1996: Future FBI Director Comey wants to charge Hillary Clinton in the Whitewater investigation.

Cover of Time magazine on April 4, 1994, with the subhead "How the president's men tried to hinder the Whitewater investigation" (Credit: Time Magazine)

Cover of Time magazine on April 4, 1994, with the subhead “How the president’s men tried to hinder the Whitewater investigation” (Credit: Time Magazine)

James Comey is deputy special counsel to the Senate Whitewater Committee. According to Time Magazine in March 2016: “In 1996, after months of work, Comey came to some damning conclusions: Hillary Clinton was personally involved in mishandling documents and had ordered others to block investigators as they pursued their case. Worse, her behavior fit into a pattern of concealment: she and her husband had tried to hide their roles in two other matters under investigation by law enforcement. Taken together, the interference by White House officials, which included destruction of documents, amounted to ‘far more than just aggressive lawyering or political naiveté,’ Comey and his fellow investigators concluded. It constituted ‘a highly improper pattern of deliberate misconduct.’”

However, Comey is not in charge of the case, and his superiors decide not to press charges against Bill or Hillary Clinton in the matter.

In 2013, Comey will be appointed director of the FBI, which will make him the de facto head of the FBI’s investigation into Clinton’s emails that starts in 2015. (Time, 3/31/2016)

June 21, 2013: President Obama nominates James Comey to be the next director of the FBI; Comey starts a ten-year term.

James Comey is sworn in as FBI director by Attorney General Eric Holder on September 4, 2013. (Credit: FBI Archives)

James Comey is sworn in as FBI director by Attorney General Eric Holder on September 4, 2013. (Credit: FBI Archives)

While announcing the nomination, Obama comments, “To know Jim Comey is also to know his fierce independence and his deep integrity. […] [H]e doesn’t care about politics, he only cares about getting the job done. At key moments, when it’s mattered most, he [stood] up for what he believed was right. He was prepared to give up a job he loved rather than be part of something he felt was fundamentally wrong.”

Comey had been the deputy attorney general during the Bush administration. Obama’s comment about giving up a job is reference to a 2004 incident where Comey (and others) threatened to resign unless President Bush canceled a surveillance program before its legal authorization expired. Bush gave in and canceled the program. (The White House, 6/21/2013) 

Comey is approved by the Senate later in June and starts his ten-year term as FBI director on September 4, 2013. (Federal Bureau of Investigation, 9/4/2013) Comey will later be in charge of the FBI when it investigates Clinton’s email scandal.

March 7, 2015—Mid-July 2016: Donations to a state senate election lead to potential conflicts of interests in three FBI investigations for a high-ranking FBI official.

The Clintons stand behind Terry McAuliffe during his inauguration as the Commonwealth of Virginia’s 72nd governor. (Credit: Patrick Semansky / The Associated Press)

Virginia Governor Terry McAuliffe is widely considered the best friend of Bill and Hillary Clinton, and was co-chair of one of Bill’s presidential campaigns and the chair of Hillary’s 2008 presidential campaign. In March 2016, McAuliffe says, “We’re best friends, I’ve been family friends with the Clinton’s for thirty years. It’s a great relationship, we vacationed together for years, we’re just very personal friends…” (The Valley’s Music Place, 3/31/2016)

On March 7, 2015, McAuliffe and other state Democratic Party leaders meet with Dr. Jill McCabe and persuade her to run for a state senator seat in Virginia. Dr. McCabe is a hospital physician who has never run for political office before. This has potentially larger political implications, because her husband is Andrew McCabe, an FBI official who runs the FBI’s Washington, DC, field office at the time.

Dr. Jill McCabe (Credit: Twitter)

Dr. Jill McCabe (Credit: Twitter)

FBI officials will later claim that after the March 7, 2015 meeting, Andrew McCabe seeks ethics advice from the FBI and follows it, avoiding involvement with public corruption cases in Virginia, and also avoiding any of his wife’s campaign activities or events.

Five days before Jill McCabe is asked to run, on March 2, 2015, the New York Times publicly reveals Clinton’s use of a private email address, and her use of a private email server is revealed two days later, starting a major and prolonged political controversy. Jill McCabe announces her candidacy on March 12, 2015.

On July 10, 2015, the FBI’s Clinton email investigation formally begins, although it may have informally begun earlier.

Andrew McCabe and Jill McCabe pose at a campaign event in 2015. (Credit: Sharyl Attkisson)

Andrew McCabe and Jill McCabe pose at a campaign event in 2015. (Credit: Sharyl Attkisson)

Andrew McCabe’s Washington, DC, field office provides personnel and resources to the investigation. At the end of July 2015, he is promoted to assistant deputy FBI director, the number three position in the FBI.

During the 2015 election season, McAuliffe’s political action committee (PAC) donates $467,500 to Jill McCabe’s campaign. Furthermore, the Virginia Democratic Party, ”over which Mr. McAuliffe exerts considerable control,” according to the Wall Street Journal, donates an additional $207,788 to her campaign. “That adds up to slightly more than $675,000 to her candidacy from entities either directly under Mr. McAuliffe’s control or strongly influenced by him.”

This represents more than a third of all the campaign funds McCabe raises in the election. She is the third-largest recipient of funds from McAuliffe’s PAC that year.

Virginia State Senator Dick Black (Credit: Twitter)

Virginia State Senator Dick Black (Credit: Twitter)

On November 3, 2015, Jill McCabe loses the election to incumbent Republican Dick Black. Once the campaign is over, “[Andrew] McCabe and FBI officials felt the potential conflict-of-interest issues ended,” according to the Journal.

In February 2016, Andrew McCabe is promoted to deputy FBI director, the second highest position in the FBI. In this role, he is part of the executive leadership team overseeing the Clinton email investigation, though FBI officials say any final decisions are made by FBI Director James Comey.

However, that is not the only potential conflict of interest. By February 2016, four FBI field offices are conducting investigations of the Clinton Foundation. McAuliffe was a Clinton Foundation board member until he resigned when he became the governor of Virginia in 2013. (The Wall Street Journal, 10/24/2016)

Also, at some point in 2015, if not earlier, the FBI begins conducting an investigation of McAuliffe. When the existence of this investigation is publicly leaked in May 2016, media reports suggest it may involve McAuliffe’s financial relationship with a Chinese businessperson who has donated millions to the foundation. It is also reported that investigators have looked at McAuliffe’s time as a board member of the Clinton Global Initiative (CGI), a yearly conference run by the Clinton Foundation.  (CNN, 5/24/2016)

Andrew McCabe (Credit: Getty Images)

Andrew McCabe (Credit: Getty Images)

In the spring of 2016, Andrew McCabe agrees to recuse himself from the McAuliffe investigation, due to McAuliffe’s donations to Jill McCabe’s election campaign. However, he doesn’t recuse himself from the Clinton Foundation investigation or the Clinton email investigation, despite McAuliffe’s close ties to Bill and Hillary Clinton. (The Wall Street Journal, 10/24/2016)

In mid-July 2016, the FBI seeks to reorganize the Clinton Foundation investigation. McCabe decides the FBI’s New York office should take the lead, while the Washington office that he formerly headed should take the lead with the McAuliffe investigation. The Journal will later report, “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.” However, the decision is implemented.

