January 28, 2016: A decision on indictments could come during the presidential general election campaign.

Ron Hosko (Credit: public domain)

Ron Hosko (Credit: public domain)

Former FBI officials say the length of the FBI’s investigation into Clinton’s email and server is not unusual. Ron Hosko, the FBI’s former assistant director of the criminal investigative division, says, “I don’t know that there’s any magical cutoff date.” However, he adds, “I think the clock ticks louder every day. I’m sure they’re all incredibly sensitive to it.”

Political science professor Andrew Smith says, “It does give pause to Democrats who are concerned that there may be another shoe to drop down the road.” (The Hill, 1/28/2016)

January 28, 2016: Clinton’s top aides could be in greater legal jeopardy than Clinton.

Bradley Moss (Credit: Twitter)

Bradley Moss (Credit: Twitter)

Bradley Moss, a lawyer who specializes in national security and protection of classified information, speculates about who will be targeted by the FBI’s investigation into Clinton’s emails and server.

He suggests Clinton is less in danger that her aides, since most of the retroactively classified emails were written by her aides. “It’d be a lot harder to make a criminal charge for having received [classified] information. If I’m in Clinton’s campaign, I’m more worried if am Cheryl Mills, Huma Abedin, or Jake Sullivan than if I’m Hillary Clinton. […] The sloppiness and the complete fundamental failure to comply with any aspect of operational and informational security is what puts them at risk. You just can’t do that that many times and not expect to find yourself in trouble.” (The Hill, 1/28/2016)

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)

January 29, 2016—March 9, 2016: White House Press Secretary Josh Earnest is criticized for his Clinton scandal comments.

On January 29, 2016, Earnest is asked if the White House believes Clinton will be indicted for her email scandal or not. He replies, “I know that some officials over there have said is that she is not a target of the investigation. So that does not seem to be the direction that it’s trending, but I’m certainly not going to weigh in on a decision or in that process in any way. That is a decision to be made solely by independent prosecutors. But, again, based on what we know from the Department of Justice, it does not seem to be headed in that direction.”

On March 9, Attorney General Loretta Lynch says that Earnest shouldn’t have made such comments. “Certainly, it’s my hope when it comes to ongoing investigations, that we would all stay silent. […] It is true that neither I nor anyone in the department has briefed Mr. Earnest or anyone in the White House about this matter. I’m simply not aware of the source of his information.”

Earnest then clarifies that he was only referring to his opinion of news reports. (Politico, 3/9/2016)

March 9, 2016: Donald Trump says he would push for an indictment of Clinton.

Trump, the frontrunner in the race for the Republican presidential nomination, is asked if he would pursue a criminal indictment of Clinton if Attorney General Loretta Lynch does not. Trump replies, “You have to.”

Politico comments, “Trump’s answer conflicts with 40 years of precedent. His suggestion that he would seek an indictment flies in the face of the longstanding practice of limiting White House involvement in the prosecutorial decisions made by an attorney general. (Politico, 3/9/2016)

March 9, 2016: Clinton is confronted about her email scandal during a presidential debate.

Jorge Ramos (Credit: CNN)

Jorge Ramos (Credit: CNN)

Moderator Jorge Ramos asks her if she would quit the presidential race if she is indicted.

Clinton replies, “Oh, for goodness… it’s not going to happen. I’m not even answering that question,” She also says, “I think that what we’ve got here is a case of over-classification. […] I’m not concerned about; I’m not worried about it, and no Democrat or American should be, either.” (The Hill, 3/9/2016)

April 8, 2016: Clinton says talk of her getting indicted is a Republican “fantasy.”

