leaks” were an “added” consideration in the Midyear investigation. Laufman told us that the Midyear prosecution team’s goal was to make sure that no stone was left unturned, while also being mindful that leaks “could be used by political actors in furtherance of political agendas.” Agent 3 told us that when he sought process from the prosecutors, they responded that they would try to obtain the evidence by consent because the witnesses “don’t want this to get in the paper.” Comey told us that he believed the prosecutors were more hesitant to use criminal process in the Midyear investigation than normal because they wanted to keep “as low a profile as possible.”

FBI team members told us that they believed they could have obtained evidence faster with process, especially after instances when, they believed, Clinton’s attorneys had not been forthcoming about the existence of potential sources of evidence. For example, after Clinton’s attorneys voluntarily provided the FBI the Pagliano Server pursuant to an August 7, 2015 consent agreement, the FBI discovered through its own investigation that there was a successor server—the PRN server. According to documentation we reviewed, the prosecutors and the FBI were frustrated that Clinton’s attorneys had not been forthcoming about the PRN server, and Prosecutor 1 wrote a letter to Kendall expressing this frustration. The SSA told us that situations like this caused him to question whether consent was the best course. However, Prosecutor 1 stated that resorting to compulsory process for the PRN server would have been complicated, because, among other things, the server was “running tons of people’s email accounts on it that were totally separate from...the former Secretary, including people working in the...former President’s office.” The Midyear team ultimately secured the PRN server through a September 30, 2015 consent agreement with Clinton’s attorneys.

Some witnesses told us that they were concerned about certain devices that the FBI was never able to locate. For example, as described above in Section II of this chapter, the Midyear team was never able to locate the Archive Laptop and Archive Thumb Drive, both of which, according to Hanley and others, contained a complete copy of Clinton’s archived emails. In addition, according to the LHM, the FBI’s investigation identified a total of 13 mobile devices associated with Clinton’s two known telephone numbers “which potentially were used to send emails using Clinton’s clintonemail.com email addresses.” The Midyear team asked Clinton’s attorneys for these devices, but they stated they were “unable to locate” them.[70] According to the LHM and FD-302s, Cooper and Hanley told the FBI that they wiped or destroyed Clinton’s devices once she transitioned to new devices. One FBI analyst told us that he was “frustrated” by the claim by Clinton’s attorneys that they could not find her 13 devices. However, he stated that he “guess[ed]” the agency did not have probable cause to assert that the missing devices were in Clinton’s home such that a search warrant could be issued, given the testimony that her old devices had been destroyed before she transitioned to new devices. He further stated that his frustration was with Clinton and her attorneys, not the prosecutors.

We questioned whether the use of a subpoena or search warrant might have encouraged Clinton, her lawyers, Combetta, or others to search harder for the missing devices, or ensured that they were being honest that they could not find them. Prosecutor 2 told us that the prosecutors believed that Clinton’s attorneys were dealing with them “in good faith” and had “no reason to think that they were lying” about their inability to find Clinton’s mobile devices. Prosecutor 2 further stated that the team did not believe that Combetta still had the Archive Laptop in his possession, because “there would have been no reason for him to keep it.” Similarly, the Lead Analyst told us that he did not know of any evidence to suggest that Clinton’s attorneys were being dishonest about the evidence they could not locate, and compulsory process would not have made a difference in situations where Clinton’s attorneys represented that they could not find a device.

Agents 1 and 2 told us that there were six laptops that Clinton’s attorneys had provided the FBI early in the investigation with consent to store, but not search, and that they would have liked to search these laptops. Agent 2 stated that he believed that these laptops may have been used to review Clinton’s emails before Clinton’s attorneys produced her work-related emails to the State Department. Agent 1 told us that he believed these laptops were used by Clinton’s Williams and Connolly attorneys to do the “QC of the 30,000 emails after they were culled by Mills and Samuelson.”

Our review of the relevant FD-302s and other documents revealed the following regarding the six laptops: On August 6, 2015, Katherine Turner, one of Clinton’s attorneys, voluntarily produced to the FBI three thumb drives and a laptop computer belonging to Williams and Connolly that contained identical copies of the 30,490 emails Clinton’s attorneys had produced to the State Department, and signed a consent form for the FBI to search these devices. In addition, Turner told the two FBI agents that Williams and Connolly had six additional laptops containing identical copies of the 30,490 emails, but that these laptops also contained unrelated privileged information. Turner agreed to voluntarily produce the additional six laptops to the FBI so that the FBI could secure the classified information contained on them, but declined to provide consent to search the laptops because she “wished to ensure that privileged communications on the laptops would remain confidential.” According to a FD-302 dated August 17, 2015, Turner told the FBI that one of the six laptops was in the custody of Mills’s and Samuelson’s attorneys at Paul, Weiss, Rifkind, Wharton, and Garrison, LLP (“Paul Weiss”). On August 21, 2015, FBI Attorney 1 wrote in a letter to Turner and a Paul Weiss attorney:

It is the FBI’s understanding that the six laptop computers may contain privileged materials. Therefore, the FBI will maintain the six laptop computers in a secure location separate from other materials that have been provided voluntarily to the FBI in conjunction with this matter. The FBI will not access any material or information on the six laptops without further consultation with you or obtaining appropriate legal process.
Upon completion of this matter, the FBI will notify all parties and discuss the appropriate disposition of the material in a manner consistent with applicable laws and policies.

Although the Midyear team left open the possibility of obtaining process to search the six laptops, the team ultimately never sought a search warrant. Prosecutor 2 explained that the Midyear team originally believed that the six laptops included the laptops that Mills and Samuelson used to cull Clinton’s emails. However, during a proffer session on March 19, 2016, Beth Wilkinson (attorney for Mills and Samuelson) told the prosecutors that the six laptops Clinton’s attorneys had produced to the FBI did not include the culling laptops and, in fact, the culling laptops were still in Mills’s and Samuelson’s possession. Prosecutor 2 told us that, following the proffer, Mills and Samuelson turned the actual culling laptops over to Wilkinson, who agreed to disconnect the laptops from the Internet and place them in a safe in her office, until privilege issues could be resolved. As described in Section VIII.D of this chapter, the Midyear team ultimately received consent to search the culling laptops through an agreement with Wilkinson. Agent 2 told us that, despite his desire to search the content of the six laptops, the FBI might not have had sufficient probable cause to assert that the laptops contained emails that the FBI did not already have in its possession. He further told us that it was “completely logical” that Clinton’s attorneys would not consent to the FBI’s review of the laptops given that the laptops contained privileged information related to the attorneys’ representation of other clients. FBI Attorney 1 told us that she believed, based on the representations of Clinton’s counsel, that the six laptops never contained the full 62,320 emails and that they only contained copies of the 30,490 emails that had been produced to the State Department. She stated that, as a result, she did not believe that it was necessary to review the six laptops, especially given the privilege concerns.

There were points in the investigation when the debate about the use of consent versus compulsory process was particularly pronounced. Based on the evidence we reviewed, in or about March 2016, Page asked Strzok, on behalf of McCabe, to create a list of tasks that the Department had either refused to undertake or “asked to let them negotiate with counsel,” even if the FBI ultimately agreed with the outcome. Page told us that McCabe suggested the list after she told him that Strzok and FBI Attorney 1 were “increasingly growing concerned about...the little things that are being left on the cutting room floor and...the deference to” the line prosecutors on how best to obtain evidence. On March 24, 2016, Strzok wrote to FBI Attorney 1 and the Lead Analyst describing the proposed list.[71] In the email, Strzok provided a rough list of the items he was considering including and wrote, “Problem is it’s been death by a thousand cuts.”[72] Strzok told us that at the time he wrote this email, he was “aggravated by the limitations” that the prosecutors were placing on the FBI’s ability to obtain evidence and felt that “if you add up this delta over a bunch of decisions, all of a sudden it becomes substantive.” Strzok and Page told us that they did not believe a list was ever finalized.

Despite this debate, the agents, analysts, prosecutors, and supervisors on the Midyear team generally told us that, aside from devices that had been destroyed or that could not be located, they ultimately obtained and reviewed all of the devices necessary to complete the investigation. For example, Strzok stated that once he was able to “step back towards the end of the investigation,” he realized that “maybe we gave a little where we didn’t need to give, and maybe we actually got lucky here. But is there anything that we ultimately are missing to make kind of an authoritative, accurate conclusion? No.” McCabe stated that the team “drew some red lines around things that we absolutely insisted we had to do,” such as obtaining the laptops Mills and Samuelson used to cull Clinton’s emails, and that those items ultimately were attained. The SSA, who was described to us by several witnesses as an experienced and aggressive agent, stated that he “had a lot of hoops to jump through at times,” but “no matter what the obstacles were, we moved through them.” Similarly, Anderson told us, “At various points...as the investigation progressed...we were very anxious to...seek aggressively different materials.... [B]ut at the end of the day, I do believe everybody felt that we had obtained everything that we needed to obtain in order to assess criminality.”

B. Limits of Consent Agreements[edit]

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The SSA told us that the terms of the consent agreements were primarily created through negotiations between the two line NSD prosecutors, on one side, and the attorneys for Clinton and other witnesses, on the other. For the most part, the consent agreements were limited such that the FBI was able to search only for emails sent or received by Clinton during her tenure as Secretary of State and for evidence of intrusion. These were generally the same limitations that were included in the subpoenas, search warrants, and 2703(d) orders obtained during the course of the investigation.

An FBI analyst told us that limiting the search time period to Clinton’s tenure as Secretary was not controversial. The analyst explained, “[T]he reason it was scoped to the tenure is because...that is of course when she would have had access to the classified information.” We questioned both Department and FBI witnesses as to whether emails from after Clinton’s tenure could have shed light on whether Clinton instructed her staff to delete emails for an improper purpose. They told us that any relevant emails following Clinton’s tenure mostly would consist of communications with her attorneys regarding the sort process, and such communications would be protected by attorney-client privilege.

The consent agreements and search warrants also were limited such that the FBI could not search emails sent or received by other accountholders on Clinton’s servers—such as Abedin and former President Clinton and his staff—unless Clinton was also a party to those emails. One analyst told us that he would have liked to be able to look at emails to which Clinton was not a party. For example, he told us that he would have liked to review emails between Abedin and Cooper regarding what Clinton may have said about the server. We questioned the prosecutors as to why the consent agreements were not scoped such that they could search for any work-related or classified emails within Abedin’s clintonemail.com account, especially since FBI witnesses told us that Clinton’s server, not Clinton herself, was the subject of the investigation. This is addressed in Section V.D of this chapter below.

The consent agreements and search warrants incorporated provisions requiring the use of a filter team to ensure that the Midyear team did not review emails protected by privileges, including attorney-client, medical, and marital privileges. One analyst told us that the filter process was cumbersome and that some interpretations of the privileges were unusual. For example, because former President Clinton did not use email, one of his employees received former President Clinton’s emails and then printed them for him. The privilege team considered the emails that Clinton sent to her husband through this employee as privileged, although this may not have been legally required. The Lead Analyst told us that he, too, was often frustrated by the cumbersome filter process. However, he stated that he agreed with the team’s “conservative” approach to interpreting what was privileged, because it was important for the FBI to handle its mission and the materials in its possession “responsibly” and to not unnecessarily be looking “into the lives of the Clintons.”

There were at least two consent agreements that did not incorporate the use of a filter team, but instead allowed the attorney for the owner of the devices to delete personal information before voluntary production to the FBI. These were the consent agreements that the Department negotiated with Justin Cooper’s attorney to obtain Cooper’s personal laptops that the team hoped contained, among other things, back-ups from the BlackBerry devices Clinton used during the first two months of her tenure.[73] According to the FD-302 from Cooper’s September 2, 2015 interview, Cooper’s attorney told the FBI that Cooper’s laptops contained “files related to the upgrade of former Secretary of State Hillary Clinton’s Blackberry,” as well as emails Cooper exchanged with Clinton. In a letter dated September 10, 2015, Cooper’s attorney wrote to Prosecutor 1, “As we discussed and as the government has agreed, before providing Mr. Cooper’s computer hardware to the FBI, we will remove and securely delete Mr. Cooper’s personal and business files.” In a letter dated September 24, 2015, Cooper’s attorney wrote to Prosecutor 1 that he was voluntarily providing the FBI Cooper’s Mac Book Air laptop computer and further wrote, “[a]s agreed, we have securely deleted from the Mac Book Air Mr. Cooper’s personal and business files, and we have overwritten its unallocated space with zeros.”

We asked some FBI and Department witnesses why they did not use a filter team instead of allowing Cooper to delete his personal files. FBI witnesses told us that they were not concerned by the limitations in the consent agreements for the Cooper laptops, because Cooper was particularly cooperative and the materials he voluntarily provided to the FBI turned out to be fruitful.[74] Indeed, according to the FD-302 from Cooper’s interview, Cooper’s attorney told the FBI about the back-ups on Cooper’s laptop without prompting. In addition, FBI Attorney 1 and Agent 1 told us that they considered Cooper’s devices to be different from other devices they reviewed, because there was no evidence that Cooper was the sender or recipient of classified information and Cooper was more of an aide to former President Clinton than to former Secretary Clinton. Strzok told us that the team was not certain that it could establish probable cause that there was classified information or other evidence of a crime on the Cooper laptops.

Some FBI witnesses told us, consistent with text message exchanges between Strzok and Page, that the FBI was concerned that the line NSD prosecutors were intimidated by the high-powered attorneys representing Clinton and her senior aides and, as a result, did not negotiate aggressively with them. Strzok told us that Prosecutor 1, who handled most of the negotiations with counsel, is “extraordinarily competent,” but he believed more senior government officials should have been involved with deciding “how hard [to] push counsel.” Nevertheless, the FBI witnesses generally told us that they were satisfied that the limitations of the consent agreements did not impair the investigation. Agent 2 stated regarding the limitations in consent agreements, “I think generally...we were able to get what we were looking for. It maybe was more complicated, time-consuming, and cumbersome.” The Lead Analyst told us that “every single consent arrangement constrained what we did...to some degree.” However, he, Strzok, and FBI Attorney 1 all told us that they believed the team might have actually obtained more through the consent agreements in some instances than they would have obtained through compulsory process. Strzok explained that for some devices they were not certain that the team could establish sufficient probable cause to convince a judge to issue a search warrant or allow a search that was as broad as what was agreed upon through a consent agreement. He provided as an example the Cooper laptops described above. Similarly, Prosecutor 2 told us that the Midyear team was able to search certain items through consent agreements, despite privilege issues that may have caused a subpoena or search warrant to be quashed.

In addition, based on our review, we determined that Department and FBI members of the Midyear team worked together to determine the scope of the review of the evidence and, in turn, the limitations to be included in consent agreements and search warrants. For example, in a September 23, 2015 email exchange among a WFO Computer Analysis and Recovery Team forensic examiner (“CART Examiner”), Strzok, the Lead Analyst, the four line prosecutors, three FBI OGC attorneys, and two case agents, Prosecutor 2 wrote that she assumed the consent agreement for the PRN server would be scoped such that the FBI would not review the content of any emails in domains other than the clintonemail.com domain. Strzok wrote back with a more expansive approach than that suggested by Prosecutor 2: “I think we would ask to search the other domains for any emails to/from the @clintonemail.com domain in the event those emails were deleted from whichever clintonemail.com account and no longer available there.” The final consent agreement followed Strzok’s more expansive approach, allowing the FBI to search the entire server, including the unallocated space and domains other than the clintonemail.com domain, for any emails to or from Clinton.

None of the witnesses we interviewed could point to specific examples of anyone involved in the investigation allowing political or other improper considerations to impact the decisions on how best to obtain evidence.

V. Efforts to Obtain Email Content from the Private Accounts of Clinton’s Senior Aides[edit]

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In this section, we address the Midyear team’s efforts to obtain email content from the accounts of the three senior aides that had the most email communication with Clinton—Jake Sullivan, Cheryl Mills, and Huma Abedin. Sullivan was Clinton’s Deputy Chief of Staff for Policy from January 2009 to February 2011 and Director of Policy and Planning at the State Department from February 2011 to January 2013; Mills served as, among other things, Clinton’s Chief of Staff during Clinton’s tenure as Secretary; and Abedin served as Clinton’s Deputy Chief of Staff during Clinton’s tenure. According to the LHM, the FBI discovered through its review of emails from various sources that only 13 individuals had direct email contact with Clinton, and that Sullivan, Abedin, and Mills “accounted for 68 percent of the emails sent directly to Clinton.”[75] State Department employees told the FBI that they considered emailing Sullivan, Mills, or Abedin the equivalent of emailing Clinton directly.

In addition to examining emails to or from these senior aides within the original 30,490 emails produced to the State Department, the investigators obtained emails from the State Department for each of their official State classified and unclassified email accounts. Based on a review of these emails and other evidence, the investigators determined that, in addition to their official State email accounts, Sullivan and Mills used personal Gmail accounts and Abedin used a personal Yahoo! account and her clintonemail.com account to conduct government business. Sullivan, Mills, and Abedin told the FBI that they used their private email accounts for official business occasionally, including on occasions when the official State email system was not functioning properly. Sullivan stated that he had the most difficulty using the official State system when he was traveling and on the weekends.

The investigators further determined that all three of these senior aides either sent or received classified information on their private email accounts and forwarded emails containing classified information to Clinton, although none of the emails the FBI discovered contained classification markings. The three aides provided the following explanations to the FBI for their conduct: they did not believe the information contained in their emails was classified; they tried to talk around classified information in situations where there was an urgent need to convey information and they did not have access to classified systems; some of the information they were discussing had already appeared in news reports; and they relied on the originators of the emails to properly mark them. These explanations were consistent with those provided to the FBI by both the originators of the emails containing classified information and Clinton. Based in part on these explanations, the prosecutors determined that no one “within the scope of the investigation,” including the three senior aides, “committed any criminal offenses.”

Nonetheless, the investigators considered obtaining additional information from or about the private email accounts of all three senior aides. Emails sent to or from the private email accounts were potentially relevant to: (1) further reconstructing the full collection of work-related emails and emails containing classified information that were sent to or from Clinton’s servers; (2) finding additional emails containing classified information that were transmitted and stored on unclassified systems other than the Clinton’s servers; (3) finding evidence of knowledge or intent on the part of Clinton, the senior aides, and possibly others regarding the transmission or storage of classified information on unclassified systems; (4) controlling the spill of classified information in unauthorized locations; and (5) assessing whether there had been a compromise of classified information by hostile actors through intrusion analysis.

The Midyear team obtained 2703(d) orders for noncontent information in Mills’s Gmail account and Abedin’s Yahoo! account and a search warrant for Sullivan’s personal Gmail account. However, the Midyear team did not obtain search warrants to examine the content of emails in Mills’s or Abedin’s private email accounts and did not seek to obtain any of the senior aides’ personal devices.[76]

A. Section 2703(d) Orders for Non-Content Information for Mills’s and Abedin’s Private Email Accounts[edit]

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On February 18, 2016, the FBI obtained a 2703(d) order for Abedin’s personal Yahoo! account. According to the government’s application for the 2703(d) order, the FBI discovered that on October 4, 2009, an email attaching a Word document without classification markings was forwarded from Abedin’s unclassified State Department email account to her Yahoo! account. The application stated that the next day, “the text from this Word document, with slight edits and reformatted to State Department letterhead, was sent from a State Department employee on SIPRNet, a classified email system, to Cheryl Mills” with a classification marking of SECRET//NOFORN. As a basis for the 2703(d) order, the application stated that a review of the 2703(d) returns would “help the FBI determine if the aforementioned email, containing a classified Word document, still resides within the Subject Account maintained by Huma Abedin and whether there are other records connecting email accounts associated with the improper transmission and storage of classified information.”

Similarly, on May 31, 2016, the FBI sought and obtained a 2703(d) order for Mills’s personal Gmail account. According to the government’s application for the 2703(d) order, the FBI discovered that Mills sent or received at least 911 work-related emails to or from her Gmail account during the time she was employed at the State Department. The application stated that the FBI identified seven emails containing confirmed classified information and an additional 208 emails containing suspected classified information that had not yet undergone formal classification review. The application provided as an example one email that was determined to be classified at the level of SECRET//NOFORN at the time the email was sent. None of the emails contained classification markings.

We were told by an analyst who focused on handling legal process, and the notes of Strzok and the Lead Analyst from late May and early June 2016 confirmed, that the returns from the 2703(d) orders for Mills’s and Abedin’s accounts revealed that neither the confirmed classified emails nor any emails to or from Clinton continued to reside in Mills’s or Abedin’s personal accounts as of the date Google and Yahoo! searched their servers. According to Strzok’s and the Lead Analyst’s notes, Abedin’s email account contained less than 100 emails from Clinton’s tenure as Secretary of State, while Mills’s account contained numerous emails from Clinton’s tenure as Secretary of State. Prosecutor 2 and one FBI analyst told us that these results provided no basis to conclude that Mills or Abedin had deleted emails to or from Clinton for an improper purpose, because there are various factors that could contribute to the preservation of emails in a personal email account.[77]

B. Decisions Regarding Search Warrants for Private Email Accounts[edit]

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The Midyear team obtained a search warrant for Sullivan’s Gmail account, on September 17, 2015. According to the search warrant, in reviewing the 30,490 emails provided by Clinton’s attorneys to the State Department, the FBI found Sullivan’s electronic business card, which identified him as an employee of the State Department and listed his private Gmail address. The search warrant stated that the FBI also had identified, among the 30,490 emails produced to the State Department, an unmarked email determined to contain information classified at the TOP SECRET level at the time it was forwarded by another State Department employee to Sullivan’s Gmail account. The search warrant further stated that the FBI had identified an additional 496 emails from Sullivan’s personal Gmail account that it suspected contained classified information, but had not yet submitted for formal classification review. One analyst told us that unlike the emails found on Clinton’s servers, which often were derived from the unallocated space, emails from Sullivan’s Gmail account were helpful because they clearly revealed important metadata, such as senders, recipients, and dates.

Given the significant roles of Mills and Abedin, and the usefulness of the material from Sullivan’s personal account, we asked why the investigators did not seek search warrants for the private accounts of Mills or Abedin. We learned that the SSA initially drafted a search warrant affidavit for Mills’s personal Gmail account, but it was never filed. In an email to FBI Attorney 1 and the Lead Analyst dated March 25, 2016, Strzok listed “email accounts (thinking Mills Gmail account)” as an item that the FBI unsuccessfully sought from the prosecutors. Strzok, the SSA, and Agent 3 told us that Strzok advocated in favor of applying for the search warrant, but that the prosecutors rejected the affidavit in favor of a 2703(d) order, based on insufficient probable cause and privilege concerns. The SSA stated that he disagreed with the prosecutors’ position that there was insufficient probable cause for a search warrant, because there was evidence that Mills’s Gmail account was used for official business and contained classified information.

Nevertheless, Prosecutor 2 told us that the FBI never made a follow-up request for a search warrant after receiving the 2703(d) returns. As discussed above, according to Strzok’s and the Lead Analyst’s notes and other evidence, the Midyear team received the 2703(d) returns in late May and early June 2016 and learned that neither the classified emails nor any emails to or from Clinton continued to reside in either account. Prosecutors 1 and 2 told us that, based on the facts developed at that point, there was likely no probable cause to seek a search warrant. Strzok stated about the proposed search warrant for Mills’s Gmail account, “I remember we did not get it, and my general recollection is, if we thought it was important, and...we could have gotten probable cause, we would have done it. I think we just couldn’t establish PC [probable cause].”

Some FBI witnesses told us that there were reasons to promptly seek a search warrant for Sullivan’s Gmail account, instead of beginning with a 2703(d) order like they did with the private email accounts belonging to Mills and Abedin. They stated that unlike Sullivan, Mills and Abedin had not, based on the evidence they had reviewed, sent or received TS-SAP emails on their personal accounts, and these were the most sensitive emails discovered during the investigation. One analyst stated that Clinton’s email exchanges with Sullivan were more substantive than her email exchanges with both Abedin and Mills. In addition, witnesses told us, consistent with the FD-302s we reviewed, that Sullivan was a more regular user of personal email for conducting State business, in part because he traveled overseas more often than the others.

Prosecutor 2 told us that Sullivan was treated differently from Mills and Abedin, because the information contained in the Top Secret email sent to Sullivan more clearly constituted classified information and NDI (“national defense information”) than the information contained in the emails sent or received by Mills and Abedin.[78] Prosecutor 2 stated, “[T]here was a fundamental difference in the nature of information that we knew was in Jake Sullivan’s account, versus the information that was in Abedin’s account and Mills’s accounts.” In addition, Prosecutor 2 told us that the prosecutors would have had to obtain Criminal Division approval to obtain a search warrant for Mills’s Gmail account, given that she was an attorney. Prosecutor 2 told us that, while they would have sought the approval if they believed it was “appropriate,” this was among the factors they considered in “deciding what process to use.”

C. Access to Personal Devices for Clinton’s Senior Aides[edit]

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Another potential means to obtain emails to or from the private accounts of Clinton’s senior aides would be to obtain access to their personal devices, such as laptops or cellular telephones, on which copies of such emails might reside. Such access could possibly have been obtained by consent or via search warrant.[79] As described in Section VIII.D of this chapter, the Midyear team obtained, through consent agreements with Beth Wilkinson, the laptops that Mills and Samuelson used to cull Clinton’s emails for production of her work-related emails to the State Department. However, the investigators did not seek access to the private devices used by Sullivan, Mills, or Abedin during Clinton’s tenure at State.[80]

Witnesses told us that the team’s focus was on Clinton and obtaining her devices, such as her servers, computers, and hand-held devices. Prosecutor 2 stated, “[T]he scope of the investigation really related to the email systems used by Secretary Clinton, and whether on her private email server there are individuals who improperly retained or transmitted classified information.” According to one analyst, there were generally two types of devices that the team sought: devices that Clinton used and devices to which her emails were transferred.

We asked several witnesses why they did not obtain devices used by Sullivan, Mills, and Abedin, both as a means of searching for evidence of the mishandling of classified information by Clinton and her aides and to prevent a further compromise of classified information. Both Strzok and Anderson told us that, at the outset of the investigation, former Deputy Director Giuliano generally advised the team that the purpose of the investigation was not to follow every potential lead of classified information. Strzok stated that Giuliano told the team, “[T]his is not going to become some octopus.... The focus of the investigation [is] the appearance of classified information on [Clinton’s] personal emails and that server during the time she was Secretary of State.” Strzok further stated that the FBI’s “purpose and mission” was not to pursue “spilled [classified] information to the ends of the earth” and that the task of cleaning up classified spills by State Department employees was referred back to the State Department. He told us that the FBI’s focus was whether there was a “violation of federal law.” Prosecutors 1 and 2 similarly told us that the Department was not conducting a spill investigation, and that the State Department was the better entity for that role. Prosecutor 1 stated, “At a certain point, you have to decide what’s your criminal investigation, and what is like a spill investigation.... [W]e could spend like a decade tracking emails...wherever they went.” The SSA told us that the Midyear team engaged in several conversations with the State Department regarding the spill of classified information, and the State Department officials expressed concern about the problem and were receptive to resolving it. Generally the witnesses told us that they could not remember anyone within the team arguing that more should have been done to obtain the senior aides’ devices.

We specifically questioned why the team did not attempt to obtain any personal devices used by Huma Abedin, given the team’s finding that numerous work-related and classified email exchanges between Abedin and Clinton that the Midyear team found through various sources were absent from the 30,490 emails produced to the State Department by Clinton’s lawyers. Witnesses told us that they believed there was a flaw in the culling process, which resulted in the exclusion of most of Abedin’s clintonemail.com emails from the State Department production.[81] We also questioned (1) the failure to obtain Abedin’s devices despite that, according to Abedin’s FD-302, Abedin told the FBI that she turned both her personal laptop and her personal Blackberry over to her attorneys to be reviewed for production of work-related emails to the State Department; and (2) the inconsistency between the decision not to seek Abedin’s devices before the July declination and the decision to obtain a search warrant for email on the laptop belonging to her husband, Anthony Weiner, in October 2016.

In response to the OIG’s questions regarding the Midyear team’s decision not to obtain the senior aides’ devices, Prosecutor 1 told us that he did not remember any “meaningful discussion” before October 2016 about obtaining the senior aides’ devices, aside from the laptops used by Mills and Samuelson to cull Clinton’s emails for production of her work-related emails to the State Department. The SSA told us that in the beginning of the investigation, the Midyear team wanted to obtain every device that touched the server, but that over time the team realized that this would not be “fruitful.” He stated that OTD personnel told the team that “it was not likely that there would be anything on the devices” themselves. Some FBI witnesses told us that they asked the senior aides during their Midyear interviews about any personal devices they used for State Department work, and the Midyear team relied on their responses to determine what devices to obtain. Agent 3 told us that the Midyear team asked Abedin whether she backed up her clintonemail.com emails and she responded that her email was “cloud-based” and she did not “know how to back up her archives.” He stated that based on this testimony, the team assessed that finding helpful evidence on Abedin’s devices was unlikely.

Both Strzok and Prosecutor 2 told us that the decision not to obtain the senior aides’ devices was a joint decision. Prosecutors 1 and 2 and Strzok further told us that the team did not obtain Abedin’s personal laptop and Blackberry that she used during her employment at the State Department, even after she told the FBI that she gave those devices to her attorneys, because the State Department provided to the FBI Abedin’s work-related emails that her attorneys produced from those devices. Strzok stated that Abedin’s attorneys told the Midyear team that they erred on the side of overproducing Abedin’s emails to the State Department and that, unlike the sort process for Clinton’s emails by Mills and Samuelson, there was no reason to believe Abedin’s attorneys’ sort process was flawed. Prosecutor 2 told us, consistent with notes this prosecutor took at a meeting on October 27, 2016, that the only reason the FBI later obtained the Weiner laptop was because “it had ended up in our laps.” We describe this issue further in Chapters Nine, Ten, and Eleven.

Several witnesses told us that tracking down Clinton’s devices alone was very challenging. They stated that the investigation would have taken years if the team attempted to seek every possible device that might contain Clinton’s emails or classified material. For example, Prosecutor 2 stated:

I think the idea was that, that this investigation had to be somewhat focused, otherwise it could spin off into a million different directions. And this investigation could take different forms for years and years and years to come. So, you know, the, the focus of the investigation was, was really the private email system.

Agent 3 told us that the team focused on Clinton’s devices because they were the most likely to have the full tranche of missing emails from Clinton’s servers, whereas the devices of any one person would only have a “fraction” of them.

Midyear team members further told us that they placed limits on their investigation based on practical considerations, including what they observed to be systemic problems with handling classified information at the State Department. They stated that they discovered persistent practices of State Department employees, including both political and career employees, discussing classified information on both unclassified government email accounts and personal email accounts, and that this culture predated Clinton’s tenure as Secretary of State. In addition, FBI Attorney 1 told us that the emails containing classified information that were forwarded to Clinton often originally copied numerous State Department and other government agency employees, some of whom could have forwarded them to other unclassified locations besides the chain that ultimately led to Clinton’s server. Witnesses told us that these factors made it impractical for them to search every email account or device that classified emails may have traversed.

D. Review of Abedin’s Emails on the Clinton Server[edit]

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Abedin was the only State Department employee, besides Clinton, with an account on the clintonemail.com domain on Clinton’s server. Witnesses told us and documents we reviewed showed that the Midyear team did not review all of Abedin’s clintonemail.com emails on the server; rather, they limited their searches to her email exchanges with Clinton. We questioned why this limitation was put in place, given that the purpose of the investigation was to generally assess any mishandling of classified information in relation to Clinton’s server.[82]

Several witnesses told us that they did not seek to review all of Abedin’s emails because her role was administrative in nature. While witnesses told us that Abedin had possibly the most contact with Clinton and sometimes forwarded or printed substantive work-related emails to or for Clinton, she was never an originator of classified materials, she did not typically use classified systems, she did not receive or forward the particularly sensitive information, and she did not comment substantively on classified information that was contained in the emails she forwarded. Prosecutor 1 explained that the team was not “as concerned that [Abedin] was taking stuff off the classified systems and dumping it down.” These factors also contributed to the decision not to obtain a search warrant for content from Abedin’s Yahoo! account.

However, during a review of the Weiner laptop in October and November 2016, the FBI discovered unmarked classified emails that Abedin had forwarded to Weiner. During an FBI interview on January 6, 2017, Abedin acknowledged that she “occasionally” forwarded work-related emails to her husband for printing.

E. Decision Not to Seek Access to Certain Highly Classified Information[edit]

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As detailed in the classified appendix to this report, the OIG learned late in our review that the FBI considered seeking access to certain highly classified materials that may have included information potentially relevant to the Midyear investigation, but ultimately did not do so.[83] In late May 2016, FBI Attorney 1 drafted a memorandum stating that review of the classified materials was necessary to complete the Midyear investigation and requesting permission to review them.

The FBI never finalized the May 2016 memorandum or received access to these classified materials for purposes of the Midyear investigation.[84] FBI witnesses told us that this was for various reasons, including that they believed that the classified materials were unlikely to include information from the beginning of former Secretary Clinton’s tenure, and thus would not have a material impact on the investigation. However, other FBI witnesses including Strzok, the Lead Analyst, and the SSA told us that reviewing the materials would have been a logical investigative step.

The classified appendix describes in more detail the highly classified information, its potential relevance to the Midyear investigation, and the FBI’s reasons for not seeking access to it.

VI. Voluntary Interviews[edit]

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According to documents we reviewed, the Midyear team conducted 72 witness interviews. The witnesses included individuals involved with setting up and administering Clinton’s private servers, State Department employees, and other individuals with suspected knowledge of Clinton’s email servers, the transmission of classified information on the servers, or her intent. Based on our review, we determined that all witnesses were interviewed voluntarily or pursuant to immunity agreements and, consistent with the FBI’s normal procedures, none of the witnesses were placed under oath or recorded.[85] No witnesses testified before the grand jury.

The FBI and Department witnesses we interviewed told us that the Midyear team, including agents, analysts, the SSA, Strzok, the Lead Analyst, and line prosecutors worked together to decide whom to interview and the sequencing of witness interviews, without seeking approval from higher level Department or FBI officials. Agent 1 stated that the initial strategizing on whom to interview generally occurred at the level of the SSA and below. The SSA and most of the case agents told us that they did not recall any significant disputes over whom to interview and that they were never told by higher level managers, including Strzok, or Department employees, including the prosecutors, not to interview particular witnesses that they believed were essential to the investigation. Similarly, the prosecutors told us that their chain of command did not seek to influence the team’s decisions on whom to interview. Toscas told us that the prosecutors made him aware of upcoming important interviews and he briefed that information up the chain, but he and higher level Department officials were not involved in deciding whom to interview.

FBI witnesses told us that the agents and analysts worked together to determine what questions to ask to witnesses, and that the analysts prepared packets of documents to use as exhibits. The SSA and the case agents told us that their supervisors were involved in strategy sessions before interviews and in editing and suggesting potential questions, but did not dictate the process and never forbade them from asking particular questions. They also told us that for more significant witnesses, the line prosecutors reviewed their interview outlines and suggested eliminating questions based on privilege, relevance, or a scope that had been agreed upon with the witness’s counsel. The SSA stated that the prosecutors’ review of the questions did not cause “friction” and that the process was “fairly seamless.” The prosecutors told us that higher level Department officials were not involved in deciding what questions to ask witnesses.

Witnesses told us and the FD-302s indicated that the case agents led the interviews, and prosecutors and supervisors only attended when witnesses were represented by counsel or particularly significant. According to documents we reviewed, Strzok attended the interviews of five key witnesses—Abedin, Mills, Samuelson, Sullivan, and Clinton. He stated that he only attended these interviews because Laufman insisted on attending them, and he believed that as Laufman’s counterpart at the FBI he should attend them as well. Laufman told us that he attended the interviews that he believed were “potentially the most consequential,” because of the “enormous implications” and “potential consequences” of the Midyear investigation and to ensure that no one involved in the investigation went “off in a direction that wasn’t consistent with a purely independent, investigative, impartial approach.” He further told us that he wanted to be involved in key interviews in order to make his own assessment of the witnesses’ credibility and gain a full picture of the investigation, so that he could make an informed judgment at the end of the investigation as to whether to accept the FBI’s and prosecutors’ recommendations. Prosecutor 1 told us that the Midyear agents were “very, very diligent and most of them were very good interpersonally,” and that the prosecutors only interjected occasionally during interviews.

We were told that the decision to conduct voluntary interviews rather than subpoenaing witnesses before the grand jury was not controversial or unusual. FBI agents and prosecutors told us that their usual practice is to interview witnesses voluntarily and only resort to grand jury if witnesses are uncooperative or not credible. They further told us that the Midyear witnesses were mostly cooperative and credible and that using the grand jury would have been complicated given the sensitive, classified information involved. Prosecutors 1 and 2 and Agent 1 told us that not calling any witnesses before the grand jury was common in mishandling investigations, because doing so would typically require grand jurors to learn about classified information. Before introducing classified information to the grand jury, prosecutors must obtain approval from the USIC agency that was responsible for classifying the information.[86] Prosecutor 1 explained that although “[y]ou can put classified information in front of the grand jury[,] [y]ou really would like to avoid that because you're basically exposing people that aren't going to be cleared to the information.” Agent 1 stated that he had specialized in investigations concerning the loss of classified information since approximately 2008 and during that time he had only been involved in one or two investigations where witnesses were subpoenaed to testify before the grand jury. Agent 4 told us that voluntary interviews are better than the grand jury for “rapport-building” and obtaining information.

Prosecutor 1 told us that the prosecutors were prepared to issue grand jury subpoenas for any witnesses that refused to voluntarily submit to interviews, for situations where they believed witnesses were untruthful, or for situations where witnesses provided statements that would be helpful in a later prosecution and the team wanted to “lock them in.” While all witnesses ultimately submitted to voluntary interviews, the team issued a grand jury subpoena for Paul Combetta. As discussed in Section VII.B of this chapter, ultimately the Midyear team decided that it was unnecessary to question Combetta before the grand jury.

VII. Use Immunity Agreements[edit]

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The Department entered into letter use or “Queen for a Day” immunity agreements with three witnesses in the Midyear investigation: Bryan Pagliano, Paul Combetta, and John Bentel. These immunity agreements and the specific reasons for them are described in Sections A through C below. The Department also entered into two act-of-production immunity agreements in relation to the personal laptops used by Cheryl Mills and Heather Samuelson to cull Clinton’s emails. These are discussed in Section VIII. D. 3 of this Chapter. The Department did not enter into any transactional immunity agreements.

The prosecutors told us that, in deciding whether to grant use immunity to a witness, they considered whether the witness had criminal “exposure” (i.e., whether there were crimes for which the witness could be prosecuted), the witness’s degree of culpability, the value of the witness’s expected testimony, whether there were other sources of the same information, and whether the grant of immunity would help or hinder the investigation. Numerous Department and FBI witnesses told us that they did not oppose the immunity agreements. Some witnesses stated that there was nothing unusual or troubling about the nature or quantity of immunity agreements used in the Midyear investigation, especially since so many witnesses were represented by counsel. Witnesses also told us that the immunity agreements were approved within the Department through the level of DAAG Toscas, and that higher level Department and FBI officials were not involved in negotiating or approving the immunity agreements. Yates told us that she was briefed about immunity agreements, but, since she was not made aware of any disagreements related to them, she did not consider overruling them. Lynch told us that she generally was not briefed or otherwise involved in immunity issues.[87]

A. Pagliano[edit]

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As previously noted, Bryan Pagliano was an information technology specialist who worked on Hillary Clinton’s presidential campaign and later set up the Pagliano server, which was the second of the Clinton Servers. The Midyear team entered into two immunity agreements with Pagliano: a “Queen for a Day” use immunity agreement on December 22, 2015, and a letter use immunity agreement on December 28, 2015. Based on our review, the immunity was granted in response to a request by Pagliano’s counsel and resulted in at least two voluntary interviews that helped inform the FBI’s investigation.

Witnesses told us that Pagliano was a critical witness because he set up the server that Clinton used during her tenure. According to Prosecutor 2, Pagliano was “uniquely positioned” to describe to the FBI the “setup” and “mechanics” of Clinton’s server, as well as to answer questions regarding possible cyber intrusion. On August 10, 2015, Pagliano’s counsel emailed an FBI agent that he was “not prepared to have Mr. Pagliano participate in an interview with the FBI- particularly in the absence of any explanation as to the focus or scope of your prospective questions.” According to an August 27, 2015 email among the prosecutors, Strzok, the Lead Analyst, and the SSA, Pagliano’s attorney had spoken with Prosecutor 1 and was “insistent on immunity for his client even though it was explained to him that Pagliano is a witness and not a target.” Prosecutor 3 wrote to the Midyear team, in response to the request of Pagliano’s lawyer, “We’re probably going to see this a lot with any witness who is facing having to be interviewed or testify on the Hill. We should all sit down and prioritize witnesses to be interviewed and decide who it’s safe to immunize.”

According to documents we reviewed, on or about September 4, 2015, Pagliano’s attorneys told the Senate Judiciary Committee and the Senate Committee on Homeland Security and Governmental Affairs that he would exercise his Fifth Amendment rights in response to any questions by the Committees about his role in setting up Clinton’s private email server. The next day, the Washington Post reported that the Clintons personally paid Pagliano to support Clinton’s private email server while he was employed at the State Department.[88] According to emails we reviewed, within days of these allegations the Midyear team took steps to obtain financial information related to Pagliano from several sources. In addition, the Midyear prosecutors contacted the Criminal Division’s Public Integrity Section (PIN) to consider whether Pagliano should be prosecuted under 18 U.S.C. § 209 for receiving outside compensation for government work or for improperly failing to report outside income on financial disclosure paperwork. On or about September 9, 2015, Pagliano pleaded his Fifth Amendment right against self-incrimination in response to questions about the set-up of Clinton’s email server before the House Benghazi Committee.

On December 11, 2015, Prosecutor 2 wrote an email to the other line prosecutors notifying them that PIN had declined charges against Pagliano. Then PIN Chief Ray Hulser told us that PIN declined charges because the PIN prosecutors determined that (1) Pagliano’s outside compensation was for work for the Clintons (primarily former President Clinton), not for State Department work;[89] and (2) Pagliano reported his compensation from the Clintons on federal financial disclosure reports before he was told by the State Department that this was not necessary. Hulser further told us that PIN’s decision to decline charges against Pagliano was not influenced by the Midyear team’s desire to interview Pagliano and that PIN was never pressured by anyone within the FBI or the Department to decline charges.

Prosecutor 1 told us that around the same time as PIN’s declination, the team received a proffer from Pagliano’s attorney, through which the team confirmed that Pagliano had important information to provide. Thus, on December 22, 2015, the Department entered into a “Queen for a Day” proffer letter with Pagliano. The “Queen for a Day” letter provided that Pagliano would “answer all questions completely and truthfully, and...provide all information, documents, and records” within his custody or control, related to the substance of his interview. In exchange, the Department agreed that any statements made during his proffer would not be admitted during the government’s case-in-chief or at sentencing during any future prosecution of Pagliano. The Department would, though, be able to “make derivative use of, and pursue any leads suggested by” Pagliano; use his statements for appropriate cross examination and rebuttal; and prosecute Pagliano for statements or information that were “false, misleading, or designed to obstruct justice.” The prosecutors told us that they wanted to ensure that Pagliano was a credible witness and that his statements would be consistent with his attorney’s proffer before offering him the broader letter use immunity.

Two FBI case agents interviewed Pagliano for the proffer on December 22, 2015, in the presence of all four prosecutors, the CART examiner, and Pagliano’s attorneys. Among other things, Pagliano described the set-up of the Pagliano server and related equipment, as well as the transition to the PRN server, to help inform later OTD analysis of those devices. In addition, Pagliano told the FBI about a late 2009 or early 2010 conversation with Mills in which he conveyed a concern raised by a State Department Information Technology Specialist that Clinton’s use of a private email server could violate federal records retention laws. Pagliano told the FBI that Mills responded that former Secretaries of State, including Colin Powell, had done the same thing. The FBI relied on this testimony in subsequent interviews, including a later interview of Mills.[90]

The prosecutors and Agent 1 told us that they met afterwards and everyone agreed that Pagliano was credible and helpful. Prosecutor 1 told us that “everyone assessed that [Pagliano] was scared but truthful,” and that Pagliano might have been even more nervous and less forthcoming had he been required to testify in the grand jury, outside the presence of his attorney. They also agreed that there were some follow-up questions that would need to be asked. Thus, on December 28, 2015, the Department offered Pagliano “use immunity coextensive with that granted under 18 U.S.C. § 6001” in exchange for future truthful court testimony, grand jury testimony, or voluntary interviews related to the Midyear matter, pursuant to a letter use immunity agreement. The letter provided that the government would not use any information directly or indirectly derived from Pagliano’s truthful statements or testimony against him in a future prosecution, “except a prosecution for perjury, giving a false statement, or any other offense that may be prosecuted consistent with 18 U.S.C. § 6001.”

According to a FD-302 and contemporaneous agent notes, the Midyear team interviewed Pagliano again on June 21, 2016, and he answered questions to clarify answers provided during the proffer. For example, Pagliano told the FBI that he decided not to “implement Transport Layer Security (TLS) between the Clinton email server and State server,” because at the time he “understood the Clinton email server to be a personal email server and did not see a reason for encryption.” He also told the FBI about “failed log-in attempt[s]” on the Clinton email server in January 2011, which Pagliano described as a “brute force attack (BFA)” that was not “abnormal.” According to the LHM, “[T]he FBI’s review of available Internet Information Services (IIS) web logs showed scanning attempts from external IP addressees over the course of Pagliano’s administration of the server, though only one appear[ed] to have resulted in a successful compromise of an email account on the server.” As described in Section I of this chapter, the one confirmed successful compromise was of an account belonging to one of President Clinton’s aides.

Both Department and FBI witnesses told us that no one opposed the decision to grant Pagliano immunity. The SSA told us that the FBI did not consider him a subject or someone they would prosecute in connection with Midyear, the FBI believed his testimony was very important, and providing immunity was an effective way to secure his testimony. Prosecutor 4 told us that the way Pagliano was handled was “standard operating procedure.” In addition, witnesses told us that Pagliano pleading the Fifth Amendment and refusing to testify before Congress gave the Department no choice but to offer Pagliano immunity.

