US District Court Judge Emmet Sullivan has ordered some of Clinton’s former top aides to testify under oath about Clinton’s private email server and how the State Department handled Freedom of Information Act (FOIA) requests regarding Clinton’s emails. Based on what is revealed in those interviews, due to take place in the next two months, Sullivan says that a sworn deposition from Clinton herself “may be necessary.” Judicial Watch, who made the original FOIA requests, would have to file a separate request “at the appropriate time.”
US District Court Judge Emmet Sullivan says the depositions are necessary in order to determine if the department conducted an adequate search regarding Judicial Watch’s 2013 Freedom of Information Act (FOIA) request regarding the employment of Clinton aide Huma Abedin, since she had three outside jobs at one point.
Deposition questions are to be limited to the set-up and management of Clinton’s private server, since the department failed to reveal Clinton’s emails on the server in response to the FOIA request. The former aides due to be deposed in the next two months are:
- Huma Abedin
- Cheryl Mills
- Bryan Pagliano
- Patrick Kennedy
- Stephen Mull
- Lewis Lukens
- plus, someone to be decided by the State Department.
It is reported that the FBI is likely to interview Clinton in “the next few weeks.” Clinton’s top aides have been interviewed in recent weeks and it appears Clinton will be interviewed last, at the very end of the FBI’s investigation. (Reuters, 5/5/2016)
Former federal prosecutor Steven Levin says, “This certainly sends the signal that they are nearing an end to their investigation.” And while the FBI has not said that Clinton is the main target of their investigation, Levin notes that, “Typically, the way we structured investigations when I was a federal prosecutor is that we would seek to interview the target last.”
Former US attorney Matthew Whitaker says the FBI will only “ask her questions that they know the answers to already.” Their aim is to get her to confess to a crime, or to lie, which also would be a crime. (The Hill, 5/8/2016)
CNN reports that “In recent weeks, multiple aides have been interviewed—some more than once,” according to unnamed US officials. Only Clinton’s former deputy chief of staff Huma Abedin is mentioned by name, who was interviewed at least once, on April 5, 2016. The FBI “has been quietly bringing witnesses into an FBI office without drawing attention.” They are likely to try to do the same when Clinton herself gets interviewed in the coming weeks. (CNN, 5/5/2016) (The Los Angeles Times, 5/5/2016)
CNN reports, “The investigation is still ongoing, but so far investigators haven’t found evidence to prove that Clinton willfully violated the law the US officials say.” However, nothing has been said about crimes that did not involve willful violation of the law, such as gross negligence, or unsecure possession of classified material.
Unnamed officials also claim that “The probe remains focused on the security of the server and the handling of classified information and hasn’t expanded to other matters.”
Furthermore, “FBI officials overseeing the probe now expect to complete their work in the next few weeks and then turn over the findings to the Justice Department, which will make a final decision on whether to bring charges against anyone.” (CNN, 5/5/2016)
The Washington Post reports, “Prosecutors and FBI agents investigating Hillary Clinton’s use of a personal email server have so far found scant evidence that the leading Democratic presidential candidate intended to break classification rules, though they are still probing the case aggressively with an eye on interviewing Clinton herself, according to US officials familiar with the matter.” Additionally, “One official said prosecutors are wrestling with the question of whether Clinton intended to violate the rules, and so far, the evidence seemed to indicate she did not.” (The Washington Post, 5/5/2016)
However, a few hours later, NBC News cites unnamed US officials who have a different point of view. “As for where the investigation stands, these officials say it is a long way from over. […] No conclusions have been reached about whether any laws were violated in setting up or using the system, the officials say.” (NBC News, 5/5/2016)
It is reported that FBI investigators looking into Clinton’s email scandal have been joined by prosecutors from the US Attorney’s Office in the Eastern District of Virginia. The district is commonly nicknamed the “rocket docket” for the speed with which cases move through it. It is home to the CIA and the Pentagon, so it often deals with national security and terrorism cases. The office is led by veteran federal prosecutor Dana Boente. Prosecutors from the office have been working with the FBI to interview Clinton’s top aides. (The Washington Post, 5/5/2016)
In January 2016, a federal judge ordered the State Department to release all the known emails of Huma Abedin from her time as Clinton’s deputy chief of staff. This is in response to a Freedom of Information Act (FOIA) lawsuit by Judicial Watch.
Over 29,000 pages of emails are due to be released in batches, and this is the first batch of 241 pages. Some of the emails are between Abedin and Clinton, and most if not all of them appear to be work-related, showing yet again that Clinton did not turn over all her work-related emails when she gave the State Department over 30,000 emails in December 2014.
21 of the emails between Abedin and Clinton date from January 28, 2009 to March 17, 2009; Clinton had said she didn’t use her new email account until March 18, 2009.
Another 15 emails between them date between March 18, 2009 to October 20, 2012, and do not match any of emails in the State Department’s database of the 30,000 publicly released Clinton emails. Whereas 16 emails dating from March 20, 2009 to May 28, 2009 do appear in that database. (Judicial Watch, 5/5/2016) (US Department of State, 5/1/2016) (US Department of State, 5/1/2016)
Judicial Watch President Tom Fitton comments, “These emails further undermine Hillary Clinton’s statement, under penalty of perjury, suggesting she turned over all of her government emails to the State Department. How many more Hillary Clinton emails is the Obama State Department hiding?” (Judicial Watch, 5/5/2016) Since these emails appear to be:
- a more or less random selection from all four years of Clinton’s time as secretary of state
- about half of the emails from March 18, 2009 and afterwards are not included in the 30,000 previously released emails
- this batch makes up less than one percent of all the Huma Abedin emails due to be released
- Abedin’s emails make up only about 15 percent of the 30,000 emails
One can reasonably estimate that thousands of the over 31,000 emails Clinton deleted actually are work-related and are likely to be publicly released in later batch releases of Abedin’s emails as well as FOIA lawsuits forcing the release of emails from other top Clinton aides. In fact, if this sample is a truly random sample representative of the rest of the emails from Abedin and other top Clinton aides, well over 10,000 of Clinton’s deleted emails could be work-related.
Clinton confidant Sid Blumenthal is asked if the FBI has interviewed him as part of their Clinton email investigation. He replies, “You know, I don’t really want to talk about an ongoing inquiry right now.” He says he will wait to speak until after the investigation is over. (The Hill, 5/9/2016)
In September 2016, it will be revealed Blumethal was interviewed by the FBI in January 2016.
In December 2015, Politico reported that the State Department cannot a “.pst file” containing the emails from Bryan Pagliano during Clinton’s four-year tenure as secretary of state. Pagliano worked as a State Department computer technician while also managing Clinton’s personal email server. (Politico, 12/11/2015)
The department continued to search, but six months later, State Department spokesperson Elizabeth Trudeau says, “The department has searched for Mr. Pagliano’s email .pst file and has not located one that covers the time period of Secretary Clinton’s tenure. To be clear, the department does have records related to Mr. Pagliano and we are working with Congress and FOIA [Freedom of Information Act] requesters to provide relevant material. The department has located a .pst from Mr. Pagliano’s recent work at the department as a contractor, but the files are from after Secretary Clinton left the department.” She further explains that a small number of Pagliano’s emails have been recovered, apparently from other email accounts.
