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 FIVE:

INVESTIGATIVE METHODS USED IN THE INVESTIGATION

The Midyear team used several types of investigative methods and made various strategic decisions during the course of its investigation. Some of these decisions have been the subject of criticism and allegations that they were based on improper considerations.

In this chapter, we describe the following investigative methods and decisions made by the Midyear team: efforts to identify relevant sources of physical evidence; efforts to understand and access Clinton’s servers; use of criminal process, including subpoenas, 2703(d) orders, and search warrants to obtain physical evidence; use of consent to obtain physical evidence; efforts to obtain evidence related to Clinton’s senior aides; use of voluntary interviews; decisions to grant certain witnesses use immunity; strategies employed to secure voluntary interviews and voluntary production of evidence from Cheryl Mills and Heather Samuelson; and investigative decisions surrounding the voluntary interview of Hillary Clinton. We describe the reasons given for these decisions, disagreements among members of the Midyear team about them, especially between the FBI and the prosecutors, and the impact of these decisions on the investigation’s access to relevant information and the completeness of the investigation. We also describe an internal file review of the Midyear investigation conducted by the FBI’s Inspection Division (INSD) in September and October 2017 following our discovery of concerning text messages between Strzok and Page.

In addition, we discuss instant messages in which Agent 1 expressed concerns about the quality of the Midyear investigation. We considered these messages as part of our analysis of whether the Midyear team conducted a thorough and impartial investigation.

In the analysis section of this chapter, we assess whether the evidence supports a conclusion that any of the investigative decisions we reviewed were based on improper considerations, consistent with the analytical construct described in Chapter One.

1. FBI’s Efforts to Identify and Review Relevant Sources of Evidence

The Midyear team began its investigation by reviewing the 30,490 emails that Clinton had produced to the State Department. They reviewed them to identify emails that appeared to contain classified information and evidence of intent to mishandle classified information.62 Witnesses told us that to search for evidence of intent, the analysts looked for, among other things, classification markings on the documents, statements indicating that email participants knew

62 The Midyear Supervisory Special Agent told us that the State Department provided these emails to the FBI in paper form. According to the LHM, on August 6, 2015, Clinton’s attorneys voluntarily provided the FBI thumb drives containing the same emails.

information was classified, and statements indicating that Clinton decided to use a private server for an improper purpose, such as to avoid FOIA or other laws. One analyst told us that there were at least six analysts consistently involved with reviewing these emails, and, at times, there were as many as fifteen or sixteen analysts doing so. Once the team identified emails that appeared to contain classified information, they sent them to other agencies within the U.S. Intelligence Community (“USIC agencies”) with equities in them for formal classification review.

FBI agents and Department prosecutors told us that, thereafter, a large focus of the investigation was locating the remaining 31,830 emails that made up the entire 62,320 emails that Clinton’s attorneys had reportedly reviewed before producing her work-related emails to the State Department. Clinton’s attorneys did not produce those 31,830 emails to the State Department because, they stated, they were personal in nature; instead, the attorneys instructed Paul Combetta of Platte River Networks (“PRN”)—the company that managed Clinton’s server— to remove the emails from their own laptops and modify the server’s email retention period so that emails older than 60 days would not be retained. In March 2015, Combetta removed the emails from Clinton’s server using BleachBit after realizing he had failed to implement the new email retention period several months earlier. The FBI team wanted to review these emails, if possible, to determine whether any were work-related or contained classified information, and to search for evidence of Clinton’s intent in using a private server.

FBI agents and analysts, including the Supervisory Special Agent (SSA) assigned to the Midyear investigation, told us that to find the missing 31,830 emails, the team attempted to identify and obtain access to any server or device— “whether it was a BlackBerry, iPad, PC [or] phone”—Clinton used during her tenure, as well as devices used to back up her emails. The FBI also sought email content or header information from the official U.S. government and private email accounts of certain individuals who were known to communicate directly with Clinton by email or who were involved in email chains that ultimately resulted in classified information being forwarded to Clinton. However, as discussed in Section V.C of this chapter, the FBI did not seek to obtain the personal devices of State Department employees, besides Clinton, who sometimes used private email for State Department work and who used those devices to communicate with Clinton while she was Secretary of State.

Based on our review, the FBI sent preservation requests to the State Department for nearly one-thousand official State Department email accounts. One analyst told us that the State Department was unable to supply many of the email records the FBI requested due to, among other things, limitations in the State Department’s recordkeeping systems. However, the FBI obtained records from the official State Department email accounts of certain employees, including the three senior aides with whom Clinton had the most email contact. The FBI also made requests of other government agencies, including the CIA, the Defense Intelligence Agency (DIA), the Department of Defense (DOD), and the Executive Office of the President (EOP), to search their official email systems for emails to or from email accounts on the clintonemail.com domain. In addition, as discussed in Sections III and V below, the Midyear team used compulsory process to obtain email records from certain private email accounts.

The FBI also requested the State-Department-issued computers and handheld devices used by certain employees during their State Department tenure. However, with the exception of a desktop computer used by Bryan Pagliano (a State Department employee who set up Clinton’s second server), the State Department told the FBI that it either did not preserve or could not locate those devices.

FBI witnesses told us that both FBI agents and analysts were involved in determining what devices and other evidence to obtain. Based on our review of the evidence, the FBI obtained more than 30 devices; received consent to search Clinton-related communications on most of these devices; and identified numerous work-related emails that were not part of the 30,490 emails produced by Clinton’s attorneys to the State Department, many of which they sent to other agencies for classification review. The thirty devices included two of Clinton’s servers, each of which consisted of multiple devices; storage devices used alongside Clinton’s servers; numerous devices that were used to back up Clinton’s emails during her tenure; some of Clinton’s handheld devices; Pagliano’s State Department desktop computer; several flash drives and laptop computers that contained copies of the 30,490 emails that Clinton’s attorneys produced to the State Department; and the two laptops used by Clinton’s attorneys to cull her emails for production to the State Department. Once the FBI received consent to review a device, staff from the FBI’s Operational Technology Division (OTD) generally imaged the device and prepared the image for a filter team to remove material that was privileged or otherwise not subject to search pursuant to the terms of a consent agreement. OTD then uploaded the emails and other data from the device for FBI analysts to review. OTD also attempted to de-duplicate emails. The analysts reviewed the emails recovered from each device for the same purposes as they reviewed the initial 30,490—to identify both suspected classified information and evidence of intent to mishandle classified information.

The Midyear team also sought and obtained a wide range of other information relevant to the investigation, such as Clinton’s cable, telephone, and Internet subscriber and service information; financial information for certain witnesses; business records pertaining to the services provided by the companies that supported Clinton’s servers; records related to security services protecting Clinton’s servers; and information from mail carriers related to the delivery of a laptop that at one time stored Clinton’s archived emails. Prosecutor 1 told us that the team sought records from at least three different companies in an effort to find the Blackberry emails from the beginning of Clinton’s tenure as Secretary of State.63 Analysts told us that they reviewed these materials to search for, among

63 Based on the LHM, the 30,490 emails provided by Clinton’s attorneys to the State Department contained no emails sent or received by Clinton during the first two months of her tenure, January 21, 2009, through March 18, 2009, and the FBI investigative team was unable to locate the BlackBerry device she used during that time. Witnesses, including former Director Comey, told us

other things, evidence of mishandling classified information and additional leads for information. For example, one analyst stated that through records obtained from various phone companies, he was able to identify the 13 devices that were associated with two telephone numbers that Clinton used.

According to the LHM, the FBI found and reviewed “approximately 17,448 unique work-related and personal emails from Clinton’s tenure” containing her email address that were not part of the original 30,490 that Clinton’s lawyers had produced to the State Department. Comey stated in his July 5, 2016, press conference that the FBI found “several thousand” work-related emails that were not part of the 30,490 emails. However, one analyst told us, and documentation we reviewed showed, that the FBI did not conduct its review in such a way that it could calculate the precise amount of work-related emails discovered by the FBI that had not been produced to the State Department. Instead, as described below, they focused on identifying the number of classified emails that both were and were not included in the 30,490.

None of the emails, including those that were found to contain classified information, included a header or footer with classification markings. As we discuss further in Chapter Seven, this absence of clear classification markings played a significant role in the decision by the Midyear prosecutors to recommend to Attorney General Lynch in July 2016 that the investigation should be closed without prosecution. According to the LHM, the FBI, with the assistance of other USIC agencies, identified “81 email chains containing approximately 193 individual emails that were classified from the CONFIDENTIAL to TOP SECRET levels at the time the emails were drafted on UNCLASSIFIED systems and sent to or from Clinton’s personal server.” In other words, the USIC agencies determined that these 81 email chains, although not marked classified, contained information classified at the time the emails were sent and should have been so marked. Twelve of the 81 classified email chains were not among the 30,490 that Clinton’s lawyers had produced to the State Department, and these were all classified at the Secret or Confidential levels. Seven of the 81 email chains contained information associated with a Special Access Program (“SAP”), which witnesses told us is considered particularly sensitive. The emails containing Top Secret and SAP information were included in the 30,490 provided to the State Department.

In June 2016, near the end of the investigation, investigators found three email chains, consisting of eight individual emails, that “contained at least one paragraph marked ‘(C),’ a marking ostensibly indicating the presence of information classified at the CONFIDENTIAL level.” According to a June 13, 2016 text message exchange between Strzok and Page, the emails containing the “(C)” portion markings were part of the 30,490 that Clinton’s attorneys had provided to the State Department in 2014 but the FBI did not notice them until June 2016 after the IC IG discovered them. By that point in time, as discussed in Chapter Six below, Comey had been drafting his statement announcing the closing of the investigation. Strzok

that they believed these missing emails could contain important evidence regarding Clinton’s intent in

setting up a private email server.

wrote to Page that “DoJ was Very Concerned about this…. Because they’re worried, holy cow, if the fbi missed this, what else was missed?” Strzok further wrote, “No one noticed. And while minor, it cuts against ‘I never send or received anything marked classified.’”64 According to the prosecutors, Mills, Abedin, and Jake Sullivan were each parties to at least one email in the chains with the (C) markings. However, none of them were ever asked about the emails, because the FBI had not discovered the markings before their interviews and did not seek to reinterview them.65

Witnesses told us that although the FBI found work-related emails, including classified emails, that were not part of the 30,490 produced to the State Department by Clinton’s lawyers, they were not able to determine whether these emails were part of the original 62,320 reviewed by Clinton’s attorneys. This is because some of the emails they found through other sources could have been deleted from Clinton’s account or “overwritten in the ordinary course” before Clinton’s attorneys reviewed her emails for production to the State Department. Thus, they also were unable to determine how many of the 31,830 deleted emails were never recovered.

The FBI also conducted “intrusion analyses” on each of the devices and other evidence to determine whether any classified information had been compromised. An FBI agent assigned to the Midyear team to conduct intrusion and other forensic analysis (“Forensics Agent”) described the team’s efforts in this regard as exhaustive. He stated that these efforts included (1) examining the servers and others devices to identify suspicious logins or other activity, and (2) searching numerous datasets to determine whether foreign adversaries or known hostile domestic actors had accessed emails that the Midyear team had confirmed to contain classified information.

Comey stated the following in his July 5, 2016, press conference regarding possible cyber intrusion of Clinton’s email servers:

With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal email domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal email domain was

64 Strzok told us that in this text message he was referring to the fact that “Secretary Clinton had always said [she] never received anything marked classified,” and that the new discovery of the emails with the (C) markings was inconsistent with that claim. The emails with the (C) markings, Clinton’s statements about them during her FBI interview, and the Midyear team’s assessment of her credibility are discussed in Section IX.C of this chapter.

65 Sullivan was Clinton’s Deputy Chief of Staff for Policy from January 2009 to February 2011

and Director of Policy and Planning at the State Department from February 2011 to January 2013.

both known by a large number of people and readily apparent. She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.

The LHM stated, “FBI investigation and forensic analysis did not find evidence confirming that Clinton’s email server systems were compromised by cyber means.” However, the LHM also stated that the FBI identified one successful compromise of an account belonging to one of former President Clinton’s staffers on a different domain within the same server former Secretary Clinton used during her tenure. The FBI was unable to identify the individual responsible for the compromise, but confirmed that the individual had logged in to the former staffer’s account and “browsed email folders and attachments.” According to evidence we reviewed, the FBI also confirmed compromises to email accounts belonging to certain individuals who communicated with Clinton by email, such as Jake Sullivan and Sidney Blumenthal.66

The LHM stated that the FBI was limited in its intrusion analysis due to the “FBI’s inability to recover all server equipment and the lack of complete server data for the relevant time period.” According to the LHM, the FBI also identified vulnerabilities in Clinton’s server systems and found that there had been numerous unsuccessful attempts by potential malicious actors to exploit those vulnerabilities. Nonetheless, the FBI Forensics Agent told the OIG that, although he did not believe there was “any way of determining…100%” whether Clinton’s servers had been compromised, he felt “fairly confident that there wasn’t an intrusion.” When asked whether a sophisticated foreign adversary was likely to be able to cover its tracks, he stated, “They could. Yeah. But I, I felt as if we coordinated with the right units at headquarters…for those specific adversaries…. And the information that was returned back to me was that there was no indication of a compromise.”

1. The Midyear Team’s Efforts to Understand and Access Clinton’s Servers

Prosecutor 1 told us that it took the Midyear team time to understand the setup and sequence of the various servers Clinton used. This prosecutor stated that an understanding of the server setup was a necessary foundation for the Midyear team’s investigation. According to the LHM, the FBI discovered three servers that for different periods stored work-related emails sent or received by Clinton during her tenure as Secretary of State. Collectively, we refer to these three servers as the “Clinton servers.”

The first server was set up in 2008 by Justin Cooper, a former aide to former President Clinton, and is referred to in the LHM as the “Apple Server.” Based on

66 Clinton told the FBI that Blumenthal was a “longtime friend” who “frequently sent information he thought would be useful” to her as Secretary of State.

evidence we reviewed, the Apple Server was primarily set up for former President Clinton’s staff, but Secretary Clinton also used it for her work purposes from January 2009 until approximately March 18, 2009, about two months into her tenure. During this time, Clinton primarily used a personally acquired BlackBerry device that was connected to the Apple Server.

The LHM indicates that the second server, referred to in the LHM as the Pagliano Server, was used from March 2009 through June 2013. Cooper told the FBI that “in or around January 2009 the decision was made to move to another server because the Apple Server was antiquated and users were experiencing problems with email delivery on their Blackberry devices.” Cooper contacted Bryan Pagliano, an information technology specialist who worked on Hillary Clinton’s presidential campaign, to help him set up the Pagliano server. Numerous individuals had email accounts on the Pagliano Server, including former President Clinton, former President Clinton’s staff, Huma Abedin—who was Clinton’s Deputy Chief of Staff at the State Department—and Clinton herself. Clinton and Abedin were the only State Department employees with accounts on the @clintonemail.com domain on the Pagliano Server.

The third server, which is referred to in the LHM as the “PRN server,” was active after Clinton’s tenure as Secretary of State ended, from approximately June 2013 through October 2015. The LHM stated that in early 2013, staff for Clinton and former President Clinton discussed transitioning to a new vendor for email services, “due to user limitations and reliability concerns regarding the Pagliano Server.” The staff chose the “Denver-based information technology firm Platte River Networks (PRN)” for this purpose. According to the LHM, PRN employee Paul Combetta migrated the email accounts from the Pagliano Server to the PRN server. Following the migration, the Pagliano Server was stored in a data center in New Jersey, although it no longer hosted email services and Microsoft Exchange was uninstalled from it on December 3, 2013.

According to the LHM, the FBI learned through witness interviews that the Apple Server, in use from 2007 to March 2009, was ultimately discarded and, thus, the FBI was never able to access it for review. However, based on evidence we reviewed, the Midyear team obtained access to certain back-up data from the Apple Server held on Cooper’s personal laptops through consent agreements with Cooper’s attorney. The Midyear team obtained both the Pagliano and PRN servers through consent agreements with David Kendall and Clinton’s other attorneys at Williams and Connolly.

The FBI’s ability to review emails on both the Pagliano and PRN servers was limited. With respect to the Pagliano Server, most of the emails that remained on the Pagliano server following the transition to the PRN server were in the “unallocated space” due to the removal of Microsoft Exchange in December 2013. FBI analysts told us that emails in the unallocated space were often fragmented and difficult to reconstruct. With respect to the PRN server, the FBI discovered through forensic analysis and witness interviews that Combetta had transferred most of Clinton’s archived emails from her tenure as Secretary of State to the PRN server, but subsequently deleted and “wiped” them from the server using “BleachBit.”

Based on the LHM, FD-302s, and PRN documents collected by the FBI, the transfer of emails to the PRN server and subsequent wiping of the PRN server occurred as described in the paragraphs below.

At around the time of the transition to the PRN server in the spring of 2013, Clinton’s former aide, Monica Hanley, created two archives of Clinton’s emails from the Pagliano Server, one on a thumb drive (Archive Thumb Drive) and one on a laptop computer (Archive Laptop).67 In early 2014, Hanley mailed the Archive Laptop to Combetta to transfer Clinton’s archived emails to the PRN server. She further directed him to “wipe” the Archive Laptop and mail it to Clinton’s office assistant at the Clinton Foundation after he completed the transfer. Combetta used a “dummy” email account to transfer Clinton’s archived emails into a mailbox entitled “HRC archive” on the PRN server.68 Combetta told the FBI that he then, per Hanley’s instructions, deleted the emails from the Archive Laptop and mailed the Archive Laptop to Clinton’s office assistant, but did not “wipe” the laptop. Email records obtained by the FBI showed that Clinton’s office assistant sent emails to Combetta in both March and April 2014 asking when she should expect to receive the “wiped laptop;” however, Clinton’s office assistant told the FBI that she did not recall ever receiving it.

An analyst told us and FBI records show that the team sought and obtained records from multiple mail carriers in an effort to locate the Archive Laptop. Based on these records, the FBI was able to confirm that the laptop was delivered to Paul Combetta on February 24, 2014; however, the FBI found no records showing that Combetta mailed the Archive Laptop to Clinton’s office assistant as requested. The FBI also attempted to obtain the Archive Thumb Drive from Hanley, but she stated she could not recall what happened to it.

According to the LHM, FD-302s from Combetta’s, Mills’s, and Samuelson’s interviews, and PRN documents collected by the FBI, in the summer of 2014, Combetta uploaded .pst files of Clinton’s archived emails to Mills’s and Samuelson’s laptops to enable them to review Clinton’s emails and produce her work-related emails to the State Department. In late 2014 or early 2015, after Clinton produced her work-related emails to the State Department, Mills and Samuelson requested that Combetta remove Clinton’s emails from their laptops, and he did so using BleachBit. At around the same time, Mills directed Combetta to change the email retention policy on Clinton’s clintonemail.com account to 60 days, because Clinton had decided that she no longer needed access to her personal emails that were older than 60 days. Combetta told the FBI that he mistakenly neglected to make the change at the time and realized his mistake in March 2015. He stated that, despite the intervening issuance of a congressional preservation order on March 3,

67 According to Hanley’s FD-302, she told the FBI that the archives were created because Clinton “did not want to lose her old emails when she changed her email address.” She further told the FBI that PRN advised Clinton to change her email address after Sidney Blumenthal’s email account was compromised.