Clinton is asked about Republican politicians who have been suggesting the FBI investigation will lead to her getting indicted. She replies, “I know they live in that world of fantasy and hope because they’ve got a mess on their hands on the Republican side. That is not going to happen. There is not even the remotest chance that it’s going to happen. […] I think it’s a security review. It is a security review. There are lots of those that are conducted in our government all the time. You don’t hear about most of them. You’ll hear about this one because, you know, it does involve me.” (Real Clear Politics, 4/8/2016)

May 27, 2016: Democratic presidential candidate Sanders calls the prospect of Joe Biden replacing Clinton if the FBI recommends her indictment “a terrible, terrible idea.”

Vice-President Joe Biden (Credit: public domain)

Vice-President Joe Biden (Credit: public domain)

In an interview, Bernie Sanders is asked his opinion of a hypothetical situation in which the FBI recommends Clinton’s indictment and then Clinton’s delegates switch their support to Vice President Joe Biden or some other person who didn’t run in the primaries.

Sanders replies, “I think that would be a terrible, terrible idea. […] That would say to the millions of people who have supported us, that have worked with us, that would say all of your energy, all of your votes, all of your beliefs are irrelevant. We’re going to bring in someone else. I happen to like Joe a lot, but I think that would be a very, very serious blunder for the Democratic Party.” (The Hill, 5/28/2016)

May 31, 2016: 50 percent think Clinton should continue running for president even if she is indicted.

A Rasmussen Reports poll reveals that 43% of likely US voters think Clinton should stop her presidential campaign if she is charged with a felony as part of her email scandal. But 50% think she should continue her campaign until a court decides on her guilt or innocence. Some 65% consider it likely she broke the law and 30% consider it unlikely; 40% say the scandal makes them less likely to vote for her and 48% say it will have no impact on them. (Rasmussen Reports, 5/31/2016)

June 1, 2016: Fox News reports that the recently released State Department inspector general’s report increases “the likelihood and pressure” that the FBI will pursue criminal charges against Clinton.

This is according to an unnamed “intelligence source familiar with the FBI investigation.” This source says, “It is very harmful to her and increases the likelihood and pressure on [the Department of Justice] to indict. […] [The report] is not evidence in itself, but it clears up confusion [about] Department of State rules and makes the IG [inspector general] a witness, and the people they interviewed, to her computer antics being done without permission.”

The FBI would need to recommend an indictment before the Justice Department would decide to move forward with the case or not.

The source also says that the report “will be useful as rebuttal, potential evidence in 18 USC 1001 charges and establishing aspects of 18 USC 793.” “18 USC 1001” is a reference to a statute known as the “false statements statute.” “Materially false” statements given to a federal officer could result in five years in prison per violation. “18 USC 793” is a reference to a statute which is part of the Espionage Act, and is known as the “gross negligence” statute. (Fox News, 6/1/2016)

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)

June 9, 2016: Clinton says there is “zero chance” the FBI’s Clinton investigation will pose a problem in the presidential general election.

In an interview, she adds that there is “absolutely no possibility of an indictment. There is no basis for it, and I’m looking forward to this being wrapped up as soon as possible.” (Politico, 6/9/2016)

June 12, 2016: WikiLeaks says it will be making public more of Clinton’s previously unpublished emails.

Juilan Assange appears on ITV on June 12, 2016. (Credit: ITV)

Juilan Assange appears on ITV on June 12, 2016. (Credit: ITV)

In an interview, WikiLeaks founder Julian Assange is asked if his organization has any of Clinton’s “undisclosed emails.” He replies, “We have upcoming leaks in relation to Hillary Clinton,” and “We have emails relating to Hillary Clinton pending publication, that is correct.” He also says, “There is very strong material both in the emails and in relation to the Clinton Foundation.”

He believes this contains enough evidence for the FBI to recommend Clinton’s indictment: “We’ve accumulated a lot of material about Hillary Clinton. We could proceed to an indictment.”

