CHAPTER 10 ROADKILL
—MARGARET THATCHER
I HAVE NEVER MET Hillary Clinton, although I tried. When I became the United States Attorney for the Southern District of New York in January 2002, I asked my assistant to arrange an introduction to the state’s junior senator. I thought it was a standard thing for the United States Attorney—there were four of us representing the federal government in New York State—to know the senators in the state, and I didn’t want to be rude. I had met the other senator, Chuck Schumer, during the Senate confirmation process, but for some reason I had not met Clinton. After a number of attempts and multiple messages with Clinton’s office, we gave up. It wasn’t a big deal at the time, but I found it odd.
To this day, I don’t know why the meeting never happened. I suppose it could be the result of poor administrative support at Clinton’s office, or she was simply too busy. I suppose it also could have been due to the fact that seven years earlier, I had worked for five months for the Senate committee investigating the Clintons for a variety of things grouped under the heading “Whitewater.” I was a junior lawyer for the committee, still working at a Richmond law firm and charging the Senate by the hour. My focus was largely on the suicide of the former deputy White House counsel, Vincent Foster, and the handling of documents in his office. But my role on the Whitewater committee was so minor and so short—I left the assignment when our son Collin died in August 1995—that it seemed unlikely that was the reason the senator wasn’t returning my calls.
The unreturned messages in early 2002 were more likely due to the fact that my office was then supervising an investigation into Senator Clinton’s husband’s pardon of fugitive oil trader Marc Rich a year earlier, in the final hours of the Clinton presidency. In 1983, Rich and his codefendant, Pincus Green, had been indicted on sixty-five criminal counts by then–United States Attorney Rudy Giuliani. Among the counts were income tax evasion, wire fraud, racketeering, and trading with an enemy of the United States—Iran—while it held dozens of Americans hostage. Rich fled the United States shortly before the indictment (then the biggest tax evasion case in U.S. history). He was given safe haven in Switzerland, which refused to extradite him for what the Swiss considered essentially tax crimes.
Nearly two decades later, on his final day in office, President Clinton had issued Rich a highly unusual pardon. It was unusual because the pardon was given to a fugitive, which was, to my knowledge, unprecedented. It was also unusual, and suspicious, because it had not gone through the normal review process at the Department of Justice. The pardon had only been seen by then–Deputy Attorney General Eric Holder, who, without seeking input from the prosecutors or agents who knew the case, cryptically told the White House he was “neutral, leaning positive.” The New York Times editorial board called the pardon “a shocking abuse of federal power.” Amid allegations the pardon had been issued in exchange for promises of contributions by Marc Rich’s ex-wife to Bill Clinton’s presidential library, my predecessor as United States Attorney in Manhattan, Mary Jo White, had opened an investigation focused on whether there was evidence of a corrupt bargain. When I became United States Attorney in January 2002, I inherited the investigation, which had been the subject of media stories.
I knew something about the case because I had actually been in charge of the fugitive hunt for Marc Rich when I was a federal prosecutor in Manhattan a decade earlier. Rich was then represented by prominent lawyers, among them Scooter Libby, well before his tenure as Dick Cheney’s chief of staff. In 1992, I flew to Zurich with other law enforcement officials for what we were told by Rich’s attorneys would be negotiations for his surrender. According to his lawyers, Rich would turn himself in once he saw that his prosecutors were honorable people. Along with my boss, United States Attorney Otto Obermaier, I met Rich and Pincus Green in the presidential suite of a grand hotel overlooking Lake Zurich to make arrangements for them to surrender in New York. That was when we discovered that Rich actually had no intention of surrendering without first negotiating a deal that promised him no prison time. He went into a long discourse about his charitable works and the merits of his case, saying, “I don’t want to spend a day in jail.” Obermaier replied, “We won’t make that promise.” He explained that we would not negotiate cases with fugitives and Rich was welcome to make all these arguments after he had appeared in federal court in Manhattan. We had no power under Swiss law to arrest him, so we left Switzerland and continued our efforts to capture Rich when he traveled.
Bill Clinton ended that fugitive hunt with a stroke of his pen. Now I was the United States Attorney investigating whether that pen stroke had been bought. I could see why that would have made Senator Clinton feel awkward about meeting me. In the end, we did not find sufficient evidence to bring any charges and closed the case. Our paths, I assumed, were unlikely to cross again.
* * *
On July 6, 2015, the Bureau received a referral from the inspector general of the intelligence community, a congressionally created independent office focused on finding risks and vulnerabilities across the nation’s vast intelligence community. The referral raised the issue of whether Secretary of State Hillary Clinton had mishandled classified information while using her personal email system. On July 10, the FBI opened a criminal investigation. The Obama administration’s Justice Department, then run by Attorney General Loretta Lynch, assigned prosecutors to support the investigation. As with hundreds of other investigations, the case was opened at the FBI far below my level, and I learned of it when the deputy director briefed me on it.
The facts of the case were straightforward: Hillary Clinton had used her personal email system, on a server and with an email address that was entirely of her own creation, to conduct her work as secretary of state. She set the server up several months after taking office. For the first few months of her tenure, she had used a personal ATT BlackBerry email address before switching to a Clintonemail.com domain. In the course of doing her work, she emailed with other State employees. In the course of emailing those people, the inspector general discovered, she and they talked about classified topics in the body of dozens of their emails.