68 As discussed in Section III of this chapter, the Midyear team obtained a search warrant for the dummy email account and recovered some of Clinton’s work-related emails from that account.

2015, he “had an ‘oh shit’ moment” and wiped the HRC archive mailbox from the PRN server using BleachBit sometime between March 25 and March 31, 2015.

Despite the use of BleachBit, the FBI was able to recover some of Clinton’s archived emails from both the PRN server and the laptops used by Mills and Samuelson to cull Clinton’s emails. The FBI also recovered some of Clinton’s archived emails from a search of the dummy email account that Combetta used to transfer Clinton’s emails from the Archive Laptop to the PRN server and, as discussed in Section I of this chapter, from various other sources.

III. Use of Criminal Process to Obtain Documentary and Digital Evidence

Despite the public perception that the Midyear investigation did not use a grand jury, and instead relied exclusively on consent, we found that agents and prosecutors did use grand jury subpoenas and other compulsory process to gain access to documentary and digital evidence. According to documents we reviewed, at least 56 grand jury subpoenas were issued, five court orders were obtained pursuant to 18 U.S.C. § 2703(d) (2703(d) orders), and three search warrants were granted. The Midyear team also sent numerous preservation letters to various entities, including Internet Service Providers, former Secretary Clinton’s attorneys, and U.S. government agencies. We were told that FBI agents generally worked directly with the EDVA prosecutors to obtain subpoenas and 2703(d) orders, without seeking approval from the CES prosecutors, Laufman, Toscas, or any higher level Department officials. Toscas told us that he was the highest level Department official that approved search warrant affidavits, and that he provided general information about search warrants that were being sought in briefings to Carlin, Yates, and Lynch.

The FBI served 2703(d) orders on commercial email service providers, such as Google (Gmail) and Yahoo!, for information maintained on their servers associated with the private email accounts used by Huma Abedin, Paul Combetta, Cheryl Mills, and two other individuals.69 The FBI sought 2703(d) orders for these

69 According to documentation we reviewed, the first individual was a senior State Department official who sometimes used a private email account to communicate with Clinton. The FBI sought a 2703(d) order for this individual’s private email account after discovering an email sent from his private email account that the FBI determined was classified at the SECRET//NOFORN level. The abbreviation “NOFORN” means that the information may not be released to foreign governments, foreign nationals, foreign organizations, or non-U.S. citizens without the permission of the originator. According to Strzok’s and the Lead Analyst’s notes from early June 2016, the FBI received the returns

from this 2703(d) order and determined that, as of that time, the email containing classified information no longer resided in this individual’s account.

According to the 2703(d) order for the second individual’s account, an email containing information that the FBI determined to be classified at the SECRET//NOFORN level was originated from his private email account and forwarded, after traversing two other private email accounts, to Mills’s private Gmail account. This individual was not a State Department employee and was not a witness in the FBI’s investigation. Rather, the 2703(d) order stated that the FBI believed this individual resided in Japan based on his phone number and address and that “[a] search of relevant databases reveal[ed] no U.S. Government security clearances” for him. According to Strzok’s and the

individuals after discovering from other sources that emails containing classified information were sent from or received by their accounts. FBI witnesses told us that the purposes of obtaining the 2703(d) orders were to determine whether the known classified emails continued to reside in the unauthorized email accounts and whether they were forwarded to other unauthorized locations, thus posing risks to national security. If they confirmed that the known classified emails continued to reside in the email accounts, they would then consider seeking search warrants for email content within the same accounts.

Based on the 2703(d) results, the FBI was able to confirm that classified information continued to reside in just one of these five accounts—the account belonging to Combetta. Thus, on June 20, 2016, the FBI sought a search warrant for this account. According to the search warrant, the FBI initially sought the 2703(d) order for Combetta’s account after observing numerous emails containing metadata for Combetta’s dummy email account in the original 30,490 emails provided to the State Department and determining that many of these emails contained classified information. Combetta told the FBI that he created the dummy email account to transfer Clinton’s archived emails from the Archive Laptop to the PRN Server. Based on the results of the 2703(d) order, the FBI determined that 820 of Clinton’s emails, dated between October 25, 2010, and December 31, 2010, remained in the dummy email account. The Midyear team obtained a search warrant to view the content of these emails and search for other emails relevant to the investigation.

Prosecutor 2 told us that the Midyear team sought compulsory process when evidence could not be obtained through consent or when “the terms of the consent were such that additional process needed to be sought.” For example, on August 28, 2015, the Midyear team obtained a search warrant for the Pagliano Server even though Clinton’s attorneys had voluntarily produced and provided consent for the FBI to search it. According to the search warrant application, upon conducting a preliminary examination of the Pagliano server, the FBI discovered that it contained three domains—two besides the clintonemail.com domain—and email accounts of numerous individuals unrelated to the FBI’s investigation, such as former President Clinton’s staff. The FBI further discovered that Microsoft Exchange had been uninstalled from the Pagliano Server in December 2013. As a result, the three different domains were commingled in the server’s unallocated space and the FBI could not segregate the accounts without “a complete forensic analysis of the Pagliano Server.” Because Clinton’s attorneys were only able to provide consent to

Lead Analyst’s notes from early June 2016, the FBI received the returns from this 2703(d) order and, as of that time, the email containing classified information no longer resided in his account.

The Midyear team did not seek 2703(d) orders for information related to Clinton’s private

email accounts. Instead, as described later in this section and in Section IV of this chapter, the team

reviewed the contents of Clinton’s emails on the Pagliano and PRN servers through a combination of

consent agreements and a search warrant. The team also sought records from three different companies in an effort to track down emails Clinton sent or received on her Blackberry account in early 2009, before she began using the clintonemail.com domain. However, witnesses told us that

these companies no longer maintained Clinton’s emails on their servers.

search Clinton’s email accounts on the server, the FBI obtained a search warrant to examine the unallocated space.

1. Use of Consent to Obtain Physical Evidence

1. Debate over the Use of Consent

Based on the evidence we reviewed, although the Midyear team used compulsory process on multiple occasions as described above, the prosecutors sought to obtain digital and documentary evidence by consent whenever possible. Witnesses told us that this caused frustration within the FBI, which preferred obtaining evidence with search warrants or subpoenas. The witnesses generally agreed that this debate is common among prosecutors and agents and was not unique to Midyear. To the extent the disagreement about the use of criminal process was more pronounced in Midyear, witnesses stated that they believed this was due to Midyear being a high-profile investigation. The Lead Analyst explained that “everyone [was] under intense pressure,” which enhanced the “magnitude” of this disagreement.

Numerous Department and FBI witnesses told us that the debate over how to obtain evidence was mostly about efficiency—the prosecutors believed they could obtain evidence faster through consent and the FBI believed that criminal process was more efficient. The prosecutors stated that, in their view, consent is more efficient than process when witnesses are cooperative and, as Prosecutor 4 noted, when there is no concern that evidence will be destroyed to obstruct an investigation. Based on the evidence we reviewed, Clinton’s attorneys contacted Department prosecutors numerous times to express Clinton’s willingness to cooperate by being interviewed and providing evidence voluntarily. Prosecutor 4 told us it was his view that the risk of destruction of evidence, in response to a voluntary production request, is less likely in cases where parties are represented by experienced attorneys, such as “firms like Williams and Connolly” (which represented Clinton), because the attorneys are aware of the risks associated with destroying evidence. Prosecutor 4 stated, “I’m not saying that they’re more ethical. I’m just saying they’re smarter.” The prosecutors stated that seeking evidence through consent also saved time by allowing the government to avoid motions to quash subpoenas based on privilege or lack of probable cause.

A few FBI witnesses told us that they believed the prosecutors in CES were

generally more “risk averse” in their handling of cases than prosecutors in other

parts of the Department. Prosecutor 1 explained that there are reasons to be especially cautious in the types of cases CES handles, including protecting the sensitive and classified information involved in those cases. This prosecutor told us that CES prosecutors must consider questions such as whether the intelligence community will permit the use of classified information in their cases, whether moving a “case forward” is worth the risk that the “use of information gathered by a human source could…identify sources and methods,” and whether “the criminal prosecution of someone [is] more valuable than the continued collection[.]”

Laufman and Prosecutor 4 told us that the use of criminal process tends to increase the risk of leaks and public disclosures. Prosecutor 4 told us that leaks undermine investigations and that “unfair leaks” were an “added” consideration in the Midyear investigation. Laufman told us that the Midyear prosecution team’s goal was to make sure that no stone was left unturned, while also being mindful that leaks “could be used by political actors in furtherance of political agendas.” Agent 3 told us that when he sought process from the prosecutors, they responded that they would try to obtain the evidence by consent because the witnesses “don’t want this to get in the paper.” Comey told us that he believed the prosecutors were more hesitant to use criminal process in the Midyear investigation than normal because they wanted to keep “as low a profile as possible.”

FBI team members told us that they believed they could have obtained evidence faster with process, especially after instances when, they believed, Clinton’s attorneys had not been forthcoming about the existence of potential sources of evidence. For example, after Clinton’s attorneys voluntarily provided the FBI the Pagliano Server pursuant to an August 7, 2015 consent agreement, the FBI discovered through its own investigation that there was a successor server—the PRN server. According to documentation we reviewed, the prosecutors and the FBI were frustrated that Clinton’s attorneys had not been forthcoming about the PRN server, and Prosecutor 1 wrote a letter to Kendall expressing this frustration. The SSA told us that situations like this caused him to question whether consent was the best course. However, Prosecutor 1 stated that resorting to compulsory process for the PRN server would have been complicated, because, among other things, the server was “running tons of people’s email accounts on it that were totally separate from…the former Secretary, including people working in the…former President’s office.” The Midyear team ultimately secured the PRN server through a September 30, 2015 consent agreement with Clinton’s attorneys.

Some witnesses told us that they were concerned about certain devices that the FBI was never able to locate. For example, as described above in Section II of this chapter, the Midyear team was never able to locate the Archive Laptop and Archive Thumb Drive, both of which, according to Hanley and others, contained a complete copy of Clinton’s archived emails. In addition, according to the LHM, the FBI’s investigation identified a total of 13 mobile devices associated with Clinton’s two known telephone numbers “which potentially were used to send emails using Clinton’s clintonemail.com email addresses.” The Midyear team asked Clinton’s attorneys for these devices, but they stated they were “unable to locate” them.70 According to the LHM and FD-302s, Cooper and Hanley told the FBI that they wiped or destroyed Clinton’s devices once she transitioned to new devices. One FBI analyst told us that he was “frustrated” by the claim by Clinton’s attorneys that they could not find her 13 devices. However, he stated that he “guess[ed]” the agency did not have probable cause to assert that the missing devices were in

70 The attorneys produced two other Blackberry devices that they stated might contain

relevant emails, but, according to the LHM, “FBI forensic analysis found no evidence to indicate either

of the[se] devices…were connected to one of Clinton’s personal servers or contained emails from her

personal accounts during her tenure.” The FBI also obtained three of Clinton’s iPads, one of which

contained three emails from her tenure.

Clinton’s home such that a search warrant could be issued, given the testimony that her old devices had been destroyed before she transitioned to new devices. He further stated that his frustration was with Clinton and her attorneys, not the prosecutors.

We questioned whether the use of a subpoena or search warrant might have encouraged Clinton, her lawyers, Combetta, or others to search harder for the missing devices, or ensured that they were being honest that they could not find them. Prosecutor 2 told us that the prosecutors believed that Clinton’s attorneys were dealing with them “in good faith” and had “no reason to think that they were lying” about their inability to find Clinton’s mobile devices. Prosecutor 2 further stated that the team did not believe that Combetta still had the Archive Laptop in his possession, because “there would have been no reason for him to keep it.” Similarly, the Lead Analyst told us that he did not know of any evidence to suggest that Clinton’s attorneys were being dishonest about the evidence they could not locate, and compulsory process would not have made a difference in situations where Clinton’s attorneys represented that they could not find a device.

Agents 1 and 2 told us that there were six laptops that Clinton’s attorneys had provided the FBI early in the investigation with consent to store, but not search, and that they would have liked to search these laptops. Agent 2 stated that he believed that these laptops may have been used to review Clinton’s emails before Clinton’s attorneys produced her work-related emails to the State Department. Agent 1 told us that he believed these laptops were used by Clinton’s Williams and Connolly attorneys to do the “QC of the 30,000 emails after they were culled by Mills and Samuelson.”

Our review of the relevant FD-302s and other documents revealed the following regarding the six laptops: On August 6, 2015, Katherine Turner, one of Clinton’s attorneys, voluntarily produced to the FBI three thumb drives and a laptop computer belonging to Williams and Connolly that contained identical copies of the 30,490 emails Clinton’s attorneys had produced to the State Department, and signed a consent form for the FBI to search these devices. In addition, Turner told the two FBI agents that Williams and Connolly had six additional laptops containing identical copies of the 30,490 emails, but that these laptops also contained unrelated privileged information. Turner agreed to voluntarily produce the additional six laptops to the FBI so that the FBI could secure the classified information contained on them, but declined to provide consent to search the laptops because she “wished to ensure that privileged communications on the laptops would remain confidential.” According to a FD-302 dated August 17, 2015, Turner told the FBI that one of the six laptops was in the custody of Mills’s and Samuelson’s attorneys at Paul, Weiss, Rifkind, Wharton, and Garrison, LLP (“Paul Weiss”). On August 21, 2015, FBI Attorney 1 wrote in a letter to Turner and a Paul Weiss attorney:

It is the FBI’s understanding that the six laptop computers may contain privileged materials. Therefore, the FBI will maintain the six laptop computers in a secure location separate from other materials that have been provided voluntarily to the FBI in conjunction with this matter. The FBI will not access any material or information on the six laptops without further consultation with you or obtaining appropriate legal process.

Upon completion of this matter, the FBI will notify all parties and discuss the appropriate disposition of the material in a manner consistent with applicable laws and policies.

Although the Midyear team left open the possibility of obtaining process to search the six laptops, the team ultimately never sought a search warrant. Prosecutor 2 explained that the Midyear team originally believed that the six laptops included the laptops that Mills and Samuelson used to cull Clinton’s emails. However, during a proffer session on March 19, 2016, Beth Wilkinson (attorney for Mills and Samuelson) told the prosecutors that the six laptops Clinton’s attorneys had produced to the FBI did not include the culling laptops and, in fact, the culling laptops were still in Mills’s and Samuelson’s possession. Prosecutor 2 told us that, following the proffer, Mills and Samuelson turned the actual culling laptops over to Wilkinson, who agreed to disconnect the laptops from the Internet and place them in a safe in her office, until privilege issues could be resolved. As described in Section VIII.D of this chapter, the Midyear team ultimately received consent to search the culling laptops through an agreement with Wilkinson. Agent 2 told us that, despite his desire to search the content of the six laptops, the FBI might not have had sufficient probable cause to assert that the laptops contained emails that the FBI did not already have in its possession. He further told us that it was “completely logical” that Clinton’s attorneys would not consent to the FBI’s review of the laptops given that the laptops contained privileged information related to the attorneys’ representation of other clients. FBI Attorney 1 told us that she believed, based on the representations of Clinton’s counsel, that the six laptops never contained the full 62,320 emails and that they only contained copies of the 30,490 emails that had been produced to the State Department. She stated that, as a result, she did not believe that it was necessary to review the six laptops, especially given the privilege concerns.

There were points in the investigation when the debate about the use of consent versus compulsory process was particularly pronounced. Based on the evidence we reviewed, in or about March 2016, Page asked Strzok, on behalf of McCabe, to create a list of tasks that the Department had either refused to undertake or “asked to let them negotiate with counsel,” even if the FBI ultimately agreed with the outcome. Page told us that McCabe suggested the list after she told him that Strzok and FBI Attorney 1 were “increasingly growing concerned about…the little things that are being left on the cutting room floor and…the deference to” the line prosecutors on how best to obtain evidence. On March 24, 2016, Strzok wrote to FBI Attorney 1 and the Lead Analyst describing the proposed list.71 In the email, Strzok provided a rough list of the items he was considering

71 In the March 24, 2016 email, Strzok stated that he had asked the SSA to work on the list. Strzok blind-copied Page on this email, who responded to Strzok later that day to explain that McCabe wanted the list to be “done quietly” and Strzok should tell the SSA to “stand down and just say you’ll handle it.” Page told us that McCabe wanted the list done quietly because it would not be “well•

including and wrote, “Problem is it’s been death by a thousand cuts.”72 Strzok told us that at the time he wrote this email, he was “aggravated by the limitations” that the prosecutors were placing on the FBI’s ability to obtain evidence and felt that “if you add up this delta over a bunch of decisions, all of a sudden it becomes substantive.” Strzok and Page told us that they did not believe a list was ever finalized.

Despite this debate, the agents, analysts, prosecutors, and supervisors on the Midyear team generally told us that, aside from devices that had been destroyed or that could not be located, they ultimately obtained and reviewed all of the devices necessary to complete the investigation. For example, Strzok stated that once he was able to “step back towards the end of the investigation,” he realized that “maybe we gave a little where we didn’t need to give, and maybe we actually got lucky here. But is there anything that we ultimately are missing to make kind of an authoritative, accurate conclusion? No.” McCabe stated that the team “drew some red lines around things that we absolutely insisted we had to do,” such as obtaining the laptops Mills and Samuelson used to cull Clinton’s emails, and that those items ultimately were attained. The SSA, who was described to us by several witnesses as an experienced and aggressive agent, stated that he “had a lot of hoops to jump through at times,” but “no matter what the obstacles were, we moved through them.” Similarly, Anderson told us, “At various points…as the investigation progressed…we were very anxious to…seek aggressively different materials…. [B]ut at the end of the day, I do believe everybody felt that we had obtained everything that we needed to obtain in order to assess criminality.”

1. Limits of Consent Agreements

The SSA told us that the terms of the consent agreements were primarily created through negotiations between the two line NSD prosecutors, on one side, and the attorneys for Clinton and other witnesses, on the other. For the most part, the consent agreements were limited such that the FBI was able to search only for emails sent or received by Clinton during her tenure as Secretary of State and for evidence of intrusion. These were generally the same limitations that were included in the subpoenas, search warrants, and 2703(d) orders obtained during the course of the investigation.

received” by the Department. Strzok stated that his understanding was that McCabe wanted to discuss the items in the list with Toscas during a “sidebar,” rather than in a “big, official meeting.”

72 The items in the rough list were:

1) getting process .. at the beginning (the fight about opening a case, about assigning a field office and a usao for process) 2) a) media (consent vs SWs for all the servers and devices and games opposing counsel played), There is a ton here, from everything we have vs the stuff we didnt get ~ eg, apple server at Chappaqua, computer at Whitehaven, plethora of ipads, lack of blackberries, b) scoping and negotiating of what we’ve been able to search for 3) email accounts (thinking Mills Gmail account) 4) interviews (v FGJ compellence) and scoping of interviews. -I think that largely applies to PRN and the big four+Samuelson, right? Anyone else?