Although Clinton released over 30,000 work-related emails, only one of them was to or from Pagliano, an email in which he wished her a happy birthday. In 2015, the Republican National Committee (RNC) filed a FOIA lawsuit for all of Pagliano’s emails. (ABC News, 5/9/2016)
The Times claims that, “In 18 emails, for example, information has been classified on the grounds that it identifies CIA officials, including two instances that are now considered “secret.” (The New York Times, 5/10/2016)
However, this is not entirely accurate. A search of the State Department’s database of Clinton’s released emails indicates that 49 emails used the code “B3 CIA PERS/ORG,” which indicates a redacted mention of secret CIA personnel or organizational details. Many of these are emails from the same email chain. But there are in fact five separate chains mentioning the name of a CIA official classified at the “secret” level, not two. (US Department of State, 1/29/2016) (US Department of State, 2/29/2016) (US Department of State, 1/29/2016) (US Department of State, 1/29/2016) (US Department of State, 1/29/2016)
There are 17 more separate email chains that have the redacted names of secret CIA officials, for a total of 22, not 18. Additionally, it has previously been reported that a “handful” of additional emails make veiled references to the fact that certain government officials actually work for the CIA. (NBC News, 2/4/2016)
The Washington Post reports that Clinton’s former aide Cheryl Mills was recently interviewed by the FBI as part of their Clinton investigation. (It will later be revealed the interview took place on April 9, 2016.) Not long after it started, an FBI investigator asked Mills about how Mills chose which of Clinton’s emails to turn over to the State Department and which ones to delete.
It has been reported that process was done by Mills along with Clinton associates David Kendall and Heather Samuelson. However, Mills’ lawyer Beth Wilkinson and the Justice Department had agreed the topic would be off-limits. Mills and Wilkinson left the room, but they returned a short time later. Ultimately, Mills was not asked about that topic.
The Washington Post reports that Justice Department “prosecutors were somewhat taken aback that their FBI colleague had ventured beyond what was anticipated…” The topic was considered off-limits because “it was considered confidential as an example of attorney-client privilege.” Mills is a lawyer, but she served as Clinton’s chief of staff and it has never been reported that she has legally represented Clinton.
The Post also reports, “It is not completely unknown for FBI agents and prosecutors to diverge on interview tactics and approach, and the people familiar with the matter said Mills answered investigators’ questions.” (The Washington Post, 5/10/2016)
Speaking to reporters, he adds, “We’re conducting an investigation […] That’s what we do. […] It’s in our name [the Federal Bureau of Investigation]. I’m not familiar with the term ‘security inquiry.’” Clinton and her spokespeople have repeatedly referred to it as a “security inquiry” or a “security referral.”
Comey also says that he feels “pressure” to complete the Clinton investigation soon, but “I don’t tether to any external deadline,” such as the Democratic convention in July 2016. He otherwise deflects questions about the investigation, saying it is on-going. (Politico, 5/11/2016) (The New York Times, 5/11/2016) (The Hill, 5/11/2016) (FBI, 5/14/2016)
More of Clinton’s emails from her time as secretary of state are released by the State Department, due to Freedom of Information Act (FOIA) lawsuits by Judicial Watch. In 2015, Clinton claimed that she didn’t start using her new private email address until March 18, 2009. But all these emails date from before then.
There are 15 emails using her old email address from January 22, 2009 (one day after she became secretary of state) to February 26, 2009. There are another 108 emails using her new email address (hosted on her private server) from January 30, 2009 to March 8, 2009. (Judicial Watch, 5/12/2016) (US Department of State, 4/29/2016) (US Department of State, 4/29/2016) (US Department of State, 4/29/2016)
LawNewz notes that this email release “contradicts claims made by Clinton and her campaign that she did not begin using the private e-mail server until March 2009. […] The dates of the newly released e-mails also appear to contradict a declaration signed by Clinton, under penalty of perjury, saying she surrendered all her work-related e-mails to the State Department on December 5, 2014.” (LawNewz, 5/13/2016)
Judicial Watch formally asks US District Court Judge Royce Lamberth for permission to depose Clinton as part of a Freedom of Information Act (FOIA) lawsuit.
This is actually one of two similar cases involving Judicial Watch and Clinton. In the other case, handled by federal judge Emmet Sullivan, Judicial Watch has not asked for Clinton’s deposition yet, but they may do so in the future, and they are deposing some of her former aides. In this case, Clinton could be forced to testify under oath about her use of a private email account for government work as well as the State Department’s response to FOIA requests for information related to the 2012 Benghazi terrorist attack. (Politico, 05/16/2016)
US District Judge Emmet Sullivan is allowing Judicial Watch to depose six US officials under oath, mostly Clinton’s former aides, as part of a Freedom of Information Act (FOIA) lawsuit, on the following dates:
- May 18: Former deputy assistant secretary of state Lewis Lukens will be interviewed on May 18.
- May 27: Clinton’s former chief of staff Cheryl Mills.
- June 3: Stephen Mull, former State Department executive secretary.
- June 6: Bryan Pagliano, Clinton’s former computer technician who managed her private server.
- June 28: Huma Abedin, Clinton’s former deputy chief of staff.
- June 29: Patrick Kennedy, the State Department’s under secretary for management since 2007 until current.
Judicial Watch can interview each witness for up to seven hours, and the video of the interviews can be made public several days later. The questioning will be limited, but includes the issue of how Clinton’s private server was set up and managed, and why the State Department didn’t properly fulfill FOIA requests for Clinton’s emails. (The Wall Street Journal, 5/17/2016) (Judicial Watch, 5/17/2015)
Lukens has been deposed as part of a Freedom of Information Act (FOIA) lawsuit by Judicial Watch. He is the first of six to be deposed as part of that lawsuit, which is presided over by federal judge Emmet Sullivan. (The New York Times, 5/18/2016) (Judicial Watch v. State Lukens Testimony 01363 5/26/2016)
The State Department’s Office of Inspector General releases a report with the title “Evaluation of Email Records Management and Cybersecurity Requirements.” The 83-page report is the main headline at the New York Times, the Washington Post, and elsewhere, because it sheds new light on Clinton’s email scandal. The Post calls it “a highly critical analysis of Hillary Clinton’s email practices while running the department, concluding that Clinton failed to seek legal approval for her use of a private server and that agency staff members would not have given their blessing if it had been sought because of ‘security risks.’”
The report did not cover the classified content of some of Clinton’s emails due to the on-going FBI investigation and instead focuses mainly on record management issues for Clinton as well as the four previous secretaries of state. The office’s inquiry was initiated by a request from Secretary of State John Kerry in 2015, and was led by Inspector General Steve Linick, who was appointed by President Obama in 2013. The report reveals:
- There were “long-standing systemic weaknesses” in the State Department’s recordkeeping. Department officials were “slow to recognize and to manage effectively the legal requirements and cybersecurity risks” of widespread email use. This problem went “well beyond the tenure of any one secretary of state,” but most of the report focuses on Clinton’s tenure.
- Former secretary Colin Powell is singled out for violating department policy by using a personal email account while in office, as Clinton did. But the report notes that in the four years between the end of Powell’s tenure and the start of Clinton’s, the department’s warnings about the “obligation” to mainly use government email accounts for work matters had become more detailed and frequent.
- Dozens of department employees sometimes used personal email accounts for work matters. But only three were discovered who used such accounts exclusively: Clinton, Powell, and Scott Gration, who was US ambassador to Kenya in 2011 and 2012. Gration faced an internal rebuke for doing so and was forced to resign. Clinton was the only one to use a private server as well.
- Clinton “had an obligation to discuss using her personal email account to conduct official business” with security and records management officials, but investigators “found no evidence” that she had requested or received approval from anyone to conduct work matters mainly by personal emails. Furthermore, department officials “did not—and would not—approve her exclusive reliance on a personal email account to conduct Department business.”
- Similarly, Clinton had not sought permission to use a private email server, and would not have received it if she had.
- Clinton was required to demonstrate to security and records management officials that both her server and her mobile devices “met minimum information security requirements,” but she never did so.
- Clinton should have handed over copies of her work emails immediately upon stepping down in February 2013. Failure to do so violated department policies and the Federal Records Act. Instead, she provided only some work emails, and those only in December 2014, nearly two years later, after the Republican-led House Benghazi Committee began asking for some of her emails.
Clinton has claimed she effectively left copies of her emails with the State Department because she mainly emailed other department officials. However, the report says that was an inappropriate form of preservation. Additionally, four of her closest aides, whom she exchanged emails with most often, also made “extensive” use of personal email accounts, so none of those emails would have been preserved in State Department records just by being received by those aides.
