WASHINGTON — FBI agents have renewed questions about the dealings of the Clinton Foundation after calls from President Donald Trump and top Republicans for the Justice Department to take a fresh look at politically charged accusations of corruption, people familiar with the investigation said Friday.

Agents have interviewed people connected to the foundation about whether any donations were made in exchange for political favors while Hillary Clinton was secretary of state from 2009 to 2013, the people said. Career prosecutors had shut down the investigation in 2016 for lack of evidence.

During the presidential campaign, Trump branded his Democratic rival “Crooked Hillary” and promised to send her to jail if he won. He briefly struck a more magnanimous tone after the election, however, and said he had no interest in pushing for a prosecution.

But as his legal problems have mounted, Trump has returned to his attacks on Clinton. With four former aides facing federal charges and the special counsel, Robert Mueller, investigating him and his campaign, Trump has openly called for Clinton to be investigated and for one of her top aides, Huma Abedin, to be imprisoned.

It is unclear exactly when the FBI renewed its interest in the Clinton Foundation, or whether agents were instructed by anyone in Washington to start investigating again.

However, the probe’s very existence already has led to accusations from Democrats that the Republican administration is pursuing old, dead cases to punish political enemies. A continued investigation of Clinton could be viewed, particularly by Republicans, as the Justice Department being evenhanded in its approach to political cases.

Ron Hosko, a former assistant FBI director, noted that the bureau has been thrust into a “political minefield,” with pundits criticizing its every move.

As Mueller’s investigation has intensified, the president and his conservative allies have mounted blistering counterattacks trying to discredit the FBI and federal prosecutors. Trump has described the investigation as a witch hunt and accused FBI leadership under the bureau’s former director, James Comey, of being biased toward Clinton.

Some congressional Republicans have sought to cast doubt on a contentious dossier of unsubstantiated claims about Trump. On Friday, two influential Republican senators asked the Justice Department to investigate whether the author of the dossier, Christopher Steele, a former British spy, lied to federal authorities.

Trump’s calls to investigate Clinton break with long-standing presidential practice. Since the Watergate scandal, the Justice Department has conducted criminal investigations largely free of political influence from the White House.

Trump, by contrast, has declared that he has an “absolute right to do what I want to do with the Justice Department.”

The Clinton Foundation dismissed the investigation as politicized.

“Time after time, the Clinton Foundation has been subjected to politically motivated allegations, and time after time these allegations have been proven false,” Craig Minassian, a spokesman for the foundation, said in a statement.

Nick Merrill, a spokesman for Clinton, added: “Let’s call this what it is: A sham. This is a philanthropy that does life-changing work, which Republicans have tried to turn into a political football. It’s disgraceful, and should be concerning to all Americans.”

The foundation, which was formed in 1997 during Bill Clinton’s presidency and has raised roughly $2 billion, has been a repeated target for Republicans.

In 2015, conservative author Peter Schweizer published Clinton Cash: The Untold Story of How and Why Foreign Governments and Businesses Helped Make Bill and Hillary Rich, an investigation of donations to the foundation made by foreign entities.

Schweizer is the president of the Government Accountability Institute, where Steve Bannon, Trump’s former chief strategist, was a founder and the executive chairman.

The Justice Department, in a letter sent in November to the House Judiciary Committee, said prosecutors would examine allegations that donations to the Clinton Foundation were tied to a 2010 decision by former President Barack Obama’s administration to allow a Russian nuclear agency to buy Uranium One, a company that owned access to uranium in the United States, as well as other issues.

The letter appeared to be a direct response to Trump’s statement days earlier that he was disappointed with Attorney General Jeff Sessions for not investigating Hillary Clinton. An administration official said the FBI had taken steps related to the foundation investigation before the Justice Department sent the letter to the Judiciary Committee.

In the letter, the Justice Department wrote that the attorney general had directed “senior prosecutors to evaluate certain issues.” Those prosecutors would make “recommendations as to whether any matters not currently under investigation should be opened, whether any matters currently under investigation require further resources, or whether any matters merit the appointment of a special counsel.”

The Clinton Foundation probe dates back to 2015, when FBI agents in Los Angeles, New York, Little Rock and Washington began looking at those who had made donations to the charity, based largely on news accounts, according to people familiar with the matter.

At the direction of Mark Giuliano, deputy director of the FBI from late 2013 until early 2016, the investigations were consolidated at FBI headquarters in Washington and placed under the supervision of career public-integrity prosecutors.

In 2016, Justice Department prosecutors rejected a request from FBI agents to expand and intensify their work. They asked that the bureau not take any investigative steps that could become public, out of worry that could affect the impending election.

The investigation resumed some time after the election, with the FBI’s Little Rock office taking the lead, said one person familiar with the matter.

Still, there was some skepticism inside the Justice Department that it would ever produce charges.

“It was never a great case, but it’s still being worked,” another person familiar with the probe said.

All six members of the Arkansas congressional delegation declined to weigh in on the news. So did U.S. Attorney Cody Hiland, who serves the Eastern District of Arkansas.