Though much has been made since of Hillary Clinton’s emails and the FBI’s investigation, the focus of the Bureau’s investigation is often lost. The criminal investigation was not centered on the fact that Secretary Clinton decided to use nongovernmental email to do her work. In an attempt to blur the seriousness of the case, her defenders often cite the fact that one of her predecessors, Colin Powell, also used nongovernmental email, in his case AOL, as if that were relevant to the investigation. In fact, it entirely misses the point. I have never seen any indication that Powell discussed on his AOL account information that was classified at the time, but there were numerous examples of Secretary Clinton having done so.
Our investigation required us to answer two questions. The first question was whether classified documents were moved outside of classified systems or whether classified topics were discussed outside of a classified system. If so, the second question was what the subject of the investigation was thinking when she mishandled that classified information.
Information is classified based on its potential for harm to the United States if it is disclosed. Information marked at the lower classification level of “Confidential” refers to information that can cause some damage to the security of the United States if released. Information labeled “Secret” refers to material expected to cause “serious” damage to national security. “Top Secret” information is material that, if disclosed, could be expected to cause “exceptionally grave” damage to the security of the United States. This system is enforced by a variety of possible administrative punishments, including possible loss of a person’s security clearance or loss of their job. For the most serious cases, criminal prosecution is a possibility. A variety of espionage statutes make it a felony to steal or to disclose national security information to people not permitted to receive it. Those statutes are used most often when someone is a spy or gives classified information to journalists for publication. More commonly used is a statute making it a misdemeanor—punishable by up to a year in jail—to mishandle classified information by removing it from appropriate facilities or systems. Even with the misdemeanor, the Department of Justice has long required that investigators develop strong evidence to indicate government employees knew they were doing something improper in their handling of the classified information.
In Secretary Clinton’s case, the answer to the first question—was classified information mishandled?—was obviously “yes.” In all, there were thirty-six email chains that discussed topics that were classified as “Secret” at the time. Eight times in those thousands of email exchanges across four years, Clinton and her team talked about topics designated as “Top Secret,” sometimes cryptically, sometimes obviously. They didn’t send each other classified documents, but that didn’t matter. Even though the people involved in the emails all had appropriate clearances and a need to know, anyone who had ever been granted a security clearance should have known that talking about top-secret information on an unclassified system was a breach of rules governing classified materials. Although just a small slice of Clinton’s emails, those exchanges on top-secret topics were, by all appearances, improper. Put another way, there were thirty-six email chains about topics that could cause “serious” damage to national security and eight that could be expected to cause “exceptionally grave” damage to the security of the United States if released. The heart of the case, then, was the second question: What was she thinking when she did this? Was it sloppy or was there criminal intent? Could we prove that she knew she was doing something she shouldn’t be doing?
Knowing and proving what is in someone’s head is always a hard task. At the front of my mind from the start of this investigation was the recent case of former CIA Director David Petraeus, which had concluded only a few months earlier. In 2011, Petraeus had given multiple notebooks containing troves of highly sensitive, top-secret information to an author with whom he was having an affair. In contrast to those Hillary Clinton corresponded with, the author did not have the appropriate clearance or a legitimate need to know the information, which included notes of discussions with President Obama about very sensitive programs. Petraeus was the CIA director, for heaven’s sake—in charge of the nation’s secrets. He knew as well as anyone in government that what he did was wrong. He even allowed the woman to photograph key pages from classified documents. And then, as if to underscore that he knew he shouldn’t do what he did, he lied to FBI agents about what he had done. Despite all of this clear and powerful evidence, on facts far worse for him than for Secretary Clinton, and after he demonstrably lied to the FBI, the Department of Justice charged him only with a misdemeanor after he reached a plea-bargain agreement. In April 2015, he admitted guilt and agreed to a forty-thousand-dollar fine and probation for two years.
The misdemeanor charge Petraeus received for mishandling classified material was reasonable and consistent with past cases, but I argued strongly to Attorney General Holder that Petraeus also should be charged with a felony for lying to the Bureau. Replaying in my mind the Martha Stewart, Leonidas Young, and Scooter Libby cases, I argued that if we weren’t going to hold retired generals and CIA directors accountable for blatantly lying during investigations, how could we justify jailing thousands of others for doing the same thing? I believed, and still believe, that Petraeus was treated under a double standard based on class. A poor person, an unknown person—say a young black Baptist minister from Richmond—would be charged with a felony and sent to jail.
Despite the endless drumbeat in the conservative media, filled with exaggerated scandals and breathless revelations of little practical import, 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 material 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 the 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 during an interview. It would all turn on what we could prove beyond a reasonable doubt, a very different standard from that of television talk shows or Congressional sound bites.
Washington being a tribal city, prominent Republicans immediately and predictably began chanting that the Obama administration couldn’t be trusted to investigate the Democratic Party’s presidential front-runner and a former official in the Obama administration. Many Republicans, prodded by self-appointed legal and investigative experts on their favored media outlets, and often reacting to inaccurate or misleading news reporting, seemed certain the former secretary of state had committed the worst crimes since the Rosenbergs gave our nuclear secrets to the Russians in the 1950s and were executed for it. The Democrats, in turn, were dismissive of the case from the outset, claiming the examination of the emails wasn’t even an “investigation” but merely a “review” or some other tortured euphemism.