McCabe also is involved in an effort to shut down the foundation investigation in August 2016, but his role is unclear.

In October 2016, McCabe’s potential conflicts of interest will be revealed by two Wall Street Journal articles. (The Wall Street Journal, 10/30/2016) In early November 2016, the Journal will report that “some [in the FBI] have blamed [McCabe], claiming he sought to stop agents from pursuing the [Clinton Foundation] case this summer. His defenders deny that, and say it was the Justice Department that kept pushing back on the investigation.” (The Wall Street Journal, 11/2/2016)

Around that time, James Kallstrom, the former head of the FBI’s New York office, will say of McCabe, “The guy has no common sense. He should be demoted and taken out of the chain of command.” (The American Spectator, 11/1/2016)

April 23, 2015: Petraeus is given a remarkably lenient plea bargain despite his serious security violations.

CIA Director David Petraeus (Credit: public domain)

CIA Director David Petraeus (Credit: public domain)

A federal judge sentences former CIA director and general David Petraeus to two years of probation and a $100,000 fine for giving his biographer and lover, Paula Broadwell, access to notebooks, classified information about official meetings, war strategy, and intelligence capabilities. Petraeus had been the CIA director from 2011 to 2012, but he was forced to quit due to the scandal. (The New York Times, 4/23/2015) 

The FBI seeks jail time for him, but doesn’t get it due to the plea bargain with the Justice Department. The New York Times will later report that FBI Director James Comey made the case to Attorney General Eric Holder that “Mr. Petraeus deserved to face strenuous charges. But the Justice Department overruled the FBI, and the department allowed Mr. Petraeus to plead guilty to a misdemeanor.” (The New York Times, 10/16/2015) The sentence is considered surprisingly light, given the evidence.

In 2016, the Washington Post will report, “FBI officials were angered by the deal and predicted it would affect the outcome of other cases involving classified information.” One former US law enforcement official will complain the deal “was handled so lightly for his offense there isn’t a whole lot you can do.” (The Washington Post, 3/2/2016)

Shortly After July 6, 2015: FBI Director Comey wants no special treatment for the Clinton email investigation.

John Giacalone (Credit: public domain)

John Giacalone (Credit: public domain)

At some point in late summer, after two inspectors general sent a “security referral” about Clinton’s emails to the FBI on July 6, 2015, FBI Director James Comey meet with John Giacalone, head of the FBI’s National Security Branch. Giacalone briefs Comey on the referral and says he wants to investigate how classified secrets got in the emails and whether anyone had committed a crime in the process.

Comey agrees, but according to Giacalone, “He wanted to make sure it was treated the same way as all other cases.” Giacalone will retire in February 2016, leaving the case to others. (Time, 3/31/2016)

October 22, 2015: Clinton incorrectly claims under oath that her lawyers “went through every single email” before deleting some.

Representative Jim Jordan (Credit: public domain)

Representative Jim Jordan (Credit: public domain)

During Clinton’s testimony under oath before the House Benghazi Committee, Representative Jim Jordan (R) asks Clinton questions about how her emails from her tenure as secretary of state were sorted and some of them deleted in late 2014. He asks, “You have stated that you used a multi-step process to determine which ones were private, which ones were public, which ones belonged to you and your family, which ones belonged to the taxpayer. Who oversaw this multi-step process in making that determination which ones we might get and which ones that were personal?”

Clinton replies, “That was overseen by my attorneys and they conducted a rigorous review of my emails…”

Jordan visually identifies the three lawyers who were known to be involved in the sorting process — David Kendall, Cheryl Mills, and Heather Samuelson — because they are sitting right behind Clinton in the hearing, and Clinton confirms those are the ones. He then asks Clinton what she means by “rigorous.”

Sitting behind Clinton at the Benghazi committee hearing are, starting left in order of appearance, Heather Samuelson, Jake Sullivan, (unidentified man), Cheryl Mills, Katherine Turner and David Kendall. (Credit: Getty Images)

Sitting behind Clinton at the Benghazi committee hearing are, starting left in order of appearance, Heather Samuelson, Jake Sullivan, Phil Schiliro, Cheryl Mills, Katherine Turner and David Kendall. (Credit: Getty Images)

Clinton explains, “It means that they were asked to provide anything that could be possibly construed as work related. In fact, in my opinion — and that’s been confirmed by both the State Department…”

Jordan interrupts, “But I’m asking how — I’m asking how it was done. Was — did someone physically look at the 62,000 emails, or did you use search terms, date parameters? I want to know the specifics.”

Clinton responds, “They did all of that, and I did not look over their shoulders, because I thought it would be appropriate for them to conduct that search, and they did.”

Then Jordan asks, “Will you provide this committee — or can you answer today — what were the search terms?”

Clinton answers, “The search terms were everything you could imagine that might be related to anything, but they also went through every single email.”

When asked for more specifics, she says, “I asked my attorneys to oversee the process. I did not look over their shoulder. I did not dictate how they would do it. I did not ask what they were doing and how they made their determinations.”

After more questioning, Clinton refuses to mention any of the search terms.

Additionally, when asked if there were in fact two servers, she says there was just one.

She also says, “There was nothing marked classified on my emails, either sent or received.”

Jordan concludes his questioning by asking, “If the FBI finds some of these emails that might be deleted, as they’re reviewing your server, will you agree to allow a neutral third party — like a retired federal judge — to review any emails deleted to determine if any of them are relevant to our investigation?”

She dodges giving an answer, despite being further pressed on the issue. (The Washington Post, 10/22/2015)

Trey Gowdy (Credit: Brendan Smialowski / Agence France Presse/ Getty Images)

Trey Gowdy (Credit: Brendan Smialowski / Agence France Presse/ Getty Images)

On July 7, 2016, after concluding the FBI’s investigation into Clinton’s emails, FBI Director James Comey will be questioned under oath by Representative Trey Gowdy (R). Gowdy will refer to Clinton’s testimony on this day when he asks, “Secretary Clinton said her lawyers read every one of the emails and were overly inclusive. Did her lawyers read the email content individually?”

Comey will reply, “No.”

Gowdy will also ask, “Secretary Clinton said she used just one device. Was that true?”

Comey will answer, “She used multiple devices during the four years of her term as secretary of state.”

Gowdy then will ask if it’s true she never sent or received information marked classified on her private email.

Comey will reply, “That’s not true. There were a small number of portion markings on I think three of the documents.”

Later in the hearing, Representative Jason Chaffetz (R) will ask Comey if the FBI has investigated the truthfulness of Clinton’s testimony under oath. After Comey says that would require a referral from Congress, Chaffetz will promise to get him one right away. (Politico, 7/7/2016)

October 22, 2015: FBI Director James Comey comments about the FBI’s Clinton investigation.

FBI Director James Comey testifying before a Congressional committee on October 22, 2015. (Credit: C-Span)

FBI Director James Comey testifying before a Congressional committee on October 22, 2015. (Credit: C-Span)

In a Congressional hearing, he says, “The FBI is working on a referral given to us by inspectors general in connection with former Secretary Clinton’s use of a private email server. As you also know about the FBI, we don’t talk about our investigations while we are doing them. This is one I am following very closely and get briefed on regularly. I’m confident we have the people and resources to do it in the way I believe we do all our work, which is promptly, professionally and independently.” (The Washington Post, 10/22/2015)

October 22, 2015: Clinton incorrectly claims that her emails were stored on only one private server.

