February 2016: The Justice Department declines to give the FBI Clinton Foundation investigation the legal authority for more investigative powers, but the investigation continues anyway.

In the summer of 2015the FBI begins investigating the Clinton Foundation. By early 2016, four FBI field offices (New York, Los Angeles, Washington and Little Rock, Arkansas) have been pursuing information about the foundation.

In February 2016, FBI officials make a presentation to the Justice Department, apparently trying to get more legal authority, such as subpoena power, which can only come from the Justice Department agreeing to empanel a grand jury. The FBI had gained evidence from at least two informants who came up in other investigations and were critical of the foundation. It also may have learned of a suspicious bank transaction by this time.

Assistant Attorney General, Leslie Caldwell (Credit: Jason Doiy)

Assistant Attorney General, Leslie Caldwell (Credit: Jason Doiy)

The meeting is held in Washington, DC, and is attended by FBI officials, prosecutors from the Justice Department’s public integrity section, and Leslie Caldwell, the head of the Justice Department’s criminal division. Robert Capers, the US attorney for the Eastern District of New York, will later play a key role in the conflict between the FBI and Justice Department, but neither he nor prosecutors from his office attend. (The Wall Street Journal, 11/2/2016)

The Wall Street Journal will report on this in October 2016: “By all accounts, the meeting didn’t go well. Some said that is because the FBI didn’t present compelling evidence to justify more aggressive pursuit of the Clinton Foundation, and that the career anti-corruption prosecutors in the room simply believed it wasn’t a very strong case. Others said that from the start, the Justice Department officials were stern, icy, and dismissive of the case. ‘That was one of the weirdest meetings I’ve ever been to,’ one participant told others afterward, according to people familiar with the matter.”

The Journal will add, “Anti-corruption prosecutors at the Justice Department told the FBI at the meeting they wouldn’t authorize more aggressive investigative techniques, such as subpoenas, formal witness interviews, or grand jury activity. But the FBI officials believed they were well within their authority to pursue the leads and methods already under way, these people said.”

As a result, the FBI foundation investigation(s) will continue, but without subpoena power and other common investigative powers. (The Wall Street Journal, 10/30/2016)

Not long after the meeting, the Justice Department will allegedly send a message for all offices to “stand down,” but that won’t stop the investigation either.

May 3, 2016: Clinton’s email scandal is likened to the charges that led to David Petraeus’ conviction.

Nathan Sales (Credit: Syracuse University)

Nathan Sales (Credit: Syracuse University)

Law professor Nathan Sales compares a possible indictment of Clinton with the conviction of former CIA Director David Petraeus in 2013.

He notes that Petraeus did not ultimately plead guilty to sharing classified information with his mistress and biographer, but to charges related to keeping the information in a desk drawer inside his house. “The conduct that is being investigated [in Clinton’s case]—keeping the documents on an unclassified server—that’s kind of the digital equivalent of locking it in your desk drawer, which is ultimately what did in General Petraeus. […] Based on what we do know so far, I think there is a not insignificant chance that a grand jury could look at the facts and say, ‘Actually, she may have violated various laws protecting classified information.’” (Rolling Stone, 5/3/2016)

Mid-July 2016: The FBI reorganizes its Clinton Foundation investigation, despite the involvement of an FBI official with a potential conflict of interest.

On July 5, 2016, FBI Director James Comey announced that he would not recommend indicting anyone targeted in the FBI’s Clinton email investigation. That effectively closed the investigation. The FBI still has an ongoing investigation in the Clinton Foundation, with four FBI field offices taking part.

Andrew McCabe (Credit: public domain)

Andrew McCabe (Credit: public domain)

About one week after Comey’s announcement, the FBI seeks to refocus the Clinton Foundation investigation. Andrew McCabe is the associate deputy FBI director at the time, the number three position in the FBI, but by the end of the month he is promoted to deputy FBI director, the number two position. McCabe decides the FBI’s New York office will take the lead, with assistance from the Little Rock, Arkansas office.