Under intense pressure from the Clinton presidential campaign, The New York Times walked back a story, published on July 23, 2015, reporting that the Justice Department was considering opening a criminal investigation into Clinton’s handling of her emails. As a result of the Clinton team’s tenacious pushback, the Times appended two separate corrections to its original article—first claiming that Mrs. Clinton herself was not the focus of any investigation and then, a day later, changing the description of the inspector general’s transmission to the FBI from “criminal referral” to “security referral.” Though the Times may have thought those clarifications were necessary, their original story was much closer to the mark. It was true that the transmission to the FBI from the inspector general did not use the word “criminal,” but by the time of the news story we had a full criminal investigation open, focused on the secretary’s conduct. We didn’t correct the Times and contradict the Clinton campaign because—consistent with our practice—we were not yet to a point where it was appropriate to confirm an investigation. Still, the bitterly fought episode, parsing word choices, was only a small taste of what was to come, and many within the FBI knew it.
* * *
“You know you are totally screwed, right?”
The FBI deputy director in the summer of 2015 was a plainspoken, smart, and darkly funny career special agent named Mark Giuliano.
I smiled tightly. “Yup,” I said. “Nobody gets out alive.”
This of course was not my first time in the middle of something guaranteed to antagonize, even outrage, some very powerful people. In a way I couldn’t have imagined then, Martha Stewart, Scooter Libby, Stellar Wind, and the Bush administration’s torture policy were all preparation for what lay ahead. Under great pressure in all those situations, we had tried to push outside voices aside, and to follow the law and the facts. Even in hindsight, I still thought we had done the right thing.
The Clinton investigation, or inquiry, or referral, or whatever people on either side of the political spectrum chose to call it, was already a major topic in the emerging presidential campaign. Giuliano’s point, which I saw clearly, was that this was a no-win scenario for the FBI. At the core of Mark’s gallows humor was a gallows. No matter what the honest outcome, the institution’s credibility—and mine—would be damaged; the only question was how much. As strange as it might sound, there is a certain freedom in being totally screwed, in knowing you will be attacked no matter what you do. Half the country will howl either way, so tune out the critics and let only the facts and the law dictate which half. At the time, of course, it never occurred to me that our decisions could outrage both halves.
To handle the case, the FBI’s Counterintelligence Division brought together a group of about twenty experts—made up of agents, analysts, and support personnel. As the division normally did, they gave the case an obscure code name: Midyear Exam. The group I regularly dealt with about Midyear ranged from the senior-most FBI executives to the supervisory agent and analyst supervising the case together day-to-day, and included lawyers from three different levels in the general counsel’s office. I frequently referred to this collection of twelve people as “the Midyear team.” I didn’t meet with the “line-level” agents, analysts, and support folks except to periodically thank them for their hard work.
Over the next eighteen months, I relied on the twelve-member Midyear team to help me make decisions on the case—though the ultimate decisions would be mine. Some members moved in and out as a few senior executives retired, but the group remained a collection of very bright people with strong personalities, who frequently clashed with one another, as siblings might. I liked that. One of the junior lawyers was given to exhaling in disgust at statements she didn’t like and then interrupting aggressively, no matter who was speaking. This annoyed many of her colleagues. I loved it. I wanted her on the team because I knew she didn’t care about rank at all. Her directness added value even when she was wrong. I wanted to hear her perspective and knew it would come without prompting, even if she interrupted a senior official to offer it. That interruption would stimulate great conversation.
Each of my advisers undoubtedly had their own political opinions and views. They were human beings, after all. They also had spouses, friends, or family members who had their own points of view as well. But I didn’t know what those views were. I never heard anyone on our team—not one—take a position that seemed driven by their personal political motivations. And more than that: I never heard an argument or observation I thought came from a political bias. Never. Instead we debated, argued, listened, reflected, agonized, played devil’s advocate, and even found opportunities to laugh as we hashed out major decisions. I ordered the team to keep me closely informed so I could make sure the investigators had all the resources they needed and all possible protection from outside pressure. And so I could make all the major decisions, which was ultimately my job.
The first decision that had to be made was whether to talk about the case publicly. As was customary, the FBI refused to confirm the existence of any investigation concerning Secretary Clinton’s email usage after we opened it that July. But by late September 2015, almost three months into the case, that “no comment” seemed increasingly silly. The investigation, after all, had started with a public referral from an inspector general. The campaigns themselves and both parties in Congress were talking about our work. Agents were out doing interviews with people connected to the case and interacting with people who could, and did, tell the press about it. Congress also wanted some on-the-record assurance that we were looking into the issues, especially because the press was clamoring.
Department of Justice and FBI policies contained established exceptions to our no-comment policy, for investigations of extraordinary public interest or where our investigative activity is apparent to the public. We had already utilized this exception a number of times in my tenure as director, confirming a criminal investigation into whether there had been unlawful targeting by the IRS of so-called Tea Party political organizations, as well as confirming a criminal civil rights investigation in Ferguson, Missouri. In each of those situations, as in many others during my career, the department made a judgment that the public needed to be assured that law-enforcement professionals were investigating those controversial cases.
As it happened, Attorney General Loretta Lynch and I had scheduled appearances with reporters at the beginning of October where it was obvious that we each would be pressed on whether the Justice Department was acting on the referral we’d received from the intelligence community inspector general. If we were going to confirm an investigation, I thought this would be a sensible time to do it. So, in late September, I scheduled a meeting with the attorney general to discuss this possibility. The senior leadership of DOJ and the FBI also attended the meeting, which was held in a conference room in the Justice Department’s Command Center.
I had known Loretta Lynch since the early 1990s, when we worked a case together as prosecutors in New York. Drug dealers we were investigating in Manhattan were plotting to kill a federal judge in Brooklyn, where she was an Assistant United States Attorney, so we joined forces on the case. She was a smart lawyer and honest person, open to hearing others’ points of view. In the Justice Command Center, I explained that I thought we had reached a point where at my regular quarterly press roundtable, set for October 1, I should confirm we had a Clinton email investigation open, which the whole world knew anyway, but then offer no further details.