B. Combetta[edit]

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As previously noted, Paul Combetta was the employee of PRN who migrated the email accounts from the Pagliano server to the PRN server in 2013, transferred Clinton’s archived emails to the PRN server in 2014, and later wiped emails from the PRN server in March of 2015. The Department entered into a letter use immunity agreement with Combetta on May 3, 2016. Midyear team members told us that Combetta was an important witness for several reasons, including his involvement with the culling process and the deletion of emails and his interactions with several people that worked for Clinton. Several Midyear team members stated that after conducting two voluntary interviews of Combetta, they believed that Combetta had not been forthcoming about, among other things, his role in deleting emails from the PRN server following the issuance of a Congressional preservation order. The witnesses further stated that Combetta’s truthful testimony was essential for assessing criminal intent for Clinton and other individuals, because he would be able to tell them whether Clinton’s attorneys—Mills, Samuelson, or Kendall—had instructed him to delete emails.

Combetta was first interviewed on September 17, 2015, by two case agents, in the presence of Prosecutor 2 and Combetta’s counsel. The interview was voluntary and there was no immunity agreement. According to the FD-302 and contemporaneous agent notes, Combetta provided information regarding the set-up of the PRN server, the roles of other PRN employees in the management of the PRN server, his role in transferring emails from the Archive Laptop to the PRN server, and his role in creating .pst files of Clinton’s archived emails to be transferred to the laptops used by Mills and Samuelson to cull Clinton’s emails (“culling laptops”). However, he denied that PRN “deleted or purged” Clinton’s emails from the PRN server or from back-ups of the server and stated that Clinton’s staff never requested that PRN do so.

On February 18, 2016, the same two agents interviewed Combetta again, this time in the presence of the CART examiner, the Forensics Agent, Prosecutor 2, and Combetta’s counsel. Once again, the interview was voluntary and there was no immunity agreement. According to the FD-302 and contemporaneous agent notes, Combetta continued to deny deleting the HRC Archive Mailbox from the server and stated that “he believed the HRC Archive mailbox should still be on the Server in the possession of the FBI,” despite documentation showing that the mailbox was no longer on the server as of January 7, 2015. Combetta stated that only he and one other administrator had the ability to delete a mailbox from the server. When the agents showed him documentation indicating that an administrator had manually deleted backup files and used BleachBit on March 31, 2015, he stated that he did not recall deleting backup files, he did not recall anyone asking him to delete backup files, any PRN employee had the ability to delete backup files, he believed he used BleachBit “for the removal of .pst files related to the various exports of Clinton’s email” to Mills’s and Samuelson’s laptops, and he used BleachBit for this purpose “of his own accord based on his normal practices as an engineer.” He further stated that he did not recall a March 9, 2015 email in which Mills reminded him of his obligation to preserve emails pursuant to a preservation order. The FD-302 and contemporaneous notes indicate that the agents attempted to ask Combetta about documents related to a conference call with Kendall and Mills on March 25, 2015, just before the deletions and use of BleachBit, but his attorney advised him not to answer based on the Fifth Amendment.

During the February 18, 2016 interview, the agents also showed Combetta an email dated December 11, 2014, in which he wrote to a PRN colleague, “I am stuck on the phone with CESC [Clinton’s staff] again.... Its [sic] all part of the Hilary [sic] coverup [sic] operation (smily face) I’ll have to tell you about it at the party.” Combetta told the agents that the reference to the “Hilary [sic] coverup [sic] operation” was “probably due to the recently requested change to a 60 day email retention policy and the comment was a joke.”[91] Department and FBI witnesses told us that Combetta’s explanation for this email seemed credible to them, given his personality and the way the email was written, and they did not discuss interviewing Combetta’s colleague regarding the email.

The SSA told us that he believed Combetta should have been charged with false statements for lying multiple times; however, the SSA also stated that he was ultimately satisfied that Combetta’s later immunized testimony was truthful and that he was “fine” with the immunity agreement. Prosecutor 2, Agent 2, and the Forensics Agent indicated that, while they believed that Combetta had not been forthcoming during the first two interviews, they were not certain that they had sufficient evidence to charge him with obstruction or false statements. According to documents we reviewed, the forensic evidence showed that Clinton’s emails had been deleted and wiped from the server, but did not definitively link Combetta with those actions. Agent 2 explained that the team “felt pretty strongly that maybe he had deleted information off of Secretary Clinton’s server,” but that interpreting computer forensics and precisely what they mean can be “kind of messy.” Similarly, the Forensics Agent stated that, based on the forensic evidence alone, it was “very difficult” to be certain that Combetta conducted the deletions; however, based on the Midyear team’s assessments of the credibility of Combetta and the other administrator, the team was more “focused on” Combetta. Prosecutor 2 told us that using the forensic evidence in combination with witness testimony, the team “probably could have established” that Combetta conducted the deletions; however, Prosecutor 2 stated that there was insufficient evidence, after the first two interviews, to prove that Combetta understood his obligation to preserve Clinton’s emails and deliberately violated the Congressional preservation order.

In addition, members of the Midyear team told us, consistent with their contemporaneous emails, that they believed Combetta’s failure to be forthcoming during the first two interviews was largely due to a lack of sophistication and poor legal representation, rather than an intent to hide truth. For example, Prosecutor 2 wrote in an email on March 29, 2016, to the other line prosecutors, “It’s really hard to tell whether Paul [Combetta] is trying to hide something, or we are simply experiencing the effects of really bad (no) attorney prep and/or an attorney that has counseled him to say ‘I don’t remember’ if he doesn’t have a specific recollection of taking a specific action on a specific date.” Prosecutor 2 expressed the same sentiments during OIG interviews. Agent 2 stated, “We just felt like we weren’t getting the whole story or maybe he was holding back a little.” Prosecutor 1 stated, “[W]e didn't assess his exposure to be terribly significant.” However, Prosecutor 1 also stated:

There were certainly discussions about whether he had, had [18 U.S.C. §] 1001 exposure [for making false statements].... He was clearly not being forthright with us.... And I think, my, my guess is if we couldn't have gotten him to come in and, and he was messing around with us on the immunity, we probably would have had to charge him. But, I think we were more interested in understanding what had happened....And the most expedient way to, to do that, I think we assessed, was just to, to immunize him and keep moving.

Both prosecutors and agents also told us that Combetta was not someone the government was interested in prosecuting given his role in the case. Agent 1 told us that the absence of evidence that Combetta knew anything about the content of the emails on Clinton’s server minimized the FBI’s interest in prosecuting him. Prosecutor 4 stated:

I was concerned that we would end up with obstruction cases against some poor schmuck on the down, that, that had a crappy attorney who didn’t really, you know, if I was his attorney, he wouldn’t have gone in and been, you know, hiding the ball in the first place. And so at the end of the day, I was like, look, let’s immunize him. We’ve got to get from Point A to Point B. Point B is to make a prosecution decision about Hillary Clinton and her senior staff well before the election if possible. And this guy with his dumb attorney doing some half-assed obstruction did not interest me. So I was totally in favor of giving him immunity.

Prosecutor 2 told us that Combetta’s counsel was “concerned” that the Midyear team would “want to charge somebody...to show we had done something” and “go after some low-level person like Combetta to make a point.” Prosecutor 2 stated, “that was never our intention” and “it was in our interest to...make him and his counsel feel comfortable enough that they were going to give us the facts that we needed to figure out what happened in this case.”

In the March 29, 2016 email exchange, the four line prosecutors weighed two approaches to dealing with Combetta: (1) offering letter use immunity and only issuing a grand jury subpoena if Combetta did not comply or was untruthful during an immunized interview; versus (2) issuing a grand jury subpoena first and withdrawing the subpoena if Combetta was cooperative and truthful during a voluntary, immunized interview the morning before a scheduled grand jury appearance. In support of the second approach, Prosecutor 4 sent an email stating that it was “common for witnesses to play games early in high profile investigations as they try to figure out the lay of the land” and noting that a grand jury subpoena was a “powerful” tool in this situation.

On April 8, 2016, the Department subpoenaed Combetta to appear before the grand jury on May 3, 2016. Along with the subpoena, Prosecutor 3 wrote an email to Combetta’s attorney that the FBI intended to “continue its interview of [Combetta] and go over any relevant documents with him” on May 3 and that “[i]n the event he needs to appear before the GJ, that would likely occur” the following morning. The prosecutors and agents explained to us that the plan was to interview Combetta on May 3, and place him in the grand jury on May 4 if they assessed that he was still uncooperative or untruthful.

On the evening of May 2, Prosecutor 3 wrote to the other prosecutors that that they would need to discuss whether to put Combetta in the grand jury on May 4. He further wrote, “Regardless as to how he answers the questions, I could see the FBI advocating that we put him in the GJ.” Prosecutor 4 responded, “I would prefer that we not put him in the GJ without a clear articulable reason for doing so, but we can discuss.” Prosecutor 4 told the OIG:

Generally, I think people overestimate the value of the grand jury to get people that are lying to tell the truth. My experience, I’ve had the best luck with working with defense counsel or having very aggressive interviews with them personally, one-on-one, which I would typically not want to do in the grand jury. You know, if I’m going to beat somebody up to get them to tell the truth, I don’t want 23 grand jurors sitting around while I’m yelling at somebody.

The prosecutors told us that Combetta’s attorney had informed them in advance of the May 3 meeting that Combetta would plead the Fifth Amendment in the grand jury. They further told us they believed they had no real choice but to grant Combetta immunity.[92] They stated that they did not consider charging Combetta with a crime and then seeking his cooperation against other witnesses, because they did not believe he had significant criminal exposure. In addition, Prosecutor 1 explained that if the Department had dropped or lowered charges against Combetta in exchange for his cooperation, a defense attorney would have used the cooperation agreement to impeach Combetta’s credibility at a subsequent trial.

Accordingly, on May 3, 2016, the Department entered into a standard letter use immunity agreement with Combetta. The terms of this agreement were identical to the terms incorporated into the Pagliano letter use immunity agreement. Specifically, in exchange for Combetta providing truthful information during FBI interviews as well as truthful testimony during any grand jury or court appearances, the Department agreed that it would not use his statement or testimony, or any information derived from it, during a subsequent criminal prosecution, “except for a prosecution for perjury, giving a false statement, or any other offense that may be prosecuted consistent with 18 U.S.C. § 6002.”[93] Both the prosecutors and the FBI agents involved with Combetta’s interview told us that the decision to grant Combetta use immunity was not controversial and that everyone agreed that it was the most effective way to obtain the information they needed from him.

During a speech at an FBI conference for Special Agents in Charge in October 2016, Comey indicated that he agreed with the decision to enter into a use immunity agreement with Combetta in order to obtain potentially valuable information concerning any role that Clinton played in the deletion of emails from her server. Responding to the complaint that the Midyear team “handed out immunity like candy,” he stated:

I hope you also notice our subject here was Hillary Clinton. We wanted to see[,] this very aggressive investigative team wanted to see can we make a case on Hillary Clinton. To make that case they worked up from the bottom. The guy who set up her server, the guy who panicked and deleted emails, he is really not our interest. Out interest is trying to figure out did he give us anything against her.

Combetta was interviewed subject to the terms of the immunity agreement on May 3, 2016, by the same two FBI case agents, this time in the presence of the SSA, the CART examiner, all four line prosecutors, and Combetta’s attorneys. According to the FD-302 and contemporaneous notes of the two agents and the CART Examiner, Combetta provided the FBI additional detail regarding his removal of emails from the culling laptops, stating that Mills had requested that he “securely delete the .pst files” in November or December 2014 but had not specifically requested that he use “deletion software.” He told the FBI that he was the one who recommended the use of “BleachBit” because he had used it for other clients. He also acknowledged removing the HRC Archive mailbox from the PRN server between March 25, 2015, and March 31, 2015, and using BleachBit to “shred” any remaining copies of Clinton’s email on the server, despite his awareness of Congress’s preservation order and his understanding that the order meant that “he should not disturb Clinton’s email data on the PRN server.” According to the FD-302 and contemporaneous notes, Combetta told the FBI that he had an “oh shit” moment upon realizing that he had failed to comply with Mills’s request in late 2014 or early 2015 to “change the retention policy for Clinton’s and Abedin’s existing and ongoing mail to 60 days.” He further told the FBI that Mills had contacted him on or about March 8, 2015, to assess what was still on the servers, including whether there were any “old back up data or copies of mailboxes hanging out there on old equipment.” However, he stated that he did not tell Mills that he subsequently realized the archived emails were still on the PRN server or that he deleted them in late March. In addition, he stated that he “could not recall the content” of the March 25, 2015, call with Kendall and Mills. In sum, Combetta took responsibility for the deletions, without implicating Clinton or her attorneys.

We interviewed seven Midyear team members who attended Combetta’s May 3, 2016, interview, all of whom told us that they conferred immediately following Combetta’s interview and agreed that Combetta’s testimony finally “made sense,” that he had been truthful and forthcoming, and that he did not implicate anyone in criminal activity such that there was a need to “lock in” his testimony in the grand jury. Prosecutor 1 told us that Combetta’s testimony finally “squared with the forensic evidence,” and also corroborated the testimony of other witnesses, including Mills and Samuelson, that they were unaware of the March deletions by Combetta.


C. Bentel[edit]

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As noted previously, John Bentel worked at the State Department for 39 years, the last four of which he served as Director of the Executive Secretariat Information Resource Management (S/ES-IRM), before he retired in 2012. As detailed below, the investigators had received evidence that Bentel had information relating to the State Department’s possible sanctioning of Clinton’s use of a private email server.

According to documentation we reviewed, the Department entered into a “Queen for a Day” agreement with Bentel on June 10, 2016. The terms of this agreement were similar to those offered to Pagliano. Prosecutor 2 told us that the team did not subsequently grant Bentel the broader letter use immunity granted to Pagliano and Combetta, nor did his counsel ask for it. The witnesses we interviewed told us that the decision to enter into a Queen for a Day agreement with Bentel was not controversial. Prosecutors 1 and 2 stated that Bentel’s attorney sought use immunity because he thought that Bentel was portrayed poorly in the State IG report. They further stated that the team granted Bentel immunity because he was a necessary witness, who did not, to their knowledge, face any criminal “exposure.” Prosecutor 2 described the Bentel interview as a “check-the-box type interview.” The SSA told us that he did not oppose immunity for Bentel, because the FBI had no intentions of seeking that Bentel be prosecuted.

The agents asked Bentel about allegations by two S/ES-IRM staff members that they had raised concerns about Clinton’s use of personal email to him during separate meetings. According to the State IG report, one of the staff members told the State IG that Bentel told the staff member that “the mission of S/ES-IRM is to support the Secretary” and instructed the staff member to “never speak of the Secretary’s personal email system again.”[94] According to the FD-302 and agent notes, the agents showed Bentel documents that suggested that he was aware that Clinton had a private email server that she used for official business during their joint tenure. One of the agents explained that the purpose of asking Bentel about his knowledge of the server was to assess whether Clinton’s use of the server was sanctioned by the State Department. However, Bentel maintained that he was unaware that Clinton used personal email to conduct official business until it was reported in the news and denied that anyone had raised concerns about it to him.

Both agents who interviewed Bentel told us that he was uncooperative and the interview was unproductive; however, they attributed these problems to nervousness and fear of being found culpable. Agent 3 told us that he did not believe that immunity for Bentel was necessary and that it did not help the investigation because Bentel was not forthcoming during his interview. However, he did not believe that Bentel had any criminal exposure and therefore the immunity agreement did not harm the investigation.

VIII. Use of Consent and Act of Production Immunity to Obtain Mills and Samuelson Testimony and Laptops[edit]

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In this section we examine decisions made by the FBI and the Department regarding whether to interview Mills and Samuelson regarding the process they used to cull Clinton’s emails in connection with providing emails to the State Department in 2014, as well as whether and how to obtain and review the personal laptops used by Mills and Samuelson for this culling process (“culling laptops”). The investigators told us that access to these laptops was particularly important to ensure the completeness of the investigation. All 62,320 emails pulled from the Clinton servers were stored at one time on these laptops, so access to the laptops offered the possibility of reconstructing a large number of the deleted emails through digital forensics.[95] Moreover, the deletion of emails by Mills and Samuelson from these laptops had become a matter of great public controversy, including allegations that they had been deleted for improper purposes, increasing the importance of attempting to recover as many of them as possible. Ultimately, both Mills and Samuelson submitted to voluntary interviews regarding the culling process and voluntarily provided the culling laptops to the FBI after receiving “act of production” immunity.

In the subsections below we discuss: privilege claims raised by Mills and Samuelson; the debate between the FBI and the Department; the events that led to the Department securing voluntary interviews of Mills and Samuelson; the steps that were taken to secure and search the culling laptops, including the decision to grant Mills and Samuelson “act of production” immunity and the consent agreements for the culling laptops; the involvement of senior Department and FBI officials; and a discussion of the motivations behind the Mills and Samuelson dispute.

A. Privilege Claims Raised by Mills and Samuelson[edit]

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As noted previously, in response to a State Department request in 2014, Mills and Samuelson, neither of whom were still employed by the State Department, worked together on behalf of Clinton to produce Clinton’s State work-related emails that were on the PRN server by crafting a process to cull what they believed to be Clinton’s personal emails from her work-related emails. Samuelson, under Mills’s supervision, reviewed the emails that had been placed on the culling laptops and, following completion of this culling process, Clinton produced 30,490 work-related emails to the State Department. Thereafter, Mills and Samuelson asked Combetta to securely delete the .pst files from the culling laptops, which, as described above, he did using BleachBit. Mills and Samuelson then continued to use the culling laptops for work related to their legal representation of other clients.

While the Midyear team was interested in speaking with Mills and Samuelson about this culling process, they also were interested in interviewing Mills concerning her time at the State Department with Clinton, due to evidence that Mills frequently communicated directly with Clinton and that she received and forwarded classified information on both her unclassified State email and personal Gmail accounts.[96] During Clinton’s tenure as Secretary of State, Mills served as, among other things, Clinton’s Chief of Staff and Samuelson served as a senior advisor to Clinton and White House Liaison.

According to documents we reviewed, Mills and Samuelson told the FBI and Wilkinson told the prosecutors that Mills and Samuelson had attorney-client relationships with Clinton for purposes of their work culling Clinton’s emails in 2014. According to internal memoranda and emails, the prosecutors began asking Wilkinson to provide her clients for voluntary interviews regarding the culling process in December 2015, but Wilkinson raised objections. Specifically, Wilkinson argued that any interview questions regarding the culling process “would require answers revealing privileged information,” and she suggested that the Department obtain the information through an attorney proffer by Wilkinson instead.[97] Prosecutor 2 told us, and contemporaneous notes show, that the prosecutors also asked Wilkinson to voluntarily turn over the culling laptops in March 2016, after Wilkinson informed them that the laptops were still in her clients’ possession. However, Wilkinson refused to voluntarily turn over the culling laptops, arguing that the laptops contained privileged information related to both Clinton and Mills’s and Samuelson’s other clients. Wilkinson told the prosecutors that she would instead take possession of the culling laptops from her clients, disconnect them from the Internet, and secure them in a safe in her office.

B. Debate over Interviewing Mills and Samuelson Regarding the Culling Process and Obtaining the Culling Laptops[edit]

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FBI case agents and the SSA told us, and contemporaneous emails show, that they believed that interviewing Mills and Samuelson regarding the culling process and searching the culling laptops were essential investigative steps. They stated that they hoped to be able to find the full 62,320 emails that were originally reviewed by Mills and Samuelson to determine whether any additional emails—beyond those that Clinton’s attorneys provided to the State Department and those that the FBI found through other sources—contained classified information. They further stated that they believed the culling process might have been flawed, because their other reconstruction efforts had revealed a significant number of work related emails to or from Clinton that had not been included in the State Department production. Strzok told us that the FBI investigators hoped that asking questions about the culling process and reviewing the culling laptops would help determine why this was the case and whether there was a nefarious purpose. For example, several FBI witnesses stated that they believed that asking questions about the culling process might help them determine why Abedin’s emails were underrepresented in the State IG production.

FBI witnesses told us that once Wilkinson refused to voluntarily provide her clients for interviews and the culling laptops, they believed it was appropriate and in the interest of efficiency to subpoena Mills and Samuelson before the grand jury and seek a search warrant to seize the culling laptops from Wilkinson’s office. The FBI witnesses stated that even if a judge ultimately were to quash a subpoena or decide that there was no probable cause to issue a search warrant, it was the FBI’s obligation to at least try to obtain what they believed to be critical potential sources of evidence.

The line prosecutors and Laufman told us, and contemporaneous emails and internal memoranda show, that they agreed that it would be helpful to interview Mills and Samuelson regarding the culling process and obtain the culling laptops. However, they had several concerns about using compulsory process to do so. First, they were concerned that at least certain questions regarding the culling process would seek information protected by attorney-client privilege and the attorney work product doctrine. Second, they were concerned that the culling laptops contained privileged material relating to both Clinton and Mills’s and Samuelson’s other clients. Third, they raised questions about establishing probable cause to search the culling laptops given evidence that they had been wiped of the emails relevant to the Midyear investigation. Fourth, based on conversations with Wilkinson, they believed she would file a motion to quash any search warrant or subpoena and that this would lead to protracted litigation that would delay the investigation. Finally, they stated that they were required to follow the procedures set forth in the Department policy for obtaining physical evidence and testimony from an attorney regarding the attorney’s representation of a client. They stated that, at a minimum, 28 C.F.R. § 59.4 and USAM 9-19.220 and 9-13.420 did not permit them to execute a search warrant on Wilkinson’s office under these circumstances.

The prosecutors told the OIG that the FBI did not appreciate the complexity involved with obtaining the culling testimony and laptops. Prosecutor 4, whom several witnesses told us was known for being an experienced prosecutor with significant experience handling privilege issues, explained that he was frustrated that the FBI was “willing to litigate to the death issues that [he] thought would be very close calls and could delay the investigation for two years without a strong belief that it would actually change the results” of the investigation.

C. Events Leading to Voluntary Interviews of Mills and Samuelson Regarding the Culling Process[edit]

1. Attorney Proffer on March 19, 2016[edit]

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On February 1, 2016, Toscas received from the NSD prosecutors their proposed investigative steps for Mills and Samuelson. The prosecutors proposed pursuing a grand jury subpoena to question Mills concerning her State Department tenure (where there were no attorney-client privilege issues), but seeking attorney proffers before considering grand jury subpoenas for Mills’s and Samuelson’s testimony about the culling process. They provided two reasons for this approach.

First, they indicated that, pursuant to the USAM, to obtain Criminal Division authorization for a subpoena to an attorney regarding the attorney’s representation of a client they must show that the information sought is not protected by a valid claim of privilege and that “[a]ll reasonable attempts to obtain the information from alternative sources shall have proved to be unsuccessful.” USAM 9-13.410(C). The prosecutors described how they would tailor their questions about the culling process to avoid seeking information protected by attorney client privilege.[98] However, they indicated that they could not represent that all reasonable attempts had been made to obtain the information from alternative sources without first attempting to obtain the information through an attorney proffer.

Second, they indicated that they were concerned that issuing subpoenas for testimony regarding the culling process could result in protracted litigation with an uncertain outcome. They indicated that, despite extensive legal research, the team had been unable to find clear authority indicating that a court should allow an attorney to be questioned about actions taken on behalf of a client, even if describing those actions would not implicate confidential communications between the client and attorney.

In February 2016, Wilkinson agreed to both an attorney proffer by Wilkinson regarding the culling process and a voluntary interview of Mills regarding her State Department tenure. On February 8, 2016, the prosecutors emailed Wilkinson a short list of broad topics for the attorney proffer and the proffer was scheduled for March 19, 2016. Separately, Mills’s interview regarding her State Department tenure was set for April 9, 2016.

According to Prosecutor 2’s notes of the March 19 attorney proffer, the proffer was attended by all four line prosecutors, Beth Wilkinson, and two other attorneys from Wilkinson’s firm. Mills’s and Samuelson’s attorneys told the prosecutors, consistent with a State IG Report described above, that Mills and Samuelson initiated the culling process after the State Department requested Clinton’s assistance reconstructing her work-related emails. The attorneys further stated that the State Department had told Mills that “it was HRC’s responsibility to determine” what was personal and what was work-related, because this would be “too burdensome for State.” The attorneys described the manner in which Mills and Samuelson obtained the emails from Combetta and generally how they conducted their review. The attorneys told the prosecutors that Mills asked Combetta to remove the .pst files from Mills’s and Samuelson’s laptops after Clinton’s work-related emails were produced to the State Department; however, the attorneys stated that they “never heard of BleachBit.” According to the notes, the attorneys confirmed that Clinton had changed her email retention policy to 60 days in early 2015, but would not “say reason for changing policy – either [privilege] or HRC’s question to answer.”

2. Midyear Team Meeting on March 28, 2016[edit]

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After the March 19 attorney proffer, the FBI team took the position that it was still essential to interview Mills and Samuelson regarding the culling process. On March 28, 2016, the Midyear team held a meeting to decide the best way forward. McCabe and Toscas were the highest level FBI and Department officials, respectively, at the meeting. Witnesses told the OIG and contemporaneous emails show that this meeting was contentious and that the FBI insisted that the team either interview Mills regarding the culling process during the scheduled interview on April 9, 2016, or inform Wilkinson before April 9 of its intent to do so at a future date. The FBI witnesses stated that they believed if they did not do this, Mills would only give the FBI one “bite at the apple”—that she would assert publicly that she cooperated with the FBI without an incentive to return for another interview.

Based on a review of emails and text message exchanges, we determined that Page was one of the more outspoken FBI personnel at the March 28 meeting in favor of interviewing Mills and Samuelson about the culling process and countering the Department’s privilege concerns. In a March 29, 2016 email exchange, Strzok asked Prosecutor 4, “[H]ow are you doing? You seemed none too pleased at times on Monday [March 28].” Prosecutor 4 replied with an email about Page:

I am fine. I don’t like “former prosecutors” [Page] giving their opinions from the cheap seats. I have been known throughout my career by the agents I work with as the most aggressive prosecutor that they have ever seen. During my last five jury trials I have forced no fewer than a dozen lawyers to testify against their former clients. It is easy for FBI attorneys to second guess our opinions when they haven’t ever had to actually stand before a judge and defend their opinion.[99]

In response, Strzok defended Page and wrote, “Best I can tell is I think everyone in the room’s motives were (are) pure.” Prosecutor 4 then wrote:

I am stuck in the middle of pushing NSD along and trying to get FBI to be realistic. The investigation is degenerating into everyone trying to figure out what the congressional testimony looks like in the future. My job is to put criminals in jail, period.

Following the March 28 meeting, Strzok drafted an email to send to the prosecutors to memorialize the FBI’s understanding of the decision made at the meeting regarding Mills and Samuelson. The email was approved by FBI OGC, Steinbach, and McCabe. Strzok sent the email on March 29, 2016, to the four line prosecutors and copied Toscas and several FBI employees. In the email, Strzok wrote that the prosecutors had agreed to “inform Wilkinson of DOJ’s and FBI’s intention to interview Mills and Samuelson about the sort process.” In addition, Strzok wrote that the prosecutors had agreed to contact the Department’s Professional Responsibility Advisory Office (PRAO) regarding whether they could seek a waiver of attorney-client privilege from Clinton through Kendall.

According to emails we reviewed, the line prosecutors and Laufman agreed with reaching out to PRAO for advice on seeking a waiver from Kendall and did so on March 31, 2016. In addition, in early April, 2016, they sought guidance from the Criminal Division as to whether seeking the waiver was permissible under Department policy. On April 12, 2016, three days after the Mills interview, a Criminal Division official told NSD that he was “not aware of any DOJ policy that would prevent [CES] from seeking the waiver.”

As far as Strzok’s assertion that the prosecutors had agreed to notify Wilkinson that the FBI intended to interview her clients regarding the culling process, Prosecutors 1 and 2 indicated in an email exchange on March 30, 2016, that this was not correct. According to the March 30 email exchange, the prosecutors were concerned that certain issues had not yet been resolved, including obtaining necessary approvals from the Criminal Division. Also on March 30, 2016, Prosecutor 1 wrote to Prosecutor 2 and Laufman that he did not want to take a position with Wilkinson that they would be unable to “stand behind” and thus be accused of “dealing with her in bad faith.” Prosecutor 1 told us, “It’s not smart to make demands when you don’t understand what kind of leverage you have.” Thus, Prosecutor 2 told us, and documents showed, that before the April 9 interview the prosecutors told Wilkinson that the FBI “had not foreclosed” the possibility of interviewing her clients regarding the culling process, but not that the FBI insisted on doing so.

3. FBI Call to Wilkinson on April 8 About Mills and Samuelson Interviews Without Informing Prosecutors[edit]

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On April 8, 2016, the day before the Mills interview, FBI GC Baker contacted Wilkinson, without notifying the line prosecutors or higher Department officials in advance, to convince her to consent to the FBI’s demands for the culling testimony and culling laptops.[100] The prosecutors learned of Baker’s call to Wilkinson the following day, when Wilkinson told the prosecutors at the Mills interview she had been contacted by a “senior FBI official” regarding interviews of her clients.

Comey told us that he approved Baker’s call to Wilkinson and that he “must have known [Baker] was not going to tell DOJ.” In addition, Laufman’s notes of a meeting following the Mills interview indicate that McCabe was aware of the call beforehand. Baker told us that he reached out to Wilkinson because he believed the line prosecutors had not been sufficiently aggressive. Laufman stated that he took “great offense” to Baker’s assertion that the prosecutors had not been aggressive with Wilkinson, “because we were accomplishing and had accomplished great things through creative troubleshooting of extraordinarily sensitive issues with counsel to obtain the media and devices whose review was the foundation of this investigation.” Prosecutors 1 and 2 told us that Baker’s efforts were not effective, because Wilkinson continued to refuse to provide consent.

4. FBI Surprise Statement at Outset of April 9 Mills Interview[edit]

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On April 9, 2016, Mills appeared with Wilkinson for a voluntary interview concerning Mills’s tenure at State. According to a FBI memorandum (“Mills Interview Memorandum”), shortly before the interview Strzok advised the prosecutors and Laufman that the agent conducting the interview would be making a statement at the start of the interview “concerning the scope of [the] interview, the FBI’s view of the importance of the email sorting process, and the expectation of a follow-up interview once legal issues had been resolved.” Witnesses referred to this statement as “the preamble.”

Comey told the OIG that he approved of the preamble but did not suggest it, and McCabe stated that he “authorized” the preamble. McCabe told us that he directed the FBI team not to discuss the preamble with the prosecutors before the day of the interview because he was “concerned that if we raised another issue with DOJ, we would spend another two weeks arguing over the drafting of the preamble to the interview, which I just was not prepared to do.”

The prosecutors told us that they were surprised and upset because the preamble was inconsistent with their prior representations to Wilkinson and they believed it was strategically ill-advised. The Mills Interview Memorandum states that the prosecutors objected to the preamble but that they were told that “the FBI’s position was not subject to further discussion.”

According to the Mills Interview Memorandum, the interviewing agents delivered the preamble at the outset of the interview as planned. Witnesses told us that Wilkinson was visibly angered by the preamble and that she and Mills stepped outside the interview room after the agent delivered it. The prosecutors stated that they convinced Wilkinson and Mills to return for the remainder of the scheduled interview concerning Mills’s tenure. However, according to Prosecutor 1, Mills was “on edge the whole time.”[101]

According to notes of the interview, the prosecutors told Wilkinson that they were “sandbagged” by the FBI and that they did not know in advance about the preamble. Additionally, according to the notes, Wilkinson informed the prosecutors of the call the previous day from a “senior FBI official.”

Prosecutors and FBI agents told us that the events surrounding the April 9 Mills interview, including both the preamble and Baker phone call that were planned without Department coordination, caused significant strife and mistrust between the line prosecutors and the FBI. AAG Carlin told us that the prosecution team asked him to call McCabe and “deliver a message that this is just not an acceptable way to run an investigation.” Carlin told us that he delivered this message to McCabe and also briefed Lynch and Yates on the issues.

Witnesses told us that the strife between the prosecutors and the FBI team culminated in a contentious meeting chaired by McCabe a few days later. On the Department side, this meeting was attended by the line prosecutors, Laufman, and Toscas. Prosecutor 2 told us that during this meeting the prosecutors explained that they were trying to be “careful” in their handling of complicated issues, and that McCabe responded that they should “be careful faster.” Laufman stated that McCabe’s comment “undervalued what we had been able to accomplish to date investigatively through negotiating consent agreements.” According to Laufman’s notes, McCabe agreed that Baker’s unilateral contacts with Wilkinson should not have happened, and Baker agreed not to have further contact with Wilkinson. With respect to the preamble, however, the prosecutors told us that McCabe stated that he would “do it again.”

5. Mills and Samuelson Agree to Voluntary Interviews Regarding the Culling Process[edit]

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In May 2016, Wilkinson agreed to allow Mills and Samuelson to be voluntarily interviewed regarding the culling process, provided the questions asked during the interviews did not seek information that was considered “opinion work product.”[102] The prosecutors told us that this meant that the agents could ask questions regarding the “mechanics” of the culling process, including how Mills and Samuelson obtained and reviewed the emails for production to the State Department. However, they told us that they could not put a particular email in front of Mills or Samuelson and ask why the call was made to consider it work-related or personal. The prosecutors explained that, based upon their research and Prosecutor 4’s experience with privilege, they believed they would not likely be successful convincing a judge that such questions were permissible.

Samuelson and Mills were interviewed regarding the culling process on May 24, 2016, and May 28, 2016, respectively, which was before the Midyear team obtained access to the culling laptops. Witnesses told us and contemporaneous documents show that the agents prepared outlines in advance of the interviews and the prosecutors reviewed them to ensure they were consistent with the agreed upon parameters. For example, based on witness testimony and the outline we reviewed, the prosecutors eliminated a question that asked for the “exact” search terms that were used during the culling process. Prosecutor 2 told us that during the interviews “there were a couple of assertions of privilege,” but overall the interviews went well.

One of the case agents who led Mills’s and Samuelson’s interviews told us that he believed the interviews regarding the culling process were not as productive as he would have liked, because Mills and Samuelson were “so well-rehearsed.” He attributed this to a number of factors, including that they were interviewed late in the investigation, Wilkinson was aware of the scope of the interview in advance from discussions with the prosecutors, and Mills was a “highly-trained professional” with an “excellent” attorney. He further stated that the limited scope of the questioning “took away some of our tools that we would have had going into that interview.” Other FBI witnesses, however, told us that while there was some debate over the scope of the interviews beforehand, the team was ultimately satisfied with the information that was obtained. Prosecutor 2 told us that “nobody ever expressed a concern following the interviews that there was something that we needed that we didn’t get.”

D. Steps Taken to Obtain and Search the Culling Laptops[edit]

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As noted above, the investigators wanted access to the laptops primarily because such access promised the possibility of reconstructing the emails that had been deleted in the culling process. However, because Mills and Samuelson were both attorneys, the issue of obtaining access to the laptops implicated questions regarding how to protect any privileged information residing on them.

1. Internal Strategizing and Call with Clinton’s Counsel[edit]

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Documents we reviewed reflected that the prosecutors spent significant time and effort conducting research, analyzing relevant legal, policy, and ethical issues, and strategizing how to best handle the issue of the culling laptops. Contemporaneous emails and text message exchanges we reviewed show that Strzok and Page challenged the prosecutors’ laptop privilege concerns and were two of the most outspoken proponents of using compulsory process to obtain the culling laptops. Page explained to the OIG why she did not agree that the emails on the laptops were privileged:

These are materials, these are the State Department’s records. And if the Secretary in the first place had actually followed normal protocol, every single one of these emails, whether personal or work-related would have been in the State Department’s possession, and there would be no attorney-client discussions happening with respect to the sort of this material.

In addition, Page stated that any other privileged material on the laptops could be handled by the Midyear team’s already established filter team.

On May 18, 2016, Toscas, McCabe, Page, and Prosecutor 1 had a telephone conference with DAAG Paul O’Brien of the Department’s Criminal Division regarding the likelihood of Department approval for search warrants or subpoenas to obtain the culling laptops. O’Brien told the OIG, and Page’s and Toscas’s contemporaneous notes show, that during this call McCabe advocated in favor of a search warrant, but O’Brien stated that a search warrant was “a nonstarter.” O’Brien stated that he explained to McCabe that a search warrant for Beth Wilkinson’s office was inconsistent with the USAM and 28 C.F.R. § 59.1. He further stated that he told McCabe that a judge was likely to question why the government was seeking a search warrant to seize the laptops from Wilkinson’s office, when a subpoena would suffice to obtain them (and a search warrant could be sought later to review their contents).[103] O’Brien told the OIG that even with a filter team, “any time you issue a search warrant for an attorney’s office, you run the potential and the possibility that you can be inadvertently coming across protected client, sensitive attorney-client information.” He further told us that he believed a subpoena was more appropriate, because it would be less intrusive and “there was no thought that Beth Wilkinson was going to destroy the evidence.” According to Page’s notes, O’Brien stated on the call that he had never seen the Department seek a search warrant in similar circumstances.[104]

On May 23, 2016, Toscas, McCabe, Page, and Prosecutor 1 spoke with Kendall based on the approval previously received from the Criminal Division. During the call, they described to Kendall the difficulty the team was having obtaining the culling laptops and told him that they would not interview Clinton before obtaining the laptops. Prosecutor 1 stated that the team assumed Kendall and Wilkinson were speaking with one another and that a conversation with Kendall might ultimately lead to Wilkinson voluntarily providing the laptops.

2. Approval to Subpoena the Culling Laptops[edit]

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On May 31, 2016, after hearing nothing further from Kendall, the Midyear team submitted applications for the approval of subpoenas for the culling laptops to the Criminal Division through O’Brien. The applications were signed by EDVA U.S. Attorney Boente. The team also prepared and submitted to O’Brien search warrant applications for reviewing the content of the culling laptops, to submit to a court once the laptops were obtained.

In a letter to Toscas dated June 3, 2016, O’Brien authorized the issuance of the proposed subpoenas. He further wrote that the team “had satisfied the requirement, pursuant to USAM 9-13.420(C), to consult the Criminal Division before applying for a warrant to search the laptop computers.”[105] Toscas told us, and contemporaneous emails show, that he proposed applying to the court for an “anticipatory search warrant.” An anticipatory search warrant is one that is approved by the court for use once a triggering event occurs, in this case the FBI securing the laptops by subpoena. Toscas stated that he was in favor of the anticipatory search warrant because he thought it might help persuade a judge to side with the government when litigating a possible later motion to quash the subpoena. However, he said that Boente and the prosecutors in EDVA did not agree because anticipatory search warrants were not typically used in that fashion in their jurisdiction.

On June 4, 2016, Prosecutor 1 wrote to Wilkinson:

I had wanted to speak to you personally today to discuss next steps. Since we were unable to connect, in the interest of time, I am advising you that DOJ has authorized subpoenas for both laptops, which we intend to serve by COB Monday. It is important that we speak on the phone as soon as possible tomorrow.

The prosecutors had a series of phone calls with Wilkinson over the next two days, ultimately resulting in four letters dated June 10, 2016: two from the Department (one for Mills and one for Samuelson) granting Wilkinson’s clients “act of production” immunity in exchange for voluntarily providing the culling laptops and two from Wilkinson (one for Mills and one for Samuelson) granting the Department consent to review the culling laptops, with certain restrictions. Witnesses told us that McCabe and Toscas were the highest level FBI and Department officials, respectively, to approve these agreements.

3. Act of Production Immunity for Mills and Samuelson[edit]

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The Department entered into “act of production” immunity agreements with both Mills and Samuelson on June 10, 2016. The immunity agreements provided that the government would “not...use any information directly obtained from” the culling laptops in any prosecution of either witness “for the mishandling of classified information and/or the removal or destruction of records,” pursuant to “18 U.S.C. § 793(e) and/or (f); 18 U.S.C. § 1924; and/or 18 U.S.C. § 2071.” Therefore, Prosecutors 1 and 2 told us it was their view that the government would have been free to use in any future prosecution of Mills and Samuelson leads developed as a result of the FBI’s review of the information on the culling laptops, as well as information provided by Mills and Samuelson during their voluntary interviews.

FBI and Department witnesses told us that no one within the team disagreed with the decision to enter into these immunity agreement with Mills and Samuelson in exchange for obtaining the culling laptops. We also were told by FBI and Department witnesses that, based on the evidence they had gathered at that point in the investigation, they did not expect to uncover anything on the culling laptops that would be incriminating to Mills or Samuelson. The prosecutors told us that that Mills and Samuelson had included in the State Department production numerous emails containing classified information, including emails containing SAP information which was the most sensitive material identified during the Midyear investigation. They also had included the emails with the (C) portion markings, which were the only emails containing classification markings that were discovered during the investigation. According to Prosecutor 2, “[T]here was nothing that was different in the type of emails that were produced and the types of emails that were found elsewhere to indicate to us that there was any sort of motive” or “nefarious intent.”

In addition, Prosecutor 1 stated that, even after the prosecutors had approval to obtain the laptops by subpoena, they believed that obtaining them through consent was preferable, because they expected a motion to quash and time lost through subsequent litigation. Similarly, FBI agents and supervisors told us that they did not object to the immunity agreements because the protection offered by them was limited and allowed the team to obtain needed sources of potential evidence without inhibiting the investigation.

Comey explained in a speech at an FBI conference for Special Agents in Charge in October 2016 that there were “huge concerns” about attorney-client privilege and attorney work product on the culling laptops that warranted entering into the immunity agreements with Mills and Samuelson in order to secure them. He stated:

You can also imagine given that you’re experienced people the challenge in trying to get a lawyer to give you their laptop that you use for all of their legal work. Huge concerns there about attorney-client privilege, attorney work product. We had a few options there. One was to serve them with a Grand Jury subpoena and then litigate the work product protection and the attorney-client protections for probably the next five years, or reach some agreement with them to voluntarily produce it and give them some sort of assurance as to how the information will be used on that laptop.... Department of Justice reached an agreement at the request of the lawyer for these two lawyers that for act of production of immunity is the way I understand it in my career that is you give this laptop, we will not use anything on the laptop against you personally in a prosecution for mishandling of classified information or anything else related to classified information. Reasonable to ask for a lawyer to ask to give us the laptops and enabled us to short circuit the months and months of litigation that would've come otherwise. I was actually surprised they agree[d] to give us the laptops.

4. Limitations in the Consents to Search the Culling Laptops[edit]

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In addition to the immunity agreements, which the Department entered into to obtain possession of the culling laptops, the Department entered into consent agreements with both Mills and Samuelson in order to enable the FBI to search the laptops with certain limitations. The consent agreements provided that the “sole purposes of the search” were:

“[T]o search for any .pst files, or .ost files, or compressed files containing .pst or .ost files, that were created by Platte River Networks ("PRN") after June 1, 2014 and before February 1, 2015, in response to requests for former Secretary Clinton’s email from her tenure as Secretary of State;”

“[T]o attempt to identify any emails from, or remnants of, the PRN Files that could potentially be present on the Device;”

“[T]o identify any emails resident on the Device sent to or received from” Hillary Clinton’s known email accounts, “for the period of January 21, 2009 through February 1, 2013;” and

“[T]o conduct a forensic analysis of the device to determine whether the Device was subject to intrusions or otherwise compromised.”

The consent agreements described in detail a two-phase process the FBI would use to search the devices for the listed purposes. In the first phase, OTD would search the allocated space of the devices for the .pst files created by Combetta. If the intact .pst files were found, OTD would not move on to the second phase. If not, OTD would go on to the second phase, which would entail searching both the allocated and unallocated space for “any emails, fragments of emails, files, or fragments of files” that could “clearly be identified as having been sent to or received by” one of Clinton’s email accounts during her tenure.[106]

Witnesses told us, and contemporaneous text and instant message exchanges among FBI employees show, that negotiating the consent agreements was a difficult process and, at least at the outset, Strzok and others at the FBI believed that the prosecutors were giving Wilkinson too much control.[107] However, when we interviewed Strzok, he told us that he no longer could remember what his specific concerns were at the time and, in the end, “we got what we needed to credibly come to the resolution that we did in the investigation.” He further stated that some of the sentiments he expressed over text message to Page about the prosecutors’ handling of the issue reflected only the heat of the moment and his opinions at the time.

Agent 1 told us that the phases outlined in the consent agreements were overly complicated and that he did not agree that the FBI should not have been able to review the unallocated space if the analysts found the .pst files in phase 1. Contemporaneous instant messages show that the Lead Analyst, FBI Attorney 1, and FBI Attorney 2 shared this concern. However, this concern became moot when OTD was unable to find the .pst files in phase 1 and ultimately went on to phase 2 and searched the unallocated space.

FBI Attorney 1 exchanged instant messages with the Lead Analyst and FBI Attorney 2 in which she expressed frustration during the drafting of the consent agreements. For example, on June 8, 2016, she wrote to the Lead Analyst, “The fact that Pete [Strzok] met with [Prosecutor 1] and hashed all this out and capitulated really pisses me off.” Also on June 8, 2016, she wrote to FBI Attorney 2, “OMG. I’m so defeated. Why do I bother?” FBI Attorney 1 told us, in an interview before viewing these instant messages, that she had concerns with the filter process set forth in the consent agreements, which limited the filter team to “two attorneys, one FBI agent, and one FBI analyst, none of whom are members of the investigative team.” The agreements stated that OTD would provide the emails from its search to the filter team, which would then “review those results to identify and remove: (1) any privileged material; (2) any material that, upon further review, is determined not to be an e-mail sent to, or received by, the Relevant Accounts during the Relevant Period; and (3) any material that, upon further review, is determined not to be a work-related e-mail sent to, or received by,” Clinton’s relevant email account. FBI Attorney 1 stated that she opposed this language because it differed from the filter process that had been used for other devices, wherein the filter team, with the assistance of OTD, relied more heavily on search terms to eliminate material that was beyond the scope of review or privileged. She stated that her concern was that the filter process would be too time-consuming. However, she told us that in the end the filter team was able to “get it done in a timely manner” and that resolved her concerns.

In a follow up interview after viewing the instant messages, FBI Attorney 1 told us that the June 8, 2016 instant messages were exchanged during a lengthy telephone conference with Prosecutors 1 and 2, Strzok, the Lead Analyst, FBI Attorney 2, and OTD technicians. She stated that the frustrations expressed in her instant messages related to her concerns about the filter process discussed during her first interview. She further stated that her complaints about Strzok had to do with him not including her in certain conversations with the prosecutors. However, she told us that she did not believe that Strzok was failing to represent the FBI’s interests in those conversations. She also reiterated that she was ultimately satisfied with the terms of the consent agreements. On June 28, 2016, FBI Attorney 1 sent an instant message to the lead filter team attorney offering to provide the filter team with additional resources to review the culling laptops. The filter attorney responded, “Just got data from OTD and we seem to be in a good place with our current filter resources.”