The Washington field office will instead focus on an investigation involving Virginia Governor Terry McAuliffe (D). McAuliffe was a Clinton Foundation board member until he became governor in 2013, and some media reports indicate the investigation concerns a Chinese businessperson who donated millions of dollars to the foundation. McCabe recused himself from the McAuliffe investigation because political organizations linked to McAuliffe donated over $700,000 to the state senate election campaign of McCabe’s wife in 2015. However, McCabe does not recuse himself from the Clinton Foundation investigation.

According to the Journal, “Within the FBI, the decision was viewed with skepticism by some, who felt the probe would be stronger if the foundation and McAuliffe matters were combined. Others, particularly Justice Department anti-corruption prosecutors, felt that both probes were weak, based largely on publicly available information, and had found little that would merit expanded investigative authority.”

The Justice Department previously declined to empanel a grand jury for the foundation investigation, and still doesn’t give it the additional investigative powers that would come with grand jury backing. (The Wall Street Journal, 10/30/2016)

CNN will add that as part of the reorganization, agents in the Los Angeles, Little Rock, and Washington, DC. field offices, are told to turn over their files to the FBI New York office. “Agents were told to continue their work. But the order to the other field offices angered agents there.”

Additionally, during this meeting or in subsequent meetings over the next month, the New York office is told not to take any major steps in the investigation until after the US presidential election on November 8, 2016. CNN will report that “some agents [in New York] chafed at the decision that they had to sit and wait until after the election.” (CNN, 11/2/2016)

August 12, 2016: A Justice Department official allegedly attempts to shut down the FBI’s Clinton Foundation investigation, but it continues.

Since 2015 or earlier, multiple FBI field offices have been involved in an investigation of the Clinton Foundation. However, in February 2016, the FBI appealed to the Justice Department for additional investigative powers, such as having a grand jury empaneled to gain subpoena power, but the department said no. The investigation continued anyway, without the additional powers the department can give.

Andrew McCabe, left, and Attorney General Loretta Lynch, listen during a news conference, Wednesday, July 20, 2016. (Credit: Jacquelyn Martin / The Associated Press)

Andrew McCabe, left, and Loretta Lynch, listen during a news conference, July 20, 2016. (Credit: Jacquelyn Martin / The Associated Press)

In October 2016, the Wall Street Journal will report that on August 12, 2016, an unnamed senior Justice Department official calls Andrew McCabe (who was promoted to deputy FBI director one month earlier) to voice his displeasure at finding that New York FBI agents are still openly pursuing the Clinton Foundation investigation during the election season, with Hillary Clinton being one of the major candidates.

McCabe allegedly replies that FBI agents still have the authority to pursue the issue as long as they don’t use methods requiring Justice Department approvals.

The Journal will report, “The Justice Department official was ‘very pissed off,’ according to one person close to Mr. McCabe, and pressed him to explain why the FBI was still chasing a matter the department considered dormant. Others said the Justice Department was simply trying to make sure FBI agents were following longstanding policy not to make overt investigative moves that could be seen as trying to influence an election. Those rules discourage investigators from making any such moves before a primary or general election, and, at a minimum, checking with anti-corruption prosecutors before doing so.”

McCabe allegedly asks the department official, “Are you telling me that I need to shut down a validly predicated investigation?”

After a pause, the official allegedly replies, “Of course not.”

The Journal will further report, “For Mr. McCabe’s defenders, the exchange showed how he was stuck between an FBI office eager to pour more resources into a case and Justice Department prosecutors who didn’t think much of the case, one person said. Those people said that following the call, Mr. McCabe reiterated past instructions to FBI agents that they were to keep pursuing the work within the authority they had.”

But according to “others further down the FBI chain of command,” FBI agents “were given a much starker instruction on the case: ‘Stand down.’ When agents questioned why they weren’t allowed to take more aggressive steps, they said they were told the order had come from the deputy director—Mr. McCabe. Others familiar with the matter deny Mr. McCabe or any other senior FBI official gave such a stand-down instruction.”