- There was “some awareness” of Clinton’s email account among senior department officials. But there also appear to have been efforts to keep her use of a private server a secret. For instance, in 2010, when two department computer technicians raised concerns that her server might not properly preserve records, a higher official told them her setup had been reviewed by lawyers and warned them “never to speak of the Secretary’s personal email system again.” Furthermore, no evidence of such a legal review has been found.
- Clinton has claimed she exclusively used a private email account for “convenience.” However, this claim is belied by Clinton’s response to an email from Huma Abedin, Clinton’s deputy chief of staff, in November 2010. When Abedin prodded Clinton about “putting you on State email or releasing your email address to the department […] ,” Clinton replied that she would consider a |separate address or device, “but I don’t want any risk of the personal being accessible.”
- Clinton turned over 30,000 work-related emails in December 2014, while deleting another 31,000 emails she said were personal in nature. However, the report claims her email handover was “incomplete,” and there are gaps and missing emails. For instance, the above-mentioned November 2010 email was not handed over by Clinton but was found through other means.
- Several incidents were uncovered in which Clinton or some of her aides worried that Clinton’s private server had been hacked. For instance, a January 2011 email to a Clinton aide said Clinton’s server was shut down because “someone was trying to hack us.” It is unknown if the server actually was broken into at that time. However, Clinton and her aides failed to alert department computer security personnel to the hacking attempts, as required by department policy.
- Clinton, as well as nine of her former top aides, refused to be interviewed for the report. By contrast, the four previous secretaries of state, as well as current Secretary of State John Kerry, were interviewed.
The report released on this day notes that it interviewed “dozens” of present and former State Department officials, including current Secretary of State John Kerry and the three secretaries prior to Clinton: Madeleine Albright, Colin Powell, and Condoleezza Rice. However, Clinton refused to be interviewed. Furthermore, nine of Clinton’s former top aides were singled out in the report for not being interviewed:
- Cheryl Mills, chief of staff;
- Huma Abedin, deputy chief of staff for operations;
- Jake Sullivan, deputy chief of staff for policy, and then director of policy planning;
- Philippe Reines, deputy assistant secretary for strategic communication;
- John Bentel, director of the Information Resources Management (IRM) office;
- Bryan Pagliano, special advisor to the deputy chief information officer (who also privately managed Clinton’s private server);
- Heather Samuelson, senior advisor to the department (who determined which of Clinton’s emails to delete in late 2014);
- Thomas Nides, deputy secretary of state for management and resources; and
- Justin Cooper, whom the report calls “an individual based in New York who provided technical support for Secretary Clinton’s personal email system but who was never employed by the Department.”
The only other person singled out by the report for refusing to be interviewed is Lawrence Wilkerson, who was chief of staff to Secretary of State Colin Powell. (US Department of State, 5/25/2016)
The report was many months in the making. But on May 8, 2016, only two weeks before the report’s release, Clinton claimed in an interview that when it came to her emails, “I’m more than ready to talk to anybody, anytime. And I’ve encouraged all of… my assistants to be very forthcoming.” (CNN, 5/8/2016)
Later in the day, Clinton spokesperson Brian Fallon defends Clinton’s decision not to cooperate with the report by saying, “To our mind, it made sense to prioritize the [FBI investigation] and so, accordingly, Hillary Clinton has said since last August that she’ll be happy to sit with them at whatever point they approach her, which has not happened yet.” However, he didn’t clarify why Clinton couldn’t have cooperated with both investigations, especially since the FBI hasn’t even contacted her yet. (Politico, 5/25/2016)
The Romanian hacker nicknamed Guccifer pleads guilty in a US court to charges of identity theft and unauthorized access to protected computers. At a plea hearing before US District Court Judge James Cacheris in Alexandria, VA, he admits that he broke into email and social media accounts of about 100 US citizens between 2012 and 2014.
Guccifer is best known for breaking into the email account of Clinton confidant Sid Blumenthal in March 2013 and thus publicly revealing Clinton’s private email address. He could face up to seven years in prison in the US, on top of the seven years he is already serving in Romania.
He is due to be sentenced on September 1, 2016. However, it is alleged that his guilty plea is part of a deal to cooperate with the US government, possibly including the FBI’s Clinton investigation. It has been reported that he will cooperate with the government in other investigations and be “reasonably available for debriefing and pre-trial conferences as the US may require.” He also has agreed to turn over any documents or other materials “that may be relevant to investigations or inquires.” (LawNewz, 5/25/2016)
Bill Johnson was the department’s political adviser to the special operations section of the US Pacific Command (PACOM) from 2010 to 2011, after a long military career. He says secret plans targeting Umbra Jumdail, the leader of a Filipino Islamist separatist group, as well as plans to intercept Chinese-made weapons components being smuggled into Iraq, were both repeatedly foiled.
He claims that he and his team determined unprotected phone calls of Clinton and her aides were the likely problem, after eliminating other possibilities. Johnson says, “I had several missions that went inexplicably wrong, with the targets one step ahead of us.” For instance, his target Jumdail in the Philippines was repeatedly tipped off. He traced the problem to unsecure communications between Washington, DC, and the US embassy in Manila. “Anyone can just sit outside the embassy and listen” with off-the-shelf eavesdropping devices, he claims.
He argues that the leaks stopped after Special Operations Command stopped giving advance warning to senior State Department officials about the raids. Jumdail was killed in a US-based airstrike not long thereafter.
Johnson says such problems “could’ve been avoided if the CIA gave her a secure phone. She requested one, but they turned it down.”
A Clinton spokesperson calls the allegations “patently false.” (Newsweek, 5/25/2016)
A new State Department inspector general report determines that department rules required Clinton to get official approval to conduct official business using a personal email account on her private server, but she did not do so.
In the words of the report, Steven C. Taylor, current head of Information Resources Management (IRM) and Gregory Starr, current head of Diplomatic Security (DS), jointly claim that Clinton “had an obligation to discuss using her personal email account to conduct official business with their offices, who in turn would have attempted to provide her with approved and secured means that met her business needs. However, according to these officials, DS and IRM did not—and would not—approve her exclusive reliance on a personal email account to conduct department business, because of the restrictions in the FAM [Foreign Affairs Manual] and the security risks in doing so.” (US Department of State, 5/25/2016)
When former Clinton chief of staff Cheryl Mills testified to the House Benghazi Committee in a private session on September 3, 2015, her comments remained secret.
However, on this day, a State Department inspector general’s report makes one portion of her testimony public. Mills was asked by the committee, “Was anyone consulted about Secretary Clinton exclusively using a personal email address for her work?”
Mills replied, “I don’t recall that. If it did happen, I wasn’t part of that process. But I don’t believe there was a consultation around it, or at least there’s not one that I’m aware of…”
Mills then was asked if Clinton consulted with “private counsel,” or “the general counsel for the State Department,” or “anybody from the National Archives [and Records Administation (NARA)],” or “anyone from the White House.”
Mills replied she wasn’t aware of any consultation from any of those people either.
The inspector general’s report also included comments from many other senior department officials about this, and “These officials all stated that they were not asked to approve or otherwise review the use of Secretary Clinton’s server and that they had no knowledge of approval or review by other Department staff. These officials also stated that they were unaware of the scope or extent of Secretary Clinton’s use of a personal email account, though many of them sent emails to [her] on this account.” (US Department of State, 5/25/2016)
It had been previously believed that Bryan Pagliano was the one who managed Clinton’s private server. But the State Department inspector general’s report released on this day reveals that there actually were “two individuals who provided technical support to Secretary Clinton.”
