PLAYING TO LOSE: How the FBI Let Hillary Off the Hook

From TV shows like The First 48 to the FBI’s own field manual, quick action in criminal cases is widely known to be critically important to preserve evidence. But in the Clinton email case, the FBI obtained evidence in some of the slowest and most irrational ways possible. Much of the evidence that was available when the investigation began was destroyed before the FBI ever even tried to seize the information.

But it gets worse, the FBI and Department of Justice were notified in multiple ways, over multiple months, about how Hillary had classified information on private electronic devices, yet did nothing to seize the evidence and protect the information–rising to the level of a conspiracy to avoid fulfilling their constitutional duty to uphold the law. What were our federal law enforcement agencies doing instead? Stalling as long as humanly possible (at least six months), as well as notifying the targets they were coming to seize evidence.

No government agency deserves the presumption of innocence: Let’s start with the presumption that some people leading the intelligence agencies are not above major misconduct in a case and deserve no presumption of integrity. For example, it doesn’t get much worse than the FBI sending an “anonymous” letter to Dr. Martin Luther King, Jr., demanding that he either commit suicide or have information about his sexual activities publicly revealed–but that’s something the FBI leadership ordered:

The 1964 suicide extortion letter from the FBI to Dr. Martin Luther King, Jr., which was initially released in redacted form, then in full 50 years later. The FBI referred to Dr. King as an “abnormal animal” in the original version of the document, as well as questioned his belief in God. Comparing the two documents, the redactions seem calculated to allow the FBI to save face, not to protect any otherwise classified information, much like the Clinton-Lynch tarmac meeting documents in the present day–which the FBI also tried to hide before they were discovered.

Newly released documents indicate the Clinton email case was given “special” status by Assistant Dir. Andrew McCabe, which limited the investigation to a “small team” at FBI headquarters. Accordingly, we can assume that the top brass at the FBI and DOJ were completely running the show. But were today’s leaders trying to hijack our democracy, much like their 1960’s counterparts? Quite possibly.

Compared to the ridiculousness of Comey’s accusation that Trump obstructed justice in the Flynn case, Comey’s own misconduct in the Clinton email case looks like obstruction on steroids. Accusing Trump of obstruction and deflecting the focus to Russia are nothing more than desperate maneuvers to stop Trump from finding out about the depth of Obama administration corruption.

Panic at the “Tapes” Hearing: You don’t need to be a poker player to tell that Comey’s facial expressions and demeanor look much different when he’s in trouble. After watching him testify many times, the “Lordy, I hope there are tapes” hearing, held shortly after he was fired from his position as FBI Director in May 2017, was the most disheveled and uncomfortable I’ve ever seen him. This hearing was supposed to be the big takedown of Trump over “obstruction” in the Flynn investigation, but instead Comey looked and sounded like the defendant:

Strategically speaking, Trump tweeting publicly about taping his conversations with Comey was brilliant. Comey couldn’t be sure he wasn’t recorded, so he was forced into choosing to be as honest as an audio tape would reflect or take a huge risk by lying and facing potential perjury charges.

In the end, Comey’s testimony about Trump’s “obstruction” of the Flynn investigation boiled down to a loose description of Trump’s body language and Trump saying he “hoped” Gen. Flynn wouldn’t be prosecuted–neither one of which was “obstruction” of justice:

But if Trump didn’t obstruct justice, and the Russian collusion conspiracy theories are turning out to have no real basis, why would Comey panic enough after being fired to desperately seek appointment of his longtime friend Robert Mueller as special counsel? Why would he be so unhinged at this hearing?

As an attorney, one of the first things I look for is whether the witnesses’ emotions match the circumstances. Comey is a professional witness. He shouldn’t be injecting excuses for his own conduct into the Clinton email story (such as not being “strong enough”), suddenly blaming Lynch for demanding he call the Clinton email case a “matter” for the first time ever, or pushing a baseless conspiracy theory about Russian collusion (including the part where he privately showed Trump the hilariously-fake “pee pee” dossier “kompromat” the Russians had on him, which could be interpreted as a threat by Comey toward Trump)–not unless something was very wrong with the entire situation.