151022JimJordanZach GibsonNYT

Representative Jim Jordan asks Clinton pointed questions during the House Benghazi hearing on October 22, 2015. (Credit: Zach Gibson / The New York Times)

During Clinton’s testimony under oath before the House Benghazi Committee, Representative Jim Jordan (R) asks her about her private email server or servers. “[T]here was one server on your property in New York, and a second server hosted by a Colorado company in — housed in New Jersey. Is that right? There were two servers?”

Clinton replies, “No. … There was a… there was a server…”

“Just one?” Jordan presses.

Clinton continues, “…that was already being used by my husband’s [Bill Clinton’s] team. An existing system in our home that I used. And then later, again, my husband’s office decided that they wanted to change their arrangements, and that’s when they contracted with the company in Colorado,” Platte River Networks.

Jordan asks, “And so there’s only one server? Is that what you’re telling me? And it’s the one server that the FBI has?”

Clinton answers, “The FBI has the server that was used during the tenure of my State Department service.”

She dodges giving an answer, despite being further pressed on the issue. (The Washington Post, 10/22/2015)

However, in a public speech on July 5, 2016, FBI Director James Comey will reveal 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… (Federal Bureau of Investigation, 7/5/2016)

Two days later, Comey will be questioned under oath in a Congressional hearing by Representative Trey Gowdy (R). Gowdy will refer to Clinton’s testimony on this day when he asks, “Secretary Clinton said she used just one device. Was that true?”

Comey will answer, “She used multiple devices during the four years of her term as secretary of state.”

Later in the hearing, Representative Jason Chaffetz (R) will promise to give the FBI a referral from Congress so the FBI can investigate the truthfulness of this and other comments Clinton made under oath. (Politico, 7/7/2016)

October 27, 2015: A top Clinton aide private calls James Comey a “bad choice” for FBI director.

Eric Schultz (Credit: Getty Images)

Eric Schultz (Credit: Getty Images)

Clinton’s communications director Jennifer Palmieri sends an email to Clinton’s campaign chair John Podesta and White House spokesperson Eric Schultz. In it, she forwards a link to a new New York Times article in which FBI Director James Comey suggests that crime could be rising nationwide because police officers are becoming less aggressive due to the “Ferguson effect,” anti-police sentiment following unrest earlier that year in Ferguson, Missouri. Comey’s claim is highly controversial.

Palmieri then comments, “Get a big fat ‘I told you so’ on Comey being a bad choice.”

There is no apparent reply from either Podesta or Schultz.

The email will be released by WikiLeaks in November 2016. (WikiLeaks, 11/3/2016)

December 9, 2015: President Obama is not being briefed about the FBI’s Clinton investigation.

Senator Jeff Cornyn (Credit: US Congress)

Senator Jeff Cornyn (Credit: US Congress)

Speaking to FBI Director James Comey in a Congressional meeting, Senator Jeff Cornyn (R) expresses his concern about political pressure that could be put on the FBI’s investigation into Clinton’s emails and server. Cornyn then asks, “Does the President get briefings on ongoing investigations by the FBI like this?”

Comey replies, “No.”

Then Cornyn asks, “So he would have no way of knowing what the status of the FBI investigation is?”

Comey replies, “Certainly not from briefings from the FBI.” (The Daily Caller, 12/9/2015)

January 29, 2016: Representative Darrell Issa says, “I think the FBI director would like to indict both Huma [Abedin] and Hillary [Clinton] as we speak.”

Representative Darrell Issa (Credit: public domain)

Representative Darrell Issa (Credit: public domain)

“I think he’s in a position where he’s being forced to triple-time make a case of what would otherwise be, what they call, a slam dunk.” Issa is a Republican and he chaired the House Oversight Committee from 2011 to 2015. (The Washington Examiner, 1/29/2016)

March 1, 2016: FBI Director James Comey says he is “very close personally” to the Clinton investigation.

Speaking to Congress, Comey comments about the FBI’s investigation into Clinton’s emails. “As you know, we don’t talk about our investigations. What I can assure you is that I am very close personally to that investigation to ensure that we have the resources we need, including people and technology, and that it’s done the way the FBI tries to do all of its work: independently, competently and promptly. That’s our goal, and I’m confident that it’s being done that way, but I can’t give you any more details beyond that.” (The Hill, 3/1/2016) 

These are very similar to comments Comey made on October 22, 2015.

March 20, 2016: The FBI allegedly is moving towards recommending an indictment of Clinton, but it is facing political pressure not to do so.

The New York Post reports, “FBI chief James Comey and his investigators are increasingly certain that presidential nominee Hillary Clinton violated laws in handling classified government information through her private email server, career agents say.”

One unnamed former official says, “You don’t start granting people close to Clinton immunity unless you are seriously looking at charges against your target.”

However, it is also believed that the Obama White House is putting pressure on Comey not to recommend charges against Clinton. The Post further reports that “some FBI staffers suggest the probe’s at a point where Comey might quit in protest if [the] Justice [Department] ignores a recommendation to pursue a criminal case against Clinton.” (The New York Post, 3/20/2016)

March 30, 2016: The FBI’s Clinton investigation has reportedly reached a “critical stage.”

David Schuster (Credit: public domain)

David Schuster (Credit: public domain)

Reporter David Schuster says, “The FBI, led by Director James Comey, has now finished examining Clinton’s private emails and home server. And the sources add that Comey’s FBI team has been joined by the Justice Department prosecutors. Together, they are now examining the evidence, analyzing relevant laws, and attempting to arrange interviews with key figures in the investigation.

Those interviews, according to attorneys, will include former State Department aide Philippe Reines, former Clinton Chief of Staff Cheryl Mills, and Clinton herself. Soon after those interviews—in the next few days and weeks—officials expect Director Comey to make his recommendation to Attorney General Loretta Lynch about potential criminal charges.” (Mediate, 3/30/2016)

March 31, 2016: Time Magazine reveals some details about the FBI’s Clinton investigation.

“The [FBI] agents have conducted interviews and done forensic analysis of the evidence collected. And they have executed process, the sources say, referring to a category of investigative tools that can include, among other things, subpoenas. As they near the end of the investigation, the agents are preparing to interview several of Clinton’s closest aides, and perhaps the candidate herself, according to the sources, a move Clinton campaign officials say she will comply with. […] [FBI Director James] Comey is keeping a close watch on the investigation, getting briefings from team leaders and personally overseeing the case. Agents have been told they may be polygraphed to prevent leaks, the sources familiar with the probe say.” (Time, 3/31/2016)

March 31, 2016: Fox News claims that FBI Director James Comey is trying to make a case to indict Clinton herself.

Ron Hosko (Credit: Evan Vucci / The Associated Press)

Ron Hosko (Credit: Evan Vucci / The Associated Press)

This is based on an inside source into the FBI investigation of Clinton’s emails. That source says Comey is said to be frequently meeting with Attorney General Loretta Lynch in order to prepare to interview Clinton and her top aides soon. The source says, “In a case like this, you get one shot at the queen” [referring to Clinton]. “The pressures are enormous on the agents, as the case has to be airtight and perfect.”