The report rarely names names, but the individual other than Pagliano is described as someone who “was at one time an advisor to former President [Bill] Clinton but was never a [State] Department employee, [and] registered the clintonemail.com domain name on January 13, 2009.” Previous media reports made clear the person who registered the domain on that day and was an aide to Bill Clinton is Justin Cooper. (US Department of State, 5/25/2016) (The Washington Post, 03/10/2015)
In 2015, the Washington Post reported that Cooper had “no security clearance and no particular expertise in safeguarding computers, according to three people briefed on the server setup.” (The Washington Post, 8/4/2015)
However, the inspector general’s report describes a January 2011 incident in which Cooper turned Clinton’s server off and on in response to a hacker attack, showing he had direct access to the server and thus all the classified information contained inside it. (US Department of State, 5/25/2016)
In April 2016, the Washington Times alleged that Bill and Hillary Clinton “have paid [Cooper’s] legal fees associated with the FBI investigation, amounting to ‘hundreds of thousands of dollars.’” (The Washington Times, 4/27/2016)
Clinton is interviewed by ABC News one day after the release of the State Department inspector general’s report criticizing her email practices. The ABC News headline about the interview says she “doubles down” on defending her past behavior. “This report makes clear that personal email use was the practice for other secretaries of state. It was allowed. And the rules have been clarified since I left.”
But, as ABC News points out, the report showed “that Clinton shouldn’t have used a private email server to conduct official business and would have not been allowed to do so had she asked. It also found that she should have turned over emails after her tenure and violated department policy.”
When asked why she did not agree to be interviewed for the report, “despite repeatedly saying she would talk to anyone, anytime about her emails,” Clinton replies, “I have talked about this for many, many months. I testified for eleven hours before the Benghazi Committee. I have answered numerous questions. We have posted information on our website and the information that we had is out there.” (ABC News, 5/26/2016)
The State Department inspector general’s report on Clinton’s emails released one day earlier referred to some Clinton work-related emails that were not included in the 30,000 work emails Clinton turned over in December 2014. Senate investigators had asked the State Department for all of Clinton’s emails months ago.
Furthermore, in the summer of 2015, the department got 72,000 pages of work emails from four of Clinton’s top aides—Cheryl Mills, Huma Abedin, Jake Sullivan, and Philippe Reines—and yet the department didn’t share those with Congressional investigators either.
Senator Charles Grassley (R), who has been leading a Senate Judiciary Committee investigation into Clinton’s use of a private server, says, “Documents in those 72,000 pages were systematically withheld from Freedom of Information Act [FOIA] requestors and Congressional oversight committees, including the Senate Judiciary Committee, which I chair. […] It is disturbing that the State Department knew it had emails like this and turned them over to the inspector general, but not to Congress.” (The Associated Press, 5/26/2016)
Even after the inspector general’s report was released, there still has been no sign the Department has shared those emails.
In an interview, WikiLeaks founder Julian Assange is asked if his organization has any of Clinton’s “undisclosed emails.” He replies, “We have upcoming leaks in relation to Hillary Clinton,” and “We have emails relating to Hillary Clinton pending publication, that is correct.” He also says, “There is very strong material both in the emails and in relation to the Clinton Foundation.”
He believes this contains enough evidence for the FBI to recommend Clinton’s indictment: “We’ve accumulated a lot of material about Hillary Clinton. We could proceed to an indictment.”
He doesn’t specify when or how many emails might be published. Asked about the FBI’s Clinton investigation, he believes the Justice Department will do the bidding of President Obama and so they will not indict Clinton. (The Guardian, 6/12/2016) (ITV, 6/12/2016)
Several days later, a hacked using the nickname Guccifer 2.0 shares files from a recent hack of the DNC (Democratic National Committee) and claims to have given “thousands of files and mails” to WikiLeaks. (Wired, 6/15/2016) (Vice News, 6/15/2016)
In February 2014, an unnamed Platte River Networks (PRN) employee created a Gmail email account and briefly transferred all of Clinton’s emails into it from a back-up of Clinton’s server made in the spring of 2013. He transferred the Clinton emails to a new version of this server, but most of the emails on this server will later be destroyed. He also will tell the FBI that he deleted all of the emails from his Gmail account after completing the transfer.
However, the FBI will later report that on June 21, 2016, FBI investigators discovered 940 Clinton emails that were still on the Gmail account somehow. It has not been explained if the PRN employee simply failed to delete them all or if deleted emails were recovered.
All of the 940 emails date from October 25, 2010 to December 31, 2010. 56 of them were later deemed to be classified at the “confidential” level. 302 of them were not in the over 30,000 emails that Clinton gave to the State Department in December 2014. It has not been specified how many of these were deemed work-related. But of the 302 emails, the FBI gave 18 of them to other departments to for classification review. The State Department decided one email was classified “secret” when it was sent, but then later was downgraded to “confidential.” Another email was “confidential” when it was sent and later downgraded to be unclassified. (Federal Bureau of Investigation, 9/2/2016)
On the night of June 27, 2016, Clinton and Lynch are in separate airplanes at the international airport in Phoenix, Arizona. According to an account by Lynch two days later, Clinton walks uninvited from his plane to her plane and talks with her for about half an hour. On June 30, 2016, CBS News will report, “An aide to Bill Clinton says that he spotted her on the tarmac, but CBS News has been told that she was in an unmarked plane.” (CBS News, 6/30/2016)
Lynch will say: “He did come over and say hello, and speak to my husband and myself, and talk about his grandchildren and his travels and things like that. That was the extent of that. And no discussions were held into any cases or things like that.” However, this encounter causes what the New York Times calls a “political furor” and “storm,” because Bill Clinton’s wife Hillary is being investigated by the FBI.
Furthermore, the FBI is expected to make a recommendation to indict her or not “in the coming weeks,” according to the Times. If the FBI does recommend indictment, then the decision to actually indict or not will rest with Lynch. Thus, many Republican politicians and even some Democrats criticize Bill Clinton and Lynch simply for meeting at all during such a politically charged time.
- Presumptive Republican presidential nominee Donald Trump calls it “one of the big stories of this week, of this month, of this year.” He says it was a “sneak” meeting, exposing that Clinton’s possible indictment is already a rigged process.
- Republican Senator John Cornyn says that as a lawyer and attorney general, Lynch “must avoid even the appearance” of a conflict of interest, and renews his call for a special prosecutor to take charge of the Clinton investigation instead of Lynch.
- David Axelrod, President Obama’s former senior adviser, says he takes Clinton and Lynch at their word that their conversation didn’t touch on the FBI investigation, but that it was “foolish to create such optics.”
- Democratic Senator Chris Coons says he is convinced Lynch is “an independent attorney general. But I do think that this meeting sends the wrong signal… I think she should have steered clear, even of a brief, casual, social meeting with the former president.”
- White House spokesperson Josh Earnest refuses to say whether the meeting was appropriate or not.
- The conservative watchdog group Judicial Watch says the meeting creates the impression that “the fix is in” and calls on the Justice Department’s inspector general to investigate the meeting. (The New York Times, 6/30/2016) (The Hill, 6/30/2016) (CBS News, 6/30/2016)
New York University law school professor Stephen Gillers comments: “It was the height of insensitivity for the former president to approach the attorney general. He put her in a very difficult position. She wasn’t really free to say she wouldn’t talk to a former president. […] He jeopardized her independence and did create an appearance of impropriety going onto her plane.” He adds that the meeting “feeds the dominant narrative that the Clintons don’t follow the usual rules, that they’re free to have back channel communications like this one and that’s true even if we assume as I do that nothing improper was said.” (NPR, 6/30/2016)
Abedin was Clinton’s deputy chief of staff, and continues to play a major role as the vice chair of Clinton’s presidential campaign. She is deposed under oath for nearly six hours as part of a civil suit brought by Judicial Watch regarding the State Department’s slow response to certain Freedom of Information Act (FOIA) requests relating to Clinton’s emails. (The Washington Post, 6/29/2016)
Amongst other things, Abedin says:
- She isn’t aware whether Clinton personally deleted any emails while still in office.