An FBI analyst told us that limiting the search time period to Clinton’s tenure as Secretary was not controversial. The analyst explained, “[T]he reason it was scoped to the tenure is because…that is of course when she would have had access to the classified information.” We questioned both Department and FBI witnesses as to whether emails from after Clinton’s tenure could have shed light on whether Clinton instructed her staff to delete emails for an improper purpose. They told us that any relevant emails following Clinton’s tenure mostly would consist of communications with her attorneys regarding the sort process, and such communications would be protected by attorney-client privilege.

The consent agreements and search warrants also were limited such that the FBI could not search emails sent or received by other accountholders on Clinton’s servers—such as Abedin and former President Clinton and his staff—unless Clinton was also a party to those emails. One analyst told us that he would have liked to be able to look at emails to which Clinton was not a party. For example, he told us that he would have liked to review emails between Abedin and Cooper regarding what Clinton may have said about the server. We questioned the prosecutors as to why the consent agreements were not scoped such that they could search for any work-related or classified emails within Abedin’s clintonemail.com account, especially since FBI witnesses told us that Clinton’s server, not Clinton herself, was the subject of the investigation. This is addressed in Section V.D of this chapter below.

The consent agreements and search warrants incorporated provisions requiring the use of a filter team to ensure that the Midyear team did not review emails protected by privileges, including attorney-client, medical, and marital privileges. One analyst told us that the filter process was cumbersome and that some interpretations of the privileges were unusual. For example, because former President Clinton did not use email, one of his employees received former President Clinton’s emails and then printed them for him. The privilege team considered the emails that Clinton sent to her husband through this employee as privileged, although this may not have been legally required. The Lead Analyst told us that he, too, was often frustrated by the cumbersome filter process. However, he stated that he agreed with the team’s “conservative” approach to interpreting what was privileged, because it was important for the FBI to handle its mission and the materials in its possession “responsibly” and to not unnecessarily be looking “into the lives of the Clintons.”

There were at least two consent agreements that did not incorporate the use of a filter team, but instead allowed the attorney for the owner of the devices to delete personal information before voluntary production to the FBI. These were the consent agreements that the Department negotiated with Justin Cooper’s attorney to obtain Cooper’s personal laptops that the team hoped contained, among other things, back-ups from the BlackBerry devices Clinton used during the first two months of her tenure.73 According to the FD-302 from Cooper’s September 2, 2015

73 As noted in footnote 64 of this report, the 30,490 emails provided by Clinton’s attorneys to the State Department contained no emails sent or received by Clinton during the first two months of

interview, Cooper’s attorney told the FBI that Cooper’s laptops contained “files related to the upgrade of former Secretary of State Hillary Clinton’s Blackberry,” as well as emails Cooper exchanged with Clinton. In a letter dated September 10, 2015, Cooper’s attorney wrote to Prosecutor 1, “As we discussed and as the government has agreed, before providing Mr. Cooper’s computer hardware to the FBI, we will remove and securely delete Mr. Cooper’s personal and business files.” In a letter dated September 24, 2015, Cooper’s attorney wrote to Prosecutor 1 that he was voluntarily providing the FBI Cooper’s Mac Book Air laptop computer and further wrote, “[a]s agreed, we have securely deleted from the Mac Book Air Mr. Cooper’s personal and business files, and we have overwritten its unallocated space with zeros.”

We asked some FBI and Department witnesses why they did not use a filter team instead of allowing Cooper to delete his personal files. FBI witnesses told us that they were not concerned by the limitations in the consent agreements for the Cooper laptops, because Cooper was particularly cooperative and the materials he voluntarily provided to the FBI turned out to be fruitful.74 Indeed, according to the FD-302 from Cooper’s interview, Cooper’s attorney told the FBI about the back-ups on Cooper’s laptop without prompting. In addition, FBI Attorney 1 and Agent 1 told us that they considered Cooper’s devices to be different from other devices they reviewed, because there was no evidence that Cooper was the sender or recipient of classified information and Cooper was more of an aide to former President Clinton than to former Secretary Clinton. Strzok told us that the team was not certain that it could establish probable cause that there was classified information or other evidence of a crime on the Cooper laptops.

Some FBI witnesses told us, consistent with text message exchanges between Strzok and Page, that the FBI was concerned that the line NSD prosecutors were intimidated by the high-powered attorneys representing Clinton and her senior aides and, as a result, did not negotiate aggressively with them. Strzok told us that Prosecutor 1, who handled most of the negotiations with counsel, is “extraordinarily competent,” but he believed more senior government officials should have been involved with deciding “how hard [to] push counsel.” Nevertheless, the FBI witnesses generally told us that they were satisfied that the limitations of the consent agreements did not impair the investigation. Agent 2 stated regarding the limitations in consent agreements, “I think generally…we were able to get what we were looking for. It maybe was more complicated, time-consuming, and cumbersome.” The Lead Analyst told us that “every single consent arrangement constrained what we did…to some degree.” However, he, Strzok, and FBI Attorney 1 all told us that they believed the team might have actually obtained

her tenure, and Midyear officials believed these missing emails could contain important evidence regarding Clinton’s intent in setting up a private email server.

74 For example, one analyst told us that within the Blackberry back-ups on the Cooper laptop, the FBI team found an email from former Secretary of State Colin Powell to Clinton on January 23, 2009, in which Powell warned Clinton that if it became “public” that she used a Blackberry to “do business,” her emails could become “official record[s] and subject to the law.” In the email, Powell further warned Clinton, “Be very careful. I got around it all by not saying much and not using systems that captured the data.”

more through the consent agreements in some instances than they would have obtained through compulsory process. Strzok explained that for some devices they were not certain that the team could establish sufficient probable cause to convince a judge to issue a search warrant or allow a search that was as broad as what was agreed upon through a consent agreement. He provided as an example the Cooper laptops described above. Similarly, Prosecutor 2 told us that the Midyear team was able to search certain items through consent agreements, despite privilege issues that may have caused a subpoena or search warrant to be quashed.

In addition, based on our review, we determined that Department and FBI members of the Midyear team worked together to determine the scope of the review of the evidence and, in turn, the limitations to be included in consent agreements and search warrants. For example, in a September 23, 2015 email exchange among a WFO Computer Analysis and Recovery Team forensic examiner (“CART Examiner”), Strzok, the Lead Analyst, the four line prosecutors, three FBI OGC attorneys, and two case agents, Prosecutor 2 wrote that she assumed the consent agreement for the PRN server would be scoped such that the FBI would not review the content of any emails in domains other than the clintonemail.com domain. Strzok wrote back with a more expansive approach than that suggested by Prosecutor 2: “I think we would ask to search the other domains for any emails to/from the @clintonemail.com domain in the event those emails were deleted from whichever clintonemail.com account and no longer available there.” The final consent agreement followed Strzok’s more expansive approach, allowing the FBI to search the entire server, including the unallocated space and domains other than the clintonemail.com domain, for any emails to or from Clinton.

None of the witnesses we interviewed could point to specific examples of anyone involved in the investigation allowing political or other improper considerations to impact the decisions on how best to obtain evidence.

1. Efforts to Obtain Email Content from the Private Accounts of Clinton’s Senior Aides

In this section, we address the Midyear team’s efforts to obtain email content from the accounts of the three senior aides that had the most email communication with Clinton—Jake Sullivan, Cheryl Mills, and Huma Abedin. Sullivan was Clinton’s Deputy Chief of Staff for Policy from January 2009 to February 2011 and Director of Policy and Planning at the State Department from February 2011 to January 2013; Mills served as, among other things, Clinton’s Chief of Staff during Clinton’s tenure as Secretary; and Abedin served as Clinton’s Deputy Chief of Staff during Clinton’s tenure. According to the LHM, the FBI discovered through its review of emails from various sources that only 13 individuals had direct email contact with Clinton, and that Sullivan, Abedin, and Mills “accounted for 68 percent of the emails sent directly to Clinton.”75 State Department employees told the FBI that they considered emailing Sullivan, Mills, or Abedin the equivalent of emailing Clinton directly.

In addition to examining emails to or from these senior aides within the original 30,490 emails produced to the State Department, the investigators obtained emails from the State Department for each of their official State classified and unclassified email accounts. Based on a review of these emails and other evidence, the investigators determined that, in addition to their official State email accounts, Sullivan and Mills used personal Gmail accounts and Abedin used a personal Yahoo! account and her clintonemail.com account to conduct government business. Sullivan, Mills, and Abedin told the FBI that they used their private email accounts for official business occasionally, including on occasions when the official State email system was not functioning properly. Sullivan stated that he had the most difficulty using the official State system when he was traveling and on the weekends.

The investigators further determined that all three of these senior aides either sent or received classified information on their private email accounts and forwarded emails containing classified information to Clinton, although none of the emails the FBI discovered contained classification markings. The three aides provided the following explanations to the FBI for their conduct: they did not believe the information contained in their emails was classified; they tried to talk around classified information in situations where there was an urgent need to convey information and they did not have access to classified systems; some of the information they were discussing had already appeared in news reports; and they relied on the originators of the emails to properly mark them. These explanations were consistent with those provided to the FBI by both the originators of the emails containing classified information and Clinton. Based in part on these explanations, the prosecutors determined that no one “within the scope of the investigation,” including the three senior aides, “committed any criminal offenses.”

Nonetheless, the investigators considered obtaining additional information from or about the private email accounts of all three senior aides. Emails sent to or from the private email accounts were potentially relevant to: (1) further reconstructing the full collection of work-related emails and emails containing classified information that were sent to or from Clinton’s servers; (2) finding additional emails containing classified information that were transmitted and stored on unclassified systems other than the Clinton’s servers; (3) finding evidence of knowledge or intent on the part of Clinton, the senior aides, and possibly others regarding the transmission or storage of classified information on unclassified

75 FBI analysts and Prosecutor 2 told us that former President Barack Obama was one of the 13 individuals with whom Clinton had direct contact using her clintonemail.com account. Obama, like other high level government officials, used a pseudonym for his username on his official government email account. The analysts told us that they questioned whether Obama’s email address (combined with salutations that revealed that the emails were being exchanged with Obama) or other information contained in the emails were classified and, thus, sent the emails to relevant USIC agencies for classification review. However, they stated that the USIC agencies determined that none of the emails contained classified information.

systems; (4) controlling the spill of classified information in unauthorized locations; and (5) assessing whether there had been a compromise of classified information by hostile actors through intrusion analysis.

The Midyear team obtained 2703(d) orders for noncontent information in Mills’s Gmail account and Abedin’s Yahoo! account and a search warrant for Sullivan’s personal Gmail account. However, the Midyear team did not obtain search warrants to examine the content of emails in Mills’s or Abedin’s private email accounts and did not seek to obtain any of the senior aides’ personal devices.76

1. Section 2703(d) Orders for Non-Content Information for Mills’s and Abedin’s Private Email Accounts

On February 18, 2016, the FBI obtained a 2703(d) order for Abedin’s personal Yahoo! account. According to the government’s application for the 2703(d) order, the FBI discovered that on October 4, 2009, an email attaching a Word document without classification markings was forwarded from Abedin’s unclassified State Department email account to her Yahoo! account. The application stated that the next day, “the text from this Word document, with slight edits and reformatted to State Department letterhead, was sent from a State Department employee on SIPRNet, a classified email system, to Cheryl Mills” with a classification marking of SECRET//NOFORN. As a basis for the 2703(d) order, the application stated that a review of the 2703(d) returns would “help the FBI determine if the aforementioned email, containing a classified Word document, still resides within the Subject Account maintained by Huma Abedin and whether there are other records connecting email accounts associated with the improper transmission and storage of classified information.”

Similarly, on May 31, 2016, the FBI sought and obtained a 2703(d) order for Mills’s personal Gmail account. According to the government’s application for the 2703(d) order, the FBI discovered that Mills sent or received at least 911 work-related emails to or from her Gmail account during the time she was employed at the State Department. The application stated that the FBI identified seven emails containing confirmed classified information and an additional 208 emails containing suspected classified information that had not yet undergone formal classification review. The application provided as an example one email that was determined to be classified at the level of SECRET//NOFORN at the time the email was sent. None of the emails contained classification markings.

We were told by an analyst who focused on handling legal process, and the notes of Strzok and the Lead Analyst from late May and early June 2016 confirmed, that the returns from the 2703(d) orders for Mills’s and Abedin’s accounts revealed that neither the confirmed classified emails nor any emails to or from Clinton continued to reside in Mills’s or Abedin’s personal accounts as of the date Google and Yahoo! searched their servers. According to Strzok’s and the Lead Analyst’s

76 The senior aides’ personal devices were potential sources of work-related emails or remnants of work-related emails that the senior aides had deleted and were not preserved on the commercial providers’ servers.

notes, Abedin’s email account contained less than 100 emails from Clinton’s tenure as Secretary of State, while Mills’s account contained numerous emails from Clinton’s tenure as Secretary of State. Prosecutor 2 and one FBI analyst told us that these results provided no basis to conclude that Mills or Abedin had deleted emails to or from Clinton for an improper purpose, because there are various factors that could contribute to the preservation of emails in a personal email account.77

1. Decisions Regarding Search Warrants for Private Email Accounts

The Midyear team obtained a search warrant for Sullivan’s Gmail account, on September 17, 2015. According to the search warrant, in reviewing the 30,490 emails provided by Clinton’s attorneys to the State Department, the FBI found Sullivan’s electronic business card, which identified him as an employee of the State Department and listed his private Gmail address. The search warrant stated that the FBI also had identified, among the 30,490 emails produced to the State Department, an unmarked email determined to contain information classified at the TOP SECRET level at the time it was forwarded by another State Department employee to Sullivan’s Gmail account. The search warrant further stated that the FBI had identified an additional 496 emails from Sullivan’s personal Gmail account that it suspected contained classified information, but had not yet submitted for formal classification review. One analyst told us that unlike the emails found on Clinton’s servers, which often were derived from the unallocated space, emails from Sullivan’s Gmail account were helpful because they clearly revealed important metadata, such as senders, recipients, and dates.

Given the significant roles of Mills and Abedin, and the usefulness of the material from Sullivan’s personal account, we asked why the investigators did not seek search warrants for the private accounts of Mills or Abedin. We learned that the SSA initially drafted a search warrant affidavit for Mills’s personal Gmail account, but it was never filed. In an email to FBI Attorney 1 and the Lead Analyst dated March 25, 2016, Strzok listed “email accounts (thinking Mills Gmail account)” as an item that the FBI unsuccessfully sought from the prosecutors. Strzok, the SSA, and Agent 3 told us that Strzok advocated in favor of applying for the search warrant, but that the prosecutors rejected the affidavit in favor of a 2703(d) order, based on insufficient probable cause and privilege concerns. The SSA stated that he disagreed with the prosecutors’ position that there was insufficient probable cause for a search warrant, because there was evidence that Mills’s Gmail account was used for official business and contained classified information.

Nevertheless, Prosecutor 2 told us that the FBI never made a follow-up request for a search warrant after receiving the 2703(d) returns. As discussed above, according to Strzok’s and the Lead Analyst’s notes and other evidence, the Midyear team received the 2703(d) returns in late May and early June 2016 and

77 According to records we reviewed, the Midyear team also served preservation orders on

Google and Yahoo! in relation to Mills’s and Abedin’s personal email accounts.

learned that neither the classified emails nor any emails to or from Clinton continued to reside in either account. Prosecutors 1 and 2 told us that, based on the facts developed at that point, there was likely no probable cause to seek a search warrant. Strzok stated about the proposed search warrant for Mills’s Gmail account, “I remember we did not get it, and my general recollection is, if we thought it was important, and…we could have gotten probable cause, we would have done it. I think we just couldn’t establish PC [probable cause].”

Some FBI witnesses told us that there were reasons to promptly seek a search warrant for Sullivan’s Gmail account, instead of beginning with a 2703(d) order like they did with the private email accounts belonging to Mills and Abedin. They stated that unlike Sullivan, Mills and Abedin had not, based on the evidence they had reviewed, sent or received TS-SAP emails on their personal accounts, and these were the most sensitive emails discovered during the investigation. One analyst stated that Clinton’s email exchanges with Sullivan were more substantive than her email exchanges with both Abedin and Mills. In addition, witnesses told us, consistent with the FD-302s we reviewed, that Sullivan was a more regular user of personal email for conducting State business, in part because he traveled overseas more often than the others.

Prosecutor 2 told us that Sullivan was treated differently from Mills and Abedin, because the information contained in the Top Secret email sent to Sullivan more clearly constituted classified information and NDI (“national defense information”) than the information contained in the emails sent or received by Mills and Abedin.78 Prosecutor 2 stated, “[T]here was a fundamental difference in the nature of information that we knew was in Jake Sullivan’s account, versus the information that was in Abedin’s account and Mills’s accounts.” In addition, Prosecutor 2 told us that the prosecutors would have had to obtain Criminal Division approval to obtain a search warrant for Mills’s Gmail account, given that she was an attorney. Prosecutor 2 told us that, while they would have sought the approval if they believed it was “appropriate,” this was among the factors they considered in “deciding what process to use.”

1. Access to Personal Devices for Clinton’s Senior Aides

Another potential means to obtain emails to or from the private accounts of Clinton’s senior aides would be to obtain access to their personal devices, such as laptops or cellular telephones, on which copies of such emails might reside. Such access could possibly have been obtained by consent or via search warrant.79 As

78 As described in Chapter Two, 18 U.S.C. §§ 793(d), 793(e), and 793(f) require the information that is alleged to be mishandled to be “information relating to the national defense.” This is also referred to as “national defense information” or NDI, and is not synonymous with classified information.

79 As noted previously, while the government could also have issued a subpoena for any laptops or cellular telephones, it would not have been able to search the electronic communications within such a device without a search warrant. See, e.g., Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001).

described in Section VIII.D of this chapter, the Midyear team obtained, through consent agreements with Beth Wilkinson, the laptops that Mills and Samuelson used to cull Clinton’s emails for production of her work-related emails to the State Department. However, the investigators did not seek access to the private devices used by Sullivan, Mills, or Abedin during Clinton’s tenure at State.80

Witnesses told us that the team’s focus was on Clinton and obtaining her devices, such as her servers, computers, and hand-held devices. Prosecutor 2 stated, “[T]he scope of the investigation really related to the email systems used by Secretary Clinton, and whether on her private email server there are individuals who improperly retained or transmitted classified information.” According to one analyst, there were generally two types of devices that the team sought: devices that Clinton used and devices to which her emails were transferred.

We asked several witnesses why they did not obtain devices used by Sullivan, Mills, and Abedin, both as a means of searching for evidence of the mishandling of classified information by Clinton and her aides and to prevent a further compromise of classified information. Both Strzok and Anderson told us that, at the outset of the investigation, former Deputy Director Giuliano generally advised the team that the purpose of the investigation was not to follow every potential lead of classified information. Strzok stated that Giuliano told the team, “[T]his is not going to become some octopus…. The focus of the investigation [is] the appearance of classified information on [Clinton’s] personal emails and that server during the time she was Secretary of State.” Strzok further stated that the FBI’s “purpose and mission” was not to pursue “spilled [classified] information to the ends of the earth” and that the task of cleaning up classified spills by State Department employees was referred back to the State Department. He told us that the FBI’s focus was whether there was a “violation of federal law.” Prosecutors 1 and 2 similarly told us that the Department was not conducting a spill investigation, and that the State Department was the better entity for that role. Prosecutor 1 stated, “At a certain point, you have to decide what’s your criminal investigation, and what is like a spill investigation…. [W]e could spend like a decade tracking emails…wherever they went.” The SSA told us that the Midyear team engaged in several conversations with the State Department regarding the spill of classified information, and the State Department officials expressed concern about the problem and were receptive to resolving it. Generally the witnesses told us that they could not remember anyone within the team arguing that more should have been done to obtain the senior aides’ devices.

