Mid-Year Exam, Part 3: Clinton's Exoneration

(AP Photo/Alex Brandon, File)

For previous background, see part 1 here, and part 2 here.

In June 2016, the FBI was still gathering information and evidence as Comey was drafting a letter of exoneration.  The idea was that by this time, a decision had already been made about Clinton- unless she lied or confessed, there would be no charges.  If new evidence comes to light from the information still coming in, then the letter can be changed.

In defense of Comey, that there was obvious political pressure being brought to bear, most noticeably by Obama’s April statements. Secondly, the DOJ was pushing back legally against Comey, and politically through Loretta Lynch who, Comey later recalled, was leery of Lynch after the “matter” versus “investigation” wording of MYE.

On June 13th, Strozk informs Page that they found that some paragraphs in the emails were marked “C” for classified or confidential.  He says: “While minor, it cuts against ‘never send or receive anything marked classified’” in reference to Clinton’s talking point.  Later that day, Page informs Strozk that the Hillary Clinton interview will take place on July 2nd.  A few days later, they share more texts expressing worry over Hillary Clinton’s upcoming performance in the interview.  What followed was some of the weirdest events in political history.

In late June, attorney general Loretta Lynch was passing through Phoenix heading back to Washington from Aspen.  Coincidentally, a plane carrying Bill Clinton arrived and was parked on the tarmac at the airport in Phoenix.  Bill Clinton then went on Lynch’s plane for 30 minutes which Lynch described as a social meeting and insisted they did not talk about the email server investigation by stating it was the FBI, not the DOJ, who was investigating.

When the story hit the papers and people started to question the propriety of the meeting, Melanie Newman, a spokesman at the DOJ emailed her counterparts at the FBI with a series of talking points about the meeting.  The email was forwarded to Comey, McCabe and Strozk.  This set off alarm bells at the FBI who quickly moved to determine who told the press about the meeting. On June 30th, Page and Strozk discussed the meeting referring to it as “bad optics,” “and doesn’t help with what the D is trying to do.”  The “D” was director Comey.

On July 1st, Strozk texted Page to inform her of the breaking news that Lynch will go by whatever the FBI decides.  Strozk notes that language about “no choreography” will appear in the Comey statement and wonders if this is why the language appears.  A few texts later, Page responds: “And yeah, it’s a real profile in couragw [sic], since she (Lynch) knows no charges will be brought.”  Based on these messages, we know that Comey had a draft ready to go with some changes and edits that Clinton would be exonerated of anything criminal, and that Loretta Lynch was aware before Clinton was even interviewed.  In fact, the day before, as Strozk was further editing the Comey statement, Bill Priestap suggested that the word “President” be changed to “another senior government official.”  Strozk complied.

On July 2nd, 2016 the DOJ and FBI interviewed Hillary Clinton.  According to a summary of that interview, Clinton said “she could not recall,” “did not recall,” “did not remember,” or had “no recollection” a total of 41 times.  The summary stated: “Clinton did not recall receiving any emails she thought should not be on an unclassified system.  She relied on State officials to use their judgment when emailing her and could not recall anyone raising concerns with her regarding the sensitivity of the information she received  at her email address.”  In short, if she did not remember something, then the fault for sending and receiving classified information on her private server was attributable to someone else in whom she placed her trust.

She also said that at the end of 2012 she suffered a concussion and blood clot that affected her memory.  At this point, Clinton likely knew the investigation was nearing its end, and it is possible she knew its outcome and her approach to the interview was a faulty memory.  When presented with actual emails to jog her memory, then “I don’t know” was the standard response.  At this point the DOJ and FBI were just going through the motions and Clinton likely knew it.  She was not going to lie.  She was not going to confess.  She would just play forgetful, ignorant, and stupid.

On July 5th, Comey stepped before the cameras to announce that the investigation into Clinton’s use of a private server while Secretary of State was completed.  He was referring the case to the State Department after determining that “no charges are appropriate in this case.”  He added: “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.”

After Comey testified to Congress, the story took a twist in early October.  Then criminal investigators in the New York field office were working on a case involving former Congressman Anthony Weiner exchanging sexually explicit pictures with a 15-year-old girl.  Weiner was, at the time, the estranged husband of Huma Abedin.