- She cannot recall whether she or Clinton discussed with any State Department officials Clinton’s using only her own server for government business.
- She never searched or was asked to search her government or her private email accounts in response to requests or lawsuits under FOIA. But a review of all requests to the State Department during that time found several asking specifically for her emails on a number of subjects.
- Clinton didn’t want the private emails that she mixed in with work-related emails to be accessible to “anybody.” (The Associated Press, 6/29/2016)
Abedin responds to some questions but is forgetful about others. The lack of definitive answers from her and the other former aides deposed in the same lawsuit could open the door to Clinton herself being deposed, if the judge allows it through the unusual discovery process he has approved so far.
Judicial Watch President Tom Fitton comments, “I think it’s striking that even Mrs. Clinton’s top aide had concerns about how the system affected Mrs. Clinton’s ability to do her job. We’re considering what next steps to take and what additional discovery we need.” (The Washington Post, 6/29/2016)
The Washington Post reports that “disclosures over the past several weeks have revealed dozens of emails related to Clinton’s official duties that crossed her private server and were not included in the 55,000 pages of correspondence she turned over to the State Department when the agency sought her emails in 2014.”
At least 127 of the new emails have come to light through Freedom of Information Act (FOIA) requests initiated by Judicial Watch, especially the first two batch releases of Huma Abedin’s emails. Since Abedin was Clinton’s deputy chief of staff, many of the emails were to or from Clinton about obvious work matters, yet weren’t included in the over 30,000 emails turned over by Clinton. Additionally, more of Clinton’s emails came to light through the May 2016 State Department inspector general’s report, as well as previous leaks to the media, for a total of at least 160 emails.
The Post comments, “The newly disclosed gaps in Clinton’s correspondence raise questions about the process used by the presumptive Democratic presidential nominee and her lawyers to determine which emails she turned over to the department.”
Clinton spokesperson Brian Fallon says that both Clinton and Abedin provided “all potentially work-related emails in their possession” to the State Department. “We understand Secretary Clinton had some emails with Huma that Huma did not have, and Huma had some emails with Secretary Clinton that Secretary Clinton did not have.” However, the Post notes that Fallon “has not provided a full explanation for all of the gaps” with her emails. The State Department also has not fully addressed the gaps.
The campaign for presumptive Republican presidential nominee Donald Trump releases a statement saying, “We now know that Clinton’s repeated assertion that she turned over everything work-related from her time at the State Department is not true.”
Judicial Watch president Tom Fitton says, “The most charitable interpretation is that the process she and her attorneys used to cull government emails from the emails she took with her didn’t work. The less charitable interpretation is that these emails were not helpful to Mrs. Clinton, so they were not turned over.” (The Washington Post, 6/29/2016)
Attorney General Loretta Lynch says of the FBI’s Clinton investigation, “The recommendations will be reviewed by career supervisors in the Department of Justice and in the FBI, and by the FBI director, and then as is the common process, they present it to me and I fully expect to accept their recommendations.”
She doesn’t completely recuse herself from the process, saying that if she did that she wouldn’t even be able to see the FBI’s report. She says, “While I don’t have a role in those findings, in coming up with those findings or making those recommendations as to how to go forward, I will be briefed on it and I will be accepting their recommendations.” (Politico, 7/1/2016)
The New York Times comments, “Her decision removes the possibility that a political appointee will overrule investigators in the case.” The Justice Department supposedly had been moving towards the arrangement since at least April 2016, but a private meeting on June 27, 2016 between Lynch and Hillary’s husband, former President Bill Clinton, “set off a political furor and made the decision all but inevitable.” (The New York Times, 7/1/2016)
Lynch claims that she had been planning to essentially recuse herself for months, although there is no evidence of this. But it seems clear her controversial meeting with Clinton played a role. She says of the meeting, “I certainly wouldn’t do it again. Because I think it has cast a shadow.” (Politico, 7/1/2016)
The Times says that the US attorney general often follows the recommendations of career prosecutors, so she “is keeping the regular process largely intact.” However, when the FBI, led by Comey, wanted to bring felony charges against former CIA Director David Petraeus in 2013, Lynch’s predecessor Eric Holder arranged a plea deal, reducing the charge to a misdemeanor and no jail time. The created a “deep and public rift” between the FBI and the Justice Department. (The New York Times, 7/1/2016)
White House Press Secretary Josh Earnest says President Obama didn’t play a role in Lynch’s decision, nor did he offer input on her decision to make that announcement. (Politico, 7/1/2016)
When an FBI summary of Clinton’s FBI interview on this day will be released in September 2016, it will reveal that five of Clinton’s lawyers are present during her questioning: Cheryl Mills, David Kendall, Heather Samuelson, Katherine Turner, and one whose name is redacted. Three of these lawyers – Mills, Kendall, and Samuelson – also have a key role to play in the Clinton email controversy the FBI investigated, because they were the ones who sorted over 60,000 of Clinton’s emails, which led to the controversial deletion of over 31,000 of them. Both Mills and Samuelson at least were interviewed by the FBI earlier in the investigation.
Furthermore, Mills was Clinton’s chief of staff and close aide through Clinton’s tenure as secretary of state, only becoming one of Clinton’s lawyers in 2013 after Clinton became a private citizen again.
Andrew McCarthy, a former assistant US attorney for the Southern District of New York later turned journalist, will note this in a later National Review article with the title: “Hillary Clinton’s Mind-Boggling FBI Interview – What Was Cheryl Mills Doing There?”
McCarthy will comment: “Mills was an actor in the facts that were under criminal investigation by the FBI. … [I]t is simply unbelievable to find her turning up at Mrs. Clinton’s interview – participating in the capacity of a lawyer under circumstances where Clinton was being investigated over matters in which Mills participated as a non-lawyer government official.”
He will add, “[L]aw enforcement never [interview] witnesses together – the point is to learn the truth, not provide witnesses/suspects with an opportunity to keep their story straight, which undermines the search for truth.” (National Review, 9/2/2016)
After months of speculation and after interviews with Clinton’s top aides, the FBI finally directly interviews Hillary Clinton. The interview takes place on a Saturday morning over the Fourth of July weekend, and takes place at FBI headquarters in Washington, DC. Although some news reports one day earlier correctly predicted the day it would take place, no photographers are able to take any pictures of her arriving or leaving.
The New York Times reports, “The interview had been weeks in the making as law enforcement officials and Mrs. Clinton’s team coordinated schedules. Democrats also hoped that holding the interview on a holiday weekend might ease the anticipated storm.”
The interview takes place just three weeks before Clinton is expected to be nominated for president at the Democratic convention. It lasts three and a half hours, a time some consider short after a year-long investigation. It is said to be voluntary, meaning she wasn’t subpoenaed.
Clinton is accompanied into the meeting by her personal lawyer David Kendall, her longtime aides and lawyers Cheryl Mills and Heather Samuelson, and Katherine Turner and Amy Saharia, who are lawyers from Kendall’s firm Williams & Connolly. Eight officials from the FBI and the Justice Department conduct the interview.
Little is publicly revealed about the content of the interview. However, one unnamed person who is “familiar with the substance of the session” characterizes the meeting as “civil” and “businesslike.”
It is anticipated that the interview means the FBI’s interview is nearing a conclusion. However, the Times also reports, “Although the interview on Saturday was an important step toward closure on the email issue, technical analysis of the material remains to be done and could stretch on for an indeterminate period.” (The New York Times, 7/2/2016)
Several days later, it will be revealed that the interview was not recorded, due to FBI policy, and Clinton didn’t have to swear an oath to tell the truth. Also, FBI Director James Comey was not one of the five or six FBI officials to take part, although he had previously given indications that he would. (The Hill, 7/7/2016)
In Clinton’s FBI interview on this day, she is asked about her role in sorting her emails from her tenure as secretary of state into work-related and personal emails.
