During James Comey’s tenure as FBI Director, FBI officials privately admitted on two separate occasions that they believed Hillary Clinton committed crimes related to mishandling classified information. But after each private admission of guilt, Comey publicly declared that Hillary was innocent.
First Admission of Guilt: Original Draft of the Comey’s Memo, Dated May 2, 2016
Senator Chuck Grassley recently released a draft of then-FBI Director James Comey’s May 2, 2016, memo regarding the Clinton email investigation. In that memo, Comey stated that Hillary was “grossly negligent” in the mishandling of classified information, which is a crime.
Under 18 U.S.C. § 793(f), a person who “through gross negligence permits [classified information] 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” is guilty of a felony that carries up to ten years in prison.
Memo Written Months Before Investigation Completed: Comey’s May 2, 2016, “gross negligence” memo was written exactly two months before Hillary Clinton was interviewed by FBI agents on July 2, 2016, as well as before the interviews of several other key witnesses in the case. By July 5, 2016, Comey had changed the language to “extremely careless,” which raises the issue of whether something came into evidence that changed his opinion.
The subsequent interviews would have done nothing to dispell the notion that Hillary was at least “grossly negligent.” At all times, her servers and devices were provided by and accessible to people without security clearances, first inside her home and later at a remote site maintained by Platte River Networks. None of the devices she used were approved for use by the State Department. Complicating matters further, after she left her job as Secretary of State, she used small companies that were not well-known experts in cybersecurity, who likely didn’t even know they possessed classified information, to maintain her entire archive of classified documents. During her interview with the FBI, Hillary professed ignorance of almost every detail related to her private email system, which made her sound even more negligent.
Hillary Knew What She Did Was A Crime: At the very beginning of her term as Secretary of State, on January 22, 2009, Hillary Clinton signed an acknowledgment indicating that she was trained in procedures for handling classified information and specifically understood that negligent handling of classified information was a crime:
Not returning State Department documents was theft of government property: The debriefing portion of the same acknowledgment was not completed when Hillary Clinton left her position as Secretary of State in 2013. At that time, she was required to surrender all classified information and other government property in her possession; however, she failed to surrender any of her work-related emails before transferring all of her emails to a different server, run by Platte River Networks, later that year. These materials were government property, not hers to keep, so the failure to return them for two more years, while not even working in government anymore, arguably constituted theft.
This crime could have been charged separately from the “grossly negligent” mishandling of the classified information, but “prosecutorial judgment” prevented that outcome.
On May 5, 2016, Washington Post “anonymous sources” indicated little evidence supported the theory that Hillary was guilty: According to unnamed “U.S. officials familiar with the matter,” there was “scant evidence” that Hillary intended (which is not the legal standard) to “break classification rules,” per an article in the Washington Post. The article mentions US Attorney Dana Boente, of the Eastern District of Virginia, who was the lead prosecutor in the case. He was recently forced to resign.
On May 9, 2016, then-AG Lynch repeatedly called the investigation a “matter”: In a May 9, 2016, press conference on transgender rights, Lynch took questions on the Clinton email case, repeatedly calling it a “matter”:
Two days later, on May 14, 2016, a reporter asked Comey if he was performing a “security inquiry,” as described by Hillary Clinton’s campaign, a term he was not “familiar with”: From the FBI “Pen and Pad” meeting between Comey and reporters:
Catherine: On the e-mails director Comey, are you doing a security inquiry?
Director Comey: I’m sorry?
Catherine: On the e-mails are you doing a security inquiry?
Director Comey: I don’t know what that means?
Catherine: So it’s a criminal investigation?
Director Comey: We’re conducting an investigation. That’s the bureau’s business. That’s what we do. That’s probably all I can say about it.
Catherine: The reason I ask is because Mrs. Clinton consistently refers to it as a security inquiry, but the FBI does criminal investigations. I just want to see if you can clear that up.
Director Comey: Right, it’s in our name.
Director Comey: I’m not familiar with the term security inquiry.