Agent 3 told us he was concerned by the requirement in Phase 2 that the emails be “clearly identifiable” as having been sent to or from one of Clinton’s email accounts during her tenure, because sometimes the metadata in the unallocated space was unclear. However, he told us that he did not express this concern to the prosecutors at the time the consent agreements were being negotiated and that he was not sure that he had sufficient “technical basis” to do so. We asked Prosecutors 1 and 2 about this concern and they stated that the language was developed with input from the investigative team and OTD to ensure that they were able to access what they needed to access in order to adequately review the laptops. Prosecutor 2 stated, “We came to the conclusion that the procedures that were in this letter would allow us to look at the material that we thought was critical to look at, and yet protect the attorney-client privilege in a way we thought we were required to do.”

Other FBI employees told us that they would have preferred to be able to search for emails sent or received just before or after Clinton’s tenure, in the hope of identifying Clinton’s intent in setting up the email server or the intent behind the later deletions of emails. The Lead Analyst told us that he would have liked to have been able to search Mills’s and Samuelson’s own emails on the culling laptops, to determine what instructions were provided to Samuelson regarding how to conduct the culling process and to see if there was any evidence regarding why later deletions occurred. He stated that this information would have helped the FBI determine whether Mills and Samuelson “willfully” did something “illegal or inappropriate” during the sort process or whether there were “serious flaws” in the process. However, he stated he had “no evidence to suggest” that Clinton or her attorneys had a criminal purpose in the way they conducted the sort process or in the deletion of emails. He further stated, “We didn’t see anything anywhere else to suggest that there is these like willful criminal arrangements with attorneys. Like, there’s nothing to suggest that that’s the case. It’s just, you know, it’s the curious part of the investigator in all of us that thinks about that.”

The prosecutors and some of the agents told us that the consent agreements were date restricted, because the primary purpose of reviewing the culling laptops was to find the .pst files of Clinton’s emails that were transferred by Combetta, in order to reconstruct, to the extent possible, the deleted emails. They further told us that the attorneys’ own communications following Clinton’s tenure, with either Clinton or other clients, would mostly consist of items protected by privilege, and that they had already obtained records of communications between Clinton’s attorneys and PRN staff from PRN.[108] Similarly, the Lead Analyst acknowledged that he might not have been able to view such emails even with legal process due to privilege and probable cause concerns. He stated, “[T]his was not a snap decision. This decision was made, and this was the best and most effective way to...obtain this content. And there’s going to be trade-offs involved in that.”

Most of the Department and FBI witnesses we interviewed told us that they were ultimately satisfied with the consent agreements to search the Mills and Samuelson laptops and did not feel that the consent agreements unduly limited their investigation. In addition, some witnesses told us that in the end they believed that the FBI obtained more through the consent agreements than it would have obtained through a subpoena or search warrant. For example, Prosecutor 4 stated that that he told the FBI “repeatedly in no uncertain terms that I thought that the probability of success on a grand jury subpoena for the laptops [because of a motion to quash] was, that they would get some things, but the vast majority of what they wanted, they would not get.” Similarly, the Lead Analyst told us that he eventually learned that sometimes consent allows the FBI to obtain “a broader swath of material.”

5. Review of the Laptops[edit]

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The FBI and Department witnesses told us that they ultimately did not identify evidence on the Mills or Samuelson laptops that changed the outcome of the investigation. According to documents we reviewed, the team recovered 9,000 emails on Mills’s laptop, which were mostly duplicates of the emails included within the 30,490 produced to the State Department, and they found no new classified emails. The team was able to recover “approximately 112 files” from Samuelson’s laptop, but the analysts did not believe these files contained “work-related material.”

E. Involvement of Senior Department and FBI Officials[edit]

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Witnesses told us, and documents show, that the issues surrounding the culling laptops and testimony was one of the few issues in the Midyear investigation that was briefed to high-level Department officials. The highest level Department official involved in substantive decisionmaking regarding the culling testimony and laptops, including the decision to grant immunity, was Toscas. Toscas told us that while he agreed with the prosecutors that there were complicated privilege concerns, he also agreed with the FBI that the culling laptops had to be reviewed and that the prosecutors had more leverage than they realized in negotiating with Wilkinson.

Toscas told the OIG that he briefed Lynch on the negotiations with Wilkinson because of the potential for litigation, and because Wilkinson had stated that she planned to contact Department leadership. He stated that Lynch responded that she knew Wilkinson and was familiar with her aggressive style. He stated that Lynch told him, “[P]ursue whatever you want to do, she’s going to be that way. That is her reputation.... Tell the team to get what they need done.” Based on that guidance, Toscas told us that he conveyed to the line prosecutors to “be civil” but “be just as aggressive back” to Wilkinson.

Lynch told us that she did not recall Toscas bringing to her attention the prosecutors’ difficulties negotiating with Wilkinson or conflict with the FBI. However, she stated that in the spring of 2016 Toscas briefed her and Yates that “additional laptops were found” and that “because the people who owned the laptops were lawyers, in addition to having had a connection with Secretary Clinton’s team, there were issues of privilege.” She stated that the only reason this issue was brought to her attention was because it “raised the possibility of litigation.” She further told us that the team was able to “resolve” the issues without litigation, but she did not “know the specifics.” In addition, Lynch stated that she and Wilkinson had been “prosecutors together in Brooklyn” and that, based on that experience, she described Wilkinson’s “aggressive” style to Toscas. Yates and Carlin similarly told us that they were briefed on the Mills and Samuelson issues, but could not remember many details. Carlin stated that at one point he reached out to McCabe to discuss the issues and that he “fully agreed” with the recommendation of the prosecutors that “trying to do an adversarial search warrant on a lawyer’s office” would result in the case being “tied up in litigation for a period of time.”

On the FBI side, Comey, McCabe, and Baker were all substantively involved with the debate with the prosecutors over whether and how to obtain the culling testimony and laptops. McCabe stated, “I was very clear about this with the Director, that we could not conclude this investigation in a credible way until we had done everything humanly possible to look at those laptops, fully realizing that it likely, there may not be anything on them.” He stated he also made this point clear to “Carlin, Toscas, and others.” Comey told the OIG that he agreed with the FBI team that the culling laptops were “critically important.” He stated:

I believe we could not credibly complete this investigation without getting access to those laptops, and that I was not going to agree to complete this investigation until we had access to those laptops because...we just couldn’t credibly say we had done all we could do, if we didn’t do everything possible to see, is there a forensic trace of emails that were deleted and can we tell whether there was obstructive intent.

Comey, Baker, and other FBI witnesses told us that they believed the prosecutors were overly cautious about obtaining the laptops, because they were intimidated by high-powered defense counsel like Wilkinson. Referencing the prosecutors’ concerns about obtaining the laptops, Comey stated:

And I remember a general concern that...there was a sense that [the prosecutors] didn’t want to do things that were too overt or too aggressive and I don’t know whether that extended to the use of a grand jury or not....

But there was a sense that there was a general lack of aggressiveness and willingness to take steps that would roil the waters. In my judgment honestly, was that that wasn’t politically motivated that’s just the normal cowardice...this is the normal fear and conservatism and the higher profile the matter, the more afraid sometimes the prosecutors are.

And so I didn’t attribute that to a political motive....

Lynch and Yates told us that they were unaware of any complaints that the prosecutors were not sufficiently aggressive, or that they were believed by the FBI to be intimidated by high-powered defense counsel. Lynch stated, “I don’t remember that being conveyed to me. You know, agents always think that prosecutors aren’t aggressive enough. But they don’t know the discussions and decisions that go behind the decisions as to...what steps you’re going to take[.]” She said that she would have viewed any such complaints as part of the normal dialogue that often occurs between prosecutors and agents unless someone had brought the complaints to her as a “catalogue” of specific decisions that were problematic.

Comey told us that he addressed the laptop issue with Yates, because he was concerned that higher level Department officials needed to be involved. He stated:

I think I had the sense that there’s nobody home. That the grownups aren’t home at Justice because they’ve, they’re stepping away from this. And so to be fair to myself, I think the laying over this was this sense that, in a way Carlin and above has abdicated responsibility for this.

However, despite his testimony that the prosecutors were not aggressive enough with Wilkinson and that higher level Department officials were not engaged, Comey told us that he did not discuss his concerns with the Department, ask the Department to assign new prosecutors, or seek the appointment of a special counsel.[109] As discussed in Section II.A.2 of Chapter Six of this report, Comey told the OIG that he told Yates in April 2016 that the closer they got to the political conventions, the more likely he would be to insist that a special counsel be appointed. Comey said that his comment to Yates was motivated in part by his frustration that it was taking the Midyear prosecutors too long to obtain the Mills and Samuelson laptops. However, as explained in Section VII of Chapter Six, we did not find evidence that Comey ever seriously considered seeking the appointment of a special counsel. His reasons for not seeking the appointment of a special counsel or even seeking the assignment of new prosecutors were that he had the “A-team” working on the investigation on the FBI side and it was “too late in the game” at that point. In addition, Comey stated that he believed Yates “must have done something” in response to his discussion with her, “because the team perceived an adrenaline injection into the DOJ’s side that we had not seen before” and secured the culling testimony and laptops. Comey indicated to the OIG that he was satisfied with this result, stating, “We got access, we negotiated access to the laptops and interviews of the lawyers, so the team got what the investigators thought they needed.”

F. Motivations behind the Culling Testimony and Laptop Dispute[edit]

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Several FBI officials told us that they perceived that the prosecutors were reluctant to obtain the culling laptops and testimony, but they did not believe that such reluctance was motivated by bias or political considerations. Comey stated, “There was serious concern about the reluctance to pursue the laptops...I had no reason to believe that was driven by an improper consideration.”

Based on the evidence we reviewed, Comey and others at the FBI were primarily motivated in the debate over obtaining the culling testimony and laptops by a desire to credibly complete the investigation and to do so sufficiently in advance of the election to not be perceived as political. Indeed, witnesses told us, and contemporaneous notes show, that by the time the Midyear team was debating how to handle Mills and Samuelson, the team generally agreed that the investigation was headed toward a declination and did not believe that it was likely that anything found on the culling laptops would change that outcome. For example, according to Laufman’s notes from May 11, 2016, Strzok told Laufman that although he did not believe that finding something on the culling laptops that would change the outcome of the investigation was likely, it was nonetheless important to secure them from an “investigative standpoint.”

In addition, the notes of both Department and FBI employees show that beginning as early as May 2016, Comey conveyed to his employees a sense of urgency to complete the Midyear investigation. For example, Page wrote in her notes from a meeting on May 9, 2016, “Need to act with incredible urgency.” In the same notes, she included a reminder to herself to “call John [Carlin]” and ask, “do your people know D’s urgency?” The next day, an analyst wrote in her notes:

[The Lead Analyst] and Pete

Meeting with Director

Sense of urgency

Similarly, Laufman’s May 11, 2016 notes state:

Director Comey...

- Extraordinary sense of urgency...
- As get closer to election would be more difficult to close
- Risk of perception that won’t be credible, be seen as partisan...

FBI desires to wrap up in weeks, not months.

Moreover, as described in Chapter Six, Comey shared with Baker, McCabe, Rybicki, Priestap, Strzok, the Lead Analyst, and Page his first draft of a public statement recommending that no charges be pressed against Clinton in early May 2016, before the Midyear team interviewed Mills and Samuelson or obtained the culling laptops.

As described above, Strzok and Page were two of the strongest advocates of obtaining the culling testimony and laptops by compulsory process. On May 4, 2016, a few weeks before Mills and Samuelson were voluntarily interviewed regarding the culling process and a little over a month before the FBI obtained the culling laptops, Strzok and Page exchanged the following text messages. The sender of each message is identified after the timestamp.

8:40 p.m., Page: “And holy shit Cruz just dropped out of the race. It’s going to be a Clinton Trump race. Unbelievable.”

8:41 p.m., Strzok: “What?!?!??”
8:41 p.m., Page: “You heard that right my friend.”
8:41 p.m., Strzok: “I saw trump won, figured it would be a bit.”
8:41 p.m., Strzok: “Now the pressure really starts to finish MYE…”

8:42 p.m., Page: “It sure does. We need to talk about follow up call tomorrow. We still never have.”

The same day, at 8:48 p.m., Strzok sent a similar text message to the Lead Analyst. However, the Lead Analyst responded, “Did he? We need to finish it well and promptly, but it’s more important that we do it well. A wise man once said that.” The Lead Analyst told us that the “wise man” referenced in his text message was Comey.

Both Strzok and Page told us that the May 4, 2016 text message exchange was not an example of them allowing their political viewpoints to impact their work on the Midyear investigation. Rather, they told us that Comey had expressed a desire complete the investigation as far in advance of the elections as possible to avoid impacting the political process, and the fact that the presidential race was down to two candidates was a milestone that enhanced that sense of urgency. They both told us that their desire to move quickly to finish Midyear was not impacted by Donald Trump, in particular, securing the nomination over the other Republican candidates.

IX. Interview of Former Secretary Clinton[edit]

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The interview of Hillary Clinton took place on Saturday, July 2, 2016. Comey provided a few reasons for conducting the interview on a Saturday, including to complete the interview as soon as possible after the team finished all other investigative steps, to accommodate Clinton’s schedule, and to “keep very low visibility.” Comey told us that he received a briefing before the interview regarding general parameters, including when the interview would take place and who would be conducting it. However, he stated that he was not involved in formulating the questions for the interview.

We reviewed several issues related to the Clinton interview, including: the decision to conduct her interview last; a debate over the number of FBI agents and Department employees who would attend her interview and whether there were any efforts to adjust that number for political reasons; the conduct of the interview; the decision to allow Mills and Samuelson to attend the interview as Clinton’s attorneys even though they were also witnesses in the investigation; and the decision to conduct a voluntary interview rather than subpoena Clinton before the grand jury.

A. Decision to Conduct Clinton’s Interview Last[edit]

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Witnesses told us that interviewing Clinton at the end of the investigation was logical. Prosecutor 3 told us that generally if investigators want to determine whether someone “at the top” is culpable, they first want to see what “lower level people have to say.” Prosecutor 3 told us that none of the prosecutors or agents disagreed with the decision to interview Clinton last.

Witnesses told us that in the Midyear case in particular it made sense to start at the bottom, because lower level people generally originated the emails containing classified information on unclassified systems and sent them to Clinton’s closer aides who, in turn, forwarded them to Clinton. Prosecutor 1 explained:

[T]he natural thing to do was work your way up the chain. And I say chain, but I also mean email chain.... And just get to the, get to the end. The Secretary’s email system was obviously the sort of foundation of all of this and why it became an issue. So we needed to understand the thinking in, in setting that up. So we naturally wanted to do her last. Also, doing interviews in that order in my experience allows you not to have to come back in serial fashion to the higher-level people who it’s harder to get time with them.

Toscas stated that the team wanted to ask the lower level employees who originated the emails that turned out to be classified why they wrote the emails on unclassified systems, before asking the same questions of Clinton’s aides and Clinton herself. Comey told us that one of the strategies behind interviewing Clinton last was that the interviewing agents would know enough information from other witnesses that they could test Clinton’s credibility by asking her questions to which they already knew the answers.

B. Number of People Attending (“Loaded for Bear” Text Message)[edit]

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Witnesses told us that there were disagreements within the Midyear team regarding who should attend the interviews of certain key players in the investigation. They stated that Laufman insisted on attending certain interviews, including Clinton’s interview, although he normally did not attend interviews. The FBI took the position that if Laufman would be at an interview, Strzok, who was roughly his counterpart at the FBI, should also be at the same interview.

Strzok and Page told us, and contemporaneous emails and notes show, that they and other members of the Midyear team, including the line prosecutors, were concerned about the number of people attending Clinton’s interview and Laufman’s insistence on attending. These discussions started well before Clinton’s July 2 interview.[110] On February 24, 2016, Strzok emailed Priestap that Laufman had called him earlier stating that he “felt strongly about DoJ bringing four attorneys ([Laufman] + 3), and that he was going to raise it up his chain.” Strzok further wrote that he told Laufman that raising the issue up the chain would be “necessary because the DD had indicated the group should be 2-2,” meaning two agents and two prosecutors. Strzok forwarded this email to Page and another employee, who was also an advisor to McCabe, two minutes later. Strzok told us, and the email chain that followed shows, that Strzok agreed with McCabe that two agents and two prosecutors would be ideal, but he was amenable to three agents and three prosecutors as a compromise. However, both McCabe and Strzok were opposed to allowing four prosecutors to attend the interview.

Later that evening, Strzok and Page exchanged several text messages about the dilemma over how many people should attend Clinton’s interview. Based on a review of this exchange, Strzok was concerned that if only two agents and two prosecutors attended the interview and Laufman insisted on being one of the prosecutors, it would be difficult for Strzok to decide whether to send two case agents or himself and one case agent. The following text messages were part of this exchange. The sender of each message is identified after the timestamp.

10:32 p.m., Page: “Do you or Bill [Priestap] fundamentally believe that 3 and 3 is the RIGHT thing for the case? If the answer is no, then you call [McCabe’s advisor] back and say we’re good as is. You have never wavered from saying 2 and 2 is best. I don’t get what the hesitation is now.”

10:52 p.m., Page: “One more thing: she might be our next president. The last thing you need us going in there loaded for bear. You think she’s going to remember or care that it was more doj than fbi?”

10:56 p.m., Strzok: “Agreed.”

Page sent a similar text message to an advisor to McCabe a few minutes after her text message to Strzok, and later to McCabe himself. With McCabe’s advisor, she had the following exchange.

10:56 p.m., Page: “Hey, if you have one opportunity to discuss further with andy, please convey the following: She might be our next president. The last thing we need is us going in there loaded for bear, when it is not operationally necessary. You think she’s going to remember or care that it was more doj than fbi? This is as much about reputational protection as anything.”

11:00 p.m., Advisor: “I’ll catch him before the morning brief to give him this nugget....

The next morning, on February 25, 2016, this exchange continued as follows.

4:10 a.m., Page: “Hey I’ll just text andy this morning with my thought.”

4:11 a.m., Advisor: “Sounds good.”

The text message to McCabe was on February 25, 2016, at 7:41 a.m.:

Page: “Hey, you’ve surely already considered this, but in my view our best reason to hold the line at 2 and 2 is: She might be our next president. The last thing we need is us going in there loaded for bear, when it is not operationally necessary. You think she’s going to remember or care that it was more doj than fbi? This is as much about reputational protection as anything.”

The next text message exchange between McCabe and Page was in the evening on February 25, 2016:

9:16 p.m., Page: “Hey I’m sorry. It’s just wildly aggravating how much churn has gone on this. Have a good night.”

9:50 p.m., McCabe: “Agree. Strongly.”

Page told us that the term “loaded for bear” in her mind meant “a ton of people,” such that the FBI was “trying to intimidate.” She stated that the message she was trying to send in her text message was not that Clinton should be treated differently, but that she should be handled the same as any other witness the FBI interviews. She further stated that as a former prosecutor her “personal preference” would be to not have too many people in an interview, because “[t]hat’s just sort of not conducive to both rapport-building and also just...what it looks like...just pure optics.” In addition, she told us that she believed the additional interviewers were “unnecessary” and “if there is no value to be added, then we should do things the way we always do things, which is with a smaller, more discrete footprint.” She further told us that, while “it’s irrelevant whether or not [Clinton]...would or would not become president...if she did become president, I don’t want her left with a feeling that...the FBI marched in with an army of 50 in order to interview me.” In other words, Page stated that her concern had to do with the “reputational risk” to the FBI.

McCabe’s advisor told us that he was not substantively involved in the Midyear investigation but, as an advisor to McCabe, he was sometimes present when Midyear was discussed at meetings and copied on emails in which Midyear was discussed. He stated that he believed that he was involved in the late February conversations regarding how many Midyear team members should attend Clinton’s interview, because he was filling in for Page at one point during the conversations. McCabe’s advisor told us that he did not recall the above text message exchange with Page, likely because he was not substantively involved with the issues and was distracted at the time he received it. McCabe’s advisor stated that he “did not know that the fact that [Clinton] might be our next President might be one of those motivating factors in Pete’s or in Lisa’s mind in determining the size of the interview team.” After reviewing the text message exchange during his OIG interview he stated:

My reaction to that is that that should not be a consideration in, in determining the right investigative step to take in the investigation, in determining the size of the team, the interview team. That...should have no bearing on it. What’s right for the case is right for the case, and that’s how we should make our decisions.

However, Strzok told us that he did not take Page’s comment to mean that “we need to treat her differently because she’s the next president.” He further told us, “I am certain I made no decision based on anything [Clinton] might be or become.” Strzok stated that strategically, to obtain “the best answer” it is “always ideal” to conduct an interview with “two agents and the subject.” He went on: “Now, if they want counsel, fine. If you have a DOJ attorney, fine. But ideally...my experience is the smaller the setting, the more effective the interview.” Strzok told us that the only relevance of her being the next president was that “you don’t want the president thinking you’re a bunch of clowns.”

Similarly, McCabe stated that the “typical” way to run an interview is with two agents and one attorney, and “one of the reasons for doing that is to kind of keep the interviewees...defenses a little bit lower and not make people so concerned.” He stated that he understood Page to be saying in her text message that she would not want the future president to think the FBI was “a bunch of...brutes.” In addition, McCabe told us that when he wrote that he “agree[d] strongly” with Page, he was agreeing that it was “ridiculous that we're still talking about who is going to what interview from which side,” not that the team should not go into Clinton’s interview too aggressively.

Several other FBI and Department witnesses we interviewed corroborated Page’s, Strzok’s, and McCabe’s testimony that typically the FBI limits the number of interviewers in an interview for strategic investigative purposes, and that Laufman’s insistence on attending certain interviews caused frustration within the FBI. For example, Agent 2 stated, “when the room gets too big...it's hard as the interviewer to try to build that connection with the person you're interviewing...to get a good interview.” AAG Carlin told us that disputes regarding which prosecutors and agents will attend an interview are common. He further told us that “to do an effective interview you don’t want to have 50 people in the room.” As noted in Section VI of this chapter, Laufman told us that he attended the interviews of Clinton and other key witnesses to ensure that those interviews were handled properly and to ensure that he had a complete picture of the investigation before accepting the FBI’s and the prosecutors’ recommendations.

Ultimately, Clinton’s interview was attended by Agents 1 and 2, Strzok, Laufman, and all four line prosecutors. McCabe stated that the number of people that ultimately attended Clinton’s interview shows that investigative steps were not influenced by a desire to go easy on Clinton. In addition, multiple witnesses told us that they never heard anyone discussing the need to go easy on Clinton in light of her candidacy for president and that any such discussions would have been inappropriate. Carlin stated that such discussions would have been “thoroughly unacceptable and no one on our team would have done that.”

C. Conduct of Clinton’s Interview[edit]

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Both agents and prosecutors told us that by the time of Clinton’s interview they did not believe criminal charges were likely because they had conducted all other investigative steps and, absent a confession from Clinton, they had concluded that there was insufficient evidence of intent. Comey told us that by early May 2016 (when he circulated a first draft of a public statement recommending that the Midyear investigation be closed without prosecution), the team had not “found anything that seemed to the team or to me as a case that DOJ would prosecute” and he had a “reasonable confidence read at this point that barring something else, this looks like it’s on a path” toward declination. However, he stated that if Clinton had “lied to us in a way that we thought we could prove, that would have changed everything.” Prosecutor 1 stated that there were important topics the team wanted to cover with Clinton, including whether she was aware that classified information was present in her emails, her understanding of the highly classified SAP material contained in some of her emails, why she used a private email account on a private server, and security measures she took when emailing overseas.

Agents 1 and 2 were the case agents that conducted Clinton’s interview, in the presence of all four prosecutors, Laufman, Strzok, and Clinton’s attorneys. Witnesses told us that Agent 2 focused on questioning Clinton regarding her involvement in emails that the FBI determined to contain classified information, while Agent 1 questioned her regarding her server and the production of emails to the State Department by her attorneys.

As discussed in Chapter Twelve, we identified instant messages from Agent 1 that raised concerns about potential bias. This included an instant message exchange on November 8, 2016 (Election Day), between Agent 1 and Agent 5 (who were in a relationship at the time and are now married), in which Agent 1 messaged, “You should know;…. that I’m…. with her.”[111] (Punctuation in original). Additionally, we observed instant messages in which Agent 1 expressed concerns about the quality of the Midyear investigation, as described in Section XI of this chapter. Two of the instant message exchanges we identified occurred close in time to the Clinton interview.

On June 28, 2016, four days before the Clinton interview, Agent 1 sent an instant message complaining about the numerous people involved in preparing for the Clinton interview. Agent 1 messaged, “...very aggravating making this flow with 20+ voices for disparate information anyway. We have nothing – shouldn’t [sic] even be interviewing. Today, someone said we really need to call out that she had two phones when her excuse not to have a state bb [State Department Blackberry] in the first place was because she didnt [sic] want to carry two phones.” Agent 1 sent a series of messages that continued, “My god.... I’m actually starting to have embarrassment sprinkled on my disappointment.... Ever been forced to do something you adamantly opposed.”

We asked Agent 1 about this instant message exchange. He told us that when he wrote “20+ voices” he was referring to the number of FBI and Department employees involved in the Clinton interview preparation. He stated that Agent 2 and he were “working together well,” and they “just kept saying to each other when are we going to actually have time to prepare for this other than prepare everyone else for it?” He stated that the frustration expressed in the instant message exchange was related to his sense that Midyear was not the “normal” case where the FBI “culminate[s]” with an interview of a subject who introduced classified information onto an unclassified system, unlike Clinton who mostly received classified material from others. We asked Agent 1 if he thought that the Clinton interview was unnecessary. Agent 1 told us he thought the interview was necessary and stated:

I think we needed to get statements from the Secretary about what she knew this information to be, she was the Secretary of State, so if you thought this was classified, why did you not, if you had an impression it was classified, why did you not stop it, or why did you not say to the people that were underneath you that you should handle this better? What did you know about where it was? How do you understand a server to, to work, and do you know that a copy resides there? Those types of things, to include a couple that we found. I don't, I don't want to make it sound like there was no reason to interview her. That, including, including a couple of emails we found where there were portion markings, what we thought to be portion markings inside of the email. And she had made statements before that...there were no emails that were marked classified.

Agent 1 told us that he did not know what he meant by “forced to do something you adamantly opposed.” Agent 1 stated that this may have been a reference to not being able to prevent Mills and Samuelson from attending the Clinton interview.

On July 6, 2016, four days after Clinton’s interview, Agent 1 sent an instant message in which he stated that he was “done interviewing the President,” referring to Clinton. We asked Agent 1 if he thought of Clinton as the next president while conducting the Midyear investigation. Agent 1 stated, “I think my impression going into the election in that personal realm is that all of the polls were favoring Hillary Clinton.” We asked Agent 1 if he treated Clinton differently because of this assumption. Agent 1 stated, “Absolutely not. I think the message they said that our leadership told us and our actions were to find whatever was there and whatever, whatever that means is what it means.”

We interviewed all eight of the FBI and Department officials that attended Clinton’s interview, and none of the witnesses we interviewed expressed concerns about the way the case agents handled the interview. Prosecutor 1 told us that Prosecutors 1 and 2 and the case agents did “most of the talking during the interview,” which was “led by the agents.” Prosecutor 1 further told us that generally “agents would lead [the interviews], and attorneys would interject as needed, and we’d pause after different, as we transitioned to make sure things were covered.” In addition, Prosecutor 1 stated that, “The agents had a good rapport with [Clinton].” Prosecutor 1 further stated, generally, that the agents did a “good job” in interviews and that he did not have concerns about the agents not “pushing hard enough.”

Based on a review of the FD-302 and contemporaneous notes from Clinton’s interview, Clinton told the Midyear team that she chose to use a personal Blackberry connected to her personal email account for official communications for convenience, and she denied using personal email or a personal server to avoid FOIA or Federal Records Act requirements. Clinton further told the FBI that during her tenure she received classified information through secure briefings, secure calls, classified hard documents, and classified faxes, and she “did not recall receiving any emails she thought should not be on an unclassified system.” According to the FD-302, Clinton stated that she was aware that her email was supported by a private server, but she did not know the details of the different server systems she used. The FD-302 indicated that the interviewers showed Clinton numerous unmarked emails she had received containing information that was determined to have been classified. Clinton responded with respect to each email that she did not believe the information contained in the email was classified or that she relied on the State Department employees who worked for her to use their judgment in determining whether information was classified and appropriate to send on unclassified systems. Agent 1 told us that the interviewers asked “probing questions” with respect to each of Clinton’s responses. Prosecutor 1 told us, and our review of other FD-302s showed, that Clinton’s responses to these questions were consistent with the testimony of other witnesses on the email chains, including Clinton’s senior aides who forwarded classified information to her.

The FD-302 and contemporaneous notes indicate that the interviewers asked Clinton about her understanding of her record keeping obligations, the culling process that was used to provide her work-related emails to the State Department, and the deletion of emails from her server. According to the FD-302, Clinton told the FBI, among other things, that she did not recall being asked to turn over her email records upon her departure from State and that she believed her work-related emails were “captured by her practice of sending them to state.gov email addresses of her staff.” She stated that, upon receiving a request from the State Department in 2014, she “expected” her attorneys to turn over any emails that were “work-related or arguably work-related,” but she did not otherwise participate in developing the culling process. Agent 1 told us, consistent with the FD-302, that he pressed her on her lack of involvement in the State Department production, by showing her a work-related email that was not produced as part of the 30,490. Clinton responded that she agreed that the email was work-related and did not know why it was not included in the State Department production. Clinton told the FBI that in December 2014, after the production of her work-related emails to the State Department, her staff asked her what she wanted to do with her personal emails and she responded that she “did not need them anymore.” The FD-302 states that “Clinton never deleted, nor did she instruct anyone to delete, her email to avoid complying with Federal Records Act, FOIA, or State or FBI requests for information” and that she “trusted her legal team” would comply with the March 3, 2015 Congressional preservation request.

In addition, the interviewers asked Clinton about an email that contained a parenthetical with a “(C)” at the beginning. According to the prosecutors, Clinton received three email chains during her State Department tenure that contained at least one paragraph that began with a ‘(C),’ a classification marking used to denote information classified at the Confidential level. The prosecutors stated that these were the only emails containing classification markings that the FBI identified during its investigation, the emails did not contain any markings other than the one or two paragraphs in each email beginning with a “(C),” and as of July 6, 2016, the State Department had not responded to the FBI’s request for a determination as to as to whether the information in these three emails was classified at the time the emails were sent. The prosecutors further stated that the State Department had determined through the FOIA process that only one of the three emails contained information that was classified as of July 6, 2016, and that this email was classified at the Confidential level. According to the FD-302 from Clinton’s interview, Clinton told the FBI that she did not know what the “(C)” meant and “speculated it was a reference to paragraphs ranked in alphabetical order.” The FD-302 indicates that the FBI had added a classification marking of “Confidential” to the top of the document and that, upon noticing this marking, Clinton asked if the “(C)” meant Confidential. Clinton told the interviewers that she did not agree that the information contained in the email was classified, because it described information that was already in the press. Witnesses told us, and contemporaneous emails show, that the FBI and Department officials who attended Clinton’s interview found that her claim that she did not understand the significance of the “(C)” marking strained credulity. Agent 1 stated, “I filed that in the bucket of hard to impossible to believe.” Agent 1 further stated that he and the other interviewers asked Clinton about her understanding of the “(C)” markings four or five times, but she did not change her answer. He told us, “I also don’t know at that point in the interview what else we could have done besides all the different ways that we asked it.”

Comey told us that one of the purposes of interviewing Clinton was to see if she would be truthful. However, he stated that the agents that conducted the interview found her credible and were surprised at how “technically illiterate” she was. While Comey did not specifically comment on the team’s reactions to Clinton’s testimony regarding the “(C)” portion markings, he stated, “By her demeanor, she was credible and open and all that kind of stuff, but—so I can’t sit here and tell you I believed her. I can only tell you, in no particular could we prove that she was being untruthful to us.” The prosecutors similarly indicated that the team did not believe it could prove that Clinton had been dishonest during her interview or that she knew that the document with the “(C)” marking was classified. The prosecutors stated that the “(C)” markings were somewhat ambiguous given their placement in the email chains and the fact that the classification marking ‘Confidential’ was not spelled out anywhere in the email, let alone in a readily apparent manner. They further stated that Clinton’s statement regarding her knowledge of the “(C)” marking was not one that could be affirmatively disproved.

D. Decision to Allow Mills and Samuelson to Attend Clinton Interview[edit]

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According to the FD-302 for Clinton’s interview, Mills and Samuelson attended the interview as Clinton’s counsel, in addition to Clinton’s three attorneys from the Williams and Connolly law firm. Numerous FBI and Department witnesses told us that they were opposed to Mills and Samuelson attending Clinton’s interview, because Mills and Samuelson were also witnesses in the investigation. They stated that they were concerned both that Mills and Samuelson could influence Clinton’s testimony and that their presence would be bad from an “optics” standpoint.

Prosecutor 1 told us that the prosecutors first learned that Mills and Samuelson planned to attend Clinton’s interview less than a week before the interview took place. Witnesses told us that the prosecutors contacted Kendall to discuss their concerns about Mills and Samuelson attending, but that Kendall “pushed back.” Several Midyear team members stated, and contemporaneous notes show, that after the call with Kendall the Midyear team conferred more than once and that everyone agreed that, although they were not comfortable with the situation, they could not prevent Clinton from bringing her counsel of choice to a voluntary interview. Laufman stated, “We gave careful thought to whether we had any grounds to bar admission to Mills and Samuelson from the interview of Secretary Clinton. And we determined we did not have a legal or bar rule-slash-ethics based premise to do so.” Several witnesses also told us that they were more concerned with the “optics” of Mills and Samuelson attending than them influencing Clinton’s testimony, because they were confident that Clinton had already been well prepared by her attorneys and had probably conferred with Mills and Samuelson in advance of the interview in any event (which the investigators could not prevent).

Based on the evidence we reviewed, the issue of Mills’s and Samuelson’s attendance was raised up the chain within the FBI through former Director Comey and within NSD through Toscas. According to FBI Attorney 1, the issue was discussed at a meeting she attended that included Comey, McCabe, Baker, Rybicki, Deputy General Counsel Anderson, EAD Steinbach, AD Priestap, Strzok, Page, and the Lead Analyst. FBI Attorney 1 stated that the lawyers in the meeting, including Comey, all agreed that there was no legal basis to exclude Mills and Samuelson from the interview. Comey told us that he could not remember the specifics of his conversations regarding Mills and Samuelson attending the Clinton interview; however, he stated that he believed “it was a fairly brief discussion because our judgment was it’s an essential interview, we’ve washed them out. We’ve looked at their conduct pretty carefully and so those two things together, so we don’t really have a basis for excluding...either of them from the interview.”

Lynch and Yates both told us they did not recall being briefed on Mills and Samuelson attending Clinton’s interview. Carlin told us, “I don’t remember [Mills’s and Samuelson’s attendance] being a major issue so I’m assuming they worked that out without, I kind of more was just briefed that that was occurring rather than that there was some dispute over it.”

The prosecutors told us that the team put a plan in place to prevent Mills or Samuelson from influencing Clinton’s testimony: if Mills or Samuelson “actively involved themselves in the interview” they would address the issue further at that time, possibly through a “side bar” with Kendall. The prosecutors and agents that attended the interview all told us that ultimately Mills and Samuelson did not interfere or object, engage in side-bars with Clinton, or speak substantively during the interview. Rather, Prosecutor 1 told us that Clinton’s Williams and Connolly attorneys did the “actual...lawyering, such that there was any there.”

Prosecutor 1 stated that they did not consult PRAO regarding the ethical implications of Mills’s and Samuelson’s attendance. We asked the prosecutors whether they spoke to Wilkinson about their concerns or suggested to Wilkinson that her clients’ attendance could violate their own ethical duties, given that at the time of the culling testimony and laptop dispute Wilkinson had indicated that her client’s interests were different from Clinton’s in the Midyear investigation.[112] They told us they had not done so, and Laufman stated he did not recall considering those ethical concerns. However, Laufman and FBI Attorney 1 both told us that if there was such a conflict, Clinton could waive it. In addition, Prosecutor 1 stated that the team did not question at the time of the Clinton interview whether Mills and Samuelson in fact had ongoing attorney-client relationships with Clinton, because the prosecutors had already concluded there were ongoing attorney-client relationships when they sought subpoenas for the culling laptops.[113]

E. Consideration of Subpoenaing Clinton before the Grand Jury[edit]

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We asked several witnesses whether they considered subpoenaing Clinton before the grand jury in order to avoid Mills’s and Samuelson’s presence at the interview. We also asked whether they considered simply refusing to interview Clinton if she insisted on having Mills and Samuelson present, given the pressure on Clinton to cooperate with the investigation—in other words, whether the Midyear team underestimated its strategic position against Clinton’s attorneys.

Some witnesses told us that use of the grand jury was the only way to legally prevent Mills and Samuelson from attending, but that the team did not seriously consider that option. Prosecutor 4 stated:

I thought Mills being present was idiotic. And I believe that [Prosecutor 1] and I talked about it. And I said, well, look, we cannot exclude her as a legal matter unless we are willing to threaten to throw Hillary in the grand jury, at which point I’m fairly confident that they will fold. And [Prosecutor 1] and I discussed it. And I don't know if he ever raised that possibility. But it was obvious to me that nobody was willing to, to threaten, to threaten Hillary in the grand jury.

However, Prosecutor 4 stated that his concern about Mills and Samuelson attending Clinton’s interview was “from an optics standpoint” and that “from my vantage point, the cost-benefit analysis of trying to go through and get somebody to authorize me to threaten to throw Hillary in the grand jury was not worth getting the, the interview done at that point.” Prosecutor 3 told us that if the Midyear team insisted that Mills and Samuelson not attend, Clinton likely would have relented because of her desire to say publicly that she cooperated with the investigation. Other FBI and Department witnesses we interviewed told us that they simply did not consider these options.

The SSA told us that it would have been anomalous to subpoena Clinton before the grand jury given that no other witnesses had testified before the grand jury and Clinton, like the other witnesses, was cooperating. Strzok told us that the team decided against subpoenaing Clinton to testify before the grand jury because “the expectation of the information we would get from her in either setting was not substantively different,” given that she had “extraordinary counsel” preparing her.

Toscas told us that if Clinton had been required to testify before the grand jury, members of the FBI team would not have been able to participate in the interview. In addition, Laufman, Prosecutor 1, and FBI Attorney 1 told us that admitting classified information before the grand jury would have involved an uncertain and lengthy process of obtaining approvals from the various government agencies that owned the classified information. Prosecutor 1 stated that, even if the approvals could be obtained, it is better to avoid sharing classified information with the grand jury, if possible.

Laufman stated that subpoenaing Clinton to testify before the grand jury would have been “a grossly disproportionate course of action in relation to what we were dealing with and [out of] step with how we had previously been conducting the investigation throughout its course.” He further stated, “[W]e did not think this was worth blowing up the investigation, and, and creating what almost certainly would have become a matter of public knowledge that we had suddenly issued a grand jury subpoena to the Secretary at this stage of the national electoral process.” He explained that throughout the investigation the team was attempting to avoid “extrinsic information” from the investigation being publicly disclosed and used for political purposes, and this was no exception.

Witnesses told us that at the point of Clinton’s interview, they had conducted all other investigative steps and knew that there was insufficient evidence to prosecute Clinton unless she incriminated herself. Laufman told us that because the prosecutors did not believe a subsequent trial was likely, they were not concerned that Mills’s or Samuelson’s later testimony would be influenced by being privy to Clinton’s interview. Prosecutor 4 told us that if he had the investigation to do over again, the one thing he would have done differently was “insist that Mills not attend the Hillary interview.” However, he also stated that at that point he agreed with the rest of the team that there was no prosecutable case and the main reason to have put her in the grand jury was to avoid subjecting the investigation to criticism.[114]

Comey told us that he did not remember discussing with anyone the possibility of subpoenaing Clinton before the grand jury. However, he stated:

At that point, I really didn’t think there was a there there, and the question was, is she going to lie to us? She’d be as likely to lie to us in a grand jury or in an interview. And I just suppose in the grand jury is you’ve got the transcript, but we’ve got a bunch of agents taking notes, so I don’t think it would’ve mattered much to me at that point.

X. FBI Inspection Division Internal File Review of the Midyear Investigation[edit]

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In September and October 2017, the FBI assigned three SSAs (File Review SSAs) from the Boston Field Office to the FBI’s Inspection Division (INSD) to conduct a special review of the Midyear investigation (File Review).[115] Baker told us that he proposed the File Review after being informed of the OIG’s discovery of text messages between Strzok and Page expressing political views. He stated that once he learned of the text messages, he suggested to EAD Carl Ghattas and possibly other senior FBI officials that a review team be brought in to “look at the case and all the decisions that were made in a quiet way.” Baker further stated that the purposes of the File Review were to “make sure that [Strzok, Page,] or others did not make decisions in the case based on improper political considerations, including failing to taken actions they should have,” and to “make sure that, from a management perspective, if other steps needed to be taken, we should find that out quickly and take those steps, including reopening the investigation.” He told us that they decided that the File Review team would not interview witnesses, because they did not want to interfere with the ongoing OIG review. Baker stated that Ghattas took the lead on the review.

Two of the SSAs who conducted the File Review had experience in the FBI’s Criminal Investigative Division (CID) while the third SSA had experience in the FBI’s Counterintelligence Division (CD). The File Review SSAs told us that Ghattas requested that they do the File Review, and that they met with Ghattas in FBI Headquarters at the start of their review. They stated that they were instructed not to discuss their review with other FBI employees. The File Review SSAs also told us that they were not told about the text messages between Strzok and Page before the start of the review. Baker told us he was unaware that the File Review SSAs were not told about the text messages before the start of the File Review.

File Review SSAs 2 and 3 told us that they understood the purpose of the review to be to assess what the Midyear investigators appeared to have done well, what investigative steps were missed, and what lessons could be learned from the investigation. File Review SSA 2 stated that the File Review was not intended to be a reinvestigation. The File Review SSAs told us that their review was limited, by design, to the official FBI Midyear file. They did not interview any witnesses nor did they review any documents that were not included in the official file, such as handwritten notes taken by Midyear team members during meetings, emails or text messages sent or received by Midyear team members, or materials maintained by the prosecutors or others Department officials. They also did not review SAP material. File Review SSA 2 told us that the team did not “intend [for the file review] necessarily to be a...final...judgment or indictment on the FBI or on WFO or the case agents. It was more just...here are our observations, and here are some questions...should anyone else...take a look at this...take this into consideration. That's kind of all we intended by it.”

The File Review SSAs told us, consistent with their File Review Report, that they conducted their review over the course of six days, between September 5 and September 8, 2017, and between October 3 and 4, 2017; however, the first day was mostly spent meeting with Ghattas and locating the records to review. They stated that thereafter they spent approximately 12 hours per day reviewing records in the official file, discussing items they came across that caused them concern, and recording information in spreadsheets. File Review SSAs 2 and 3 told us that each File Review SSA focused on a different portion of the file, and none of them individually reviewed the entire file. During the course of their review, in addition to reviewing and discussing the records, the File Review SSAs completed a first draft of the File Review Report, which File Review SSA 1 finalized with minor edits thereafter. The File Review SSAs told us that they all approved the final File Review Report.

Under the heading “FBI Investigative Actions,” the File Review Report stated:

The [File] Review Team’s analysis of the MIDYEAR EXAM investigation did not find substantial or significant areas of investigative oversight based on the stated goals of the investigation. In contrast, [the File Review Team] assessed [that] the [Midyear] investigative team conducted a thorough investigation within the constraints imposed by DOJ. Appropriate witnesses were interviewed, records preserved, information and computer devices obtained, and necessary business records were subpoenaed to meet the goals of the investigation. FBI resources such as [Computer Analysis and Recovery Team (CART) personnel], Intelligence personnel, communication analysis, and Cyber Agents were skillfully and successfully utilized to review and fully exploit substantial amounts of data in support of the investigation....The efforts of the case Agents and case team should be commended.

Nonetheless, the File Review Report also contained criticisms of the Midyear investigation. Generally, the File Review Report assessed that it would have been better to run the Midyear investigation as a traditional criminal investigation out of a Criminal Investigative Division (CID) field office, rather than as a counterintelligence investigation out of CD. The File Review SSAs expressed concern that treating the investigation as a CD investigation with NSD oversight resulted in more limited use of compulsory process such as grand jury subpoenas and search warrants. However, the File Review SSAs told the OIG that they were not aware of any precedent for handling a counterintelligence investigation out of CID. File Review SSA 2 stated that counterintelligence investigations “are always run out of the Counterintelligence Division.”[116]

The File Review SSAs identified specific concerns with the Midyear investigation, although we found that many of these concerns were the result of the fact that the File Review SSAs had incomplete information. For example, the File Review Report states, “No immunity in exchange for testimony was observed in the investigation,” and “[o]ne instance of a proffer letter was observed,” referring to the limited use immunity agreement between the Department and John Bentel. The File Review SSAs told us that they were unaware that the Midyear prosecutors also entered into letter use immunity agreements with Combetta and Pagliano.[117]

The File Review SSAs told us, consistent with the File Review Report, that they believed the Midyear agents relied too heavily on outlines during interviews and did not ask sufficient follow-up questions. However, they stated that they based this assessment only on their review of the FD-302s. The Midyear SSA and Agent 1 told us that the CD Division does not draft FD-302s in such a way that a reader would know what follow-up questions were asked of witnesses; instead, the FD-302s generally set forth each witness’s ultimate statements in response to series of questions.

In addition, the File Review SSAs told us that they considered the DIOG, but did not consider any Department policies, such as the USAM, regarding guidelines for obtaining evidence relevant to the Midyear investigation. For example, they stated they did not consult the USAM provisions regarding obtaining evidence from attorneys concerning their representation of clients.

Based on these findings, the report concluded:

INSD assessed the FBI Midyear Exam investigation successfully determined classified information was improperly stored and transmitted on Clinton’s email server, and classified information was compromised by unauthorized individuals, to include foreign government’s or intelligence services, via cyber intrusion or other means [referring to compromises of email accounts associated with certain individuals who communicated with Clinton’s server, such as Blumenthal]. However, the structure of the investigation and prosecution team, as prescribed in the CD PG, and treatment of the investigation as a traditional espionage matter rather than a criminal investigation significantly hindered the ability of the investigative team to obtain full, accurate and timely information.

XI. Instant Messages Relating to the Conduct of the Midyear Investigation[edit]

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FBI employees have the ability to communicate internally via Microsoft Lync instant messages when logged on to their FBI workstation. As part of our review, the OIG identified contemporaneous instant messages in which Agent 1 expressed concerns about the quality of the Midyear investigation. These messages were sent to numerous FBI employees, including an agent assigned to the Midyear filter team (Agent 5). Agent 1 and Agent 5, who are now married, were in a relationship for the entirety of the Midyear investigation. We identified additional instant messages sent by Agent 1 and Agent 5 that raised concerns about potential bias. We discuss these messages and others in Chapter Twelve.