A spokesman for the Democratic Party of Arkansas, Graham Senor, said the investigation appears to be a politically motivated attempt to shift attention from Trump’s legislative setbacks and the Russia investigation.

“It seems like a ridiculous waste of time, resources and money,” Senor said.

Information for this article was contributed by Adam Goldman and Matt Apuzzo of The New York Times; by Matt Zapotosky and Devlin Barrett of The Washington Post; by Sadie Gurman and Eric Tucker of The Associated Press; and by Frank E. Lockwood of the Arkansas Democrat-Gazette.

A Section on 01/06/2018

SOMERVILLE, Mass.

Donald J Trump is unlikely to win a second term.  It may seem beside the point to dwell on the circumstances in which he was elected in the first place.  It isn’t.  Understanding the events of the last days of the 2016 campaign is essential to understanding some of the difficulties that lie ahead.

To be clear, two quite different controversies have been unfolding over the last four years. Both involve the FBI. One concerns the investigation of connections among Trump, his businesses; his campaign and Russia’s leader, Vladimir Putin, Paul Manafort, the Steele dossier, Russian hackers, WikiLeaks, shadowy  Russians promising dirt,  the Foreign Intelligence Surveillance Act court, future short-lived National Security Adviser Lt. Gen. Michael Flynn, Trump attorney Michael Cohen, and all that.

The other revolves around accusations of political partisanship, one way or another, within the FBI: Director James Comey, Deputy Director Andrew McCabe, agent Peter Strzok, FBI attorney Lisa Page, Attorney General Loretta Lynch, Justice Department Inspector General Michael Horowitz,  former U.S. Attorney and New York Mayor Rudy Giuliani, and so on. The two stories overlap occasionally, but not much.

When it comes to the second, more important story, the place to start is October Surprise: How the FBI Tried to Save Itself and Crashed an Election (Public Affairs, 2020), by Devlin Barrett, of The Washington Post.

As a reporter for The Wall Street Journal, Barrett wrote four crucial stories in  ten days on the eve of the election.  One of them has been at the center of the battles surrounding the FBI ever since. Now, after nearly four years as reporter for the WPost, Barrett has written a book that makes intelligible the whole tangled affair. October Surprise is an important book.

Barrett’s first article, headlined “Clinton Ally Aided Campaign of FBI Official’s Wife,” appeared 10 days before the election.  It disclosed that Deputy Director McCabe’s wife, Dr. Jill McCabe, a 2015 candidate for Virginia Senate, had received $467,500 from Virginia Gov. Terry McAuliffe’s political action committee. (She was defeated.)  McAuliffe was a long-time ally of the Clintons and, until he was elected governor, in November 2013, a Clinton Foundation board member.  Barrett noted that McAuliffe had been under investigation by the FBI’s Washington field office in a probe of $120,000 of donations to his campaign by a Chinese businessman with no specified charge.

The second story, “FBI Reviewing Newly Discovered Emails in Clinton Server Probe,” described the letter that FBI Director James Comey had sent that day to Congress. He was reopening the investigation of Hillary Clinton’s email he had unilaterally closed three months before, because of the discovery of a laptop computer. Byron Tau had the first byline; Barrett apparently contributed essential background on the “dysfunctional relationship between Justice Department and the FBI.”

Barrett’s third story, “FBI in Internal Feud over Hillary Clinton Probe” appeared eight days before the election. It revealed the existence of a previously undisclosed FBI investigation of the Clinton Foundation. The probe had begun a year before; by early 2016 four field offices – Little Rock, Los Angeles, New York and Washington were investigating charges that financial crimes or influence peddling had occurred at the charity. Some agents had grown frustrated, believing that FBI leadership balked at the probe, perhaps ordered by Obama administration Justice Department officials to close it down.

In fact, Deputy Director McCabe had turned aside Justice Department inquiries in August 2016, Barrett reported, “according to people familiar with the conversation.”  At one point, McCabe had challenged a supervisor, “Are you telling me that I need to shut down a properly predicated investigation?” After a pause, the official replied, “No, of course not,” according to Barrett’s unidentified source. The investigation continued, though in a low key way, in the months before the election.

Barrett’s fourth story, “Secret Recordings Fueled FBI Feud in Clinton Probe,” confirmed details of stories that had appeared the day before and added some of his own. The Clinton Foundation investigation had been predicated on, among another things, a book, Clinton Cash, written by a former George W. Bush speechwriter, Peter Schweizer, and bankrolled by Steve Bannon, a couple of years before he became Trump’s campaign manager. A secret recording of a source boasting of deals allegedly done by the Clintons was another element, according to Barrett.

All that in the two weeks before the election.

It was Comey’s decision to reopen the email investigation that dominated the news, but Barrett’s second and third stories had disclosed the existence of a much more complicated battle within the FBI. The significance of the laptop emails themselves quickly evanesced, but the anger about Clinton’s private server was renewed. It seems likely that the reopened investigation, not Russian tampering, provided the push that put Trump over the top.