We specifically questioned why the team did not attempt to obtain any personal devices used by Huma Abedin, given the team’s finding that numerous

80 FBI Attorney 1 told us that she believed the personal laptop that Mills had used to cull Clinton’s emails was the same personal laptop she had used during her tenure at State. As described in Section VIII.D of this chapter, the FBI ultimately obtained Mills’s culling laptop and the laptop did contain some emails from Clinton’s State Department tenure. We were unable to determine whether this was in fact the personal device Mills used during her tenure at State and, if so, if she also used other personal devices.

work-related and classified email exchanges between Abedin and Clinton that the Midyear team found through various sources were absent from the 30,490 emails produced to the State Department by Clinton’s lawyers. Witnesses told us that they believed there was a flaw in the culling process, which resulted in the exclusion of most of Abedin’s clintonemail.com emails from the State Department production.81 We also questioned (1) the failure to obtain Abedin’s devices despite that, according to Abedin’s FD-302, Abedin told the FBI that she turned both her personal laptop and her personal Blackberry over to her attorneys to be reviewed for production of work-related emails to the State Department; and (2) the inconsistency between the decision not to seek Abedin’s devices before the July declination and the decision to obtain a search warrant for email on the laptop belonging to her husband, Anthony Weiner, in October 2016.

In response to the OIG’s questions regarding the Midyear team’s decision not to obtain the senior aides’ devices, Prosecutor 1 told us that he did not remember any “meaningful discussion” before October 2016 about obtaining the senior aides’ devices, aside from the laptops used by Mills and Samuelson to cull Clinton’s emails for production of her work-related emails to the State Department. The SSA told us that in the beginning of the investigation, the Midyear team wanted to obtain every device that touched the server, but that over time the team realized that this would not be “fruitful.” He stated that OTD personnel told the team that “it was not likely that there would be anything on the devices” themselves. Some FBI witnesses told us that they asked the senior aides during their Midyear interviews about any personal devices they used for State Department work, and the Midyear team relied on their responses to determine what devices to obtain. Agent 3 told us that the Midyear team asked Abedin whether she backed up her clintonemail.com emails and she responded that her email was “cloud-based” and she did not “know how to back up her archives.” He stated that based on this testimony, the team assessed that finding helpful evidence on Abedin’s devices was unlikely.

Both Strzok and Prosecutor 2 told us that the decision not to obtain the senior aides’ devices was a joint decision. Prosecutors 1 and 2 and Strzok further told us that the team did not obtain Abedin’s personal laptop and Blackberry that she used during her employment at the State Department, even after she told the FBI that she gave those devices to her attorneys, because the State Department provided to the FBI Abedin’s work-related emails that her attorneys produced from those devices. Strzok stated that Abedin’s attorneys told the Midyear team that they erred on the side of overproducing Abedin’s emails to the State Department and that, unlike the sort process for Clinton’s emails by Mills and Samuelson, there was no reason to believe Abedin’s attorneys’ sort process was flawed. Prosecutor 2

81 According to a report prepared by one analyst, the team had found through various sources 1,716 work-related emails between Clinton’s and Abedin’s clintonemail.com accounts that had not been produced to the State Department by Clinton’s lawyers, and that 90 of these emails contained classified information. The analyst who prepared the report told us that only approximately 32 email exchanges between Abedin and Clinton were included in the production, which was surprising to the FBI given Abedin’s prominent role on Clinton’s staff. According to the written analysis he prepared, the problem was likely that Clinton’s attorneys only considered Clinton’s exchanges with Abedin’s clintonemail.com account to be work-related if they were also sent to a .gov account or contained a specific work-related key term.

told us, consistent with notes this prosecutor took at a meeting on October 27, 2016, that the only reason the FBI later obtained the Weiner laptop was because “it had ended up in our laps.” We describe this issue further in Chapters Nine, Ten, and Eleven.

Several witnesses told us that tracking down Clinton’s devices alone was very challenging. They stated that the investigation would have taken years if the team attempted to seek every possible device that might contain Clinton’s emails or classified material. For example, Prosecutor 2 stated:

I think the idea was that, that this investigation had to be somewhat focused, otherwise it could spin off into a million different directions. And this investigation could take different forms for years and years and years to come. So, you know, the, the focus of the investigation was, was really the private email system.

Agent 3 told us that the team focused on Clinton’s devices because they were the most likely to have the full tranche of missing emails from Clinton’s servers, whereas the devices of any one person would only have a “fraction” of them.

Midyear team members further told us that they placed limits on their investigation based on practical considerations, including what they observed to be systemic problems with handling classified information at the State Department. They stated that they discovered persistent practices of State Department employees, including both political and career employees, discussing classified information on both unclassified government email accounts and personal email accounts, and that this culture predated Clinton’s tenure as Secretary of State. In addition, FBI Attorney 1 told us that the emails containing classified information that were forwarded to Clinton often originally copied numerous State Department and other government agency employees, some of whom could have forwarded them to other unclassified locations besides the chain that ultimately led to Clinton’s server. Witnesses told us that these factors made it impractical for them to search every email account or device that classified emails may have traversed.

1. Review of Abedin’s Emails on the Clinton Server

Abedin was the only State Department employee, besides Clinton, with an account on the clintonemail.com domain on Clinton’s server. Witnesses told us and documents we reviewed showed that the Midyear team did not review all of Abedin’s clintonemail.com emails on the server; rather, they limited their searches to her email exchanges with Clinton. We questioned why this limitation was put in place, given that the purpose of the investigation was to generally assess any mishandling of classified information in relation to Clinton’s server.82

82 As we discuss in Chapter Eleven, in October 2016, when the Midyear team was drafting the search warrant affidavit for the Weiner laptop, Baker questioned why the team was not seeking to review all of Abedin’s emails on Weiner’s laptop. He wrote, “I’m still concerned we are viewing the PC too narrowly. There is PC to believe that Huma used her email accounts to mishandle classified

Several witnesses told us that they did not seek to review all of Abedin’s emails because her role was administrative in nature. While witnesses told us that Abedin had possibly the most contact with Clinton and sometimes forwarded or printed substantive work-related emails to or for Clinton, she was never an originator of classified materials, she did not typically use classified systems, she did not receive or forward the particularly sensitive information, and she did not comment substantively on classified information that was contained in the emails she forwarded. Prosecutor 1 explained that the team was not “as concerned that [Abedin] was taking stuff off the classified systems and dumping it down.” These factors also contributed to the decision not to obtain a search warrant for content from Abedin’s Yahoo! account.

However, during a review of the Weiner laptop in October and November 2016, the FBI discovered unmarked classified emails that Abedin had forwarded to Weiner. During an FBI interview on January 6, 2017, Abedin acknowledged that she “occasionally” forwarded work-related emails to her husband for printing.

1. Decision Not to Seek Access to Certain Highly Classified Information

As detailed in the classified appendix to this report, the OIG learned late in our review that the FBI considered seeking access to certain highly classified materials that may have included information potentially relevant to the Midyear investigation, but ultimately did not do so.83 In late May 2016, FBI Attorney 1 drafted a memorandum stating that review of the classified materials was necessary to complete the Midyear investigation and requesting permission to review them.

The FBI never finalized the May 2016 memorandum or received access to these classified materials for purposes of the Midyear investigation.84 FBI witnesses told us that this was for various reasons, including that they believed that the classified materials were unlikely to include information from the beginning of former Secretary Clinton’s tenure, and thus would not have a material impact on the investigation. However, other FBI witnesses including Strzok, the Lead Analyst, and the SSA told us that reviewing the materials would have been a logical investigative step.

information. I just don’t understand why that us [sic] not enough to look at all her emails.” Baker told us that he believed the team had probable cause to look at all of Abedin’s clintonemail.com and

Yahoo! emails, based on the evidence that classified information had traversed both private email accounts.

83 The OIG also has not reviewed the highly classified information.

84 As we describe in the classified appendix, the FBI sent a memorandum to the Department on June 1, 2018, requesting permission to review these classified materials for foreign intelligence purposes unrelated to the Midyear investigation.

The classified appendix describes in more detail the highly classified information, its potential relevance to the Midyear investigation, and the FBI’s reasons for not seeking access to it.

1. Voluntary Interviews

According to documents we reviewed, the Midyear team conducted 72 witness interviews. The witnesses included individuals involved with setting up and administering Clinton’s private servers, State Department employees, and other individuals with suspected knowledge of Clinton’s email servers, the transmission of classified information on the servers, or her intent. Based on our review, we determined that all witnesses were interviewed voluntarily or pursuant to immunity agreements and, consistent with the FBI’s normal procedures, none of the witnesses were placed under oath or recorded.85 No witnesses testified before the grand jury.

The FBI and Department witnesses we interviewed told us that the Midyear team, including agents, analysts, the SSA, Strzok, the Lead Analyst, and line prosecutors worked together to decide whom to interview and the sequencing of witness interviews, without seeking approval from higher level Department or FBI officials. Agent 1 stated that the initial strategizing on whom to interview generally occurred at the level of the SSA and below. The SSA and most of the case agents told us that they did not recall any significant disputes over whom to interview and that they were never told by higher level managers, including Strzok, or Department employees, including the prosecutors, not to interview particular witnesses that they believed were essential to the investigation. Similarly, the prosecutors told us that their chain of command did not seek to influence the team’s decisions on whom to interview. Toscas told us that the prosecutors made him aware of upcoming important interviews and he briefed that information up the chain, but he and higher level Department officials were not involved in deciding whom to interview.

FBI witnesses told us that the agents and analysts worked together to determine what questions to ask to witnesses, and that the analysts prepared packets of documents to use as exhibits. The SSA and the case agents told us that their supervisors were involved in strategy sessions before interviews and in editing and suggesting potential questions, but did not dictate the process and never forbade them from asking particular questions. They also told us that for more significant witnesses, the line prosecutors reviewed their interview outlines and suggested eliminating questions based on privilege, relevance, or a scope that had been agreed upon with the witness’s counsel. The SSA stated that the prosecutors’ review of the questions did not cause “friction” and that the process was “fairly seamless.” The prosecutors told us that higher level Department officials were not involved in deciding what questions to ask witnesses.

85 See DIOG § 18.5.6 (recording of noncustodial interviews is optional; no requirement that witnesses be placed under oath during voluntary interviews).

Witnesses told us and the FD-302s indicated that the case agents led the interviews, and prosecutors and supervisors only attended when witnesses were represented by counsel or particularly significant. According to documents we reviewed, Strzok attended the interviews of five key witnesses—Abedin, Mills, Samuelson, Sullivan, and Clinton. He stated that he only attended these interviews because Laufman insisted on attending them, and he believed that as Laufman’s counterpart at the FBI he should attend them as well. Laufman told us that he attended the interviews that he believed were “potentially the most consequential,” because of the “enormous implications” and “potential consequences” of the Midyear investigation and to ensure that no one involved in the investigation went “off in a direction that wasn’t consistent with a purely independent, investigative, impartial approach.” He further told us that he wanted to be involved in key interviews in order to make his own assessment of the witnesses’ credibility and gain a full picture of the investigation, so that he could make an informed judgment at the end of the investigation as to whether to accept the FBI’s and prosecutors’ recommendations. Prosecutor 1 told us that the Midyear agents were “very, very diligent and most of them were very good interpersonally,” and that the prosecutors only interjected occasionally during interviews.

We were told that the decision to conduct voluntary interviews rather than subpoenaing witnesses before the grand jury was not controversial or unusual. FBI agents and prosecutors told us that their usual practice is to interview witnesses voluntarily and only resort to grand jury if witnesses are uncooperative or not credible. They further told us that the Midyear witnesses were mostly cooperative and credible and that using the grand jury would have been complicated given the sensitive, classified information involved. Prosecutors 1 and 2 and Agent 1 told us that not calling any witnesses before the grand jury was common in mishandling investigations, because doing so would typically require grand jurors to learn about classified information. Before introducing classified information to the grand jury, prosecutors must obtain approval from the USIC agency that was responsible for classifying the information.86 Prosecutor 1 explained that although “[y]ou can put classified information in front of the grand jury[,] [y]ou really would like to avoid that because you’re basically exposing people that aren’t going to be cleared to the information.” Agent 1 stated that he had specialized in investigations concerning the loss of classified information since approximately 2008 and during that time he had only been involved in one or two investigations where witnesses were subpoenaed to testify before the grand jury. Agent 4 told us that voluntary interviews are better than the grand jury for “rapport-building” and obtaining information.

Prosecutor 1 told us that the prosecutors were prepared to issue grand jury subpoenas for any witnesses that refused to voluntarily submit to interviews, for situations where they believed witnesses were untruthful, or for situations where witnesses provided statements that would be helpful in a later prosecution and the team wanted to “lock them in.” While all witnesses ultimately submitted to voluntary interviews, the team issued a grand jury subpoena for Paul Combetta. As

86

See USAM 9-90.230.

discussed in Section VII.B of this chapter, ultimately the Midyear team decided that it was unnecessary to question Combetta before the grand jury.

VII. Use Immunity Agreements

The Department entered into letter use or “Queen for a Day” immunity agreements with three witnesses in the Midyear investigation: Bryan Pagliano, Paul Combetta, and John Bentel. These immunity agreements and the specific reasons for them are described in Sections A through C below. The Department also entered into two act-of-production immunity agreements in relation to the personal laptops used by Cheryl Mills and Heather Samuelson to cull Clinton’s emails. These are discussed in Section VIII.D.3 of this Chapter. The Department did not enter into any transactional immunity agreements.

The prosecutors told us that, in deciding whether to grant use immunity to a witness, they considered whether the witness had criminal “exposure” (i.e., whether there were crimes for which the witness could be prosecuted), the witness’s degree of culpability, the value of the witness’s expected testimony, whether there were other sources of the same information, and whether the grant of immunity would help or hinder the investigation. Numerous Department and FBI witnesses told us that they did not oppose the immunity agreements. Some witnesses stated that there was nothing unusual or troubling about the nature or quantity of immunity agreements used in the Midyear investigation, especially since so many witnesses were represented by counsel. Witnesses also told us that the immunity agreements were approved within the Department through the level of DAAG Toscas, and that higher level Department and FBI officials were not involved in negotiating or approving the immunity agreements. Yates told us that she was briefed about immunity agreements, but, since she was not made aware of any disagreements related to them, she did not consider overruling them. Lynch told us that she generally was not briefed or otherwise involved in immunity issues.87

1. Pagliano

As previously noted, Bryan Pagliano was an information technology specialist who worked on Hillary Clinton’s presidential campaign and later set up the Pagliano server, which was the second of the Clinton Servers. The Midyear team entered into two immunity agreements with Pagliano: a “Queen for a Day” use immunity agreement on December 22, 2015, and a letter use immunity agreement on December 28, 2015. Based on our review, the immunity was granted in response to a request by Pagliano’s counsel and resulted in at least two voluntary interviews that helped inform the FBI’s investigation.

Witnesses told us that Pagliano was a critical witness because he set up the server that Clinton used during her tenure. According to Prosecutor 2, Pagliano

87 As described in Chapter Four, Lynch told us that she received a memorandum regarding congressional immunity issues for Pagliano, but only because Senator Charles Grassley had requested a phone call with her regarding Pagliano.

was “uniquely positioned” to describe to the FBI the “setup” and “mechanics” of Clinton’s server, as well as to answer questions regarding possible cyber intrusion. On August 10, 2015, Pagliano’s counsel emailed an FBI agent that he was “not prepared to have Mr. Pagliano participate in an interview with the FBI-particularly in the absence of any explanation as to the focus or scope of your prospective questions.” According to an August 27, 2015 email among the prosecutors, Strzok, the Lead Analyst, and the SSA, Pagliano’s attorney had spoken with Prosecutor 1 and was “insistent on immunity for his client even though it was explained to him that Pagliano is a witness and not a target.” Prosecutor 3 wrote to the Midyear team, in response to the request of Pagliano’s lawyer, “We’re probably going to see this a lot with any witness who is facing having to be interviewed or testify on the Hill. We should all sit down and prioritize witnesses to be interviewed and decide who it’s safe to immunize.”

According to documents we reviewed, on or about September 4, 2015, Pagliano’s attorneys told the Senate Judiciary Committee and the Senate Committee on Homeland Security and Governmental Affairs that he would exercise his Fifth Amendment rights in response to any questions by the Committees about his role in setting up Clinton’s private email server. The next day, the Washington Post reported that the Clintons personally paid Pagliano to support Clinton’s private email server while he was employed at the State Department.88 According to emails we reviewed, within days of these allegations the Midyear team took steps to obtain financial information related to Pagliano from several sources. In addition, the Midyear prosecutors contacted the Criminal Division’s Public Integrity Section (PIN) to consider whether Pagliano should be prosecuted under 18 U.S.C. § 209 for receiving outside compensation for government work or for improperly failing to report outside income on financial disclosure paperwork. On or about September 9, 2015, Pagliano pleaded his Fifth Amendment right against self-incrimination in response to questions about the set-up of Clinton’s email server before the House Benghazi Committee.

On December 11, 2015, Prosecutor 2 wrote an email to the other line prosecutors notifying them that PIN had declined charges against Pagliano. Then PIN Chief Ray Hulser told us that PIN declined charges because the PIN prosecutors determined that (1) Pagliano’s outside compensation was for work for the Clintons (primarily former President Clinton), not for State Department work;89 and (2) Pagliano reported his compensation from the Clintons on federal financial disclosure reports before he was told by the State Department that this was not necessary. Hulser further told us that PIN’s decision to decline charges against Pagliano was

88 Rosalind S. Helderman and Carol D. Leonnig, Clintons Personally Paid State Department Staffer to Maintain Server, WASH. POST, Sept. 5, 2015.

89 According to the FD-302 of Pagliano’s subsequent interview pursuant to the immunity agreement, Pagliano told the FBI that at the time he built the Pagliano server he did not know Clinton would be Secretary of State or would have an account on the server. Rather, he told the FBI that he “believed the email server he was building would be used for private email exchange with Bill Clinton aides.”

not influenced by the Midyear team’s desire to interview Pagliano and that PIN was never pressured by anyone within the FBI or the Department to decline charges.

Prosecutor 1 told us that around the same time as PIN’s declination, the team received a proffer from Pagliano’s attorney, through which the team confirmed that Pagliano had important information to provide. Thus, on December 22, 2015, the Department entered into a “Queen for a Day” proffer letter with Pagliano. The “Queen for a Day” letter provided that Pagliano would “answer all questions completely and truthfully, and…provide all information, documents, and records” within his custody or control, related to the substance of his interview. In exchange, the Department agreed that any statements made during his proffer would not be admitted during the government’s case-in-chief or at sentencing during any future prosecution of Pagliano. The Department would, though, be able to “make derivative use of, and pursue any leads suggested by” Pagliano; use his statements for appropriate cross examination and rebuttal; and prosecute Pagliano for statements or information that were “false, misleading, or designed to obstruct justice.” The prosecutors told us that they wanted to ensure that Pagliano was a credible witness and that his statements would be consistent with his attorney’s proffer before offering him the broader letter use immunity.

