classified annex

April 16, 2019 – Senators Grassley, Graham and Johnson ask AG Barr for a classified appendix to Horowitz’s previous report re various actions by the FBI and DOJ during the Clinton email investigation

From left to right, Senators Lindsey Graham, Charles Grassley and Ron Johnson (Credit: public domain)

“Three Senate committee chairmen are calling on the Justice Department to provide previously-sought information related to the FBI’s handling of the Clinton email server investigation. DOJ initially refused to furnish the information, citing the ongoing special counsel investigation. Following the conclusion of Special Counsel Robert Mueller’s probe, Judiciary Committee Chairman Lindsey Graham, Finance Committee Chairman Chuck Grassley and Homeland Security & Governmental Affairs Committee Chairman Ron Johnson are renewing the request.

“Now that the Special Counsel’s investigation has concluded, we are unaware of any legitimate basis upon which the Department can refuse to answer the Judiciary Committee’s inquiries,” the senators wrote in an unclassified cover letter to Attorney General William Barr.

The chairmen’s request stems from a classified annex to a DOJ Inspector General report on the FBI’s investigation into former Secretary of State Hillary Clinton’s use of a private email server for official business and mishandling of classified information. The unclassified portion of the report describes an FBI effort to review highly-classified material that was potentially relevant to its ongoing server investigation codenamed Midyear Exam. In May of 2016, around the same time then-FBI Director James Comey was drafting a statement exonerating Clinton, the FBI’s Midyear team wrote a memo seeking DOJ permission to review highly-classified information “necessary to complete the investigation,” according to the unclassified IG report. However, the memo was never sent to DOJ and the Midyear investigation was closed shortly thereafter. The classified annex includes additional detail about the information in question, its potential relevance to the Midyear investigation and the FBI’s justification for failing to review it.

In July of 2018, the Judiciary Committee requested a DOJ briefing to discuss questions raised by the classified annex, and followed up with a classified letter in October. However DOJ initially declined to provide the information, citing the ongoing special counsel investigation into matters related to Russian interference in the 2016 election. Now that the special counsel’s investigation has concluded, the chairmen are renewing their request for details on the FBI’s decision not to seek potentially-relevant information during the Midyear investigation.

Today the chairmen resubmitted the October 2018 classified letter to Attorney General Barr regarding the IG classified annex.  An unclassified cover letter accompanying the request follows:

April 16, 2019
VIA ELECTRONIC TRANSMISSION
The Honorable William Barr
Attorney General
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, D.C. 20530
Dear Attorney General Barr:
On October 17, 2018, the Judiciary Committee sent a classified letter to the Justice Department regarding the Inspector General’s classified appendix to its report titled, “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election.”  As noted on page 154 of Chapter 5 of the Inspector General’s unclassified report, the classified appendix raises significant issues associated with the FBI’s failure to review certain highly classified information in support of its Midyear investigation.[1]  In particular, the Inspector General noted that it learned that the FBI acquired classified material that “may have included information potentially relevant to the Midyear investigation.”  The FBI even drafted a memorandum in May of 2016 stating that access to the information was “necessary to complete the investigation.”  However, that memorandum was never completed.  During the Inspector General’s investigation, when FBI witnesses were interviewed by the Inspector General, they took the position that the information would not materially impact the conclusion.  That explanation is inconsistent with the memorandum’s self-identified purpose and demands clarification.
Furthermore, on July 31, 2018, the Judiciary Committee requested a briefing on the steps the Department has taken, or plans to take, in light of the report’s findings.  In a subsequent phone call with Department personnel on September 17, 2018, the Department declined to brief the Judiciary Committee, asserting without any clear basis, that it would interfere with Special Counsel Mueller’s equities.  Now that the Special Counsel’s investigation has concluded, we are unaware of any legitimate basis upon which the Department can refuse to answer the Judiciary Committee’s inquiries.
Accordingly, we are reissuing the attached classified letter regarding the important questions raised by the appendix and reiterating our request for a classified briefing on the subject.  Please respond to these questions no later than April 26, 2019.  Should you have questions, please have your staff contact Zachary Somers of Chairman Graham’s staff at 202-224-5225, Joshua Flynn-Brown of Chairman Grassley’s staff at 202-224-4515, or Joseph Folio of Chairman Johnson’s staff at 202-224-4751.[2]
Thank you for your prompt attention to this matter.
Sincerely,
Lindsey O. Graham
Chairman
Committee on the Judiciary
Charles E. Grassley
Chairman
Committee on Finance
Ron Johnson
Chairman
Committee on Homeland Security and Government Affairs
cc:
   The Honorable Dianne Feinstein
   The Honorable Gary C. Peters
   The Honorable Ron Wyden
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[1] Unclassified Inspector General Report, p. 154.  “In addition, as we describe in the classified appendix to this report, the OIG learned near the end of our review that the FBI had considered obtaining permission from the Department to review certain classified materials that may have included information potentially relevant to the Midyear investigation.  Although the Midyear team drafted a memorandum to the Deputy Attorney General in late May 2016 stating that review of the highly classified materials was necessary to complete the investigation and requesting permission to access them, the FBI never sent this request to the Department.  FBI witnesses told us that they did not seek access to these classified materials for various reasons, including that they believed this information would not materially impact the conclusion.  The classified appendix describes in more detail the highly classified information, its potential relevance to the Midyear investigation, the FBI’s reasons for not seeking access to it, and our analysis.”
[2] Chairman Johnson joins these requests as a continuation of the Homeland Security and Governmental Affairs Committee’s oversight of these issues.  See S. Rule XXV(k); S. Res. 445, 108th Cong. (2004); S. Res. 70, 116th Cong. § 12(e)(1)(A) ( 2019).

(Grassley/Senate, 4/16/2019)