At the same meeting, Comey described “pressure” to finish the Clinton emails case: Comey stated he did not “tether to any external deadline,” but felt “pressure” to finish the case:
In any investigation, especially one of intense public interest, and I felt this about San Bernardino. We want to do it well and we want to do it promptly. I feel pressured to do both of those things. What I said at some places, I don’t tether to any particular external deadline. Look, I understand the interest in this particular investigation. I do feel the pressure to do it well and promptly. As between the two, we will always choose well.
Two days later, on May 16, 2016, Comey met with Obama and Lynch at the White House: Discovered recently by consummate researcher Katica, there were three separate entries for James Comey (all with slight variations) visiting the White House on May 16, 2016, one of which was for a law enforcement Medal of Honor event, which Loretta Lynch also attended, and two that had smaller group sizes.
Later the same day, Comey’s assistant circulated a draft of a memo for comments: It is uncertain whether that memo has the “extremely careless” language because the FBI is still withholding this information:
On June 29, 2016, Loretta Lynch was caught meeting privately with Bill Clinton on the airport tarmac in Phoenix: Local reporters for ABC15 in Phoenix discovered the meeting, which was widely viewed as improper and potentially unethical.
One day later, on July 1, 2016, then-AG Lynch indicated she would “accept” Comey’s recommendation, which illegally delegated the charging decision to Comey:
It’s worth noting that Comey was not the prosecutor in the Clinton emails case–he was the chief law enforcement officer. The person solely responsible for prosecuting Hillary Clinton’s crimes was then-Attorney General Loretta Lynch, who did not recuse herself after the June 29, 2016, tarmac meeting with Bill Clinton. Lynch instead chose to “accept” whatever charging decision was made by then-FBI Dir. Comey–someone who didn’t even work in her agency, and who she could have overruled.
On July 5, 2016, Comey used the term “extremely careless” and repeatedly used the word “matter” to describe the investigation while exonerating Hillary:
Similar cases were prosecuted during the same period: Despite Comey’s repeated claims that “no reasonable prosecutor” would bring a similar case, there was a similar case pending during the same time period.
On October 5, 2016, the FBI arrested Harold Martin, a mentally-unstable NSA contractor who transported classified information away from secured facilities and devices, then hoarded the documents inside an unlocked shed in his backyard. He was charged with (1) theft of government property and (2) unauthorized removal or retention of classified documents by a government employee or contractor. Notably, this arrest was made shortly after Comey closed the Clinton case on July 5, 2016, yet before he reopened the case to search Anthony Weiner’s laptop on October 30, 2016, then reclosed it again.
An unstable man who took NSA documents home from work and stored them in a shed is not much different than a Secretary of State who also took classified documents home from work, stored them on an unsecured email system, and then kept them for two years after leaving her job altogether.
Further, Martin was presumably far less of an espionage risk than a public figure like Hillary Clinton, whose server was attacked by hackers multiple times. Martin also does not appear to have intentionally destroyed or attempted to disguise evidence, unlike several people involved in the Clinton email case.
Given the “grossly negligent” conduct and the existence of similar cases being prosecuted as theft at the same time as the Clinton email case, it’s nearly impossible to understand how “no reasonable prosecutor” would bring charges against Hillary.
Second Admission of Guilt: the FBI Search Warrant Application for Weiner’s Laptop
After changing the memo language from “grossly negligent” to “extremely careless,” and declaring to the world, on July 5, 2016, that Hillary did not commit any crimes, the FBI inadvertently discovered that Anthony Weiner’s laptop–which was seized in an investigation for pedophilia-related crimes–also contained Hillary’s emails.
On September 21, 2016, the Anthony Weiner sexting scandal broke. Weiner was accused of sending explicit photos and messages to a 15-year-old girl, as well as involving her in his rape fantasies.
On September 22, 2016, multiple law enforcement agencies began investigations, but it’s unclear who was first to get the Weiner laptop. That day, NYPD Special Victims Unit began an investigation into latest Weiner allegations. CNN reported that US Attorney Preet Bharara issued a subpoena for Weiner’s phone and other devices (an odd move, in lieu of a search warrant, given the possibility that evidence would be destroyed). It is unclear which agencies saw the devices and in which order, although there were some reports that the NYPD had seized and reviewed the laptop through a search warrant prior to the time it was obtained by the FBI.