Ron Hosko, former assistant director of the FBI’s criminal investigative division, says, “This in an incredibly high stakes, high-wire act. Timing is of the essence, but being right is absolutely critical. Comey must be the one to make the case that the law has been broken and a prosecution is recommended.” It is believed that the one approach the FBI is taking is seeing if Clinton or any of her aides can be caught lying under oath during their interviews. If they do, they could be prosecuted for that, as happened to Martha Stewart and many others. (Fox News, 3/31/2016)

April 4, 2016: Comey says quality comes before speed in the FBI’s Clinton investigation.

FBI Director James Comey at Kenyon College, Ohio, on April 6, 2016. (Credit: Carlos Osorio / The Associated Press)

FBI Director James Comey at Kenyon College, Ohio, on April 6, 2016. (Credit: Carlos Osorio / The Associated Press)

FBI Director James Comey says he does not feel he has to conclude the FBI’s investigation into Clinton’s private server before the Democratic National Convention in July 2016. “The urgency is to do it well and promptly. And ‘well’ comes first.” He won’t reveal any details of the investigation, but says that he is keeping close tabs on it “to make sure we have the resources to do it competently.” (Politico, 4/5/2016)

However, in September 2016, after the investigation has been concluded, Comey will say that he didn’t ask for subpoena power so he could finish the investigation faster.

 

 

April 6, 2016: Comey says he’s staying close to the Clinton email investigation.

After a public speech, FBI Director James Comey is asked to comment about the state of the FBI’s investigation into Clinton’s email scandal.

He responds, “I’ve stayed close to that investigation” to ensure that it’s done competently and independently. He adds that it’s important that “we have the resources, the technology, the people, and that there’s no outside influence. So, if I talk about an investigation while it’s going on, there’s a risk that I’ll compromise both the reality and the perception that it’s done honestly, competently, and independently. So, I’m going to say no comment to that.” (Politico, 4/6/2016)

May 11, 2016: FBI Director James Comey says the FBI is conducting an “investigation” into Clinton’s emails and server, not a “security inquiry.”

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)

June 6, 2016: Because of FBI Director Comey, Republican Congresspeople would “probably” accept an FBI decision not to recommend Clinton’s indictment.

Jason Chaffetz (Credit: Lyn DeBruin / The Associated Press)

Jason Chaffetz (Credit: Lyn DeBruin / The Associated Press)

House Oversight Committee Chair Jason Chaffetz (R) is asked if he and other Republicans in Congress would accept no indictment recommendation from the FBI. “Probably, because we do believe in [FBI Director] James Comey. I do think that in all of the government, he is a man of integrity and honesty. […] His finger is on the pulse of this. Nothing happens without him, and I think he is going to be the definitive person to make a determination or a recommendation. We’ll see where that goes.” (Politico, 6/6/2016)

July 1, 2016: Attorney General Loretta Lynch will accept whatever recommendations the FBI and career prosecutors give in the Clinton investigation.

Jonathan Capehart interviews U.S. Attorney General Loretta Lynch at the Aspen Ideas Festival on July 1, 2016. (Credit: MSNBC)

Jonathan Capehart interviews Attorney General Loretta Lynch in Aspen, Colorado, on July 1, 2016. (Credit: MSNBC)

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)

July 5, 2016: FBI Director Comey announces he will not recommend Clinton’s indictment on any charge, but he calls her “extremely careless” in handling highly classified information.

FBI Director James Comey announces his recommendation for Clinton and her aides on July 5, 2016. (Credit: Cliff Owen / The Associated Press)

FBI Director James Comey announces his recommendation in a press conference on July 5, 2016. (Credit: Cliff Owen / The Associated Press)

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.
  • James Comey (Credit: Fox News)

    James Comey (Credit: Fox News)

    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.”
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    The three Clinton attorneys who deleted emails are David Kendall (left), Cheryl Mills (center), and Heather Samuelson (right). (Credit: public domain)

    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.”

James Comey (Credit: NPR)

James Comey (Credit: NPR)

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)

July 5, 2016: The White House says it had no advance notice of the FBI’s decision about Clinton.

President Barack Obama talks with FBI Director James Comey during Comey's installation as FBI director, Monday, Oct. 28,2013, at FBI Headquarters in Washington. (Credit: Charles Dharapak / The Associated Press)

President Barack Obama talks with FBI Director James Comey during his installation as FBI director, Oct. 28,2013. (Credit: Charles Dharapak / The Associated Press)

White House Press Secretary Josh Earnest says, “I can first confirm what [FBI] Director [James] Comey said with regard to the White House, which is that no one from the White House received advance notice of his comments. In fact, no one from the White House received advance notice that he was planning to make comments today.”

Earnest refuses to comment on Comey’s assessment that Clinton and her aides were “extremely careless” in their handling of sensitive classified material, or Comey’s recommendation that he nonetheless would not recommend she be indicted. (Politico, 7/5/2016)

July 5, 2016: It appears Clinton’s emails include 29 at the “top secret” level, instead of the widely reported 22.

Representative Chris Stewart (Credit: public domain)

Representative Chris Stewart (Credit: public domain)

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.

July 5, 2016: 113 of Clinton’s emails contained classified information at the time they were sent, destroying one of Clinton’s main excuses for her actions.

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)

July 5, 2016: A State Department official denies the department generally has lax security.

In his public comments concluding the FBI’s Clinton investigation, FBI Director James Comey not only criticizes Clinton and her aides for being “extremely careless in their handling of very sensitive, highly classified information,” but criticizes the department as a whole. He says that 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 is especially true regarding the use of unclassified email systems.

However, State Department spokesperson John Kirby says, “We’re going to continue to look for ways to improve, but we don’t share the broad assessment made of our institution that there’s a lax culture here when it comes to protecting classified information.” (Federal Bureau of Investigation, 7/5/2016) (The New York Times, 7/5/2016)

July 5, 2016: A former FBI assistant director believes Comey made the case Clinton should be indicted for gross negligence and is puzzled that Comey concluded otherwise.

Chris Swecker (Credit: North Carolina Government Crime Commission)

Chris Swecker (Credit: North Carolina Government Crime Commission)

Chris Swecker is a former FBI assistant director for the Criminal Investigative Division. He comments on FBI Director James Comey’s announcement earlier in the day that the FBI will not recommend that Clinton be indicted. Swecker believes that Comey should have recommended an indictment, as “he seemed to be building a case for that and he laid out what I thought were the elements under the gross negligence aspect of it, so I was very surprised at the end when he said that there was a recommendation of no prosecution. And also, given the fact-based nature of this and the statement that no reasonable prosecutor would entertain prosecution, I don’t think that’s the standard.”

He concludes, “The facts are the facts, and in this case I think there are a lot of things that are very unusual about this.” (MSNBC, 7/5/2016)

 

July 5, 2016: The Clinton campaign applauds FBI Director Comey’s decision ending the FBI’s Clinton investigation.