Two FBI case agents interviewed Pagliano for the proffer on December 22, 2015, in the presence of all four prosecutors, the CART examiner, and Pagliano’s attorneys. Among other things, Pagliano described the set-up of the Pagliano server and related equipment, as well as the transition to the PRN server, to help inform later OTD analysis of those devices. In addition, Pagliano told the FBI about a late 2009 or early 2010 conversation with Mills in which he conveyed a concern raised by a State Department Information Technology Specialist that Clinton’s use of a private email server could violate federal records retention laws. Pagliano told the FBI that Mills responded that former Secretaries of State, including Colin Powell, had done the same thing. The FBI relied on this testimony in subsequent interviews, including a later interview of Mills.90

The prosecutors and Agent 1 told us that they met afterwards and everyone agreed that Pagliano was credible and helpful. Prosecutor 1 told us that “everyone assessed that [Pagliano] was scared but truthful,” and that Pagliano might have been even more nervous and less forthcoming had he been required to testify in the grand jury, outside the presence of his attorney. They also agreed that there were some follow-up questions that would need to be asked. Thus, on December 28, 2015, the Department offered Pagliano “use immunity coextensive with that granted under 18 U.S.C. § 6001” in exchange for future truthful court testimony, grand jury testimony, or voluntary interviews related to the Midyear matter, pursuant to a letter use immunity agreement. The letter provided that the government would not use any information directly or indirectly derived from Pagliano’s truthful statements or testimony against him in a future prosecution,

90 Mills told the FBI that she did not recall the conversation with Pagliano.

“except a prosecution for perjury, giving a false statement, or any other offense that may be prosecuted consistent with 18 U.S.C. § 6001.”

According to a FD-302 and contemporaneous agent notes, the Midyear team interviewed Pagliano again on June 21, 2016, and he answered questions to clarify answers provided during the proffer. For example, Pagliano told the FBI that he decided not to “implement Transport Layer Security (TLS) between the Clinton email server and State server,” because at the time he “understood the Clinton email server to be a personal email server and did not see a reason for encryption.” He also told the FBI about “failed log-in attempt[s]” on the Clinton email server in January 2011, which Pagliano described as a “brute force attack (BFA)” that was not “abnormal.” According to the LHM, “[T]he FBI’s review of available Internet Information Services (IIS) web logs showed scanning attempts from external IP addressees over the course of Pagliano’s administration of the server, though only one appear[ed] to have resulted in a successful compromise of an email account on the server.” As described in Section I of this chapter, the one confirmed successful compromise was of an account belonging to one of President Clinton’s aides.

Both Department and FBI witnesses told us that no one opposed the decision to grant Pagliano immunity. The SSA told us that the FBI did not consider him a subject or someone they would prosecute in connection with Midyear, the FBI believed his testimony was very important, and providing immunity was an effective way to secure his testimony. Prosecutor 4 told us that the way Pagliano was handled was “standard operating procedure.” In addition, witnesses told us that Pagliano pleading the Fifth Amendment and refusing to testify before Congress gave the Department no choice but to offer Pagliano immunity.

1. Combetta

As previously noted, Paul Combetta was the employee of PRN who migrated the email accounts from the Pagliano server to the PRN server in 2013, transferred Clinton’s archived emails to the PRN server in 2014, and later wiped emails from the PRN server in March of 2015. The Department entered into a letter use immunity agreement with Combetta on May 3, 2016. Midyear team members told us that Combetta was an important witness for several reasons, including his involvement with the culling process and the deletion of emails and his interactions with several people that worked for Clinton. Several Midyear team members stated that after conducting two voluntary interviews of Combetta, they believed that Combetta had not been forthcoming about, among other things, his role in deleting emails from the PRN server following the issuance of a Congressional preservation order. The witnesses further stated that Combetta’s truthful testimony was essential for assessing criminal intent for Clinton and other individuals, because he would be able to tell them whether Clinton’s attorneys—Mills, Samuelson, or Kendall—had instructed him to delete emails.

Combetta was first interviewed on September 17, 2015, by two case agents, in the presence of Prosecutor 2 and Combetta’s counsel. The interview was voluntary and there was no immunity agreement. According to the FD-302 and contemporaneous agent notes, Combetta provided information regarding the set-up of the PRN server, the roles of other PRN employees in the management of the PRN server, his role in transferring emails from the Archive Laptop to the PRN server, and his role in creating .pst files of Clinton’s archived emails to be transferred to the laptops used by Mills and Samuelson to cull Clinton’s emails (“culling laptops”). However, he denied that PRN “deleted or purged” Clinton’s emails from the PRN server or from back-ups of the server and stated that Clinton’s staff never requested that PRN do so.

On February 18, 2016, the same two agents interviewed Combetta again, this time in the presence of the CART examiner, the Forensics Agent, Prosecutor 2, and Combetta’s counsel. Once again, the interview was voluntary and there was no immunity agreement. According to the FD-302 and contemporaneous agent notes, Combetta continued to deny deleting the HRC Archive Mailbox from the server and stated that “he believed the HRC Archive mailbox should still be on the Server in the possession of the FBI,” despite documentation showing that the mailbox was no longer on the server as of January 7, 2015. Combetta stated that only he and one other administrator had the ability to delete a mailbox from the server. When the agents showed him documentation indicating that an administrator had manually deleted backup files and used BleachBit on March 31, 2015, he stated that he did not recall deleting backup files, he did not recall anyone asking him to delete backup files, any PRN employee had the ability to delete backup files, he believed he used BleachBit “for the removal of .pst files related to the various exports of Clinton’s email” to Mills’s and Samuelson’s laptops, and he used BleachBit for this purpose “of his own accord based on his normal practices as an engineer.” He further stated that he did not recall a March 9, 2015 email in which Mills reminded him of his obligation to preserve emails pursuant to a preservation order. The FD•302 and contemporaneous notes indicate that the agents attempted to ask Combetta about documents related to a conference call with Kendall and Mills on March 25, 2015, just before the deletions and use of BleachBit, but his attorney advised him not to answer based on the Fifth Amendment.

During the February 18, 2016 interview, the agents also showed Combetta an email dated December 11, 2014, in which he wrote to a PRN colleague, “I am stuck on the phone with CESC [Clinton’s staff] again…. Its [sic] all part of the Hilary [sic] coverup [sic] operation • I’ll have to tell you about it at the party.” Combetta told the agents that the reference to the “Hilary [sic] coverup [sic] operation” was “probably due to the recently requested change to a 60 day email retention policy and the comment was a joke.”91 Department and FBI witnesses told us that Combetta’s explanation for this email seemed credible to them, given

91 According to the FD-302, contemporaneous notes, and exhibits, the agents also asked Combetta about a July 24, 2014 email to Pagliano regarding using a “text expression editor.” Combetta told the agents that Mills was concerned that Clinton’s then current email address would be “disclosed publicly” when her archived emails were provided to the State IG, because “when a user changes his or her email address, Outlook updates the old email address with the new email address.” We found that this might explain later media reports that Combetta posted on Reddit on or about July 24, 2014, “I may be facing a very interesting situation where I need to strip out a VIP’s (VERY VIP) email address from a bunch of archived email….” See, e.g., Caitlin Dewey, Hillary Clinton’s IT Guy Asked Reddit for Help Altering Emails, A Twitter Sleuth Claims, WASH. POST, Sept. 20, 2016.

his personality and the way the email was written, and they did not discuss interviewing Combetta’s colleague regarding the email.

The SSA told us that he believed Combetta should have been charged with false statements for lying multiple times; however, the SSA also stated that he was ultimately satisfied that Combetta’s later immunized testimony was truthful and that he was “fine” with the immunity agreement. Prosecutor 2, Agent 2, and the Forensics Agent indicated that, while they believed that Combetta had not been forthcoming during the first two interviews, they were not certain that they had sufficient evidence to charge him with obstruction or false statements. According to documents we reviewed, the forensic evidence showed that Clinton’s emails had been deleted and wiped from the server, but did not definitively link Combetta with those actions. Agent 2 explained that the team “felt pretty strongly that maybe he had deleted information off of Secretary Clinton’s server,” but that interpreting computer forensics and precisely what they mean can be “kind of messy.” Similarly, the Forensics Agent stated that, based on the forensic evidence alone, it was “very difficult” to be certain that Combetta conducted the deletions; however, based on the Midyear team’s assessments of the credibility of Combetta and the other administrator, the team was more “focused on” Combetta. Prosecutor 2 told us that using the forensic evidence in combination with witness testimony, the team “probably could have established” that Combetta conducted the deletions; however, Prosecutor 2 stated that there was insufficient evidence, after the first two interviews, to prove that Combetta understood his obligation to preserve Clinton’s emails and deliberately violated the Congressional preservation order.

In addition, members of the Midyear team told us, consistent with their contemporaneous emails, that they believed Combetta’s failure to be forthcoming during the first two interviews was largely due to a lack of sophistication and poor legal representation, rather than an intent to hide truth. For example, Prosecutor 2 wrote in an email on March 29, 2016, to the other line prosecutors, “It’s really hard to tell whether Paul [Combetta] is trying to hide something, or we are simply experiencing the effects of really bad (no) attorney prep and/or an attorney that has counseled him to say ‘I don’t remember’ if he doesn’t have a specific recollection of taking a specific action on a specific date.” Prosecutor 2 expressed the same sentiments during OIG interviews. Agent 2 stated, “We just felt like we weren’t getting the whole story or maybe he was holding back a little.” Prosecutor 1 stated, “[W]e didn’t assess his exposure to be terribly significant.” However, Prosecutor 1 also stated:

There were certainly discussions about whether he had, had [18 U.S.C. §] 1001 exposure [for making false statements]…. He was clearly not being forthright with us…. And I think, my, my guess is if we couldn’t have gotten him to come in and, and he was messing around with us on the immunity, we probably would have had to charge him. But, I think we were more interested in understanding what had happened…. And the most expedient way to, to do that, I think we assessed, was just to, to immunize him and keep moving.

Both prosecutors and agents also told us that Combetta was not someone the government was interested in prosecuting given his role in the case. Agent 1 told us that the absence of evidence that Combetta knew anything about the content of the emails on Clinton’s server minimized the FBI’s interest in prosecuting him. Prosecutor 4 stated:

I was concerned that we would end up with obstruction cases against some poor schmuck on the down, that, that had a crappy attorney who didn’t really, you know, if I was his attorney, he wouldn’t have gone in and been, you know, hiding the ball in the first place. And so at the end of the day, I was like, look, let’s immunize him. We’ve got to get from Point A to Point B. Point B is to make a prosecution decision about Hillary Clinton and her senior staff well before the election if possible. And this guy with his dumb attorney doing some half-assed obstruction did not interest me. So I was totally in favor of giving him immunity.

Prosecutor 2 told us that Combetta’s counsel was “concerned” that the Midyear team would “want to charge somebody…to show we had done something” and “go after some low-level person like Combetta to make a point.” Prosecutor 2 stated, “that was never our intention” and “it was in our interest to…make him and his

counsel feel comfortable enough that they were going to give us the facts that we needed to figure out what happened in this case.”

In the March 29, 2016 email exchange, the four line prosecutors weighed two approaches to dealing with Combetta: (1) offering letter use immunity and only issuing a grand jury subpoena if Combetta did not comply or was untruthful during an immunized interview; versus (2) issuing a grand jury subpoena first and withdrawing the subpoena if Combetta was cooperative and truthful during a voluntary, immunized interview the morning before a scheduled grand jury appearance. In support of the second approach, Prosecutor 4 sent an email stating that it was “common for witnesses to play games early in high profile investigations as they try to figure out the lay of the land” and noting that a grand jury subpoena was a “powerful” tool in this situation.

On April 8, 2016, the Department subpoenaed Combetta to appear before the grand jury on May 3, 2016. Along with the subpoena, Prosecutor 3 wrote an email to Combetta’s attorney that the FBI intended to “continue its interview of [Combetta] and go over any relevant documents with him” on May 3 and that “[i]n the event he needs to appear before the GJ, that would likely occur” the following morning. The prosecutors and agents explained to us that the plan was to interview Combetta on May 3, and place him in the grand jury on May 4 if they assessed that he was still uncooperative or untruthful.

On the evening of May 2, Prosecutor 3 wrote to the other prosecutors that that they would need to discuss whether to put Combetta in the grand jury on May

4. He further wrote, “Regardless as to how he answers the questions, I could see the FBI advocating that we put him in the GJ.” Prosecutor 4 responded, “I would

prefer that we not put him in the GJ without a clear articulable reason for doing so, but we can discuss.” Prosecutor 4 told the OIG:

Generally, I think people overestimate the value of the grand jury to get people that are lying to tell the truth. My experience, I’ve had the best luck with working with defense counsel or having very aggressive interviews with them personally, one-on-one, which I would typically not want to do in the grand jury. You know, if I’m going to beat somebody up to get them to tell the truth, I don’t want 23 grand jurors sitting around while I’m yelling at somebody.

The prosecutors told us that Combetta’s attorney had informed them in advance of the May 3 meeting that Combetta would plead the Fifth Amendment in the grand jury. They further told us they believed they had no real choice but to grant Combetta immunity.92 They stated that they did not consider charging Combetta with a crime and then seeking his cooperation against other witnesses, because they did not believe he had significant criminal exposure. In addition, Prosecutor 1 explained that if the Department had dropped or lowered charges against Combetta in exchange for his cooperation, a defense attorney would have used the cooperation agreement to impeach Combetta’s credibility at a subsequent trial.

Accordingly, on May 3, 2016, the Department entered into a standard letter use immunity agreement with Combetta. The terms of this agreement were identical to the terms incorporated into the Pagliano letter use immunity agreement. Specifically, in exchange for Combetta providing truthful information during FBI interviews as well as truthful testimony during any grand jury or court appearances, the Department agreed that it would not use his statement or testimony, or any information derived from it, during a subsequent criminal prosecution, “except for a prosecution for perjury, giving a false statement, or any other offense that may be prosecuted consistent with 18 U.S.C. § 6002.”93 Both the prosecutors and the FBI agents involved with Combetta’s interview told us that the decision to grant Combetta use immunity was not controversial and that everyone agreed that it was the most effective way to obtain the information they needed from him.

During a speech at an FBI conference for Special Agents in Charge in October 2016, Comey indicated that he agreed with the decision to enter into a use immunity agreement with Combetta in order to obtain potentially valuable information concerning any role that Clinton played in the deletion of emails from

92 The Midyear team did not first conduct a Queen for a Day proffer with Combetta, as they did with Pagliano. Prosecutors typically enter Queen for a Day immunity agreements before offering letter use immunity, because Queen for a Day agreements allow the government to assess the usefulness and reliability of the witness’s expected testimony before agreeing not to use leads obtained from the testimony to develop evidence against the witness.

93 This language meant that Combetta could be prosecuted for lying during his May 3 immunized interview. However, the government could not use Combetta’s statements on May 3 to prosecute him for lying in the past, including during the previous two Midyear interviews.

her server. Responding to the complaint that the Midyear team “handed out immunity like candy,” he stated:

I hope you also notice our subject here was Hillary Clinton. We wanted to see[,] this very aggressive investigative team wanted to see can we make a case on Hillary Clinton. To make that case they worked up from the bottom. The guy who set up her server, the guy who panicked and deleted emails, he is really not our interest. Out interest is trying to figure out did he give us anything against her.

Combetta was interviewed subject to the terms of the immunity agreement on May 3, 2016, by the same two FBI case agents, this time in the presence of the SSA, the CART examiner, all four line prosecutors, and Combetta’s attorneys. According to the FD-302 and contemporaneous notes of the two agents and the CART Examiner, Combetta provided the FBI additional detail regarding his removal of emails from the culling laptops, stating that Mills had requested that he “securely delete the .pst files” in November or December 2014 but had not specifically requested that he use “deletion software.” He told the FBI that he was the one who recommended the use of “BleachBit” because he had used it for other clients. He also acknowledged removing the HRC Archive mailbox from the PRN server between March 25, 2015, and March 31, 2015, and using BleachBit to “shred” any remaining copies of Clinton’s email on the server, despite his awareness of Congress’s preservation order and his understanding that the order meant that “he should not disturb Clinton’s email data on the PRN server.” According to the FD•302 and contemporaneous notes, Combetta told the FBI that he had an “oh shit” moment upon realizing that he had failed to comply with Mills’s request in late 2014 or early 2015 to “change the retention policy for Clinton’s and Abedin’s existing and ongoing mail to 60 days.” He further told the FBI that Mills had contacted him on or about March 8, 2015, to assess what was still on the servers, including whether there were any “old back up data or copies of mailboxes hanging out there on old equipment.” However, he stated that he did not tell Mills that he subsequently realized the archived emails were still on the PRN server or that he deleted them in late March. In addition, he stated that he “could not recall the content” of the March 25, 2015, call with Kendall and Mills. In sum, Combetta took responsibility for the deletions, without implicating Clinton or her attorneys.

We interviewed seven Midyear team members who attended Combetta’s May 3, 2016, interview, all of whom told us that they conferred immediately following Combetta’s interview and agreed that Combetta’s testimony finally “made sense,” that he had been truthful and forthcoming, and that he did not implicate anyone in criminal activity such that there was a need to “lock in” his testimony in the grand jury. Prosecutor 1 told us that Combetta’s testimony finally “squared with the forensic evidence,” and also corroborated the testimony of other witnesses, including Mills and Samuelson, that they were unaware of the March deletions by Combetta.

1. Bentel

As noted previously, John Bentel worked at the State Department for 39 years, the last four of which he served as Director of the Executive Secretariat Information Resource Management (S/ES-IRM), before he retired in 2012. As detailed below, the investigators had received evidence that Bentel had information relating to the State Department’s possible sanctioning of Clinton’s use of a private email server.

According to documentation we reviewed, the Department entered into a

“Queen for a Day” agreement with Bentel on June 10, 2016. The terms of this

agreement were similar to those offered to Pagliano. Prosecutor 2 told us that the team did not subsequently grant Bentel the broader letter use immunity granted to Pagliano and Combetta, nor did his counsel ask for it. The witnesses we interviewed told us that the decision to enter into a Queen for a Day agreement with Bentel was not controversial. Prosecutors 1 and 2 stated that Bentel’s attorney sought use immunity because he thought that Bentel was portrayed poorly in the State IG report. They further stated that the team granted Bentel immunity because he was a necessary witness, who did not, to their knowledge, face any criminal “exposure.” Prosecutor 2 described the Bentel interview as a “check-the•box type interview.” The SSA told us that he did not oppose immunity for Bentel, because the FBI had no intentions of seeking that Bentel be prosecuted.

The agents asked Bentel about allegations by two S/ES-IRM staff members that they had raised concerns about Clinton’s use of personal email to him during separate meetings. According to the State IG report, one of the staff members told the State IG that Bentel told the staff member that “the mission of S/ES-IRM is to support the Secretary” and instructed the staff member to “never speak of the Secretary’s personal email system again.”94 According to the FD-302 and agent notes, the agents showed Bentel documents that suggested that he was aware that Clinton had a private email server that she used for official business during their joint tenure. One of the agents explained that the purpose of asking Bentel about his knowledge of the server was to assess whether Clinton’s use of the server was sanctioned by the State Department. However, Bentel maintained that he was unaware that Clinton used personal email to conduct official business until it was reported in the news and denied that anyone had raised concerns about it to him.