The Clinton Foundation investigation has flitted in and out of the public eye ever since, most recently as the basis for Trump’s increasingly urgent exhortations to Attorney General Barr to indict one or both Clintons for felony influence-peddling.  John Huber, the U.S. Attorney in Utah, tasked by former Attorney General Jeff Sessions to review the Clinton investigation, has been reported to have found nothing worth pursuing, and forwarded his report to Barr. The matter is now in the hands of FBI Director Christopher Wray, former Connecticut US Attorney John Durham and Barr. Barr’s decision is expected not long after the election.

.                                                               xxx

Every complicated story requires a timeline. Barrett took this truth to heart and built the timeline into the narrative.  His book is divided into three parts.  The first involves stage-setting and background. The middle part starts with Comey’s unilateral decision on July 5 to make public his recommendation that no charges be filed against Clinton for her email practices. It ends with the November election. It takes up 60 percent of the book’s 324 pages; the chapters are dated (including named days of the week) and sequential. The third part relates what happened over the next four years. Barrett has an advantage in the telling, especially myriad details established by the Justice Department Inspector General’s review, including the real-time intimate commentary on matters via the work-phone texts of agent Strzok and FBI lawyer Page. The result verges on point-of-view ubiquity.  You know, or like to think you know, what nearly everybody is thinking.

Thus Barrett begins his account with the 2012 drone-missile strike against suspected terrorists meeting in a tent in the wilds if Waziristan, a mountainous region of Pakistan, a few details of which were incorporated in emails that eventually wind up on Hillary Clinton’s private server.  In a few pages Barrett follows the path of their discovery to an FBI manager’s determination, in July 2015, to pursue a criminal investigation instead of a more easily finessed “spillage review.”

There follows a chapter on Comey, another on McCabe, the man he chose as his deputy, and a third on Loretta Lynch,  whom Comey had known and liked since both were young assistant US attorneys in Brooklyn in the 1990s. In 2016, as Attorney General, she was Comey’s boss. A fourth chapter is devoted to Lynch’s decision to meet with former President Bill Clinton, whom she knew to be under FBI investigation, when, in their respective planes, both were delayed by a storm in Phoenix, Arizona.  These are commodious chapters and allow Barrett to equip the reader with all sorts of relevant knowledge: the divisions arising from the rapid expansion of the FBI’s responsibilities after 9/11 to include counter-terrorism duties as well as traditional law enforcement work; the effect on Comey of his brief sabbatical from government work as chief of security at Bridgewater Associates, a successful hedge fund; and a description of changing attitudes about race and gender at the Justice Department.

The middle part, the timeline, proceeds at a breakneck-pace, one astonishing development after another, on the Clinton and Trump campaign trails (30,000 emails said to be non-job-related had been deleted from the Clinton server; “Russia, if you’re listening…,” said Trump), down to those final four weeks,  week-by-week, finally day-by-day, beginning on September 27. That was the day on which FBI agent John Robertson, a specialist in child abuse, assigned to search Anthony Wiener’s laptop computer in New York (one of Wiener’s texting partners was 15 years old), discovered a trove of 141,000 previously unexamined Clinton emails that had been forwarded to her friend and close State Department associate Huma Abedin, Wiener’s wife.  Robertson forwarded the news to Washington the next day, where the discovery was shared among thirty senior managers in a conference call.  (This is the point at which begin the portions of the manuscript published by The Washington Post, starting on page one, last month.)

There follow three weeks in which nothing was done to search the emails. So much else was going on – a tug-of-war over the Steele dossier, the first Wikileaks of the Democratic National Committee emails. It turns out that inattention to the laptop was the result of a stand-off. New York agents wanted a warrant.  McCabe, though he consulted Strzok, didn’t seek one; nor did he tell his boss, who had been at a hearing on Capitol Hill on the day the discovery was announced, being grilled by Republican members of the Freedom Caucus. By Wednesday Oct. 19, Robertson was getting nervous.  He consulted FBI lawyers, who warned him that if he leaked news of the laptop, he could go to prison. He composed a memorandum to himself.

On Monday, Oct. 24, the first of Barrett’s bombshell stories, appeared, “Clinton Ally Aided Campaign of FBI Official’s Wife.” At this point Barrett’s play-by-play of six chapter, 62 pages, becomes too intricate to describe – and too absorbing to put down. On Tuesday, Nov. 8, the election was held. Trump won, by the narrowest of margins. The rest is the third part of Barrett’s book.

The last section of October Surprise describes the fallout from those few weeks. The very day Comey was fired, May 9, 2017, McCabe told bureau internal investigators that he had “no idea” where the leak in Barrett’s third story came from.  Confirming that the Clinton Foundation was under investigation was a serious breach of the rules.  It turned out he had himself authorized two of his aides to travel to Manhattan to make the disclosures in person to Barrett. McCabe was fired, and subsequently nearly indicted for lying under oath. Robert Mueller began his investigation. The extra-marital affair between Strzok and Page was discovered, their emails belittling Trump widely read. They were humiliated and reassigned. In his final chapter, Barrett comes down hardest on Comey as a well-meaning moralist, who without intending to, opened Pandora’s box. “Whoever wins the 2020 election, the once-sacrosanct ten-year term of FBI directors may be cut short again,” Barrett concludes.

