A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election

Oversight and Review Division 18-04 June 2018

CHAPTER EIGHT:

OCTOBER EFFORTS BY FBI LEADERSHIP TO RESPOND TO

CRITICISM OF THE MIDYEAR INVESTIGATION

During October 2016, we found that FBI leadership devoted significant time and attention responding to both internal and external interest in, and criticism of, the Midyear investigation.162 This included remarks by Comey about the Midyear investigation at the FBI’s SAC Conference, the development of Midyear talking points for all FBI SACs, a Midyear briefing for the Society of Former Special Agents of the FBI, and continued monitoring of media discussion of the Midyear investigation.

As described in Chapter Nine, these events occurred immediately after FBI Headquarters and the FBI Midyear team were made aware of the potential significance of the Weiner laptop by the FBI’s New York Field Office (NYO) on September 28 and 29. And as we further describe in Chapter Nine, at the same time that FBI leadership was taking the steps we describe in this chapter to defend its handling of the Midyear investigation as thorough and complete, it was taking no action in response to the notification by NYO regarding the Weiner laptop.

1. SAC Conference (October 11 to 14)

The FBI held its annual SAC Conference in San Diego, California, from October 11 through October 14. The SAC Conference was immediately followed by the International Association of Chiefs of Police (IACP) Conference from October 15 through October 18. Almost the entire FBI executive workforce attends the SAC Conference and top leadership frequently stays for the IACP Conference as well. Comey and McCabe attended both of the conferences in San Diego.

On October 12, Comey spoke to the SAC Conference about a variety of topics. This speech included lengthy remarks about the Midyear investigation. In part, he stated:

I do want to hit Hillary Clinton’s emails which I never tire of talking about, as you know. Because I want to make sure that you are equipped especially to answer questions and comments from our formers who are out trapped in a Fox News bubble and are hearing all kinds of nonsense. I want to make sure you have the information you need to bat some of that stuff down….

At the end of [the investigation], [the team’s] view of it was there really isn’t anything here that anybody would prosecute. My view was the same. Everybody between me and the people who worked this case felt the same way about it. It was not a cliffhanger. What

162 For example, during the presidential debate on Sunday, October 9, 2016, and at a campaign rally two days later, then candidate Trump, among other things, criticized the outcome of the investigation of Clinton.

sometimes confuses our workforces, and I have gotten emails from some employees about this, who said if I did what Hillary Clinton did I’d be in huge trouble. My response is you bet your ass you’d be in huge trouble. If you used a personal email, Gmail or if you [had] the capabilities to set up your own email domain, if you used an unclassified personal email system to do our business in the course of doing our business even though you were communicating with people with clearances and doing work you discussed classified matters in that, in those communications, TS/SCI, special access programs, you would be in huge trouble in the FBI….

…Of that I am highly confident. I’m also highly confident, in fact, certain you would not be criminally prosecuted for that conduct….

…What I’m getting from the left is savage attacks for violating policy and law by talking publicly about somebody who wasn’t indicted, by revealing facts that you should’ve been prescribed from revealing by decades of tradition. All of that’s nonsense just as this is nonsense. It is a uniquely difficult time. I expect after the election, which is coming up I’m told, we will have probably more conversations about this….

We asked Comey in general about the SAC Conference and whether he

recalled receiving criticism about the Midyear investigation while at the conference.

Comey said he did not recall specific criticism, but noted that “given how prevalent

the criticism was, I would have expected it to be talked about.”

1. Midyear Talking Points Distributed to FBI Field Offices (October 21)

On October 17, Page sent an email to Baker and Anderson entitled “MYE TPs

(LCP).”163 Strzok, the Lead Analyst, FBI Attorney 1, and FBI Attorney 2 were cc’d

on the email. The email stated:

Last week, Jim Rybicki and Mike Kortan reached out to a couple of us to ask that we put together some detailed MYE information related to the topics SACs most frequently get asked about. I’m not 100% certain about the uses these talking points will be used to, (I think the current thinking is that they would be provided to SACs to use with formers, in Citizen’s Academies, etc.), but attached is a very quick attempt at answering the specific questions requested by Jim and Mike. Could you both please take a look, and edit at will? Thanks.