Both agents who interviewed Bentel told us that he was uncooperative and the interview was unproductive; however, they attributed these problems to nervousness and fear of being found culpable. Agent 3 told us that he did not believe that immunity for Bentel was necessary and that it did not help the investigation because Bentel was not forthcoming during his interview. However, he did not believe that Bentel had any criminal exposure and therefore the immunity agreement did not harm the investigation.

94 Department of State Office of Inspector General, Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements (May 2016), Evaluations and Special Projects Report ES-16-03, https://oig.state.gov/system/files/esp-16-03.pdf (accessed May 7, 2018).

VIII. Use of Consent and Act of Production Immunity to Obtain Mills and Samuelson Testimony and Laptops

In this section we examine decisions made by the FBI and the Department regarding whether to interview Mills and Samuelson regarding the process they used to cull Clinton’s emails in connection with providing emails to the State Department in 2014, as well as whether and how to obtain and review the personal laptops used by Mills and Samuelson for this culling process (“culling laptops”). The investigators told us that access to these laptops was particularly important to ensure the completeness of the investigation. All 62,320 emails pulled from the Clinton servers were stored at one time on these laptops, so access to the laptops offered the possibility of reconstructing a large number of the deleted emails through digital forensics.95 Moreover, the deletion of emails by Mills and Samuelson from these laptops had become a matter of great public controversy, including allegations that they had been deleted for improper purposes, increasing the importance of attempting to recover as many of them as possible. Ultimately, both Mills and Samuelson submitted to voluntary interviews regarding the culling process and voluntarily provided the culling laptops to the FBI after receiving “act of production” immunity.

In the subsections below we discuss: privilege claims raised by Mills and Samuelson; the debate between the FBI and the Department; the events that led to the Department securing voluntary interviews of Mills and Samuelson; the steps that were taken to secure and search the culling laptops, including the decision to grant Mills and Samuelson “act of production” immunity and the consent agreements for the culling laptops; the involvement of senior Department and FBI officials; and a discussion of the motivations behind the Mills and Samuelson dispute.

1. Privilege Claims Raised by Mills and Samuelson

As noted previously, in response to a State Department request in 2014, Mills and Samuelson, neither of whom were still employed by the State Department, worked together on behalf of Clinton to produce Clinton’s State work-related emails that were on the PRN server by crafting a process to cull what they believed to be Clinton’s personal emails from her work-related emails. Samuelson, under Mills’s supervision, reviewed the emails that had been placed on the culling laptops and, following completion of this culling process, Clinton produced 30,490 work-related emails to the State Department. Thereafter, Mills and Samuelson asked Combetta to securely delete the .pst files from the culling laptops, which, as described above, he did using BleachBit. Mills and Samuelson then continued to use the culling laptops for work related to their legal representation of other clients.

95 By comparison, personal devices used by other persons who might have sent or received emails to or from addresses on the Clinton servers would only contain the emails sent or received by that person.

While the Midyear team was interested in speaking with Mills and Samuelson about this culling process, they also were interested in interviewing Mills concerning her time at the State Department with Clinton, due to evidence that Mills frequently communicated directly with Clinton and that she received and forwarded classified information on both her unclassified State email and personal Gmail accounts.96 During Clinton’s tenure as Secretary of State, Mills served as, among other things, Clinton’s Chief of Staff and Samuelson served as a senior advisor to Clinton and White House Liaison.

According to documents we reviewed, Mills and Samuelson told the FBI and Wilkinson told the prosecutors that Mills and Samuelson had attorney-client relationships with Clinton for purposes of their work culling Clinton’s emails in 2014. According to internal memoranda and emails, the prosecutors began asking Wilkinson to provide her clients for voluntary interviews regarding the culling process in December 2015, but Wilkinson raised objections. Specifically, Wilkinson argued that any interview questions regarding the culling process “would require answers revealing privileged information,” and she suggested that the Department obtain the information through an attorney proffer by Wilkinson instead.97 Prosecutor 2 told us, and contemporaneous notes show, that the prosecutors also asked Wilkinson to voluntarily turn over the culling laptops in March 2016, after Wilkinson informed them that the laptops were still in her clients’ possession. However, Wilkinson refused to voluntarily turn over the culling laptops, arguing that the laptops contained privileged information related to both Clinton and Mills’s and Samuelson’s other clients. Wilkinson told the prosecutors that she would instead take possession of the culling laptops from her clients, disconnect them from the Internet, and secure them in a safe in her office.

1. Debate over Interviewing Mills and Samuelson Regarding the Culling Process and Obtaining the Culling Laptops

FBI case agents and the SSA told us, and contemporaneous emails show, that they believed that interviewing Mills and Samuelson regarding the culling process and searching the culling laptops were essential investigative steps. They stated that they hoped to be able to find the full 62,320 emails that were originally reviewed by Mills and Samuelson to determine whether any additional emails— beyond those that Clinton’s attorneys provided to the State Department and those that the FBI found through other sources—contained classified information. They further stated that they believed the culling process might have been flawed,

96 Prosecutor 1 told us that the Midyear team did not have an investigative need to interview Samuelson concerning her time at State.

97 Wilkinson also represented two other witnesses, a former senior State Department official and Jake Sullivan. According to emails we reviewed, Wilkinson agreed to provide the former senior State Department official for an interview, but at first refused to provide Sullivan, although she acknowledged that Sullivan never had an attorney-client relationship with Clinton. On January 14, 2016, the prosecutors prepared a memorandum requesting authorization to notify Wilkinson that the Department was prepared to issue a grand jury subpoena for Sullivan’s testimony, as well as authorization to issue the grand jury subpoena if Wilkinson continued to object. On January 18, 2016, Toscas emailed Laufman approving both requests. Wilkinson ultimately agreed to provide Sullivan for a voluntary interview, which took place on February 27, 2016.

because their other reconstruction efforts had revealed a significant number of work related emails to or from Clinton that had not been included in the State Department production. Strzok told us that the FBI investigators hoped that asking questions about the culling process and reviewing the culling laptops would help determine why this was the case and whether there was a nefarious purpose. For example, several FBI witnesses stated that they believed that asking questions about the culling process might help them determine why Abedin’s emails were underrepresented in the State IG production.

FBI witnesses told us that once Wilkinson refused to voluntarily provide her clients for interviews and the culling laptops, they believed it was appropriate and in the interest of efficiency to subpoena Mills and Samuelson before the grand jury and seek a search warrant to seize the culling laptops from Wilkinson’s office. The FBI witnesses stated that even if a judge ultimately were to quash a subpoena or decide that there was no probable cause to issue a search warrant, it was the FBI’s obligation to at least try to obtain what they believed to be critical potential sources of evidence.

The line prosecutors and Laufman told us, and contemporaneous emails and internal memoranda show, that they agreed that it would be helpful to interview Mills and Samuelson regarding the culling process and obtain the culling laptops. However, they had several concerns about using compulsory process to do so. First, they were concerned that at least certain questions regarding the culling process would seek information protected by attorney-client privilege and the attorney work product doctrine. Second, they were concerned that the culling laptops contained privileged material relating to both Clinton and Mills’s and Samuelson’s other clients. Third, they raised questions about establishing probable cause to search the culling laptops given evidence that they had been wiped of the emails relevant to the Midyear investigation. Fourth, based on conversations with Wilkinson, they believed she would file a motion to quash any search warrant or subpoena and that this would lead to protracted litigation that would delay the investigation. Finally, they stated that they were required to follow the procedures set forth in the Department policy for obtaining physical evidence and testimony from an attorney regarding the attorney’s representation of a client. They stated that, at a minimum, 28 C.F.R. § 59.4 and USAM 9-19.220 and 9-13.420 did not permit them to execute a search warrant on Wilkinson’s office under these circumstances.

The prosecutors told the OIG that the FBI did not appreciate the complexity involved with obtaining the culling testimony and laptops. Prosecutor 4, whom several witnesses told us was known for being an experienced prosecutor with significant experience handling privilege issues, explained that he was frustrated that the FBI was “willing to litigate to the death issues that [he] thought would be very close calls and could delay the investigation for two years without a strong belief that it would actually change the results” of the investigation.

1. Events Leading to Voluntary Interviews of Mills and Samuelson Regarding the Culling Process
2. Attorney Proffer on March 19, 2016

On February 1, 2016, Toscas received from the NSD prosecutors their proposed investigative steps for Mills and Samuelson. The prosecutors proposed pursuing a grand jury subpoena to question Mills concerning her State Department tenure (where there were no attorney-client privilege issues), but seeking attorney proffers before considering grand jury subpoenas for Mills’s and Samuelson’s testimony about the culling process. They provided two reasons for this approach.

First, they indicated that, pursuant to the USAM, to obtain Criminal Division authorization for a subpoena to an attorney regarding the attorney’s representation of a client they must show that the information sought is not protected by a valid claim of privilege and that “[a]ll reasonable attempts to obtain the information from alternative sources shall have proved to be unsuccessful.” USAM 9-13.410(C). The prosecutors described how they would tailor their questions about the culling process to avoid seeking information protected by attorney client privilege.98 However, they indicated that they could not represent that all reasonable attempts had been made to obtain the information from alternative sources without first attempting to obtain the information through an attorney proffer.

Second, they indicated that they were concerned that issuing subpoenas for testimony regarding the culling process could result in protracted litigation with an uncertain outcome. They indicated that, despite extensive legal research, the team had been unable to find clear authority indicating that a court should allow an attorney to be questioned about actions taken on behalf of a client, even if describing those actions would not implicate confidential communications between the client and attorney.

In February 2016, Wilkinson agreed to both an attorney proffer by Wilkinson regarding the culling process and a voluntary interview of Mills regarding her State Department tenure. On February 8, 2016, the prosecutors emailed Wilkinson a short list of broad topics for the attorney proffer and the proffer was scheduled for March 19, 2016. Separately, Mills’s interview regarding her State Department tenure was set for April 9, 2016.

According to Prosecutor 2’s notes of the March 19 attorney proffer, the proffer was attended by all four line prosecutors, Beth Wilkinson, and two other attorneys from Wilkinson’s firm. Mills’s and Samuelson’s attorneys told the prosecutors, consistent with a State IG Report described above, that Mills and Samuelson initiated the culling process after the State Department requested Clinton’s assistance reconstructing her work-related emails. The attorneys further

98 Specifically, they indicated that they intended to ask Mills and Samuelson questions falling

into three categories: “(1) receipt of emails from PRN; (2) general questions about the culling process

that do not implicate the attorney-client privilege; and (3) handling of the emails, which have been

confirmed to contain classified information.”

stated that the State Department had told Mills that “it was HRC’s responsibility to determine” what was personal and what was work-related, because this would be “too burdensome for State.” The attorneys described the manner in which Mills and

Samuelson obtained the emails from Combetta and generally how they conducted their review. The attorneys told the prosecutors that Mills asked Combetta to remove the .pst files from Mills’s and Samuelson’s laptops after Clinton’s work-related emails were produced to the State Department; however, the attorneys

stated that they “never heard of BleachBit.” According to the notes, the attorneys

confirmed that Clinton had changed her email retention policy to 60 days in early 2015, but would not “say reason for changing policy – either [privilege] or HRC’s question to answer.”

2. Midyear Team Meeting on March 28, 2016

After the March 19 attorney proffer, the FBI team took the position that it was still essential to interview Mills and Samuelson regarding the culling process. On March 28, 2016, the Midyear team held a meeting to decide the best way forward. McCabe and Toscas were the highest level FBI and Department officials, respectively, at the meeting. Witnesses told the OIG and contemporaneous emails show that this meeting was contentious and that the FBI insisted that the team either interview Mills regarding the culling process during the scheduled interview on April 9, 2016, or inform Wilkinson before April 9 of its intent to do so at a future date. The FBI witnesses stated that they believed if they did not do this, Mills would only give the FBI one “bite at the apple”—that she would assert publicly that she cooperated with the FBI without an incentive to return for another interview.

Based on a review of emails and text message exchanges, we determined that Page was one of the more outspoken FBI personnel at the March 28 meeting in favor of interviewing Mills and Samuelson about the culling process and countering the Department’s privilege concerns. In a March 29, 2016 email exchange, Strzok asked Prosecutor 4, “[H]ow are you doing? You seemed none too pleased at times on Monday [March 28].” Prosecutor 4 replied with an email about Page:

I am fine. I don’t like “former prosecutors” [Page] giving their opinions from the cheap seats. I have been known throughout my career by the agents I work with as the most aggressive prosecutor that they have ever seen. During my last five jury trials I have forced no fewer than a dozen lawyers to testify against their former clients. It is easy for FBI attorneys to second guess our opinions when they haven’t ever had to actually stand before a judge and defend their opinion.99

In response, Strzok defended Page and wrote, “Best I can tell is I think everyone in the room’s motives were (are) pure.” Prosecutor 4 then wrote:

99 Page told us that she had been a prosecutor in the Department’s Organized Crime and

Racketeering Section before joining the FBI.

I am stuck in the middle of pushing NSD along and trying to get FBI to be realistic. The investigation is degenerating into everyone trying to figure out what the congressional testimony looks like in the future. My job is to put criminals in jail, period.

Following the March 28 meeting, Strzok drafted an email to send to the prosecutors to memorialize the FBI’s understanding of the decision made at the meeting regarding Mills and Samuelson. The email was approved by FBI OGC, Steinbach, and McCabe. Strzok sent the email on March 29, 2016, to the four line prosecutors and copied Toscas and several FBI employees. In the email, Strzok wrote that the prosecutors had agreed to “inform Wilkinson of DOJ’s and FBI’s intention to interview Mills and Samuelson about the sort process.” In addition, Strzok wrote that the prosecutors had agreed to contact the Department’s Professional Responsibility Advisory Office (PRAO) regarding whether they could seek a waiver of attorney-client privilege from Clinton through Kendall.

According to emails we reviewed, the line prosecutors and Laufman agreed with reaching out to PRAO for advice on seeking a waiver from Kendall and did so on March 31, 2016. In addition, in early April, 2016, they sought guidance from the Criminal Division as to whether seeking the waiver was permissible under Department policy. On April 12, 2016, three days after the Mills interview, a Criminal Division official told NSD that he was “not aware of any DOJ policy that would prevent [CES] from seeking the waiver.”

As far as Strzok’s assertion that the prosecutors had agreed to notify Wilkinson that the FBI intended to interview her clients regarding the culling process, Prosecutors 1 and 2 indicated in an email exchange on March 30, 2016, that this was not correct. According to the March 30 email exchange, the prosecutors were concerned that certain issues had not yet been resolved, including obtaining necessary approvals from the Criminal Division. Also on March 30, 2016, Prosecutor 1 wrote to Prosecutor 2 and Laufman that he did not want to take a position with Wilkinson that they would be unable to “stand behind” and thus be accused of “dealing with her in bad faith.” Prosecutor 1 told us, “It’s not smart to make demands when you don’t understand what kind of leverage you have.” Thus, Prosecutor 2 told us, and documents showed, that before the April 9 interview the prosecutors told Wilkinson that the FBI “had not foreclosed” the possibility of interviewing her clients regarding the culling process, but not that the FBI insisted on doing so.

3. FBI Call to Wilkinson on April 8 About Mills and Samuelson Interviews Without Informing Prosecutors

On April 8, 2016, the day before the Mills interview, FBI GC Baker contacted Wilkinson, without notifying the line prosecutors or higher Department officials in advance, to convince her to consent to the FBI’s demands for the culling testimony and culling laptops.100 The prosecutors learned of Baker’s call to Wilkinson the following day, when Wilkinson told the prosecutors at the Mills interview she had been contacted by a “senior FBI official” regarding interviews of her clients.

Comey told us that he approved Baker’s call to Wilkinson and that he “must have known [Baker] was not going to tell DOJ.” In addition, Laufman’s notes of a meeting following the Mills interview indicate that McCabe was aware of the call beforehand. Baker told us that he reached out to Wilkinson because he believed the line prosecutors had not been sufficiently aggressive. Laufman stated that he took “great offense” to Baker’s assertion that the prosecutors had not been aggressive with Wilkinson, “because we were accomplishing and had accomplished great things through creative troubleshooting of extraordinarily sensitive issues with counsel to obtain the media and devices whose review was the foundation of this investigation.” Prosecutors 1 and 2 told us that Baker’s efforts were not effective, because Wilkinson continued to refuse to provide consent.

4. FBI Surprise Statement at Outset of April 9 Mills Interview

On April 9, 2016, Mills appeared with Wilkinson for a voluntary interview concerning Mills’s tenure at State. According to a FBI memorandum (“Mills Interview Memorandum”), shortly before the interview Strzok advised the prosecutors and Laufman that the agent conducting the interview would be making a statement at the start of the interview “concerning the scope of [the] interview, the FBI’s view of the importance of the email sorting process, and the expectation of a follow-up interview once legal issues had been resolved.” Witnesses referred to this statement as “the preamble.”

Comey told the OIG that he approved of the preamble but did not suggest it,

and McCabe stated that he “authorized” the preamble. McCabe told us that he

directed the FBI team not to discuss the preamble with the prosecutors before the day of the interview because he was “concerned that if we raised another issue with DOJ, we would spend another two weeks arguing over the drafting of the preamble

to the interview, which I just was not prepared to do.”

The prosecutors told us that they were surprised and upset because the preamble was inconsistent with their prior representations to Wilkinson and they believed it was strategically ill-advised. The Mills Interview Memorandum states that the prosecutors objected to the preamble but that they were told that “the FBI’s position was not subject to further discussion.”

According to the Mills Interview Memorandum, the interviewing agents delivered the preamble at the outset of the interview as planned. Witnesses told us

100 Baker told us that he had known Wilkinson for many years, and documents show that she had previously reached out to him in Midyear as part of a broad effort to speak with senior Department and FBI officials, up to and including Attorney General Lynch. Lynch and other high level Department officials told us that they did not speak with Wilkinson during the course of the investigation.

that Wilkinson was visibly angered by the preamble and that she and Mills stepped outside the interview room after the agent delivered it. The prosecutors stated that they convinced Wilkinson and Mills to return for the remainder of the scheduled interview concerning Mills’s tenure. However, according to Prosecutor 1, Mills was “on edge the whole time.”101

According to notes of the interview, the prosecutors told Wilkinson that they

were “sandbagged” by the FBI and that they did not know in advance about the

preamble. Additionally, according to the notes, Wilkinson informed the prosecutors

of the call the previous day from a “senior FBI official.”

Prosecutors and FBI agents told us that the events surrounding the April 9 Mills interview, including both the preamble and Baker phone call that were planned without Department coordination, caused significant strife and mistrust between the line prosecutors and the FBI. AAG Carlin told us that the prosecution team asked him to call McCabe and “deliver a message that this is just not an acceptable way to run an investigation.” Carlin told us that he delivered this message to McCabe and also briefed Lynch and Yates on the issues.

