FBI Director Comey may be facing a “rebellion” of rank and file FBI agents.
Politico speculates that FBI Director James Comey may have reopened the FBI’s Clinton email investigation on October 28, 2016 at least in part as a response to FBI agents who have been critical of how the investigation was handled. “Comey is also facing dissent from his traditionally conservative rank-and-file agents over the decision in July  not to recommend charges in the Clinton email case. It’s unclear whether that played any role in his decision to essentially announce last week’s development.”
An unnamed “former FBI top official who has worked on similar investigations” says, “The stuff about a rebellion going on inside the [FBI] is absolutely true, but that’s not going to influence his decision. He loves his troops, but it’s not a fair judgment that that’s why he did it.” (Politico, 10/31/2016)
Former Justice Department spokesperson Emily Pierce says that Comey has “come under a lot of criticism from his own people for how he’s handled this. He’s trying to gain back some of their respect. … His ability to do what he does largely depends on the respect within his own ranks. He often does things because he’s trying to prove his bona fides to his rank and file. I think that’s part of it.” (Politico, 10/28/2016)
Between October 6 and 17, 2016, the New York Post, Fox News, and the Daily Caller reported on FBI agents, usually unnamed, who are upset with Comey and the FBI’s Clinton email investigation.
Huma Abedin has no idea how her emails got on her husband’s computer, according to her lawyer.
On October 28, 2016, FBI Director James Comey announced in a letter that the FBI’s Clinton email investigation is being at least partially reopened. Media reports quickly indicate this is due to 650,000 emails found on a computer, with some of them belonging to Clinton aide Huma Abedin.
Since Comey’s letter was made public, Abedin has kept out of sight and hasn’t made any public comments. But on this day, Karen Dunn, a lawyer for Abedin, releases a statement. She claims that while some media reports claim the computer was shared by Abedin and her husband Anthony Weiner (who has recently separated from her), it belonged solely to Weiner.
Additionally, Dunn says that Abedin “only learned for the first time on [October 28, 2016], from press reports, of the possibility that a laptop belonging to Mr. Weiner could contain emails of hers. While the FBI has not contacted us about this, Ms. Abedin will continue to be, as she always has been, forthcoming and cooperative.” She adds that Abedin has always been fully cooperative about any government inquiry into her emails.
Politico reports that Abedin has privately told colleagues she was taken aback to hear that the FBI found the emails. Furthermore, an unnamed “source close to the investigation” asserts that “no one asked” Abedin for consent to look at the emails, and the FBI has gotten a warrant from a judge instead. (Politico, 10/31/2016)
Clinton campaign manager John Podesta says of Abedin, “of course [the Clinton campaign] stands behind her.” He also says that “As far as we know everything that we had” belonging to Clinton and her top aides was turned over and reviewed by the time Comey announced he would not recommend any indictments in July 2016.
(Bloomberg News, 10/29/2016)
The Clinton campaign suggests that some emails released by WikiLeaks could be forgeries, but experts have found no evidence of this.
Since October 7, 2016, WikiLeaks has been publishing an average of about 2,000 emails from Clinton campaign chair John Podesta every day. Podesta and the Clinton campaign has admitted his account got hacked, but they have suggested that some of the emails could be forgeries. For instance, on October 9, 2016, Democratic vice presidential candidate Tim Kaine said in a CNN interview, “I don’t think we can dignify documents dumped by WikiLeaks and just assume they are all accurate and true. Anybody who hacks in to get documents is completely capable of manipulating them.”
However, Politico reports, “Clinton’s team hasn’t challenged the accuracy of even the most salacious emails… And numerous digital forensic firms told Politico that they haven’t seen any proof of tampering in the emails they’ve examined — adding that only the hacked Democrats themselves could offer that kind of conclusive evidence.”
Laura Galante, a director of the cybersecurity company FireEye, says, “It’s very hard to go verify what is true and what’s not. Even the victims of the accounts that are getting exposed are having a hard time.”
Politico also comments, “Experts have warned for months about the possibility that the document leaks may eventually include a sprinkling of falsehoods to stoke their impact, noting that Russian and Soviet intelligence services had long used such techniques against their enemies.” The US government alleges that the Russian government has been behind some recent hacking of US political entities.
A WikiLeaks spokesperson dismisses claims some of the emails are fake. “Standard nonsense pushed by those who have something to hide. WikiLeaks has won a great many awards for its journalistic work and has the best vetting record of any media organization. … In fact, it’s completely legitimate to everyone in the journalism industry that [the emails] are exactly as we say they are, which is why everyone is running with them.”
However, some experts point out that hackers could have tampered with emails before giving them to WikiLeaks, or they may choose to only selectively hand over emails that promote a certain political agenda.
Thomas Rid, a cybersecurity researcher and professor, says, “Of course it would be more effective for [the Russians] not to undermine the credibility of WikiLeaks in any way by altering documents. But if we look at their past behavior, that is certainly something that has been considered and actually done in the past.” (Politico, 10/12/2016)
Clinton’s lawyer refuses to comply with part of a subpoena for some of Clinton’s server security details.