According to the Journal, some agents within the FBI believe that McCabe and other FBI leaders weren’t defending the investigation strongly enough, while others believe that McCabe’s behavior was correct. Either way, the investigation continues, but still without that subpoena power that can only come from Justice Department support. (The Wall Street Journal, 10/30/2016)

McCabe has a conflict of interest with Virginia Governor Terry McAuliffe, who in turn is being investigated by the FBI for activities that could involve the Clinton Foundation.

September 28, 2016: Comey suggests he didn’t try to get subpoena power for the Clinton email investigation in order to complete it faster.

Representative Tom Marino (Credit: Getty Images)

Appearing before the House Judiciary Committee, Representative Tom Marino (R) asks FBI Director James Comey why he made immunity deals with key figures in the Clinton email investigation instead of using subpoena power. In particular, he wants to know why deals were made to get access to the laptops of Clinton’s lawyers Cheryl Mills and Heather Samuelson.

Comey replies, “Anytime you’re talking about the prospect of subpoenaing a computer from a lawyer, it involves the lawyer’s practice of law, you know you’re getting into a big Megillah.”

Marino, who was a district attorney and US attorney before being elected to Congress, then asks, “I understand that, clearly. Why did you not decide to go to an investigative grand jury? It would have been cleaner, it would have been much simpler, and you would have had more authority to make these witnesses testify. Not the target, but the witnesses testify. That seems the way to go, Director. We’ve done it thousands of times. This was just too convoluted.”

Comey replies, “Again, I need to steer clear of talking about grand jury use in a particular matter. In general, in my experience, you can often do things faster with informal agreements, especially when you’re interacting with lawyers. In this particular investigation, the investigative team really wanted to get access to the laptops that were used to sort these emails. Those are lawyers’ laptops. That is a very complicated thing. I think they were able to navigate it pretty well to get us access.”

Later in the hearing, Comey adds that the investigation “couldn’t be concluded professionally without doing our best to figure out what was on those laptops. So, getting the laptops was very important to me and to the investigative team.” (Politico, 11/1/2016) (C-SPAN, 9/28/2016)

In contradiction to his answer on this day, in April 2016, he said of the investigation, “The urgency is to do it well and promptly. And ‘well’ comes first.” And in May 2016, he said “I don’t tether to any external deadline” to finish the investigation, such as the Democratic convention in July 2016.

October 12, 2016: An unnamed high-ranking FBI official claims that the “vast majority” of agents working on the FBI’s Clinton email investigation believe Clinton should have been indicted.

The “high-ranking FBI official” speaks to Fox News on the condition of anonymity, but the person’s “identity and role in the case has been verified by FoxNews.com.” According to this source, “No trial level attorney agreed, no agent working the case agreed, with the decision not to prosecute” anyone in the investigation at all, but “it was a top-down decision” by FBI Director James Comey.

The source says that when it came to Clinton specifically, “It is safe to say the vast majority felt she should be prosecuted. We were floored while listening to the FBI briefing [on July 5, 2016] because Comey laid it all out, and then said ‘but we are doing nothing,’ which made no sense to us.” And while it might not have been a totally unanimous decision to recommend Clinton’s indictment, “It was unanimous that we all wanted her [Clinton’s] security clearance yanked.” However, even that never happened, despite it being standard procedure in similar cases.

The source adds that FBI agents were particularly upset that Comey unilaterally made the decision not to indict when the FBI’s role is merely to present an investigative report to the Justice Department. “Basically, James Comey hijacked the [Justice Department]’s role by saying ‘no reasonable prosecutor would bring this case.’ The FBI does not decide who to prosecute and when, that is the sole province of a prosecutor. … I know zero prosecutors in the [Justice Department]’s National Security Division who would not have taken the case to a grand jury. One was never even convened.” Without a grand jury, FBI agents were not allowed to issue subpoenas or search warrants and could only request evidence and interviews.

The source also complains that the FBI required its agents and analysts involved in the investigation to sign non-disclosure agreements. “This is unheard of, because of the stifling nature it has on the investigative process.”