If this were a spy movie, based on fictional characters, people would be walking out of the theater when the secret agent hero started talking about the president hiring hookers to urinate on a former president’s hotel bed in Russia–it’s that ridiculous. Now we’re learning that the ultimate misconduct–using the same fake evidence to get a wiretap warrant for Trump’s 2016 presidential campaign staff–very well may have happened. If this sounds like a crazy conspiracy theory, remember that Obama’s DOJ was so outrageous that it was caught wiretapping journalists.

Given the Watergate-level stakes involved in throwing Hillary’s email case to make her electable, the likelihood that the same people used fake evidence to get a warrant to wiretap Trump, and the fact that the same people are pushing the bogus Russia collusion narrative (first to keep Comey in his job, and when that failed, by dusting off the utterly corrupt Robert Mueller as special counsel), the desperation to make Trump look like the criminal and deflect blame from themselves makes a lot more sense.

Federal Bureau of Matters: Despite Comey’s “queasy feeling” over Lynch telling him to call the FBI investigation into Hillary Clinton a “matter,” and obvious discomfort while testifying on the subject, Comey did nothing at all to stop Attorney General Loretta Lynch from aligning with the Clinton campaign and pushing its narrative–no request for a special counsel, no secret memos.

In the bigger picture, slapping on the “matter” label proves, to a limited degree, that Lynch and Comey were helping Hillary mitigate damage to her campaign caused by the investigation. But the part that “matters” much more is how the FBI and DOJ ruined the Clinton email case intentionally, making it nearly impossible to get the needed evidence to prove it up–a process that I call case-fixing.

The Clinton email case was decided, at latest, in July 2015: Looking back at the Clinton email case, this could be the biggest criminal coverup in modern history–far exceeding even the Watergate burglary–and the Obama FBI and DOJ are in the direct center of the “matter.”

How can we tell the case was fixed? By looking at the things they actually did, then comparing those to what they would normally do in any other case. But first, we can start with some undisputed facts:

How was the Clinton email case different?

  • Despite early notification that Hillary had used an unsecured system to store classified information, the FBI and DOJ took no steps whatsoever to contain the breach for at least six months–they didn’t even try to find out who possessed the classified information
  • When the investigation finally began, the FBI and DOJ used extremely slow and irrational procedures to investigate the case, which (1) provided advance notice to the targets that evidence would be sought in the near future, and (2) used extremely passive efforts to gather evidence (such as sending preservation letters and subpoenas instead of obtaining and executing search warrants).
  • The results of early inaction and slow evidence gathering allowed Hillary’s IT team to destroy evidence that could have been seized and preserved. Despite the mass destruction of evidence, every person who participated was given immunity from prosecution by the FBI and DOJ–for their roles in destroying the evidence

Guccifer discovered Hillary’s email address in 2013:

On February 1, 2013, Hillary Clinton stepped down as Secretary of State. She was no longer a government employee in any capacity, yet still retained every email she sent or received during her time as Secretary of State on a private server in her home.

On March 15, 2013, The Smoking Gun reported that hacker Marcel Lazăr Lehel, also known as Guccifer, had breached Sidney Blumenthal’s AOL email account, which included memos and communications sent and received by Hillary Clinton at her private email address–which would mark a date positive when her private email address was known to exist by a successful hacker. Guccifer then forwarded the Benghazi-related emails on to various public officials and media outlets.

Guccifer

Despite the public release of Guccifer’s hacked 2012 Clinton-Blumenthal emails, it’s unknown whether the FBI made any effort whatsoever to begin investigating whether Hillary Clinton communicated classified information while she was Secretary of State. At the time Guccifer hacked Blumenthal and obtained Hillary’s private email address, Robert Mueller was FBI Director.

Guccifer would later claim he got inside the Clinton email server in early 2013, describing the Clinton server as “completely unsecured” and an “open orchid on the internet”:

FBI Director James Comey later claimed Guccifer admitted he was lying about hacking the Clinton server. Despite Comey’s assurance that Guccifer is the one lying, Guccifer should be re-interviewed to see whether he was pressured to change his story by the FBI and DOJ (who had him detained, and pending trial, at the time he “admitted” to lying). Perhaps not coincidentally, his case was prosecuted in the Eastern District of Virginia by US Attorney Dana Boente–the same US Attorney who investigated Hillary’s email case, took over as Acting Attorney General when Sally Yates was fired, and was recently forced to resign.