He doesn’t specify when or how many emails might be published. Asked about the FBI’s Clinton investigation, he believes the Justice Department will do the bidding of President Obama and so they will not indict Clinton. (The Guardian, 6/12/2016(ITV, 6/12/2016)

Several days later, a hacked using the nickname Guccifer 2.0 shares files from a recent hack of the DNC (Democratic National Committee) and claims to have given “thousands of files and mails” to WikiLeaks. (Wired, 6/15/2016) (Vice News, 6/15/2016) 

June 18, 2016: Trump says Sanders is waiting for the FBI to knock Clinton out of the presidential race.

Republican presidential candidate Donald Trump notes that Bernie Sanders hasn’t quit the Democratic primary race despite Clinton having a majority of the pledged delegates and even more superdelegates. Trump says, “He’s waiting for the FBI to do what everybody thinks they’re going to do. I think he’s saying, ‘Let’s hang in there because it’s ultimately called the FBI convention. […] We’ll see if the right thing happens.’ Everybody knows what the right thing is.”

Sanders hasn’t made any comment that he’s waiting for the FBI’s decision to recommend Clinton’s indictment or not. (CNN, 6/18/2016)

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: 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—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)

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

160706lynch press conferenceABCNews

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: 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: 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)

160707WilliamHurdAlchetron

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.”

160707JamesJSmithCNN

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)

160707TimWalbergTwitter

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.

160707ServerMontage

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 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 11, 2016: A majority of Americans think Clinton should be indicted over her emails.

160711ClintonPollABCNews

ABC News / Washington Post graphic of the poll they conducted on July 11, 2016 (Credit: ABC News)

According to an ABC News / Washington Post poll, 56 percent disapprove of FBI Director James Comey’s recommendation not to indict Clinton, while just 35 percent approve. Very similar numbers agree or disagree that this worries them about how she might act if she is elected president.

However, most voters have already made up their minds about her: Only 28 percent say her email controversy makes them less likely to support her, while 10 percent say it makes them more likely to do so.

A large majority of Republicans think she should be indicted and a large majority of Democrats think she shouldn’t. But even about 30 percent of Democrats think she should be indicted, and about 60 percent of independents think so as well. (ABC News, 7/11/2016)

September 7, 2016: FBI Director James Comey writes a letter to FBI employees defending the FBI’s actions in its Clinton email investigation.

James Comey (Credit: Gary Cameron / Reuters)

James Comey (Credit: Gary Cameron / Reuters)

The letter is released to CNN on the same day, and publicly published in full. Addressing his decision not to recommend the indictment of Clinton, Comey writes, “At the end of the day, the case itself was not a cliff-hanger; despite all the chest-beating by people no longer in government, there really wasn’t a prosecutable case.”

CNN also reports that over the past several weeks, “Comey has met with groups of former FBI agents as part of his routine visits to field offices around the country. In at least one recent such meeting, according to people familiar with the meeting, former agents were sharply critical of the FBI’s handling of the Clinton probe and particularly the decision to not recommend charges against Clinton. Comey gave the meeting participants a similar answer about the case not being a cliff-hanger.” (CNN, 9/7/2016)

A later CNN article will identify the particularly contentious meeting as taking place in Kansas City. (CNN, 11/2/2016)

In the letter, Comey also defends his decision to release the FBI’s final report on the investigation (with significant redactions). That was a highly unusual move, because that usually only happens after an indictment or conviction. He makes a particular point to defend the timing of the report’s release, as it came out on a Friday afternoon just before the three-day Labor Day weekend.

He concludes the letter: “Those suggesting that we are ‘political’ or part of some ‘fix’ either don’t know us, or they are full of baloney (and maybe some of both).” (CNN, 9/7/2016) (CNN, 9/7/2016)

October 9, 2016: Trump tells Clinton he would appoint a special prosecutor to look into her use of a private email server, and says he would put her in jail.

Just two days after Wikileaks releases their first batch of hacked emails from Clinton’s campaign manager John Podesta, there is a presidential debate in St. Louis, Missouri, and it includes a contentious exchange between Donald Trump and Hillary Clinton over her use of a private email server while she is secretary of state.