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Clinton addresses the National Education Association (NEA) in Washington, DC, on July 5, 2016. (Credit: Molly Riley / The Associated Press)

Clinton happens to be giving a prescheduled campaign speech to a convention of the National Education Association (NEA) at the exact time FBI Director James Comey publicly announces he will not recommend Clinton’s indictment. She also doesn’t make any public comment immediately afterwards.

However, Clinton’s spokesperson Brian Fallon says, “We are pleased that the career officials handling this case have determined that no further action by the department is appropriate. As the secretary has long said, it was a mistake to use her personal email and she would not do it again. We are glad that this matter is now resolved.”

The Washington Post notes that Fallon simply ignores “Comey’s criticism of Clinton’s handling of classified material in her email…” (The Washington Post, 7/5/2016)

 

July 5, 2016: Speaker of the House Ryan says Republicans will hold Congressional hearings to learn more about the FBI’s decision to not recommend an indictment for Clinton.

Congressman Paul Ryan (Credit: public domain)

Congressman Paul Ryan (Credit: public domain)

Paul Ryan, the Republican speaker of the House, says he thought FBI Director James Comey was going to recommend prosecution, based on the first part of Comey’s public speech earlier in the day. He says Comey “shredded” Clinton’s defense of her email practices while serving as secretary of state, she had been “grossly negligent,” and “people have been convicted for far less.”

Ryan says the fact that the FBI decided not to recommend charges “underscores the belief that the Clintons live above the law.” He explains Republican hearings will be lead by House Oversight and Government Reform Committee Chair Jason Chaffetz. Ryan also says Clinton should be blocked from accessing classified information as a presidential candidate, and the FBI should release all of its findings regarding the Clinton email investigation. (The Hill, 7/5/2016)

July 5, 2016—November 3, 2016: A retired assistant FBI director claims to be hearing from an increasing number of FBI agents upset at Comey and the FBI’s Clinton email investigation.

James Kallstrom expresses his concern that the agency’s reputation has been sullied by FBI Director James Comey. (Credit: Fox News)

James Kallstrom is interviewed by Megyn Kelly on Fox News, on July 5, 2016. (Credit: Fox News)

On July 5, 2016, former Assistant FBI Director James Kallstrom is interviewed by Fox News journalist Megyn Kelly about FBI Director James Comey’s announcement earlier in the day that he won’t recommend to indict Clinton.

He says, “I have defended him in the past, but those days are over… I thought the events of the last week there was something fishy going on… then he comes to that nonsensical conclusion that really wasn’t his to make.” He adds that he has spoken with about 15 current and former agents who “are basically worried about the reputation of the agency they love, that they’ve worked hard for all their life.” (The Washington Free Beacon, 7/6/2016)

On September 6, 2016, Kallstrom is interviewed by Kelly again, four days after the FBI Clinton email investigation’s final report and Clinton’s FBI interview summary are publicly released. He says he is “shocked and furious and dismayed” at Comey “pull[ing] the old political trick of waiting until a three-day holiday weekend and then releasing information,” as well as how the FBI conducted the interview of Clinton. He adds, “Megyn, I’ve had contact with 50 different people, both inside and outside, retired agents, that are basically disgusted. And, you know, it’s part of the last straw.” (Fox News, 9/6/2016)

On September 28, 2016, Kallstrom speaks on air to Kelly again. He says he has been contacted by hundreds of people, including “a lot of retired agents and a few on the job.” He claims the agents “involved in this thing feel like they’ve been stabbed in the back. … I think we’re going to see a lot more of the facts come out in the course of the next few months. That’s my prediction.”

Kallstrom poses for a Daily Beast article published on November 3, 2016. (Credit: Mary Altaffer)

James Kallstrom on November 3, 2016. (Credit: Mary Altaffer)

On November 3, 2016, the Daily Beast will publish an article largely based on a recent interview with Kallstrom. It will note that he recently endorsed Republican nominee Donald Trump for president. Kallstrom, a former Marine, founded a charity decades ago called the Marine Corps Law Enforcement Foundation. Trump’s personal charity, the Trump Foundation, gave Kallstrom’s charity $1,000,000 in May 2016, $100,000 in March 2016, and another $230,000 in prior years. These are unusually large numbers for Trump’s foundation. When Trump owned casinos in Atlantic City, New Jersey, he allowed Kallstrom’s charity to hold fundraisers for free in them. Kallstrom met Trump on occasion over the years, often during public events.

Kallstrom tells the Daily Beast that he has gotten hundreds and hundreds of calls and emails from both active and retired agents. He claims that in all but two cases the agents have been supportive of what he’s said in his Fox News appearances, except for two agents who told him he should be more supportive of Comey. He claims that he’s never been in contact with agents directly involved with the Clinton email investigation, and has not tried to give them advice.

He says he’s apolitical and a registered independent voter, and although he plans to vote for Trump, he has never been involved in a campaign, including Trump’s. (The Daily Beast, 11/3/2016)

July 5, 2016—July 6, 2016: Comey’s comments indicate it is “very likely” Clinton’s emails were hacked, but solid proof may never be found.

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 (Credit: public domain)

Adam Segal (Credit: public domain)

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)

July 5, 2016: Sanders stays quiet on FBI announcement about Clinton.

Although Bernie Sanders is still running against Clinton for the Democratic presidential nomination, he makes no public comment after FBI Director James Comey both heavily criticizes Clinton’s email practices and also says he doesn’t recommend her indictment on any charges. A Sanders spokesperson confirms that Sanders will not respond to the FBI’s decision.

The Washington Post comments, “Throughout his campaign for the presidency, Sanders refused to attack Clinton over the email episode. He alternately ruled it out as a legitimate issue, and hectored the media for focusing on scandal instead of substance.” (The Washington Post, 7/5/2016)

July 5, 2016—July 6, 2016: Trump criticizes FBI Director Comey’s decision not to recommend Clinton’s indictment, saying the “system” is “rigged.”

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A Donald Trump tweet on July 6, 2016 (Credit: public domain)

Presumptive Republican presidential nominee Donald Trump responds to FBI Director James Comey’s decision not to recommend Clinton’s indictment through Tweets posted on Twitter.

Several hours after Comey’s public speech, Trump writes, “FBI director said Crooked Hillary compromised our national security. No charges. Wow! #RiggedSystem”

Then, the next morning, Trump writes in another Tweet, “I don’t think the voters will forget the rigged system that allowed Crooked Hillary to get away with ‘murder.’ Come November 8, she’s out!” (The Washington Post, 7/6/2016)

Between July 6, 2016 and September 7, 2016: Comey faces frequent criticism from FBI field offices over his decision not to recommend Clinton’s indictment.

The FBI field office in Kansas City, Kansas. (Credit: public domain)

The FBI field office in Kansas City. (Credit: public domain)

On July 5, 2016, FBI Director James Comey announces that he is recommending to not indict Clinton or any of her aides, effectively ending the FBI’s Clinton email investigation.

CNN will later report, “But blow back from some current and former agents was immediate. As Comey made his rounds of visits to field offices around the country, he heard stinging criticism, particularly from retired agents. At one meeting in Kansas City, Comey was confronted with stinging criticism of the probe. He pushed back, saying the career agents who knew the most of the case arrived at the conclusion that the case against Clinton wasn’t even a close call.” (CNN, 11/2/2016)

As a result, on September 7, 2016, Comey will write a letter to all FBI personnel, defending his decision not to recommend Clinton’s indictment. The letter will immediately be leaked to the public.