Attorney General Lynch agreed that it made sense to do that. But then she quickly added, “Call it ‘a matter.’”
“Why would I do that?” I asked.
“Just call it ‘a matter,’” came her answer.
It occurred to me in the moment that this issue of semantics was strikingly similar to the fight the Clinton campaign had waged against The New York Times in July. Ever since then, the Clinton team had been employing a variety of euphemisms to avoid using the word “investigation.” The attorney general seemed to be directing me to align with that Clinton campaign strategy. Her “just do it” response to my question indicated that she had no legal or procedural justification for her request, at least not one grounded in our practices or traditions. Otherwise, I assume, she would have said so.
The FBI didn’t do “matters.” The term means nothing in our language, and it was misleading to suggest otherwise. It was probably a mistake that I didn’t challenge this harder. But in that moment, I decided that her request was too frivolous to take issue with, especially as my first battle with a new boss. I also was confident the press, and the public, would totally miss the distinction between a “matter” and an “investigation” anyway. Maybe she knew that, too. I know the FBI attendees at our meeting saw her request as overtly political when we talked about it afterward. So did at least one of Lynch’s senior leaders. George Toscas, then the number-three person in the department’s National Security Division and someone I liked, smiled at the FBI team as we filed out, saying sarcastically, “Well, you are the Federal Bureau of Matters.”
I followed the attorney general’s direction at my regular quarterly press roundtable on October 1, 2015. When a reporter asked a question about the “investigation,” I replied that I was following it closely. I said I was confident we had “the resources and the personnel assigned to the matter, as we do all our work, so that we are able to do it in a professional, prompt, and independent way.”
I did what my boss ordered me to do. I said “matter.” As expected, the press uniformly missed the distinction and reported that I had confirmed the existence of an investigation. From then on, I called it by its true name—we had an open “investigation” and I wouldn’t comment on it any further. Until I had to, many months later.
* * *
The Midyear Exam investigators worked hard all winter, digging for evidence that would help us determine what Secretary Clinton was thinking when she set up her email system and when she used it. They read every email they could find, they searched for emails in the mailboxes of others she might have written to, they tracked down the people who created her system, maintained it, and supplied her mobile devices, and they interviewed everyone who worked around her at the State Department. The supervisory investigator and analyst met with me about every two weeks to update me on their team’s work, much of which involved painstaking reconstruction of electronic records. For example, agents found a decommissioned server that had once hosted her personal email domain, but the email software had been removed by technical personnel as a routine matter when the server was replaced, which was like dropping millions of tiny email fragments into the bottom of the server. With incredible, painstaking skill, the FBI team put much of that mind-boggling jigsaw puzzle back together.
Still, by early 2016, it was starting to look like we did not have a prosecutable case. We had more work to do, and needed to interview Secretary Clinton—something the investigators, as was typical in cases like this, were saving for late in the investigation, after we had gathered all available information. But so far we had not found evidence that would form a prosecutable case. We knew that the Department of Justice would never bring—and had never brought—criminal charges in such a situation without strong evidence that the subject of our investigation knew she was doing something she shouldn’t be doing. Accidents, sloppiness, and even extreme carelessness with regard to classified information were not things that were prosecuted. Ever. For a current government employee, of course, there would be severe consequences for such carelessness, including the real possibility of losing access to classified information or getting fired, but there would be no criminal prosecution.
If the investigation continued on the same trajectory, the challenge was going to be closing the case in a way that maintained the confidence of the American people that their justice system was working in an honest, competent, and nonpolitical manner. We’d never convince extreme Clinton haters in the news media of that, of course, but hopefully we could persuade a majority of fair- and open-minded Americans.
But in early 2016, there was a development that threatened to challenge that effort significantly. A development still unknown to the American public to this day. At that time, we were alerted to some materials that had come into the possession of the United States government. They came from a classified source—the source and content of that material remains classified as I write this. Had it become public, the unverified material would undoubtedly have been used by political opponents to cast serious doubt on the attorney general’s independence in connection with the Clinton investigation.
I, for one, didn’t see any instance when Attorney General Lynch interfered with the conduct of the investigation. In fact, I had not spoken to her about the case at all since our “call it a matter” conversation in late September. Though I had been concerned about her direction to me at that point, I saw no indication afterward that she had any contact with the investigators or prosecutors on the case. But it bothered me that there was classified information that would someday become public—likely decades from now—and be used to attack the integrity of the investigation and, more important, call into question the independence of the FBI.
Contributing to this problem, regrettably, was President Obama. He had jeopardized the Department of Justice’s credibility in the investigation by saying in a 60 Minutes interview on October 11, 2015, that Clinton’s email use was “a mistake” that had not endangered national security. Then on Fox News on April 10, 2016, he said that Clinton may have been careless but did not do anything to intentionally harm national security, suggesting that the case involved overclassification of material in the government. President Obama is a very smart man who understands the law very well. To this day, I don’t know why he spoke about the case publicly and seemed to absolve her before a final determination was made. If the president had already decided the matter, an outside observer could reasonably wonder, how on earth could his Department of Justice do anything other than follow his lead? The truth was that the president—as far as I knew, anyway—had only as much information as anyone following it in the media. He had not been briefed on our work at all. And if he was following the media, he knew nothing, because there had been no leaks at all up until that point. But his comments still set all of us up for corrosive attacks if the case were completed with no charges brought.