.                                                               xxx

Quite aside from the light it casts on the election, October Surprise must be one of the best books ever written on the practice of newspaper journalism. Certainly I’ve never read a better one: only The Making of the President (1960), by Theodore White, and All the President’s Men (1974), by Carl Bernstein and Bob Woodward, compare.  Its virtue, however, obscures a weakness.  Barrett’s book is a strictly internal history.  From whom does the FBI seek to “save itself,” as the subtitle asks?  From itself; from departures from its own ideals of Fidelity, Bravery, Integrity; from blemishes to the reputation it had largely regained in the years since Watergate.

Surely it is equally true that the bureau’s top managers were trying to insulate both the agency and its Justice Department overseers from outsiders seeking to persuade its agents to act for illegitimate political purposes. These outsiders don’t appear in Barrett’s account. There is no Freedom Caucus of scapegoating Congressional Republicans, no Fox News, no Bannon, no Breitbart, and no Wall Street Journal editorial page. The story of criminalizing political behavior reaches back to special prosecutor Kenneth Starr, the Whitewater Investigation, and the “Contra-gate” scandal of the Reagan years.

Thus in some ways the most interesting figure in Barrett’s book appears only once, at the very beginning.  He is Mike Steinbach, assistant director for the FBI’s Counter-Terrorism Division.  It was he who made the decision to investigate certain disclosures of classified matters on Clinton’s email server as a possible criminal matter, rather than a much less serious “spillage case.” He then circulated news of what he had done in a memo to his colleagues. What was he thinking? It is pointless to ask. The FBI has 34,000 employees. You can’t call those among them who disapprove of Hillary Clinton “mutineers.”  It is an organization that has to be led.

But the take-away lesson of Barrett’s book is that a spreading campaign among a relative handful of rebellious FBI agents stampeded the director into a disclosure that tipped the election to Donald Trump. That is a considerable blot on the Bureau’s escutcheon to live down.  And after the inauguration? That is part of the story, too. As noted  in Lawfare, Inspector General Horowitz’s report including this exchange of texts between two agents on Nov. 9, 2016, both of them working on campaign issues:

Handling Agent: “Trump!”

Co-Case Handling Agent: “Hahaha. Shit just got real.”

Handling Agent: “Yes it did.”

Co-Case Handling Agent: “I saw a lot of scared MFers on…[my way to work] this morning. Start looking for new jobs fellas. Haha.”

Handling Agent: “LOL”

A persuasive external account of the factors leading to Comey’s fateful decision will be many years in coming. The author must aspire to the same high standards as Barrett’s internal account. In the meantime, get ready for Attorney General’s Barr’s decision with respect to the Clinton Foundation investigation, and to President Trump’s reaction to it. If Biden is elected, no Cabinet appointment that he makes will be more important than Attorney General.  Follow the story in The Washington Post.id

David Warsh, an economic historian and veteran columnist, is proprietor of Somerville-based economicprincipals.com, where this first appeared.

In his new book October Surprise, journalist Devlin Barrett recounts some sage advice he’d been given by Sandy Johnson, the longtime Washington bureau chief of the Associate Press and later president of the National Press Foundation:

October is dangerous territory in election years, because the stakes are so high, the political strategists are so ruthless, and journalists are so tired. In this heightened atmosphere at the end of an election, the consultants dig out the meanest, ugliest oppo research and peddle it to sway an election. The worst danger is in those final weeks, because a false narrative or outright lie is hard to disprove or counter.

The book focuses on the two big FBI investigations at the end of the 2016 election, one concerning Hillary Clinton’s emails from her time as Secretary of State (“Midyear”), the other focused on the Trump campaign’s ties to Russia (“Crossfire Hurricane”).  As a Wall Street Journal reporter at the time, Barrett (now at the Washington Post) played a tangential, but not insubstantial role in covering the investigations and, in at least one very significant way, influencing them.

Barrett’s quotation of Johnson’s warning comes in the context of describing attempts by the FBI to discover if the Trump Campaign was planning an “October Surprise” in 2016.  The month of October 2016 was full of them, and how they each came about is still largely unknown.  For example, in the afternoon of Friday, October 7, 2016 three consecutive bombshells dropped.  First, at 3:30pm the Obama administration issued a press release accusing the Russian government of hacking the emails of the Democratic National Committee.  Just thirty minutes later, the Washington Post published a 2005 video from an “Access Hollywood” interview where Donald Trump bragged about his ability to accost women (“It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the pussy.”). About 4:30 pm, WikiLeaks began releasing e-mails stolen from Clinton campaign chairman John Podesta, providing almost endless opportunities for false or misleading stories about Clinton and her campaign in the final weeks before the election.