July 6, 2016: A former FBI assistant director believes Comey could have indicted Clinton for gross negligence, but introduced an intent element that doesn’t apply.

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Ron Hosko (Credit: CNN)

Former FBI Assistant Director Ron Hosko, who worked under FBI Director James Comey, comments on Comey’s decision not to recommend Clinton’s indictment. He believes Comey has “impeccable morality and ethics,” and says, “For an indictment you need probable cause, but prosecutors and investigators are looking for far more. You’re looking down the road at a substantial likelihood of success at trial that’s beyond a reasonable doubt.”

However, Hosko also believes the elements for an indictment were clearly met based on the wording of the federal “gross negligence” statute to which Comey referred in his July 5, 2016 public speech. He notes that Comey stated, “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.”

Hosko highlights Comey’s use of the phrase “extremely careless.” “To me, that has the same DNA as gross negligence that the statute requires. Those are identical twins.” He says that Comey seemed to introduce an element of intent that is not in that statute. (CNBC, 7/6/2016)

July 6, 2016: Although Clinton’s aides won’t be indicted, they may lose their security clearances.

Bill Savarino (Credit: public domain)

Bill Savarino (Credit: public domain)

The New York Times reports that although the FBI has decided not to recommend the indictment of Clinton or her former aides, the FBI’s Clinton investigation has “cast a cloud of doubt over the political futures of a number of her top advisers, including some expected to hold high-level jobs in her administration if she is elected president.”

On July 5, 2016, FBI Director James Comey said that although there was no clear evidence that Clinton or her aides intended to violate national security laws, “there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.” He also noted that people in similar situations “are often subject to security or administrative sanctions.”

The Times suggests this could affect the security clearances of “several dozen State Department advisers who, records show, facilitated Mrs. Clinton’s unorthodox email arrangement or used it to send her classified documents.” Those facing the most scrutiny are her former top advisers Cheryl Mills, Huma Abedin, and Jake Sullivan, who continue to work closely with Clinton.

The State Department has restarted an internal investigation into Clinton’s email usage, and that could lead to some security clearances being revoked. Speaker of the House Paul Ryan (R) has said that, based on the conclusions of the FBI’s investigation, Clinton should be denied the classified briefings normally given the major presidential nominees.

Bill Savarino, a lawyer specializing in security clearances, says, “I’ve never seen anything quite like this. You’ve got a situation here where the woman who would be in charge of setting national security policy as president has been deemed by the FBI unsuitable to safeguard and handle classified information.” He adds that if any of Clinton’s former top aides involved in the controversy were to ask him for help seeking a future security clearance, “I’d tell them that you’ve got a fight on your hands.'”

Sean M. Bigley, another lawyer specializing in security clearances, says his law firm has routinely defended clients who have lost their security clearances because of violations that were “much less egregious” than those described by Comey. “The folks who were involved with this, even on a peripheral basis, at least are going to be facing administrative action, or should be, based on the historical cases we’ve dealt with.” He says the threshold for administrative punishment is much lower than for criminal prosecution. (The New York Times, 7/6/2016)

July 6, 2016: “Extremely careless” is said to be the “money quote” of FBI Director Comey’s speech, and could affect the presidential election.

A Washington Post news analysis comments, “Of the more than 2,000 words FBI Director James Comey said in his unusually detailed statement [on July 5, 2016] that all but cleared Hillary Clinton of criminal indictment over the long-running probe into her email, two in particular got the most attention. ‘Extremely careless,’ Comey’s phrase to describe Clinton and her colleagues’ handling of classified information, has been called the statement’s ‘money quote,’ perhaps the biggest headline of the statement other than its absence of recommended charges, and the one nearly certain to any minute now be put on repeat in ads for presumptive [Republican] nominee Donald Trump.”

The Post also notes that in national polls, Clinton rates very poorly on honesty and trustworthiness, butt high on competence. However, the “extremely careless” quote could be used by Trump to criticize Clinton on one of her greatest perceived strengths.

Furthermore, it’s possible that “Comey’s comment will simply bounce off Clinton’s long-cultivated armor of competence.” But it’s also possible that the phrase could leave a permanent mark on her reputation. “Coming from a law enforcement official who has served both political parties and not shied away from conflict with either, it bears plenty of weight.” (The Washington Post, 7/6/2016)

July 6, 2016: The Justice Department won’t pursue an indictment against Clinton, ending the FBI’s Clinton investigation.

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Loretta Lynch holds a press conference on June 29, 2016 to explain her private meeting with Bill Clinton at the Arizona airport. (Credit: ABC News)

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)

July 7, 2016: Clinton won’t face punishment if she wins the presidency, but some of her former aides could.

Since Clinton is the presumptive Democratic nominee for president, she is unlikely to face any punishment for her email practices, despite FBI Director James Comey calling her “extremely careless” with highly classified information. Once she officially becomes the Democratic presidential nominee, she will automatically get security briefings. If she wins the presidency in the November 2016 election, she won’t have to apply for a security clearance.

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William Cowden (Credit: public domain)

National security lawyer Gregory Greiner says that if a typical low-level government employee did what Clinton did, “he would have lost his clearance and lost his job.” William Cowden,  a former Justice Department lawyer, similar says, “If she were currently a federal employee, she would be sanctioned.” But Clinton isn’t currently employed in the government, and the FBI chose not to take away Clinton’s security clearance during their investigation into her email practices, even though that is routine in similar cases.

Mark Zaid, a Washington lawyer who specializes in national security employment law, says he is particularly interested to see whether Clinton’s former aides will get security clearances if she wins the presidency. “Having seen the hundreds of people I’ve represented over a 20-plus year career who have lost their clearances for doing far less” than Clinton and her top aides, “I’m going to be really, really bothered and troubled” if they come out unscathed in the security clearance process.

The Washington Post notes that “losing a security clearance often is the equivalent of being fired. In some agencies, all jobs or most of the good ones, require a security clearance. Many of the individual contractors who work for those agencies also must have a security clearance. If you lose it, you could lose the ability to work in your field.” (The Washington Post, 7/7/2016)

July 7, 2016: FBI Director answers questions before a Congressional committee, further criticizing Clinton but also defending his decision not to indict her.

James Comey testifies to the House Oversight Committee on July 7, 2016. (Credit: Andrew Harrer / Bloomberg News)

James Comey is questioned before Congress on July 7, 2016. (Credit: Andrew Harrer / Bloomberg News)

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)

July 7, 2016: FBI Director James Comey refuses to say whether the Clinton Foundation is being investigated.

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Bill and Hillary Clinton attend an open plenary session for the Clinton Global Initiative on September 22, 2014. (Credit: John Moore / Getty Images)

In a Congressional hearing, Representative Jason Chaffetz (R) asks Comey: “Did you look at the Clinton Foundation?”

Comey replies, “I’m not going to comment on the existence or nonexistence of any other investigations.”

Chaffetz then asks, “Was the Clinton Foundation tied into this investigation?”