In early spring, as I began to see the end of the investigation coming with insufficient evidence to support a prosecution, I urged the deputy attorney general—my immediate boss—to give thought to what the endgame might look like if the case were to be closed without charges. Sally Yates was a career prosecutor whom I had known casually for years. She and one of my close friends had been federal prosecutors together in Atlanta, where she earned a reputation as tough, thoughtful, and independent. Everything I saw as FBI director was consistent with that reputation. Because this was not a normal case, and 2016 was not a normal year, I suggested to Yates that unusual transparency might be necessary to reassure the American people and to protect the institutions of justice. I said I hoped she would put people to work researching what was possible under the law. I never heard back.
Any investigator or prosecutor who doesn’t have a sense, after nearly a year of investigation, where their case is likely headed, is incompetent. Prosecutors routinely begin drafting indictments before an investigation is finished if it looks likely to end up there, and competent ones also begin thinking about how to end investigations that seem likely to end without charges. In neither case are minds closed to a different outcome if subsequent evidence dictates, but competent people think ahead.
One weekend in early May, I typed a draft statement laying out the findings of this case with the most aggressive transparency possible assuming the investigation ended in the current position. Unless we suddenly found a smoking-gun email or directive clearly pointing to Clinton’s intent, or unless she lied to us in an FBI interview, both of which were possibilities, this was the way I expected the case to end. In such a poisonous political environment, I knew we needed to think far in advance how best to present our decision. Many changes were made to those early drafts. I tried out different ways to most accurately describe the nature of Secretary Clinton’s conduct. Her actions in regard to her emails seemed really sloppy to us, more than ordinary carelessness. At one point the draft used the term “grossly negligent,” and also explained that in this case those words should not be interpreted the way a hundred-year-old criminal statute used the term. One part of that 1917 law made it a felony if a person “through gross negligence permits [classified material] 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.”
The history of that provision strongly indicated that Congress in 1917 meant the statute to apply only to conduct that was very close to willful—that is, driven by bad intent—and members of Congress who voted for it back then were very concerned that they not make merely careless behavior a felony. I was told that the Department of Justice had only charged one person under this statute since 1917—a corrupt FBI agent whose conduct was far worse than gross negligence—and no one had ever been convicted under it. This context strongly reinforced my sense that the statute simply did not apply in the Clinton email case and made use of the term “grossly negligent” inappropriate and potentially confusing, given the old statute. So I directed our team to consider other terms that more accurately captured her behavior. After looking at multiple drafts, I settled on “extremely careless” as the best way to describe the conduct.
I gave my draft statement to senior FBI personnel and asked them to think about three things: the accuracy of the facts laid out in the draft; any policy or other limitations around making such a statement; and the wisdom and mechanics of presenting it to the American people. This was the farthest I could imagine us going. I have made no final decision, I said, but let’s use this draft to start our discussions. What is possible under the law? What makes sense? If we were going to provide some kind of public statement, how would we do it? Standing with the attorney general? In some kind of written report to Congress? Alone? Let’s talk about it.
The FBI leadership team chewed on it, marked it up, debated it, and slept on it. I wanted as much feedback as possible, with one big exception: to protect the FBI’s independence if necessary down the line, I didn’t want the Department of Justice to know what we were doing. The most aggressive step to demonstrate the independence of our investigation would be for the FBI to announce something without involving the Justice Department at all. I didn’t know whether that made sense—and at times the idea struck me as crazy—but this would no longer be even a theoretical option if we told anyone at Justice about our deliberations. They might well direct me not even to consider such a thing, and I would be bound to follow that order, as I had when ordered to call it “a matter.” So we kept it inside the FBI and continued debating it as the investigation moved toward the final step—interviewing Hillary Clinton.
But at that point the investigation got bogged down. A big issue in the case, and in the public debate over the case, was Secretary Clinton’s process for deciding which of her emails to return to the State Department after State requested she turn over work-related emails. By her account, there were about sixty thousand total emails on her personal server as of late 2014, when State asked for the work emails. The secretary’s personal lawyers reviewed those emails, producing about half of them and deleting the rest. I, and the entire FBI Midyear team, believed our investigation would not be credible if we did not dive into that culling process. We weren’t just going to take their word for it. We needed to know firsthand how the lawyers made those decisions and we wanted to see the devices they used so our experts could look for traces of the deleted emails.
For understandable reasons, this made the Justice Department lawyers very nervous. The laptops that the Clinton lawyers used to review Secretary Clinton’s emails also contained their work for other clients. Our examination of those laptops could potentially violate the attorney-client privilege and attorney work-product protections, not just for their client Hillary Clinton but for other, unrelated clients as well. The attorney representing Clinton’s lawyers, Beth Wilkinson, was talking tough to the Justice Department: there was no way she and those lawyers were going to talk about work for a client, and no way they were going to produce their laptops so the FBI could look at them. That was something that Wilkinson intimated she would fight until the bitter end. FBI General Counsel Jim Baker knew Wilkinson, so I asked him to speak to her and emphasize our determination to get those laptops. He did so, and she promptly told the Department of Justice lawyers the FBI was going around them. A chill descended on the relationship between the FBI and the department attorneys.
We were at an impasse. The FBI could not, with a straight face, tell the American people we had done a competent investigation if we didn’t move heaven and earth to understand that email review and deletion process. It didn’t matter to us that it involved her lawyers. I would not agree to complete the investigation without seeing those laptops and interviewing those lawyers. Period. If Secretary Clinton wanted to still be under criminal investigation for the next two years, fine. Despite the force of that argument, by mid-May, we still had not gotten access to the laptops. We faced the real prospect of the investigation going on into the summer and after the political conventions, when the presidential candidates would be nominated.