These stories provided an array of  “narratives” for the final weeks of the election, but were largely displaced at the end of the month by what turned out to be the largest surprise of them all, the FBI’s decision to reopen the previously closed Clinton email investigation and seek a search warrant to review emails held on the laptop of disgraced former Congressman Anthony Weiner, the husband of Clinton’s longtime aide Huma Abedin.  That story dominated the final ten days before the election, almost certainly providing Donald Trump with enough of a swing in his direction to account for his very slim margin of victory in four key states.

While the source of the Access Hollywood tape remains an unsolved mystery, much has been written about the Russian government hacking of the DNC emails and the subsequent release by WikiLeaks, as well as the decision by James Comey to reopen the Clinton email investigation.  Still, some further mysteries remain, and Devlin Barrett’s role is one of them, notwithstanding his new book.

An October 12, 2019 New York Times story on James Comey revealed that the former FBI director is a fan of Hanlon’s razor, the maxim “never attribute to malice that which is adequately explained by stupidity.”  It’s a great rule of thumb that helps you avoid speculation about people’s motives.  And I believe it explains most of what happened with the re-opening of the Clinton e-mail investigation, which was just one mistake after another.  The surprising thing to me is that no one seems to have noticed the errors, not least of all the participants who played a key role, including both Comey and Barrett.

The re-opening of the Clinton e-mail investigation at the end of October 2016 was the result of two independent complaints from within the FBI that managed, by coincidence, to create a maelstrom.  The first of these complaints has already been well-documented, but Barrett provides even more details.  On September 27, John Robertson the FBI special agent in New York who was tasked with searching the laptop of Anthony Weiner for evidence of his sexting an underage girl discovered that the laptop also contained a large cache of emails (over 340,000) from Huma Abedin’s account, including many from the time when she was working as Secretary Clinton’s assistant at the State Department.  The agent dutifully notified his superiors and the information was passed on to Washington the very next day.  Pretty much everyone on the Midyear leadership team was informed (although Comey later said he did not remember hearing about it).  The team was led by Deputy Director Andrew McCabe and included Executive Assistant Director Michael Steinbach, Associate Director Bill Priestap, Agent Lead Peter Strzok and a Supervisory Special Agent (“SSA”) (whose name has never been disclosed).  The SSA was given the task of investigating further.  A warrant would be needed if anyone wanted to review the emails.

And then nothing happened.  The Inspector General Michael Horowitz in his June 2018 report found four explanations for this inaction: (1) the FBI was waiting for additional information, (2) the FBI needed a search warrant, (3) the FBI did not believe that the information was likely to be significant, and (4) members of the team were reassigned to the investigation of Russian interference into the election.  Horowitz took the FBI to task for not following up quickly, finding the various explanations “unpersuasive justifications for not acting sooner.”  But Horowitz was clearly wrong.  The two middle explanations — the FBI needed a search warrant and no one thought the information would be significant — were not only absolutely true and correct, but also dispositive.  You cannot get a search warrant without probable cause, and if there was absolutely no indication that the emails would constitute evidence of a crime, there was no probable cause.  Without probable cause, no further investigative steps were possible.

But of course the agent in New York who discovered the emails didn’t know that.  He waited impatiently for someone to call him and became increasingly worried that no one was following up.  Barrett does an excellent job in his book of recounting Robertson’s increasing anxiety as the weeks went by.  According to Barrett’s account, Robertson worried that “someday angry members of Congress would come after him.”  He told his supervisors at the SDNY U.S. Attorney’s Office that he feared that “this is going to make us look really, really horrible.”  Concerned that Robertson would do something rash, on October 20 the two supervisors went up the chain of command in the US Attorney’s Office, while Robertson wrote himself an anguished “memo to self.”

On Friday, October 21, SDNY U.S. Attorney Preet Bharara tasked Joon Kim, the deputy US attorney in New York, to call Sally Yates, the Deputy Attorney General, and let her know about their agent’s concern that no one was following up on the Clinton e-mails.  Yates referred Kim to George Toscas, the senior National Security Division Lawyer in the Attorney General’s office,  who then contacted Peter Sztrok and Justice Department lawyer David Laufman to inquire about the matter.

By coincidence that same week, Barrett was working on a story about Andrew McCabe and had started asking questions concerning $675,288 in donations by The Virginia Democratic Party and Common Good CA, a political action committee run by Virginia Governor Terry McCauliffe, to McCabe’s wife Dr. Jill McCabe’s unsuccessful 2015 campaign for Virginia state senate.  The genesis of this news story is something that Barrett does not reveal in his book, but it is actually more significant than the story itself.  Apparently Barrett had heard from “a number of people inside the FBI” who were concerned that the donations to McCabe’s wife’s campaign created a conflict of interest for McCabe, even though the FBI’s top ethics official, Patrick Kelley, had determined that there was no problem since McCabe’s wife’s campaign had ended before McCabe was assigned responsibility for the Clinton e-mail case, and the connection to Hillary Clinton, via McCauliffe, the former chair of Bill Clinton’s unsuccessful 2008 presidential campaign was attenuated, at best.  That there might be a few disgruntled FBI personnel eager to take digs at McCabe, an ambitious, rising star in the office, is hardly news.  Most journalists would have dismissed the story as typical inter-office back-biting.