The Midyear filter team was responsible for conducting an initial review of evidence obtained during the investigation and ensuring that nothing that was either beyond the scope of the FBI’s authority to review or protected by a valid privilege was provided to the investigative team. We found that Agent 1 and Agent 5 exchanged numerous instant messages about the Midyear investigation. However, we identified no instances where Agent 5 provided Midyear-related information to Agent 1 that should have been withheld from the investigative team. Agent 1 and Agent 5 told us that their Midyear supervisors were aware of their relationship by the end of 2015 at the latest and it was never identified as a concern.

We asked Agent 1 generally about his use of instant messaging on his FBI workstation. Agent 1 told us that he believed that instant messages were not retained by the FBI and therefore used less caution with those communications than he would have with other types of communications, such as email or text messages. Agent 1 also repeatedly emphasized that the instant messages served as a type of emotional release for him. Agent 1 stated:

I took that [instant messaging] as an informal, akin to a conversation almost, almost, you know, water cooler style. I think in there.... There is personal and emotional communications between my then girlfriend, now wife. There is some jocularity there. There is, you know, I think, I think some outlet, stress outlet.... You know, guys, I just, I think this was primarily used as a personal conversation venting mode for me. I’m embarrassed for it. I don’t think that it affected my actions.

Agent 1 told us that the nature of his workspace also contributed to his use of instant messaging. Agent 1 explained that for the Midyear investigation he was relocated to FBI Headquarters and placed inside a SCIF with others on the Midyear team. Due to this, he was effectively unable to use his personal electronic devices at work and was also in a small space with his coworkers and supervisors, thereby preventing phone communication. Agent 1 emphasized that these were not excuses for the substance of his instant messages, but explanations for why he used them as an outlet for “stress relief” about frustrations he encountered at work. Agent 1 described his instant messages with Agent 5 as personal communications with his significant other that they used for mutual support and complaints. Similarly, Agent 1 stated his instant messages with FBI personnel not assigned to the Midyear investigations were typically communications with friends. He also noted that many of these communications were initiated by FBI personnel seeking information on the Midyear investigation. Agent 5 echoed many of Agent 1’s explanations, stating that she considered instant messaging to be a private channel to communicate with Agent 1. Agent 5 told us that Agent 1 was her outlet at work for “emotional outbursts” and “relief of stress.”

Agent 1 sent instant messages in the initial months of the Midyear investigation commenting on the investigation. Some of these messages are listed below, along with the date sent and the recipient.

September 2, 2015, to Agent 5: “Have a really bad feeling about this...this case...situation.... No control and horrible decisions and chaos on the most meaningless thing I’ve ever done with people acting like fucking 9/11.”

September 25, 2015, to an FBI employee: “...I dont care about it. I think its continued waste of resources and time and focus....”

October 26, 2015, to Agent 5: “Its just so obvious how pointless this exercise is. And everyone is so into it....”

We asked Agent 1 about these messages. Agent 1 told us that prior to Midyear he had worked on other high-profile cases and part of the sentiment he expressed in these messages was a reluctance to be involved in another high-profile investigation. Agent 1 stated that he knew from prior experience that decisions in such investigation were typically made at higher levels. Agent 1 described the comment about the investigation being “meaningless” as “a little exaggerated” and explained that “maybe the intense scrutiny didn’t seem commensurate to what we had to do.” Agent 1 explained, “The FBI absolutely needs to investigate why classified information is in a place where it should not be. I just, it would, this is more probably an emotional comment on how scrutinized and how focused and how continued, there’s a continued focus on it to this day.”

Agent 1 also sent numerous messages that referenced “political” considerations in the context of the Midyear investigation. We list examples of these messages below with the date sent and the content of the message along with context where necessary. Unless otherwise identified, the recipients of the messages are FBI employees not involved in the Midyear investigation.

January 15, 2016: Responding to a question of when the investigation would be finished, Agent 1 stated, “[M]y guess is March. Doesnt matter what we have, political winds will want to beat the Primarys.”

January 28, 2016: “...The case is the same is all of them. Alot of work and bullshit for a political exercise.”

February 1, 2016: “...Its primary season – so we’re being dictated to now....”

February 1, 2016: “This is the biggest political shit show of them all. No substance. Up at dawn – pride swallowing seige. No headset and hermetically sealed in SIOC.”

February 2, 2016: Responding to a question about how the investigation was going, “Going well.... Busy, and sometimes I feel for naught (political exercise), but I feel good....”

May 6, 2016, to Agent 5: “pretty bad news today...someone has breathed some political urgency into this.... Everyday DD brief and once a week D brief from now on.”

We asked Agent 1 about these messages. Agent 1 stated that he hoped these messages “would just directly reflect upon me and not anybody else that worked the case.” He explained that these messages simply reflect the fact that he wanted to work on something besides Midyear. We asked Agent 1 whether these messages indicated that the Midyear investigation was simply an exercise in “going through the motions.” Agent 1 responded, “No. I think this investigation needed to be worked.” He later continued, “I think if classified information is found in a place that it shouldn’t be, there should be an investigation.” Agent 1 added that he felt the scrutiny and attention that Midyear received was not “commensurate” with the nature of the violation the team was investigating. As to the messages about timing, Agent 1 told us that at some point in the investigation the “pace” increased and, although the team was never given a “finish by” date, there was “a sense that things were picking up.”

On February 9, 2016, Agent 5 sent Agent 1 an instant message complaining about a meeting the filter team had with a Department attorney and the frustrating review task she was assigned. Agent 1 responded:

Yeah, I hear you. You guys have a shitty task, in a shitty environment. To look for something conjured in a place where you cant find it, for a case that doesnt matter and is predestined. All you ask for is acknowledgment of that and clear guidance. But no. DOJ comes in there every once in awhile and takes a wishy-washy, political, cowardice stance. Salt meets wound. That is the environment love. Can’t sugar coat it. Now, what? What can you do? What can you control? Work hard, do the best you can, and try to keep others motivated.

After reading this message during his OIG interview, Agent 1 stated:

I have no information that it was a pre-determined outcome by anyone. I had, I had no statement from anyone that I can tell you that I worked with that said this is where we’re going.... I think even the leadership that stopped by in the, in the, in our space always said that as well. Whatever you find, you know, is what it is. You know, just, just find what it was, and, you know, don’t worry about anything else, the outside noise. All I can tell you is this is probably, I mean, it’s a little overwhelming to see all [these messages] at once, as probably somebody who was, who wanted to do something else, I think.

Agent 1 stated that he could not recall anything specific to add to this exchange.

In another exchange on February 4, 2016, Agent 1 and an FBI employee who was not assigned to the Midyear investigation discussed Agent 1’s interview with a witness who assisted the Clintons at their Chappaqua residence. Part of this exchange follows.

FBI Employee: “boom...how did the [witness] go”

Agent 1: “Awesome. Lied his ass off. Went from never inside the scif [sensitive compartmented information facility] at res, to looked in when it was being constructed, to removed the trash twice, to troubleshot the secure fax with HRC a couple times, to everytime there was a secure fax i did it with HRC. Ridic,”

FBI Employee: “would be funny if he was the only guy charged n this deal”

Agent 1: “I know. For 1001. Even if he said the truth and didnt have a clearance when handling the secure fax – aint noone gonna do shit”

We asked Agent 1 about the implication in this message that no one would be charged irrespective of what the team found. Agent 1 stated:

Yeah, I, I don’t think I can say there’s a specific person that I worked with in this case that wouldn’t charge him for that. I think it’s a general complaint of, you know, of FBI agents that are kind of, kind of being emotional and, and complaining that no one is going to do something about, about something.... But there’s nothing specific that I, that I can tell you.

Agent 1 told us he did not recall any discussion about whether this witness should be charged with a crime.

In a January 19, 2016 message to Agent 4, Agent 1 stated, “What we want to do and what we’re going to be allowed to do are two different things.” Agent 1 told us that he did not remember this exchange and did not know what he was referring to in this message. However, he stated that he appears “to be venting a little bit” to Agent 4.

XII. Analysis of Investigative Decisions[edit]

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In this part, we provide our analysis of whether the investigative decisions taken in connection with the Midyear investigation that we reviewed were based on improper considerations, including political bias. As described in the Analytical Construct set forth in Chapter One of this report, we selected for examination particular case decisions that were the subject of public or internal controversy. For each decision, we analyzed whether there was evidence of improper considerations or evidence that the justifications offered for the decision were a pretext for improper, but unstated, considerations. If a choice made by the investigative team was among two or more reasonable alternatives, we did not find that it was improper even if we believed an alternative decision would have been more effective. Thus, a determination by the OIG that a decision was not unreasonable does not mean that the OIG has endorsed the decision or concluded that the decision was the most effective among the options considered. We took this analytical approach because our role as an OIG is not to second-guess valid discretionary judgments made during the course of an investigation, and this approach is consistent with the OIG’s handling of such questions in past reviews.

In undertaking this analysis, our task was made significantly more difficult because of the text messages we discovered between Strzok and Page, given the critical roles they played in most of the decisions made by the FBI; the instant messages of Agent 1, who was one of four Midyear case agents; and the instant messages of FBI Attorney 2, who was one of the FBI attorneys assigned to the investigation.[118] That these employees used an FBI system or device to express political views about individuals affected by ongoing investigations for which they were responsible was particularly disappointing in comparison to their colleagues on the Midyear investigative team who, based on the emails, notes, memoranda, and other materials we reviewed, conducted themselves with professionalism during a difficult and high-pressure investigation.[119]

We were cognizant of and considered these messages in reaching the conclusions regarding the specific investigative decisions discussed below. In particular, we were concerned about text messages exchanged by Strzok and Page that potentially indicated or created the appearance that investigative decisions were impacted by bias or improper considerations. As we describe in Chapter Twelve, most of the text messages raising such questions pertained to the Russia investigation. Nonetheless, the implication in certain Russia-related text messages that Strzok might be willing to take official action to impact presidential candidate Trump’s electoral prospects—for example, the August 8, 2016 text exchange in which Page asked Strzok “[Trump’s] not ever going to become president, right? Right?!” and Strzok replied “No. No he won’t. We’ll stop it”—caused us to question the earlier Midyear investigative decisions in which he was involved, and whether he took specific actions in the Midyear investigation based on his political views.[120] As we describe in this chapter, we found that Strzok was not the sole decisionmaker for any of the specific investigative decisions examined in this chapter. We further found evidence that in some instances Strzok and Page advocated for more aggressive investigative measures than did others on the Midyear team, such as the use of grand jury subpoenas and search warrants to obtain evidence.

There were clearly tensions and disagreements in a number of important areas between Midyear agents and prosecutors. However, we did not find documentary or testimonial evidence that improper considerations, including political bias, directly affected the specific investigative decisions discussed below, or that the justifications offered for these decisions were pretextual. We recognize that these text and instant messages cast a cloud over the FBI’s handling of the Midyear investigation and the investigation’s credibility. But our review did not find documentary or testimonial evidence that these political views directly affected the specific investigative decisions that we reviewed in this chapter. The broader impact of these text and instant messages, including on such matters as the public perception of the FBI and the Midyear investigation, are discussed in Chapter Twelve.

A. Preference for Consent Rather than Compulsory Process to Obtain Evidence[edit]

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At the outset we note that, contrary to public perception, the Midyear team used compulsory process in the Midyear investigation. This included grand jury subpoenas, search warrants, and 2703(d) orders. Nonetheless, the Midyear prosecutors told us that they obtained evidence through consent whenever possible. We found no evidence that the use of consent to obtain evidence in the Midyear investigation was based on improper considerations. The decisions regarding how to obtain particular pieces of evidence were primarily made by the career prosecutors, for whom we identified no evidence of political or other bias, and we found that the reasons they provided for those decisions were not unreasonable.

The FBI investigators, attorneys, and supervisors involved with the Midyear investigation—including individuals for whom we identified electronic messages expressing political opinions—advocated for greater use of compulsory process and for more aggressive investigative methods, including the use of search warrants. However, the prosecutors told us that they often chose consent over compulsory process or court orders based on the following considerations: (1) avoiding delay that could result from motions to quash subpoenas or search warrants; (2) complying with Department policies; (3) protecting classified and other sensitive information; (4) avoiding media leaks and public disclosures that could harm the investigation; (5) the perceived obstacles to establishing probable cause; and (6) the risk of improperly accessing privileged information. We found these explanations to be supported by Department and FBI policy and practice, and that the disputes between the agents and the prosecutors about how aggressively to pursue certain evidence were good faith disagreements.

It was not unreasonable for Department prosecutors to consider the delay that could result from motions to quash subpoenas and search warrants. Both Department and FBI witnesses told us that they hoped to complete the investigation well in advance of the election, if possible, to avoid influencing the political process. Indeed, Comey pressed in early May for the prompt completion of the investigation. However, in seeking to avoid delay, prosecutors were required to balance the need for timely completion of an investigation against the need to ensure a thorough and complete investigation. We did not identify bias or improper considerations affecting that judgment call by the prosecutors.

Both Department and FBI policies generally support the use of consent agreements to obtain evidence. The USAM advises prosecutors to consider alternatives to grand jury subpoenas when practicable, such as obtaining testimony and other evidence by consent, in light of the requirement that the government maintain the secrecy of any testimony or evidence accessed through the grand jury. USAM 9-11.254(1). Had the prosecutors not used consent agreements to obtain most of the evidence in the Midyear investigation, the FBI likely would not have been able to be as transparent as it was in response to FOIA and Congressional requests following the conclusion of the investigation.

The Attorney General’s Guidelines for Domestic Operations (AGG-Dom) and the FBI’s Domestic Investigations and Operations Guide (DIOG) require the FBI, when choosing among two or more operationally sound and effective methods for obtaining evidence or intelligence, to strongly consider using the one that is “least intrusive” with respect to “such factors as the effect on the privacy and civil liberties of individuals and potential damage to reputation.” AGG-Dom § I.C.2; DIOG §§ 4.1.1, 4.4, 5.3, 18.2. The DIOG specifically identifies search warrants as a method that is “very intrusive.” DIOG § 4.4.3 The DIOG’s guidance regarding choosing the least intrusive method is emphasized in relation to Sensitive Investigative Matters (SIMs), such as the Midyear investigation. The DIOG states, “In the context of a SIM, particular care should be taken when considering whether the planned course of action is the least intrusive method if reasonable based upon the circumstances of the investigation.” DIOG § 10.1.3. Assessing which investigative options to use, and whether various options are operationally sound and effective, are judgment calls. Accordingly, the Midyear team’s use of consent agreements, after their evaluation of the circumstances, was an approach to gathering evidence that complied with Department policies. Likewise, had the prosecutors and agents agreed to pursue a more aggressive course after evaluating the circumstances and determining that it would have been a more effective method, it also would have been a rational approach to gathering evidence.

Under FBI policy, it also was appropriate for the Midyear team to consider how the use of compulsory process or more intrusive evidence collection methods might result in the public disclosure of information about the investigation—particularly public disclosure that had the potential to negatively impact the investigation. The DIOG states that in deciding the least intrusive method necessary for effectively obtaining information, the FBI should consider the “risk of public exposure” and the potential that public exposure will be used to an individual’s “detriment and/or embarrassment.” DIOG §§ 4.4.3(E), 5.3. Witnesses told us that there is a need to be particularly cautious with respect to the use of process in national security cases, due to the risk of classified information being leaked.

It was, of course, proper for the prosecutors to consider whether they could demonstrate probable cause before using criminal process. The Fourth Amendment protects individuals from unlawful searches and seizures of their property, and courts have held that individuals have privacy interests in their electronic communications. See Ross, 456 U.S. at 822-23; Riley, 134 S. Ct. at 2485; Trulock, 275 F.3d at 403. Generally, the government must obtain a search warrant before searching data contained in an individual’s electronic storage devices, such as computers and cellular telephones. Id.; Riley, 134 S. Ct. at 2485. To obtain such a search warrant, the government must make a showing of facts under oath demonstrating probable cause to believe that a device to be searched contains evidence of a crime. See Fed. R. Crim. P. 41. Both Department and FBI witnesses told us that, in some circumstances, they were not certain they could make such a showing.

It was also proper for the prosecutors to consider privilege issues. By law, prosecutors cannot use compulsory process to override privileges, such as attorney-client or marital privilege. G.J. Manual § 5.1 (quoting Branzburg, 408 U.S. at 688); G.J. Manual §§ 5.6, 5.26. While a filter team may be used to cull privileged material from seized evidence before an investigative team reviews that evidence, there are also Department policies that apply to seizing evidence that may contain privileged information. For example, under USAM 9-13.410, prosecutors can only issue a subpoena to an attorney for information or evidence related to the representation of clients if the prosecutors first obtain approval from the AAG or DAAG of the Criminal Division. The AAG or DAAG will only provide such approval if the prosecutors make reasonable efforts to first obtain the evidence through alternative sources, including consent, unless such efforts would compromise the investigation. USAM 9-13.410. Similarly, the DIOG provides that, “It is less intrusive to obtain information from existing government sources...or from publicly-available data in commercial data bases, than to obtain the same information from a third party (usually through legal process) that has a confidential relationship with the subject.” DIOG § 4.4.3(D).

We questioned why the Midyear team did not serve subpoenas on or seek to obtain search warrants related to the last known persons to possess devices that the team was never able to locate. These included Combetta for the missing Archive Laptop and Clinton or her attorneys for Clinton’s handheld devices. Both FBI and Department witnesses told us that they believed Combetta and Clinton’s attorneys were being truthful that they could not locate these devices and therefore subpoenas would not have made a difference in these situations. This was a judgment call made by the prosecutors and agents, and we did not identify evidence that it was infected by bias or improper considerations.

We also found no evidence that the particular limitations contained in the consent agreements were based on improper considerations or bias. For example, the prosecutors told us that the scope of consent was often limited to the time period of Clinton’s tenure as Secretary of State, because that is when she had access to classified information. Although email communications among Clinton, her attorneys, and PRN staff following Clinton’s tenure may have been relevant to Clinton’s production of work-related emails to the State Department and the subsequent deletions of emails her attorneys deemed personal, the prosecutors told us that (1) most of these communications would have been protected by attorney-client privilege; and (2) the FBI obtained communications between Clinton’s staff, including her attorneys, and PRN staff from PRN. In determining that these and other limitations in the consent agreements were not unreasonable, we considered the Department and FBI policies cited above.

B. Decisions Not to Obtain or Seek to Review Certain Evidence[edit]

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The Midyear team did not obtain or review some evidence that we found might have been useful to the investigation. The team’s reasons for not doing so appear to have been based on limitations they imposed on the scope of their investigation, the desire to complete the investigation well before the election, and their belief that the foregone evidence was likely of limited value. Those reasons were, in part, in tension with Comey’s reaction and response in October 2016 to the discovery of emails between Clinton and Abedin on the Weiner laptop. However, we found no evidence that the decisions not to obtain this evidence were based on improper considerations or bias. We concluded that these were judgment calls made by the prosecutors and agents.

We asked members of the Midyear team why they did not seek to obtain the personal devices that Clinton’s senior aides used during their tenure at the State Department, given that these devices were both (1) potential sources of Clinton’s work-related or classified emails; and (2) unauthorized locations where classified emails were potentially being stored. In addition, we inquired about the decision not to obtain Huma Abedin’s personal devices given (1) that she stated during her interview that she had given them to her attorneys for production of her work-related emails to the State Department; and (2) the decision to seek a search warrant in October 2016 in order to search the Weiner laptop. Witnesses also told us they believed there was a flaw in the culling process that resulted in the exclusion of most of Abedin’s clintonemail.com emails from the State Department production.

We found that the FBI team and the prosecutors decided together to generally limit the devices they sought to those that either belonged to Clinton or were used to back-up or cull Clinton’s emails. The team provided, among others, the following reasons for placing this limitation on the scope of the investigation: (1) the culture of mishandling classified information at the State Department which made the quantity of potential sources of evidence particularly vast; (2) the belief that Clinton’s own devices and the laptops used to cull her emails were the most likely places to find the complete collection of her emails from her tenure as Secretary of State; and (3) the belief that the State Department was the better entity to conduct a “spill investigation.” With respect to the first rationale, we note that it fails to acknowledge that the team was not required to take an all-or-nothing approach. For example, a middle ground existed where those devices belonging to Clinton’s three top aides—which the team determined accounted for approximately 68 percent of Clinton’s email exchanges—would have been reviewed, but devices belonging to other State Department employees would not.

Regarding Abedin’s devices, witnesses told us that Abedin played largely an administrative role on Clinton’s staff and, as such, they did not believe her emails were likely to be significant to the investigation. Yet, as referenced above, this view was in tension with Comey’s approach in late October 2016, discussed in detail in Chapters Nine and Ten. Comey described the discovery on the Weiner laptop in October as being the potentially “golden emails” based on what we concluded was very little information about the possible contents of the emails—a stark contrast to the Midyear team’s assessment that the potential emails on Abedin’s devices, including exchanges with Clinton, were unlikely to be significant. The team distinguished their approach with the Weiner laptop based mostly on the fact that it happened to be in the government’s possession.

We recognize that reasonable minds differ on investigative approaches. We concluded that, in deciding not to seek the devices of Clinton’s top aides, the Midyear team members weighed what they believed to be the limited evidentiary value of the senior aides’ devices against their concerns about how pursuing them would add time to and increase the scope of the investigation. Ultimately, Department prosecutors have discretion with respect to “when, whom, how and even whether to prosecute for apparent violations of federal criminal law,” provided that discretion is exercised without reliance on improper considerations, such as political bias or concerns for personal gain, and otherwise consistent with their oath of office and Department policy. See USAM 9-27.110 (comment) (citing U.S. Const. Art. II § 3; United States v. LaBonte, 520 U.S. 751, 762 (1997); Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974); Oyler v. Boles, 368 U.S. 448 (1962); United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965)); 5 U.S.C. § 3331 (oath of office). We did not find evidence that the decisions not to obtain the senior aides’ devices were based on improper considerations, nor did we find that the reasons provided were a pretext for improper considerations. We also did not find that the decisions regarding the scoping of the investigation were inconsistent with any Department polices. Accordingly, these were judgment calls that were within the discretion of the Midyear agents and prosecutors to make.

In addition, as we describe in the classified appendix to this report, the OIG learned near the end of our review that the FBI had considered obtaining permission from the Department to review certain classified materials that may have included information potentially relevant to the Midyear investigation. Although the Midyear team drafted a memorandum to the Deputy Attorney General in late May 2016 stating that review of the highly classified materials was necessary to complete the investigation and requesting permission to access them, the FBI never sent this request to the Department. FBI witnesses told us that they did not seek access to these classified materials for various reasons, including that they believed this information would not materially impact the conclusion. The classified appendix describes in more detail the highly classified information, its potential relevance to the Midyear investigation, the FBI’s reasons for not seeking access to it, and our analysis.

C. Voluntary Interviews[edit]

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The Midyear investigation did not use the grand jury for the purpose of collecting testimony from witnesses. FBI and Department witnesses told us that through voluntary interviews they were able to establish better rapport with witnesses and avoid risks associated with exposing grand jurors to classified information. We found no evidence that the use of voluntary interviews instead of grand jury testimony was based on improper considerations or influenced by bias. Rather, we concluded that these were judgment calls made by the prosecutors and agents.

As with the use of consent to obtain documentary and physical evidence, the use of voluntary interviews instead of grand jury testimony was consistent with the DIOG’s preference for the “least intrusive” method. In addition, due to grand jury secrecy the use of voluntary interviews contributed to the FBI’s ability to be transparent in response to FOIA requests and Congressional inquiries. The preference for voluntary interviews also was consistent with Department policy regarding the use of classified information before the grand jury. Before classified information can be utilized before the grand jury, the USAM requires prosecutors to seek approval from the agency responsible for classifying the information. USAM 9-90.230. Witnesses told us that this can be a lengthy process. In addition, the USAM cautions that questioning grand jury witnesses regarding classified information poses a risk that the witness will disclose more classified information than expected or permitted. Id. Even if the Midyear team could have obtained the necessary approvals to use classified information in the grand jury, the prosecutors told us that there are concerns with exposing grand jurors to classified information—the more individuals that are exposed to classified information, the greater the risk of compromise.

The Midyear prosecutors told us they kept open the possibility of subpoenaing witnesses before the grand jury, especially witnesses like Paul Combetta, whose testimony would not likely require the disclosure of classified information. The Midyear team subpoenaed Combetta to appear before the grand jury. However, Department prosecutors and FBI agents ultimately decided that questioning him before the grand jury was unnecessary because (1) they perceived him to be credible during his third interview; and (2) he did not implicate anyone else in criminal conduct such that it would have been helpful to “lock in” his testimony for a future trial. We did not find evidence that this decision was motivated by an improper consideration.

D. Use Immunity Agreements[edit]

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Prosecutors have wide latitude in deciding to whom to give immunity, and the Department entered into “letter use” or “Queen for a Day” immunity agreements with three witnesses in the Midyear investigation: Pagliano, Combetta, and Bentel. We found no evidence that the decisions to enter into these immunity agreements were based on improper considerations. The factors that the Midyear prosecutors told us they considered in deciding to grant immunity were consistent with the factors Department policy required them to consider, including:

  • “The value of the person’s testimony or information to the investigation or prosecution;”
  • “The person’s relative culpability in connection with the offense or offenses being investigated or prosecuted;” and
  • “The possibility of successfully prosecuting the person prior to compelling his or her testimony.”

See USAM 9-23.210.

With respect to Pagliano, the prosecutors told us that they entered into a letter use immunity agreement because they believed the information he could provide regarding the set-up and maintenance of Clinton’s servers was critical to the Midyear investigation and they determined that he faced no criminal exposure. Based on a review of his FD-302s (as described in Section VII.A of this chapter) and the fact that PIN considered and declined criminal charges against Pagliano, we found that the prosecutors’ assessments regarding Pagliano were not unreasonable or motivated by improper considerations or bias.

With respect to Bentel, the only immunity agreement was a Queen for a Day proffer agreement. This agreement prevented the Department from using any statements made by Bentel pursuant to the agreement against him in its case-inchief in any subsequent prosecution, but did not prevent the Department from using leads obtained from Bentel’s statements or using Bentel’s statements to cross-examine him in any future prosecution. See Chapter Two, Section I.E.3. The prosecutors assessed that interviewing Bentel was a necessary investigative step, and that he faced no criminal exposure. Based on our review of Bentel’s FD-302 and the limited nature of the Queen for a Day immunity agreement, we found that the prosecutors’ decision to grant Bentel immunity was not unreasonable or based on improper considerations or bias.

With respect to Combetta, we found his actions in deleting Clinton’s emails in violation of a Congressional subpoena and preservation order and then lying about it to the FBI to be particularly serious. We asked the prosecutors why they chose to grant him immunity instead of charging him with obstruction of justice, in violation of 18 U.S.C. § 1505, or making false statements, in violation of 18 U.S.C. § 1001.

Department policy provides that, when considering whether to pursue criminal charges against an individual:

The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

USAM 9-27.220. In determining whether the prosecution would serve a federal interest, the Department should “weigh all relevant considerations,” including:

  • “The nature and seriousness of the offense;”
  • “The person’s culpability in connection with the offense;” and
  • “The person’s willingness to cooperate in the investigation or prosecution of others.”

USAM 9-27.230.

We received mixed testimony from Department and FBI witnesses regarding the strength of the evidence that Combetta committed obstruction or made false statements following his first two interviews. The prosecutors and agents we interviewed indicated that, even assuming that “the admissible evidence [was] probably...sufficient to obtain and sustain a conviction” after Combetta’s first two interviews—an assumption the prosecutors indicated was not necessarily true—they believed prosecuting Combetta would not “serve a federal interest.” The reasons they provided to us for reaching this conclusion included: (1) relevant to the nature and seriousness of the offense, there was no evidence that Combetta knew anything about the content of the emails on Clinton’s server or that they were classified when he deleted them; (2) relevant to Combetta’s culpability, they believed Combetta’s failure to be forthcoming had been primarily due to poor representation rather than a motive to mislead the investigators; and (3) relevant to his willingness to cooperate, Combetta was willing to cooperate with immunity. Prosecutor 1 told us that the team would have considered pursuing charges against Combetta if he refused to cooperate with immunity, but that granting immunity was “the most expedient way” to obtain truthful information from him.

The prosecutors told us they believed granting Combetta use immunity was the best available option. They told us that they could not forgo Combetta’s testimony, because they believed his truthful testimony regarding his role and the roles of others in the March deletions was essential to the investigation. Moreover, they said they had no means other than immunity to gain his testimony, because he had stated that he would invoke his Fifth Amendment privilege against self-incrimination. The prosecutors told us they did not charge Combetta and then pursue his cooperation in exchange for a guilty plea to reduced charges or a sentencing reduction because of, as discussed above, concerns about the strength of the admissible evidence and because they did not believe criminal charges were in the federal interest given his willingness to cooperate with immunity. The decision to choose a use immunity agreement over a non-prosecution agreement is supported by the USAM, which provides that immunity is (1) appropriate when “the testimony or other information that is expected to be obtained from the witness may be necessary to the public interest;” and (2) preferable to a non-prosecution agreement in exchange for cooperation because immunity “at least leave[s] open the possibility of prosecuting [the witness] on the basis of independently obtained evidence.” USAM 9-23.210; 9-27.600 (comment).

We did not find evidence that the judgments made by the prosecutors in entering into these immunity agreements were inconsistent with Department policy, or based on improper considerations or bias. Ultimately, assessing the strength of the evidence and applying the provisions of the U.S. Attorney’s Manual in determining whether to pursue federal criminal charges is a matter within the discretion and judgment of the prosecutors.

E. Mills and Samuelson[edit]

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The issues surrounding obtaining Mills’s and Samuelson’s testimony regarding the culling process and searching the culling laptops consumed a significant amount of the Midyear team’s time and attention and caused significant strife between the FBI and Department prosecutors. Several members of the FBI Midyear team, including Comey, expressed concerns that the prosecutors had not been sufficiently aggressive. Ultimately, Mills and Samuelson submitted to voluntary interviews—albeit with limitations that prevented the investigators from soliciting privileged information—and the laptops were secured through consent agreements and act-of-production immunity. Both the prosecutors and the FBI told us that the team obtained what it needed from Mills and Samuelson to conduct a thorough investigation. Comey himself, during a speech at an October 2016 FBI conference for Special Agents in Charge, which we describe below in Chapter Eight, acknowledged the complex issues involved with obtaining the culling laptops from Mills and Samuelson. He further stated that the decision to obtain the culling laptops by consent was “reasonable...to short circuit the months and months of litigation that would've come otherwise” and that he was “actually surprised they agree[d] to give us the laptops.”

We noted that these decisions concerning the laptops were occurring at a time when Comey and the Midyear team had already concluded that there was likely no prosecutable case and believed it was unlikely the culling laptops would change the outcome of the investigation. Moreover, as we describe in Chapter Six, at the time of the deliberations regarding the Mills and Samuelson issues, Comey was motivated by a desire to “credibly” complete the investigation sufficiently in advance of the election to not be perceived as political. Consistent with this motivation, Comey told us that one of the reasons he raised the possibility of a Special Counsel with Yates in April 2016 was to push the Department to move more quickly to obtain the culling laptops. Comey also pressed the Midyear investigators in early May for the prompt completion of the investigation.

The Mills and Samuelson issues were somewhat complicated. Not only were Mills and Samuelson both fact witnesses, Mills had numerous classified emails pass through her unclassified government and personal email addresses while working at the State Department under Secretary Clinton; both Mills and Samuelson acted as attorneys for Clinton after they departed from the State Department; and both were represented by their own (and the same) counsel, Beth Wilkinson, while former Secretary Clinton was represented by separate counsel, David Kendall, in connection with the Midyear investigation. These different layers of conduct and representation made obtaining evidence from Mills and Samuelson complex, whether the prosecutors sought to obtain the evidence by consent or compulsory process. In seeking evidence by consent, they had to consider whose consent was necessary—Wilkinsons’s on behalf of Mills and Samuelson, Kendall’s on behalf of Clinton, or both. They had to be cognizant of attorney-client privilege and attorney-work product with respect to Mills’s and Samuelson’s relationship to Clinton, Kendall’s relationship to Clinton, Wilkinson’s relationship to Mills and Samuelson, and information on the laptops related to Mills’s and Samuelson’s representation of other clients. They had to consider the implications of the fact that Wilkinson represented both Mills and Samuelson, as well as two other witnesses in the Midyear investigation. They also had to consider the policy restrictions set forth in the USAM, ethical issues, strategic issues (such as whether issuing criminal process might jeopardize the testimony that Mills consented to provide regarding her tenure at the State Department), and the concern that using criminal process could delay the investigation. Based on the evidence we reviewed, the Department prosecutors extensively considered all of these issues, analyzed the relevant law and policy, and ultimately made judgment calls with respect to Mills and Samuelson that were within their exercise of prosecutorial discretion and we found were not unreasonable.

We likewise found no evidence that bias impacted the decision to obtain testimony and evidence from Mills and Samuelson by consent agreement and with act-of-production immunity. Indeed, individuals for whom we had concerns about potential bias due to the content of their electronic messages advocated for the use of aggressive investigative measures with respect to Mills and Samuelson. For example, Strzok and Page both urged the Department to issue grand jury subpoenas for Mills’s and Samuelson’s testimony regarding the culling process and to seek a search warrant to seize the culling laptops from Wilkinson’s office.

The prosecutors told us that they followed the procedures set forth in Department policy for obtaining testimony and evidence from attorneys related to their representation of clients. Based on our review of the relevant Department policy and privilege law, we found that the prosecutors’ interpretations of the relevant Department policy were not unreasonable and we found no evidence that they were motivated by improper considerations. In accordance with 28 C.F.R. § 59.4, USAM 9-19.220, and USAM 9-13.420, the prosecutors correctly determined that, in the absence of evidence that such efforts would compromise the investigation, they could not seek a search warrant to seize the culling laptops from Wilkinson’s office without first attempting to obtain the culling laptops through consent and, if that was unsuccessful, a grand jury subpoena. Under the circumstances, and in accordance with USAM 9-13.410, they determined that they could not issue a subpoena for the culling laptops without first taking several preliminary steps, including: (1) assessing whether the laptops were reasonably needed for the successful completion of the investigation, (2) attempting to first obtain the laptops by consent, and (3) seeking approval from the AAG or DAAG of the Criminal Division. Also in accordance with USAM 9-13.410, they determined that they could not issue subpoenas for Mills’s and Samuelson’s testimony regarding the culling process without first seeking their testimony by consent and tailoring their questions such that they did not seek information that was “protected by a valid claim of privilege.”

In accordance with these policies, the prosecutors conducted voluntary interviews with Mills and Samuelson, obtained Criminal Division approval to issue subpoenas for the culling laptops, and ultimately obtained the culling laptops through consent agreements and act-of-production immunity agreements rather than subpoena. They told us that, even with the approval for subpoenas, they believed securing the laptops through consent was preferable to avoid the uncertainty and delays of a potential motion to quash the subpoenas. The act-of-production immunity agreements prevented the Department from using information obtained from the laptops in a criminal prosecution against Mills or Samuelson for violations of 18 U.S.C. §§ 793(e) and (f) (felony mishandling of classified information), 18 U.S.C. § 1924 (misdemeanor mishandling of classified information), and 18 U.S.C. § 2071 (destruction of federal records). The immunity agreements did not prevent the Department from: (1) using information obtained from the laptops to prosecute Mills or Samuelson for other crimes, such as obstructing a Congressional or FBI investigation or lying to federal investigators; (2) using evidence obtained from other sources, including their voluntary interviews, to prosecute Mills and Samuelson for mishandling classified information, destroying federal records, or any other offenses; (3) using information obtained from the laptops to prosecute other individuals, including Clinton, for mishandling classified information, destroying federal records, or any other offenses; or (4) using leads developed as a result of the FBI’s review of the information on the culling laptops.

Ultimately, these decisions were judgment calls made by, and within the discretion of, the prosecutors, much like the decisions discussed above regarding use immunity agreements. We found no evidence that these decisions were the result of improper considerations or were influenced by bias.

F. Handling of Clinton’s Interview[edit]

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By the time of Clinton’s interview on July 2, we found that the Midyear agents and prosecutors, along with Comey, had decided that absent a confession or false statements by Clinton, the investigation would be closed without charges. We further found that this conclusion was based on the prosecutors’ view that there was insufficient evidence of Clinton’s knowledge and intent to support criminal charges, which we discuss in detail in Chapter Seven.

We did not find evidence that decisions regarding the timing or scoping of Clinton’s interview were based on improper considerations or influenced by bias. In addition, based on our review of the FD-302 and contemporaneous notes, the investigators appeared to ask appropriate questions of Clinton and made use of documents to challenge Clinton’s testimony and assess her credibility during the interview.[121] However, we had three primary concerns related to the Clinton interview: (1) text messages sent by Page to Strzok, McCabe, and another FBI employee that appeared to suggest that the team limit the number of attendees at Clinton’s interview because she might be the next President and it could leave her upset at the FBI; (2) certain instant messages sent by Agent 1, who was one of the case agents that handled Clinton’s interview; and (3) the presence of Mills and Samuelson at Clinton’s interview, despite that they were also witnesses in the investigation.

With regard to the number of attendees, Page sent the following text message in support of fewer agents and prosecutors attending Clinton’s interview: “[S]he might be our next president. The last thing you need us going in there loaded for bear. You think she’s going to remember or care that it was more doj than fbi?”[122] The text messages and contemporaneous emails reflect that Page was particularly concerned with the Department’s request that four prosecutors attend the interview. Ultimately, eight people attended Clinton’s interview from the Department and FBI, including five prosecutors. Therefore, we concluded that Page’s suggestion of limiting the number of attendees to four or six did not in fact occur. Moreover, based on witness testimony, we found that the approach Page was advocating—keeping the number of interviewers down to a lower number—was consistent with legitimate investigative strategy.

Nevertheless, we found that Page’s statement, on its face, consisted of a recommendation that the Midyear team consider how Clinton would treat the FBI if she were to become President in deciding how to handle Clinton’s interview. Suggesting that investigative decisions be based on this consideration was inappropriate and created an appearance of bias.

We also were concerned that Agent 1 was one of the two agents who questioned Clinton during the interview given certain instant messages that we identified from Agent 1, including some that expressed support for Clinton and hostility toward Trump. We interviewed each of the seven other FBI and Department attendees at Clinton’s interview, and none of them expressed concerns regarding the conduct of the interview. We also did not find, based on our review of the interview outline prepared in advance of the interview as well as the FD-302 and contemporaneous notes of the interview, evidence that bias or improper considerations influenced the conduct of the interview. We took note of the fact that, because the Midyear team and Comey had concluded prior to the interview that the evidence did not support criminal charges (absent a confession or false statement by Clinton during the interview), the interview had little effect on the outcome of the investigation. Nonetheless, as discussed above, we found Agent 1’s messages to be troubling and in Chapter Twelve, we discuss the impact of these instant messages on such matters as the public perception of the handling of the Midyear investigation and the FBI.

Finally, we questioned why the Department and FBI allowed Mills and Samuelson, two percipient witnesses (one of whom, Mills, herself had classified information transit through her unclassified personal email account) attend Clinton’s interview, even if they had also both served as lawyers for Clinton after they left the State Department. The FBI and Department employees we interviewed all agreed that the attendance of Mills and Samuelson at Clinton’s interview posed potential evidentiary problems, was unusual, and was unhelpful from an “optics” perspective. Witnesses also told us that the only way they could have excluded Mills and Samuelson was by subpoenaing Clinton before the grand jury, but that the team did not seriously consider that option. If the team had issued a grand jury subpoena, Clinton either would have been required to testify before the grand jury without her attorneys in the room or she might have agreed to a voluntary interview outside the presence of Mills and Samuelson to avoid having to appear before the grand jury, given that a grand jury appearance would have delayed the investigation.

We did not find evidence that bias played a role in the decision to proceed with the Clinton interview with Mills and Samuelson in attendance. Rather, we concluded that it was largely based on four factors. First, the Midyear prosecutors were concerned about interviewing Clinton before the grand jury because of the challenges of presenting classified information before the grand jury. Second, the Midyear team had decided by the time of Clinton’s interview that the case was headed toward a declination absent a confession or false statement by Clinton. Third, had Clinton been required to testify before the grand jury, the FBI would not have been able to participate in the interview. Fourth, the team planned to pause the interview and conduct a sidebar with Kendall if Mills or Samuelson interfered during the interview.

Ultimately, witnesses told us that Mills and Samuelson did not interfere, object, or speak substantively during the interview. Moreover, Clinton’s interview did not result in any change in the conclusion of the Midyear team and Comey that a declination decision was warranted. Accordingly, we found no persuasive evidence that Mills’s or Samuelson’s presence influenced Clinton’s interview, or that the outcome of the investigation would have been different had Clinton been subpoenaed before the grand jury.

Nevertheless, we found the decision to allow the Clinton interview to proceed in the presence of two fact witnesses, who also were serving as Clinton’s counsel, was inconsistent with typical investigative strategy and gave rise to accusations of bias and preferential treatment.[123] Moreover, there are serious potential ramifications when one witness attends another witness’s interview. The Midyear team could have developed information during the Clinton interview that led the team to reconsider its conclusion that the investigation was headed towards a declination, or led the team to believe that Clinton made a false statement during the interview. In either case, the presence of two fact witnesses at the interview could have negatively impacted subsequent FBI investigative efforts or a subsequent trial. We believe that it would have been useful for the Midyear team to have had guidance to consider in this situation. Thus, we recommend that the Department and the FBI consider developing guidance consider developing practice guidance that would assist investigators and prosecutors in identifying the general risks with and alternatives to permitting a witness to attend a voluntary interview of another witness, in particular when the witness is serving as counsel for the other witness.

Chapter Six: “Endgame” Discussions And Former Director Comey’s Public Statement[edit]

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Our review found that the Midyear team concluded beginning in early 2016 that evidence supporting a prosecution of former Secretary Clinton or her senior aides was likely lacking. This conclusion was based on the fact that the Midyear team had not found evidence that former Secretary Clinton or her senior aides knowingly transmitted classified information on unclassified systems because (1) classified information exchanged in unclassified emails was not clearly or properly marked, and (2) State Department staff introducing classified information into emails made an effort to “talk around” it. Although the Midyear team continued its investigation, taking the investigative steps described in Chapter Five and looking for evidence that could change their assessment, they also began discussing what witnesses referred to as the “endgame” for the investigation—ways for the Department and FBI to credibly announce the closing of the investigation.

In this chapter, we discuss the factors that led the Midyear team to conclude that the investigation likely would result in a declination. We then describe the discussions among Comey, Rybicki, Yates, and Axelrod beginning in April 2016 about how to announce the closing of the Midyear investigation, including Comey’s mention of a special counsel and Lynch’s knowledge of these discussions. We also describe the origins of Comey’s decision to hold a press conference without coordinating with or informing the Department in advance, the various drafts of his public statement, and the Department’s reactions to the statement after he delivered it on July 5, 2016. In addition, we describe the tarmac meeting between Lynch and former President Bill Clinton on June 27, 2016, and its impact on the Midyear investigation. Finally, we describe Comey’s congressional testimony about the reasons for his public statement.

I. Evidence that the Case Was Headed toward a Declination[edit]

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As described above, both Department and FBI witnesses said that the central question in the Midyear investigation was whether there was evidence that former Secretary Clinton and her aides acted with knowledge that the information transmitted was classified or transmitted with criminal intent. Various witnesses told the OIG that the investigation focused on identifying what classified information transited former Secretary Clinton’s server, who introduced it, and why. The investigative team looked for evidence that individuals who sent emails containing classified information did so with knowledge that the information was classified—for example, took information from documents that were marked with classification headers and stripped off the header information—or that former Secretary Clinton’s private server was set up to circumvent classification requirements.

From early in the investigation, the investigative team said they knew that proving intent would be a challenge.[124] Prosecutor 1 told the OIG:

[T]his whole case turned on mens rea [guilty state of mind].... I’ve run a lot of mishandling cases. The issue is usually that people are taking things home or they’re communicating them to someone for, to set up a business outside or to do something that’s like, what we don’t tend to prosecute criminally anyway are people who are communicating things for work purposes.... Usually to people who are already cleared. So, those are the kinds of things that when we’re talking about mens rea, were sort of instructive for us....

This prosecutor explained that Secretary Clinton and her staff did not display any of the counterintelligence indicators that prosecutors typically see in mishandling cases, such as unreported foreign contacts or “weird” meetings with foreigners. This prosecutor said that evidence of intent was lacking for other reasons as well, including that numerous witnesses testified that the State Department had terrible information technology (IT) systems and that its remote email system did not work when employees were traveling and sending emails in different time zones. As a result, the investigative team said they could not infer bad intent from the use of personal email accounts as they might in other cases.

Prosecutor 2 similarly stated that mishandling cases generally involve “people who have an intent to give classified information to others, people who have an intent to...take documents home and...do nefarious things with them, or sometimes hoarders of classified information.” This prosecutor told the OIG that, unlike the typical mishandling case, the State Department employees who introduced classified information into the unclassified system were trying to “talk around” it in the course of doing their jobs. This prosecutor stated, “And looking in terms of some of the times when the classified information appeared on [un]classified systems in this case, we see, we see problems, you know, late at night, weekends, the time between Christmas and New Year’s when no one is in the office.”

FBI officials agreed with the prosecutors that the need to prove intent was problematic from the outset. In his recent book, Comey stated:

{{quote|...Hillary Clinton’s case, at least as far as we knew at the start, did not appear to come anywhere near General Petraeus’s in the volume and classification level of the information mishandled. Although she seemed to be using an unclassified system for some classified topics, everyone she emailed appeared to have both the appropriate clearance and a legitimate need to know the information. So although we were not going to prejudge the result, we started the Clinton investigation aware that it was unlikely to be a case that career prosecutors at the Department of Justice would prosecute. That might change, of course, if we could find a smoking-gun email where someone in government told Secretary Clinton not to do what she was doing, or if we could prove she obstructed justice, or if she, like Petraeus, lied to us in an interview. It would all turn on what we could prove beyond a reasonable doubt[.][125]

As described in more detail below, Comey said that by early May 2016, when he wrote the first draft of his public statement, the Midyear team was aware that evidence of intent was lacking.

Others on the Midyear team agreed. FBI Attorney 1 stated, “I have cases where there [are] people with thousands of classified documents in their home and we don’t prosecute them.... [T]his is not something we prosecute lightly or we do regularly. There needs to be, usually, some either nefarious intent or some...actual harm that has happened because of it.” Agent 2 told the OIG:

[F]rom like my level looking at it...you were hard-pressed to find the intent of anyone to put classified information on that server. And again, sloppy security practices, for sure. Right? But, and, and preventable? Yes. But somebody intentionally putting classified on it, we just never found clear-cut evidence of somebody intending to do that.