In May, I went to Sally Yates and told her this was dragging on too long. We were now weeks from the conventions and I was close to the point where I was going to recommend the appointment of a special prosecutor. My predecessors had done that from time to time, most prominently when Director Louis Freeh recommended in writing that the attorney general appoint one to investigate then–President Bill Clinton’s fund-raising activities. I said that soon it would be too late for this Department of Justice to complete the investigation without grievous damage to public faith in our work. It would require a prosecutor outside the control of the political leadership of the department. I didn’t know the date I would recommend such a thing, I said, but we were getting close, unless we got those laptops.
Yates understood. I don’t know what she did, but almost immediately the Midyear team could feel an injection of energy and backbone into the junior lawyers at the Justice Department. Suddenly they were hell-bent on getting those laptops. Within a week or two, the lawyers had negotiated a deal that got us what we needed—the physical laptop devices and interviews of the lawyers who used them to sort Clinton’s emails. I don’t know how they convinced the private lawyers to make the deal, because the FBI was not involved in the negotiations. We got the access we wanted and found nothing that changed our view of the case, but I was now satisfied that we had done what a credible investigation required.
While all this wrestling over the lawyer laptops was going on, I spent June still struggling with what I thought was the endgame. How do we close the Clinton email case—six weeks before the Democratic Convention—in a way that maximizes public confidence that the institutions of justice have acted justly? Two things happened that brought me back to the crazy idea of personally offering the American people unusual transparency, and doing it without the leadership of the Justice Department.
First, in mid-June, the Russian government began dumping emails stolen from institutions associated with the Democratic Party. It began with entities calling themselves DCLeaks and Guccifer 2.0. They were stolen emails intended to harm Clinton and the Democrats. This made very real the prospect that the classified material relating to Loretta Lynch might drop at any moment, not decades from now. As noted earlier, the release of that material, the truth of which we had not verified, would allow partisans to argue, powerfully, that the Clinton campaign, through Lynch, had been controlling the FBI’s investigation.
Then, on Monday, June 27, on a hot Phoenix airport tarmac, Bill Clinton and Attorney General Lynch met privately aboard an FBI Gulfstream 5 jet for about twenty minutes. When I first heard about this impromptu meeting, I didn’t pay much attention to it. I didn’t have any idea what they talked about. But to my eye, the notion that this conversation would impact the investigation was ridiculous. If Bill Clinton were going to try to influence the attorney general, he wouldn’t do it by walking across a busy tarmac, in broad daylight, and up a flight of stairs past a group of FBI special agents. Besides, Lynch wasn’t running the investigation anyway. But none of these basic realities had any impact on the cable news punditry. As the firestorm grew in the media, I paid more attention, watching it become another corrosive talking point about how the Obama Justice Department couldn’t be trusted to complete the Clinton email investigation.
In the middle of that firestorm, the attorney general rejected calls that she recuse herself from the Hillary Clinton investigation altogether. Instead, on Friday, July 1, she chose a very strange position—that she would not remove herself, but she would accept my recommendation about the case and that of the career prosecutors at Justice. In effect, she was removing herself but not removing herself. Again, very strange.
Given the attorney general’s tortured half-out, half-in approach, I again considered calling for the appointment of a special prosecutor. The appointment of a special prosecutor—someone outside the normal chain of command and with powers to ensure independence—was, as noted, a rare step. But I decided it would be brutally unfair to do that. This was not a political decision, but an ethical one, driven by our values. Any subject of an investigation is end to be treated fairly. A world-class FBI team had investigated Hillary Clinton for a year, and all of them—to a person—believed there was no prosecutable case. Calling for a special prosecutor now would wrongly imply there was something to the case, which would then drag on for many months, if not longer. And it would give a false impression to the American people; in other words, it would be a lie.
For years, I have spoken of the reservoir of trust and credibility that makes possible all the good we do at the FBI and the Department of Justice. When we stand up, whether in a courtroom or at a cookout, and identify ourselves as part of those institutions, total strangers believe what we say, because of that reservoir. Without it, we are just another partisan player in a polarized world. When we tell a judge or a jury or Congress what we saw, or found, or heard, they are not hearing it from a Republican or a Democrat. They are hearing it from an entity that is separate and apart in American life. The FBI must be an “other” in this country or we are lost. I have always used the reservoir metaphor because it captures both the immensity of it and how quickly it can be drained away by a hole in the dam. How could I protect the reservoir standing behind an attorney general who appeared politically compromised? The FBI was independent and apolitical, and the American people needed to see that.
To protect that reservoir, I made a decision. I needed to visibly step away from Loretta Lynch and do something I never could have imagined before 2016: have the FBI separately offer its views to the American people as soon as possible, by making public my recommendation and the thinking behind it. I knew this was going to suck for me. From the Democratic side would come predictable stuff about my wanting the spotlight, being out of control, driven by ego. From the Republican side would come more allegations of Justice Department incompetence or corruption. And it could forever sour my relationship with the leadership of the Justice Department. But I believed—and still believe, even in hindsight—it was the best thing for the FBI and for the Department of Justice.
The American people needed and deserved transparency, and I believed that I had the independent reputation to step out front and take the hits to protect the reservoir.