After examining Weiner’s computers, it was discovered that Abedin often shared the computer and there were emails on it that used the clintonmail.com address.  Sensing this inadvertent discovery had to deal with the Clinton server investigation, the New York field office notified FBI headquarters.  On October 28- two weeks before the 2016 election- Comey sent a letter to Congress informing them of these developments.  The FBI then obtained warrants to search the Weiner computers for emails from Abedin.  The investigation was being reopened after Comey’s announcement it was over back in July.  The timing surprised some people since it did deviate from long standing FBI and DOJ policy to comment on investigations close to an election.  Trump seized upon the development.  Clinton later used Comey’s letter to Congress as one of the many reasons for her election loss.

At this point, some say Comey was between a rock and a hard place. If he went to Congress and reopened the Clinton private server case, it would be seen as political in Trump’s favor.  If he did not go to Congress, it would be seen as a coverup. What was it really?  It was Comey covering his own butt.

He testified that the server probe was completed.  The summary had been released in early September.  If Congress knew that the FBI was looking into the Abedin emails found on Weiner’s computers in connection with the private server inquiry, then obviously the investigation was not closed.  Hence, he took the road that was of greatest benefit to James Comey.  It also belies another problem.  

The Daily Mail first reported of the Weiner sexting with a 15-year-old on September 21, 2016.  On September 26th, the FBI had found emails between Abedin and Clinton using the hillaryclinton.com domain email address.  We know, again from the Strozk-Page text messages, that Andy McCabe was aware of the emails on September 28th.  Yet, Comey waits until October 28th to notify Congress.  Assuming about 10 days from finding the emails to the time they obtained a warrant- perhaps not even necessary if they were discovered in plain view while executing the warrant in connection with the sexting investigation- that means the FBI in Washington is concerned via the Clinton server angle around no later than October 10th.  Why the 18-day delay in notifying Congress?

Then two days before the election, Comey notified Congress that the case is really closed now.  The emails were either personal or previously known and duplicates.  Some of them did have classified material.

There are so many things wrong with the FBI’s investigation of Hillary Clinton’s private server.  When Comey announced her exoneration stating that a “reasonable prosecutor” would not pursue a case, many reasonable prosecutors tended to disagree.  Throughout the investigation, the DOJ never empaneled a grand jury to compel testimony.  Instead, they chose to offer immunity deals which were for naught since no indictments were forthcoming.  In another case, a material fact witness was permitted to be the counsel of the subject of the investigation.  James Comey’s letter of exoneration was drafted two months before Clinton was interviewed and underwent substantial changes and edits to lessen the blow against Clinton.  Comey may not have consulted with anyone, but at least three- McCabe, Strozk, and Page- certainly did, expressing their disdain of Trump, and their preference for Clinton.

Remember when Comey was considering the Espionage Act?  One of the reasons the DOJ prosecutors did not want to go that route was its “constitutional” vagueness.  Specifically, they were referring to Section 793 (f)(1) and concluded that it “required so gross a state of mind to suggest deliberate intention,” as well as willing knowingness the sender included classified information.  This reasoning is hogwash!

  The relevant statute puts the burden on public officials to safeguard secrets.  There need not be a specific finding of intent.  The best way we know this is that the intent of Sterling, Kirikao, Drake, Manning and Snowden played no role in prosecution of their cases.  This leads to the DOJ’s assertion that to call a grand jury to compel testimony it would have revealed state secrets.  That right there tells you “state secrets” that the government felt they had to hide from a grand jury or from a criminal trial in open court were fine to have on a personal email server that was unsecure.  The issue was never the use of personal emails to conduct State Department business.  Clinton is correct that Colin Powell used personal email.  However, Colin Powell and other government officials who used personal emails did so through a government server, not a private unsecure one tucked away in Manhattan or a basement in Chappaqua, New York.

With the server investigation apparently put to bed, it was time to turn one’s attention elsewhere.  Hillary had been exonerated.  It was time to go after her opponent.  This little sideshow was an irksome task for the FBI and DOJ.  They produced a sham of an investigation.  But McCabe and Strozk were not finished as the wheels were already put into motion by the intelligence community in conjunction with the FBI, foreign intelligence services, the DNC, and the Clinton campaign.  

Next: The role of foreign intelligence