Witnesses told us that the strife between the prosecutors and the FBI team culminated in a contentious meeting chaired by McCabe a few days later. On the Department side, this meeting was attended by the line prosecutors, Laufman, and Toscas. Prosecutor 2 told us that during this meeting the prosecutors explained that they were trying to be “careful” in their handling of complicated issues, and that McCabe responded that they should “be careful faster.” Laufman stated that McCabe’s comment “undervalued what we had been able to accomplish to date investigatively through negotiating consent agreements.” According to Laufman’s notes, McCabe agreed that Baker’s unilateral contacts with Wilkinson should not have happened, and Baker agreed not to have further contact with Wilkinson. With respect to the preamble, however, the prosecutors told us that McCabe stated that he would “do it again.”

5. Mills and Samuelson Agree to Voluntary Interviews Regarding the Culling Process

In May 2016, Wilkinson agreed to allow Mills and Samuelson to be voluntarily interviewed regarding the culling process, provided the questions asked during the interviews did not seek information that was considered “opinion work product.”102

101 During the interview, according to the FD-302, Mills told the FBI that she “did not learn Clinton was using a private server until after Clinton’s [State Department] tenure.” The FD-302 further states, “Mills stated she was not even sure she knew what a server was at the time.” Abedin similarly told the FBI that she “did not know that Clinton had a private server until…it became public knowledge.” The prosecutors told us that they found it credible that Mills and Abedin did not understand that Clinton had a “private server,” even though Mills and Abedin knew Clinton had an email account on the clintonemail.com domain. They further stated that Mills’s and Abedin’s statements were consistent with what the prosecutors understood to be Mills’s and Abedin’s limited technical knowledge and abilities.

102 Opinion work product is attorney work product that involves “mental impressions, conclusions, opinions, or legal theories” concerning litigation and, like communications protected by

The prosecutors told us that this meant that the agents could ask questions

regarding the “mechanics” of the culling process, including how Mills and

Samuelson obtained and reviewed the emails for production to the State Department. However, they told us that they could not put a particular email in front of Mills or Samuelson and ask why the call was made to consider it work-related or personal. The prosecutors explained that, based upon their research and Prosecutor 4’s experience with privilege, they believed they would not likely be successful convincing a judge that such questions were permissible.

Samuelson and Mills were interviewed regarding the culling process on May 24, 2016, and May 28, 2016, respectively, which was before the Midyear team obtained access to the culling laptops. Witnesses told us and contemporaneous documents show that the agents prepared outlines in advance of the interviews and the prosecutors reviewed them to ensure they were consistent with the agreed upon parameters. For example, based on witness testimony and the outline we reviewed, the prosecutors eliminated a question that asked for the “exact” search terms that were used during the culling process. Prosecutor 2 told us that during

the attorney-client privilege, is generally protected from discovery. Strzok told us that the Midyear team considered whether questions regarding how Mills and Samuelson made decisions to exclude particular emails could have been asked based on the “crime-fraud” exception to the attorney-work product doctrine. In the Fourth Circuit (which includes EDVA), in order to invoke the crime-fraud exception, the government “must make a prima facie showing that (1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme, and (2) the documents containing the privileged materials bear a close relationship to the client’s existing or future scheme to commit a crime or fraud.” In order to apply the crime-fraud exception to an attorney’s opinion work product, the government must also “make a prima facie showing that the attorney in question was aware of or a knowing participant in the criminal conduct.” In re Grand Jury Proceedings No. 5, 401 F.3d 247, 251-52 (4th Cir. 2005).

While we did not ask the prosecutors about the crime-fraud exception directly, it appeared, based on their answers to other questions, that that they did not believe that they could show that Mills or Samuelson were “engaged in or planning a criminal or fraudulent scheme” when they culled Clinton’s emails for production to the State IG. Prosecutor 2 stated that the Midyear team had not uncovered evidence during the course of the investigation that Mills or Samuelson had a criminal “motive” when they conducted the culling process. Prosecutor 2 explained, “[T]here was nothing that was different in the type of emails that were produced and the types of emails that were found elsewhere to indicate to us that there was any sort of…nefarious intent.” Similarly, Prosecutor 1 stated that the notion that Mills or Samuelson had criminal mens rea when they conducted the sort process was contradicted by the fact that the production to the State Department contained numerous classified emails. This prosecutor stated, “[L]ots of classified stuff got turned over in FOIA, so the notion that they would have been deleting the classified didn’t make a lot of sense to us at this point in the investigation, because [they] probably would have done a better job of getting rid of it.” The Lead Analyst told us that “he had no evidence to suggest that” there was “some sort of willful arrangement to…remove and otherwise sideline material that would, you know, reflect criminal activity.” He further stated, “We didn’t see anything else to suggest that there [are] these like willful criminal arrangements with attorneys.”

Prosecutor 2 told us, and contemporaneous documents show, that the Midyear team also considered whether there was a waiver of privilege, due to either (1) the publication of certain information regarding the culling process on the Clinton campaign website; or (2) Mills’s testimony about aspects of the culling process before the House Benghazi Committee. Prosecutor 2 stated, “[W]e thought we had pretty good arguments to argue waiver on fact work product but not opinion work product, which is kind of like…the way I differentiate it, asking about the mechanics versus asking about why substantive decisions were made.”

the interviews “there were a couple of assertions of privilege,” but overall the interviews went well.

One of the case agents who led Mills’s and Samuelson’s interviews told us that he believed the interviews regarding the culling process were not as productive as he would have liked, because Mills and Samuelson were “so well-rehearsed.” He attributed this to a number of factors, including that they were interviewed late in the investigation, Wilkinson was aware of the scope of the interview in advance from discussions with the prosecutors, and Mills was a “highly-trained professional” with an “excellent” attorney. He further stated that the limited scope of the questioning “took away some of our tools that we would have had going into that interview.” Other FBI witnesses, however, told us that while there was some debate over the scope of the interviews beforehand, the team was ultimately satisfied with the information that was obtained. Prosecutor 2 told us that “nobody ever expressed a concern following the interviews that there was something that we needed that we didn’t get.”

1. Steps Taken to Obtain and Search the Culling Laptops

As noted above, the investigators wanted access to the laptops primarily because such access promised the possibility of reconstructing the emails that had been deleted in the culling process. However, because Mills and Samuelson were both attorneys, the issue of obtaining access to the laptops implicated questions regarding how to protect any privileged information residing on them.

1. Internal Strategizing and Call with Clinton’s Counsel

Documents we reviewed reflected that the prosecutors spent significant time and effort conducting research, analyzing relevant legal, policy, and ethical issues, and strategizing how to best handle the issue of the culling laptops. Contemporaneous emails and text message exchanges we reviewed show that Strzok and Page challenged the prosecutors’ laptop privilege concerns and were two of the most outspoken proponents of using compulsory process to obtain the culling laptops. Page explained to the OIG why she did not agree that the emails on the laptops were privileged:

These are materials, these are the State Department’s records. And if the Secretary in the first place had actually followed normal protocol, every single one of these emails, whether personal or work-related would have been in the State Department’s possession, and there would be no attorney-client discussions happening with respect to the sort of this material.

In addition, Page stated that any other privileged material on the laptops could be handled by the Midyear team’s already established filter team.

On May 18, 2016, Toscas, McCabe, Page, and Prosecutor 1 had a telephone conference with DAAG Paul O’Brien of the Department’s Criminal Division regarding the likelihood of Department approval for search warrants or subpoenas to obtain the culling laptops. O’Brien told the OIG, and Page’s and Toscas’s contemporaneous notes show, that during this call McCabe advocated in favor of a search warrant, but O’Brien stated that a search warrant was “a nonstarter.” O’Brien stated that he explained to McCabe that a search warrant for Beth Wilkinson’s office was inconsistent with the USAM and 28 C.F.R. § 59.1. He further stated that he told McCabe that a judge was likely to question why the government was seeking a search warrant to seize the laptops from Wilkinson’s office, when a subpoena would suffice to obtain them (and a search warrant could be sought later to review their contents).103 O’Brien told the OIG that even with a filter team, “any time you issue a search warrant for an attorney’s office, you run the potential and the possibility that you can be inadvertently coming across protected client, sensitive attorney-client information.” He further told us that he believed a subpoena was more appropriate, because it would be less intrusive and “there was no thought that Beth Wilkinson was going to destroy the evidence.” According to Page’s notes, O’Brien stated on the call that he had never seen the Department seek a search warrant in similar circumstances.104

On May 23, 2016, Toscas, McCabe, Page, and Prosecutor 1 spoke with Kendall based on the approval previously received from the Criminal Division. During the call, they described to Kendall the difficulty the team was having obtaining the culling laptops and told him that they would not interview Clinton before obtaining the laptops. Prosecutor 1 stated that the team assumed Kendall and Wilkinson were speaking with one another and that a conversation with Kendall might ultimately lead to Wilkinson voluntarily providing the laptops.

2. Approval to Subpoena the Culling Laptops

On May 31, 2016, after hearing nothing further from Kendall, the Midyear team submitted applications for the approval of subpoenas for the culling laptops to the Criminal Division through O’Brien. The applications were signed by EDVA U.S. Attorney Boente. The team also prepared and submitted to O’Brien search warrant

103 O’Brien told us that even if the laptops were still in the possession of Mills and Samuelson, “we still would have looked to determine whether we could obtain the materials with a subpoena rather than doing a search warrant,” as required by the USAM.

28 C.F.R. § 59.1 and USAM 9-19.220 apply to the use of process against “distinterested third parties.” Pursuant to 28 C.F.R. § 59.1, “It is the responsibility of federal officers and employees to…protect against unnecessary intrusions. Generally, when documentary materials are held by a disinterested third party, a subpoena, administrative summons, or governmental request will be an effective alternative to the use of a search warrant and will be considerably less intrusive.” Similarly, USAM 9-19.220 provides, “As with other disinterested third parties, a search warrant should normally not be used to obtain…confidential materials” from a disinterested third party attorney.”

USAM 9-13.420 applies to searches of the premises of an attorney that is a “suspect, subject or target” of an investigation and provides: “In order to avoid impinging on valid attorney-client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law.”

104 The policies set forth in the USAM are binding on both FBI and Department employees.

applications for reviewing the content of the culling laptops, to submit to a court once the laptops were obtained.

In a letter to Toscas dated June 3, 2016, O’Brien authorized the issuance of the proposed subpoenas. He further wrote that the team “had satisfied the requirement, pursuant to USAM 9-13.420(C), to consult the Criminal Division before applying for a warrant to search the laptop computers.”105 Toscas told us, and contemporaneous emails show, that he proposed applying to the court for an “anticipatory search warrant.” An anticipatory search warrant is one that is approved by the court for use once a triggering event occurs, in this case the FBI securing the laptops by subpoena. Toscas stated that he was in favor of the anticipatory search warrant because he thought it might help persuade a judge to side with the government when litigating a possible later motion to quash the subpoena. However, he said that Boente and the prosecutors in EDVA did not agree because anticipatory search warrants were not typically used in that fashion in their jurisdiction.

On June 4, 2016, Prosecutor 1 wrote to Wilkinson:

I had wanted to speak to you personally today to discuss next steps. Since we were unable to connect, in the interest of time, I am advising you that DOJ has authorized subpoenas for both laptops, which we intend to serve by COB Monday. It is important that we speak on the phone as soon as possible tomorrow.

The prosecutors had a series of phone calls with Wilkinson over the next two days, ultimately resulting in four letters dated June 10, 2016: two from the Department (one for Mills and one for Samuelson) granting Wilkinson’s clients “act of production” immunity in exchange for voluntarily providing the culling laptops and two from Wilkinson (one for Mills and one for Samuelson) granting the Department consent to review the culling laptops, with certain restrictions. Witnesses told us that McCabe and Toscas were the highest level FBI and Department officials, respectively, to approve these agreements.

3. Act of Production Immunity for Mills and Samuelson

The Department entered into “act of production” immunity agreements with both Mills and Samuelson on June 10, 2016. The immunity agreements provided that the government would “not…use any information directly obtained from” the culling laptops in any prosecution of either witness “for the mishandling of classified information and/or the removal or destruction of records,” pursuant to “18 U.S.C.§ 793(e) and/or (f); 18 U.S.C. § 1924; and/or 18 U.S.C. § 2071.” Therefore, Prosecutors 1 and 2 told us it was their view that the government would have been free to use in any future prosecution of Mills and Samuelson leads developed as a result of the FBI’s review of the information on the culling laptops, as well as information provided by Mills and Samuelson during their voluntary interviews.

105 The USAM did not require Criminal Division approval for the search warrant, just consultation once the request for had been approved by a U.S. Attorney (here that was Boente). USAM 9-13.420(C)

FBI and Department witnesses told us that no one within the team disagreed with the decision to enter into these immunity agreement with Mills and Samuelson in exchange for obtaining the culling laptops. We also were told by FBI and Department witnesses that, based on the evidence they had gathered at that point in the investigation, they did not expect to uncover anything on the culling laptops that would be incriminating to Mills or Samuelson. The prosecutors told us that that Mills and Samuelson had included in the State Department production numerous emails containing classified information, including emails containing SAP information which was the most sensitive material identified during the Midyear investigation. They also had included the emails with the (C) portion markings, which were the only emails containing classification markings that were discovered during the investigation. According to Prosecutor 2, “[T]here was nothing that was different in the type of emails that were produced and the types of emails that were found elsewhere to indicate to us that there was any sort of motive” or “nefarious intent.”

In addition, Prosecutor 1 stated that, even after the prosecutors had approval to obtain the laptops by subpoena, they believed that obtaining them through consent was preferable, because they expected a motion to quash and time lost through subsequent litigation. Similarly, FBI agents and supervisors told us that they did not object to the immunity agreements because the protection offered by them was limited and allowed the team to obtain needed sources of potential evidence without inhibiting the investigation.

Comey explained in a speech at an FBI conference for Special Agents in Charge in October 2016 that there were “huge concerns” about attorney-client privilege and attorney work product on the culling laptops that warranted entering into the immunity agreements with Mills and Samuelson in order to secure them. He stated:

You can also imagine given that you’re experienced people the challenge in trying to get a lawyer to give you their laptop that you use for all of their legal work. Huge concerns there about attorney-client privilege, attorney work product. We had a few options there. One was to serve them with a Grand Jury subpoena and then litigate the work product protection and the attorney-client protections for probably the next five years, or reach some agreement with them to voluntarily produce it and give them some sort of assurance as to how the information will be used on that laptop…. Department of Justice reached an agreement at the request of the lawyer for these two lawyers that for act of production of immunity is the way I understand it in my career that is you give this laptop, we will not use anything on the laptop against you personally in a prosecution for mishandling of classified information or anything else related to classified information. Reasonable to ask for a lawyer to ask to give us the laptops and enabled us to short circuit the months and months of litigation that would’ve come otherwise. I was actually surprised they agree[d] to give us the laptops.

4. Limitations in the Consents to Search the Culling Laptops

In addition to the immunity agreements, which the Department entered into to obtain possession of the culling laptops, the Department entered into consent agreements with both Mills and Samuelson in order to enable the FBI to search the laptops with certain limitations. The consent agreements provided that the “sole purposes of the search” were:

“[T]o search for any .pst files, or .ost files, or compressed files containing .pst or .ost files, that were created by Platte River Networks (“PRN”) after June 1, 2014 and before February 1, 2015, in response to requests for former Secretary Clinton’s email from her tenure as Secretary of State;”

“[T]o attempt to identify any emails from, or remnants of, the PRN Files that could potentially be present on the Device;”

“[T]o identify any emails resident on the Device sent to or received from” Hillary Clinton’s known email accounts, “for the period of January 21, 2009 through February 1, 2013;” and

“[T]o conduct a forensic analysis of the device to determine whether the Device was subject to intrusions or otherwise compromised.”

The consent agreements described in detail a two-phase process the FBI would use to search the devices for the listed purposes. In the first phase, OTD would search the allocated space of the devices for the .pst files created by Combetta. If the intact .pst files were found, OTD would not move on to the second phase. If not, OTD would go on to the second phase, which would entail searching both the allocated and unallocated space for “any emails, fragments of emails, files, or fragments of files” that could “clearly be identified as having been sent to or received by” one of Clinton’s email accounts during her tenure.106

Witnesses told us, and contemporaneous text and instant message exchanges among FBI employees show, that negotiating the consent agreements was a difficult process and, at least at the outset, Strzok and others at the FBI believed that the prosecutors were giving Wilkinson too much control.107 However,

106 The consent agreements also each provided: “As soon as the investigation is completed, and to the extent consistent with all FBI policies and applicable laws, including the Federal Records Act, the FBI will dispose of the Device and any printed or electronic materials resulting from your search.” According to talking points drafted by members of the Midyear team in October 2016, the FBI had agreed to destroy the laptops because the laptops contained classified information and, as such, could not be returned to the attorneys following compliance with FOIA and Federal Records Act obligations. The draft talking points stated that as of October 2016 the laptops had not been destroyed, because the FBI was still “under a legal obligation to preserve the laptops and other electronic media due to numerous pending FOIA requests.” On June 11, 2018, the FBI informed the OIG that the FBI still had in its possession the culling laptops and all other evidence collected during the Midyear investigation.

107 FBI employees have the ability to communicate internally via Microsoft Lync instant messages when logged on to their FBI workstation. We discovered several Lync messages that were relevant to our review, and we discuss these in Section XI of this chapter and in Chapter Twelve.

when we interviewed Strzok, he told us that he no longer could remember what his specific concerns were at the time and, in the end, “we got what we needed to credibly come to the resolution that we did in the investigation.” He further stated that some of the sentiments he expressed over text message to Page about the prosecutors’ handling of the issue reflected only the heat of the moment and his opinions at the time.

Agent 1 told us that the phases outlined in the consent agreements were overly complicated and that he did not agree that the FBI should not have been able to review the unallocated space if the analysts found the .pst files in phase 1. Contemporaneous instant messages show that the Lead Analyst, FBI Attorney 1, and FBI Attorney 2 shared this concern. However, this concern became moot when OTD was unable to find the .pst files in phase 1 and ultimately went on to phase 2 and searched the unallocated space.

FBI Attorney 1 exchanged instant messages with the Lead Analyst and FBI Attorney 2 in which she expressed frustration during the drafting of the consent agreements. For example, on June 8, 2016, she wrote to the Lead Analyst, “The fact that Pete [Strzok] met with [Prosecutor 1] and hashed all this out and capitulated really pisses me off.” Also on June 8, 2016, she wrote to FBI Attorney 2, “OMG. I’m so defeated. Why do I bother?” FBI Attorney 1 told us, in an interview before viewing these instant messages, that she had concerns with the filter process set forth in the consent agreements, which limited the filter team to “two attorneys, one FBI agent, and one FBI analyst, none of whom are members of the investigative team.” The agreements stated that OTD would provide the emails from its search to the filter team, which would then “review those results to identify and remove: (1) any privileged material; (2) any material that, upon further review, is determined not to be an e-mail sent to, or received by, the Relevant Accounts during the Relevant Period; and (3) any material that, upon further review, is determined not to be a work-related e-mail sent to, or received by,” Clinton’s relevant email account. FBI Attorney 1 stated that she opposed this language because it differed from the filter process that had been used for other devices, wherein the filter team, with the assistance of OTD, relied more heavily on search terms to eliminate material that was beyond the scope of review or privileged. She stated that her concern was that the filter process would be too time-consuming. However, she told us that in the end the filter team was able to “get it done in a timely manner” and that resolved her concerns.