On October 3, 2016, the New York Times reported the FBI seized Anthony Weiner’s laptop. The seizure allegedly took place at his residence. The FBI possessed the laptop for 24 days before notifying Congress of Hillary’s emails contained on the device.
On October 28, 2016, Comey sent a letter to members of Congress. Comey wrote that emails “pertinent” to the Clinton email investigation were found the day before and would be reviewed. The New York Times also indicated that then-AG Lynch told Comey not to publicly reveal the reopened investigation.
On October 30, 2016, just days before the presidential election, the FBI submitted a sealed search warrant application for review by a federal judge: The warrant was granted the same day, based on the FBI having probable cause to believe that Anthony Weiner’s laptop could include evidence of a crime or unlawful possession of documents.
The warrant application was based on Hillary Clinton’s emails being found on Anthony Weiner’s laptop: During the pedophilia investigation, FBI agents noticed that the email headers contained in the laptop’s file system appeared to match those sent or received in relation to Hillary Clinton’s work as Secretary of State:
Agents believed probable cause existed based on Hillary’s prior conduct, for which she was “cleared” in July. Without a warrant, the FBI agents could not read the emails because they were unrelated to the sex crimes being investigated. Reading them would require probable cause to believe a different crime was committed or Anthony Weiner’s consent.
Probable cause to obtain a search warrant exists when a law enforcement officer has a reasonable basis to believe that a crime was committed and that the search would discover evidence related to that crime. Specifically, the agency alleged that one of the crimes committed was a violation of 18 U.S.C. § 793(f), which as described above, prohibits “grossly negligent” handling of classified information. This was the same crime that Hillary was cleared for in July:
After the warrant application and affidavit were released (after the election), Clinton attorney David Kendall agreed that the warrant application was based entirely on conduct from the investigation “closed” in July. From Politico:
“Today’s release of the FBI affidavit highlights the extraordinary impropriety of [FBI] Director [James] Comey’s October 28 letter, publicized two days before the affidavit, which produced devastating but predictable damage politically and which was both legally unauthorized and factually unnecessary,” longtime Clinton lawyer David Kendall said in a statement. “The affidavit concedes that the FBI had no basis to conclude whether these e-mails were even pertinent to that closed investigation, were significant, or whether they had, in fact, already been reviewed prior to the closing of the investigation.”
“What does become unassailably clear, however, is that as the sole basis for this warrant, the FBI put forward the same evidence the Bureau concluded in July was not sufficient to bring a case — the affidavit offered no additional evidence to support any different conclusion,” Kendall said.
In the warrant application, the FBI provided the standards for handling classified information, which Hillary clearly violated: Among information about how Hillary had repeatedly possessed and distributed classified information illegally, the FBI included the legal standard for handling classified information in the warrant application. Hillary Clinton appears to have violated these practices in every aspect by sharing access to classified information with numerous people who lack security clearances and by using an entirely unauthorized system to communicate:
On November 6, 2016, Comey cleared Hillary of criminal wrongdoing. Despite filing documents a week earlier showing the FBI believed Hillary had committed a crime, Comey again cleared Hillary on November 6, 2016, after supposedly reviewing thousands of emails sent to or from Hillary contained on suspected pedophile Anthony Weiner’s laptop. Nothing could be more negligent than allowing classified information to be contained on devices owned and used by a pedophile!
Notably, probable cause is also the standard used in charging a crime. It is basically impossible for Comey’s FBI to rely on Hillary’s past criminal conduct to obtain a search warrant and also maintain the belief that “no reasonable prosecutor” would bring charges based on the same conduct. It’s also impossible to believe that a suspected pedophile possessing classified documents wouldn’t be the grossest form of negligence possible, far worse than a quirky NSA contractor storing documents in a shed.
Taken together, the memo and search warrant application demonstrate that the FBI believed Hillary was guilty two different times, and then cleared her after each statement. Neither the memo nor the search warrant application was available before the election, so the details of each were buried from public view.
Comey and Lynch have a lot of explaining to do.