Guccifer prompted the “unhacked” Hillary to completely change her email system–possibly with assistance provided by the State Department

During April 2013, one month after Guccifer went public about the Blumenthal hack, the Clinton Executive Services Corporation employed Infograte, a communications integration company, to find companies to provide Hillary with a new server and email system.

CESC ultimately picked Platte River Networks in Colorado, which purchased new equipment and transferred the server to a private facility called Equinix in New Jersey. Equinix is not a secure site used by the intelligence community. Even worse, there was no indication that any of the companies involved knew classified information would be transferred to or stored on their systems.

Emails later recovered by the Senate, dated April 12 and 16, 2013, were redacted prior to release. However, they show that an unnamed State Department Special Assistant was somehow involved in the process of finding private contractors for Hillary’s new private email systemafter Hillary left the State Department:

STATE DEPT SPECIAL ASSISTANT BLOWN UP

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It is unknown why the State Department officially played any role in this transaction, or whether the Special Assistant was acting in an individual capacity at that time. The name and email address of the person involved have not been released, after being replaced with identifiers.

Emails returned to State Department years after Hillary stepped down as Secretary of State:

On December 5, 2014, nearly two years after leaving the State Department, and after litigation with various groups over ignored State Department Freedom of Information Act requests, Hillary Clinton finally turned approximately 30,500 emails that were sent or received during the course of business as Secretary of State.

Oddly, the emails were provided in paper form, which would make tracing the IP addresses of senders and recipients impossible. After completing its case, the FBI later discovered that Anthony Weiner received 2,800 State Department emails through Hillary’s server–something discovered while his laptop was being searched for child pornography. If they had properly analyzed the evidence from Huma Abedin’s and Hillary Clinton’s email accounts, they presumably would have known that many of these emails were forwarded to a device that was not in their possession before they closed the case.

The Department of Justice and CIA knew Hillary’s emails contained classified information, yet did nothing to secure the information before the remaining emails were destroyed using BleachBit:

During January and February 2015, multiple agencies began a classification review of the emails, including Loretta Lynch’s Department of Justice and John Brennan’s CIA. During that period, emails provided by Hillary Clinton were deemed classified, including a CENTCOM email:

FBI NOTES ON CASE, CLASS REVIEW

As the above FBI interview notes indicate, the CIA’s Office of Congressional Affairs, then led by Neal Higgins, was involved in the review during February 2015; he would later confirm that “needless to say” some of the materials included “classified information”:

Chairman CHAFFETZ: Mr. Higgins, what happens if we release these emails that are— that Hillary—on Hillary Clinton’s unsecured server, what happens?
Mr. HIGGINS. Mr. Chairman, I can confirm that CIA participated in the classification review process, and I’d be happy to talk about that process in closed session. Needless to say, some of the materials do include classified information that we do not believe is appropriate for public release.

Even more troublingly, the February 2015 classification review also involved the Department of Justice’s Office of Legislative Affairs, which was run at the time by Peter Kadzik–a close friend of Clinton Campaign Chairman John Podesta. Numerous Wikileaks Podesta emails from during the Clinton email scandal revealed Kadzik’s dinner plans with the Podestas, Kadzik’s son seeking an internship with the Hillary Clinton campaign, Kadzik’s wife’s birthday party invitation to the Podestas, and even a May 2015 warning about upcoming DOJ testimony in the Clinton email casesent to Podesta via Kadzik’s personal email account:

Kadzik Heads Up

On March 2, 2015, the New York Times published an article revealing that Hillary Clinton used only personal email accounts for official business as Secretary of State. Notably, this was more than two years after Hillary left her post, meaning that she kept government-owned records hidden throughout her term as Secretary of State and after leaving office, a possible felony–even if they did not contain classified information.

The next day, on March 3, 2015, Clinton Campaign Director Robby Mook sent a cryptic email to John Podesta, indicating that he brought up the email issue with “research” in the summer of 2014, but was told that “everything was taken care of”:

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On March 31, 2015, Platte River Networks IT systems manager Paul Combetta destroyed Hillary’s emails on her main server by using BleachBit software. The emails were under a Congressional subpoena at the time–a fact he knew:

The FBI later granted Combetta and several other classified email deleters immunity from prosecution for destroying the evidence–even after Combetta was caught lying to the FBI:

In an earlier article, I wrote about how Katica found Reddit posts proving Combetta was trying to “strip out and replace” Hillary’s email address, as well as limiting the retention period for email archives to 60 days, after which emails would be deleted by “policy” for no rational reason.