The Midyear talking points were ultimately distributed to FBI SACs on October 21.

The talking points, which included a section on frequently asked questions,

were nine pages and largely tracked Comey’s July 5 statement and his July 7

testimony before Congress. At the top of the first page of the talking points was a

163 After reviewing a draft of the report, Page asked the OIG to clarify that she did not draft the talking points, but was the conduit through which they were distributed.

note to FBI executives, the first sentence of which stated, “The purpose of these talking points is to provide FBI executive management with a factual basis by which

to inform discussions with employees or interested parties in the community.”

Comey described the talking points as “part of an effort to make sure that the workforce, given the prominence of the issue, understood why we had done what we did.” Comey described this commitment to transparency as part of his management philosophy. When asked if he was concerned with essentially deputizing 56 different spokesmen for the Midyear investigation, Comey stated, “No, in fact I think it cuts the other way. They’re all going to be talking about it anyway in lunchrooms, in town halls and sidebars, and so it makes sense to me to equip people who are going to be talking about it anyway with the actual facts and

our actual perspective on it.”

McCabe described the talking points as part of a broad effort “to keep the SACs particularly more well-informed about all the major issues” the FBI was dealing with. McCabe said that the SACs were being asked about Midyear

frequently and this was an effort to “give them some information to work off of.”

McCabe also noted that the SACs requested this information from headquarters. When asked why the FBI did not just refer the SACs or anyone else to Comey’s July 5 statement, McCabe stated that he believed the FBI did send Comey’s statement to the field, but “maybe that didn’t answer the mail.”

Rybicki told us he agreed with the assessments given by Comey and McCabe and that SACs were contacting FBI Headquarters stating “that they weren’t getting enough information from headquarters” about the Midyear investigation. Rybicki described the Midyear talking points as an effort by headquarters to arm SACs with information they could use to respond to questions they received.

Priestap attributed the revival of Midyear talking points in mid-October to the

“churn” and the fact that “the issue [of Midyear] just didn’t go away.” Strzok

agreed with this assessment, stating:

[B]ecause SACs were still getting an extraordinary number of questions because it had become a campaign issue and that was still being batted around by the Hill and by then candidate Trump. And SACs were getting questions. The thought was, you know, give them enough information so they can at least accurately answer some of those questions rather than just saying, you know, I don’t know, or here is what I’ve read.

III. Midyear Briefing for Retired FBI Special Agents (October 21)

On October 7, the President of the Society of Former Special Agents of the

FBI (the “Society”) sent an email to Bowdich entitled “Controversy over the Director/Clinton Email Situation.” The Society’s President stated, in part:

I continue to hear negative comments about the Bureau’s handling of the Clinton email controversy from former agents. This is after a period where things seemed to quiet and comments mellowed. The renewed negative comments appeared to be timed with the release of additional emails in the Clinton situation and with the Director’s recent congressional testimony.

I would like to offer a strategy which would possibly lower the rhetoric on this issue. My sense is there are probably 10-15 hard core issues that are at the heart of former agents’ discontent. I know what those issues are based on the many emails and phone calls I’ve received.

My proposal is to have a small group of Society people meet with the Director and discuss those issues and formulate thorough in-depth answers, to be published in the Grapevine, or to be directly emailed to our members….

Bowdich replied that he would be “happy to discuss this weekend.” Bowdich told us

he recalled the Society wanting a sit-down with Comey, which Bowdich considered a bad idea, and we did not find evidence that the meeting with Comey occurred prior to the election.

However, on October 21, Strzok briefed a group of retired FBI personnel on

the Midyear investigation during a conference call. This call was organized by

Kortan, and Page also dialed into the call, although she did not speak. Strzok told

us that the call was the idea of “the seventh floor,” meaning top leadership at FBI Headquarters, and added, “Rybicki might have been the one whose idea it was.”