But not Barrett.  The matter “didn’t sit well” with him.  By complete coincidence, this minor, gossipy snipe against McCabe set Barrett off on a Proustian reverie that would have enormous consequences.  When Barrett was young, he tells us, his mother also ran unsuccessfully for the state legislature in New York.  As he was only nine years old, he said he had paid little attention at the time.

But I also remembered, years later when I was in high school, riding in her rusty Subaru sedan one day, she noticed a local businessman strolling down the sidewalk of out hometown. My mother sighed and reminisced about how the businessman had donated to her long-ago campaign. She not only remembered the donation, which was for no more than a few hundred dollars, but she still felt somewhat guilty about it, like she’d let him down.

Leaving aside the very remote likelihood that any person would actually have this sort of memory, the obvious differences between Barrett’s story and the McCabe situation seem not to have been noticed by the journalist.   Yes, Barrett’s mother might have expressed pangs of regret upon the sight of a former donor.  But would Barrett’s father have expressed similar feelings, not towards the donor himself, but towards a former boss of the donor to his wife’s campaign?  That is the McCabe situation.  If that type of attenuated Six-Degrees-of-Kevin-Bacon guilt by association is evidence of a disqualifying conflict of interest for a Deputy FBI Director, then good luck finding anyone in Washington to supervise an investigation of anyone else.  (By way of comparison, try finding any sort of  discussion about the obvious conflict of interest when a three-judge panel of the D.C. Circuit Court of Appeals appointed Kenneth Starr in 1994 to investigate the suicide death of Deputy White House Counsel Vincent Foster and the Whitewater real estate investments of Bill Clinton.  Starr had lost his job as Solicitor General, and a likely Supreme Court appointment, when Bill Clinton defeated his boss George H.W. Bush in 1992.)  No, the real story was not the story about McCabe and any conflict of interest, it was that anyone would take seriously this type of phony allegation against McCabe.  It was the very type of story that Barrett’s mentor Sandy Johnson had warned him about, a “false narrative” that was “hard to disprove or counter.”

The Wall Street Journal posted Barrett’s hatchet piece on McCabe on Sunday night, October 23, and it appeared in the print edition the next day above the fold.  That same morning, McCabe attended a regularly scheduled 9:00 a.m. briefing for Attorney General Loretta Lynch, after which George Toscas asked McCabe about the Weiner laptop.  Meanwhile, Barrett started asking the FBI questions about his next story, based on allegations that McCabe had told FBI agents not to pursue an investigation of the Clinton Foundation (a separate matter based on Republican fantasies of a pay-to-play scheme involving donations by foreign governments to the Clinton charity).  In fact, the Justice Department had given instructions to the FBI in February not to pursue any further action without any incriminating evidence because of the upcoming election.  Some agents in Brooklyn had tried to do an end-run and revive the case, and in August 2016 Principal Associate Attorney General Matthew Axelrod had instructed McCabe to tell the agents to stand down, which, after voicing some objections, McCabe had done.  But to Barrett the story was a perfect fit for the “false narrative” he and his unnamed sources were bent on spinning about McCabe.

With a growing cascade of unwarranted insinuations against his ethics, McCabe also had to deal with the Weiner laptop.  On Wednesday, October 26 the agents in Washington and New York had discussed the matter and reviewed the facts, which were nothing more than that as many as 675,000 emails from Abedin’s account were on the laptop.  All agreed that a warrant was required to review them.  That evening McCabe decided that they needed to re-open the case, no doubt to avoid yet another story by Barrett.  No one believed that searching the emails would result in any evidence of a crime.

Early the next morning, on October 27, McCabe and Lisa Page, the FBI attorney assigned to assist him, sent out emails calling a 10:00 am meeting of the Midyear Team with Director Comey.  McCabe was not in the office and had to call in to the meeting.  Before anything of substance could be discussed, however, FBI General Counsel Jim Baker stopped the meeting to ask whether McCabe should be recused and removed from the call “out of an abundance of caution” because of the very public allegations being leveled in Barrett’s articles.  Both McCabe and Page were then kicked out of the meeting that they had convened!

This was a fateful decision.  As anyone who has worked on a team knows, when a few key players get sidelined, the team can become unbalanced.  That is precisely what happened to the Midyear team without McCabe and Page.  After Comey was briefed on the Weiner laptop, he quickly gave the go-ahead to seek a search warrant, and immediately turned to what was for him the more pressing issue, what to tell Congress.  We’ve all heard Comey relay his explanation for that further step, but hardly a word has been said about the initial decision to seek a search warrant, which was the decision setting the ball in motion.

That Lisa Page wanted to be in the meeting and to discuss whether or not they should seek a search warrant is clear from the text messages she sent to Peter Strzok later that day: “I obviously don’t have to tell you how completely INFURIATED I am with Jim [Baker] right now. . .  Please, let’s figure out what it is we HAVE first. What if we can’t make out PC [probable cause]? Then we have no further investigate step.”