As early as September 2015, FBI and Department officials realized that they were unlikely to find evidence of intent. Prosecutor 2 stated that within a month of first obtaining criminal process, they had seen no evidence of intent. This prosecutor told the OIG that the team realized that the case likely would lead to a declination after they had reviewed the classified information in former Secretary Clinton’s emails and heard the explanations for including that information in unclassified emails. Prosecutor 2 said that there were a number of other investigative steps they needed to take to complete their due diligence, but that by September 2015 they knew that they would need a “game changer” to be able to prove intent.

Notes obtained by the OIG from a meeting between Toscas and then EAD John Giacalone on December 4, 2015, confirm that the lack of intent was the subject of ongoing discussions. According to the notes, Giacalone asked the team, “Still [do not] have much on the intent side, right?” The notes show that the team members present at the meeting agreed with him. Giacalone, who retired from the FBI in February 2016, said that there were “no smoking guns” showing intent when he left.

Similarly, other notes show that prosecutors met with NSD supervisors on January 29, 2016, to discuss the lack of evidence supporting prosecution. The notes state:

Don’t see prosecutable case at this point. A lot of stuff done from Ops Center [lower level State Department staff] —> up. HRC is receiving. Want to insulate DOJ from criticism about how we did this work. No daylight [between] FBI management and investigative team agents re: view of criminal liability.

Asked what led the team to conclude by January 2016 that there would not be a prosecutable case, Laufman said that there was not a fixed point in time or organized discussion that produced this realization. He said that every time the team concluded “another consequential investigative step, and no additional information emerged that...pointed in the direction of potential criminal liability, then the…foundation of facts emerged that was not likely to support a recommendation to charge.”

Asked whether there was a particular piece of evidence or an interview that led to the realization that the case would result in a declination, Prosecutor 3 stated that it became apparent once the team had interviewed all of former Secretary Clinton’s senior staff members, including Jake Sullivan and Cheryl Mills, and heard the same explanation for what they believed to be an innocuous transmission of emails containing classified information. Other witnesses described the team’s realization that the investigation would not result in a prosecutable case as “iterative” or “emerging over time” based on the cumulative lack of intent evidence over the course of the entire investigation. In any event, various witnesses agreed that the team had come to the conclusion that there likely was not a prosecutable case by the Spring of 2016.

Baker told the OIG that he thought that the conduct of former Secretary Clinton and her senior aides was “appalling with respect to how they handled the classified information...[and] arrogant in terms of their knowledge and understanding of these matters.” He stated that he was concerned about former Secretary Clinton’s level of knowledge and intent, and thought that she should have recognized the sensitivity of information in the emails sent to her. Baker said that he “debated and argued” with Comey and the Midyear team about former Secretary Clinton’s criminal liability, but ultimately came to the conclusion that declining prosecution was the correct decision after reviewing a binder of her emails. Baker said that he recognized there was a lack of evidence establishing knowledge or criminal intent, and that based on “the volume of...communications coming at [Clinton] at all times, day and night, given the heavy responsibilities that a Secretary of State has, isn’t she entitled to rely on [the classification determinations by] her folks?” Baker stated that he “did not like it.... I eventually agreed with it, but I did not like it.”

Yates told the OIG that she had been getting updates regularly from Carlin and Toscas about where the investigation was going. In Spring 2016, Carlin or Toscas told her that if the investigation continued in the same direction it was going, they expected that the prosecutors and the agents would be recommending a declination. Yates told us that this assessment of the case was based on evidence indicating that the people transmitting classified information did not have a “bad purpose.” She pointed to a variety of factors, including that emails were sent by State Department employees to other State Department employees, and usually contained time-sensitive logistical information that former Secretary Clinton needed to receive. She said that the information was not marked classified, with the exception of three paragraphs that were portion marked as “Confidential,” and that there were even disputes within the originating agencies as to whether the information should be classified at all.

Yates said that Department leadership began talking internally in the Spring of 2016 about how to convey a declination decision because they knew that it would be controversial, and that they were all of the view that it needed to be clear that the decision was supported by both the FBI and the Department. Yates said that these discussions always proceeded with the “great big caveat” that former Secretary Clinton could lie during her interview, but that they could not wait until after the interview to begin preparing for a declination due, in part, to the proximity of the election. Discussions between the FBI and the Department about the “endgame” for concluding the Midyear investigation began around this same time, and are described in more detail below.

II. Discussions between FBI and Department Leadership about How to Credibly Announce a Declination (Spring 2016)[edit]

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As noted above, Comey said that the Midyear team was aware from the outset that the investigation was unlikely to result in a prosecutable case, absent a “smoking-gun” email. Comey told the OIG that he realized sometime in March or April 2016 that the evidence obtained in the Midyear investigation likely would not support a prosecution. Asked what led him to that conclusion at that time, Comey stated:

[T]he picture that was fairly clear at that point, [was] that Hillary Clinton had used a private email...to conduct her State Department business. And in the course of conduct [of] her State Department business, she discussed classified topics on eight occasions TS, dozens of occasions SECRET, and there was no indication that we had found that she knew that was improper, unlawful, that someone had said don’t do that, that will violate 18 U.S.C. [the federal criminal code], but that there was no evidence of intent and it’s looking, despite the fact of the prominence of it, like an unusual, but in a way fairly typical spill and that there was no fricking way that the Department of Justice in a million years was going to prosecute that. And because Counterintelligence Division of the FBI was involved in all the other spill cases and it collected for me the history of them, no way, there’s no way, unless we find something else in May and June or we get [18 U.S.C. §] 1001 [false statements] handed to us during her interview.

Comey said that, as he came to this realization, he became concerned that the Department would be unable to announce the closing of the investigation in a way that the public would find credible and objective. Comey said he was concerned that having the Department’s political leadership announce a declination would expose it to a “corrosive doubt about whether you did [the investigation] in a credible way.” He said that this concern “dominated [his] thinking...for most of 2016, but especially from the spring on.” According to Comey, his concern was based on the appearance or perception created by the Department’s leadership declining prosecution of the presumptive Democratic nominee, because they were political appointees; it was not based on evidence that Lynch or Yates were interfering in the investigation or were politically biased.

A. Initial Discussion between Comey and Yates in April 2016[edit]

1. Options Discussed at the Meeting[edit]

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Comey said that beginning in March or April 2016, he began to think of ways to announce a declination. Comey said that during this time he had a meeting with Rybicki, Yates, and Axelrod to discuss how the FBI and Department could credibly close the investigation. Based on Yates’s description of the circumstances of the meeting (described below) and FBI emails, we determined that this meeting likely took place on Tuesday, April 12, 2016.

According to Comey, he told Yates and Axelrod during the meeting that they needed to begin thinking about the how to announce the end of the investigation. Comey said that he told Yates, “[M]y sense of this, and I’m not done, but my sense of this is this is heading for a declination and how do you credibly decline this? And what can you say to people to support the credibility of the work that’s been done?”

Comey said that he urged Yates and Axelrod to consider the most transparent options available for announcing a declination. Comey told the OIG:

[M]y view was, still is, that the more information you are able to supply, the higher the credibility of the investigation and the conclusion. And that especially in a poisonous political atmosphere, where all kinds of nonsense is said, the more you can fill that space with actual facts, the more reliable, believable, credible the conclusion is.

He stated, “People are still going to disagree. They are still going to fight, but at least there will be facts in the public square that show...[we] did this in a good way, thought about it in a good way and here is our reasoning as to why we think there is no there there.”

Comey told the OIG that they did not discuss or consider specific options, but that he simply said to Yates, “[Y]ou need to get smart people working on what are the range of possibilities...what is possible under the law, I remember mentioning the Privacy Act, what is possible and what are the vehicles for transparency, what are the outer boundaries.... I think I just teed up the issue and said, hope you will get smart people thinking about this.” Asked whether he was ever involved in discussions about a joint appearance with Attorney General Lynch, Comey said that he did not recall any discussions about that option.

Yates recalled this discussion with Comey differently. Yates said that she had a regular monthly meeting with Comey, and that the day before one of these meetings, Axelrod received a call from Rybicki suggesting that they meet to discuss how to conclude the case. She did not recall precisely when this meeting took place or what had happened in the investigation leading up to it, but she described the investigation at that time as “wrapping up.”

Yates said that the meeting took place in her office. She said that they talked about the investigation and agreed that public confidence in its resolution was important. She said that everyone was of the same view that there was not a criminal case based on the evidence to date, and that it was not going to be sufficient to announce the conclusion by saying, “We looked at it...case closed.” She said that the four of them agreed that people needed to have confidence that there had been a thorough look at the facts, and that a declination was the right decision.

Yates told the OIG that any discussion about how to announce a declination always proceeded with “great big caveat on it” that former Secretary Clinton could lie during her interview. Yates stated, “This is if things continue to go that way. Because you don’t want to be like planning the declination that you don’t really know is a declination yet. Because I mean, if she lied for example. There’s about, that could change things entirely if she wasn’t truthful in the interview.”

According to Yates, one of the options they considered was a written memorandum released to the public, which would give some level of facts about the investigation. Yates stated that they all agreed that if they released a written memorandum, they also would need to hold a press conference to allow them to “look the [American] people in the eye” and say that there was not a criminal case, rather than “hiding behind a behind a [press] release or a writing that...would not be sufficient to convey the earnestness of that decision.” She said that no one committed to a decision at this meeting, but rather they were “thinking out loud.”

We asked Axelrod about these discussions between Yates and Comey. He said they focused on whether the FBI would be part of any announcement at the conclusion of the investigation. Axelrod said that they discussed preparing a letterhead memorandum (LHM) that could at least be provided to Congress, along with some form of a public announcement.

Axelrod said that one of the options they discussed was a joint announcement involving Lynch and Comey. Axelrod told the OIG that “the view from the Department was it would be important for the Bureau to be part of that.” He stated, “[Comey] hadn’t committed to it but was...comfortable with it being some sort of joint thing.” Asked why he thought it was important to have Comey participate in an announcement, Axelrod said that it was important for the Department and the FBI to display a “unified front...having both organizations together saying the truth, which was this was done by the book and this was the result.”

Axelrod said that they never discussed the idea of Comey being the one to announce a declination because it was never raised, but that he was “not sure that would have been rejected out of hand.” He stated, “[T]here would have been some advantages to that having been coordinated and planned that way. And some disadvantages, too.... [T]he thing...that I knew that the Department felt strongly about was that Bureau had to be part of that [announcement].”

Rybicki said that he did not recall any specific discussions, stating, “I just remember all ideas sort of being, you know, people talking about, you know, press conferences and, and, and ways of closing and things like that. I don’t remember specific conversations.”

2. Comey Mentions a Special Counsel at April Meeting with Yates[edit]

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Comey’s Testimony[edit]

Comey told the OIG that during the April meeting with Yates and Axelrod, he told Yates that the closer they got to the political conventions, the more likely he would be to insist that a special counsel be appointed, because there was no way the Department could credibly finish the investigation once former Secretary Clinton was the Democratic Party nominee. Comey said that his comment to Yates was motivated in part by his frustration that it was taking the Midyear prosecutors too long to obtain the Mills and Samuelson laptops (discussed above in Chapter Five). He said that he emphasized to Yates that the team needed to obtain the laptops to be able to finish the investigation. According to Comey, Yates reacted to his comment about the possible need for a special counsel with concern, and that he responded, “[L]ook I’m not saying we have to do it, but the deeper we get into this summer, the more likely it’s going to be that I’ll feel that way. And I was saying it in part to get them to just move—to move, to get us this thing [the laptops].”

As part of this discussion, Comey said he recounted his experience when he was the DAG appointing then U.S. Attorney Patrick Fitzgerald as the special counsel to investigate the leak of the name of a covert CIA operative, Valerie Plame.[126] He said he explained to Yates that the investigation focused in part on whether Karl Rove, then President George W. Bush’s senior political advisor, had leaked the information, and that he (Comey) was concerned about the appearance of a conflict of interest between Rove and then Attorney General John Ashcroft because Rove had managed one of Ashcroft’s Senate campaigns. He told the OIG that he mentioned this to Yates because he saw similarities between the Plame leak case and the Midyear investigation: namely, that in the Plame case there was no basis to prosecute Rove, and he did not think the Bush Administration could have announced a declination in a way that assured the public the investigation was done objectively.

Comey said that his comment to Yates about appointing a special counsel also was motivated by concerns about the appearance of political bias in the Department. He said that these concerns were based on the overall political environment—given then President Obama’s comments about the investigation, he did not think the Department leadership could credibly complete the investigation without charges.[127]

Comey said that he also was concerned about an issue specific to Lynch. As discussed in more detail in the classified appendix to this report, Comey told the OIG that the FBI had obtained highly classified information in March 2016 that included allegations of partisan bias or attempts to impede the Midyear investigation by Lynch. Numerous witnesses we interviewed—including Comey—said that the FBI assessed that these allegations were not credible based on various factors, including that some of the information was objectively false. For example, the information also suggested that Comey was attempting to influence the investigation by extending it to help Republicans win the election, which witnesses said the FBI knew was not true. By mid-June 2016, the FBI had obtained no information corroborating the Lynch-related allegations.

When asked about this information, Comey stated that he knew it was not credible on its face because it was not consistent with his personal experience with Lynch. Comey stated, “I saw no, I’ll say this again, I saw no reality of Loretta Lynch interfering in this investigation.” However, Comey said that he became concerned that the information about Lynch would taint the public’s perception of the Midyear investigation if it leaked, particularly after DCLeaks and Guccifer 2.0 began releasing hacked emails in mid-June 2016.

Despite these concerns, Comey told the OIG that it did not occur to him to request a special counsel in late 2015, after Lynch’s instruction to use the term “matter” or former President Obama’s public comments about the investigation (discussed in Chapter Four), because Comey was satisfied with the nature and the quality of the investigation being conducted by the FBI. Comey emphasized that the FBI had its “A team” working on the investigation, and that he was closely involved to ensure that the team was protected from political or other influence.

As we describe in more detail in the classified appendix, Yates and Axelrod told us that the FBI mentioned this information to them sometime in the Spring of 2016 and provided a defensive briefing on it on July 12, 2016.[128] Yates said that the FBI told her that the information was not deemed credible and did not show her the relevant documents. After being shown the documents in her OIG interview, Yates expressed frustration and said that, had she been informed that the FBI had concerns about the information, she would have engaged Comey in discussions about the impact on the Midyear investigation. The FBI also did not provide Lynch with a defensive briefing about the information until August 2016, more than a month after investigative activity in Midyear was concluded, and she also was told that the information was not credible. Lynch said that until Comey’s public testimony in 2017, she was never told that the information played a role in his unilateral decision to make a public statement about the Midyear investigation or concerns about whether a special counsel was necessary.

However, Comey said that he became increasingly concerned and began thinking about the possible need for a special counsel when he realized in March or April 2016 that the case likely would result in a declination, and that the declination might not happen until after the political conventions. He explained that the Department’s leadership could not credibly announce a declination around or after the nominating convention, because “the confluence of a decision on a case and a key political event” would cause “grievous” damage to the Department’s and the FBI’s reputation.[129]

Yates’s and Axelrod’s Testimony[edit]

Yates told us that she recalled Comey raising the possibility of a special counsel at the April meeting. She told the OIG that Comey commented that they may need a special counsel to announce the closing of the Midyear investigation if the investigation ran past the convention and former Secretary Clinton was formally the Democratic Party’s nominee.[130] According to Yates, Comey added that there was no reason to request a special counsel because the investigation would be completed before the convention. She said that she did not interpret Comey’s comment as a line drawn in the sand, but more of a “musing.”

Yates characterized Comey’s suggestion as a “weird thing” that he raised “out of the blue,” and said that she did not understand why the convention was a bright line for him. She stated, “Because if you were concerned about an appearance that [Clinton is] the Democratic nominee and you have a Democratic Attorney General, well, you got that before the convention. You’ve kind of had that for quite some time now.” Yates said that she may have mentioned to Comey that Clinton had been the presumptive Democratic Party nominee for some time and that using the convention as a dividing line seemed “really artificial.”

Yates also said that she was taken aback by Comey’s comments, because the investigation had been going on for some time and he had never mentioned the need for a special counsel. She said that his concern was based on the perception created by a Democratic-appointed Attorney General announcing that the Democratic Party’s Presidential nominee would not be prosecuted. Yates said that she understood that this was “all for appearance reasons.” She stated, “Jim [Comey] never, ever, raised any concern about Attorney General Lynch having any kind of actual conflict or even an appearance of a conflict before we got to the tarmac. Never, ever. Nor did anyone else at the FBI ever raise any concern about that that I’m aware of.”

Asked whether Comey at any time raised concerns about the involvement of Lynch in either the investigation or the announcement, Yates stated:

No...I mean, this is where, and when I am so emphatic about that it’s because I read articles and testimony later that frankly, shocked me. Because I thought, this was not the only discussion that I had with former Director Comey about how we would roll it out. And I thought...I read and I have no way of knowing if this is true, but I think Director Comey’s testimony indicated that he had been thinking for quite some time that he felt like he needed to go in alone in making the announcement. And not only did I never hear that, I’m not aware of anybody, I mean, maybe somebody else at DOJ had heard that and it never made its way to me. But I’m not aware of anybody else at DOJ hearing that.
In fact, that’s just the opposite of what our discussions were. I would have thought when...we’re talking about a joint press conference, et cetera, that if he harbored either (A), any reservations about whether Attorney General Lynch had a conflict or appeared to have a conflict he would have said something. I don’t know how you have a discussion about that and have those feelings and not say anything about it. And then (B), if he was actually planning on doing it on his own I don’t know how he didn’t tell me that.

Yates said that she would have expected Comey to discuss any concerns he had about Lynch or the Department with her, and said that Comey had not been shy or hesitant to give his opinion in discussions with her. However, she said that Comey “kept FBI’s information very tight,” and that she “sometimes...felt like [she] had to pry information out of him.”

Axelrod gave a similar account of Comey’s mention of a special counsel. He said that Comey was concerned with the dates of the national political conventions, particularly the Democratic National Convention, because he thought that it would not be tenable for the Department’s leadership to continue to oversee the investigation or announce a declination once former Secretary Clinton was the Democratic Party’s nominee. Axelrod said that he perceived Comey’s concern as “purely calendar-driven.” He told the OIG that he did not know if Comey appreciated the way that the appointment of a special counsel would be perceived by the outside world, or whether it was “some sort of gambit to sort of say hey, if you guys don’t pick up the pace, right, this is going to get really ugly.” Axelrod said that at the time he interpreted the suggestion as Comey thinking through how to “navigate this in such a way that it gets accepted by, again, not by everyone but at least by some chunk of the public, the reasonable center, as having been done on the level.”

Rybicki told the OIG that he did not recall any discussions between Comey and Yates about the need to appoint a special counsel.

3. Lynch’s Knowledge of the April Meeting[edit]

Source page 174

Asked about her knowledge of the meeting between Yates and Comey, Lynch said that Yates told her that she met with Comey, and that Comey indicated that he was not sure there was a “there there” with respect to the Midyear investigation. According to Lynch, Yates said that Comey mentioned that he should be the one to make any announcement about the resolution of the case, because this would be best for the independence of the Department. Lynch said that Yates and she both thought that any discussion about an announcement was “very premature.”

Lynch said that she did not think about the option to have Comey make any eventual announcement in terms of a “decision tree” because it was so premature. She stated that she was not aware of any other options that Comey and Yates discussed, but that she did not see a basis for the Department to “have the investigative arm announce a prosecutive decision.” Asked whether there was anything about the case that in her view would warrant deviating from the standard practice of having prosecutors announcing a prosecutorial decision, Lynch responded that there was not.

Lynch told the OIG that she understood from Yates that Comey wanted to complete the investigation before the political conventions. However, she said she did not recall being told that Comey had mentioned the possibility of requesting a special counsel if the investigation continued beyond that point. She said that, other than letters from Members of Congress requesting a special counsel to handle the investigation, no one ever mentioned that a special counsel might be necessary or might be requested if the investigation took too long.[131]

Lynch said that she had looked at the special counsel regulation at one point because that is “a decision that the AG has to make,” but had not taken steps to have anyone look into it or research it. She said that she was convinced that the team handling the investigation could come to a conclusion. She stated, “I was convinced that if, for example, they thought that someone should be charged, they were not going to hesitate to recommend that.”

As we discuss in Section IV.B below, Lynch received an ethics opinion following the tarmac meeting with former President Bill Clinton on June 27, 2016, that she was not required to recuse herself from the Midyear investigation. She decided not to voluntarily recuse herself for a variety of reasons, including that she did not have a personal relationship with either former President Clinton or former Secretary Clinton.

B. Subsequent Discussions Between Comey and Yates[edit]

Source page 175

Yates said that sometime after her initial meeting with Comey, she received a phone call from him in which he said that he had been talking to “his people,” and they had decided that the FBI would not make a recommendation at all. Yates said that Comey told her that the FBI instead would “just give DOJ the facts and DOJ would make the decision and [the FBI] wouldn’t make a recommendation.” According to Yates, Comey described this as the way the FBI and the Department “normally do it.”

Yates said that she asked Comey what he was talking about, because the FBI always makes recommendations about charging decisions. According to Yates, she recalled saying the following to Comey:

Jim, I thought we had talked about it the last meeting.... That we were all going to hold hands and jump off the bridge together. Because that’s kind of how I viewed this was that this was going to be a tough thing here. That a lot of people were not going to like our decision but that’s our job. And that we were going to, you know, we were all going to stand there together. We were going to announce it together.

Yates said that Comey was non-committal after she made this statement.

Yates said that she remembered sitting at her desk after this call and thinking, “What?” She said that she spoke to Axelrod and Carlin after hanging up the phone, saying, “Holy cow. I mean, what is this business of now they’re not even going to make a recommendation?”

Yates said that when she thought back to every major announcement she had done throughout her career, the lead investigative agency was always involved. She said that by that point it was “really clear that from the line agents all the way up they were all of the view that this shouldn’t be a criminal prosecution.” She said that given that agents and prosecutors agreed there was no basis to prosecute former Secretary Clinton, it was important to present a unified view of the investigation.

Comey told the OIG that he did not recall discussions about the end of the investigation with the Department other than his initial April meeting with Yates and Axelrod, and he did not recall any discussions with them about a joint Director-Attorney General announcement. Rybicki also said he did not recall any discussions about the end of the investigation.

Axelrod said he recalled that the FBI “went back and forth on whether...they wanted to be, whether they were willing or the Director was going to be willing to be part of...sort of some sort of joint roll out.” Lynch also told the OIG that she recalled Yates mentioning that at some point that she had had another discussion with Comey, and that Comey was no longer sure that he should be the person making the announcement.

Yates said that after this call with Comey, there were other discussions with him where they were “back on track” and “all holding hands and jumping off the bridge together.” Yates said she did not recall whether these subsequent discussions took place face-to-face or on the phone, or whether anyone else from the FBI was there. She said that they never made a final decision about how they would announce the declination, but that it was likely to be with a press conference where they laid out the facts supporting a conclusion that there was not a crime to be prosecuted. Yates said she had anticipated that Lynch would speak, but that they had not determined whether there would be other speakers. She said that they also planned to release a written document.

Yates told the OIG that she did not recall identifying a target date for making the announcement, but that they understood it would be a “matter of days” after the interview of former Secretary Clinton on Saturday, July 2, 2016. Yates stated, “And we were trying to be careful not to plan this too much, again, because we hadn’t made the final decision yet. This is where we thought it was going to go but you don’t know until that interview is concluded.” Axelrod also told us that plans for an announcement were not “solidified because we weren’t quite at the end.”

C. Other Discussions within the FBI and Department[edit]

1. Discussions between McCabe and Carlin[edit]

Source page 177

Axelrod said that the discussions between Yates and Comey about the conclusion of the case were not the only ones that took place between the Department and the FBI. He said that during the Spring of 2016, Toscas, Carlin, Rybicki, and McCabe also were involved in discussions about how to credibly conclude and announce the conclusion of the investigation.

We asked various witnesses about these discussions but were unable to develop a precise timeline for them or a specific recollection of what was discussed. Carlin told the OIG that he may have talked about how to credibly announce a declination with McCabe “once or twice.” He said that they discussed the “incredible scrutiny” that the case would receive and the need to memorialize in writing any disagreements between the team. He said they also discussed the need for a written description recounting the steps that were taken in the investigation. Carlin stated:

And then what made this a little unusual for me anyway was that it came over as an IG, an 811 referral matter. And so one thing we had discussed was doing some closeout [summary of] facts to the IG.... If there were no criminal charges that doesn’t mean there’s not more to be done for the IG and lessons that they can learn from what we did in terms of the steps that they apparently felt they couldn’t take...for things that were outside Government servers. And so I’d always thought at the end that some version of just the facts, not our thinking as to whether or not you bring a criminal charge, should go back to the IG in a closeout form. So then they could continue with whatever they were going to do, either administratively because there may be bad practices, or the set. Substantively it was clear to me from the investigation that there could be improvements made in terms of how the State Department was giving guidance and handling potentially classified information.

Carlin said that he did not know if Comey ever approved the idea of a referral back to IC IG, “But at the Deputy [McCabe] level I thought there was some agreement by a meeting of the minds that that was the likely way we were going to proceed.” He said that he did not want to overstate it or give the impression that everyone had “signed off on” the idea, but that when he “raised that as a potential course it seemed like people thought that was reasonable.” Carlin said that he did not recall discussing a joint press appearance by Lynch and Comey.

McCabe told the OIG that he recalled talking to Carlin about how to credibly conclude the investigation during lunch together in May or June 2016. McCabe said that neither of them had a “very well-formed idea” about what the end of the investigation looked like at that point, but that Carlin felt strongly that Comey should have a “very active and prominent role” in any public announcement. McCabe said that they discussed various options, including a written memorandum or a joint press conference.

Asked about his involvement in discussions with the FBI about how to announce the conclusion of the case, Toscas said that he did not have a specific recollection of any such discussions. He stated:

I very much wanted the Bureau [to be] part of the discussion and I know that there was some discussion of making sure that—or to try to have a joint AG/FBI Director statement, whether in front of cameras or an issued written statement, and I remember thinking, and I may have even talked to our team you know specifically about this, like we want—like we want the FBI Director talking about this, right. We want there to be—the American public to know that DOJ and FBI are together on this and that we've run it down and we've concluded the investigation.

Toscas also said that he thought that Department leadership separately was involved in discussions with the FBI about how to announce a declination, and that he vaguely recalled a discussion the week before the interview of former Secretary Clinton about what a joint appearance or statement would look like.

2. Discussions among Prosecutors and NSD Supervisors[edit]

Source page 178

On March 30, 2016, Prosecutor 1 sent an email to Prosecutor 2 stating, “Read the Ruth Marcus column in the [Washington] Post if you haven’t yet.”[132] The column referenced in the email discussed the public skepticism that would result from a decision not to indict former Secretary Clinton and recommended that the Department consider releasing a detailed investigative summary. It included a hyperlink to a public report released by the Department in 2010 that summarized the investigation into the 2001 anthrax letter attacks. The column also highlighted the need for a credible government official to provide the public with information about the investigation, noting, “Senior Justice officials will be mistrusted whatever they say, but what about FBI Director James B. Comey, who served in the Justice Department under George W. Bush?” Apparently after reading this column, Prosecutor 2 replied, “It is not dissimilar from some of the thoughts running through my head in the middle of the night...or what I tried expressing at that disastrous meeting we called with Toscas a couple months ago.”

Prosecutor 2 told the OIG that they had a meeting with Toscas in or around February 2016 focused on what the end of the investigation should look like. According to Prosecutor 2, Toscas said at this meeting that the prosecutors would provide their legal analysis and conclusions to Carlin, through Toscas, and that there was some “vague idea” that Comey or McCabe would release a statement. This prosecutor told the OIG that the Department’s involvement in any FBI statement was uncertain, and it was unclear at that point whether the statement would be written or oral. This prosecutor described this meeting as “contentious,” and said that NSD supervisors seemed to wonder what the line prosecutors wanted from them. This prosecutor said they brought up the issue of how to announce the end of the investigation because they were searching for assurances from their management that high-level Department officials would be involved. Prosecutor 2 stated:

[I]f the statement is made, who is making that statement? Is it Comey? Will DOJ be standing by his side? If DOJ is standing by his side, is that going to be the Attorney General, or is that going to be [Prosecutor 1] and [Prosecutor 2]? Because [Prosecutor 1] and [Prosecutor 2] are driving this investigation for DOJ.

Prosecutor 1 did not recall when the meeting with Toscas took place, but estimated that it was sometime in early 2016. Prosecutor 1 stated that the plan discussed at that meeting was for them to finalize their legal analysis and conclusions and provide it to the NSD chain of command. Prosecutor 1 said that he also expected that there would be a public announcement of some sort given the high-profile nature of the investigation. As described in Section II.C.4 below, Prosecutor 1 said that as the investigation moved toward completion, he understood that Comey likely would be the official publicly announcing a declination.

Prosecutors 3 and 4 said that the team thought that the FBI would be involved in announcing the conclusion of the investigation, but they did not know what the plans were. Prosecutor 3 stated, “We speculated...that it would be some FBI report, like maybe a classified report of findings, and then a public report...because it was a high-profile investigation.... And no one really knew what, what the FBI was going to do.” Prosecutor 4 told the OIG that he did not care how announcing a declination was handled, other than he wanted Comey to participate in it. This prosecutor stated:

And from my vantage point, I didn’t care other than the fact that I wanted Comey up there on a podium. I didn’t care whether the AG was sitting next to, standing next to him or not. But I wanted Comey to make the announcement that, that the investigation was closed and that in FBI’s viewpoint that there was not a prosecutable case....
Because Comey was a Republican, or [had] a Republican background. He’d been a Republican-appointed U.S. Attorney. He had been a Republican-appointed DAG. I know Comey from his EDVA days. I think, thought he was widely respected on both sides of the aisle, before this case especially. And I thought that he had the gravitas, that no matter what he did, it was going to be questioned, but that it would be, that there would be an air of legitimacy to what I thought was a legitimate investigation if he made the announcement, and especially after the tarmac meeting.

This prosecutor told the OIG that Laufman had tried on several occasions to raise the issue of planning for a joint announcement at meetings with the FBI, and that Strzok was “always really squirrely about that.” He said that Strzok would say that they should wait to see how everything worked out, or that the decision was “above [his] pay grade.”

3. Additional Special Counsel Discussions[edit]

Source page 180

FBI Attorney 1 told us that the FBI Midyear team discussed whether they needed a special counsel at the beginning of the investigation in 2015. She said that at that time they had a legal intern research the statute, which expired and was replaced by regulations requiring appointment by the Attorney General.[133] She said that the discussion among the FBI Midyear team was, “[D]o we need one? When would we need one? How does this work sort of questions.... Was it necessary? And I, and I think we kind of thought we could handle this without the special counsel.”

FBI Attorney 1 stated that the idea of a special counsel came up again at various points during the investigation, but that “[t]here was not any really significant discussion about it.” She said that the team thought that they could complete the investigation, and they saw no signs of a conflict of interest on the part of the NSD lawyers.

Discussions about requesting a special counsel resurfaced within the Midyear team in mid-March 2016, following the discovery of the highly classified information, and occurred at various points through at least mid-May 2016. Text messages between Page and Strzok on March 18, 2016, indicate that the two of them discussed requesting a special counsel to oversee the investigation:

7:31 a.m., Strzok: “Thought of the perfect person D[irector Comey] can bounce this off of.”

7:31 a.m., Page: “Who?”

7:37 a.m., Strzok: “Pat [Fitzgerald]. You gotta give me credit if we go with him. And delay briefing him on until I can get back and do it. Late next week or later.”

7:38 a.m., Page: “We talked about him last night, not for this, but how great he is. He’s in private practice though, right? Suppose you could still bring him back. And yes, I’ll hold.”

7:57 a.m., Strzok: “Yes, he’s at Skadden in Chicago. I haven’t talked to him for a year or two. Don’t forget that D[AG] Comey appointed him as special counsel in the Plame matter, and that he was there for Comey’s investiture.”

7:58 a.m., Strzok: “I could work with him again. And damn we’d get sh*t DONE.”

7:58 a.m., Page: “I know. Like I said, we discussed boss and him yesterday.”

Based on the date of this exchange, Page told the OIG that the discovery of classified information relating to Lynch likely prompted her discussion with Strzok, but that she did not recall the idea of appointing Fitzgerald to be the special counsel for the Midyear investigation being discussed with FBI leadership. After reviewing a draft of the report, Page stated that she and Strzok had discussed consulting Fitzgerald about the classified information relating to Lynch, not about serving as a special counsel. Strzok said that he did not recall what led to this discussion, but he speculated that it may have been motivated by concerns about the information discussed in the classified appendix to this report. Strzok told the OIG that discussions about a special counsel reflected a genuine concern about the Department’s ability to credibly close the investigation, denying that the idea was intended to get the Department to move more quickly on the Mills and Samuelson laptops.

Although witnesses denied that there was a specific deadline for completing the Midyear investigation, witnesses told us that Comey and other senior FBI officials strongly encouraged the team to finish the investigation as quickly as possible to avoid impacting the 2016 election. Notes reviewed by the OIG reflect that Comey increasingly was concerned by the timetable for completing the investigation as the debate about obtaining the laptops continued into May 2016. According to these notes, on May 9, 2016, Comey met with the FBI’s Midyear team and told them that there “will come a point when DOJ can’t credibly close this, and will need a special prosecutor.” On May 11, 2016, other notes indicate that Comey told agents and prosecutors at a Midyear briefing that there was an “extraordinary sense of urgency” to complete the investigation, and that there was the risk that a declination would be perceived as partisan the closer they got to the election.

The next day, May 12, 2016, Strzok raised the possibility of a special counsel during a meeting with Laufman. Notes indicate that there was a lengthy discussion about Comey’s timetable for completing the investigation and the need to obtain the Mills and Samuelson laptops, and that Strzok mentioned the possibility of requesting a special counsel if they got closer to the election. Laufman said that he viewed Strzok’s comment as a “veiled threat” to make it clear that the FBI was dissatisfied with how NSD was handling the laptop issue and would proceed how it wanted. Laufman said he did not recall other instances where anyone from the FBI mentioned the possibility of requesting a special counsel.

4. NSD Notes Reflecting Plans for an Announcement[edit]

Source page 181

As the team progressed toward the end of the investigation, information obtained by the OIG indicates that prosecutors and NSD supervisors were aware that Comey was planning to participate in an announcement. On May 16, 2016, Priestap sent an email to Toscas stating:

I wanted you to be aware that Director Comey would like to see a list of all cases charged in the last 20 years where the gravam[e]n of the charge was mishandling classified information. He requested the information in chart form with: (1) case name, (2) a short summary for context (3) charges brought, and (4) charge of conviction.

Toscas forwarded the email to Laufman, who replied, “What is the meaning of this request? Have no problem sharing data we have amassed, but am concerned that it signifies an expectation by Bureau to play a larger role in DOJ charging decision than usual.” Toscas replied, “We will all continue to work together with the Bu[reau] on all aspects of this, including with respect to any such decisions, so we should plan for and expect that our usual close collaboration with the Bureau will continue all the way through to the conclusion, including any such decisions.”

Toscas also asked Laufman to call him. Notes memorializing a telephone call that day indicate that Toscas told Laufman, “Bureau may simply close this.... Don’t think this is an insane request. Thinks Comey wants to see cases because he wants to be able to say why outcome not [out] of line. Everyone knows where we are going to end up.”

NSD prosecutors prepared a chart of cases indicted since 2000 under various provisions prohibiting the mishandling and improper retention of classified information. Toscas emailed McCabe and Rybicki about the chart on May 23, 2016, and hand-delivered a copy to them at his routine morning meeting. The email sent by Toscas included the following caveats distinguishing the charged cases from the Midyear investigation:

While it is not noted specifically in the chart, the vast majority of the listed cases involved documents or electronic files with classification markings on them. The few examples of charged cases where no markings were present involved photographs taken by the defendant (e.g., a case involving photos inside sensitive areas of a nuclear submarine) or handwritten notes where there were clear indications of knowledge of the sensitive nature of the materials (e.g., a case in which there was a recording of the defendant speaking about the classified nature of information in his hand-written notebooks).

The “charging/plea information” column should make it clear, but the mishandling noted in the chart often occurred in conjunction with other criminal activity, including espionage, export control violations, and false statements, among others.

The chart did not include any examples of cases charged under Section 793(f).

Asked whether he thought Comey’s request signaled a plan for greater involvement by the FBI, Laufman told the OIG that he viewed it as part of Comey’s desire to make as knowledgeable a decision as possible about whether to charge Secretary Clinton or her senior aides. He stated, “And that’s a conversation prosecutors always have with the agent, right?... So, I didn’t have any problem arming him with the legal precedents that we thought informed our judgment, which we expected to be somewhat controversial, especially on the gross negligence statute.”

Notes reviewed by the OIG indicate that Laufman had, or was told about by Toscas, discussions with the FBI regarding plans to announce a declination as the interview of former Secretary Clinton approached. In early June, the FBI and NSD began working jointly on an LHM outlining the facts developed in the investigation. The prosecutors began developing the legal framework for their analysis around the same time, but did not finalize any charging recommendations until after the interview.

On June 19, 2016, Laufman had a telephone conversation with Strzok about Comey’s plans to make a statement about the investigation. Laufman’s notes from this conversation listed the following topics for discussion:

(1) July 2 -----> Director’s statement.

Q: How many days later?

Q: Content?

E.g., is he planning on saying anything about DOJ’s conclusions?

(2) Do you foresee any investigative activity after July 2?

The notes do not indicate what Strzok’s responses were about Comey’s plans for a statement. However, according to the notes, Strzok told Laufman that Comey wanted the investigation to be completed as soon as feasible, and thought it could be “largely done” other than classification reviews that were “unlikely to change [our] view” by July 2.

Laufman’s notes from a telephone call with Toscas on June 24, 2016 indicate that the two of them discussed plans for a coordinated statement with Comey. The notes state:

“Good news/bad news”

Sounds like greater sense of “ownership” than expected – coming to realization that better if Dir[ector] is person who announces it; and seems like Dir[ector] will be up front explaining thoroughness, conclusion, not proceeding with any case. Voice of joint investigation.

But don’t know what form this will take.

Bureau’s exploitation of computers: by July 2 completed ---> goal.

Soon after interview, all will be put into motion.

Director will be champing at bit to make announcement....

Want team to sit down w[ith] DAG and AG, before Dir[ector] speaks.

On June 27, 2016, Laufman provided this information to Prosecutor 1 and another NSD supervisor. Laufman’s notes from this date state, “Director will want to wrap up and make announcement quickly after interview.... Will be withering pressure after interview...expect to be very little that occurs at interview pertinent to mens rea determinations.” These notes discuss the need to complete the joint LHM and the prosecutors’ legal analysis and conclusions as quickly as possible.

Other notes obtained by the OIG indicate that prosecutors expected an announcement by Comey by Friday, July 8, 2016. On June 30, 2016, Laufman was told by another NSD supervisor, “Expect that FBI wants to announce by next Friday.... Wed or Thurs: briefing for DOJ leadership.” On July 1, 2016, Laufman received a telephone call from Toscas stating that Toscas had spoken to McCabe and was told they were “still on track for Friday and FBI statement that day.” Laufman met with Prosecutors 1 and 2 later that day and told them, “No change in known timetable for next week ---> Friday, July 8 announcement by Bureau. Details not known yet. Expect briefing of DAG + AG before (Thursday?)” The notes indicate that the team proposed staying at the FBI after the Clinton interview to “hash out differences” and finalize the closing LHM.

Asked whether these notes reflected advance knowledge by NSD supervisors and prosecutors about former Director Comey’s plans for a public statement, Laufman said they did not. He told the OIG that discussions about how to announce the closing of the case intensified as the interview of former Secretary Clinton approached. He said that they understood that Comey was going to make some kind of a statement, but that anything he was going to say would be closely coordinated with the Department. He said he had no knowledge of and was not privy to discussions about plans for a joint statement by Comey and Lynch. Asked what he thought would happen as of July 1, 2016, he stated:

I expected that we would complete the Clinton interview. The Bureau would complete its LHM. We would complete our [legal analysis]. Discussions would take place within DOJ, between DOJ and the Bureau, there would be a closely-coordinated endgame, like there is in the disposition of many matters in the Department where a bunch of people stand up...in front of a bunch of flags and carefully orchestrated, well thought through set of statements about a matter.... And we were going to be briefing the AG and the DAG before that.

Laufman also recalled Toscas telling him on several occasions that there was value in having Comey out front on the investigation, given the accusations by “political actors” that the Department could not be trusted to conduct a fair and balanced or complete investigation.

Strzok told the OIG that he participated in discussions with prosecutors about how to announce the closing of the investigation, including some discussions with Toscas. Strzok said they discussed whether there would be a press conference, who would participate in a press conference, and what level of detail any statement would provide, but he characterized these discussions as “preliminary.” Anderson similarly told the OIG, “So, I think at some point, DOJ began pressing us to start talking about the end game. But we, within the Bureau, were already pretty far along in terms of our own thinking about what we thought the end game should be, such that we didn’t really engage that meaningfully with DOJ on the issue at the line level.”

However, notes indicate that FBI agents, lawyers, and senior officials were aware that the Department expected to make a joint announcement with the FBI at the end of the investigation. According to FBI Attorney 1’s notes from a Midyear update meeting with Comey on June 27, 2016, the FBI discussed this expectation, stating, “Laufman saying pros memo + joint statement one week after HRC interview.” Page’s notes from the June 27 meeting indicate that FBI leadership told the Midyear team what to say to NSD about an announcement: “[Clinton] Interview Sat[urday]; LHM Tues[day], and our leadership will be talking to yours, & what you expect a final announcement will look like.”

The next day, June 28, 2016, Laufman’s notes reflect that an attorney in NSD’s Front Office asked him to call Strzok and find out when the FBI planned to close the investigation. The notes read, “If not w/in short order after July 2 – if not by next week – Why not?! What’s the plan…?” The notes indicate that Laufman spoke to Strzok, and Strzok told him that the FBI would finalize the LHM by the following Tuesday. The notes indicate that Laufman asked what Comey’s goal was for announcing the closing of the investigation, and Strzok told Laufman he was not sure how soon it would be. That same day, Strzok and Page exchanged the following text messages:

12:43 p.m., Strzok: "God I am getting GRILLED by Laufman right now.”

12:46 p.m., Page: “You’ve got your answer to give him....”

12:52 p.m., Strzok: “I do...Still going....”

III. Drafting of Former Director Comey’s Public Statement[edit]

A. Original Draft Statement[edit]

Source page 185

Former Director Comey told the OIG that after his initial meeting with Yates and Axelrod in April 2016, he began thinking about the “outer boundaries” for announcing the conclusion of the investigation. He explained that a one-line press release by the Department stating that the case was closed was one outer boundary, and an FBI-only press conference providing a detailed statement about the investigation was the other. Comey said that the team from Strzok and the Lead Analyst on up discussed every option in between these two “outer boundaries.” Comey told the OIG that he considered what options would be best calculated to minimize the reputational damage to the Department that might result from a declination decision given the partisan political environment in the country at that time.

Comey said that the possibility of the FBI doing a statement separate from the Department occurred to him around that time. He stated:

I mean to my mind it was a crazy idea, but we were in a [500]-year flood, as you all have now investigated enough and lived enough to know, that this is a circumstance that has never happened before. We’re criminally investigating one of the candidates for president of the United States.... [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?

Comey told us that, in addition to preserving the credibility and integrity of the Department and the FBI, his concern was protecting “a sense of justice more broadly in the country—that things are fair not fixed, and they’re done independently.”

McCabe told the OIG that he recalled that Comey first mentioned the idea of doing an independent statement as “an aside, at either the beginning or the end of a meeting that we had...in his conference room.” McCabe said that Baker and Rybicki also were present, and that the group had been discussing where the investigation was going and what the end would look like “if we end up with nothing.” He said that Comey asked them, “[W]hat do you think about the prospect of just like me doing something solo?” McCabe stated:

And I remember when he said it kind of looking at Rybicki. And the both of us are just kind of like, oh my God, you know? And I, I mean honestly I, I, at first blush I was like, whew, wow, that’s, that could go really wrong.... Because for, you know, for the obvious reason. It’s just so not what we do. And we thought...that would be a huge break with...protocol...and everything else.

McCabe said that he may have told Comey that he was concerned that an independent statement would be a “complete departure” from Department protocol and could set a “potentially dangerous precedent” for the FBI. McCabe said that Comey was “very aware” that there were many reasons he should not do a statement on his own, and that “conventional wisdom might mitigate against it.” He said that in late April and early May 2016, Comey was “not anywhere close to having decided to do it that way.”

Comey told the OIG that he sat down one weekend and typed out a draft statement. He told the OIG that he did so from memory, explaining that it helps him to write when he is struggling with an idea. Comey described the draft statement as a “straw person,” and told the OIG that he did this with the intention of giving the draft to the team and asking, “What do you think?”

On May 2, 2016, Comey sent an email to McCabe, Baker, and Rybicki including the text of the draft “straw person.” He stated at the beginning of the email:

I’ve been trying to imagine what it would look like if I decided to do an FBI only press event to close out our work and hand the matter to DOJ. To help shape our discussions of whether that, or something different, makes sense, I have spent some time crafting what I would say, which follows. In my imagination, I don’t see me taking any questions. Here is what it might look like.

Comey sent a four-page draft statement outlining what the Midyear team did and found by email, which we have provided as Attachment C to this report. The May 2 draft was substantially similar to Comey’s final version, but with several notable exceptions. In particular, the May 2 draft statement used the statutory language from Section 793(f)(1), describing former Secretary Clinton’s handling of classified information as “grossly negligent.” It also concluded that there was evidence of potential violations of this provision and the misdemeanor removal statute, Section 1924. The draft stated:

There is evidence to support a conclusion that Secretary Clinton, and others, used the private email server in a manner that was grossly negligent with respect to the handling of classified information.... There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for such an email conversation. Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
Similarly, 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....
Finally, with respect to our recommendation to the Department of Justice. In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.
Although there is evidence of potential violations of the statute proscribing gross negligence in the handling of classified information and of the statute proscribing misdemeanor mishandling, my judgment is that no reasonable prosecutor would bring such a case. At the outset, we are not aware of a case where anyone has been charged solely based on the gross negligence prohibition in the statute. All charged cases of which we are aware have involved the accusation that a government employee intentionally mishandled classified information. In looking back at our investigations in similar circumstances, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: (1) clearly intentional misconduct; (2) vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; (3) indications of disloyalty to the United States; or (4) efforts to obstruct justice. We see none of that here.