According to Strzok:

[O]ur Office of Public Affairs got a bunch of the former folks, like John Giacalone and other former EADs and Deputies and the head of the Society of Special Agents, to essentially say, okay, please sit down with them. And kind of walk through the investigation. And give a very fact-based pattern of, despite the huge turn of everything you’re hearing and the allegations and people saying you gave immunity out like candy, and you didn’t even issue subpoenas. Sit down to the extent you can and walk through, from the beginning to the end, what we did investigatively…. [S]it there and say…you know, we, we did a thorough job. This is what we did. This is what our mandate was. This is how we went about doing it. You know, here are, there are a lot of falsehoods and exaggerations being thrown around. This is the truth. And again, not giving out classified information, not giving the 6(e) information out. But to the extent that any of these folks, whether they are getting asked by CNN, whether they’re appearing in front of a congressional committee, whether they are going to a Citizens Academy, that they have the facts.

We asked Page about this call and she told us:

[W]e got a ton of criticism from the formers about the, why we let her off the hook, and why she should have been prosecuted, and why if she had, if they had done this, they would have prosecuted, all those sort of criticism that you have surely heard. And so Steinbach and Kortan, Mike Kortan, came up with the idea of well why don’t we put Pete on, you know, kind of agent-to-agent to sort of, because we need to get the formers to stop sort of criticizing the, the case. And get them to understand actually the facts and why the facts led to not having a prosecution.

Page described her role on the call as “trying to like give advice along the way to sort of help them explain.”

Comey told us that he is not sure he knew about Strzok’s call beforehand, but “it rings true to me.” We asked him if it was normal to have the agent who oversaw an investigation directly brief the retired agents on that case. Comey stated, “No…there’s nothing normal at all about this, but it seemed a reasonable thing to do given the stakes which was the credibility of the organization.”

Steinbach described a separate speech he gave to the Washington, D.C., chapter of the Society of Former Special Agents of the FBI in October 2016. A news article from October 31, 2016, reported on Steinbach’s remarks and his comments on the Midyear investigation. Steinbach told us that his “intention” in giving the remarks was “to kind of level set that from one investigator to another former investigator. Say, hey look, you know, here is why we did it.”

1. FBI Office of Public Affairs Research Project (October 14 to 31)

On October 14, Rybicki and Kortan assigned an FBI Office of Public Affairs (OPA) Public Affairs Advisor a “research project.” The Public Affairs Advisor’s initial email to Kortan and Rybicki on October 14 stated, “Per Mike [Kortan]’s suggestion, I’ll compile a list of stories from the past 24 hours that I’ve found that revolve around the recent email story from Fox.”164 Rybicki responded that evening, “Thanks…. This is very helpful. I think the idea is that you would also track all email investigation stories each day and then we can figure out which ones are so inaccurate that we need to respond in some way.” Consistent with this assignment, from October 14 and continuing through the end of October, we identified a series of almost daily emails from the Public Affairs Advisor to Kortan and Rybicki highlighting critical media coverage of the Clinton email server investigation. The emails typically included links to and summaries of the articles cited.

We identified October 13 notes from FBI Attorney 1 entitled “MYE—Fox article w/Rybicki + Kortan.” The notes included the following entry:

• Special projects person—fact check news of the day

164 Based on the content of emails and the timing, we believe “the recent email story from Fox” refers to an October 13, 2016 article on Fox News entitled, “FBI, DOJ roiled by Comey, Lynch decision to let Clinton slide by on emails, says insider.” See Malia Zimmerman and Adam Housley, FBI, DOJ Roiled by Comey, Lynch Decision to Let Clinton Slide by on Emails, Says Insider, FOX NEWS, Oct. 13, 2016.

to SACs

and maybe bkgd to reporters? √ OPA

or maybe reach out to people who wrote article

FBI Attorney 1 told us she did not remember this meeting and “had no idea” what the “special projects person” notation signified.

An October 22 email from the Public Affairs Advisor to Kortan and Rybicki provided some insight into his assignment. He stated, “I’ve done several searches on the topic we discussed today and yesterday, and I’m not seeing anything falling under the themes that we discussed (destruction of materials, dissention [sic], etc.) that is creeping into the main stream.”

We asked Rybicki about the Public Affairs Advisor’s assignment and showed him examples of the emails cited above. Rybicki did not recall giving the Public Affairs Advisor “any directive to look at specific outlets or anything like that.” Rybicki did recall that “the Director had [the Public Affairs Advisor] tracking stories I think from back in, you know, early July, maybe even prior to that about the [Midyear] investigation.” Similarly, Kortan told us, “I think the Director or the Director’s Office actually asked him during some period of time there just to keep track of the reporting on everything to see how it was, how things were being reported.”