As things stood, I was going to step to a podium on Tuesday morning, July 5, in FBI headquarters and end this case. Unless, of course, Hillary Clinton lied to us when we finally conducted our interview with her, on July 2, 2016.
* * *
Many pundits have questioned why the FBI waited so long to interrogate Secretary Clinton when she was the subject of the inquiry. That is exactly the reason. Experienced investigators always avoid conducting interviews with subjects who know more about the facts than they do. That knowledge imbalance favors the subject, not the investigator. Especially in white-collar crime cases, investigators prefer to master all of the facts before questioning the subject, so that interrogators can ask smart questions and so the subject can be confronted, as necessary, with documents or statements made by other witnesses. That is what the FBI did in every standard investigation; and that is what the Midyear team did with Hillary Clinton. The agents and analysts of the FBI spent a year learning all they could about how Secretary Clinton set up and used her personal email system. Now we were ready to see if, under extensive questioning, she would lie to us about any of it and whether we could prove she had lied. In white-collar criminal cases, we often find that a subject will lie to cover up bad behavior, offering us a way to prosecute even where we can’t make a case on the substantive charges that started the case. It is unlikely that a sophisticated, well-represented person will lie in a way we can prove, but Stewart and Libby show it can happen. The Clinton interview, while coming at the end of our investigation, was extremely important.
The Department of Justice prosecutors and Secretary Clinton’s lawyers set the Saturday morning of the Independence Day three-day weekend for her interview, which would take place at FBI headquarters in Washington.
There has been so much misinformation spread about the nature of this interview that the actual events that took place merit discussion. After being discreetly delivered by the Secret Service to the FBI’s basement garage, Hillary Clinton was interviewed by a five-member joint FBI and Department of Justice team. She was accompanied by five members of her legal team. None of Clinton’s lawyers who were there remained investigative subjects in the case at that point. The interview, which went on for more than three hours, was conducted in a secure conference room deep inside FBI headquarters and led by the two senior special agents on the case. With the exception of the secret entry to the FBI building, they treated her like any other interview subject. I was not there, which only surprises those who don’t know the FBI and its work. The director does not attend these kinds of interviews. My job was to make final decisions on the case, not to conduct the investigation. We had professional investigators, schooled on all of the intricacies of the case, assigned to do that. We also as a matter of procedure don’t tape interviews of people not under arrest. We instead have professionals who take detailed notes. Secretary Clinton was not placed under oath during the interview, but this too was standard procedure. The FBI doesn’t administer oaths during voluntary interviews. Regardless, under federal law, it would still have been a felony if Clinton was found to have lied to the FBI during her interview, whether she was under oath or not. In short, despite a whole lot of noise in the media and Congress after the fact, the agents interviewed Hillary Clinton following the FBI’s standard operating procedures.
I spent a long time on the phone with the Midyear team leaders that afternoon hearing their report of what Secretary Clinton had said. None of it surprised the professionals who had spent hundreds if not thousands of hours over the past year circling the former secretary, reading thousands of her emails and interviewing all those around her. By Clinton’s account, she was unsophisticated both about technology and security, used the personal account for convenience to avoid maintaining dual government and personal email accounts, and still didn’t consider the contents of the emails to be classified. Her lack of technological sophistication is evident in her memoir, What Happened, in which she seems to intimate that her private server in Chappaqua was protected from hacking because it was contained in a home guarded by the Secret Service. Hacking a server is done through the internet, not by breaking the glass in a basement window. She also said in her interview that she believed she and her staff had successfully “talked around” sensitive topics, a method of operating made necessary by the State Department’s poor communications infrastructure, which didn’t provide secure and reliable email and phone for her and her senior staff. There was some truth to this, but although frustrating to her team, it didn’t change the rules around classified information. Also in her interview, Clinton said she delegated the review and deletion of her emails to others, believed they were only deleting purely personal emails, and had no knowledge of any efforts to obstruct justice.
After discussion and careful review of her answers, there was nothing in her comments that we could prove was a lie beyond a reasonable doubt. There was no moment when investigators caught her in a lie. She did not at any point confess wrongdoing or indicate that she knew what she had done with her emails was wrong. Whether we believed her or not, we had no significant proof otherwise. And there was no additional work the investigators thought they should do. This case was done. Now the American people needed to know what the FBI had found.
I spent Sunday and Monday with the team, working on the announcement. We decided to do it live and in person so that people heard it all at once, and we worked hard to maintain the professional, nonpartisan tone we intended. We would keep it short and take no questions, but try to offer as much detail and transparency as possible. We believed that the details of what we did and what we found were essential to the credibility of the investigation and the announcement. Every word of the statement was reviewed by the FBI legal team to ensure it was consistent with the law and Department of Justice policy.
I was nervous on the morning of July 5, for a bunch of reasons. It felt like I was about to damage my career. That’s okay, I told myself; you are fifty-five years old, you have money in the bank and a ten-year term, and you don’t want to be anything else; you aren’t trying to climb anyplace. I was also nervous because I liked both the attorney general and the deputy attorney general and I was about to piss them off by not coordinating with them on a public statement about a high-profile case because any coordination could be perceived as political influence. Although I felt duty bound to call them before my announcement to tell them I was doing it, I was also not going to tell them what I was about to say. Awkward.
When I called Sally Yates, I told her I was about to make an announcement on the Clinton case and that I was not coordinating my statement with the Justice Department. When I gave her this news, she asked no questions. Although I have never spoken to her about it, I think Yates understood what I was doing and why, and appreciated it. Attorney General Lynch’s response was a little different. She asked only, “What will you be recommending?”