As described in more detail below, the language characterizing former Secretary Clinton’s conduct as “grossly negligent,” the inference of gross negligence from the volume of classified email, and the reference to the misdemeanor mishandling statute were omitted from the final version delivered by Comey on July 5, 2016.

We asked Comey about the date of this initial draft and whether it indicated that he had predecided the outcome of the investigation even before the interview of former Secretary Clinton. Comey stated:

[I]f you were in my position after nine months you’re incompetent if you don’t know where this is going. Now the notion that I committed perjury by saying the decision wasn’t made by then. The decision was not made by then. But it was a high probability...this was going to end in a certain way that would be really, really hard, which is the declination, so we better get to work thinking about that. Now if we find something else, great, or if...Hillary Clinton either gives us [18 U.S.C. §] 1001 [false statements] during the interview or the team says you know what, we’ve got to dig into some more stuff because she might have lied to us, wants to pursue additional investigative steps, you either recommend the 1001 or you say you know what, we’ve got more work to do here.... But in May, unless those things happen, I can see where this is headed and we’ve got to start to think carefully because you cannot be thinking about this on the weekend before the case ends. That’s my reaction.

Comey also told the OIG that when he wrote the May 2 draft, he thought the investigation would be completed by June. As described in more detail below, Comey said he did not recall that his original draft used the term “gross negligence,” and did not recall discussions about that issue.

On May 6, 2016, Comey emailed Rybicki and McCabe, stating, “Think maybe you should share my straw person announcement with Priestap, [Strzok], and [the Lead Analyst]. Close hold to the three of them but might be good to get them thinking.” That afternoon, McCabe forwarded the draft statement to Priestap, Strzok, and the Lead Analyst, as well as Page. In the email, McCabe stated:

The Director composed the below straw man in an effort to compose what a “final” statement might look like in the context of a press conference. This was really more of an exercise for him to get his thoughts on the matter in order, and not any kind of decision aboutvenue, strategy, product, etc.
The Director asked me to share this with you four, but not any further.The only additional people who have seen this draft are Jim Rybicki and Jim Baker. Please do not disseminate or discuss any further. (Emphasis in original).

McCabe’s email noted that Comey might want to discuss the draft at the update meeting the following Monday, May 9, 2016. Strzok replied, “Understood and will do.” McCabe then replied to Comey, “Spoke to Bill [Priestap] and passed the email on the red side to Bill, Pete and [the Lead Analyst]. Also took the liberty of including Lisa [Page] – I hope that was ok.”

On May 6, 2016, shortly after receiving the draft, Priestap sent McCabe his initial comments. Priestap stated, “The piece is superb,” and made several suggestions for minor changes. Priestap also noted that the draft contained information indicating that former Secretary Clinton did not comply with federal record requirements, suggesting that Comey have someone study the impact such a statement could have on administrative inquiries related to federal record obligations. McCabe sent these comments to Comey the following week.

On May 16, 2016, Rybicki sent the original draft to a larger group of people that included Anderson, FBI Attorney 1, and Bowdich, stating, “Please send me any comments on this statement so we may roll into a master doc for discussion with the Director at a future date.” The draft statement also was discussed at a meeting that day that was attended by Comey, Rybicki, Bowdich, Steinbach, Priestap, Strzok, the Lead Analyst, Baker, Anderson, FBI Attorney 1, and Page. According to notes from this meeting, one of the items discussed was, “Do we agree w[ith] gross negligence assessment??”

Later that same day, the Lead Analyst provided comments to Strzok for incorporation into a “team response.” The Lead Analyst characterized his comments as technical corrections, including one in which he recommended highlighting that some of the emails were found to contain classified information when sent, not just after the fact. The Lead Analyst stated, “All of this to emphasize that it is not true that this is all a matter of classification after-the-fact and that the people sending these emails should have known better.”

Strzok included these comments and added his and Page’s to an email that he sent to Rybicki, McCabe, and Priestap on behalf of the team on May 17, 2016. This email provided “overarching observations” about the draft, stating that they would provide additional comments and fact checking as Comey narrowed down what he wanted to say. Among the specific recommendations provided were suggestions that the statement include the number of emails containing information that was determined to be classified at the time they were sent to “more directly counter the continuous characterization by Hillary Clinton describing the emails involved in this investigation as having been classified after the fact.”

The May 17 comments also noted the need to distinguish between prior high-profile mishandling prosecutions and the Midyear investigation. Strzok stated:

We’d draw the distinction in noting that we have no evidence classified information was ever shared with an unauthorized party, i.e., notwithstanding the server set up, we have not seen classified information shared with a member of the media, an agent of a foreign power, a lover, etc. Additionally, it’s important to note that had these same emails been sent on a state.gov system rather than a private one, it’s not clear that the FBI would currently have an open investigation.

The May 17 email also commented on language in the initial draft that it was “reasonably likely that hostile actors gained access to Secretary Clinton’s private email account.” Strzok stated:

It is more accurate to say we know foreign actors obtained access to some of her emails (including at least one Secret one) via compromises of the private email accounts of some of her staffers. It’s also accurate to say that a sophisticated foreign actor would likely have known about her private email domain, and would be competent enough not to leave a trace if they gained access. But we have seen no direct evidence they did.

Finally, the May 17 comments listed “whether her conduct rises to the legal definition of gross negligence” as a topic for further discussion.

Responding to Strzok’s email, Priestap provided additional comments on the draft the following day, May 18, 2016. Priestap suggested that the statement should more fully describe the FBI’s role in recommending or not recommending that charges be brought in criminal cases, and why Comey was recommending that charges not be brought against former Secretary Clinton, stating:

I believe it’s equally 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). It’s important the Director explain our recommendation from the FBI perspective and not from the DOJ/prosecutorial perspective. The FBI is recommending that charges not be brought in this instance, not only because “no reasonable prosecutor would bring such a case,” but because the FBI believes it’s the right thing to do based on.... (Emphasis and ellipses in original).

Priestap also suggested that Comey had the option of not making a charging recommendation at all, but that this would undermine the FBI’s position with the Department in future cases. He suggested that Comey could emphasize privately to the Department that it should take the FBI’s charging recommendations seriously, stating, “DOJ can’t just stand with us when it’s easy for them to do so.” Priestap’s comments also stated, “While I was initially wary of having the Director provide an investigative update, I’m beginning to warm to the idea...if we don’t soon shape the narrative with the facts, the narrative will be shaped by others, potentially harming the FBI.”

According to a meeting log prepared by FBI OGC, on May 24, 2016, Comey met with Page, Strzok, Baker, Anderson, FBI Attorney 1, and others to discuss the statement. Page’s notes from the meeting indicate that the group discussed adding language highlighting how well the Midyear investigation was done and that there had been no political interference. The notes also state that they planned to “have another conversation about the strategy at all [sic].”

B. The Decision to Omit “Gross Negligence”[edit]

Source page 191

Comey again met with Rybicki, Bowdich, Steinbach, Priestap, Strzok, the Lead Analyst, Baker, Anderson, FBI Attorney 1, and Page to discuss the statement on May 31, 2016. Notes from this meeting indicate that the discussion included “Lisa [Page]/[FBI Attorney 1] legal thinking.” According to Page, she raised concerns about the use of “grossly negligent” in the draft statement at one of the meetings with Comey (likely the May 31 meeting) before making edits to the statement. Page told us:

I believe that I raised with [Comey] the concern...with the use of gross negligence in particular because I was concerned that it would be confusing if we used a...term that has a legal definition...if we say she’s grossly negligent, that despite the fact that we, we and the Department had a good reason to not charge her with gross negligence, given the fact that they thought it was unconstitutionally vague, and it had never been done, and, you know, sort of all of the concomitant defenses that would also follow from, from her conduct, that it would just be overly confusing.

Page further stated, “If the purpose of this is sort of clarity, and the purpose of this is to sort of try to explain to the American populace what happened and what we think about it, that to use a term that had an actual legal definition would be confusing.” She said that the team discussed the need to find some other way to characterize former Secretary Clinton’s conduct.

FBI Attorney 1 told the OIG that she remembered sitting down with Rybicki, Strzok, the Lead Analyst, and Page to discuss the language of the statute and whether to use “grossly negligent” wording in the draft statement. Based on a meeting log prepared by FBI OGC, we determined that this meeting took place on June 6, 2016. Rybicki said that he did not recall the substance of discussions about removing “grossly negligent” from the draft, but that there was “a lot of discussion” among the FBI OGC lawyers about the statute.” He said he primarily input changes made by others and described his role in revising the statement as “scribe detail.”

After this meeting, Strzok, the Lead Analyst, Page, and FBI Attorney 1 met to edit the statement. Page told the OIG that the four of them edited the document together at Strzok’s computer. Metadata from a version of the statement indicates that Strzok modified the draft on June 6, 2016.[134]

The next day, June 7, 2016, Strzok emailed an electronic copy of the revised draft to Page, and Page sent it to Rybicki, stating in the email, “Our thoughts, for the Director’s consideration.” The revised draft attached to Page’s email was entitled “MYE thoughts 06-07-16” and included a number of changes from Comey’s original draft. Among the changes in the revised draft was the removal of the conclusion that there was evidence that former Secretary Clinton and her staff were “grossly negligent” in their handling of classified information. Instead, the June 7 draft moved language from the end of the same paragraph in Comey’s original version to the beginning of that paragraph, stating:

Although we did not find evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.... There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for such an email conversation.

Page told us that FBI Attorney 1 was the one who moved “extremely careless” to the beginning of the paragraph. FBI Attorney 1 agreed that she likely was the one who suggested this edit given that she had the most familiarity with the statute. This change was included in the final version of the statement.

The draft also removed a reference to evidence of potential violations of the misdemeanor mishandling statute.[135] The draft instead concluded that there was evidence of potential violations of statutes regarding the handling of classified information, and used the language from Comey’s original draft that no reasonable prosecutor would bring such a case.

The June 7 draft included two other significant changes. It removed the statement that the sheer volume of information classified as Secret supported an inference of gross negligence, replacing it with a statement that the Secret information they discovered was “especially concerning because all of these emails were housed on servers not supported by full-time staff.” The draft also stated that it was “possible,” rather than “reasonably likely,” that hostile actors gained access to former Secretary Clinton’s server.[136]

Comey told the OIG that he did not recall that his initial draft used “grossly negligent,” and did not specifically recall what discussions led to this change. He said that the group that met to discuss the drafts of his statement—which included Rybicki, Bowdich, Steinbach, Priestap, Strzok, the Lead Analyst, Baker, Anderson, FBI Attorney 1, and Page—struggled to figure out what term to use to describe former Secretary Clinton’s conduct, because “it was more than your ordinary somebody left a document in a unprotected place or had a single conversation.” According to Comey, they tried to capture the sense that her use of the private server was “really sloppy, but it doesn’t rise to the level of prosecution.” He speculated during his OIG interview that the team advised him that it was unwise to track the statutory language because the “grossly negligent” conduct required by Section 793(f) is something just short of willful or reckless.

Comey told the OIG that nothing the FBI learned between May 2 and July 5 changed their view of whether former Secretary Clinton’s conduct met the definition of “gross negligence.” Comey said that it was his understanding based on the statute’s legislative history that Congress intended for there to be some level of willfulness present even to prove a “gross negligence” violation. When asked whether he believed at any time in the process that former Secretary Clinton was grossly negligent within the meaning of Section 793(f), Comey said, “No.” Comey explained:

There was no evidence to establish anything close to willfulness which I take as a conscious disregard of a non-legal duty and that the closest to there to me was, it’s just really sloppy. A reasonable person in her position should have known, but what I understood 793(f) to be about is something closer to actual knowledge, but I think that it was this is obviously wildly distorted, but I think that’s what we were grappling with....
I’m trying to find a way to credibly describe what we think she did and our sense was, frankly mere negligence didn’t get it because it was not just ordinary sloppiness, it was sloppiness across a multiyear period and so there was, I had in my head some sense that to be credible, we have to capture that and what words do we use to capture it—and that’s where we found the formulation extremely careless. Now if I had to do it over again, I might have tried to find another term because this, we sort of walked into this entire side show about 793(f), but I haven’t thought of another term since then.

Comey said that he thought that the June 7 edits “track[ed] [his] formulation” by moving the “extremely careless” language from the end of the paragraph in his original draft to the beginning.

After reviewing a draft of the report, Anderson told the OIG that she raised concerns about the use of the phrase “extremely careless” to describe former Secretary Clinton’s conduct, as being unnecessary to the statement and also likely to raise questions as to why the conduct did not constitute gross negligence. Anderson said that she recalled that others voiced the same concern, but that she did not recall precisely who raised this issue or what was said. She said that she recalled that Comey felt strongly that former Secretary Clinton’s behavior was “extremely careless,” and thought that this was the most accurate phrase to describe Clinton’s conduct notwithstanding concerns about criticizing her uncharged conduct or the potential for confusion.

C. Comey’s Edits to the Statement[edit]

Source page 194

On June 10, 2016, Rybicki emailed a revised draft of the statement to Comey. Two days later, on June 12, 2016, Comey emailed additional revisions to Rybicki. Comey stated in his email, “Here is my near final [draft]. Please have the team review it. I have saved as PDF so the team reads it fresh and not as a track-change.”

Comey’s June 12 draft incorporated the “extremely careless” language from the previous revisions:

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
For example, seven email chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending emails about those matters and receiving emails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on email (that is, excluding the later “upclassified” emails).

Comey’s June 12 draft added new language that stated, “Separately, it is important to point out that even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.” This language was included in a revised form in the final statement delivered by Comey.

The revisions by Comey and Rybicki included new language about the factors that a “reasonable prosecutor” would consider in declining to prosecute a case. Comey’s June 12 draft stated:

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. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially about intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

Following these revisions, discussions about the draft statement continued. Meetings took place on June 13, 14, and 15 to discuss various issues related to the draft. Documents provide little information about the substance of these meetings, and witnesses did not have a specific recollection of them.

Comey and Rybicki also continued to refine the draft statement, exchanging revised versions on June 25, 26, and 30, and July 1, 2, and 4. Two significant changes appeared in the statement during this time period.

A June 25 draft added a sentence to a paragraph that summarized the factors that led the FBI to conclude that it was possible that hostile actors accessed former Secretary Clinton’s private server. This new sentence stated, “She also used her personal email extensively while outside the United States, including from the territory of sophisticated adversaries. That use included an email exchange with the President while Secretary Clinton was on [sic] the territory of such an adversary.” On June 30, Rybicki circulated another version that changed the second sentence to remove the reference to the President, replacing it with “another senior government official.”[137] The final version of the statement omitted this reference altogether and instead read, “She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries.” FBI emails indicate that the decision to remove this sentence was based on concerns about litigation risk under the Privacy Act.

In addition, on the morning of June 30, Comey added the following paragraph to the statement introduction:

This will be an unusual statement in at least a couple ways. First, I am going to include more detail than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

This paragraph was included in the final version of the statement that Comey publicly delivered on July 5, 2016. While we did not ask Comey if he added this paragraph in response to the tarmac meeting between Lynch and former President Clinton, as described below in Section IV.D, Comey told us that this meeting “tipped the scales” in terms of his decision to deliver his statement “separate and apart” from the Department.[138]

D. FBI Analysis of Legal and Policy Issues Implicated by the Draft Statement[edit]

Source page 197

Comey told the OIG that he included criticism of former Secretary Clinton’s uncharged conduct because “unusual transparency…was necessary for an unprecedented situation,” and that such transparency “was the best chance we had of having the American people have confidence that the justice system works[.]” He said that that he asked Baker and FBI OGC to “scrub” his draft statement and “think about it through all possible policy, legal lenses.” He said that his recollection was that “the only [issue] they thought that was worthy of discussion was the Privacy Act, and they had their Privacy Act czar d[o] a memo for me laying out how—why they thought it was fine under the Privacy Act.”[139] Comey said that Baker’s advice to him was that “there w[ere] no policy or legal issues created by you doing this.” Baker told the OIG that he and other FBI OGC attorneys did see numerous legal and policy issues associated with the statement, but that they could not find a clear legal prohibition that would have prevented Comey from issuing the statement.

Comey cited as precedent for his statement the press conference he gave in June 2004, when he was the Deputy Attorney General, summarizing the evidence against José Padilla, a U.S. citizen who had been designated as an enemy combatant due to his support for al Qaeda.[140] He stated:

I mean it wasn’t a case, but I actually remember when I was DAG providing extraordinary transparency to the public around José Padilla which was a subject of great concern and controversy at the time and I remember commissioning the drafting of a very transparent statement about everything we knew about him and then pushing to get it declassified, get it reviewed for Privacy Act compliance which we also did here and then getting that out, so I remembered that pretty well.

Comey also cited the Department’s letter to Congress summarizing the results of the criminal investigation into Internal Revenue Service (IRS) officials, including Lois Lerner.[141] Comey said that the Lerner letter, which criticized IRS officials for “mismanagement, poor judgment, and institutional inertia” that did not amount to criminal conduct, supported his decision to criticize former Secretary Clinton’s handling of classified information even in the absence of sufficient evidence to establish her criminal liability.[142]

Witnesses told us that the Privacy Act concerns stemmed largely from Comey’s criticism of former Secretary Clinton’s conduct in his draft statement, but that they believed including such criticism served a legitimate law enforcement function (and thus was permitted). According to FBI Attorney 1, the high public interest in the case, the particular individual involved, and the need to deter others provided justifications for including the information:

So it wasn’t just that we weren’t prosecuting her, but you didn’t want to leave the impression with...the rest of the community that she’s getting away with something or...that this is okay to do this. And so I think there was that, that balance. And that’s why I don’t think I thought so hard about the, the fact that we were talking about uncharged conduct of her. I was thinking more in terms of well we need to kind of balance this so that people understand that we’re not giving her a clean bill of health, you know, and that people can do this kind of activity.

Anderson told the OIG that she expressed concerns about criticizing uncharged conduct during discussions with Comey in June 2016. She said that the decision to include such criticism “was a signal that...we weren’t just letting her off the hook....[O]ur conclusions were going to be viewed as less assailable...at the end of the day if this kind of content was included.”

Baker told the OIG that “there were multiple audiences” for the criticism of former Secretary Clinton in Comey’s statement. He recounted hearing that FBI employees not involved in the Midyear investigation hated former Secretary Clinton and had made comments such as, “[Y]ou guys are finally going to get that bitch,” and, “[W]e’re rooting for you.” Baker stated, “And if we’re not going to get her on these facts and circumstances, then we’d better explain that now.” Related to this idea, notes taken by Strzok at a May 12, 2016 meeting involving the Midyear team state, “Messaging thoughts: Workforce Qs: (1) If I did this, I’d be prosecuted; (2) Petraeus, Berger, etc. were charged; (3) Overwhelming conservative outlook.”

FBI Attorney 1 told the OIG that she also considered whether the July 5 statement would violate the Department’s Election Year Sensitivities Policy. As described in Chapter Two, that policy requires approval from the Public Integrity Section of the Criminal Division before filing charges or taking overt investigative steps near the time of a primary or general election. However, the policy applies only to election crimes cases. FBI Attorney 1 told us, “Someone mentioned [the policy] at that time. And I looked into it, and...it’s not specific to this kind of case. And that’s kind of the problem, I think, with the policy.”

Baker told the OIG that the FBI took into account and complied with the requirement that Department personnel obtain the approval of the Attorney General or the Deputy Attorney General for the public release of certain information.[143] Baker said that Comey’s call to Lynch and Yates on the morning of his July 5 press conference (described below) telling them that he planned to hold a press conference later that morning, and their failure to instruct him not to do so, constituted “permission” under Department regulations. Baker said that this was so even though Comey called Lynch and Yates only after calling the press and he had refused to tell Lynch and Yates what he planned to say. When pressed by the OIG about this interpretation of the regulation, Baker acknowledged that it was “aggressive.” In comments to the draft report, Baker further explained that because Comey did call Yates and Lynch on July 5:

They could have demanded to know what he was going to say, and/or could have told him not to do it without a full discussion with them. They did not. One is the AG, the other the DAG. They had an opportunity to say “no” or “stop” to the FBI Director. For whatever reasons, they did not. That is on them.

E. Concerns about a Public Statement[edit]

Source page 200

Numerous witnesses told the OIG that, while they did not recall any significant disagreement within the FBI about whether Comey should do a public statement, there was concern about whether he should do one on his own, without advance notification to or coordination with the Department. McCabe’s initial reaction to the idea was that it would breach Department protocol and create “dangerous precedent” for the FBI, among “a million other possible things” that could go wrong. However, McCabe told the OIG, “[U]ltimately I was convinced that, that he was doing what he thought was right and that what was right for the case.”

Baker told the OIG that he raised similar concerns in various one-on-one discussions with Comey over an extended time period. Baker said he did so because he “viewed it as my obligation to push back aggressively with respect to whatever [Comey] said if I thought it was wrong,” to make sure that all legal, policy, and ethical issues were fully evaluated, and to “think about how others would think about things” from different perspectives and at different times. Baker said that he and Comey discussed a range of options for announcing a declination and thought through the benefits and drawbacks of each, “tr[ying] to find some door other than the doors that led to hell.”

Comey also sought input from his former FBI Chief of Staff, Chuck Rosenberg, who at the time was the Acting Administrator of the Drug Enforcement Administration. Comey told the OIG that in May and June 2016 he spoke to Rosenberg and “sounded him out” about the possibility of doing an FBI-only press announcement to close the investigation. According to Comey, Rosenberg was concerned that doing a statement would be unprecedented, expose Comey to “extraordinary fire,” and create an irreparable breach with the Department. Comey said that Rosenberg thought that doing the statement was a “close call, but on balance, it’s the right call.”

Rosenberg told the OIG that he spoke to Comey three times about the draft statement. He said that Comey first reached out to him in late April or early May 2016, before there was a draft statement and well before the tarmac meeting between Lynch and former President Clinton. Rosenberg said that Comey was seeking guidance on whether he should make a public statement to announce the FBI was closing the Midyear investigation, or should do a referral to the Department. Rosenberg described Comey as “wrestling” with the decision and trying to figure out the right thing to do.

Rosenberg said that Comey showed him a hard copy of the May 2 draft statement, and told him that he planned to do the statement on his own, without coordinating with the Department. Rosenberg said that Comey thought he could more credibly announce a declination without the Department because of the “politics” of having an Attorney General appointed by a Democratic President close an investigation into the Democratic presidential nominee without charges. Asked whether Comey discussed concerns about Lynch based on her instruction to him to call the investigation a “matter” or classified issues reflecting potential bias by her, Rosenberg said that he did not recall Comey mentioning those to him.

Rosenberg said that he had two competing reactions to the statement. He said that on one hand, it was “outside the norm” and inconsistent with the Department’s practice, and that had the FBI publicly announced a recommendation when he was a U.S. Attorney instead of giving it to him privately, he would not have been happy. On the other hand, he thought that Comey was a “compelling and credible public servant,” and he said he understood why Comey thought he could “do this and do it well.” Rosenberg said that he did not tell Comey that it was a good or bad idea, but instead raised questions about what other options were available and the potential ramifications of an FBI Director giving a public declination. Rosenberg said that he recalled telling Comey it was a “52-48 call,” but that he went back and forth on whether the “52” weighed in favor of or against doing the statement.

F. Comey’s Decision Not to Inform the Department[edit]

Source page 201

As described above, documents and testimony indicate that Comey planned to do the statement independently without advance notice to the Department even before the tarmac meeting between Lynch and former President Bill Clinton. Comey acknowledged that he made a conscious decision not to tell Department leadership about his plans to independently announce a declination because he was concerned that they would instruct him not to do it, and that he made this decision when he first conceived of the idea to do the statement. He stated:

The, come May, and I’m trying to figure out how the endgame should work, to preserve the option that I ended up concluding was best suited to protect the institutions, I couldn’t tell them that I was considering that. Because if I told them that one of the—in my mind I drew this spectrum—at one end of the spectrum is I’m going to announce separate from you what the FBI thinks about this and very practical about it they, I remember thinking this, if I surface that with them, they might well say, I order you not to do that and then I would abide that, I wouldn’t do that.
And so I remember saying to the Midyear team when I circulated in May my first draft I said what would the most, one end of the spectrum, what would that option look like? I said keep this close hold, I mean you can have conversations with the Department of Justice about the endgame, but don’t tell them I’m considering this because then that option is going from us. Because if I were the DAG, maybe they wouldn’t have, but what I was thinking was, if I’m the DAG I say, just to be clear, I order you not to make any statements on this case without coordinating it with us. And so to be honest, I would lose that option.

Asked whether he owed it to Department leadership to inform them of what he was thinking so that they could make a decision on behalf of the Department, Comey stated, “In a normal circumstance, sure.” He explained that the Midyear investigation was not a normal circumstance:

[T]o my mind, the peril to the Department, including the FBI, was so extraordinary, the potential for damage to the institution, that I needed to preserve that option.... And so look I, everything about this is unprecedented and God willing no Director will ever face this circumstance, but I thought that to protect the institution I care about so much, I have to preserve that option. Of course, in a normal circumstance it’s the right of the Attorney General and Deputy Attorney General to make those decisions and the FBI Director should tell them, but this was not the normal circumstance.

Comey told the OIG that he did not credibly think that Lynch and Yates were going to stop him when he informed them about his plans on the morning of his press conference, and that he wrestled with whether to tell them at all.

IV. June 27, 2016 Tarmac Meeting and Aftermath[edit]

A. Meeting between Lynch and Former President Clinton[edit]

1. How the Meeting Came About[edit]

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On June 27, 2016, Lynch flew to Phoenix as the first stop in a week-long community policing tour.[144] Traveling with her were her husband, her Deputy Chief of Staff, a senior counselor to the AG (Senior Counselor), a supervisor in the Department’s Office of Public Affairs (OPA Supervisor), and another Department official. Lynch told the OIG that her plane landed several hours late, and they arrived in Phoenix around 7 p.m. local time. According to Department witnesses, Lynch’s staff left the plane first and boarded the staff van. Lynch remained on the plane with her husband and the head of her security detail, and waited to get off the plane until her motorcade was ready. The OPA Supervisor explained that this practice is standard FBI protocol and is intended to leave the Attorney General “out in the open for the least amount of time.”

Approximately 20 to 30 yards from Lynch’s plane was a private plane with former President Bill Clinton on it. Former President Clinton had been in Phoenix for several campaign events, including a roundtable discussion with Latino leaders and a campaign fundraiser, and his plane was preparing to depart. Former President Clinton said that he did not know in advance that Lynch was in Phoenix and was not aware that her plane was close to his until his staff told him. Asked about news reports that he purposely delayed his takeoff to speak to Lynch, former President Clinton stated:

It’s absolutely not true. I literally didn’t know she was there until somebody told me she was there. And we looked out the window and it was really close and all of her staff was unloading, so I thought she’s about to get off and I’ll just go shake hands with her when she gets off. I don’t want her to think I’m afraid to shake hands with her because she’s the Attorney General.

He said that he discussed with his Chief of Staff whether he should say hello to Lynch, and that they debated whether he should do it because of “all the hoopla” in the campaign. He stated, “I just wanted to say hello to her and I thought it would look really crazy if we were living in [a] world [where] I couldn’t shake hands with the Attorney General you know when she was right there.”

Former President Clinton said that he did not consider that meeting with Lynch might impact the investigation into his wife’s use of a private email server. He stated, “Well what I didn’t want to do is to look like I was having some big huddle-up session with her you know.... [B]ecause it was a paranoid time, but...I knew what I believed to be the truth of that whole thing. It was after all my server and the FBI knew it was there and the Secret Service approved it coming in and she just used what was mine.” As a result, he said that he never thought the investigation “amounted to much frankly so I didn’t probably take it as seriously as maybe I might have in this unusual period[.]”

Former President Clinton said that he recalled walking toward Lynch’s plane with his Chief of Staff, and that Lynch and her staff were “getting off the airplane.” He said that he greeted Lynch, who was on the plane, and Lynch stated, “[L]ook it’s a 100 degrees out there, come up and we’ll talk about our grandkids.”

The Senior Counselor told the OIG that she was waiting in the van with the three other Department employees on the trip, and she saw two people walking toward Lynch’s plane. She said that as the two people went up the stairs to the plane, she realized that one of them was former President Clinton. The Senior Counselor said that she saw the head of Lynch’s security detail turn away the second person at the door and allow former President Clinton to board the plane. Other witnesses recalled that former President Clinton had additional staff members with him, and that these people did not board the plane.

The Deputy Chief of Staff said that she had “zero knowledge” that former President Clinton was there before she saw him approach the plane. She stated, “And if I had knowledge, I would not have been in that van. I would’ve...stayed on the plane and got everybody off.... No heads up or anything.” The Senior Counselor said she asked everyone in the van if they knew that former President Clinton was going to be there, and they all said no. The OPA Supervisor said that he later learned that former President Clinton’s Secret Service detail had contacted Lynch’s FBI security detail and let them know that the former President wanted to meet with Lynch. Although Lynch’s staff was supposed to receive notice of such requests, witnesses told us that they were not informed of the request from former President Clinton.[145]

Lynch said that she was on the plane with her husband and the head of her security detail, and that they were preparing to leave when she learned that former President Clinton had asked to speak to her. She stated:

[W]e were walking toward the front door, and then...the head of my detail stopped and spoke to someone outside the plane, turned around and said former President Clinton is here, and he wants to say hello to you. And I think my initial reaction was the profound statement, what? Something like that. And he repeated that. And he spoke again to someone outside the plane. And we were, we were about to walk off the plane. We were going to go down the stairs and get into the motorcade and go on, and...the head of my detail said...can he come on and say hello to you? And I said, yes, he can come on the plane and say hello. And he was literally there. So I don’t know if he was talking to President Clinton or somebody else. I don’t know who was on the steps.

Lynch said that former President Clinton boarded the plane in a matter of seconds, suggesting that he was in the stairwell near the door to the plane. Lynch said that she was very surprised that he wanted to meet with her because they did not have a social relationship, and she was also surprised to see him “right there in the doorway so quickly.”

Lynch said that she had “never really had a conversation” with former President Clinton before this meeting, or with former Secretary Clinton at any time. She said that “years ago” when she was the U.S. Attorney for the Eastern District of New York, she saw former Secretary Clinton at a 9/11 event and said hello.[146] She said that she also saw both of them at the funeral for former Vice President Joe Biden’s son, Beau Biden, which was held on June 6, 2015. She said that she recalled that during that conversation former President Clinton congratulated her on the FIFA corruption case. Lynch told the OIG that she did not have a social relationship or socialize with either former President Clinton or former Secretary Clinton.

However, Lynch said that public officials often stopped her to say hello when she traveled, and that as a result she was not initially concerned when former President Clinton wanted to say hello. For example, Lynch told us that Ohio Governor John Kasich, who was a candidate in the 2016 Republican presidential primary, stopped her one time to say hello in an airport, and they had a 10-minute conversation even though they had never met before. The OPA Supervisor told the OIG, “It wouldn’t be uncommon for [Lynch] to...match courtesy with courtesy regardless of [whether the person was] Republican, Democrat, whatever.”

2. Discussion between Former President Clinton and Lynch[edit]

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During our review, we found no contemporaneous evidence, such as notes, documenting the substance of the discussion between Lynch and former President Clinton. The only documentary evidence we identified that summarized the meeting were “talking points” created by Lynch’s staff after the meeting became a subject of controversy, as discussed in Section IV.B.

Former President Clinton and Lynch denied that they discussed the Midyear investigation, the upcoming interview of former Secretary Clinton, any other Department investigation, or plans for Lynch to serve in some capacity in a Hillary Clinton administration. We summarize below what they told us about their discussion.

Former President Clinton’s Testimony[edit]

Former President Clinton told us that he congratulated Lynch on being named Attorney General and mentioned several things that she had done that he thought were good policy, such as continuing with criminal justice reforms that were implemented by former Attorney General Eric Holder. He said that they then talked about their grandchildren, his recent visit to see former Attorney General Janet Reno, and his golf game.

We asked former President Clinton if he had discussed Brexit or West Virginia coal policy with Lynch. He said he did not recall Brexit coming up, but acknowledged that he probably did discuss it with her because he was very worried that it would disrupt the Irish peace process.[147] When asked whether his comments included the potential implications of the Brexit vote and the rise of populism for the U.S. election, he stated that he did not remember discussing that, but that one of his “automatic responses” during the campaign was to describe how the press had underestimated the reaction to globalization and the resulting identity crisis, and how Brexit was simply a manifestation of that. As a result, he said he could not rule out that he said something similar to Lynch. Former President Clinton also said that he did not recall mentioning West Virginia coal policy to Lynch, but that he would not be shocked if he had done so because he thought a lot about it, and he frequently talked about the issue.

Former President Clinton said he did not recall telling Lynch that she was doing a great job, but told us he probably did so because “the Justice Department...when President Obama was there, I thought they did a lot of good things that needed doing, especially in criminal justice.” However, he denied that his comments were motivated by an intent to influence the investigation. He told us that he did not recall telling Lynch that she was his favorite cabinet member, and he did not think it was likely that he would have made such a comment. He stated, “I like her, but I’m very close to Tom Vilsack and was very close to a couple of the others, so I couldn’t have said that, but I do like her a lot.”

Former President Clinton said he only mentioned former Secretary Clinton once during the discussion, and that concerned how happy she was to be a grandmother. He said he told Lynch:

[T]hat she was a happy grandmother and an ardent one and that we were very lucky because our daughter and her husband and our grandchildren live in New York, so they are about an hour from us in a decent traffic day. And I told her that before the campaign was underway Hillary and I tried to see our grandkids every week and in the best weeks, she would see them once when she was down there. Then I would see them once and then we’d see them once together and I was down, and I remember talking about every now and then we got them up in Chappaqua where we live and it was quite bracing trying to keep up with them and how much fun it was and that’s really what we talked about.
I do remember saying that grandparents typically say it’s better than being a parent because it’s all the fun and none of the responsibilities, and I told Chelsea once after [her daughter] was born that she would never hear me say that, that I still thought being her father was the best gig I ever had.

When asked whether they discussed former Secretary Clinton’s upcoming interview with the FBI, Clinton replied, “Absolutely not.... [I]t wouldn’t have been appropriate for me to talk to her about any of that and I didn’t.” He said that they also did not discuss the Midyear investigation, the Clinton Foundation matter, any other Department investigation, the Benghazi hearings held by Congress, or then FBI Director Comey.

We asked former President Clinton whether he discussed the possibility of Lynch serving as Attorney General or in another position in a future Hillary Clinton administration, or a possible judicial nomination. He stated:

No. Not even with anybody else. Not with Hillary. Not with anybody.... We didn’t discuss that because...I’m very superstitious. I never discuss anything like that. I want everybody to focus on the matter at hand and I thought the environment was much more volatile than a lot of people did.

Former President Clinton also said that he was a little surprised by the criticism after his tarmac meeting with Lynch. He stated:

[T]he mainstream media wasn’t as bad on that as they were on a lot of things, I thought, I think the ones that were criticizing me, I thought you know, I don’t know whether I’m more offended that they think I’m crooked or that they think I’m stupid. I’ve got an idea, I’ll do all these things they accuse me of doing in broad daylight in an airport in Phoenix when the whole world can see it in front of an Air Force One crew and I believe one of her security guards. It was an interesting proposition, but no we did not.
Lynch’s Testimony[edit]

As described above, Lynch said the head of her security detail told her that former President Clinton wanted to speak to her, and she said that he could come on the plane and say hello. Lynch told the OIG that she thought that she and former President Clinton would briefly exchange greetings, and then she would get off the plane. She described what happened after he boarded the plane:

Well first we’re...standing in the...the cabin of the plane because, again, he’s saying he wanted to say hello. I introduce him to my husband. We were standing up, because I thought we were going to stand up, say hello, and then keep walking. There were two members of the flight crew in the back section of the plane. So, President Clinton shook hands with the head of my detail, with my husband, with me. He went back and spoke to the two members of the flight crew, and he stayed back there for a few minutes, like five minutes maybe, because he spoke individually to each of them for a few minutes....And they were very excited, you know.... [H]e was very gracious to them.

Lynch said that former President Clinton then returned to the front of the plane where she and her husband were standing and began talking to her husband. She said they had a brief discussion about Lynch’s trip to Phoenix, Clinton’s new grandchild, and various family issues including how to deal with sibling rivalry. She said they were still standing during this discussion, but that former President Clinton sat down after a few minutes:

At some point, after two or three minutes, President Clinton turned around. I had my tote bags on the bench seat of the plane, because I had put them there when he came on board. I had been holding them. I put them down. He picked up my tote bags and moved them, and then he sat down. So he sat down, and my husband and I were still standing in front of him having the discussion. And...he sort of sat heavily, and...I didn’t know...how he felt, so I can’t say one way or the other. But he sat down and started talking about, you know, the grandkids and how they introduced them to each other. And so, and ultimately, because this went on for a little but, my husband and I sat down also, and, you know, had that discussion about his family and the kids[.]

She said that after this, the discussion continued, with former President Clinton doing most of the talking. She stated:

Well, after he was sharing with us his story about how...they introduced the two grandchildren to each other, which involved a toy...and that was green, and just, again, the family issues, he said what brings you to Phoenix. And I said I’m here on a police tour, and I’m doing a lot about the law enforcement community relations. And I said, you know, how did you find Phoenix? And he mentioned that he had been there for several meetings, he had played golf. I made a reference to the heat, because it was still incredibly hot while we landed, which was why we were still on the plane.
And he made a comment about playing golf, and you can manage the heat. Just, he was talking a lot about the golfing issue was well, but nothing of substance about that. And he asked about my travels, and I said that I had been recently traveling to China. I had to come back for the Pulse Nightclub [shooting]. I had been to Alaska and met with Native youth. I then said...you know, that was an issue of great importance to [former Attorney General Janet] Reno. Have you talked with her lately and do you know about her health? And he said, yes, I’ve seen her. I visited her along with Donna Shalala, I visited her, and he told me when. And I said because she’s not doing well. We talked about that for a few minutes.
And I remember at that point saying, well, you know, thank you very much kind of thing, and he sort of continued chatting and, and said, and made a comment about his travels he was headed on. And I said, well, we’ve got to get going to the hotel. And I said I’m sure you’ve got somewhere to, to go. And he said yes. And I forget where he told me he was going. He was flying somewhere, but...I’ve forgotten where. He said I’m going to wherever I’m off to. And then he made some comment about West Virginia. And I do not know if he was headed to West Virginia. I just don’t know...if that was the reference to it. And he made a...comment about West Virginia and coal issues and how their problems really stem from policies that were set forth in 1932. And he talked about those policies for a while. And, and I said, okay, well.

According to Lynch, Clinton discussed West Virginia coal policy as an historical issue, not in connection with the campaign. She said that he discussed Brexit in a similar context, talking about the cultural issues that led to the decision and whether “people in the UK viewed themselves as citizens of the world or the country or whatever.”

In response to specific questions asked by the OIG, Lynch said that she and former President Clinton did not discuss the Midyear investigation or any other Department investigation, James Comey, Donald Trump, or the upcoming Presidential election. She said that they also did not discuss possible positions for her in a future Hillary Clinton administration, a potential nomination to the Supreme Court, or her future plans after President Obama left office.

Lynch said that Clinton told her that she was “doing a great job as a cabinet member or...words to that effect.” She said that she thought that he was flattering her and “would have said that to every cabinet member at that time. No, I, I viewed it as...him being jovial, honestly, and being genial.”

Lynch estimated that she talked to former President Clinton for approximately 20 minutes before a member of her staff came back onto the plane, as we describe below. She said that she became increasingly concerned as the meeting “went on and on.” Lynch said that when she thought about it later that evening and discussed it with her staff about in the context of the case, she concluded “that it was just too long a conversation to have had. It...went beyond hi, how are you, shake hands, move on sort of thing. It went beyond the discussions I’ve had with other people in public life, even in political life, it went beyond that [in terms of length].”

3. Intervention by Lynch’s Staff[edit]

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While former President Clinton was on the plane, Lynch’s staff were waiting in the staff van. The Deputy Chief of Staff said that they quickly realized that the meeting was problematic, because Clinton was not just the former President but was also the husband of someone who was under investigation. The Deputy Chief of Staff said that she felt “shocked,” and that they all “just felt completely...blindsided.” The Senior Counselor said that they immediately were aware that the meeting was ill-advised and that the “optics were not great.”

The OPA Supervisor said that he waited approximately 5 minutes, and then he left the van. He said he went over to one of the other agents on Lynch’s security detail, who was waiting in the vehicle that was going to carry Lynch. The OPA Supervisor said that he asked the agent what was going on, whether there had been any notice that former President Clinton wanted to say hello, and how long he was supposed to be on the plane. The OPA Supervisor said that the agent did not know. According to the OPA Supervisor, he asked the agent to tell the head of Lynch’s security detail that Lynch needed to end the meeting. The OPA Supervisor stated, “And I don’t know that [the head of Lynch’s security detail] thought it was appropriate to [ask her to] wrap it up because I guess that’s his boss too.”

The OPA Supervisor said that there was a photographer outside, and he recalled telling the photographer that Lynch would not be taking pictures. The OPA Supervisor said that he remembered telling the photographer that he (the photographer) needed to go back in his car. The OPA Supervisor stated, “I’m going back in my car. Like, no one is hanging out. I like President Clinton, too. I’m not hanging out for a photo.” The OPA Supervisor said that he then got back in the staff van.[148]

By this time, former President Clinton had been on the plane for approximately 10 to 15 minutes. The Deputy Chief of Staff said that they were discussing the need for someone to go back on the plane when the Senior Counselor, who led the Phoenix portion of the trip and therefore was seated in the front of the van closest to the door, told the group that she was going to go and jumped out of the van. The Deputy Chief of Staff said, “And then [the Senior Counselor] was just running upstairs. And so, that’s how—that’s when we decided...to do something.” The Senior Counselor described her thinking at the time: “And I don’t know what’s going on up there, but I should at least go up to intervene or help her if she needs help.... I think...it was part uncertainty and part kind of like this is a bad idea.”

The Senior Counselor said that when she tried to go back on the plane, she was stopped by the head of Lynch’s security detail, who was at the door of the plane. The Senior Counselor said that she told him that Lynch’s meeting with former President Clinton was not a good idea, and that she needed to get back on the plane, but he still would not let her on. The Senior Counselor said that she then asked him to convey to Lynch that she was advising that the meeting was a bad idea. According to the Senior Counselor, he told her, “All right, why don’t you tell her yourself,” and finally allowed her to board.

The Senior Counselor said that when she got on the plane, she saw Lynch, Lynch’s husband, and former President Clinton sitting down and “chatting...in a casual way.” The Senior Counselor said that she walked up to the three of them and stood there hoping that her presence would break up the meeting. She said that Lynch saw her and introduced her to former President Clinton, and she shook his hand. The Senior Counselor said that she hoped this would get everyone moving, but then former President Clinton sat back down. The Senior Counselor stated, “So then...I kind of didn’t know what to do because...it was a little bit unusual to be in a room with...a former president and say...you need to leave....So...I think I stared at them for a little bit longer, and then went back to where [the head of Lynch’s security detail] was standing.” The Senior Counselor said that she considered whether she should go get someone else or go back over to Lynch and tell her, “Look, ma’am, we have to go.” She said she then went and stood in front of the group again.

The Senior Counselor said that her presence prompted Lynch to tell former President Clinton that the reason she (the Senior Counselor) was standing there was that she was too polite to tell Lynch that they had to go. The Senior Counselor said that Lynch told former President Clinton, “And we do have to go. You know...we have a pretty busy schedule.” The Senior Counselor said that she could not recall what Lynch and former President Clinton were discussing, but that her impression was that Lynch was “uncomfortable and wanted the meeting to be done.”

Lynch said that after the Senior Counselor got back on the plane, former President Clinton commented, “Oh, she’s mad at me, because I’d been on the plane too long. And she’s come to get you.” Lynch said that she replied to him, “[W]ell, we do have to go. And then he kept talking about something else.” She said that he kept talking for “a good 5 minutes” after the Senior Counselor got back on the plane. Lynch said that she finally stood up and said, “[Y]ou know, it was very nice of you to come. Thank you so much. And just...thank you again for stopping by.” She said that they said goodbye several times, and her husband shook former President Clinton’s hand again. Former President Clinton then left the plane.

The Senior Counselor said she went to talk to Lynch after former President Clinton left. She stated, “And I kind of looked at her and...I think I said...something like that was not great, or...something like that. And she’s like, yeah.” She described Lynch as “look[ing] kind of...gray and, you know, not pleased.” The Senior Counselor said that after they left the plane, she got into the staff van, Lynch got into her vehicle, and they went to the hotel. She said that they did not talk to Lynch about what happened until the next day.

The Deputy Chief of Staff told the OIG that they did not attempt to get information from the head of Lynch’s security detail about the conversation that took place on the plane. She explained:

And my only conversation with [the head of Lynch’s security detail] was a rare, fairly admonishing one...just saying, this is not okay, this shouldn’t be the protocol; you didn’t contact me; you could’ve radioed your FBI guy in the van to say, send someone up. So...my conversation was not a very pleasant one by the time I talked to [the head of Lynch’s security detail]. So I didn’t ask questions like, oh, what did you hear. I was just like, we need to figure this out, and this never needs to happen again.

The Deputy Chief of Staff said that the security protocol was changed almost immediately as the result of what happened. Under the revised protocol, the senior counselor (i.e., the staff member in charge of the trip) was required to remain on the plane with Lynch and the head of her security detail, and to escort her at other times.

B. Responding to Media Questions about the Tarmac Meeting[edit]

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Melanie Newman, the Director of OPA, said that the OPA Supervisor called her from the van and “sounded the alarm,” telling her that he just saw former President Clinton board Lynch’s plane. According to Newman, she asked the OPA Supervisor a number of questions, including why former President Clinton was there and whether he had a press pool with them, which he could not answer. Newman said that she asked the OPA Supervisor to get out of the van and figure out what was going on. Newman said that she was not just concerned that there was a press event going on that they did not know about, but that the potential implications for the investigation were obvious to everyone “except apparently the FBI agents on the Attorney General’s detail.”