Clinton and Trump spar at a presidential debate in St. Louis, Missouri on October 9, 2016. (Credit: John Locher / The Associated Press)

Clinton and Trump spar at a presidential debate in St. Louis, Missouri on October 9, 2016. (Credit: John Locher / The Associated Press)

He says, “I think the one that you should really be apologizing for and the thing that you should be apologizing for are the 33,000 emails that you deleted, and that you acid washed, and then the two boxes of emails and other things last week that were taken from an office and are now missing. And I’ll tell you what. I didn’t think I’d say this, but I’m going to say it, and I hate to say it. But if I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception. There has never been anything like it, and we’re going to have a special prosecutor.”

He continues, “When I speak, I go out and speak, the people of this country are furious. In my opinion, the people that have been long-term workers at the FBI are furious. There has never been anything like this, where emails… and you get a subpoena, you get a subpoena, and after getting the subpoena, you delete 33,000 emails, and then you acid wash them or bleach them, as you would say, very expensive process. So we’re going to get a special prosecutor, and we’re going to look into it, because you know what? People have been… their lives have been destroyed for doing one-fifth of what you’ve done. And it’s a disgrace. And honestly, you ought to be ashamed of yourself.”

Clinton responds, “Everything he just said is absolutely false, but I’m not surprised.”

Trump asks, “Oh really?”

Clinton gives a long response which ends with the comment, “It’s good that somebody with the temperament of Donald Trump is not running this country.”

Trump immediately shoots back: “Because you’d be in jail.”
Anderson Cooper (left) and Martha Raddatz are the presidential debate moderators at Washington University in St. Louis on October 9, 2016. (Credit: Washington University)

Anderson Cooper (left) and Martha Raddatz are the presidential debate moderators at Washington University in St. Louis, on October 9, 2016. (Credit: Washington University)

Martha Raddatz follows up with a question for Clinton, “And Secretary Clinton, I do want to follow-up on e-mails. You’ve said your handling of your e-mails was a mistake, you’ve disagreed with the FBI Director James Comey calling your handling of classified information “extremely careless”. The FBI said there were 110 classified e-mails which were exchanged, eight of which were top secret and it was possible hostile actors did gain access to those e-mails. You don’t call that extremely careless?”

Clinton responds,… “I take classified materials very seriously and always have. When I was on the Senate Armed Services Committee, I was privy to a lot of classified material. Obviously, as secretary of state I had some of the most important secrets that we possess, such as going after Bin Laden. So, I am very committed to taking classified information seriously and as I said, there is no evidence that any classified information ended up in the wrong hands.”

Trump answers, again with the suggestion that Hillary would be in jail if she were anyone else, … “If you did that in the private sector, you’d be put in jail, let alone after getting a subpoena from the United States Congress.” (The Hill, 10/9/2016) (The New York Times, 10/9/2016)

Trump’s comments draw many reactions. His vice presidential candidate Mike Pence approves. However, many others, including Republicans, react negatively. That includes 23 former Republican Justicee Department officials, who write a letter condemning the comments.

October 9, 2016—October 13, 2016: Many, including Republicans, criticize Trump for threatening to put Clinton in jail.

Donald Trump creates a firestorm of responses after the second general election presidential debate in St. Louis, Missouri, on October 9, 2016, due to his threat to Clinton that “If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation,” and that she should “be in jail.”Trump’s remarks draw widespread and bipartisan condemnation for being un-American, as well as praise coming from some supporters.