“I’m sorry, but I’m not going to answer that,” I replied. “It’s very important that I not have coordinated this in any way with the department. I hope someday you will understand why.” She said nothing.
I hung up and walked out of my office. I stopped on the way to authorize the release of an email to the entire FBI. I wanted them to hear from me first:
To all:
As I send this, I am about to walk downstairs to deliver a statement to the media about our investigation of Secretary Clinton’s use of a personal email server during her time as Secretary of State. I have attached a copy of the statement I intend to give. You will notice immediately that I am going to provide more detail about our process than we normally would in connection with an investigation, including our recommendation to Justice that no charges be brought. I am doing that because I think the confidence of the American people in the FBI is a precious thing, and I want them to understand that we did this investigation in a competent, honest, and independent way. Folks outside the FBI may disagree about the result, but I don’t want there to be any doubt that this was done in an apolitical and professional way and that our conclusion is honestly held, carefully considered, and ours alone. I have not coordinated or reviewed my statement with anyone except a small group of FBI officials who worked on the investigation. Nobody elsewhere in government has any idea what I am about to say, and that’s the way it should be.
There is a lot of the pronoun “I” above, but this investigation and the conclusion are the product of a large and talented FBI team, made up of agents, analysts, technical experts, lawyers, and others. I have stayed close to it simply to ensure that the team had the resources they needed and that nobody interfered with them. Nobody did. I am proud to represent their work, and the entire FBI. We have done it the way the American people expect and deserve.
I was intentionally wearing a gold tie so I wasn’t displaying either of the normal political gang colors, red or blue. I thought about trying to memorize the statement, but we kept making little word changes up to the end, making that impossible. My crack public affairs team figured out how to project the text on the back wall of the room so I could track it as I spoke.
I’ve taken some abuse, including from my beloved family, for “Seacresting it,” by which they mean imitating the dramatic tease—“but first, this commercial”—of TV host Ryan Seacrest. I didn’t intend to, but I can see what they meant. My thinking was that if I started with the conclusion that we were recommending no charges, nobody would listen to the rest of what I said. And the rest of what I said was critical to the American people having confidence that the FBI had been competent, honest, and independent.
As I expected, people on both sides of the partisan divide in Washington were very angry. Republicans were furious that I had failed to recommend prosecution in a case that “obviously” warranted it. This, as I’ve noted, was absurd. No fair-minded person with any experience in the counterespionage world (where “spills” of classified information are investigated and prosecuted) could think this was a case the career prosecutors at the Department of Justice might pursue. There was literally zero chance of that. Democrats were furious because I had “defamed” Hillary Clinton by describing and criticizing her conduct in detail and yet recommending no charges.
There was shouting from both sides about my “violation” of Department of Justice policies. But in appropriate cases, where the public interest requires it, the Department of Justice has long revealed details about the conduct of uncharged people. The department had done so in the spring of 2015 after the FBI’s investigation of the killing of Michael Brown in Ferguson, Missouri—including releasing an eighty-page memo detailing the entire investigation. They did it again in October 2015, in the case against IRS supervisor Lois Lerner, when the department laid out evidence gathered during a criminal investigation into whether the IRS had targeted and harassed Tea Party groups. The department said Lerner had used “poor judgment,” but that “ineffective management is not a crime.… What occurred is disquieting and may necessitate corrective action—but it does not warrant criminal prosecution.” Like those recent examples, this was a case where public interest and public confidence required that we explain what we had learned about Secretary Clinton’s conduct. The result would have been far less credible and transparent without those details, causing damage to our Justice institutions’ reservoir of trust with the American people. What made this unusual was that the FBI director—to protect both institutions—was stepping out front to make the announcement separate from the Department of Justice leadership. That decision was made knowing it put me and my professional reputation directly in the line of fire from all sides of the political spectrum.
Hindsight is always helpful, and if I had it to do over again, I would do some things differently. I would avoid the “Seacresting” mistake by saying at the beginning of my statement that we weren’t recommending charges. At the time, I thought there was a risk people wouldn’t listen carefully after the headline, but looking back, the risk of confusion from me delaying the conclusion was greater. More important, I would have tried to find a better way to describe Secretary Clinton’s conduct than “extremely careless.” Republicans jumped on the old statute making it a felony to handle classified information in a “grossly negligent” way—a statute that Justice would never use in this case. But my use of “extremely careless” naturally sounded to many ears like the statutory language—“grossly negligent”—even though thoughtful lawyers could see why it wasn’t the same. I spent hours responding to congressional questions about it, and it became a talking point for those interested in attacking the FBI and the Department of Justice. Other than those two things, and in spite of the political shots directed at me since—and my supposedly being fired because of it—I would do the same thing again at that announcement, because I still believe it was the best available alternative to protect and preserve the Department of Justice’s and the FBI’s reservoir of trust with the American people.
After a September congressional hearing, despite all of the criticism, at least I could say the Bureau was rid of this awful case. We had offered transparency, tried to show the American people competence, honesty, and independence, and now the presidential campaign could run its course. Months later, during our January 27, 2017, dinner, President Trump told me that I had “saved her” with my July press conference. That was not my intention, just as I did not intend to “save him” with what came later. The goal was to tell the truth and demonstrate what higher loyalty—to the institutions of justice—looks like.
So my deputy director was right; we really were screwed, and it was as painful as anticipated. We had tasted the poison of our political system, and I had taken all the hits I anticipated, but I also felt great relief because the FBI and I were finished with Hillary Clinton and her emails.
If only.
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