Despite the fact the FBI didn’t even know about these posts during the investigationComey testified that this obvious attempt to obstruct the congressional investigation didn’t even matter:

The State Department used “intimidation” to force reviewers to either keep emails unclassified or reject using national security classifications:

During April 2015, State Department officials pressured reviewers to change classification markings on many Clinton emails to “b5,” which reflects that the executive branch deliberated and decided to withhold them from public view based on executive privilege for communications.

Later FOIA releases indicated that the FBI was involved in the classification review process, and that at least some emails contained classified information at the “b1” level review. According to the Department of Justice, these emails involve national security or foreign policy information:

(b)(1) applies to information which is currently and properly classified in the interest of national defense or foreign policy, as specifically authorized under the criteria established by Executive Order and implemented by regulations.

Despite indisputable proof that FBI and DOJ officials were already involved in the April 2015 State Department classification review process, and the FBI had classified some turned-over documents with a “b1” designation, the FBI and DOJ did not immediately try to protect national security by seizing the classified documents on the original devices at the time:

FBI REDACTIONS DOC

The State Department’s initial “resistance” to “b1” classifications eventually diminished, in the face of multiple emails requiring the marking, according to the FBI:

BACKED OFF AT STATE B1A State Department employee would later tell the FBI that intimidation was used by top State Department officials to stop reviewers from invoking the “b1” designation on documents received from Hillary’s “unprecedented” records dump:

STATE DEPT INTIMIDATED BY FOIA

The Inspectors General for the Intelligence Community and State Department intervened to stop the State Department from releasing classified information publicly:

About 2 months after the documents were already being reviewed by the FBI, CIA, DOJ, and Department of State, and “intimidation” was used by the State Department to keep the documents from being designated as classified for national security reasons, the Inspectors General of the State Department and Intelligence Community (positions akin to “Internal Affairs” at a police department) also performed a review of the documents and discovered that they still contained classified information.

The IGs were so concerned about classified information being released to the public that they wrote to State Department Under Secretary Patrick Kennedy on June 19, 2015 and again on June 29, 2015, using warning letters that first demanded increased security and accuracy in the classification process, followed by another letter indicating that potentially hundreds of classified emails could be released to the public with classified information contained within them, due to inadequate classification procedures at the State Department:

IG LETTER

Ignoring the IG warnings, the next day, on June 30, 2015, the State Department released 1,925 emails from those turned over by Hillary Clinton. Many contained classified information, including at least some emails that already appeared to be deemed classified by both the Department of Justice and the Department of State for national security and/or foreign policy reasons–using the “b1” designation:

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Criminal referral from the Intelligence Community Inspector General, who received threats to his career, forced the FBI to start an investigation:

On July 6, 2015, after being brazenly ignored by the State Department a week earlier, the Inspector General for the Intelligence Community issued a formal criminal referral to the FBI, indicating that some of the emails the IG reviewed contained classified information.

Recently, the same Inspector General spoke out, saying he was threatened with being fired for doing his job if Hillary Clinton won the presidential election.

The FBI investigation was extremely slow to start, and required prodding by Congress and the Inspector General before any action was taken:

Four days after the Inspector General’s referral, on July 10, 2015, the FBI finally initiated a formal investigation. However, it’s hard to tell what–if anything–the FBI did in the first few weeks after getting the referral.

In a letter dated July 21, 2015, referencing conversations on both July 13 and July 20, 2015, FBI Deputy Director Mark Giuliano wrote a suspicious letter indicating he verbally advised Deputy Attorney General Sally Yates of the Inspector General referral and commencement of the FBI investigation. Why an investigation of this importance wasn’t announced to the Department of Justice in writing–or this letter was even necessary–isn’t clear.

SallyYatesMarkedUP
Giuliano was appointed by Comey to the position of Deputy Director, starting December 1, 2013. Giuliano “retired” as Deputy Director on February 1, 2016, being replaced on that date by Andrew McCabe who took over in February 2016. Some news reports indicated McCabe would be “overseeing” the Clinton email case. About 6 months earlier, longtime Clinton operative and Virginia Governor Terry McAuliffe steered nearly $500,000 from his political action committee to McCabe’s wife Jill for her state senate run.