Comey responds, “Yeah, I’m not going to answer that.” (CNN, 7/7/2016)

It has previously been reported by Fox News in January 2016 that the Clinton Foundation is being investigated by the FBI, but that hasn’t been officially confirmed. An unnamed “FBI source” also told the Daily Mail in April 2016 that the FBI is conducting an investigation of the Clinton Foundation separate from its Clinton email investigation. (The Daily Mail, 7/7/2016)

In October 2016, the Wall Street Journal and Washington Post will report that there actually is an FBI investigation and it has been in existence since at least 2015, but it has been hobbled by a lack of support from the Justice Department.

July 7, 2016: Comey says he didn’t recommend Clinton be charged because he couldn’t prove intent, despite the gross negligence law.

In Congressional testimony, FBI Director James Comey essentially argues that Clinton was guilty of gross negligence, which doesn’t require proof of intent, but he was only willing to indict her on intent-related charges, and there wasn’t enough evidence for that. He says: “Certainly, she should have known not to send classified information. As I said, that’s the definition of negligent. 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)

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Representative William Hurd (Credit: Alchetron)

Representative William Hurd (R) asks, “What does it take for someone to misuse classified information and get in trouble for it?”

Comey answers, “It takes mishandling it and criminal intent.” He admits that Clinton mishandled the information by having it on a private server, but he doesn’t see evidence of criminal intent. (CNN, 7/7/2016)

He further comments, “There’s not evidence beyond a reasonable doubt that she knew she was receiving classified information or that she intended to retain it on her server. There’s evidence of that, but when I said there’s not clear evidence of intent, that’s what I meant. I could not, even if the Department of Justice would bring that case, I could not prove beyond a reasonable doubt those two elements.” (CNN, 7/7/2016)

At another point in the hearing, he argues, “The question of whether [what she did] amounts to gross negligence frankly is really not at the center of this because when I look at the history of the prosecutions and see, it’s been one case brought on a gross negligence theory.” (CNN, 7/7/2016)

The law criminalizing gross negligence in national security lapses was enacted in 1917. Comey says, “I know from 30 years there’s no way anybody at the Department of Justice is bringing a case against John Doe or Hillary Clinton for the second time in 100 years based on those facts.”

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James Smith (Credit: CNN)

The FBI later confirms to Politico that James Smith is the one case Comey is referring to. Smith, a longtime FBI agent, was arrested in 2003 and charged with gross negligence. However, he later pleaded guilty in return for having the charges reduced to one count of making false statements. (Politico, 7/7/2016)

But Comey’s claim that gross negligence has only been used once in recent decades is true only if one looks at cases brought by the Justice Department. Cases have also been brought in the military justice system.

Additionally, Politico points out, “Comey’s universe was also limited to cases actually brought, as opposed to threatened. The gross negligence charge is often on the table when prosecutors persuade defendants to plead guilty to the lesser misdemeanor offense of mishandling classified information.” (Politico, 7/7/2016)

Later in the hearing, Representative Blake Farenthold (R) says, “So Congress when they enacted that statute said ‘gross negligence.’ That doesn’t say ‘intent.’ So what are we going to have to enact to get you guys to prosecute something based on negligence or gross negligence? Are we going to have to add, ‘and oh by the way, we don’t mean — we really do mean you don’t have to have intent there?'”

Comey replies, “That’s a conversation for you all to have with the Department of Justice. But it would have to be something more than the statute enacted in 1917. Because for 99 years, they’ve been very worried about its constitutionality.” (CNN, 7/7/2016)

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Representative Tim Walberg (Credit: Twitter)

Representative Tim Walberg (R) asks him, “Do you believe that the — that since the Department of Justice hasn’t used the statute Congress passed, it’s invalid?”

Comey responds, “No. I think they are worried that it is invalid, that it will be challenged on Constitutional grounds, which is why they’ve used it extraordinarily sparingly in the decades.” (CNN, 7/7/2016)

During the hearing, it is pointed out several times that felony crime based on negligence and not intent are common at both the state and federal level, for intance manslaughter instead of murder, and their consitutionality has never been successfully challenged. At one point, Comey admits other negligence cases have been sustained in the federal system: “They’re mostly, as you talked about earlier, in the environmental and Food and Drug Administration [FDA] area.” (CNN, 7/7/2016)

But he is adamant about not indicting any cases without being able to prove intent. At one point, he even suggests he is philosophically opposed to any laws based on negligence when he mentions, “When I was in the private sector, I did a lot of work with the Chamber of Commerce to stop the criminalization of negligence in the United States.” (CNN, 7/7/2016)

July 7, 2016: FBI Director James Comey says Clinton gave access to between three and nine people without the proper security clearance, but doesn’t see that as a prosecutable offense.

In a Congressional hearing, Representative Jason Chaffetz (R) asks Comey, “So there are hundreds of classified documents on [Clinton’s private] servers, how many people without a security clearance had access to that server?”

Comey replies, “I don’t know the exact number as I sit here, it’s probably more than two, less than ten.” He also says, “Yes, there’s no doubt that uncleared people had access to the server because even after [Bryan] Pagliano there were others who maintained the server who were private sector folks.” [This is a likely reference to Justin Cooper and possibly others, such as Oscar Flores, Jon Davidson, and Doug Band.]

Additionally, he reveals that Clinton’s three lawyers who sorted her emails and deleted over 31,000 of them — David Kendall, Cheryl Mills, and Heather Samuelson — did not have the “security clearances needed.”

He is asked by Chaffetz, “Does that concern you?”

Comey replies, “Oh yes, sure.”

Chaffetz asks, “Is there any consequence to an attorney rifling through Secretary Clinton’s, Hillary Clinton’s, e-mails without a security clearance?”

Comey responds, “Well, not necessarily criminal consequences, but there’s a great deal of concern about an uncleared person not subject to the requirements we talked [about] potentially having access [to classified information].”

Chaffetz then asks, “What’s the consequence? They don’t work for the government, we can’t fire them, so is there no criminal prosecution of those attorneys. Should they lose their bar license? What’s the consequence to this?”

Comey replies that he doesn’t have proof “they acted with criminal intent or active with some mal-intent…”

Chaffetz complains, “So there’s no intent? It doesn’t matter if these people have security clearances?” He suggests they and Clinton should be prosecuted for this violation.

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Eight people and two businesses were given unauthorized access to Clinton’s private server where top secret information was held. From top left to right they are David Kendall, Cheryl Mills, Platte River Networks, Heather Samuelson and Bryan Pagliano. From bottom left to right they are Douglas Band, Jon Davidson, Datto, Inc., Justin Cooper and Oscar Flores. (Credits have been given to each photo, in the timeline.)

Then he adds, “I asked you at the very beginning, does Hillary Clinton, is there a reasonable expectation that Hillary Clinton would send and receive if not day — hourly if not daily, classified information. That’s reasonable to think that the secretary of state would get classified information every moment. She’s not the head of Fish and Wildlife, so the idea that she would turn over her emails, her system, her server to, what it sounds like, up to ten people without security clearances and there’s no consequence. So why not do it again?”

After more back and forth, he asks, How can [it be] there’s no intent there? Does she not understand that these people don’t have security clearances?”

Comey replies, “Surely she understands at least some of them don’t have security clearances.”