An FBI report published in September 2016 will summarize her response: “In the fall of 2014, Clinton recalled receiving a letter from [the] State [Department] which was also sent to former Secretaries of State Colin Powell, Condoleezza Rice, and Madeline Albright. From the letter, Clinton understood State was concerned there were gaps in their records and requested Clinton’s assistance in filling those gaps. Clinton wanted to assist State, so she directed her legal team to assist in any way they could. Clinton expected her team to provide any work-related or arguably work-related emails to State; however, she did not participate in the development of the specific process to be used or discussions of the locations where her emails might exist. Additionally, Clinton was not consulted on specific emails as to their content being work-related or not. Clinton did not have any conversations regarding procedures if any potentially classified information was discovered during the review of her emails because she had no reason to believe classified information would be found in her email account.” (Federal Bureau of Investigation, 9/2/2016)
Clinton’s testimony differs from the known facts in one important detail. She claims that she didn’t direct her lawyers (David Kendall, Cheryl Mill, and Heather Samuelson) to begin the sorting process until she was formally asked about her email records at the same time other former secretaries of states were. That took place on October 28, 2014. The sorted work-related emails were given to the State Department on December 5, 2014, a little over one month later. However, Samuelson, the Clinton lawyer who did most of the sorting, said in her FBI interview that the sorting process took “several months.”
Furthermore, it is known that after the State Department informally asked for Clinton’s emails, Samuelson was first given some of Clinton’s emails to sort (all of those involving .gov email addresses) in late July 2014, and then was given all of Clinton’s emails to complete the sorting in late September 2014.
In late March 2015, Paul Combetta, an employee of Platte River Networks (PRN), deleted all of Clinton’s emails from her private server and then used a computer program to permanently wipe them. Two of Clinton’s lawyers, Cheryl Mills and David Kendall, had communications with Combetta in that time period, including speaking in a conference call in which he also participated just after the deletions were done, on March 31, 2015.
However, Clinton is interviewed by the FBI on this date, and the FBI will later report that “Clinton stated she was… unaware of the March 2015 email deletions by PRN.” (Federal Bureau of Investigation, 9/2/2016)
Clinton’s claim is particularly surprising considering that in August 2015, it was reported that Clinton’s campaign had acknowledged “that there was an attempt to wipe [Clinton’s private] server before it was turned over last week to the FBI.” (NBC News, 8/19/2015)
At the beginning of Clinton’s tenure as secretary of state, the State Department outfitted Clinton’s houses in Whitehaven, Washington, DC, and Chappaqua. New York, with a Sensitive Compartmented Information Facility (SCIF) so she could read highly classified documents. According to the FBI’s notes of Clinton’s July 2, 2016 FBI interview, Clinton claims, “Both SCIFs had a combination lock that only Clinton knew the combination to. … It was Clinton’s practice to lock the SCIF every time it was vacated.”
However, according to the FBI interview of Clinton aide Huma Abedin, “the SCIF door at the Whitehaven residence was not always locked, and Abedin, Hanley, and [redacted] had access to the SCIF.” Additionally, “Investigation determined the Chappaqua SCIF was not always secured, and Abedin, [Clinton aide Monica] Hanley, and [redacted] had routine access to the SCIF.”
Furthermore, the FBI will later report, “According to Abedin, [Bill Clinton aide Justin] Cooper, and [redacted], there were personally-owned desktop computers in the SCIFs in Whitehaven and Chappaqua. Conversely, Clinton stated to the FBI she did not have a computer of any kind in the SCIFs in her residences.” (Federal Bureau of Investigation, 9/2/2016)
When Clinton is interviewed by the FBI for three and a half hours, she often fails to give clear answers. According to CNN, “Clinton repeatedly told the FBI she couldn’t recall key details and events related to classified information procedures…” The FBI’s summary of the interview, released in September 2016, will indicate “Clinton told investigators she either does not ‘recall’ or ‘remember’ at least 39 times — often in response to questions about process, potential training, or the content of specific emails.” (CNN, 9/2/2016)
Mediaite will list 40 times when she says she couldn’t remember or recall something. (Mediaite, 9/2/2016)
The Washington Post will similarly note, “she repeatedly told agents she could not recall important details or specific emails she was questioned about.” Some of her forgetfulness is hard to believe, such as an observation by the Post that she claimed she “did not know much about how the government classified information. For instance, she said she did not pay attention to the difference between levels of classification, like ‘top secret’ and ‘secret,’ indicating she took ‘all classified information seriously.'” Additionally, when she was shown with the (C) marking, which is commonly used by the department to indicate classified information, she didn’t recognize it. (The Washington Post, 9/2/2016)
The FBI summary will mention that “in December of 2012, Clinton suffered a concussion and then around the New Year had a blood clot. Based on her doctor’s advice, she could only work at State for a few hours a day and could not recall every briefing she received.” (Federal Bureau of Investigation, 9/2/2016)
FBI Director James Comey gives a public speech in front of a group of reporters. The timing is surprising, since this brings an end to the FBI’s investigation of Clinton’s email practices, and just a Sunday and the Fourth of July holiday separate this from the FBI’s interview of Clinton on July 2, 2016. Comey spends most of his speech criticizing Clinton, but ends it by saying he will not recommend that the Justice Department pursue any indictment of Clinton or her aides.
Comey’s fifteen-minute speech includes the following information, in order, with key phrases bolded to assist in understanding.
Comey begins by describing the FBI investigation:
- The investigation started with a referral from Intelligence Community Inspector General Charles McCullough, and “focused on whether classified information was transmitted” on Clinton’s personal email server during her time as secretary of state. It specifically “looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.” The FBI “also investigated to determine whether there is evidence of computer intrusion in connection with the personal email server by any foreign power, or other hostile actors.”
- The FBI found that Clinton “used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send email on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways…”
- The FBI analyzed the over 30,000 work emails that Clinton did turn over to the State Department in December 2014, working with other US government departments to determine which emails contained truly classified information at the time they were sent, and which ones were justifiably classified later.
From the group of 30,068 emails Clinton returned to the State Department, “110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was ‘top secret’ at the time they were sent; 36 chains contained ‘secret’ information at the time; and eight contained ‘confidential’ information, which is the lowest level of classification. Separate from those, about 2,000 additional emails were ‘up-classified’ to make them ‘confidential’; the information in those had not been classified at the time the emails were sent.”
- It had previously been reported that the FBI had recovered most or all of the 31,830 emails that Clinton had deleted, allegedly because they contained personal information only. However, Comey reveals that was not the case, and thousands of emails were not recovered. He gives an example of how when one of Clinton’s servers was decommissioned in 2013, the email was removed and broken up into millions of fragments.
- The FBI “discovered several thousand work-related emails” that were not included in the 30,068 emails Clinton returned to the State Department, even though Clinton claimed under oath that she had returned all her work-related emails. The FBI found these after they “had been deleted over the years and we found traces of them on devices that supported or were connected to the private email domain.” Others were found in the archived government email accounts of other government employees whom Clinton frequently communicated with. Still others were found “from the laborious review of the millions of email fragments” of the server decommissioned in 2013.
- Out of these additional work emails, three were classified at the time they were sent or received – none at the ‘top secret’ level, one at the ‘secret’ level, and two at the ‘confidential’ level. None were found to have been deemed classified later.
- Furthermore, Comey claims “we found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them. Our assessment is that, like many email users, Secretary Clinton periodically deleted emails or emails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her emails, so it is not surprising that we discovered emails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 emails to the State Department.”
However, he also admits that “It could also be that some of the additional work-related emails we recovered were among those deleted as ‘personal’ by Secretary Clinton’s lawyers when they reviewed and sorted her emails for production in 2014.” He claims that the three lawyers who sorted the emails for Clinton in late 2014 (David Kendall, Cheryl Mills, and Heather Samuelson) “did not individually read the content of all of her emails…” Instead, they used keyword searches to determine which emails were work related, and it is “highly likely their search terms missed some work-related emails” that were later found by the FBI elsewhere.