The Public Affairs Advisor said he recalled very little about this research assignment “other than…if there was an article that had c[o]me out, and they said can you see if, find the other stories that, that were like this or had this similar narrative, and if it was being picked up.” He told us that he “can’t imagine [Rybicki] would ask me to track all email investigation stories. As there were a mountain, a flood of them.” When we pointed out the specific guidance about “destruction of materials” and “dissention” in the October 22 email, the Public Affairs Adviser said that he assumed the destruction guidance related to an inaccurate story about the destruction of Clinton’s server and he was unsure what the “dissention” guidance meant. Kortan told us that he thought the “dissention” reference referred to stories about “all kind of conflict within the [Midyear] team about…the conclusion of the [Midyear] investigation.”

The Public Affairs Advisor said he was not sure why he was given this assignment in mid-October, but recalled more coverage of the Midyear investigation “popped up” at this time. The Public Affairs Advisor also could not recall if he was given similar research assignments during other time periods.

We asked Comey about the Public Affairs Advisor and the assignment. Comey told us that he first met the Public Affairs Advisor when Comey worked in EDVA. Comey stated that he recruited the Public Affairs Advisor to SDNY after he became the U.S. Attorney there. The Public Affairs Advisor then followed Comey to the Department when Comey was appointed DAG and later to the FBI after Comey became Director. We pointed out to Comey that almost all of the media coverage identified by the Public Affairs Advisor in the October time period was negative

coverage of the FBI’s handling of Midyear and asked if that was a particular focus of the FBI’s efforts at the time. Comey stated that “knowing what critics are saying is very, very important.” Comey added that this sometimes permitted the FBI to push back on inaccurate reporting.

We asked Comey more generally about the FBI’s role in the run up to the election. Specifically, we cited several of the above examples—correcting inaccuracies in the media, issuing talking points to SACs, briefing former agents— and we asked Comey why the FBI was essentially inserting itself into the back and forth dialogue of two political campaigns. Comey replied:

It’s not our role, but it’s our role to be believed by the American people. And you’ve heard me say this before, when we rise and say, I

found this under the car seat or I heard this statement or I seized this document in the bureau drawer…we have to be believed. And so my worry was, actually I had a great sense of relief after the July 5th

thing, like that’s over and now what I need to worry about is making

sure that I did what I did in July as we talked about a million times because I thought it was best calculated to preserve the institutions, now I need to do my absolute best to make sure that the poison that

follows doesn’t continue to undercut the credibility of the institution in

American life. And so I could have just pulled back, but if I pulled back without any push back, a doubt about the FBI’s political independence first would be pushed in from the right and then it would be pushed in from the left and then I’d be left after the election trying to un-ring a bell and a lot of what I was trying to avoid to start with would have crept in and then the FBI would have been, oh they’re those people with the Clintons or fix-it, we need to, so I was with the Clintons, then I was with the Trumps, and if—and so it’s not, the reason I disagree with your characterization, it’s not pushing our way into a political campaign, all this is flowing out from the campaigns and lots of other[s] through the media at the FBI and its reputation with the American people; I have to worry about that in my view.

1. FOIA and Congressional Requests in October

Throughout the month of October, the FBI responded to various Freedom of Information Act (FOIA) and congressional requests for information about the

Midyear investigation. McCabe told us, “[T]he fact is, we were meeting about

Midyear-related things constantly, like during [the October] time period. FOIA requests, Congressional requests.” For example, McCabe, Rybicki, Anderson, Strzok, Page, FBI Attorney 1, Baker, and Priestap were invited to a meeting entitled “Mtg. w/DD RE Decision Points” at 2:30 p.m. on September 29. Contemporaneous notes from the meeting showed that this meeting involved a discussion of congressional requests for materials from the Midyear investigation. In another example, McCabe sent an email to Comey on October 17 to summarize the events of the day. Rybicki and Bowdich were copied on the email. The email stated, in part, “Lots of OPA action on the Midyear investigation email front with eh [sic] release of the 302s. Nothing unexpected, will likely drive some additional committee requests….”