Newman said that the OPA Supervisor called her back approximately 30 minutes later, after the Senior Counselor had returned to the van. According to Newman, the OPA Supervisor told her that there was no press pool, but that former President Clinton had his own photographer there. Newman said that the OPA Supervisor told her that former President Clinton had asked Lynch’s FBI detail if he could go on Lynch’s plane, and no one had communicated this to her staff. Newman stated, “No one talks to the AG without staff saying they can talk to the AG. But they didn’t do this because he’s a former President.”[149]

Newman said she spoke to Lynch and the staff traveling with her by phone the next day, June 28, 2016. According to Newman, during this call Lynch described how the meeting with former President Clinton happened, what they discussed, and how she had tried to end the discussion. Newman characterized Lynch as “devastated” about the tarmac meeting. She stated:

[Lynch] doesn’t take mistakes lightly, and she felt like she had made...an incredible...mistake in judgment by saying yes instead of no, that he could come on the plane. But also, she’s like the most polite, Southern person alive. I, I don’t know in what circumstances she would have said no, or what would have happened if she had said no.... I would have much preferred a story that the Attorney General turned a former President of the United States away on the tarmac, but...she doesn’t make mistakes, and she was not pleased with herself for making this kind of high-stakes mistake.

Newman said that they discussed the best way to respond to any press questions about the meeting. She said that Lynch had a press conference scheduled in Phoenix, so she (Newman) wanted to have talking points prepared in case someone asked about the meeting with former President Clinton.

At approximately 1:15 p.m. EDT, Newman received an email from an ABC News reporter asking about the meeting between Lynch and former President Clinton, based on information from its Phoenix affiliate. Newman said that this inquiry confirmed that the meeting would come up at Lynch’s press conference, and she sped up the process to develop talking points. Newman forwarded the inquiry to the OPA Supervisor and Lynch’s Acting Chief of Staff stating, “We need to talk.”

The Acting Chief of Staff arranged a conference call, and added Matt Axelrod, the Deputy Chief of Staff, and the Senior Counselor to the list of invitees. However, the OPA Supervisor and the Senior Counselor were waiting for an event in Phoenix to begin and could not join the call. Following the call, Newman emailed a short

C. Discussions about Possible Recusal[edit]

1. Departmental Ethics Opinion[edit]

Source page 214

Lynch told the OIG that she began discussing whether she needed to recuse herself from the Midyear investigation on June 28, 2016, the morning after the tarmac incident. Lynch said that she called her Acting Chief of Staff, who was back in Washington, D.C., and asked her to contact the Departmental Ethics Office to find out if the ethics regulations required recusal. Lynch said (and the Acting Chief of Staff confirmed) that she obtained an oral ethics opinion that there was no legal requirement to recuse herself.

Janice Rodgers, the former Director of the Departmental Ethics Office, said that she remembered receiving a call from someone on Lynch’s staff, although she did not remember who it was. Rodgers said that she spoke to Lynch’s staff member over the phone, and after hearing what happened, concluded that the ethics regulations did not require recusal. Rodgers explained her understanding of the facts:

[T]he fact that the subject’s spouse had, I don’t know what the right word is. You know, sort of created, engineered a, you know, contact with the AG, which was apparently, you know, completely non-substantive, and in my view. And also in circumstances that made it very difficult for the AG to decline or avoid contact.

Rodgers said that the question was “more of...a capital-P political issue...meaning people were going to make hay of it,” and that Department leadership would have to weigh the amount of heat they were willing to take versus the importance of Lynch’s participation in the matter. She stated, “There was nothing about that that required recusal.... [W]hether the AG chose to recuse based on sort of the more...global considerations was...out of my bailiwick.”

2. Discussions about Voluntary Recusal[edit]

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Lynch said that she then considered whether she should recuse voluntarily based on appearance concerns—i.e., concerns that the meeting created the appearance that former President Clinton was influencing the Midyear investigation through her, or that she was influencing it by having a connection to him. Lynch said she wanted to be able to make a statement about her plans for remaining involved in the Midyear investigation during an interview with a Washington Post reporter at the Aspen Ideas Festival, which was scheduled for the last day of her trip, July 1, 2016.

Lynch said she held a number of calls that involved Yates, Axelrod, Newman, the Acting Chief of Staff, and other Department officials, and that these calls likely took place on the Wednesday or Thursday of that week. She said she also discussed the issue with the staff members who were traveling with her. Lynch said that she did not recall anyone expressing the view that she should recuse herself; she said that her staff raised issues and concerns for discussion, but no one presented her with a conclusion that she should recuse.

Discussions Involving Yates, Axelrod, and Other Department Officials[edit]

Yates told the OIG that the group participating in these calls quickly dismissed the idea of recusal because they knew that the Department was going to announce what they expected to be a declination “in a matter of days.” She stated:

And the fear [was] that this is going to look really artificial...if you’ve spent over a year with [Lynch] at the helm of this investigating it, and then this tarmac thing happens and she recuses.... That’s going to look really artificial then if all of a sudden somebody else is announcing it and we’re saying oh, there’s no problem with the tarmac because she’s recused. When really that decision had been all but made...while she was AG.

Axelrod expressed a similar opinion, and stated that other factors weighed against recusal as well. In particular, he said that he understood that Lynch had not discussed anything improper with former President Clinton, and for her to recuse would have made it look like she had. He said he also thought that the people calling for her recusal would not be satisfied by it:

I thought that for folks who had already, again, for...political reasons been calling for a special counsel I wasn’t sure that a recusal...would be sufficient. That it would end there with...the AG stepping aside and the DAG taking over. I thought calls would increase for Department leadership to step out altogether. Which again, I didn’t think was good for the integrity of the investigation. And that was my goal was to protect the integrity of the investigation.

Axelrod told the OIG that he did not specifically recall having a discussion with Rybicki or McCabe about the tarmac incident, but said that he was “sure [he] did have conversations.... [T]his would be a big thing not to have a conversation about[.]” Rybicki told us that Axelrod called him early in the week to tell him that the tarmac meeting had happened. McCabe said that he also spoke to Axelrod a day or two after the tarmac meeting, and that Axelrod told him that Lynch likely would not recuse herself from the Midyear investigation.

Toscas said he was on vacation the week of the tarmac meeting, and Axelrod contacted him by phone to tell him about it. Toscas said that he contacted Laufman, and that both he and Laufman thought that recusal was unwise. Toscas stated, “I thought that a recusal would make it look like, oh this person who is doing inappropriate things has been overseeing this thing for a long time now, so that means the whole thing is tainted by it.... [T]hat would actually probably be more harmful to our investigation and the appearance to the public of our investigation.”

Lynch’s Decision Not to Recuse[edit]

Lynch said that she decided not to recuse herself from the Midyear investigation. In making this decision, Lynch said she considered whether her meeting with former President Clinton would cause people not to have faith in the judgment or decisions of the Department. She said she weighed this against the concern that stepping aside would create a misimpression that she and former President Clinton had discussed inappropriate topics, or that her role in the case somehow was greater than it was.

She explained that other considerations informed her decision:

And I, and I also had the view that, you know, when you create a situation, as I felt I did by sitting down with, with the President, it’s, yes, it can be almost a relief in some ways to say, you know what? I’m going to recuse myself and get out of it and not take, not take the hits. And then you’re just asking someone else to step up and endure all the hits the Department will take for the case for the result, whatever it is.
And, you know, I thought about it from that, that angle as well. You’re just asking someone else to step up and do your job for you. And if I did not think it rose to the level of recusal, then I did not want to do something out of a desire to protect myself sort of personally from embarrassment also because that’s not the way to make somebody else take on that responsibility.

Lynch said that she took into account that NSD did not think recusal was necessary. She said she conveyed her regrets to the Midyear prosecutors for putting them in the position of having people outside the Department look at their work and think that it would be influenced by anything improper.

Planning for the Aspen Interview[edit]

Axelrod told the OIG that the “game plan” that emerged from these discussions was for Lynch to explain publicly how the Midyear investigation had been handled all along:

* It was handled by career agents and prosecutors;
  • The career agents and prosecutors had been the ones doing the work for more than a year;
  • When the career agents and prosecutors finished their work, they would make a recommendation to Department leadership; and
  • When Lynch received that recommendation, she fully expected to accept it, but she ultimately was the decider.

Axelrod said it was “definitely not the game plan” for Lynch to convey that she would accept the recommendation of the career staff no matter what they brought her, or that she would take herself out of the decisionmaking process but not formally recuse herself. However, he acknowledged that the different ways she described this process in her interview with the Washington Post reporter (discussed below) led to some confusion.

Carlin spoke at the Aspen Ideas Festival before Lynch arrived and said he was scheduled to return to Washington, D.C., with her. Carlin said that he met with Lynch, her husband, and her staff in person before her interview with the Washington Post reporter, and Carlin conveyed to her that NSD was not making a request that she recuse herself. Carlin said they also discussed what Lynch planned to say in her interview. Like Axelrod, Carlin told us that Lynch intended to provide more insight than she normally would into the investigative process, not to communicate that something had changed because of the tarmac incident.

Melanie Newman told the OIG that she made it known that she disagreed with this approach from a messaging perspective. Newman said that she thought recusal was appropriate because public statements and actions “need to be clear-cut.” Newman stated:

[W]e tried to have it both ways.... [W]e said that she would accept the recommendation of the senior career prosecutors and investigators on the case. Well, usually that is what the Attorney General does anyway. That means literally nothing....
This is the Attorney General, I mean, I’m not aware of, there may be disputes [in other cases] between the [FBI and the prosecutors] that the Attorney General is sort of the deciding vote. But generally speaking, in charging decisions, the Attorney General accepts the recommendation of those people who know the evidence most intimately. I think in the rare instance that there are disagreements, the Attorney General may, may accept the recommendation of one over the other, for example. But that’s, that’s sort of what they do.

Newman said that Lynch was doing the same thing that she usually does, except that “she was saying before the conclusion of the investigation that this was how she was going to handle it. That was the difference.”

D. Lynch’s July 1 Aspen Institute Statement[edit]

Source page 217

During the interview with the Washington Post reporter, Lynch acknowledged that her meeting with former President Clinton raised questions about her role in the Midyear investigation. Addressing how that investigation would be resolved, Lynch stated:

But I think the issue is, again, what is my role in how that matter is going to be resolved? And so let me be clear on how that is going to be resolved. I’ve gotten that question a lot also over time and we usually don’t go into those deliberations, but I do think it’s important that people see what that process is like.
As I have always indicated, the matter is being handled by career agents and investigators with the Department of Justice. They’ve had it since the beginning. They are independent.... It predates my tenure as Attorney General. It is the same team and they are acting independently. They follow the law, they follow the facts. That team will make findings. That is to say they will come up with a chronology of what happened, the factual scenario. They will make recommendations as to how to resolve what those facts lead to. Those—the recommendations will be reviewed by career supervisors in the Department of Justice and in the FBI and by the FBI Director. And then, as is the common process, they present it to me and I fully expect to accept their recommendations.

Lynch then responded to a question about a news article that morning reporting that she planned to recuse herself from the Midyear investigation. She stated, “Well, a recusal would mean that I wouldn’t even be briefed on what the findings were or what the actions going forward would be. And while I don’t have a role in those findings and coming up with those findings or making those recommendations as to how to go forward, I’ll be briefed on it and I will be accepting their recommendations.”

As the discussion continued, Lynch responded to additional questions about her continued role in Midyear. Asked about a news report that she had made the decision in April 2016 to accept the recommendations of the career staff, Lynch replied:

Yes, I had already determined that that would be the process.... And as I’ve said on occasions as to why we don’t talk about ongoing investigations in terms of what’s being discussed and who’s being interviewed, is to preserve the integrity of that investigation. We also typically don’t talk about the process by which we make decisions, and I have provided that response too.
But in this situation, you know, because I did have that meeting, it has raised concerns, I feel, and I feel that while I can certainly say this matter’s going to be handled like any other, as it has always been, it’s going to be resolved like any other, as it was always going to be. I think people need the information about exactly how that resolution will come about in order to know what that means and really accept that and have faith in the ultimate decision of the Department of Justice.

Lynch’s comments about the status of her continuing involvement in the Midyear investigation created considerable confusion. After her appearance, various new articles reported that she had decided to defer to the recommendations of the FBI or had effected a “non-recusal recusal.”[150] Lynch said she participated in a follow-up interview with the Washington Post reporter during which she attempted to clarify her statement. The resulting article quoted her as follows:

I can certainly say this matter is going to be handled like any other as it has always been. It’s going to be resolved like any other, as it was always going to be.... I’ve always said that this matter will be handled by the career people who are independent. They live from administration to administration. Their role is to follow the facts and follow the law and make a determination as to what happened and what those next steps should be.... This team is dedicated and professional. So I can’t imagine a circumstance in which I would not be accepting their recommendations.[151]

Lynch told us that her role in oversight of the Midyear investigation did not change. She stated:

[A]s I said to, to the reporter at the time, that the team is going to continue and, and do what they needed to do in terms of interviews, forensics, all the investigative steps that they would take that were not influenced by me. They would look at all the facts, all the evidence, and come up with a recommendation that was going to be vetted through supervisors on both sides of the house, the legal side of the house, the investigative side of the house, and they would make a recommendation to me.

Lynch continued:

[T]hey are going to present me with a recommendation, that I expect to accept, which I always expected that I would accept given the people involved in the process, then there is really no need for me to step aside from this because I’m, I’m listening to their recommendation. I’m doing what I’m supposed to do in terms of discharging my duties in running the Department, in, in managing the Department in what is an important case and a sensitive case. And, and essentially, there won’t be a change.

E. Impact of the Tarmac Meeting on Comey’s Decision to Make a Public Statement[edit]

Source page 219

As described above, Comey began drafting a public statement announcing the conclusion of the Midyear investigation in early May 2016, well before the tarmac meeting, and told the OIG that he planned not to inform the Department. Comey told us that he had struggled with the decision, and that “in a way the tarmac thing made it easy for me” and “tipped the scales” towards making his mind up to go forward with an independent announcement. He stated, “I think I was nearly there. That I have to do this separate and apart.... And so I would say I was 90 percent there, like highly likely going to do it anyway, and [the tarmac meeting] capped it.”

Comey said that Lynch’s decision not to recuse herself and to defer to his recommendation impacted his decision. He stated:

[I]f you believe the nature, the circumstance, 500-year flood, if you believe that it’s officially unusual that you can’t participate meaningfully in one of the most important investigations in here, in your organization, then I think your obligation is to find another way to discharge leadership responsibilities. Either appoint someone within the organization to be in charge of the case to make sure there is leadership to engage across the street with us, not to be this neither fish nor fowl, I’m still the Attorney General and really in an odd way, what she said explicitly was sort of the culture of the case before the tarmac thing [in that she was not closely involved in the investigation], which was I’m the Attorney General and that’s not really my thing and then she made it explicit by saying, I’m still the Attorney General, but I’m going to accept what Jim Comey and the prosecutors say.

Comey also stated:

Had Loretta said, I’m stepping out of this [after the tarmac meeting]. I’m making Sally Yates the acting Attorney General and had I gone and sat down with Sally and heard her vision for it, maybe we would have ended up in a different place. I don’t know. It’s possible we’d end up in the same place, but it’s hard to relive different, imaginary lives.

As described in more detail in Chapter Eight, on October 13, 2016, Comey gave a speech at the SAC Conference in which he spoke at length about the Midyear investigation. Comey stated the following regarding the tarmac meeting in explaining his decision to deliver a unilateral public statement:

At the end of [the investigation], [the team’s] view of it was there isn’t anything that anybody could prosecute. My view was the same. Everybody between me and the people who worked this case felt the same way about it. It was not a prosecutable case.... The decision there was not a prosecutable case here was not a hard one. The hard one, as I’ve told you, was how do we communicate about it. I decided to do something unprecedented that I was very nervous about at the time, and I’ve asked myself a thousand times since was it the right decision. I still believe it was.
Here was the thinking. Especially after the Attorney General met with former President Clinton on that airplane the week before we [interviewed] Hillary Clinton.... The hard part in the wake of the Attorney General’s meeting was what would happen to the FBI if we did the normal thing? The normal thing would be send over an LHM even if we didn’t write it. Go talk to them. Tell them what we think, tell them whether we think there’s something here or whether we think a declination makes sense, but all of that would be done privately.
What I said to myself at the time, we talked about it as a leadership team a lot and all believed that this was the right course, try to imagine what will happen to the FBI if we do the normal thing. Then what will happen to us is the Department of Justice will screw around it for Lord knows how long, issue probably a one sentence declination, and then the world will catch on fire, and then the cry in the public will be where on the earth is the FBI, how could the FBI be part of some corrupt political bargain like this, there’s no transparency whatsoever, where is the FBI, where is the FBI. Then, after a period of many weeks where a corrosive doubt about us leaks into the public’s square, then I’d have to testify in exactly the way I did before. Our view of it would be dragged out in that way, in a way I think would’ve hugely damaging to us, and frankly, to the Justice Department more broadly and for the sense of justice in the country more broadly.

V. July 5, 2016 Press Conference[edit]

A. Notifications to Department Leadership[edit]

Source page 221

On July 1, 2016, Comey emailed Rybicki a script containing what he planned to say to Lynch and Yates on the morning of July 5. Entitled “What I will say Tuesday on phone,” the script stated:

I wanted to let you know that I am doing a press conference this morning announcing the completion of our Midyear investigation and referral of the matter to DOJ. I’m not going to tell you anything about what I will say, for reasons I hope you understand. I think it is very important that I not have coordinated my statement outside the FBI. I’m not going to take questions at the press conference. When it is over, my staff will be available to work with your team.

Rybicki told the OIG that Comey wanted to be “very careful” about what he said on the phone to avoid substantive discussion before the actual press conference, and that was why he wrote out what he planned to say. Rybicki said that Comey did not deliver this script verbatim during his calls to Lynch and Yates, but that it was close to what he actually said.

Comey and Rybicki also developed a timeline for notifying the media, the Department, and Congress about the press conference. After notifying the press pool and sending out a media advisory by 8:00 a.m., Comey planned to call Yates at 8:30 a.m. and Lynch at 8:35 a.m. After those calls took place, McCabe, Rybicki, and, Strzok were assigned to call Toscas, Axelrod, and Laufman, respectively, beginning at 8:30 a.m. The timeline is set forth below in Figure 4.1.

Figure 4.1: FBI Timeline for Notifications on July 5, 2016[edit]

OIG-fig-4.1.jpg

Emails indicate that the Department first learned about Comey’s press conference as the result of the media notifications on the morning of July 5, not from Comey or Rybicki. At 8:08 a.m., Melanie Newman sent an email to Lynch’s Acting Chief of Staff, Axelrod, and Lynch’s Deputy Chief of Staff entitled “FBI presser at 11 a.m.” This email stated, “Just heard that the Director is having a press briefing today at 11 a.m. I have not heard anything but have asked for guidance.” Axelrod replied at 8:15 a.m., “I’ll call Rybicki.” At 8:16 a.m., apparently after talking to the FBI Office of Public Affairs (OPA), Newman stated, “[The FBI OPA Section Chief] says the Director has called the DAG.” Axelrod replied at 8:18 a.m., “Nope.” At 8:31 a.m., Axelrod replied again and stated, “They just spoke. He’s going to call the AG too.”

Newman emailed Axelrod and Lynch’s Acting Chief of Staff with additional information at 8:33 and 8:43 a.m. She stated in the first email, “For the record, these notifications [to Lynch and Yates] are happening AFTER they notified press. I learned from a reporter that they were requesting pool coverage—which means they want live TV.” In the second email she stated, “They are also doing an off the record call this morning.”

Newman told the OIG that in the weeks leading up to July 5, she had been “clamoring” for information from Axelrod about the conclusion of the investigation so that she could get some sense of the timeline. She said she had been “hearing from reporters that [the investigation] was, it was coming to an end and the FBI was likely to announce something.” She said that Axelrod assured her that the FBI would not announce a conclusion without the Department, that they were not at the point where they were ready to announce anything, and that he would tell her when they were. Newman told the OIG that she did not doubt that Axelrod “believed this to be true.”

Newman said that on the morning of July 5, after she found out from a reporter that the FBI would hold a press conference that day, she called the FBI OPA Section Chief to inquire about it and was told, “I can’t tell you what this is about...but I’m sure you can guess.” According to Newman, the Department’s OPA had longstanding problems getting information from FBI OPA, but this was “unprecedented” and “absolutely ridiculous.”

1. Call to Yates[edit]

Source page 223

Comey said that when he spoke with Yates, he told her he was about to make a public press statement about the email investigation, including that the FBI had finished it and was sending it to the Department with its recommendation. Comey told the OIG that Yates did not say anything except “thanks for letting me know.” According to contemporaneous emails, both Yates and Axelrod were notified by the FBI by 8:28 a.m.

Yates told us that she remembered Comey saying that he was going to hold a press conference that morning. She said that she did not recall if Comey said that it would be about the Clinton investigation, but that she knew it would be. She stated, “And I remember thinking sort of, what the heck is this? And hanging up immediately and calling Matt [Axelrod] to find out more of what he knew, because if there’s ever anybody who’s going to know what’s going on it’s going to be Matt.” She said that Comey’s tone during the call was “very emphatic, I’m not going to tell you what it is,” and that made her determined to find some other way to find out what Comey planned to say.

Yates said that she and Axelrod assumed that Comey would deliver a very brief statement that the FBI had concluded the Clinton investigation and had reached a determination, and possibly would state what the FBI’s recommendation to the Department was going to be. She said that based on her knowledge of the investigation, they expected that if Comey announced a recommendation it would be a declination. She stated, “But [we] certainly didn’t expect what then happened.” She said that she viewed Comey’s decision to do a press statement without coordinating with the Department as problematic, particularly the failure to coordinate on the content of the statement. We discuss Yates’s reaction to the content of Comey’s statement in more detail below.

Axelrod said that he was surprised that Comey had chosen to do an independent press statement. He said he thought that the statement should have been “coordinated and planned and discussed” with the Department. However, at the time, he did not view the fact that Comey was the one delivering the declination as the primary problem. He stated:

I think it’s important to think about Comey’s press conference in two ways. One was the decision to do it. And then two was...what he said. I just, one was the decision to do it at all. And on the decision to do it at all, I mean, we’re surprised. We were like completely taken aback. But you know, again, we had already wanted the FBI to at least be, even before the tarmac, be part of the public face of this.... Comey was...about to be the entire public face of it. You know, there were some upsides and downsides to that. But you know, it wasn’t all bad.

As described in more detail below, Axelrod thought that the content of Comey’s statement was misleading, and that the way Comey executed the press conference hurt the perception of the integrity of the investigation in a significant way.

Axelrod said that he and Yates did not discuss ordering Comey not to make the statement. Axelrod stated, “I don’t recall that being discussed. Because I don’t think that would have been tenable, right. The press was already coming. And...ordering the Director not to do something can be very fraught. And so I don’t recall that being a discussion.”

2. Call to Lynch[edit]

Source page 224

At 8:24 a.m., Lynch’s Acting Chief of Staff, after being told by Newman about the notice of the FBI press conference, sent an email to Axelrod, asking, “[P]lease call my cell when you are done with Rybicki.” At 8:39 a.m., the Acting Chief of Staff sent the following email to Lynch: “AG: [Y]ou are about to receive a call from the director. Please give me a call on my cell, and I can fill you in as to what it’s about. Alternatively I will be in the office in about 5 to 10 minutes and will stop by.”

Comey said that he called Lynch that morning and told her that he was going to make a public press statement about the email investigation, and that the FBI had completed the investigation and was sending it to the Department with its recommendation. Comey stated that Lynch asked him, “Can you tell me what your recommendation is going to be?” He said that he replied, “I can’t and I hope someday you’ll understand why, but I can’t answer any of your questions—I can’t answer any questions. I’m not going to tell you what I’m going to say.” Rybicki told us that Comey called from his (Rybicki’s) office because of the “snafus” with connecting the calls and provided us with a similar account of what Comey said.

Lynch told the OIG that she was in her office when Comey called her. She said that he told her he was going to make a public statement “very soon,” and that it would be about the email investigation. She described this call as follows:

And I said, when are you proposing to do this? And he said, very soon, within a few moments. I don’t recall if he said 10:00, but certainly it was a short time period. And then he said, and I am not going to discuss the contents with you because I think it’s best if we say, if we, if we are able to say that we did not coordinate the statement. Then I said something, I had another question.... I don’t recall whether I said, what is it about? I just don’t recall my other question. And he said, it’s about, it’s going to be about the email investigation.

Lynch said that he gave her no further indication about the substance of his statement. She said that Comey told her he was not going to go over the statement with her so they both could say that it was not coordinated. Asked whether this language raised a red flag indicating that she should find out more or tell him to stop, Lynch said it did not because it did not occur to her that Comey would talk about the end of the investigation or the FBI’s recommendation. She stated, “And certainly I did not, at that time...on that day, even though [I] knew that they had interviewed the Secretary, I don’t think I had a view that [the investigation] was done at that point.”

Lynch told the OIG that, had she known what Comey was going to do, she would have told him to stop. She said she also would have asked him, “Why would you want to do this?” She stated, “Ultimately, announcing the end of a matter, whether it’s going to be...how will we resolve it, would not be something that I would ever think that the, that the investigative side would do, which is why that was not what I thought he was going to do.”

3. Notifications to NSD[edit]

Source page 225

At 8:28 a.m., McCabe and Strzok received notice that Axelrod and Yates had been notified, which served as the “green light” for them to contact Toscas and Laufman, respectively. At 8:33 a.m., McCabe sent an email to Toscas, stating:

The Director just informed the DAG that at 1100 this morning he has convened a press conference to announce the completion of our investigation and the referral to DOJ. He will not tell her what he is going to say. It is important that he not coordinate his statement in any way. He will not take questions at the conference. His next call is to the AG.
I wanted you to hear this from me. I understand that this will be troubling to the team and I very much regret that. I want to talk to you after the [Principals Committee] and am happy to bring my folks over to DOJ this afternoon to discuss next steps.

McCabe said that he called Toscas, but Toscas was traveling, so he instead sent Toscas an email. At 8:53 a.m., Toscas sent an email to Carlin, Laufman, and Mary McCord, stating:

I’m on hold to talk to the DD now. I received a message from him a few minutes ago saying that this morning the Director informed the DAG that he will have a press conference at 11am today to announce the completion of the FBI’s investigation and the referral to DOJ. He will not take questions at the conference, but he is not coordinating his statement with us. I’ll call when I get off the phone.

According to Laufman’s notes, Toscas then held a conference call with McCord, Laufman, and Prosecutors 1 and 2. According to these notes, Toscas told the group that he had spoken with McCabe and learned that Comey planned to hold a press conference at 11:00 a.m. to announce the conclusion of the investigation and the FBI’s recommendation to the Department. The notes stated, “Director has told AG + DAG. McCabe refused to convey substance. Director doesn’t want statement to appear coordinated with DOJ.”

Laufman’s notes also stated that, even though McCabe said that he would not share the content of Comey’s planned statement, McCabe told Toscas that Comey planned to talk for 10 to 15 minutes and would say what the FBI had done, what the FBI had found, and what the FBI’s recommendation to the Attorney General and the Department would be. Finally, the notes indicate that Toscas spoke to Carlin, and Carlin “said not to discuss w/ OAG or ODAG in advance.”

Other notes obtained by the OIG indicate that Laufman separately spoke to Strzok at 8:35 a.m. that morning. According to these notes, Strzok called Laufman and said that he was “told to call [him] and say” that Comey would hold a press conference at 11:00 a.m. that morning. These notes indicate that Laufman asked, “What exactly will he say,” and that Strzok replied, “Midyear.” The notes also indicate that the “7th floor has told AG/DAG.”

B. Reactions to the Statement[edit]

Source page 226

Comey held his press conference at 11:00 a.m. on July 5, 2016. He delivered the final version of his statement verbatim (provided as Attachment D to this report) and did not take any questions. In this section we describe reactions to his statement within the Department.

1. Department and NSD Leadership[edit]

Source page 226

Lynch told the OIG that she watched Comey’s statement on the television in her office. She described her thoughts as she watched Comey speak:

[D]iscussing findings in something that was technically not closed was, I was a little stunned, actually.... I had no way to stop him at that point, I mean, short of, you know, dashing across the street and unplugging something....
But, so, as he went further into the analysis of not only what they found but what they recommended, I just thought this was, this was done to protect the image of the FBI because of the perception that somehow the FBI was not going to be allowed to have their views known or their views expressed or their views respected within the process. Because that had, that in fact had been, for those of us who were inside the Department at the time, and I don’t know how the FBI was taking it at the time, but certainly if you looked at criticism aimed at the Department, people said, oh yeah, you know, the AG was appointed by Bill Clinton to be U.S. Attorney.
But that was never the real, the real stated concern. It was that there was going to be, you know, these strong investigators who wanted to bring charges who would be somehow silenced or stepped on by the legal side of the house, whether it was the political side or the career side, they never really made much of a differentiation. Easy to attach it to the political side if you’re talking to the AG. But that was really something that was, that was thrown around a lot in, in debate outside of the Department.
So I viewed it as him trying to make his recommendation clear so that, and from, and when he made the recommendation clear and said this is our recommendation, I remember wondering does the, does the team know that this is happening, you know, that the literal investigative team, both sides of it? Did George [Toscas] know this was going to happen? Who knew that this was going to occur? And why didn’t we know in advance?... Meaning the fifth floor, myself, the DAG. Why weren’t we informed in advance of this? So those are my thoughts during the, during, watching of the, of that particular press conference.

Lynch said that she thought that the strongest public concern about the Midyear investigation was not that she as the Attorney General was going to “kill it,” but that the investigative side would want to charge somebody, and the legal side would say no for political reasons. She said that she viewed Comey’s public statement as “basically saying...look...we’re independent. We...aren’t influenced by anybody. And now...no one is also silencing us.” Lynch stated that she did not ascribe malicious intent to Comey, but that she thought that his statement was a “huge mistake.”

Lynch told the OIG that she did not think that the FBI’s recommendation should have been made public “because we don’t make those things public. That’s part of the discussion that we [agents and prosecutors] have. That’s part of, you know, we can talk about it. We can argue about it. We can go back and forth about it.”

Yates told the OIG that she had concerns about the substance of Comey’s statement as she watched the press conference. She stated:

And while I can’t point to specific facts in Jim [Comey]’s description, you know, narrative description there that I would say were inaccurate, I also remember at the time thinking the facts as those are being laid out with much more censure than the facts as I understood them to be and how I had been briefed on this matter. Sort of by way of example, I don’t recall Jim going through and explaining that there were no classification markings on the vast, vast, vast majority. We got three email chains with a, you know, the small C [indicating that the information was Confidential]. Not the Top Secret or anything on there. That it was all to people within the State Department....
That were really, to me gave the most accurate picture of what the facts actually were there. And so I was stunned A, at the level of detail that he went into. B, that he then made judgments and said things like extremely careless and should have known that this material was. And every, anyone should know you shouldn’t have it on a private server. That he gave the impression that, you know, the private server could have been hacked. We don’t really know for sure.... That, you know, I thought wasn’t really a balanced description of what the facts were here.
And so, you know, there are a number of things that are concerning about that. One, that he sort of put that slant on it, that it was done without any consultation with folks at Main Justice. That it impugned someone we weren’t charging. We don’t trash people we’re not charging. And we don’t get to just make value or moral judgments about their conduct. And there were things in there that I thought were unnecessary from a factual, those, they were opinion as opposed to laying out, even if he were going to do this, what was a fair, evenhanded recitation of what the facts were. And I thought that was way out of order.

Asked what her reaction was when she looked back on the statement, Yates said that she was “even more stunned.” She stated:

At the time all of this is happening it’s such a swirl. You know, the tarmac happens and trying to figure out what to happen. I mean, all of this is happening so quickly and in such a charged environment it’s hard to fully, for it all to fully sink in like it does when you look at it then in the calm of day in, you know, in retrospect on that. And look, it was a difficult situation with the tarmac. But that’s not something I think that was appropriate for the FBI Director to unilaterally then decide how he was going to handle that. I think that was a factor that we should consider in how we were going to publicly convey the results of the investigation. And certainly if he had views about how that ought to happen I think he should speak up and should convey those views. But to make the unilateral decision to do it is one thing.
And then to put out that level of detail without coordinating that with DOJ or, you know, DOJ agreeing with that, and then for it to be with a slant that I didn’t think was accurate—and I’m not saying he did that intentionally. I don’t know. I certainly wouldn’t accuse anybody of that. But the way it was conveyed I didn’t think gave the most accurate description. And then, as I said, impugning someone that we weren’t charging with sort of personal judgments....

Yates said that she did agree with Comey’s statement that no reasonable prosecutor would bring a case based on the facts developed in the investigation, but that she did not think that it was “the place of the FBI Director to be out telling the public what a prosecutor would do there.”

Axelrod stated that he and Yates watched the press conference in her office. He said that he was “pretty confident” in what Comey was going to conclude based on what they had been led to believe about the investigation and did not fully process the content of the statement while Comey was delivering it. He said that he reacted more negatively to the statement after attending the briefing by prosecutors the next day:

I didn’t know all the facts because we were giving George [Toscas] the space to tell us what we thought we needed to know. We were not in the weeds. And the next day when we got the briefing o[n] some of the stuff in the weeds there were important facts that the NSD guys briefed the AG on that were absent from Comey’s statement. And so that was when I started to have a much more strongly negative reaction to what Comey had said.

Asked what facts were missing that he thought were important, Axelrod identified the following:

A couple. One, that according to the NSD guys and what I recall from their briefing is that if you look at the spectrum of cases that the Department has brought in the past historically in this area the Department has never brought a case where the classified information was shared between people who work for the Government. It was always someone sharing classified information with someone outside of the Government. That’s a pretty important fact. That if you are laying out your reasons or reasons for recommending declining prosecution that’s a, you know, to me a pretty important one. The other one I recall was that the NSD guys said that most of the emails were, I think whether it was all or most, the majority of the emails that turned out to be classified had been sent late at night or on the weekends. Which, you know, to me means it’s people sort of trying to, you know, were not at their desks, right, where they have access to classified systems trying to talk about, you know, talk around or talk about issues. So I thought that was a really important fact. And again, just when you’re talking about intent, right, that’s an important thing that bears on intent.

Axelrod contrasted Comey’s statement with the briefing by the prosecutors the following day, which he characterized as a “much more complete picture.” He stated, “[W]hen [the prosecutors] were done talking the reaction was like oh, this is clearly a declination. When Comey was done talking, as I think you saw from the public reaction,...it was much more of a mixed bag.”

Axelrod told the OIG that the way the press conference was executed hurt the perception of the integrity of the investigation in a significant way. He stated:

Because if the goal, to do what he did the goal would need to be, and I would imagine his goal was that by the time he’s done talking that even if people don’t agree with the outcome they can see why, you know, understand his thinking and see like why he got to the place he got. And that it would sort of be like a closing argument or something, right. It would be, right, here’s the rationale and I’ve [seen] the facts and here’s why I’m coming out the way I’m coming out. And people again, on the, and for the partisans and people with political agendas, they’re not going to be convinced. But that reasonable center would say like okay, yeah, we get it.
That was not the reaction to the statement. Which I think just by its own terms means the execution failed. Because it raised a lot of questions. It, just it wasn’t, it was much more of a, like I said, the difference in tone and emphasis between what he said and then what we heard in the AG’s office the next morning was striking—to me. And I think if he had, you know, if the folks who gave the briefing the next [day] were the ones who, I mean, obviously not but that those words had been said at the press conference I think it would have been received quite differently.

Toscas told the OIG that his initial reaction to Comey’s statement was, “[H]oly cow, like they [Axelrod and the FBI] were talking about doing a joint appearance or statement of some sort and he’s just doing it all on his own.” Toscas said that he had concerns about Comey’s statement, both the substance of it and the fact that it deviated from Department practice. He stated:

We don’t say we’re closing something, but let me tell you some bad stuff that we saw along the way, but it doesn’t rise to the level of bringing a case. We just don’t do it.... I don’t know whether you can point back to a document some place, but after doing this for almost 24 years, somehow it’s ingrained in me and it appears to be ingrained in everyone around me and everyone who does this whether they’re new or veterans, it’s just something you don’t do, you do not.
It’s the same reason why, if you, for example, and we have these discussions in some cases, if you go get a search warrant and it’s under seal and in the search warrant you’re seeing Tom—there’s probable cause that Tom committed, fill in the blank, whatever horrible crime you want or a lesser crime. You go do your search. There’s no case. There’s no prosecution. It never comes. You know it never leads to a prosecutable case. You don’t unseal that warrant and tell the public, hey, there’s probable cause that Tom is, you know engages in child pornography or we suspect him of a bank robbery, you just don’t do it.
And so it’s the same type of principle. When you decide you’re not proceeding, you say nothing more. I get that in some instances there’s going to be a lot of public knowledge of the facts. A shooting, for example, where the public has seen what happened, so they already know of actual conduct whether it’s criminal or not is different, so you could say, we’re not bringing a charge, but still comment on what everyone has seen.
But that’s not what this was and people could have tried to guess or you know surmise what the actual exchanges were in some instances or what the particular parts of the classified information were, but I just didn’t see it as something that—it did not square with the way we would ordinarily operate.

Toscas said that Comey’s decision to do the statement seemed “beyond strange” and “incredibly dangerous” considering the ongoing campaign and the proximity to the election.

Asked whether “extremely careless” was too similar to “gross negligence,” Toscas said that it was. Toscas said that once Comey was getting “grilled about...gross negligence,” it must have become obvious that they chose words that were so similar to the statutory language that they “created friction in being able to explain [his] ultimate decision.” He told the OIG that he did not know how Comey’s lawyers missed this issue, and that the statement would have benefitted from legal review by the prosecutors.

Toscas did not have a problem with Comey’s statement that no “reasonable prosecutor” would bring a case. He stated:

[T]hat didn’t bother me at all. This is a man who was the Deputy Attorney General of our country. He ran this Department. He was a lifelong prosecutor. I had no problem with that. I know other people do because they say, oh he’s usurping authority and things like that, but I think he is a—he is perfectly qualified, and regardless of his position, even in private practice or as a citizen, a private citizen, he could say that and I think it has credibility.

However, Toscas expressed concerns about the downstream effects of Comey’s deviation from Department practice in making a public statement in July, which he said then impacted Comey’s decisions in October. We discuss those concerns in Chapter Ten.


2. Prosecutors[edit]

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As described above, Prosecutors 1 and 2 learned about Comey’s plan to hold a press conference as the result of McCabe’s call to Toscas and Strzok’s call to Laufman. Strzok also spoke directly to Prosecutor 1 that morning. Prosecutor 1 said that he was “extremely angry” on the phone and pressed Strzok to tell him what Comey planned to say, but that Strzok flatly refused and said that he was not allowed to tell him. Following this call, Prosecutor 1 contacted Prosecutors 3 and 4 and informed them that Comey planned to hold a press conference that morning.

The prosecutors had varying reactions to the substance of Comey’s statement. Prosecutor 4 told the OIG that he was surprised at how strong Comey’s “no reasonable prosecutor” language was and by the inclusion of negative commentary about former Secretary Clinton’s conduct, but that he did not recall hearing anything factually inaccurate in the statement.

Prosecutors 1, 2, and 3 identified substantive concerns with Comey’s statement. Prosecutor 1 highlighted Comey’s negative comments about former Secretary Clinton, characterizing them as “declining to prosecute someone and then sort of dirtying them up with facts that you develop along the way.” Prosecutor 1 also said that the use of “extremely careless” to describe her conduct “begs questions about gross negligence” that could have been avoided if the statement were more carefully crafted. Prosecutor 2 thought that the statement was “totally unfair on many levels,” particularly the discussion of uncharged conduct, and that the characterization of the evidence in the statement was “very skewed.”

Prosecutors 3 and 4 said they had concerns about Comey’s use of “extremely careless” to describe former Secretary Clinton’s conduct in the statement. On July 6, 2016, Prosecutor 3 sent the following email to Prosecutors 1, 2, and 4:

It’s unfortunate that Comey didn’t differentiate the standard of proof between 793(f) and the other statutes. He glossed over all with mention of the absence of intent and made no mention of the necessity of proving knowledge of classified [information] with regard to 793(f) and why that proof was deficient. By using the phrase “extremely careless” he lit up the talking heads last night, many of whom opined that such verbiage warranted a gross negligence charge and that Comey was giving Clinton an unwarranted pass. Even the so-called legal experts didn’t seem to understand the elements of that statute and why it did not apply to the facts.

In his OIG interview, Prosecutor 3 said that he thought that Comey’s remarks had a good assessment of the investigation, but that he should have better articulated the gross negligence provision “because that seemed to draw a lot of fire from the public.” Prosecutor 3 said that Comey’s statement did not explain well enough that under the gross negligence provision “you have to know...you’re being careless with what is in fact classified information.”

On August 2, 2016, Laufman sent an email to FBI Attorney 1 in connection with draft FBI responses to Congressional inquiries that had been made to Comey, and copied Toscas and the NSD prosecutors and supervisors on the email. Laufman stated the following about Comey’s July 5 statement:

We appreciate the Bureau sending us its draft response to the inquiries Director Comey received from Congress. We assume you have already considered and rejected simply responding to the letters (which were sent before the Director’s congressional testimony) by referring the Committees to the Director’s lengthy [congressional] testimony. As the Director has publicly stated, the Bureau did not coordinate the Director’s public statements about this case (many of which are repeated in the Bureau’s draft response) with the Justice Department, and we therefore did not have an opportunity to express our views about those statements in advance. As I’m sure you understand, some of the Director’s statements went beyond the types of statements that we, as prosecutors, would typically make in a case where no charges were brought (e.g., characterizing uncharged conduct of individuals within the scope of the investigation). While we understand and respect the Director’s reasons for departing from normal practice in this one instance, we, of course, have not departed from our practice of refraining from making such statements—and we do not want to be perceived as concurring in or adopting such statements.

VI. Congressional Testimony Explaining the July 5 Statement[edit]

A. July 7, 2016[edit]

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Two days after his statement, on July 7, 2016, Comey testified for several hours before the House Committee on Oversight and Government Reform (HOGR).[152] During this hearing, Comey was asked numerous questions about the basis for the decision to recommend declining prosecution of former Secretary Clinton and whether there was evidence that former Secretary Clinton violated any criminal statutes, including the gross negligence provision in 18 U.S.C. § 793(f). He also was asked about the specific language used in his statement. In response to a question about the meaning of “extremely careless,” Comey stated, “I intended it as a common sense term.... Somebody who is—should know better, someone who is demonstrating a lack of care that strikes me as—there’s ordinary accidents, and then there’s just real sloppiness. So I kind of think of that as real sloppiness.”

Representative John Mica noted the proximity of the tarmac incident on June 27, Lynch’s announcement that she would “defer to the FBI” on July 1, Comey’s statement on the morning of July 5, and former Secretary Clinton’s campaign appearance with then President Obama on the afternoon of July 5. In response to a series of questions about the circumstances of his statement, Comey responded, “Look me in the eye and listen to what I’m about to say. I did not coordinate [my statement] with anyone. The White House, the Department of Justice, nobody outside the FBI family had any idea what I was about to say. I say that under oath. I stand by that. There was no coordination.” Comey also testified that there was no interference in or attempt to influence the investigation by then President Obama, the Clinton campaign, or former Secretary Clinton herself.

Comey also was asked questions about his reasons for doing an independent press conference. In response to a question about whether the system was “rigged,” Comey stated:

I get a 10-year term to ensure that I stay outside of politics, but in a way that it’s easy. I lead an organization that is resolutely apolitical. We are tough aggressive people. If we can make a case, we’ll make a case. We do not care what the person’s stripes are or what their bank account looks like.
And I worry very much when people doubt that. It’s the reason I did the press conference 2 days ago. I care about the FBI’s reputation, I care about the Justice Department. I care about the whole system deeply. And so I decided I’m going to do something no Director’s ever done before. I’m not going to tell the Attorney General or anybody else what I’m going to say, or even that I’m going to say it. They did not know, nor did the media know, until I walked out what I was going to talk about.
And then I offered extraordinary transparency, which I’m sure confused and bugged a lot of people.

Responding to another question about his statement, Comey stated:

[E]verything I did would have been done privately in the normal course. We have great conversations between the FBI and prosecutors. We make recommendations. We argue back and forth. What I decided to do was offer transparency to the American people about the “whys” of that, what I was going to do because I thought it was very, very important for their confidence in the system of justice. And within that their confidence in the FBI.
And I was very concerned that if I didn’t show that transparency, that in that lack of transparency people would say, “Gee. What is going on here? Something—you know, something seems squirrely here?” So I said I would do something unprecedented because I think it is unprecedented situation.
Now, the next Director who is criminally investigating one of the two candidates for President may find him or herself bound by my precedent. Okay. So if that happens in the next 100 years they’ll have to deal with what I did. So I decided it was worth doing.

B. September 28, 2016[edit]

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Comey also testified in an oversight hearing before the House Judiciary Committee on September 28, 2016, several weeks after the FBI released various materials from the Midyear investigation to Congress and in response to Freedom of Information Act (FOIA) requests.[153] During this hearing, Comey answered questions about the conduct of the Midyear investigation, including questions about the reliance on voluntary production of information, the destruction of devices used by former Secretary Clinton, decisions to grant immunity to witnesses, and the interpretation of the gross negligence provision.

Comey was asked again about the independence of the investigation. Representative Steve King asked about the interview of former Secretary Clinton and whether “Loretta Lynch had her people in there?” Comey responded, “There was no advice to me from the Attorney General or any of the lawyers working for her. My team formulated a recommendation that was communicated to me. And the FBI reached its conclusion as to what to do uncoordinated from the Department of Justice.” Asked whether he was responsible for the decision to decline prosecution, Comey said that the decision to decline was made in the Department, but acknowledged that there was “virtually zero chance” that the Department would make a different decision once Comey had made his recommendation public. He stated, “But part of my decision was based on my prediction that there was no way the Department of Justice would prosecute on these facts in any event.”

Importantly, at the September 28 hearing, Comey was asked, “Would you reopen the Clinton investigation if you discovered new information that was both relevant and substantial?” Comey answered, “It is hard for me to answer in the abstract. We would certainly look at any new and substantial information.... What we can say is...if people have new and substantial information, we would like to see it so we can make an evaluation.”

C. June 8, 2017[edit]

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On June 8, 2017, following his firing as FBI Director, Comey testified about Russian interference in the 2016 presidential election before the Senate Select Committee on Intelligence (SSCI).[154] In an exchange with Committee Chairman Senator Richard Burr, Comey was asked about the Midyear investigation, including whether his decision to publicly report the results of the investigation was influenced by the tarmac meeting between former Attorney General Lynch and former President Clinton. Comey replied, “Yes. In—in an ultimately conclusive way. That was the thing that capped it for me that I had to do something separately to protect the credibility of the investigation, which meant both the FBI and the Justice Department.”