- Comey states it is “likely” that some emails may have disappeared forever. because Clinton’s three lawyers “deleted all emails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.” But he says that after interviews and technical examination, “we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”
Comey then begins stating his findings:
- “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
- As an example, he points out that “seven email chains concern matters that were classified at the ‘Top Secret/Special Access Program’ [TP/SAP] level when they were sent and received. These chains involved Secretary Clinton both sending emails about those matters and receiving emails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.”
- He adds that it was a similar situation with emails classified at the “secret” level when they were sent, although he doesn’t specify how many.
- He comments, “None of these emails should have been on any kind of unclassified system, but their presence is especially concerning because all of these emails were housed on unclassified personal servers not even supported by full-time security staff, like those found at departments and agencies of the US government—or even with a commercial service like Gmail.”
- He notes that “only a very small number of the emails containing classified information bore markings indicating the presence of classified information. But even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”
- He then criticizes the State Department as a whole. The FBI found evidence that “the security culture” of the State Department “was generally lacking in the kind of care for classified information found elsewhere in the government.” This was especially true regarding the use of unclassified email systems.
- Then he addresses whether “hostile actors” were able to gain access to Clinton’s emails. Although no direct evidence of any successful hacking was found, he points out that “given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal email domain was both known by a large number of people and readily apparent. She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.”
After laying out the evidence of what the FBI found, Comey moves to the FBI’s recommendation to the Justice Department. He admits that it is highly unusual to publicly reveal the FBI’s recommendation, but “in this case, given the importance of the matter, I think unusual transparency is in order.”
Then he comes to these conclusions:
- “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.”
- To justify this decision, he claims he examined other cases involving the mishandling or removal of classified information, and “we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”
- He then says, “To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now. As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.”
- He concludes by saying the FBI’s investigation was done competently, honestly, and independently, and without any kind of outside influence.
He doesn’t address the possibility of recommending the indictment of any of Clinton’s aides or other figures like Sid Blumenthal or Justin Cooper. He also doesn’t make any mention of the Clinton Foundation, though there have been media reports the FBI has been investigating it as well. After finishing his speech, he leaves without taking any questions from the media. (Federal Bureau of Investigation, 7/5/2016)
In his public speech ending the FBI’s Clinton investigation, FBI Director James Comey mentions Clinton’s emails contained eight chains containing “top secret’ information, instead of the previously reported seven chains of 22 emails. The New York Times reports that it is “not immediately clear what subject the eighth chain Mr. Comey cited involved, but his statement means that more than 22 emails already disclosed included ‘top secret’ information. Officials at the FBI did not respond to inquiries seeking further explanation.” (The New York Times, 7/5/2016)
On February 3, 2016, Representative Chris Stewart (R), a member of the House Intelligence Committee who viewed Clinton’s 22 “top secret” emails, claimed that there are seven more Clinton emails with a classification of “top secret” that the government has not revealed. (The Washington Examiner, 3/3/2016) Comey’s remarks suggest Stewart was correct.
This is according to public comments by FBI Director James Comey. Three of these were not included in the emails Clinton turned over to the State Department, but were discovered by the FBI through other means. (Federal Bureau of Investigation, 7/5/2016)
The New York Times comments that this means those emails “should never have been sent or received on an unclassified computer network — not hers, not even the State Department’s official state.gov system. That fact refutes the core argument she and others have made: that the entire controversy turned on the overzealous, after-the-fact classification of emails as they were being made public under the Freedom of Information Act [FOIA], rather than the mishandling of the nation’s secrets.” (The New York Times, 7/5/2016)
Although FBI Director James Comey announces he will not recommend an indictment of Clinton, comments in his public speech reveal information that could be very politically damaging for Clinton. It was previously known that Clinton’s emails contained 22 “top secret” emails in seven different email chains. However, Comey reveals, “Those chains involved Secretary Clinton both sending and receiving emails about those same matters.”
This contradicts previous news reports that Clinton had only been the recipient of “top secret” emails. Comey also says that seven email chains contain “top secret / special access program” (TP/SAP) information, which is above top secret, plus one more previously unknown email chain at the “top secret” level. (Federal Bureau of Investigation, 7/5/2016)
The New York Times notes, “Those emails have been widely reported to include information about the Central Intelligence Agency’s program to use drones to track and kill terrorism suspects. … Only a small number of officials are allowed access to those programs, which are the nation’s most sensitive intelligence operations.”
Another 36 chains were “secret,” which means it includes information that “could be expected to cause serious damage to the national security.” Eight more chains had information classified at the “confidential” level.
The Times comments that Comey’s speech “was, arguably, the worst possible good news Mrs. Clinton’s presidential campaign could have hoped for: no criminal charges, but a pointed refutation of statements like one she flatly made last August,” when she said, “I did not send classified material.” (The New York Times, 7/5/2016) (Federal Bureau of Investigation, 7/5/2016)
In a July 5, 2016 public speech, FBI Director James Comey addresses the possibility that Clinton’s emails were accessed by outsiders. He says, “We did not find direct evidence that Secretary Clinton’s personal email domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal email domain was both known by a large number of people and readily apparent. She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.” (Federal Bureau of Investigation, 7/5/2016)
The next day, the New York Times reports that although Comey said there was no “direct evidence” Clinton’s email account had been successfully hacked, “both private experts and federal investigators immediately understood his meaning: It very likely had been breached, but the intruders were far too skilled to leave evidence of their work.”
The Times says that Comey’s comments were a “blistering” critique of Clinton’s “email practices that left Mrs. Clinton’s systems wide open to Russian and Chinese hackers, and an array of others.” However, “the central mystery — who got into the system, if anyone — may never be resolved.”
Adam Segal, a cybersecurity expert at the Council on Foreign Relations (CFR), says, “Reading between the lines and following Comey’s logic, it does sound as if the FBI believes a compromise of Clinton’s email is more likely than not. Sophisticated attackers would have known of the existence of the account, would have targeted it, and would not have been seen.”
Before Comey’s comments, Clinton and her spokespeople had said on numerous occasions that her server had never been hacked. In an October 2015 interview, President Obama came to a similar conclusion about her server: “I don’t think it posed a national security problem.”
The Times also comments that Comey’s “most surprising suggestion” may have been his comment that Clinton used her private email while in the territory of “sophisticated adversaries.” This is understood to mean China and Russia and possibly a few more countries.
Former government cybersecurity expert James Lewis says, “If she used it in Russia or China, they almost certainly picked it up.” (The New York Times, 7/6/2016)
Cybersecurity consultant Morgan Wright says the most likely suspects are Russia, China and Israel, “in that order.”
Ben Johnson, a former National Security Agency official and security strategist, says “Certainly foreign military and intelligence services” would have targeted Clinton’s emails. “They’re going to have a lot of means and motives to do this.” He also says it wasn’t just likely countries such as China and Russia, but “any country that’s looking to potentially have adversarial relations with us or just [desires] more relations with us.” He specifically cites Middle East countries specifically as having a likely motive. (Politico, 7/5/2016)
One day after FBI Director James Comey announced that he would not give the Justice Department a recommendation to indict Clinton, Attorney General Loretta Lynch says the Justice Department agrees with Comey and will not pursue the indictment. Comey did not publicly discuss Clinton’s former aides, but Lynch says there will not be any indictments of her aides either. She also announces that this closes the investigation into Clinton’s email practices during her tenure as secretary of state.
Lynch says, “Late this afternoon, I met with FBI Director James Comey and career prosecutors and agents who conducted the investigation of Secretary Hillary Clinton’s use of a personal email system during her time as Secretary of State. I received and accepted their unanimous recommendation that the thorough, year-long investigation be closed and that no charges be brought against any individuals within the scope of the investigation.”