Furthermore, immunity deals were made with five key figures in the investigation: Cheryl Mills, Bryan Pagliano, Paul Combetta, John Bentel, and Heather Samuelson. The source says none of them should have been granted immunity if no charges were being brought. “[Immunity] is issued because you know someone possesses evidence you need to charge the target, and you almost always know what it is they possess. That’s why you give immunity. … Mills and Samuelson receiving immunity with the agreement their laptops would be destroyed by the FBI afterwards is, in itself, illegal. We know those laptops contained classified information. That’s also illegal, and they got a pass.”

Additionally, “Mills was allowed to sit in on the interview of Clinton as her lawyer. That’s absurd. Someone who is supposedly cooperating against the target of an investigation [being] permitted to sit by the target as counsel violates any semblance of ethical responsibility.”

The source also comments, “Every agent and attorney I have spoken to is embarrassed and has lost total respect for James Comey and [Attorney General] Loretta Lynch. The bar for [the Justice Department] is whether the evidence supports a case for charges — it did here. It should have been taken to the grand jury.”

Finally, the source claims that many in the FBI and the Justice Department believe Comey and Lynch were motivated by ambition instead of justice. “Loretta Lynch simply wants to stay on as attorney general under Clinton, so there is no way she would indict. James Comey thought his position [heavily criticizing Clinton even as he decides against indicting her] gave himself cover to remain on as director regardless of who wins.”

Andrew Napolitano (Credit: Fox News)

Andrew Napolitano (Credit: Fox News)

Andrew Napolitano, a former judge and judicial analyst for Fox News, also claims to know of many law enforcement agents involved with the Clinton email investigation who have similar beliefs. He says, “It is well known that the FBI agents on the ground, the human beings who did the investigative work, had built an extremely strong case against Hillary Clinton and were furious when the case did not move forward. They believe the decision not to prosecute came from the White House.” (Fox News, 10/12/2016)

The next day, Malia Zimmerman, a co-writer of the article, is questioned on Fox News television. She claims that she has been speaking to other disgruntled FBI agents as well. “They’re saying that the morale is very low and that a lot of them are looking for other jobs. They’re very disappointed. They feel like the agency has been polluted… and they’re embarrassed. They feel like they’ve been betrayed.”

She adds that some of her sources might be willing to speak on the record if they retire or change jobs, which some of them are in the process of doing. But they are currently worried about retaliation. “There are a lot of disgruntled agents, analysts, and [Justice Department] attorneys as well.” These people feel Clinton could have been charged for various reasons, but her 22 “top secret” emails made the most compelling case. (Fox News, 10/13/2016)

October 17, 2016: It is alleged two disgruntled FBI agents complain about Comey’s handling of the FBI’s Clinton email investigation.

The Daily Caller claims to have a transcript of two active FBI agents who were interviewed by an intermediary on October 14, 2016. Both of them are very critical of the way FBI Director James Comey handled the FBI’s Clinton email investigation.

One unnamed FBI agent “who has worked public corruption and criminal cases” says, “This is a textbook case where a grand jury should have convened but was not. That is appalling. We talk about it in the office and don’t know how Comey can keep going.”

The Clinton family home in Chappaqua, New York. (Credit: Kathy Willens / The Associated Press)

The Clinton family home in Chappaqua, New York. (Credit: Kathy Willens / The Associated Press)

This agent also complains, “We didn’t search their house [the Clinton residence in Chappaqua, New York]. We always search the house. The search should not just have been for private electronics, which contained classified material, but even for printouts of such material. … There should have been a complete search of their residence. That the FBI did not seize devices is unbelievable. The FBI even seizes devices that have been set on fire.”

A different unnamed FBI agent who has “worked counter-terrorism and criminal cases” says he was offended by Comey saying: “we” and “I’ve been an investigator.” This agent points out, “Comey was never an investigator or [FBI] agent. The special agents are trained investigators and they are insulted that Comey included them in ‘collective we’ statements in his testimony to imply that the [agents] agreed that there was nothing there to prosecute. All the trained investigators agree that there is a lot to prosecuted, but he stood in the way. … The idea that [the investigation] didn’t go to a grand jury is ridiculous.”