Praise for Trump’s remarks is rare, except perhaps among his ordinary supporters:

    Frank Luntz's focus group at the presidential debate in St. Louis, Missouri. (Credit: Fox News)

    Frank Luntz’s focus group at the presidential debate in St. Louis, Missouri. (Credit: Fox News)

  • Republican pollster Frank Luntz hosts a group of 30 undecided voters at the debate. According to the results of the poll, Trump’s highest moment during the first half of the debate is when he vows to appoint a special prosecutor to investigate Clinton if he is elected president, as well as telling her she should be “ashamed of herself” for misleading the American public on the email issue. By the end of the debate, 21 participants tell Luntz that Trump’s performance had a positive impact on their voting choice going forward, while nine are impressed by Clinton’s performance.  (The Washington Examiner, 10/09/2016)
  • Kellyanne Conway talks with reporters following the presidential debate on October 9, 2016, in St Louis, Missouri.

  • Trump’s campaign manager Kellyanne Conway says, “That was a quip.” And regarding Trump’s threat to appoint a special prosecutor, Conway says only that he was “channeling the frustration” of voters.
  • Republican vice presidential nominee and Indiana Governor Mike Pence says this comment by his running mate Trump “was one of the better moments of the debate.” (Huffington Post, 10/10/2016)

The overwhelming majority of responses by legal experts and other politicians are critical of Trump. For instance:

  • Former Attorney General Eric Holder, who served under President Obama, writes on Twitter, “In the USA we do not threaten to jail political opponents. [Donald Trump] said he would. He is promising to abuse the power of the office.”
  • John Yoo (Credit: Berkley College)

    John Yoo (Credit: Berkley College)

  • John Yoo, a former Justice Department official under President George W. Bush who defended the US government’s use of torture, says that Trump “reminds me a lot of early Mussolini. . . . Very, disturbingly similar.” He also calls Trump’s promise to appoint a special prosecutor to go after Clinton is “a compounded stupidity,” because “if you are a Republican or a conservative, you think that special prosecutors are unconstitutional.” (The Washington Post, 10/12/2016)
  • Paul Charlton, a former federal prosecutor and US attorney under George W. Bush, states, “For Donald Trump to say he will have a special prosecutor appointed and to have tried and convicted her already and say she’d go to jail is wholly inappropriate and the kind of talk more befitting a Third World country than it is our democracy. … The Department of Justice isn’t a political tool and it ought not to be employed that way.”
  • Marc Jimenez (Credit: public domain)

    Marc Jimenez (Credit: public domain)

  • Marc Jimenez, a lawyer who served on the legal team backing Bush in the Bush v. Gore Supreme Court showdown and also was a US attorney under George W. Bush, says: “This statement demonstrates the clear and present danger that Trump presents to our justice system. For a president to ‘instruct’ an attorney general to commence any prosecution or take any particular action is abhorrent. If it occurred, it would be a politically motivated decision that would cheapen the Department of Justice and contradict the core principle that prosecutors should never consider political factors in their charging or other decisions.”
  • Peter Zeidenberg, a former federal prosecutor who worked in George W. Bush’s White House, says: “A special prosecutor is supposed to investigate and isn’t appointed to put people in jail. You’re kind of skipping over an important step there. Can you imagine being the defendant prosecuted after being told the prosecutor was someone who was appointed to put you in jail, that had already foreordained that result? … It’s absurd and, if it were serious, it would be absolutely terrifying because it suggests there’s no due process.” (Politico, 10/10/2016)
  • Ari Fleischer (Credit: Jim Young / Reuters)

    Ari Fleischer (Credit: Jim Young / Reuters)

  • Ari Fleischer, White House press secretary under George W. Bush and a supporter of Trump, writes on Twitter, “Winning candidates don’t threaten to put opponents in jail. Presidents don’t threaten prosecution of individuals. Trump is wrong on this.” (The Philadelphia Inquirer, 10/10/2016)
  • Michael Mukasey, who served as attorney general for George W. Bush, says, “That to me is the… is a watershed event… that it’s the president of a different party. That makes it an entirely different kind of exercise in my view.” Mukasey spoke at the Republican convention in July 2016, but he says Trump’s suggestion “would make us look like a banana republic.” (NPR, 10/10/2016)
  • Paul Staniland (Credit: University of Chicago)

