(…) “Lisa Page, an FBI lawyer who served as special counsel to Deputy FBI Director Andrew McCabe during the time of the Clinton investigation, noted during her testimony in July 2018, that the DOJ was intimately involved in the investigation.
“Everybody talks about this as if this was the FBI investigation, and the truth of the matter is there was not a single step, other than the July 5th statement, there was not a single investigative step that we did not do in consultation with or at the direction of the Justice Department,” Page told congressional investigators on July 13, 2018.
Comey had also hinted at the influence exerted by the DOJ over the Clinton investigation in his July recommendation, stating that “there are obvious considerations, like the strength of the evidence, especially regarding intent.”
Intent is a requirement of several statutes the FBI was looking into. But intent is specifically not a factor under the charge of gross negligence—contained within 18 U.S. Code § 793(f)—a fact that was brought up by Rep. John Ratcliffe (R-TX) during Page’s testimony:
John Ratcliffe (Credit: CSpan)
Rep. Ratcliffe: Okay. And that’s — I think, when you talk about intent, that’s certainly true under part of 18 793(f), but it sounds like you all just blew over gross negligence.
Ms. Page: We did not blow over gross negligence. We, in fact — and, in fact, the Director — because on its face, it did seem like, well, maybe there’s a potential here for this to be the charge. And we had multiple conversations, multiple conversations with the Justice Department about charging gross negligence.
Page made clear during her testimony that the DOJ had decided that due to “constitutional vagueness” a charge of gross negligence would not be supported without accompanying proof of intent—a seemingly oxymoronic position:
Rep. Ratcliffe: Okay. So let me if I can, I know I’m testing your memory, but when you say advice you got from the Department, you’re making it sound like it was the Department that told you: You’re not going to charge gross negligence because we’re the prosecutors and we’re telling you we’re not going to —
Ms. Page: That is correct.
Rep. Ratcliffe: — bring a case based on that.
Trouble Defining Intent
The word “intent” drove the entirety of the FBI’s investigation into the Clinton email server.
It appears, however, that there were differing understandings of the word “intent” within the FBI. Trisha Anderson, the No. 2 lawyer at the FBI, told investigators that what she viewed as intent was “an email that the Secretary sent saying, I set up this server for the purpose of sending unclassified information for my convenience, even though I know it’s not a secure system.”
Page viewed the situation somewhat differently, agreeing they were looking for “an intent to do an act which is in violation of the law’s central command.” As she told investigators, the FBI “couldn’t find any indicia of knowledge that she knew that these [classified emails] shouldn’t be traversing her server.”
In Anderson’s understanding, she was looking for a prosecutable reason behind the establishment of the server itself. Page, however, was looking at whether Clinton knew which emails should not have traveled through the private server.
Meanwhile, Bill Priestap, head of the FBI’s counterintelligence division and who was officially in charge of the Clinton investigation, said during testimony that he thought the “number of instances is absolutely a proper consideration” in establishing intent.
According to Ryan Breitenbach, who was the House Majority Counsel at the time of Priestap’s interview, the State Department had identified 22 top-secret emails and 1,300 classified emails on Clinton’s email server. As Breitenbach noted to Priestap during testimony, “I think there might be many who would question whether people in this room would still be in this room if we had hit 1,300 emails on our personal Gmail service.”
DOJ Not Willing to Charge This
Michael Steinbach (Credit: CSpan)
Priestap was shown an email sent from an unknown individual in the FBI general counsel’s office to Priestap’s former boss, Michael Steinbach, which contained a chart of “available statutes for prosecuting the former Secretary of State.” Gross Negligence was specifically excluded from the chargeable statutes available to the FBI. Priestap, who had not previously seen the document, expressed concerns that this might have hindered the work of FBI investigators.
Mr. Breitenbach: We see in this chart that DOJ is not willing to charge this, meaning 18 U.S.C. 793(f). My question is going back to those draft affidavits. If DOJ is not willing to charge this statute, why would the FBI in an affidavit use this statute as predication to obtain a search warrant if this statute is never going to be prosecuted?
Mr. Priestap: So I — I don’t know who put this together and used this language.
Mr. Breitenbach: Well, someone in the FBI general counsel’s office.
Mr. Priestap: Yeah. No. No. I trust you. But I don’t know why they, again, put it together. I don’t know why they used this language, ‘DOJ not willing to charge this.’
My attitude is that if there is a Federal criminal statute still on the books, then, you know — and we think there may or might be a violation of that, we still have to work to uncover whether, in fact, there was.
The prosecutive history of a particular statute isn’t going to affect — I sure hope it does not affect the fact-finder’s work.” (Read more: The Epoch Times, 2/25/2019)