When asked afterwards why he authorized the re-opening of the Clinton e-mail case, Comey testified that it was because he thought they might find what he referred to as the missing “golden emails”

Comey told us that the potentially great evidentiary significance of the newly discovered emails would have made it particularly misleading to stay silent. But we found that the FBI’s basis for believing, as of October 28, that the contents of the Weiner laptop would be significant to the Clinton email investigation was overestimated. Comey and others stated that they believed the Weiner laptop might contain the ‘missing three months’ of Clinton’s e-mails from the beginning of her tenure when she used a BlackBerry domain, and that these ‘golden emails’ would be particularly probative of intent, because they were close in time to when she set up her server. However, at the time of the October 28 letter, the FBI had limited information about the Blackberry data that was on the laptop. The case agent assigned to the Weiner investigation stated only that he saw at least one BlackBerry PIN message between Clinton and Abedin. As of October 28, no one with any knowledge of the Midyear investigation had viewed a single email message, and the Midyear team was uncertain they would even be able to establish sufficient probable cause to obtain a search warrant. [IG Report, p. 373.]

To understand how insane this is, we really need to back up a bit, to July 5, 2016 when Comey announced that the investigation had come up with no basis for prosecuting Clinton.  At that point, the FBI had reviewed all of the work-related emails voluntarily turned over by Clinton, Abedin and numerous others, over 30,000 of them.  From that group “110 emails in 52 email chains have been determined . . . to contain classified information at the time they were sent or received,” Comey had announced, yet none of the emails had been marked classified at the time they were received.  After all of the hoopla over Clinton’s emails, you might be forgiven if you believed, like Barrett apparently still does, that “[i]t was against the law to put classified information in a low-side [i.e. unclassified] government email, so in criminal terms it didn’t matter very much whether such classified information was in an unclassified government email or a personal email.” What Barrett should have said is that it is against State Department rules and regulations to put classified information in an unclassified email.  See, e.g. Foreign Affairs Manual, 5 FAM 750 Electronic Mail (Email) Policy.  You can be fired for violating those rules.  But that is not the same as saying it is against the law.

For the actual criminal law on handling classified materials, we need to look at the Espionage Act of 1917, 18 U.S.C. § 793.  The two provisions of that law that were at issue in the Clinton email investigation — the only ones identified in the search warrant affidavit for the Weiner laptop — were § 793(e) and (f).  The provisions authorize a sentence of up to ten years for anyone who has unauthorized possession of information related to the national defense that the possessor has reason to believe could be used to the injury of the United States, if the person willfully transmits the information to an unauthorized person, or through gross negligence permits the information to be removed from its proper place of custody or delivered to anyone in violation of his trust.  Trying to fit the facts of Hillary Clinton’s use of a private email server into this criminal statute is like trying to fit a round peg into a square hole.  It just can’t be done.  The law is aimed at real espionage, not using a private server to send and received emails between authorized recipients.

Comey had gone off the reservation in his July 5 press conference to suggest that Clinton was “extremely careless” in the handling of very sensitive, highly classified information.  There was also no evidence of that.  In reality, Clinton had received emails that were not marked as classified from other State Department officials and presumably had merely replied to them or forwarded them to others.  It is hard to see how that could ever be characterized as careless, let alone extremely careless.  But regardless, it was never criminal.  Indeed, in the entire 99-year history of the statute, the Justice Department had never charged anyone for violating the “gross negligence” section of the statute, which also requires that the materials be actually delivered to or removed by an unauthorized person to the detriment of national security.   Very simply, what Clinton had done in using a private server for emails was not a crime.  It wasn’t espionage, or anything even close to espionage.

Perhaps Comey’s “golden emails” explanation was so bewildering that no one ever bothered to ask him what exactly he meant.  Seriously, what could he have thought he was going to find that would result in a criminal prosecution?  He has never explained that and it is hard to imagine what he could have been thinking, and how that would fit into the requirements of the criminal statute.  Did anyone really think that they might find an email from Hillary Clinton directing the setup of a private email server so that she could illegally transmit classified information to harm our national security?  Is that what they thought they would find?  It seems insane, and yet that apparent fantasy seems to be the sole justification Comey and the FBI have provided for re-opening the investigation.