    Paul Staniland (Credit: University of Chicago)

  • Paul Staniland, a political scientist at the University of Chicago, says these kinds of attacks “can undermine the whole idea of democratic elections, where each side agrees that whoever won will then rule. … This is something that, as someone who studies the developing world and political violence, is kind of freaky. It kind of reminds me of Bangladesh. Thailand is like this, too. You have this real sense that whoever wins the election will go after the loser. Even if leaders succeed only rarely in using the state to punish their rivals, that can quickly spiral out of control, turning politics into a zero-sum game for control over the institutions of law and order.”
  • Sheri Berman, a professor of political science at Barnard College in New York, says, “The rhetoric alone is extremely dangerous because it undermines people’s belief in our democratic institutions and process. Strongmen typically come to power in democracies, by telling citizens to distrust institutions and procedure — that what is needed is to burn it all down.”
  • Adrian LeBas (Credit: Wilson Center)

    Adrian LeBas (Credit: Wilson Center)

  • Adrienne LeBas, a political scientist at American University, says Trump’s comment is “a threat to the rule of law, a threat to the stability of our institutions, a threat to basic agreements that are necessary for democracy to function. For those of us who work on authoritarian regimes and hybrid regimes, this sort of thing is just eerily familiar.” She calls this “the absolute personalization of power,” similar to what has been seen in “Zimbabwe, Togo, Ethiopia, cases like that, where there are explicit threats to imprison opponents.” (New York Times, 10/11/2016)
  • Twenty-three Republican former Justice Department officials sign a statement criticizing his jail threat and calling for Trump’s defeat in November, 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)

November 2, 2016: Fox News claims the FBI’s Clinton Foundation investigation is “a very high priority,” and it is “likely” it could eventually lead to an indictment.

Bret Baier appears on Brit Hume's show to clarify his statement about a possible Clinton indictment. (Credit: Fox News)

Bret Baier appears on Brit Hume’s show to clarify his statement about a possible Clinton indictment. (Credit: Fox News)

Fox News reports that the FBI’s Clinton Foundation has now taken a “very high priority.” This is according to unnamed “separate sources with intimate knowledge of the probe.”

The FBI had already collected a great deal of evidence and interviewed and re-interviewed multiple people. But in recent weeks, emails released on a daily basis by WikiLeaks, plus occasional Freedom of Information Act (FOIA) email releases, have provided many more leads. One source says, “There is an avalanche of new information coming in every day.”

FBI agents are “actively and aggressively pursuing this case.” Due to all the new information, agents will be re-interviewing many people again, some for the third time. Agents are also double checking the FBI interview summaries (known as “302’s”) of Clinton and her top aides, to make sure their answers jibe with all the new information.

The FBI’s White Collar Crime Division is handling the investigation. (Fox News, 11/2/2016)

Fox News journalist Bret Baier claims that he spoke to the sources, and they told him that it is “likely” the investigation will eventually result in an indictment or indictments, “barring some obstruction in some way” from the Justice Department. (Real Clear Politics, 11/2/2016)

The next day, Baier modifies his claim about an indictment being likely. “I want to be clear about this, and this came from a Q and A that I did with Brit Hume after my show and after we went through everything. He asked me if, after the election, if Hillary Clinton wins, will this investigation continue, and I said, ‘yes absolutely.’ I pressed the sources again and again what would happen. I got to the end of that and said, ‘they have a lot of evidence that would, likely lead to an indictment.’ But that’s not, that’s inartfully answered. That’s not the process. That’s not how you do it. You have to have a prosecutor. If they don’t move forward with a prosecutor with the [Justice Department], there would be, I’m told, a very public call for an independent prosecutor to move forward. There is confidence in the evidence, but for me to phrase it like I did, of course that got picked up everywhere, but the process is different than that.” (Fox News, 11/3/2016)

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)