“The DOJ required the FBI to establish evidence of intent in regards to Clinton—even though the gross negligence statute explicitly does not require this.
This meant that the FBI would have needed to find a smoking gun, such as an email or an admission from Clinton.
The word “intent” drove the entirety of the FBI’s investigation.
Anderson viewed intent as “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.”
According to 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.
Included within Clinton’s emails was “classified information up to the Special Access Program level.”
The classification level of SAPs is so high that Anderson refused to define her understanding of SAPs in the unclassified interview setting before congressional investigators
An email sent from an unknown individual in the FBI general counsel’s office to Priestap’s former boss, Michael Steinbach, contained a chart of available statutes for prosecuting Clinton.
Gross Negligence was specifically excluded.
Lisa Page appeared to indicate during her testimony that because of the DOJ’s position, there was no reason for the FBI to even pursue evidence related to the specific statute of gross negligence.
Under Anderson’s understanding of the DOJ’s standard, the extreme volume of emails was not a factor, nor was the classification level of the emails, as long as those being investigated were able to say they simply didn’t know any documents were actually classified.
Despite this, not everyone within the FBI agreed w/the DOJ.
FBI General Counsel James Baker:
“I thought these folks should know that this stuff is classified, that it was alarming what they were talking about, especially some of the most highly classified stuff.”
Page, Baker, and Anderson all testified that the gross negligence statute was rarely, if ever used, as part of their explanation for the DOJ’s unwillingness to pursue, but this logic was repeatedly challenged by then-majority House counsel Breitenbach.
“If part of that rationale was that it had never been used, then, by extension, one might presume that other statutes that are on the books, if they aren’t being used, should not be ever considered as predication for a prosecution.”
Anderson, the #2 lawyer at the FBI, was asked about her understanding of the difference between gross negligence and extreme carelessness.
Anderson answered that she didn’t “know exactly what the precise difference is between extremely careless and gross negligence.”
Which begs the question of why Anderson, among others, felt compelled to push Comey to change the language within his statement from the legal term of gross negligence to the non-legal term of extremely careless.
According to Anderson’s testimony, the FBI never even looked into negligence due to the DOJ’s legal position:
The issue at the heart of the Clinton email investigation was summarized by Breitenbach:
“The Department of Justice made a decision that intent was required, even though we have a statute on the books that does not require intent that [only] requires gross negligence.”
Absent a major error on her part, it appears that Clinton was effectively in the clear from the outset of the FBI investigation due to the DOJ’s decision to require intent.17)
With the exceptions of Moffa, Evans, and Hickey, every individual from the FBI and DOJ mentioned in the article has either been fired or has resigned.
(Republished in part with permission)