February 25, 2019 – DOJ prevented the FBI from pursuing gross negligence charges against Clinton
“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)
December 19, 2018 – Lynch testimony reveals bias and intent for failing to give Trump defensive briefing
“The defensive briefing, after all, is a procedure that is often given to presidential candidates, elected officials and even U.S. businesses that have either been unwittingly approached by foreign actors attempting to gain trust and befriend those in position of influence.
The briefing allows the government to protect the candidates, specifically if there is substantial information or knowledge to suggest that someone has targeted an unwitting American for information. If the FBI or intelligence agencies suspect foreign adversaries may be trying to penetrate a presidential campaign, as those FBI and DOJ sources suggested in testimony to lawmakers, it would then be required to warn those affected, a senior former intelligence official told SaraACarter.com.
Why? Because foreign adversaries like China and Russia for example, and even allies, will attempt to glean information – or favor – from unwitting persons with access to senior level officials. The access can assist those nation’s own national interest or provide access for intelligence collection.
In the case of Trump, the FBI gave only a general counterintelligence briefing but did not provide information to the campaign that the FBI believed there were specific counterintelligence threats. For example, the FBI’s concern over campaign advisors George Papadopolous, Carter Page and then concerns over former national security advisor Lt. Gen. Michael Flynn.“It is an essential task of the FBI and the intelligence community to give a defensive briefing to a presidential candidate when a foreign adversary is attempting to penetrate or make contact with someone in the campaign,” said a former senior intelligence official. “If the FBI and DOJ were so concerned about Carter Page and (George) Papadopolous why didn’t they brief Trump when he became a candidate? The fact that they didn’t is very revealing. If they gave defensive briefing to the Clinton campaign then I think we have the answer.
Bruce Ohr’s 268-page testimony, released last week by Georgia Rep. Doug Collins reveals the machinations of the FBI’s investigation into the Trump campaign and the players involved. Ohr’s testimony coupled with testimony provided by former U.S. Attorney General Loretta Lynch, which has not been released but reviewed by this reporter, along with former FBI General Counsel James Baker’s testimony reveals a startling fact: everyone appeared to say they were concerned the Russian’s were penetrating the Trump campaign but no one at the DOJ or FBI authorized a defensive briefing.” (Read more: Sarah Carter, 3/14/2019)
July 13, 2018 – Lisa Page testimony reveals the DOJ prevented the FBI from pursuing gross negligence charges against Clinton
(…) “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:
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
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)
June 19, 2018 – Editorial: Andrew McCarthy addresses the “intent” behind Clinton’s unsecured, private server
(…) “The Obama Justice Department and FBI spin on intent takes no account of the 800-pound gorilla in the room: The only reason officials were put in this position of compromising intelligence was that their boss, Clinton, established an improper communications network. And, again, she perfectly well understood that this was a monumental security breach.
It was not just a matter of whether any single transmission was an intentional flouting of the rules. It was, more significantly, a matter of erecting a renegade network for the systematic conduct of the State Department’s most sensitive work — including communications with the president and other top national-security and foreign-policy officials.
And observe how perverse this is: The Justice Department and FBI’s crimped construction of intent and knowledge enabled Clinton — the person singularly responsible for creating the problem — to escape liability on the ground she could not be held responsible for poor decisions by her staff. Investigators reasoned that the secretary of state was one of the nation’s highest government officials, who was more often than not receiving, not sending, sensitive information, and who was inundated by so much information that she had no choice but to rely on underlings to make judgments about what information could safely be sent to her.
It is a classic in the Clinton genre: rules-don’t-apply-to-me sense of privilege causes mess; subordinates blamed for mess; Washington looks the other way. If the FBI thought it was tremendously important that Clinton was on the receiving end of most (but not all) classified emails (inference: it was not her fault that people who should have known better sent her secret intelligence), how could it not have been even more important that Clinton imposed a non-secure, non-government server on her subordinates’ ability to communicate with her?
Remarkably, even blinding themselves to critical evidence was not enough to bury the case. In order to conclude that there was no prosecutable offense, the Obama Justice Department and FBI still had to rewrite the applicable statute (the Espionage Act, codified in Section 793 of the federal penal code). That’s because, for all the supposed obsession about whether investigators had enough evidence of criminal intent, the law does not actually require such evidence — if one is an official who has been schooled in the handling of national defense secrets, gross negligence will do.
The IG obligingly confines this aspect of his perfunctory assessment to a footnote (number 124):
Even though Section 793(f)(1) does not require intent, prosecutors told us that the Department has interpreted the provision to require that the person accused of having removed or delivered classified information in violation of this provision possess knowledge that the information is classified. In addition, based on the legislative history of Section 793(f)(1), the prosecutors determined that conduct must be “so gross as to almost suggest deliberate intention,” be “criminally reckless,” or fall “just a little short of willful” to meet the “gross negligence” standard.
In other words, the Justice Department added proof elements that are not in the statute. The Espionage Act literally says that if you are a government official who has been entrusted with sensitive information, you are guilty if you either willfully cause its transmission to an unauthorized person or place (Section 793(d)), or are grossly negligent in permitting it to be removed from its proper custody, transmitted to an unauthorized person, or lost, stolen, or abstracted (Section 793(f)(1)).” (Read more: National Review, 6/19/2018)
A former FBI assistant director believes Comey could have indicted Clinton for gross negligence, but introduced an intent element that doesn’t apply.
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)
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 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.
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.”
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.”
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)
- 18 USC 793
- 22 top secret emails
- 30068 released emails
- 31830 deleted emails
- born classified
- Charles McCullough
- Cheryl Mills
- classification markings
- classified information
- Clinton's missing emails
- confidential level emails
- criminal investigation
- David Kendall
- deletion of Clinton's emails
- extremely careless
- FBI's Clinton email investigation
- Federal Bureau of Investigations (FBI)
- foreign intelligence
- gross negligence
- hacking attempt
- Heather Samuelson
- Hillary Clinton
- James Comey
- Justice Department (DoJ)
- private server
- private server configuration
- secret level emails
- security referral
- sorting of Clinton's emails
- State Department
- Top Secret / Special Access Programs (TS / SAP)
- top secret level emails
- US government