On July 22, 2015, Rep. Trey Gowdy sent a letter to then-FBI Dir. Comey demanding accountability and recommending an “aggressive investigation” in the Clinton emails case, in line with other recent cases involving classified information breaches:

On July 24, 2015, Sen. Chuck Grassley sent a letter to then FBI Dir. Comey demanding an update on the status of the investigation, given the Inspector General’s findings that classified information existed on Hillary’s server.

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On July 24, 2015, the Inspectors General of the State Department, Steve Linick, and Intelligence Agencies, Charles McCullough, released a joint statement indicating that they found classified information that still existed on Hillary Clinton’s email server and a thumb drive–which were still not in the government’s possession:

OIGLETTERMarked

The FBI used evidence collection methods that informed witnesses that they were being targeted, providing time to manipulate and possibly destroy evidence (again):

Given that the FBI and Inspector General had already discovered that some of Hillary Clinton’s private communications included classified information, United States Code section 2703(f) would have permitted immediate seizure of the communications with a valid search warrant. Instead, the FBI issued “preservation letters,” which put the recipients on notice that they were coming for the evidence at some future date.

On July 27 and 28, 2015, three weeks after the FBI investigation officially began, FBI Counterintelligence Section Chief Charles Kable sent various preservation letters to Clinton electronic communication service providers, including Platte River Networks, under United States Code section 2703(f), which requires an electronic communications provider to retain records for 90 days, in light of forthcoming litigation.

On July 31, 2015, counsel for Platte River Networks left a voicemail for an FBI Special Agent indicating that she had received the “preservation letter” and that she had advised her clients to “follow the instructions on the letter to a t.” She also indicated that the FBI should contact her with questions.

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On August 6, 2015, a Platte River Networks project manager emailed two executives to warn them that he discovered Hillary’s server was backing up to the Datto company’s cloud-based backup system–meaning that the contents of her server had been transmitting to another company for over two years without their knowledge.

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Communications between Platte River executives and technicians and Datto representatives the next day show that Platte River was scrambling to get the information out of “the hands of a third party” by requesting a stick drive containing the backups and then deleting them, but it’s unclear if that ever happened:

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Also on August 6, 2015, weeks after the Inspector General referral from the State Department specifically referred to this evidence, and six months after the DOJ participated in the classification review that revealed classified information was held on at least two electronic devices, the FBI finally took possession of a thumb drive containing classified emails from Clinton lawyers at Williams & Connelly:

On August 12, 2015, the FBI took possession of just one of the Clinton email servers–the oldest one, which was not in use–however, it did not seize the backup Datto drive or other equipment at Equinix:

GetImage.ashx-14On August 13, 2015, Datto’s general counsel wrote to Platte River and indicated that the device that Platte River had used for two years was not encrypted and a cybersecurity risk. However, for unknown reasons, the FBI did nothing to obtain the device or backups at the time:

DATTO UNSECURED.pngOn October 3, 2015, nearly two months after seizing the first server and thumb drive, the FBI returned to Equinix to gather a majority of the equipment used for Hillary’s email system, including the Datto backup device:

DATTO SEIZURE

On October 8, 2015, FBI investigators would return to Equinix to obtain more equipment that was left behind:

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By the time all of this evidence was obtained, virtually every piece of equipment was either “lost,” manipulated, or intentionally destroyed–including server backups:

President Obama may have obstructed justice by publicly declaring Hillary made a “mistake” and insisting that she did not create a national security problem:

On October 12, 2015, despite the fact that what was left of the electronic evidence had been obtained by the FBI just days earlier, then-President Barack Obama publicly declared that what Hillary Clinton did involving the use of a private email server was a “mistake” and not a “national security problem”:

“I don’t think it posed a national security problem. It was a mistake that she has acknowledged.”

Obama would repeat the message–which arguably constituted “obstruction of justice,” by Comey’s definition–on April 10, 2016, strongly indicating the outcome he wanted in the matter by describing Hillary’s “carelessness” and minimizing the significance of the breach:

“I continue to believe she has not jeopardized America’s national security,” the president said. “There’s a carelessness in terms of managing emails that she has owned and she recognizes. But I also think it is important to keep this in perspective.”

Although it’s hard to tell if Obama led the push to clear Hillary, he and Comey both called Hillary’s conduct “careless” and cleared her months before the investigation was finished, which “matters.”

A fish rots from the head down.