There was an additional problem, however.  If the FBI wanted to find those three months of missing emails with evidence of some sort of criminal intent, what probable cause did they have to believe that they would be on the Weiner laptop?  The answer is that they had none.  And so the search warrant application that was presented to a magistrate judge in New York on Sunday October 30 contained no reference whatsoever to the three months of missing emails that Comey and others said they wanted to find.  IG Report p. 325 n. 178.  Instead, to obtain the warrant, the Supervisory Special Agent merely suggested that the laptop might have classified emails that the FBI wanted to clean up.  That was super dishonest, because we know that the FBI wasn’t at all interested in finding more copies of  classified emails.  Comey and Strzok were emphatic that this was not a spill clean-up and that classified emails alone were not enough to support a prosecution.  Comey stated in his book Higher Loyalty “[n]o fair-minded person with any experience in the counterespionage world (where ‘spills’ of classified information are investigated and prosecuted) could think this was a case the career prosecutors at the Department of Justice might pursue. There was literally zero chance of that.” IG Report 374.  Strzok said “there was no evidence of intent and it’s looking, despite the prominence of it, like an unusual, but in a way fairly typical spill and there was no fricking way the Department of Justice in a million years was going to prosecute that.” IG Report 167.

Of course, the laptop didn’t contain anything new and significant, mainly just copies of the same classified emails the FBI had already reviewed.  But it is important to remember that there was never any basis to believe that the FBI would find anything new.  Everyone admitted that they didn’t expect there to be anything significant on the laptop.  The sole justification was the hope they might find emails from an earlier time period, before the server was set up.  So, having no reason to review for more classified emails, and no probable cause to believe they’d find anything else, the FBI presented an intentionally misleading pretextual warrant application to the magistrate judge.  Of course, by the time the judge reviewed the application, Comey’s letter announcing the new investigation was all over the news, and there was no chance that the judge would stick his neck out and hold up review of the laptop.

By now probably everyone has heard the story that the FBI worked tirelessly over the next week to carefully review the hundreds of thousands of emails on the laptop, before finally concluding on Sunday, November 6 that there was nothing significant so that the FBI could announce the re-closure of the investigation.  Barrett also recounts that narrative, but it is likely false.  The truth is that there were no emails at all on the laptop from the three-month period that Comey and the others thought might be significant.  Surely that fact was discovered by the agents almost immediately.  But who wants to tell the boss?  How would that look?  So the agents decided to search the rest of the emails to see if they could find something to justify what they had just done.  After a week of searching through them, they could safely say that nothing was there, which is what everyone had believed all along.

In the end, the story of this cascade of errors is a sad one.  Comey’s maneuver did not manage to preserve the reputation of the FBI, nor his own.  When recounting what happened, to this day he still maintains his decision was the correct one.  The other path, he claims, would have been “catastrophic.”  Really?  How so?  No one ever bothers to ask him to do the mental exercise and explain just what he means.  How exactly could the decision not to search for non-existent evidence of a crime that never happened, which no one even thought was there, have ever led to a catastrophe?  Sure, if the news had gotten out that Weiner’s laptop was found with Abedin’s emails and the FBI had decided not to search it, it would have led to the normal wild speculation of the right-wing fever swamp, but a catastrophe?  Surely, the FBI could have explained that there was no probable cause to conduct a further search.

There is a maxim in the law that one should avoid the appearance of impropriety, but Comey sort of mangled it.  Avoiding the appearance of impropriety cannot justify doing something that is actually improper.  In other words, you cannot do the wrong thing just because it will make you look like you are doing the right thing.  For whatever reason, Comey never understood that.  And as a result, we all are suffering.

October Surprise The term ‘October Surprise’ refers to a type of dirty trick that comes so late in the election calendar that a candidate does not have the time or space to respond, and voters don’t have the time to consider what it might mean. Comey’s letter to Congress a mere 11 days before Election Day 2016, announcing a renewed investigation into Hillary Clinton’s emails, is one of the most significant October Surprises on record. Trump contracting COVID-19 in October does not fit the description because a political opponent or third party did not orchestrate it; it was merely a surprising event in October. Restoring Trust in the FBI In the aftermath of 9/11, the FBI pivoted from criminal justice to national security. National Security agents soon came to run the bureau, instead of agents whose focus was on law enforcement, including in high-profile political cases. Comey’s security-focused inner circle lacked the insight of agents with such expertise, who might have cautioned him against his investigations and actions in 2016. To regain America’s trust, the FBI must reinvest in their public corruption and public integrity offices, demonstrating they have the leadership to stay impartial in elections, political investigations, and high-profile cases of public importance. Lessons from 2016 Though Comey’s ill-advised letter helped tip the scales in Trump’s favor, some of the onus falls on the voting public who were prone to believing in conspiracy theories and fake news stories. We need to bolster a healthy skepticism of our leaders, teach more civic engagement, and reemphasize the importance of critical thinking over blind devotion. Giving Americans the tools to rationally analyze news stories is vital to remedying our collective failure in 2016 and providing a better future for our democracy. Find out more: Devlin Barrett writes about the FBI and the Justice Department for the Washington Post and is the author of October Surprise: How the FBI Tried to Save Itself and Crashed an Election. He was part of a team that won a Pulitzer Prize in 2018 for National Reporting, for coverage of Russian interference in the U.S. election. In 2017 he was a co-finalist for both the Pulitzer for Feature Writing and the Pulitzer for International Reporting. He has covered federal law enforcement for more than 20 years, and has worked at The Wall Street Journal, The Associated Press, and the New York Post. You can follow him on Twitter @DevlinBarrett.

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