Joseph DiGenova (Credit: public domain)

Joseph DiGenova (Credit: public domain)

Joseph DiGenova, a former US attorney for the District of Columbia, says, “People [inside the FBI] are starting to talk. They’re calling their former friends outside the bureau asking for help. We were asked today to provide legal representation to people inside the bureau and agreed to do so and to former agents who want to come forward and talk. Comey thought this was going to go away. It’s not. People inside the bureau are furious. They are embarrassed. They feel like they are being led by a hack but more than that that they think he’s a crook. They think he’s fundamentally dishonest. They have no confidence in him.” (The Daily Caller, 10/17/2016)

October 30, 2016: A former assistant FBI director criticizes the Clintons, the Clinton Foundation, and the FBI’s Clinton email investigation.

James Kallstrom (Credit: Fox News)

James Kallstrom (Credit: Fox News)

Former Assistant FBI Director James Kallstrom says in an interview, “The Clintons, that’s a crime family, basically. It’s like organized crime. I mean, the Clinton Foundation is a cesspool.”

He also criticizes the FBI’s Clinton email investigation. “The problem here is this investigation was never a real investigation. That’s the problem. They never had a grand jury empaneled, and the reason they never had a grand jury empaneled, I’m sure, is [Attorney General] Loretta Lynch would not go along with that. … The agents are furious with what’s going on, I know that for a fact.”

He also says that he is supporting Republican nominee Donald Trump for president, and calls Clinton a “pathological liar.”

Kallstrom is best known for leading the investigation into the explosion of TWA Flight 800 in the late 1990s. (The Hill, 10/30/2016)

Since July 2016, he has occasionally appeared on Fox News and claimed to be in contact with an increasing number of FBI agents upset with the FBI’s Clinton email investigation.

October 30, 2016: Former Attorney General Mukasey claims Comey is in a no-win situation due to his earlier failure to pursue a vigorous Clinton email investigation.

Michael Mukasey (Credit: The Associated Press)

Michael Mukasey (Credit: The Associated Press)

Michael Mukasey, the US attorney general from 2007 to 2009, writes an editorial in the Wall Street Journal with the title: “The FBI Director’s Dishonorable Choice.”

He suggests that FBI Director James Comey’s recent highly controversial reopening of the FBI’s Clinton email investigation shortly before the 2016 US presidential election is due to earlier mistakes Comey made in the investigation.

“Recall that Mr. Comey’s authority extends only to supervising the gathering of facts to be presented to Justice Department lawyers for their confidential determination of whether those facts justify a federal prosecution. Nonetheless, in July [2016] he announced that ‘no reasonable prosecutor’ would seek to charge her with a crime, although Mrs. Clinton had classified information on a private non-secure server—at least a misdemeanor under one statute; and although she was ‘extremely careless’ in her handling of classified information such that it was exposed to hacking by hostile foreign nations—a felony under another statute; and apparently had caused the destruction of emails—a felony under two other statutes.”

He continues, “Those decisions were not his to make, nor were the reasons he offered for making them at all tenable: that prosecutions for anything but mishandling large amounts of classified information, accompanied by false statements to investigators, were unprecedented; and that criminal prosecutions for gross negligence were constitutionally suspect.”

He also points to immunity deals made with key suspects that even included destroying their computers after limited searches, and a failure to get to the bottom of computer technician Paul Combetta’s destruction of Clinton’s emails in March 2015, supposedly done entirely on his own for no clear motive. “Why would an FBI director, who at one time was an able and aggressive prosecutor, agree to such terms or accept such a fantastic story?”

He also claims that emails between President Obama and Clinton on her private server suggested that “if Mrs. Clinton was at criminal risk for communicating on her non-secure system, so was [Obama].” The FBI needs the cooperation of a grand jury, and only the legal authority of a grand jury would give the FBI subpoena power to conduct a real investigation. If Attorney General Loretta Lynch refused to allow a grand jury, Comey “could have gone public with his request, and threatened to resign if it was not followed. … Instead, Mr. Comey acceded to the apparent wish of President Obama that no charges be brought.”