Senator Burr then asked whether there were other things that contributed to Comey’s decision that he could describe in an open session. Comey stated:

There were other things that contributed to that. One significant item I can’t, I know the committee’s been briefed on. There’s been some public accounts of it, which are nonsense, but I understand the committee’s been briefed on the classified facts.
Probably the only other consideration that I guess I can talk about in an open setting is at one point the Attorney General had directed me not to call it an “investigation,” but instead to call it a “matter,” which confused me and concerned me. But that was one of the bricks in the load that led me to conclude I have to step away from the Department if we’re to close this case credibly.

The classified facts indicating potential bias by the former Attorney General referenced in Comey’s testimony are discussed in the classified appendix to this report. As described in more detail in that appendix, Comey had concerns about Lynch’s ability to credibly announce the closure of the investigation, in part because of classified information learned by the FBI in March 2016 regarding alleged attempts to influence the Midyear investigation by Lynch, as well efforts by Comey to extend the investigation to impact the election. Although the FBI did not find these allegations credible, did not investigate the allegations, and did not inform Lynch about the information until August 2016, Comey was concerned that, if the allegations became known, it could affect the public’s perception of Lynch’s involvement in the investigation.

Comey was asked to provide additional details about Lynch’s instruction to call the Midyear investigation a “matter” by Senator James Lankford. Comey stated:

Well, it concerned me because we were at the point where we had refused to confirm the existence, as we typically do, of an investigation for months, and it was getting to a place where that looked silly, because the campaigns were talking about interacting with the FBI in the course of our work.
The Clinton campaign at the time was using all kind of euphemisms—security review, matters, things like that—for what was going on. We were getting to a place where the Attorney General and I were both going to have to testify and talk publicly about [it]. And I wanted to know, was she going to authorize us to confirm we had an investigation?
And she said, “Yes,” but don’t call it that, call it a “matter.” And I said, why would I do that? And she said, just call it a “matter.”
And, again, you look back in hindsight, you think should I have resisted harder? I just said, all right, it isn’t worth—this isn’t a hill worth dying on and so I just said, okay, the press is going to completely ignore it. And that’s what happened. When I said, we have opened a matter, they all reported the FBI has an investigation open.
And so that concerned me because that language tracked the way the campaign was talking about FBI’s work and that’s concerning.[155]

In response to a follow up question about this testimony, Comey stated:

And again, I don’t know whether it was intentional or not, but it gave the impression that the Attorney General was looking to align the way we talked about our work with the way a political campaign was describing the same activity, which was inaccurate. We had a criminal investigation open with, as I said before, the Federal Bureau of Investigation. We had an investigation open at the time, and so that gave me a queasy feeling.

Comey also had an extended exchange with Senator John Cornyn about whether Lynch had an appearance of a conflict of interest requiring appointment of a special counsel.

SENATOR CORNYN: But it seems to me that you clearly believe that Loretta Lynch, the Attorney General, had an appearance of a conflict of interest on the Clinton email investigation. Is that correct?
COMEY: I think that’s fair. I didn’t believe she could credibly decline that investigation, at least not without grievous damage to the Department of Justice and to the FBI.
SENATOR CORNYN: And, under Department of Justice and FBI norms, wouldn’t it have been appropriate for the Attorney General, or, if she had recused herself—which she did not do—for the Deputy Attorney General to appoint a special counsel? That’s essentially what’s happened now with Director Mueller. Would that have been an appropriate step in the Clinton email investigation in your opinion?
COMEY: Certainly a possible step, yes, sir.
SENATOR CORNYN: And were you aware that Ms. Lynch had been requested numerous times to appoint a special counsel and had refused?
COMEY: Yes, from—I think Congress had, members of Congress had repeatedly asked. Yes, sir.
SENATOR CORNYN: Yours truly did on multiple occasions. And that heightened your concerns about the appearance of a conflict of interest with the Department of Justice, which caused you to make what you have described as an incredibly painful decision to basically take the matter up yourself and led to that July press conference.
COMEY: Yes, sir. After President Clinton, former President Clinton, met on the plane with the Attorney General, I considered whether I should call for the appointment of a special counsel and had decided that that would be an unfair thing to do, because I knew there was no case there. We had investigated it very, very thoroughly. I know this is a subject of passionate disagreement, but I knew there was no case there. And calling for the appointment of a special counsel would be brutally unfair because it would send the message, aha, there’s something here. That was my judgment. Again, lots of people have different views of it. But that’s how I thought about it.
SENATOR CORNYN: Well, if the special counsel had been appointed, they could’ve made that determination that there was nothing there and declined to pursue it, right?
COMEY: Sure, but it would’ve been many months later or a year later.

VII. Analysis[edit]

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We found no evidence that Comey’s public statement announcing the FBI’s decision to close the investigation was the result of bias or an effort to influence the election. Instead, the documentary and testimonial evidence reviewed by the OIG reflected that Comey’s decision was the result of his consideration of the evidence that the FBI had collected during the course of the investigation and his understanding of the proof required to pursue a prosecution under the relevant statutes. Nevertheless, we concluded that Comey’s unilateral announcement was inconsistent with Department policy, usurped the authority of Attorney General, and did not accurately describe the legal position of the Department prosecutors.

Although we found no evidence that Lynch and former President Clinton discussed the Midyear investigation or engaged in other inappropriate discussion during their tarmac meeting on June 27, 2016, we also found that Lynch’s failure to recognize the appearance problem created by former President Clinton’s visit and to take action to cut the visit short was an error in judgment. We further concluded that her efforts to respond to the meeting by explaining what her role would be in the investigation going forward created public confusion and did not adequately address the situation. Finally, we found that Lynch, having decided not to recuse herself, retained authority over both the final prosecution decision and the Department’s management of the Midyear investigation, including whether to respond to Comey’s call to her on the morning of July 5 by instructing him to share his statement with her.

A. Comey’s Decision to Make a Unilateral Announcement[edit]

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Beginning in early 2016, and certainly by late April 2016, the Midyear team reached a general consensus that the evidence would not support a prosecution, absent major unexpected developments in the form of newly discovered emails or testimony. This assessment was based on a lack of evidence showing that former Secretary Clinton, her senior aides, or other State Department officials knew that they were emailing unmarked classified information or intended to introduce classified information onto an unclassified system. Witnesses told us that, at the time, they understood the emails in question were sent by State Department employees to other State Department employees in the course of doing their jobs, and that both the senders and recipients had the appropriate clearances and the need to know the information. As described in Chapter Two, the prosecutors determined based on their legal research and review of past Department practice that evidence of knowledge or intent was necessary to charge any individual with violations of 18 U.S.C. §§ 793(d), 793(e), or 793(f)(1).

Comey understood and agreed with this assessment. He told us that, as he realized that the case likely would not result in charges, he became concerned that senior Department officials were unable to announce a declination in a way that the public would find credible and objective. Comey said that these concerns were based on the public perception created by an Attorney General appointed by a Democratic President announcing that the Democratic Presidential candidate would not be prosecuted, not on any actions by or concerns specific to Lynch or Yates; however, as discussed below, Comey also pointed to public comments made by then President Obama and his White House Press Secretary about the Midyear investigation, concerns that classified information referencing Lynch would be publicly released and would impact her credibility, Lynch’s alleged admonition to him early on to refer to the FBI’s investigation as a “matter,” and Lynch’s meeting with former President Clinton as contributing to his concerns about her.

In April 2016, Comey initiated discussions with Yates and Axelrod about how to credibly announce the conclusion of the investigation based on the likelihood that the case would result in a declination. During this discussion, Comey stated that he was likely to request the appointment of a special counsel “the deeper we get into summer” without concluding the investigation. Comey told the OIG that his reference to a special counsel was intended to induce the Department to move more quickly to obtain the Mills and Samuelson laptops. We did not find evidence that Comey at any time seriously considered requesting a special counsel.

Lynch told us that she was aware that Yates met with Comey, and that Comey indicated that he was not sure there was a “there there”—i.e., it was not a prosecutable case. Lynch also was receiving periodic briefings about the Midyear investigation, and said that she thought that any discussions about announcing a declination were “very premature” at that time because there were remaining investigative steps to be taken. Lynch told us that she did not know that Comey mentioned requesting a special counsel during his discussion with Yates, and that no one in the Department or the FBI ever suggested to her that a special counsel was needed.

Discussions about a strategy for announcing a declination also took place within the FBI. Comey told the OIG that he considered every option for announcing a declination, from a one-line press release issued by the Department to an FBIonly press conference providing a detailed statement about the investigation. Comey said that foremost in his mind was the need to minimize the “reputational damage” to the Department and the FBI that would result from a declination, and to preserve the credibility and integrity of the institution.

In late April 2016, Comey raised the possibility of “doing something solo” in a meeting with Baker, McCabe, and Rybicki. He also began drafting a public statement that contemplated that he would act alone in announcing the declination, sending a first draft of this statement to Baker, McCabe, and Rybicki on May 2, 2016. Witnesses told us that Comey had not yet made a firm decision to deliver a public statement when he sent this draft, but that he wanted to discuss it as one possible option for announcing a declination.

According to various witnesses we interviewed, Comey and other senior FBI officials knew that delivering a separate public statement held substantial risk. McCabe said that he expressed concerns that such a statement would represent a “complete departure” from Department protocol and could set a “potentially dangerous precedent” for the FBI. Rosenberg said that in discussions with Comey, he raised the possibility that doing a separate statement would create an irreparable breach with the Department. Comey said that he knew it was a “crazy idea, but we were in a [500]-year flood.”

Comey discussed the draft public statement in meetings with members of the Midyear team and with senior FBI officials at various times in May and June 2016. These discussions included whether to do a separate statement at all, in addition to the specific language revisions discussed in Section III.B and C above. Comey said that by June 27, 2016, the date of Lynch’s tarmac meeting with former President Clinton, he was “90 percent there, like highly likely” in terms of deciding to deliver the statement.

Despite this, Comey and other senior FBI officials continued to engage their Department counterparts in discussions about how to credibly announce a declination. These discussions occurred at various levels: between Comey and Yates; between McCabe and Carlin; and between Strzok and Laufman. At no time did anyone from the FBI inform anyone from the Department that Comey was even considering making a statement on his own, let alone that he had already drafted such a statement. Department witnesses at all levels told us that they believed that shortly after the interview of former Secretary Clinton was completed, the Department and the FBI would work together to deliver some sort of coordinated statement, and that Comey would be involved. Yates told the OIG that her understanding was that they would be “all holding hands and jumping off the bridge together.”

Comey said that from the time he first conceived of making a separate statement, he intended to deliver it without coordinating with the Department. He told the OIG that he made a conscious decision not to tell Department leadership about his plans to “go it alone” because he was concerned that they would instruct him not to do it. Comey admitted that he concealed his intentions from the Department until the morning of his press conference, and instructed his staff to do the same, to make it impracticable for Department leadership to prevent him from delivering his statement.

We found that it was extraordinary and insubordinate for Comey to conceal his intentions from his superiors, the Attorney General and Deputy Attorney General, for the admitted purpose of preventing them from telling him not to make the statement, and to instruct his subordinates in the FBI to do the same. Comey waited until the morning of his press conference to inform Lynch and Yates of his plans to hold one without them, and did so only after first notifying the press. As a result, Lynch’s office learned about Comey’s plans via press inquiries rather than from Comey. Moreover, when Comey spoke with Lynch he did not tell her what he intended to say in his statement.

Factors Cited by Comey as Influencing His Decision[edit]

Comey cited several factors that he said influenced his decision to make a statement on his own and without coordinating with the Department. In addition to public comments made by former President Obama and his White House Press Secretary about the Midyear investigation, Comey cited four things that he said caused him to be concerned that Lynch could not credibly participate in announcing a declination: her alleged instruction to call the Midyear investigation a “matter” in a meeting held on September 28, 2015, which Comey said “made [his] spider sense tingle” and caused him to “worry...that she’s carrying water for the [Clinton] campaign”; concerns that highly classified information referencing Lynch would be publicly released and would impact her credibility; the tarmac meeting between Lynch and former President Bill Clinton; and the fact that Lynch was appointed by a President that was the same political party as former Secretary Clinton.

We found none of these reasons persuasive, either standing alone or considered together, as a basis for deviating from well-established Department policies and acting unilaterally in a way intentionally designed to avoid supervision by Department leadership over his actions.

Lynch’s Reference to the Investigation as a “Matter.”[edit]

We found that the discussion between Lynch and Comey on September 28, 2015, was not generally viewed as a particularly significant event, other than by Comey. As described in Chapter Four, Department and FBI officials present at this meeting did not interpret Lynch’s reference in the way Comey did, and contemporaneous notes indicate that the discussion at the meeting was focused on the need to track language in recent letters to Congress and the State Department. Lynch told us that her intent in suggesting that Comey refer to Midyear as a “matter” was to allow them to answer questions about staffing and resources while also complying with longstanding Department policy to refrain from confirming ongoing criminal investigations, not to downplay the significance of the investigation. Other Department witnesses present at this meeting interpreted Lynch’s comment as a suggestion, not an instruction from Lynch. We found no evidence that this phrasing was intended to “track” the language used by the Clinton campaign or was an attempt to influence the investigation. Remarkably, Comey never told Lynch or Yates that this (or any other) incident raised questions about Lynch’s impartiality in his mind, or that such concerns might influence his actions in handling the case.

Concerns about Future Leaks of Classified Information.[edit]

As described in the classified appendix to this report, Comey told the OIG that he became concerned in mid-June 2016 that classified information suggesting that Lynch was exerting influence on the Midyear investigation would be publicly released, and that this would impact her ability to credibly announce a declination. However, by mid-June Comey was already very far along in his plans to make a unilateral statement. Moreover, witnesses told us that the FBI determined based on various factors that the allegations that Lynch had interfered with the investigation were not credible, describing the information as “objectively false.”

Comey told the OIG that he never saw any actions by Lynch to interfere with the investigation, stating, “I’ll say this again, I saw no reality of Loretta Lynch interfering in this investigation.” Rather, Comey said he was concerned that leaks of this non-credible information about Lynch would undermine her credibility. The FBI did not inform Lynch about the allegation in the highly classified information until August 2016, more than a month after Comey’s announcement, and then (according to Lynch) did so in a way that highlighted the FBI’s assessment that the information lacked credibility.[156] At no time did Comey alert Lynch or Yates that the information raised concerns about Lynch’s ability to participate credibly in the Midyear investigation or in any declination announcement. At no time did Comey consult with Lynch or Yates about how to deal with this false information to protect the credibility of the declination decision.

Finally, the OIG found that the same classified information also included an allegation, equally lacking in credibility, that Comey planned to delay the Midyear investigation to aid Republicans. Comey did not inform Lynch or Yates of this fact, let alone discuss with them whether this information might be leaked or whether, if it was, it might undermine his credibility as a spokesman.

Lynch’s Tarmac Meeting with Former President Clinton.[edit]

Comey told us that by the time the tarmac incident occurred on June 27, 2016, he was already “90 percent there” in terms of the decision to make a public statement, but that the tarmac meeting “tipped the scales” towards making his mind up to go forward with an independent announcement on the Midyear investigation. While Comey’s concerns about the impact of the meeting were legitimate, and warranted his informing Lynch of his concerns and providing her with any views he had on how it should be addressed, ultimately the decision whether Lynch should voluntarily recuse herself was Lynch’s to make, not Comey’s.

In his October 2016 SAC Conference speech, Comey emphasized the damage to the FBI that would result if he “did the normal thing” in the wake of the tarmac meeting. He stated that he was concerned that if the FBI made a private recommendation to Lynch, “the Department of Justice will screw around it for Lord knows how long, issue probably a one sentence declination, and then the world will catch on fire[.]” However, the stated concerns are inconsistent with what Comey had already discussed with the Department about the “endgame” of the investigation. Comey knew that the Department was well aware of his view that the Midyear investigation needed to be completed promptly. Comey had previously discussed with Yates the prospect of requesting a special counsel if the investigation continued past the nominating conventions, and Yates told us that she and Comey had made plans to “hold hands and jump off the bridge together” in announcing a declination. Moreover, notes from discussions of the Midyear team that occurred shortly before the Clinton interview on July 2 reflected that the prosecutors understood that Comey wanted to make the announcement by July 8 and therefore there would be “withering pressure” to complete the LHM and memorialize the Midyear prosecutors’ conclusions immediately after the Clinton interview. There simply was no basis for Comey to believe that the Department would take weeks to act on the FBI’s recommendation on such a consequential matter.

Moreover, Comey never raised his concerns about the tarmac meeting with Yates or requested that Lynch recuse herself. Instead, Comey viewed the tarmac meeting as a justification for proceeding with his existing plan to act alone. Comey admitted that had Lynch recused herself he might have reconsidered his decision to make a separate announcement, stating, “Had Loretta said, I’m stepping out of this. I’m making Sally Yates the Acting Attorney General and had I gone and sat down with Sally and heard her vision for it, maybe we would have ended up in a different place.” While Comey indicated that he did not speak with Yates because Lynch had already made her announcement on July 1, we found that he still could and should have done so.

Lynch was Appointed by a Democratic President.[edit]

Comey cited a general concern that Lynch was appointed by a President who was from the same political party as former Secretary Clinton. Yet that fact existed at the beginning of the Midyear investigation. At no time did Comey inform either Lynch or Yates that he viewed Lynch as having a “conflict of interest,” or that he thought she should be recused from the investigation on the basis of party affiliation, or for any other reason. While Comey did mention the prospect of a special counsel in his April 2016 meeting with Yates, he did so seemingly as a bargaining chip to get the Department to move more quickly on the Mills and Samuelson laptops, and we found no evidence that he seriously pursued this option.

We found it troubling that Comey would have formed views about Lynch’s inability to participate in or credibly decline prosecution of the Midyear investigation, yet never once raised them with Lynch or Yates. If Comey genuinely believed that Lynch could not credibly participate in the Midyear investigation or announce a declination, he should have raised these concerns with Yates or Lynch and requested that Lynch recuse herself. If he believed that neither Lynch nor Yates could credibly make a prosecutive decision, he should have discussed this with them at the beginning of the investigation and requested appointment of a special counsel. He did not.

Impact of Comey’s Decision to Make a Unilateral Statement[edit]

Comey’s decision to depart from longstanding Department practice and publicly announce the FBI’s declination recommendation without coordinating with the Department was an unjustified usurpation of authority.[157] Although Comey was aware that the Midyear prosecutors and Department leadership viewed the case as a likely declination, Comey made the decision to announce the conclusion of the investigation before prosecutors had a chance to render their own formal prosecutorial decision. Comey’s views on what a “reasonable prosecutor” would do—while informed by the prosecutors’ views on the likely outcome of the case and he Department’s research on past mishandling cases—were nonetheless made without consulting the Department in advance. Although Comey stated in his press conference that “the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect,” by making this public announcement about the FBI’s charging recommendation, and by stating his view that “no reasonable prosecutor” would bring charges, he effectively made the decision for the prosecutors because it would thereafter have been virtually impossible for them to make any other decision.

Even if Comey had every reason to believe that Lynch and Yates agreed with him, speaking unilaterally and publicly for the Department about a decision to decline prosecution is not a function granted to the Director. The authority to make such a statement had not been delegated to him by his superiors, the Attorney General and the Deputy Attorney General. Comey acknowledged this, but argued that “the potential for damage to the institution” outweighed the need to follow Department practice, stating, “[I]n a normal circumstance it’s the right of the Attorney General and Deputy Attorney General to make those decisions and the FBI Director should tell them, but this was not the normal circumstance.”

In our criminal justice system, the investigative and prosecutive functions are intentionally kept separate as a check on the government’s power to bring criminal charges. While Comey’s statement acknowledged those differing roles and responsibilities, his actions violated those separate authorities by arrogating to himself and the FBI the ability to make judgments about whether a case of the highest political consequence should be charged, and he did so by intentionally seeking to prevent Department leadership from being able to stop him based on concerns that he never even gave them an opportunity to consider. In making a statement announcing the conclusion of the Midyear investigation and opining on what the only possible prosecutorial decision could be, Comey made it virtually impossible for any prosecutor to make any other recommendation. He thereby effectively operated as not only the FBI Director, but also as the Attorney General. It is the Attorney General who is accountable to the public and to Congress for prosecutorial decisions made by the Department, not the head of the investigating law enforcement agency. Comey took that accountability away from Lynch and placed it on himself when he decided to deliver a unilateral statement.

Additionally, Comey’s decision to make an announcement without consulting or obtaining approval from Department leadership violated the Department’s media policy and also may have violated regulations regarding the public release of information. See 28 C.F.R. § 50.2(b)(9). Although Baker told the OIG that Comey’s call to Lynch and Yates on the morning of his press conference constituted approval for purposes of this regulation, Comey’s testimony that he concealed his plans from Lynch until the morning of July 5, only contacted her after the FBI had notified the press in order to make it impossible for her to stop him, and told Lynch when they did speak that he was not going to tell her what he intended to say in his statement, does not constitute consulting with or obtaining approval from Department leadership. In light of these events, we recommend that the Department consider making explicit in the USAM what we thought was obvious in light of Department policy and protocol—that an investigating agency cannot publicly announce its recommended charging decision in a criminal investigation prior to consulting with the Attorney General, Deputy Attorney General, U.S. Attorney, or his or her designee, and cannot proceed to publicly announce that decision prior to obtaining a final prosecution decision from one of these officials.[158]

B. Content of Comey’s Unilateral Announcement[edit]

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We identified two significant substantive concerns with the content of Comey’s July 5 statement. First, Comey included criticism of former Secretary Clinton’s uncharged conduct, including calling her “extremely careless,” thereby violating longstanding Department practice to avoid what others described as “trash[ing] people we’re not charging.” Second, having improperly decided to comment on what were prosecutorial decisions, Comey proceeded to inadequately and incompletely explain how the Department’s prosecutors applied the relevant statutory provisions and why they believed the evidence was insufficient to support a prosecution. For example, Comey described former Secretary Clinton’s handling of classified information as “extremely careless” but then asserted that such conduct did not amount to “gross negligence” under the relevant statute. In so doing, Comey failed to explain that, since at least 2008, it had been the Department’s position that, before bringing a “gross negligence” case, prosecutors had to be able to prove that a defendant knew at the time that the information was gathered, transmitted, or lost that it was in fact classified information. As delivered, Comey’s statement led to greater public confusion and second guessing, not greater public clarity.

Many of the problems with the statement resulted from Comey’s failure to coordinate with Department officials. By deciding not to consult with the Midyear prosecutors about their assessment of the Department’s historical approach to and interpretation of the “gross negligence” statute or their assessment of the evidence under the applicable legal standard, Comey lost the opportunity to hear the views of the career prosecutors responsible for prosecuting violations of the mishandling statutes. Based on our interviews, these prosecutors would likely have warned him about the substantive questions presented by his statement. In addition, Department witnesses told the OIG that the presentation of the case by the Midyear prosecutors at the briefing of the Attorney General on July 6, 2016, which is described in Chapter Six, differed significantly from Comey’s statement, leading these witnesses to conclude that the presentation of the facts in Comey’s statement was “very skewed” or delivered with a “slant.”

Description of Uncharged Conduct[edit]

It is not unprecedented for the Department to announce the completion of an investigation without a prosecution. In fact, it happens frequently in high profile matters, including in many federal civil rights investigations. Such an announcement may serve several legitimate purposes, including allowing the public to know that the Department thoroughly investigated the matter and lifting the cloud over an individual known to have been under investigation. In limited instances, the Department has included criticism of individuals not charged with a crime. Comey cited as precedent for his July 5 public statement the June 2004 press conference by then DAG Comey summarizing the evidence against Jose Padilla, who was designated as an enemy combatant, and the Department’s October 2015 letter to Congress summarizing the results of the criminal investigation into IRS officials, which did not result in criminal charges. However, in both of those instances, the Department was responsible for issuing the statement, not the FBI Director.

Moreover, Comey’s announcement was unusual in that it concentrated in substantial part on criticizing former Secretary Clinton’s uncharged conduct. This was contrary to longstanding Department practice and protocol. Witnesses told us that criticizing individuals for conduct that does not warrant prosecution is something that the Department simply does not do. For example, Toscas stated, “We don’t say we’re closing something, but let me tell you some bad stuff that we saw along the way, but it doesn’t rise to the level of bringing a case. We just don’t do it.” Prosecutor 1 characterized the negative comments about former Secretary Clinton as “declining to prosecute someone and then sort of dirtying them up with facts that you develop along the way.”

Department witnesses did not identify a specific regulation or USAM provision that required Comey to refrain from commenting on uncharged conduct, and we found none. Rather, witnesses described this as a practice that is “ingrained” in every Department prosecutor. This principle underlies other Department policies and practices that do not directly apply in these circumstances, but that are nonetheless salient. USAM 9-27.760 requires prosecutors to remain sensitive to the privacy and reputation interests of uncharged third parties—for example, by not identifying or causing a defendant to identify a third-party wrongdoer by name or description in public plea and sentencing proceedings, without the express approval of the U.S. Attorney and the appropriate Assistant Attorney General prior to the hearing absent exigent circumstances. USAM 9-27.760 states, “In other less predictable contexts, federal prosecutors should strive to avoid unnecessary public references to wrongdoing by uncharged third-parties.”

Similarly, when a case is closed without charges being filed, the Department does not seek to unseal a search warrant for the purpose of revealing to the public that there was probable cause that someone engaged in criminal activity. In addition, where the Department has concluded that an uncharged individual was a participant in a criminal conspiracy, the Department’s rules specifically prohibit prosecutors from naming the uncharged co-conspirator in an indictment or including sufficient detail in public filings that would allow the co-conspirator to be identified. See, e.g., USAM 9-11.130. The common principle underlying these policies is that neither the FBI nor Department prosecutors are permitted to insinuate or allege that an individual who has not been charged with a crime is nevertheless guilty of some wrongdoing. We see no reason why an unindicted co-conspirator should be afforded greater protection than a person who has been investigated and found not to be criminally liable. We therefore recommend that the Department and the FBI consider adopting a policy addressing the appropriateness of Department employees discussing uncharged conduct in public statements.

Several witnesses acknowledged that one major purpose of including negative comments about former Secretary Clinton was to send the message that the FBI was not condoning her conduct: essentially, to protect the FBI from criticism that it failed to recognize the seriousness of her conduct and was “letting her off the hook.” We recognize that this investigation was subject to scrutiny not typical of the average criminal case, but that does not provide a basis for violating well-established Department norms and, essentially, “trashing” the subject of an investigation with uncharged misconduct that Comey, every agent, and every prosecutor agreed did not warrant prosecution. Such norms exist for important reasons and none of the justifications provided by witnesses for why such criticism was warranted in the Midyear investigation—including expressing disapproval of former Secretary Clinton’s conduct to the FBI workforce, “counter[ing]” statements made on the campaign trail that the emails in question were classified after the fact, or informing the American people about the facts of the investigation—provided legitimate reasons to depart from normal and appropriate Department practice.

Substantive Issues with the Statement[edit]

Department witnesses told the OIG that they considered Comey’s statement to be both factually and legally incomplete. These witnesses said that critical facts supporting the decision to decline prosecution were not included in Comey’s statement. Axelrod told the OIG that Comey’s most notable omission was the failure to explain that the Department has never prosecuted mishandling violations “where the classified information was shared between people who work for the Government.... That’s a pretty important fact.” Axelrod and other Department witnesses also noted that Comey did not include information explaining that “the majority of the emails that turned out to be classified had been sent late at night or on the weekends,” suggesting that State Department employees sending the emails tried to “talk around” classified information in the course of doing their jobs. Department witnesses described the characterization of the evidence in Comey’s statement as “very skewed” or unintentionally “slant[ed].”

Comey also included in his statement a comment that although the FBI did not find direct evidence that former Secretary Clinton’s private email account was hacked, the FBI assessed that it was “possible” that hostile actors gained access to former Secretary Clinton’s personal email account based on various factors. He added that the FBI assessed it would be unlikely to see such direct evidence given the nature of the system and the actors potentially involved in hostile intrusions, and that former Secretary Clinton had used her personal email in the territory of foreign adversaries. The statement thus insinuated that hostile foreign actors may have in fact gained access to former Secretary Clinton’s private email account, based almost entirely on speculation and without any evidence from the Midyear investigation to support his claim. As described in Chapter Five, the FBI Midyear Forensics Agent told the OIG that, although he did not believe there was “any way of determining...100%” whether Clinton’s servers had been compromised, he felt “fairly confident that there wasn’t an intrusion.” The LHM summarizing the Midyear investigation similarly stated, “FBI investigation and forensic analysis did not find evidence confirming that Clinton’s email server systems were compromised by cyber means.”

In addition, Comey’s statement failed to describe accurately what the Midyear prosecutors deemed was essential to make out a violation of the “gross negligence” statute. As described in Chapters Two and Seven, the Midyear prosecutors took into account the legislative history of the statute, previous military prosecutions and indictments brought under it, and the Department’s historical interpretation of the provision in declinations dating to at least 2008. Based on this authority, the Midyear prosecutors determined that a violation of Section 793(f)(1) requires (1) a state of mind that is “just a little short of being willful,” “criminally reckless,” or “so gross as to almost suggest deliberate intention,” and (2) evidence that the individuals who sent emails containing classified information did so “knowingly.” With respect to former Secretary Clinton, the Midyear prosecutors determined that in the absence of evidence showing that she knew that emails she received contained classified information, such as through obvious classification markings, Department practice and precedent required that they decline prosecution.

Comey told the OIG that he understood Section 793(f)(1) to require “something closer to actual knowledge.” Yet nowhere in his statement did Comey say that the FBI concluded that former Secretary Clinton lacked knowledge that the information in question was classified, and that prosecutors determined that evidence of such knowledge was needed to bring charges under the “gross negligence” statute. On July 6, 2016, Prosecutor 3 sent an email to the other Midyear prosecutors highlighting this problem. He stated:

It’s unfortunate that Comey didn’t differentiate the standard of proof between 793(f) and the other statutes. He glossed over all with mention of the absence of intent and made no mention of the necessity of proving knowledge of classified [information] with regard to 793(f) and why that proof was deficient. By using the phrase “extremely careless” he lit up the talking heads last night, many of whom opined that such verbiage warranted a gross negligence charge and that Comey was giving Clinton an unwarranted pass. Even the so-called legal experts didn’t seem to understand the elements of that statute and why it did not apply to the facts.

By describing former Secretary Clinton’s conduct as “extremely careless” while failing to explain what the Midyear team concluded was the lack of proof for the other requirements of Section 793(f)(1), Comey created confusion about the FBI’s assessment of her culpability and the reasons for recommending that prosecution be declined. The focus on former Secretary Clinton’s “extremely careless” handling of classified information foreseeably and predictably led the public to question why former Secretary Clinton was not being charged with “gross negligence.”

The issue for the Midyear prosecutors was never whether former Secretary Clinton’s conduct was “extremely careless,” but whether her conduct met the requirements for charging a violation of Section 793(f)—i.e., whether there was sufficient evidence to establish that she knowingly included classified information on her unclassified private email server, or learned that classified information was transferred to her unclassified server and failed to report it. The prosecutors concluded that there was not. As described in Chapter Seven below, the prosecutors found no evidence that former Secretary Clinton believed or was aware that the emails contained classified information, or had concerns about the information included in unclassified emails sent to her.

C. Lynch’s Decision Not to Recuse after the Tarmac Meeting[edit]

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After the tarmac meeting with former President Clinton, Lynch obtained an opinion from the Departmental Ethics Office that she was not legally required to recuse herself from the Midyear investigation. Although the opinion was not memorialized in writing, former OAG staff and former officials in the Departmental Ethics Office confirmed that Lynch obtained this opinion, and that the conclusion was that recusal was not required. Lynch was entitled to rely on that ethics opinion in the face of subsequent questions about her involvement in the Midyear investigation.

Lynch told the OIG that she considered voluntarily recusing herself. However, she thought that doing so would create the impression that something inappropriate had occurred during her conversation with former President Clinton. Lynch said that she felt a responsibility to remain involved in the Midyear investigation, because if she decided to recuse herself, she would be “asking someone else to step up and endure all the hits the Department will take for the case for the result, whatever it is.”

Lynch said that she applied her usual process in the Midyear investigation, and that her role did not change after the tarmac meeting. Lynch told the OIG that the only thing that differed was that she decided to speak publicly about how the Department’s process typically works. However, Lynch’s July 1, 2016 statements at the Aspen Institute were confusing and created the impression that, while she would not formally recuse from the investigation, she also would not remain in a deciding role in the investigation (by stating “I will be accepting their recommendations”). In an effort to address the confusion, Lynch sought to clarify her remarks by providing the reporter with another formulation of her intentions, stating, “I can’t imagine a circumstance in which I would not be accepting their recommendations.” However, these statements continued to make it appear that Lynch would cede her decisionmaking authority to the career staff and the FBI Director in a way that was akin to some type of recusal.

In our view, Lynch should have either made it unambiguously clear that she did not believe there was a basis for recusal and that she was going to remain the final decisionmaker (thereby making her accountable for the final decision, not Comey), or recused herself and allowed Yates to serve as Acting Attorney General, or sought a special counsel appointment. Instead, Lynch took none of these actions, leaving it ambiguous to the public as to what her role would be. Ultimately, that left the public with the perception that the FBI Director, and not the Attorney General, was accountable for the declination decision.

D. Lynch’s Response to Comey’s Notification[edit]

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As described above, Comey concealed his plans to make a public statement from senior Department officials, and instructed his subordinates to do the same. He did not inform Lynch and Yates of his plans to hold a press conference until the morning of July 5, 2016. Comey intentionally left Department leadership a short time to respond to his information, admitting that he did this to avoid having them tell him not to do it.

Comey notified Lynch and Yates of his plans only after first contacting the press. He did not tell Lynch what he planned to say when she asked. According to Lynch, Comey told her he would not go over his statement with her so they both could say that it was not coordinated. Department officials understandably had concerns about directing Comey to cancel the press conference after he had already announced his plans to hold one.

Lynch said while Comey told her that his statement would be about the Midyear investigation, it did not occur to her that Comey would announce the end of the investigation or the FBI’s recommendation. She explained that while she knew that former Secretary Clinton had been interviewed, she was not aware that the investigation was considered complete. Lynch told the OIG that if she had known what Comey was planning to do, she would have told him to stop. However, Lynch said that she trusted him based on her long relationship with Comey and his comment to her that it would be better if they could both say that they did not coordinate his statement. Lynch told the OIG that she thought this was a reasonable decision, and that it was the right decision under the circumstances because the Comey she knew followed the rules. She said that once Comey started speaking and she realized what he was doing, she had “no way to stop him at that point, I mean, short of, you know, dashing across the street and unplugging something.”

Nonetheless, we found that Lynch retained authority over both the final prosecutive decision and the Department’s management of the Midyear investigation. This included the authority to insist that Comey share his statement with her and allow the Department to review and comment on it. Although we recognize that Comey made it impracticable for her to tell him not to make any statement given the FBI had already notified the press, there was time still available for her to review his proposed statement and to instruct him to make changes to it. Even if Lynch did not think that Comey was going to announce that the FBI was closing its Midyear investigation, Comey told her the statement was going to be about the Midyear investigation, a case over which she retained the authority and responsibility as the Attorney General. As such, we believe she should have instructed Comey to tell her what he intended to say beforehand, and should have discussed it with Comey.

Chapter Seven: The Department’s Decision Not To Prosecute

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After former Director Comey’s statement on July 5, 2016, the Midyear prosecutors finalized their analysis and conclusions under the relevant statutes, recommending that prosecution of former Secretary Clinton and others be declined. They then provided their conclusions to NSD supervisors.

On the afternoon of July 6, 2016, former AG Lynch held a briefing attended by Comey, McCabe, and other senior Department and FBI officials. The Midyear prosecutors briefed Lynch on the relevant evidence, the applicable statutes, and the basis for their recommendations. Following the briefing, the Department issued a brief statement announcing that Lynch had accepted the recommendation of the career prosecutors and agents who worked on the Midyear investigation.

In this chapter we discuss the prosecutors’ conclusions and the July 6 briefing, focusing on issues that have been subject to public criticism. Consistent with the role of the OIG and our statement that we will not substitute the OIG’s judgment for the judgments made by the Department or the FBI regarding the substantive merits of investigative or prosecutive decisions, we reviewed whether there was evidence that the Department’s decision to decline prosecution was based on improper considerations or bias. As with our review of investigative decisions, our role was not to determine whether a prosecution should or should not have been brought but rather whether the Department’s explanations for its declination decision were not unreasonable and whether there was evidence that the justifications offered for the decision were a pretext for improper, but unstated, considerations.

I. The Declination Recommendation[edit]

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As described above, prosecutors and NSD supervisors began to realize that the investigation could lead to a declination in early 2016. As the investigation continued into the Spring of 2016, the prosecutors began to consider how to summarize the investigation and memorialize their legal conclusions to provide to their supervisors and to Department leadership. The prosecutors told the OIG that they wanted to wait until the end of the investigation before making a charging recommendation.

The prosecutors planned to complete their legal analysis after former Secretary Clinton was interviewed on July 2, 2016. Following Comey’s announcement on July 5, 2016, they realized they had a much shorter time period to do so and worked until almost midnight on July 5 to finish their legal analysis. They completed this process the following afternoon and provided their analysis and conclusions to Toscas.

The prosecutors’ legal analysis referenced an FBI letterhead memorandum (LHM) summarizing the Midyear investigation.[159] In their analysis, the Midyear prosecutors categorized the witnesses that had been interviewed in the investigation into four categories:

  • Originators of classified information (i.e., individuals who introduced classified information into unclassified emails, including State Department Bureau of Public Affairs employees, an individual who regularly interfaced with State Department employees, State Department Operations Center employees, and other State Department employees responsible for conveying information to their superiors);
  • U.S. government employees who had involvement with a specific Top Secret//Special Access Program (“TS//SAP”);
  • Senior aides to former Secretary Clinton, including Huma Abedin, Cheryl Mills, and Jake Sullivan; and
  • Former Secretary Clinton herself.

The prosecutors referred to the first three categories of witnesses—the Originators, the officials involved with the TS//SAP, and former Secretary Clinton’s senior aides—collectively as the “senders.”

The prosecutors analyzed the conduct of former Secretary Clinton and the “senders” under five statutes:

  • 18 U.S.C. §§ 793(d) and 793(e) (willful mishandling of documents or information relating to the national defense);
  • 18 U.S.C. § 793(f) (removal, loss, theft, abstraction, or destruction of documents or information relating to the national defense through gross negligence, or failure to report such removal, loss, theft, abstraction, or destruction);
  • 18 U.S.C. § 1924 (unauthorized removal and retention of classified documents or material by government employees); and
  • 18 U.S.C. § 2071 (concealment, removal, or mutilation of government records).

The requirements of these statutes are described in more detail in Chapter Three.

As summarized below, the Midyear prosecutors concluded that there was not a basis to prosecute former Secretary Clinton, her senior aides, or others under any of these statutes. The prosecutors cited the following factual conclusions from the investigation as critical to its recommendation not to prosecute:

  • None of the emails contained clear classification markings as required under Executive Order 13526 and its predecessor. Only three email chains contained any classification markings of any kind. These email chains had one or two paragraphs that were marked “(C)” for “Confidential” but contained none of the other required markings, such as classification headers.
  • There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information. In the absence of clear classification markings, the prosecutors determined that it would be difficult to dispute the sincerity of these witnesses’ stated beliefs that the material was not classified.
  • The senders and former Secretary Clinton relied on the judgment of employees experienced in protecting sensitive information to properly handle classified information.
  • The emails in question were sent to other government officials in furtherance of the senders’ official duties. There was no evidence that the senders or former Secretary Clinton intended that classified information be sent to unauthorized recipients, or that they intentionally sought to store classified information on unauthorized systems.
  • There was no evidence that former Secretary Clinton had any contemporaneous concerns about the classified status of the information that was conveyed on her unclassified systems, nor any evidence that any individual ever contemporaneously conveyed such concerns to her.
  • Although some witnesses expressed concern or surprise when they saw some of the classified content in unclassified emails, the prosecutors concluded that the investigation did not reveal evidence that any U.S. government employees involved in the SAP willfully communicated the information to a person not entitled to receive it, or willfully retained the same.
  • The senders used unclassified emails because of “operational tempo,” that is, the need to get information quickly to senior State Department officials at times when the recipients lacked access to classified systems. To accomplish this, senders often refrained from using specific classified facts or terms in emails and worded emails carefully in an attempt to avoid transmitting classified information.
  • There was no evidence that Clinton set up her servers or private email account with the intent of communicating or retaining classified information, or that she had knowledge that classified information would be communicated or retained on it.

In addition to these facts as described by the prosecutors, various witnesses told us that one reason it was difficult to establish intent was that the mishandling of classified information was a persistent practice at the State Department. These practices made it difficult for the Midyear team to conclude that particular individuals had the necessary criminal intent to mishandle classified materials. According to Prosecutor 4, “[T]he problem was the State Department was so screwed up in the way they treated classified information that if you wanted to prosecute Hillary Clinton, you would have had to prosecute 150 State Department people.”

Based on facts evincing a lack of intent to communicate classified information on unclassified systems, the prosecutors concluded that there was no basis to recommend prosecution of former Secretary Clinton or the senders of classified information under Sections 793(d) or (e).

In addition, as described in Chapter Two, prosecutors reviewed the legislative history of the gross negligence provision in Section 793(f)(1) and court decisions impacting the interpretation of it. The prosecutors noted that the congressional debate at the time the predecessor to Section 793(f)(1) was passed indicated that conduct charged under the provision must be “so gross as to almost suggest deliberate intention,” criminally reckless, or “something that falls just a little short of being willful.” The prosecutors also reviewed military and federal court cases and previous prosecutions under Section 793(f)(1), and concluded that they involved either a defendant who knowingly removed classified information from a secure facility, or inadvertently removed classified information from a secure facility and, upon learning this, failed to report its “loss, theft, abstraction, or destruction.” In addition, based on a review of constitutional vagueness challenges of Sections 793(d) and (e), the Midyear prosecutors observed that “the government would very likely face a colorable constitutional challenge to the statute if it prosecuted an individual for gross negligence who was both unaware he had removed classified information at the time of the removal and never became aware he had done so.” The prosecutors concluded that based on case law and the Department’s prior interpretation of the statute, charging a violation of Section 793(f) likely required evidence that the individuals who sent emails containing classified information “knowingly” included the classified information or transferred classified information onto unclassified systems (Section 793(f)(1)), or learned that classified information had been transferred to unclassified systems and failed to report it (Section 793(f)(2)).

Applying this interpretation, the prosecutors concluded that there was no evidence that the senders of emails knew that classified information had been improperly transferred to an unclassified system, or that former Secretary Clinton acted in a grossly negligent manner with respect to receiving emails determined to contain classified information. According to information reviewed by the OIG, the prosecutors also considered whether the decision to conduct official business using a personal server could itself constitute gross negligence, but concluded that there was no evidence that former Secretary Clinton ever considered the possibility that classified information would be present in unclassified emails or on her private email server.

Distinguishing military prosecutions for “grossly negligent” mishandling, the prosecutors also noted that there was no evidence that classified emails were provided to or discovered by people who were unauthorized to receive them. The prosecutors stated, “[A]ll of the emails containing information subsequently determined to be classified were sent for work purposes and were delivered to State Department or other U.S. government officials.”

Regarding Section 1924, the prosecutors stated that the statute requires proof that an individual knew of the removal of classified information and intended to retain that information in an unauthorized location, and that such proof was lacking. The prosecutors cited the absence of classification markings on the emails sent by the senders, with the exception of the three emails forwarded to Clinton containing paragraph markings denoting Confidential information, as well as the lack of evidence that the senders knowingly took classified information and sent it in unmarked emails over unclassified systems. The prosecutors similarly concluded that former Secretary Clinton did not recognize or have reason to believe that the information sent to her contained classified information. Prosecutors cited Clinton’s reliance on the judgment of senior aides and other State Department staff, their attempts to talk around sensitive information in unclassified emails, and her testimony that she did not have reason to question their use of unclassified systems to send that information. The prosecutors concluded that the evidence was insufficient to charge former Secretary Clinton under Section 1924.

The prosecutors also concluded that there was insufficient evidence to support prosecution under 18 U.S.C. § 2071, which prohibits the willful concealment, removal, or destruction of federal records. They concluded that there was insufficient evidence to establish beyond a reasonable doubt that former Secretary Clinton or her senior aides intended to conceal records, citing testimony that these witnesses expected that any emails sent to a state.gov address would be preserved. The prosecutors acknowledged that this testimony was undercut by former Secretary Clinton’s admission that she sometimes communicated with her senior aides using their personal email accounts, as well as an email she received from former Secretary of State Colin Powell at the beginning of her tenure outlining his use of personal email. However, the prosecutors noted that Section 2071 had “never been used to prosecute individuals for attempting to avoid Federal Records Act requirements by failing to ensure that government records are filed appropriately.”

Finally, the prosecutors evaluated whether Mills and Samuelson intentionally deleted emails during the culling process used to separate former Secretary Clinton’s “personal” and “work-related” emails for production to the State Department. They concluded that there was no evidence that emails intentionally were deleted by former Secretary Clinton’s lawyers to conceal the presence of classified information on former Secretary Clinton’s server, particularly because some of the emails produced as “work-related” later were determined to contain highly classified, compartmented information.

II. The Attorney General Briefing[edit]

Source page 258

A briefing for Lynch and Yates on the prosecutors’ recommendation was held in the Attorney General’s Conference Room at 4 p.m. on July 6, 2016. According to the prosecutors, they learned about the briefing after they completed their legal analysis, and had only a short time to prepare. Prosecutors 1 and 2 said they quickly divided the topics and prepared bullet points for the presentation based on their legal analysis.

Attending the briefing were Lynch, Yates, Axelrod, and David Margolis, at the time the most senior career official in ODAG, as well as several OAG and ODAG staff members. Toscas and Laufman were present from NSD, while Carlin participated by phone. Present from the FBI were Comey, McCabe, Rybicki, Baker, FBI Attorney 1, and Strzok. All four prosecutors attended the briefing.

Toscas told the OIG that he gave a brief introduction at the meeting. Toscas prepared handwritten talking points that he used as a guide for his comments at the meeting, but he said that these did not end up being his “precise script.” Toscas said that he “frontloaded” his comments with an acknowledgement that Lynch had stated publicly that she planned to accept the recommendation of the career staff, and that the prosecutors and the FBI were in agreement that no charges should be filed. According to Toscas’s handwritten talking points, he stated, “[A]t the conclusion of the meeting you will have the unanimous recommendation of the FBI [and] DOJ team that this investigation should be closed [and] that charges should not be brought against anybody within the scope of the investigation in this matter.”

The notes indicate that Toscas then praised the team and handed the briefing over to Laufman to introduce the prosecutors. Following their introduction, Prosecutors 1 and 2 walked through the various legal statutes and the facts developed in the investigation. Prosecutor 2 handled sections 793(d) and (e), whi