Clinton’s personal lawyer David Kendall sends a letter to House Science, Space and Technology Committee chair Representative Lamar Smith (R), complaining about a recent Congressional subpoena to the computer company SECNAP, Inc., which assisted with the security of Clinton’s private server from 2013 onwards.
Kendall writes, “The subpoena … is overbroad. We have no objection to the production of documents related to the SECNAP security device used in connection with the server that … hosted Secretary Clinton’s emails from her tenure as secretary …. We do object, however, to the production of SECNAP documents and security information regarding security equipment that was used by CESC [Clinton Executive Security Corp.] after the prior server was provided to the FBI, and thus, never hosted Secretary Clinton’s work-related emails.”
Kendall continues, “Documents regarding this equipment are likely to contain sensitive information related to security of the current network and/or server. Because these documents are unrelated to the Committee’s investigation and contain sensitive security information, I respectfully object to the portion of the subpoena seeking their production.”
Because SECNAP was hired by CESC, a Clinton family company, they want approval from Clinton’s lawyers regarding cooperation with government authorities. (Politico, 09/23/16)
Congressional Republicans press for more documents from the FBI’s Clinton investigation.
The House Oversight and Government Reform Committee holds a classified hearing with Peter Kadzik, the Justice Department’s assistant attorney general for legislative affairs, to discuss document requests. Although the hearing is held behind closed doors, Politico will report on what takes place several days later.
Republicans believe the hearing is necessary because their request for a completely unredacted copy of the FBI’s Clinton investigation report has gone unanswered. They also have questions about the immunity deals the department handed out during the Clinton email investigation, and want to know who else besides Bryan Pagliano and Paul Combetta (both managers of Clinton’s private servers) received legal protection, who agreed to the immunity deals, and whether the deals require recipients to cooperate with other investigative bodies.
Politico writes, “Kadzik wouldn’t say. A Democratic source said he could not answer the questions because Republicans had only asked for the information a few hours earlier in a letter to the Justice Department, and the answers weren’t fully researched.”
Kadzik’s refusal to answer their questions doesn’t go over well with Republicans, and according to one Republican source, “the meeting deteriorate[s] from there.” Another Republican threatens a public hearing where Kadzik would have to testify if he fails to provide the information requested, and in effect dares him to say that “Congress [isn’t] entitled to it.”
The Justice Department will deliver the unredacted copies of the immunity agreements for Pagliano and Combetta on September 22, 2016, and the immunity agreements for former State Department officials Cheryl Mills, Heather Samuelson, and John Bentel will be provided the following day. (Politico, 09/23/2016)
A judge gives the State Department a tongue-lashing over its slow response to FOIA requests.
US District Court Judge Richard Leon criticizes the State Department over what he calls “foot-dragging” regarding Freedom of Information Act (FOIA) requests relating to Clinton’s tenure as secretary of state.
Leon warns Justice Department lawyers, “You have a client that, to say the least, is not impressing the judges on this court, myself included. … It is in your client’s interest to start being more obviously cooperative. The State Department is at risk of being perceived as obstreperous. [They] need to get with the program.”
The hearing is due to a FOIA lawsuit trying to force the release of documents on whether Clinton and her aides were trained to handle classified information. The State Department propose a deadline of October 17, 2016 to produce about 450 unclassified documents relating to the issue sought by the Daily Caller.
However, Leon orders the department to process and release of the records by October 10, 2016. (Politico, 09/19/16)
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)
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.”
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)
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)
Donna Brazile, vice chair of the DNC, appears to leak a debate question to the Clinton campaign in advance.
Brazile writes an email to Clinton’s campaign Communications Director Jennifer Palmieri. It is CCed to Clinton campaign chair John Podesta. Podesta’s email account will later be hacked, resulting in the release of the email by WikiLeaks on October 11, 2016. Brazile is also a CNN and ABC contributor at the time. In July 2016, she will be promoted to the interim head of the Democratic National Committee (DNC).
Brazile tells Palmieri, “From time to time I get the questions in advance. Here’s one that worries me about HRC.” Brazile then includes a question that will be asked at a town hall (a format similar to a debate) between Clinton and her main primary opponent Bernie Sanders, scheduled to occur the following day, on March 13, 2016. CNN anchor Jake Tapper and TV One host Roland Martin are to co-moderate the event.
Brazile’s question reads: “DEATH PENALTY 19 states and the District of Columbia have banned the death penalty. 31 states, including Ohio, still have the death penalty. According to the National Coalition to Abolish the Death Penalty, since 1973, 156 people have been on death row and later set free. Since 1976, 1,414 people have been executed in the U.S. That’s 11% of Americans who were sentenced to die, but later exonerated and freed. Should Ohio and the 30 other states join the current list and abolish the death penalty?”