That lack of courage put Comey in his no-win situation when more evidence happened to come to light shortly before Election Day. (The Wall Street Journal, 10/30/2016)

October 31, 2016: A senator wants to know if the FBI ever asked for subpoena power in the Clinton email investigation, and if not, why not.

Senator Charles Grassley (Credit: Brendan Smialowski / Agence France Press / Getty Images)

Senator Charles Grassley (Credit: Brendan Smialowski / Agence France Press / Getty Images)

Following the October 28, 2016 revelation that FBI Director James Comey has at least partially reopened the FBI’s Clinton email investigation, Senator Charles Grassley (R), chair of the Senate Judiciary Committee, sends him a letter with a series of questions.

He points that in May 2016, “I wrote to you expressing concern about the appearance that political appointees at the Justice Department might be withholding approval for the FBI to seek search warrants and grand jury subpoenas. These standard investigative tools are usually approved in criminal investigations of this scope and importance. However, it remains unclear to this day whether the FBI requested the use of a grand jury in the Clinton email investigation to compel documents and testimony, and if so, whether the [Justice Department] denied that request. These concerns are only magnified by these latest developments [regarding the reopening of the investigation].”

He adds, “If the FBI is denied the ability to gather evidence through compulsory means, Secretary Clinton and her aides have enormous leverage to negotiate extraordinary concessions in exchange for voluntary cooperation. It is critical for the public to know whether the FBI has requested from the Justice Department vital investigative tools such as grand jury subpoenas and search warrants and whether it has been denied access to them.” (Politico, 11/1/2016) (US Congress, 10/31/2016)

Two days later, it will be reported that the FBI never asked the Justice Department for the grand jury legal backing needed for subpoena power, but this has not been officially confirmed.

On September 28, 2016, Comey hinted that he preferred making immunity deals with key witnesses over using subpoena power in order to bring the investigation to a faster conclusion.

 

November 2, 2016: It is revealed that the FBI and Justice Department agreed not to have grand jury subpoenas for the Clinton email investigation, arguing that would lead to a faster conclusion.

CNN reports, “During the Clinton email server investigation, investigators and prosecutors debated whether to issue subpoenas to Clinton’s aides, officials say. Leaders at the FBI and at the Justice Department thought it would be faster to come to voluntary agreements with aides. Subpoenas could cause delays, particularly if litigation is necessary, officials said. And the FBI and Justice Department wanted to try to complete the probe and get out of the way of the 2016 election.”

Presumably this meant it was agreed not to get Justice Department approval to empanel a grand jury, because an FBI investigation cannot issue subpoenas without the legal authority of a grand jury.  (CNN, 11/2/2016)

Two days earlier, Senator Charles Grassley (R) sent FBI Director James Comey a letter asking for an official answer regarding this issue. Comey hinted in September 2016 that he didn’t seek a grand jury in the interest of quickly concluding the investigation.

November 4, 2016: Many political insiders, especially Republicans, say Comey’s letter changed the trajectory of the 2016 presidential race.

Politico asks “a panel of activists, strategists and operatives in 11 swing states” their opinions on the evolving 2016 presidential election campaign. In their latest query, nearly two-thirds of Republicans say that FBI Director James Comey’s October 28, 2016 letter announcing the reopening of the FBI’s Clinton email investigation “fundamentally altered the trajectory of the race.”

One unnamed Republican insider states, “There are a handful of words that can fundamentally alter the trajectory of a race. These include words and phrases like ‘indictment,’ ‘FBI investigation’ and ‘grand jury.’ These are popping with just barely enough time to make a difference in the race, even enough time for ad-makers to change out closing commercials.”

Another unnamed Republican insider says, “That is not how to end a campaign. [Clinton] wins when Trump is the issue. She loses when she is the issue.”

However, only 20 percent of Democratic insiders say the Comey letter changed the trajectory of the race.

One unnamed Democratic insider says, “It changed the race by bringing the map back to normal [meaning a non-landslide win for Clinton]. Pre-FBI, she was going to reach for 400 [electoral votes].” (Politico, 11/4/2016)