Chaffetz then says, “So she understands they don’t have security clearances and it’s reasonable to think she’s going to be [emailing] classified information. Is that not intent to provide a non-cleared person access to classified information?”

Comey says, “I don’t think it’s reasonable to assume… that someone who is maintaining your server is reading your emails. In fact, I don’t think that’s the case here. There’s a separate thing, which is when she is engaging counsel to comply with the State Department’s request, are her lawyers then exposed [to] information that may be on there that’s classified, so…”

Comey goes on to suggest that there’s no proof that any of her three lawyers read any of Clinton’s classified emails while sorting them. “I don’t know whether they read them at the time.” Then, although he admits that Clinton gave non-cleared people access to classified information, he again argues that proving intent is necessary, and concludes, “I don’t see the evidence there to make a case that she was acting with criminal intent in her engagement with her lawyers.”

Chaffetz comments, “I read criminal intent as the idea that you allow somebody without a security clearance access to classified information. Everybody knows that, Director, everybody knows that.” (CNN, 7/7/2016)

July 7, 2016: FBI Director James Comey says Clinton’s private server was less secure than the State Department’s computer network or a commercial email provider.

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Comey testifies to the House Benghazi Committee on July 7, 2016. (Credit: Jack Gruber / USA Today)

In a Congressional hearing, Comey says, “The challenge of security is not binary, it’s just degrees of security. [Clinton’s private server] was less secure than one at the State Department, or as I said, even one at a private commercial provider like a Gmail.” (CNN, 7/7/2016)

Representative Rod Blum (R) asks, “Director Comey, are you implying in [your comments] that the private email servers of Secretary Clinton’s were perhaps less secure than a Gmail account that is used for free by a billion people around this planet?”

Comey replies, “Yes. And I’m not looking to pick on Gmail. Their security is actually pretty good; the weakness is individual users. But, yes, Gmail has full-time security staff and thinks about patching, and logging, and protecting their systems in a way that was not the case here.”

Blum also comments, “I know some security experts in the industry. I check with them. The going rate to hack into somebody’s Gmail account, $129. For corporate emails, they can be hacked for $500 or less. If you want to hack into an IP address, it’s around $100. I’m sure the FBI can probably do it cheaper. This is the going rate.” (CNN, 7/7/2016)

July 7, 2016: FBI Director Comey says Clinton’s lawyers didn’t read every email before deleting some of them.

At a Congressional hearing, FBI Director James Comey is asked by Representative Trey Gowdy (R), “Secretary Clinton said her lawyers read every one of the emails and were overly inclusive. Did her lawyers read the email content individually?”

Comey simply replies, “No.”

(Clinton’s lawyers involved in sorting her emails are David Kendall, Cheryl Mills, and Heather Samuelson.) In Congressional testimony under oath in October 2015, Clinton claimed that her lawyers did read every email.

Comey also says he doesn’t believe Clinton knew her legal team deleted thousands of work-related emails. And he says, “I don’t think there was any specific instruction or conversation between the secretary and her lawyers” in which Clinton approved that some work-related emails be deleted. He also believes that Clinton didn’t “know that her lawyers cleaned devices in such a way to preclude forensic recovery,” a matter about which the FBI asked Clinton  in her FBI interview. (Politico, 7/7/2016) (CNN, 7/7/2016)

July 7, 2016: FBI Director Comey suggests Clinton would be punished if she still were a government official.

Comey testifies before the House Oversight and Government Reform Committee. (Credit: Yuri Gripas / Agence France Presse/ Getty Images)

Comey motions while testifying before the House Oversight and Government Reform Committee on July 7, 2016. (Credit: Yuri Gripas / Agence France Presse/ Getty Images)

At a Congressional hearing, FBI Director James Comey is questioned by Representative Jason Chaffetz (R) about whether Clinton would be able to get a security clearance if she applied for a job at the FBI.

Comey replies, “I didn’t say there’s no consequence for someone who violates the rules regarding the handling of classified information. There are often very severe consequences in the FBI involving their employment, involving their pay, involving their clearances. … I hope folks walk away understanding that just because someone’s not prosecuted for mishandling classified information, that doesn’t mean, if you work in the FBI, there aren’t consequences for it.”

Chaffetz asks, “So if Hillary Clinton or if anybody had worked at the FBI under this fact pattern, what would you do to that person?”

Comey replies, “There would be a security review and an adjudication of their suitability and a range of discipline could be imposed from termination to reprimand and in between, suspensions, loss of clearance. So you could be walked out or you could — depending upon the nature of the facts — you could be reprimanded. But there is a robust process to handle that.” (Politico, 7/7/2016) (CNN, 7/7/2016) (CNN, 7/7/2016)

July 7, 2016: FBI Director Comey claims David Petraeus’ security violations were more serious than Clinton’s.

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David Petraeus (left), James Comey (center), Hillary Clinton (right) (Credit: public domain)

At a Congressional hearing, FBI Director James Comey is asked to compare the cases of Clinton and former CIA Director David Petraeus. Petraeus pled guilty to a misdemeanor in 2015 and served no jail time. Comey says that Petraeus’ case “illustrates the categories of behavior that mark prosecutions that are actually brought. Clearly intentional conduct. Knew what he was doing was violation of the law. Huge amounts of information if you couldn’t prove he knew, it raises the inference he did it, and effort to obstruct justice, that combination of things making it worthy of a prosecution. A misdemeanor prosecution but a prosecution nonetheless.” He says he stands by the FBI’s decision to prosecute Petraeus and not Clinton. (Politico, 7/7/2016) (CNN, 7/7/2016)

 

July 7, 2016: FBI Director Comey says three of Clinton’s emails were clearly marked as classified when they were sent.

At a Congressional hearing, FBI Director James Comey is asked by Representative Trey Gowdy (R), “Secretary Clinton said there was nothing marked classified on her emails, either sent or received. Was that true?”

Comey replies, “That’s not true. There were a small number of portion markings on, I think, three of the documents.” Later in the day, the State Department says that two of those emails were incorrectly marked as classified when they were sent. Both of those emails, sent on April 8, 2012 and August 2, 2012, were released as part of the over 30,000 emails Clinton made public. It is unknown which email Comey is referring to in the third instance. It could be the part marked classified is redacted, or perhaps the email has not yet been released. (Politico, 7/7/2016) (CNN, 7/7/2016)

A September 2016 FBI report will give more information on these emails, including mentioning that the third email is still classified at the “confidential” level.

July 7, 2016: FBI Director Comey confirms that Clinton’s server was in an “unauthorized location” for handling classified material.

At a Congressional hearing, FBI Director James Comey is asked by Representative Jason Chaffetz (R) where Clinton’s servers were physically located.

Comey replies, “The operational server was in the basement of her home in New York. The reason I’m answering it that way is that sometimes after they were decommissioned they were moved to other facilities — storage facilities, but the live device was always in the basement. … It was an unauthorized location for the transmitting of classified information.”

Chaffetz asks, “Is it reasonable or unreasonable to expect Hillary Clinton would receive and send classified information?”

Comey answers, “As secretary of state, [it is] reasonable that the secretary of state would encounter classified information in the course of the secretary’s work.” (CNN, 7/7/2016)