Palmieri responds in the email, “Hi. Yes, it is one she gets asked about. Not everyone likes her answer but can share it.” (Wikileaks, 10/11/2016)
On October 12, 2016, the day after WikiLeaks releases the email, Politico will write about the similarities between the question Brazile wrote and the actual question Roland Martin asked at the town hall. According to the CNN transcript, Martin asked, “Secretary Clinton, since 1976, we have executed 1,414 people in this country. Since 1973, 156 who were convicted have been exonerated from the death row. This gentleman here is one of them. This is Ricky Jackson, wrongfully convicted of murder in 1975, he spent 39 years in prison. He is undecided. Ricky, what is your question?”
Politico will write that Martin initially said in an interview that he did not “share my questions with anybody. Literally. My executive producer wasn’t even aware of what I was going to ask.” In a follow up interview, Martin will say that he did send his questions to CNN via his producer and his TV One team. In a third follow up email, Martin will say he did not believe had had consulted with Brazile ahead of the town hall.
Brazile will deny that she notified the Clinton campaign of the proposed question, despite the clear evidence of the leaked email. “As a longtime political activist with deep ties to our party, I supported all of our candidates for president. I often shared my thoughts with each and every campaign, and any suggestions that indicate otherwise are simply untrue. As it pertains to the CNN Debates, I never had access to questions and would never have shared them with the candidates if I did.” (Politico, 10/11/2016)
Two days after the leak, CNN anchor Jake Tapper will blast Brazile and TV One host Roland Martin for their apparent involvement in leaking the Democratic town hall question to the Clinton campaign: “It’s very, very troubling… whatever took place here, and I know that I had nothing to do with it, and I know that CNN, we were so closely guarding our documents, you couldn’t even, they weren’t ever emailed around. … We wanted to put her in a tough situation. You [Clinton] support the death penalty and here’s somebody who was almost killed by the death penalty, what’s your reaction to him?… To find out that somebody was unethically helping the Clinton campaign and tipping them off, is just very, very upsetting.” (WMAL, 11/13/2016)
Colin Powell writes, “I didn’t tell Hillary to have a private server at home.”
Former Secretary of State Colin Powell writes an email to former Reagan White House chief of staff Kenneth Duberstein. “I didn’t tell Hillary [Clinton] to have a private server at home, connected to the Clinton Foundation, two contractors, took away 60,000 emails, had her own domain.”
On the same day, in a separate email to Condoleeza Rice, who succeeded him as secretary of state, Powell writes, “Been on the phone and email all afternoon. Hillary and Elijah Cummings have popped off.”
Also on this day, the State Department’s Office of Inspector General (OIG) released a memo after reviewing the email practices of the past five secretaries of state. It was determined that 12 emails obtained by the inspector general contained classified national security information, two of which went to the personal email account of Powell and ten of which went to the personal email accounts of the immediate staff of Rice. The memo also states that the information was not marked as classified.
Representative Elijah Cummings (D) releases a statement in response to the OIG’s findings, and concludes, “Based on this new revelation, it is clear that the Republican investigations are nothing more than a transparent political attempt to use taxpayer funds to target the Democratic candidate for President.” (House Oversight Committee, 02/04/16)
Two days later, Rice writes back to Powell, “I don’t think Hillary’s — ‘everyone did it,’ is flying.” (Politico, 09/13/16)
The hacker website DCLeaks.com will publish Colin Powell’s hacked emails on September 13, 2016.
The State Department’s internal watchdog slams the department’s FOIA process.
The State Department’s inspector general Steve Linick issues a report claiming that the department “repeatedly provided inadequate and inaccurate responses to Freedom of Information Act [FOIA] requests involving top agency officials, including a misleading answer to a request three years ago seeking information on Secretary of State Hillary Clinton’s email use.”
Politico states the new report also points to “a series of failures in the procedures the office of the secretary used to respond to public records requests, including a lack of written policies and training, as well as inconsistent oversight by senior personnel.”
According to the report, “These procedural weaknesses, coupled with the lack of oversight by leadership and failure to routinely search emails, appear to contribute to inaccurate and incomplete responses.”
One important flawed department response was a letter sent to the watchdog group Citizens for Responsibility and Ethics in Washington (CREW) in May 2013 after the organization asked for details on email accounts used by Clinton. State’s response to CREW was, “no records responsive to your request were located.” The report says the inspector general’s office “found evidence that [Clinton’s chief of staff Cheryl Mills] was informed of the request at the time it was received and subsequently tasked staff to follow up.” However, according to the report, none of those officials appear to have reviewed the results of the search done in the department’s files, and there was “no evidence” that those staffers who did the search and responded to CREW knew about Clinton’s private email setup. CREW followed up last year by saying it never received any final response to its FOIA request.
Other flaws pointed out by the inspector general’s report include extreme delays in other cases, such as an Associated Press FOIA request for Clinton’s schedules that was pending without substantive response for five years.
Politico also filed a FOIA request for legal and ethics reviews of former President Bill Clinton’s paid speeches. That request was pending for four years before the department began producing records.
Another failed response involved a Gawker request for emails that former Clinton adviser Philippe Reines exchanged with 34 news organizations. Politico reports “that request initially received a “no records” response from [the] State [Department], even though State has now found 81,000 potentially responsive emails in its official files. At a court hearing last month, a government lawyer would not concede that the no-records response was inadequate.” (Politico, 1/7/2016)