On July 1, 2016, Lynch said she would accept whatever recommendations Comey and her top prosecutors would give after it was discovered she’d had a meeting with Bill Clinton, Hillary’s husband, several days earlier.
Lynch’s announcement comes one day before Comey is scheduled to testify before the House Oversight Committee, in order to explain his decision to not recommend any indictments.
Republican National Committee (RNC) Chair Reince Priebus criticizes Lynch’s decision, saying, “By so blatantly putting its political interests ahead of the rule of law, the Obama administration is only further eroding the public’s faith in a government they no longer believe is on their side.” (Politico, 7/6/2016)
On July 5, 2016, FBI Director James Comey gave a fifteen-minute public speech, in which he criticized Clinton’s handling of classified information but announced he would not recommend that she be indicted for any crime. He did not take any questions from reporters afterwards. But only two days later, he appears at a Congressional hearing to further explain and defend his comments.
Comey was invited by Representative Jason Chaffetz (R), who is chair of the House Oversight and Government Reform Committee, to speak in front of the committee. Comey takes questions for four and a half hours.
Not surprisingly, Republicans use the hearing to look for more evidence to attack Clinton with, while Democrats attempt to defend Clinton’s behavior.
The New York Times notes that Comey defended himself “against an onslaught of Republican criticism for ending the investigation into Hillary Clinton’s emails, but he also provided new details that could prove damaging to her just weeks before she is to be named the Democrats’ presidential nominee.”
He “acknowledged under questioning that a number of key assertions that Mrs. Clinton made for months in defending her email system were contradicted by the FBI’s investigation.” However, he also defends his decision not to seek any indictment. (The New York Times, 7/7/2016)
Comey repeats some of the main points he made in his July 5, 2016 speech: “I think she was extremely careless. I think she was negligent — that I could establish. What we can’t establish is that she acted with the necessary criminal intent.” (CNN, 7/7/2016)
In January 2016, it was reported that the State Department had started its own investigation into Clinton’s email practices while Clinton was secretary of state. (This is separate from the State Department inspector general’s investigation, which concluded in late May 2016). However, this investigation was put on hold in March 2016 in deference to the FBI’s investigation. Now that the FBI finished its investigation on July 5, 2016, the State Department is resuming its own investigation.
Department spokesperson John Kirby announces the resumption, but he doesn’t reveal many details about it. He also sets no deadline for when it will be completed.
It is believed the investigation will consider administrative sanctions against Clinton and her aides. Although most of them are out of government, they could face some problematic penalties, such as the loss of security clearances, which could prevent future government employment. The investigation is likely looking into the past behavior of aides such as Cheryl Mills, Huma Abedin, and Jake Sullivan, as well as Clinton herself. (The Associated Press, 7/7/2016)
The BBC comments that this means “Hillary Clinton – and some of her most trusted senior advisors – will twist in the wind a while longer. The State Department’s renewed inquiry into possible mishandling of classified information in emails is not nearly as serious as the recently closed FBI criminal investigation, but it keeps the email server story alive for an indeterminate period of time.”
Clinton cannot lose her security clearance if she’s elected president in November 2016, but she could be prevented from including some of her most trusted aides into positions in her administration if they lose their security clearances. The State Department’s investigation also is likely to help keep the controversy alive at least through Election Day. (BBC, 7/7/2016)
In a Congressional hearing to clarify his public speech ending the FBI’s Clinton investigation given on July 5, 2016, FBI Director James Comey is asked questions related to testimony Clinton gave under oath to the House Benghazi Committee on October 22, 2015. Comey’s answers directly contradict what Clinton said then, for instance Clinton’s assertion that there was “nothing marked classified on my e-mails either sent or received.” He also contradicts her claims that there was only one private email server while she was secretary of state, and that her lawyers read each of her over 60,000 emails while sorting them.
As a result, Jason Chaffetz (R), chair of the House Oversight Committee, asks, “Did the FBI investigate her statements under oath on this topic?”
Comey replies, “Not to my knowledge. I don’t think there’s been a referral from Congress.”
Chaffetz then asks, “Do you need a referral from Congress to investigate her statements under oath?”
“Sure do,” Comey responds.
Chaffetz says, “You’ll have one. You’ll have one in the next few hours.”
The Washington Post later confirms that, by the end of the day, Chaffetz does formally request the FBI to investigate whether Clinton misled Congress.
The Post also notes, “While the just-concluded FBI investigation was requested by the intelligence community’s inspector general, a new probe of Clinton would be a product of Congress — a distinction that carries obvious partisan implications.” However, “That is a risk Republicans are ready to take.” (The Washington Post, 7/7/2016)
Chaffetz’s request is sent to Channing Phillips, the US attorney for the District of Columbia. (Salon, 9/6/2016)
As part of a Freedom of Information Act (FOIA) lawsuit by Vice News reporter Jason Leopold, the State Department reveals more information about seven chains of 22 “top secret” emails involving Clinton. (Curiously, FBI Director James Comey mentioned on July 5, 2016 that there actually were eight “top secret” email chains, but the eighth chain is not mentioned by the department.)
The contents of the emails remain totally classified, but previous media reports indicate that most of them discussed approval for covert CIA drone strikes in Pakistan, and some of them may have identified CIA operatives working undercover.
For the first time, the department reveals which years the emails were sent and who sent and received them. All the emails were from 2011 or 2012 – the State Department began to have a say in approving CIA drone strikes in 2011. Nine of the emails were written by Clinton, and the other thirteen were written by her aide Jake Sullivan. Two were also cc’d by Sullivan to her chief of staff Cheryl Mills and/or Deputy Secretary of State William Burns.
The State Department disclosure comes in the form of a “Vaughn Index,” which is a document used by government departments in FOIA lawsuits to justify the withholding of information under various FOIA exemptions. Vaughn Indexes contain at least some information about the withheld text, to justify keeping it redacted, but this one does not. Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, says that according to government regulations, “State’s document does not fulfill the requirements for a Vaughn index.” (Vice News, 7/22/2016) (The Hill, 7/22/2016)
The documents include the FBI’s summary of the interview of Clinton on July 1, 2016, known as a 302.
The State Department wanted to review the 302 interview summaries first, but the FBI ignored that request. On July 7, 2016, FBI Director James Comey said when it came to documents relating to the FBI’s Clinton investigation, he was committed to delivering to Congress “everything I can possibly give you under the law and to doing it as quickly as possible.”
Representative Adam Schiff (D) criticizes the move. “With the exception of the classified emails that had been found on the private server, I can see little legitimate purpose to which Congress will put these materials. Instead, as the now-discredited Benghazi Committee demonstrated, their contents will simply be leaked for political purposes. This will neither serve the interests of justice nor aid Congress in its responsibilities and will merely set a precedent for the FBI to turn over closed case files whenever one party in Congress does not like a prosecutorial decision. This has been done in the name of transparency, but as this precedent chills the cooperation of other witnesses in the future, I suspect the Department of Justice will later come to refer to it by a different name — mistake.”
The documents can be seen by members of Congress, but they are not allowed to publicly reveal any of it. An FBI spokesperson says, “The material contains classified and other sensitive information and is being provided with the expectation it will not be disseminated or disclosed without FBI concurrence.”
However, Senator Charles Grassley (R), chair of the judiciary committee, says, “On initial review, it seems that much of the material given to the Senate today, other than copies of the large number of emails on Secretary Clinton’s server containing classified information, is marked ‘unclassified/for official use.’ The FBI should make as much of the material available as possible.”
Clinton campaign spokesperson Brian Fallon also wants to see the material publicly release, saying, “This is an extraordinarily rare step that was sought solely by Republicans for the purposes of further second-guessing the career professionals at the FBI. We believe that if these materials are going to be shared outside the Justice Department, they should be released widely so that the public can see them for themselves, rather than allow Republicans to mischaracterize them through selective, partisan leaks.” (Politico, 8/16/2016)
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