In a follow up interview after viewing the instant messages, FBI Attorney 1 told us that the June 8, 2016 instant messages were exchanged during a lengthy telephone conference with Prosecutors 1 and 2, Strzok, the Lead Analyst, FBI Attorney 2, and OTD technicians. She stated that the frustrations expressed in her instant messages related to her concerns about the filter process discussed during her first interview. She further stated that her complaints about Strzok had to do with him not including her in certain conversations with the prosecutors. However, she told us that she did not believe that Strzok was failing to represent the FBI’s interests in those conversations. She also reiterated that she was ultimately satisfied with the terms of the consent agreements. On June 28, 2016, FBI Attorney 1 sent an instant message to the lead filter team attorney offering to provide the filter team with additional resources to review the culling laptops. The

filter attorney responded, “Just got data from OTD and we seem to be in a good place with our current filter resources.”

Agent 3 told us he was concerned by the requirement in Phase 2 that the emails be “clearly identifiable” as having been sent to or from one of Clinton’s email accounts during her tenure, because sometimes the metadata in the unallocated space was unclear. However, he told us that he did not express this concern to the prosecutors at the time the consent agreements were being negotiated and that he was not sure that he had sufficient “technical basis” to do so. We asked Prosecutors 1 and 2 about this concern and they stated that the language was developed with input from the investigative team and OTD to ensure that they were able to access what they needed to access in order to adequately review the laptops. Prosecutor 2 stated, “We came to the conclusion that the procedures that were in this letter would allow us to look at the material that we thought was critical to look at, and yet protect the attorney-client privilege in a way we thought we were required to do.”

Other FBI employees told us that they would have preferred to be able to search for emails sent or received just before or after Clinton’s tenure, in the hope of identifying Clinton’s intent in setting up the email server or the intent behind the later deletions of emails. The Lead Analyst told us that he would have liked to have been able to search Mills’s and Samuelson’s own emails on the culling laptops, to determine what instructions were provided to Samuelson regarding how to conduct the culling process and to see if there was any evidence regarding why later deletions occurred. He stated that this information would have helped the FBI determine whether Mills and Samuelson “willfully” did something “illegal or inappropriate” during the sort process or whether there were “serious flaws” in the process. However, he stated he had “no evidence to suggest” that Clinton or her attorneys had a criminal purpose in the way they conducted the sort process or in the deletion of emails. He further stated, “We didn’t see anything anywhere else to suggest that there is these like willful criminal arrangements with attorneys. Like, there’s nothing to suggest that that’s the case. It’s just, you know, it’s the curious part of the investigator in all of us that thinks about that.”

The prosecutors and some of the agents told us that the consent agreements were date restricted, because the primary purpose of reviewing the culling laptops was to find the .pst files of Clinton’s emails that were transferred by Combetta, in order to reconstruct, to the extent possible, the deleted emails. They further told us that the attorneys’ own communications following Clinton’s tenure, with either Clinton or other clients, would mostly consist of items protected by privilege, and that they had already obtained records of communications between Clinton’s attorneys and PRN staff from PRN.108 Similarly, the Lead Analyst acknowledged that he might not have been able to view such emails even with legal process due to privilege and probable cause concerns. He stated, “[T]his was not a snap

108 As noted in Section V of this chapter, the Midyear team also did not seek a search warrant

of Mills’s personal Gmail account for email exchanges following Clinton’s tenure, when she had an

attorney-client relationship with Clinton.

decision. This decision was made, and this was the best and most effective way to…obtain this content. And there’s going to be trade-offs involved in that.”

Most of the Department and FBI witnesses we interviewed told us that they were ultimately satisfied with the consent agreements to search the Mills and Samuelson laptops and did not feel that the consent agreements unduly limited their investigation. In addition, some witnesses told us that in the end they believed that the FBI obtained more through the consent agreements than it would have obtained through a subpoena or search warrant. For example, Prosecutor 4 stated that that he told the FBI “repeatedly in no uncertain terms that I thought that the probability of success on a grand jury subpoena for the laptops [because of a motion to quash] was, that they would get some things, but the vast majority of what they wanted, they would not get.” Similarly, the Lead Analyst told us that he eventually learned that sometimes consent allows the FBI to obtain “a broader swath of material.”

5. Review of the Laptops

The FBI and Department witnesses told us that they ultimately did not identify evidence on the Mills or Samuelson laptops that changed the outcome of the investigation. According to documents we reviewed, the team recovered 9,000 emails on Mills’s laptop, which were mostly duplicates of the emails included within the 30,490 produced to the State Department, and they found no new classified emails. The team was able to recover “approximately 112 files” from Samuelson’s laptop, but the analysts did not believe these files contained “work-related material.”

1. Involvement of Senior Department and FBI Officials

Witnesses told us, and documents show, that the issues surrounding the culling laptops and testimony was one of the few issues in the Midyear investigation that was briefed to high-level Department officials. The highest level Department official involved in substantive decisionmaking regarding the culling testimony and laptops, including the decision to grant immunity, was Toscas. Toscas told us that while he agreed with the prosecutors that there were complicated privilege concerns, he also agreed with the FBI that the culling laptops had to be reviewed and that the prosecutors had more leverage than they realized in negotiating with Wilkinson.

Toscas told the OIG that he briefed Lynch on the negotiations with Wilkinson because of the potential for litigation, and because Wilkinson had stated that she planned to contact Department leadership. He stated that Lynch responded that she knew Wilkinson and was familiar with her aggressive style. He stated that Lynch told him, “[P]ursue whatever you want to do, she’s going to be that way. That is her reputation…. Tell the team to get what they need done.” Based on that guidance, Toscas told us that he conveyed to the line prosecutors to “be civil” but “be just as aggressive back” to Wilkinson.

Lynch told us that she did not recall Toscas bringing to her attention the prosecutors’ difficulties negotiating with Wilkinson or conflict with the FBI. However, she stated that in the spring of 2016 Toscas briefed her and Yates that

“additional laptops were found” and that “because the people who owned the

laptops were lawyers, in addition to having had a connection with Secretary Clinton’s team, there were issues of privilege.” She stated that the only reason this issue was brought to her attention was because it “raised the possibility of litigation.” She further told us that the team was able to “resolve” the issues without litigation, but she did not “know the specifics.” In addition, Lynch stated that she and Wilkinson had been “prosecutors together in Brooklyn” and that, based on that experience, she described Wilkinson’s “aggressive” style to Toscas. Yates and Carlin similarly told us that they were briefed on the Mills and Samuelson issues, but could not remember many details. Carlin stated that at one point he reached out to McCabe to discuss the issues and that he “fully agreed” with the recommendation of the prosecutors that “trying to do an adversarial search warrant on a lawyer’s office” would result in the case being “tied up in litigation for a period of time.”

On the FBI side, Comey, McCabe, and Baker were all substantively involved with the debate with the prosecutors over whether and how to obtain the culling testimony and laptops. McCabe stated, “I was very clear about this with the Director, that we could not conclude this investigation in a credible way until we had done everything humanly possible to look at those laptops, fully realizing that it

likely, there may not be anything on them.” He stated he also made this point clear to “Carlin, Toscas, and others.” Comey told the OIG that he agreed with the FBI team that the culling laptops were “critically important.” He stated:

I believe we could not credibly complete this investigation without getting access to those laptops, and that I was not going to agree to complete this investigation until we had access to those laptops because…we just couldn’t credibly say we had done all we could do, if we didn’t do everything possible to see, is there a forensic trace of emails that were deleted and can we tell whether there was obstructive intent.

Comey, Baker, and other FBI witnesses told us that they believed the prosecutors were overly cautious about obtaining the laptops, because they were intimidated by high-powered defense counsel like Wilkinson. Referencing the prosecutors’ concerns about obtaining the laptops, Comey stated:

And I remember a general concern that…there was a sense that [the

prosecutors] didn’t want to do things that were too overt or too aggressive and I don’t know whether that extended to the use of a

grand jury or not….

But there was a sense that there was a general lack of aggressiveness and willingness to take steps that would roil the waters. In my

judgment honestly, was that that wasn’t politically motivated that’s

just the normal cowardice…this is the normal fear and conservatism and the higher profile the matter, the more afraid sometimes the prosecutors are.

And so I didn’t attribute that to a political motive….

Lynch and Yates told us that they were unaware of any complaints that the prosecutors were not sufficiently aggressive, or that they were believed by the FBI to be intimidated by high-powered defense counsel. Lynch stated, “I don’t remember that being conveyed to me. You know, agents always think that prosecutors aren’t aggressive enough. But they don’t know the discussions and decisions that go behind the decisions as to…what steps you’re going to take[.]” She said that she would have viewed any such complaints as part of the normal dialogue that often occurs between prosecutors and agents unless someone had brought the complaints to her as a “catalogue” of specific decisions that were problematic.

Comey told us that he addressed the laptop issue with Yates, because he was concerned that higher level Department officials needed to be involved. He stated:

I think I had the sense that there’s nobody home. That the grownups aren’t home at Justice because they’ve, they’re stepping away from this. And so to be fair to myself, I think the laying over this was this sense that, in a way Carlin and above has abdicated responsibility for this.

However, despite his testimony that the prosecutors were not aggressive enough with Wilkinson and that higher level Department officials were not engaged, Comey told us that he did not discuss his concerns with the Department, ask the Department to assign new prosecutors, or seek the appointment of a special counsel.109 As discussed in Section II.A.2 of Chapter Six of this report, Comey told the OIG that he told Yates in April 2016 that the closer they got to the political conventions, the more likely he would be to insist that a special counsel be appointed. Comey said that his comment to Yates was motivated in part by his frustration that it was taking the Midyear prosecutors too long to obtain the Mills and Samuelson laptops. However, as explained in Section VII of Chapter Six, we did not find evidence that Comey ever seriously considered seeking the appointment of a special counsel. His reasons for not seeking the appointment of a special counsel or even seeking the assignment of new prosecutors were that he had the “A-team” working on the investigation on the FBI side and it was “too late in the game” at that point. In addition, Comey stated that he believed Yates “must have done something” in response to his discussion with her, “because the team perceived an adrenaline injection into the DOJ’s side that we had not seen before” and secured the culling testimony and laptops. Comey indicated to the OIG that he was satisfied with this result, stating, “We got access, we negotiated access to the

109 Comey also told us that he was not “troubled or struck” by the Department’s decision to

have NSD run the investigation.

laptops and interviews of the lawyers, so the team got what the investigators thought they needed.”

1. Motivations behind the Culling Testimony and Laptop Dispute

Several FBI officials told us that they perceived that the prosecutors were reluctant to obtain the culling laptops and testimony, but they did not believe that such reluctance was motivated by bias or political considerations. Comey stated, “There was serious concern about the reluctance to pursue the laptops…I had no reason to believe that was driven by an improper consideration.”

Based on the evidence we reviewed, Comey and others at the FBI were primarily motivated in the debate over obtaining the culling testimony and laptops by a desire to credibly complete the investigation and to do so sufficiently in advance of the election to not be perceived as political. Indeed, witnesses told us, and contemporaneous notes show, that by the time the Midyear team was debating how to handle Mills and Samuelson, the team generally agreed that the investigation was headed toward a declination and did not believe that it was likely that anything found on the culling laptops would change that outcome. For example, according to Laufman’s notes from May 11, 2016, Strzok told Laufman that although he did not believe that finding something on the culling laptops that would change the outcome of the investigation was likely, it was nonetheless important to secure them from an “investigative standpoint.”

In addition, the notes of both Department and FBI employees show that beginning as early as May 2016, Comey conveyed to his employees a sense of urgency to complete the Midyear investigation. For example, Page wrote in her notes from a meeting on May 9, 2016, “Need to act with incredible urgency.” In the same notes, she included a reminder to herself to “call John [Carlin]” and ask, “do your people know D’s urgency?” The next day, an analyst wrote in her notes:

[The Lead Analyst] and Pete

Meeting with Director

Sense of urgency

Similarly, Laufman’s May 11, 2016 notes state:

Director Comey…

-Extraordinary sense of urgency…

-As get closer to election would be more difficult to close

-Risk of perception that won’t be credible, be seen as partisan…

FBI desires to wrap up in weeks, not months.

Moreover, as described in Chapter Six, Comey shared with Baker, McCabe, Rybicki, Priestap, Strzok, the Lead Analyst, and Page his first draft of a public statement recommending that no charges be pressed against Clinton in early May 2016, before the Midyear team interviewed Mills and Samuelson or obtained the culling laptops.

As described above, Strzok and Page were two of the strongest advocates of obtaining the culling testimony and laptops by compulsory process. On May 4, 2016, a few weeks before Mills and Samuelson were voluntarily interviewed regarding the culling process and a little over a month before the FBI obtained the culling laptops, Strzok and Page exchanged the following text messages. The sender of each message is identified after the timestamp.

8:40 p.m., Page: “And holy shit Cruz just dropped out of the race. It’s going to be a Clinton Trump race. Unbelievable.”

8:41

p.m., Strzok: “What?!?!??”

8:41

p.m., Page: “You heard that right my friend.”

8:41

p.m., Strzok: “I saw trump won, figured it would be a bit.”

8:41

p.m., Strzok: “Now the pressure really starts to finish MYE…”

8:42 p.m., Page: “It sure does. We need to talk about follow up call tomorrow. We still never have.”

The same day, at 8:48 p.m., Strzok sent a similar text message to the Lead Analyst. However, the Lead Analyst responded, “Did he? We need to finish it well and promptly, but it’s more important that we do it well. A wise man once said that.” The Lead Analyst told us that the “wise man” referenced in his text message was Comey.

Both Strzok and Page told us that the May 4, 2016 text message exchange was not an example of them allowing their political viewpoints to impact their work on the Midyear investigation. Rather, they told us that Comey had expressed a desire complete the investigation as far in advance of the elections as possible to avoid impacting the political process, and the fact that the presidential race was down to two candidates was a milestone that enhanced that sense of urgency. They both told us that their desire to move quickly to finish Midyear was not impacted by Donald Trump, in particular, securing the nomination over the other Republican candidates.

1. Interview of Former Secretary Clinton

The interview of Hillary Clinton took place on Saturday, July 2, 2016. Comey provided a few reasons for conducting the interview on a Saturday, including to complete the interview as soon as possible after the team finished all other investigative steps, to accommodate Clinton’s schedule, and to “keep very low visibility.” Comey told us that he received a briefing before the interview regarding general parameters, including when the interview would take place and who would be conducting it. However, he stated that he was not involved in formulating the questions for the interview.

We reviewed several issues related to the Clinton interview, including: the decision to conduct her interview last; a debate over the number of FBI agents and Department employees who would attend her interview and whether there were any efforts to adjust that number for political reasons; the conduct of the interview; the decision to allow Mills and Samuelson to attend the interview as Clinton’s attorneys even though they were also witnesses in the investigation; and the decision to conduct a voluntary interview rather than subpoena Clinton before the grand jury.

1. Decision to Conduct Clinton’s Interview Last

Witnesses told us that interviewing Clinton at the end of the investigation was logical. Prosecutor 3 told us that generally if investigators want to determine whether someone “at the top” is culpable, they first want to see what “lower level people have to say.” Prosecutor 3 told us that none of the prosecutors or agents disagreed with the decision to interview Clinton last.

Witnesses told us that in the Midyear case in particular it made sense to start at the bottom, because lower level people generally originated the emails containing classified information on unclassified systems and sent them to Clinton’s closer aides who, in turn, forwarded them to Clinton. Prosecutor 1 explained:

[T]he natural thing to do was work your way up the chain. And I say chain, but I also mean email chain…. And just get to the, get to the end. The Secretary’s email system was obviously the sort of foundation of all of this and why it became an issue. So we needed to understand the thinking in, in setting that up. So we naturally wanted to do her last. Also, doing interviews in that order in my experience allows you not to have to come back in serial fashion to the higher-level people who it’s harder to get time with them.

Toscas stated that the team wanted to ask the lower level employees who originated the emails that turned out to be classified why they wrote the emails on unclassified systems, before asking the same questions of Clinton’s aides and Clinton herself. Comey told us that one of the strategies behind interviewing Clinton last was that the interviewing agents would know enough information from other witnesses that they could test Clinton’s credibility by asking her questions to which they already knew the answers.

1. Number of People Attending (“Loaded for Bear” Text Message)

Witnesses told us that there were disagreements within the Midyear team regarding who should attend the interviews of certain key players in the investigation. They stated that Laufman insisted on attending certain interviews, including Clinton’s interview, although he normally did not attend interviews. The FBI took the position that if Laufman would be at an interview, Strzok, who was roughly his counterpart at the FBI, should also be at the same interview.

Strzok and Page told us, and contemporaneous emails and notes show, that they and other members of the Midyear team, including the line prosecutors, were concerned about the number of people attending Clinton’s interview and Laufman’s insistence on attending. These discussions started well before Clinton’s July 2 interview.110 On February 24, 2016, Strzok emailed Priestap that Laufman had called him earlier stating that he “felt strongly about DoJ bringing four attorneys ([Laufman] + 3), and that he was going to raise it up his chain.” Strzok further wrote that he told Laufman that raising the issue up the chain would be “necessary because the DD had indicated the group should be 2-2,” meaning two agents and two prosecutors. Strzok forwarded this email to Page and another employee, who was also an advisor to McCabe, two minutes later. Strzok told us, and the email chain that followed shows, that Strzok agreed with McCabe that two agents and two prosecutors would be ideal, but he was amenable to three agents and three prosecutors as a compromise. However, both McCabe and Strzok were opposed to allowing four prosecutors to attend the interview.

Later that evening, Strzok and Page exchanged several text messages about the dilemma over how many people should attend Clinton’s interview. Based on a review of this exchange, Strzok was concerned that if only two agents and two prosecutors attended the interview and Laufman insisted on being one of the prosecutors, it would be difficult for Strzok to decide whether to send two case agents or himself and one case agent. The following text messages were part of this exchange. The sender of each message is identified after the timestamp.

10:32 p.m., Page: “Do you or Bill [Priestap] fundamentally believe that 3 and 3 is the RIGHT thing for the case? If the answer is no, then you call [McCabe’s advisor] back and say we’re good as is. You have never wavered from saying 2 and 2 is best. I don’t get what the hesitation is now.”

10:52 p.m., Page: “One more thing: she might be our next president. The last thing you need us going in there loaded for bear. You think she’s going to remember or care that it was more doj than fbi?”

10:56 p.m., Strzok: “Agreed.”

Page sent a similar text message to an advisor to McCabe a few minutes after her text message to Strzok, and later to McCabe himself. With McCabe’s advisor, she had the following exchange.

10:56 p.m., Page: “Hey, if you have one opportunity to discuss further with andy, please convey the following: She might be our next president. The last thing we need is us going in there loaded for bear, when it is not operationally necessary. You think she’s going to remember or care that it was more doj than fbi? This is as much about reputational protection as anything.”

11:00 p.m., Advisor: “I’ll catch him before the morning brief to give him this nugget….

110 Both FBI and Department witnesses, including Comey, told us that the Midyear team had originally planned to interview Clinton much earlier, but the interview was delayed because other tasks took longer than expected to complete.

The next morning, on February 25, 2016, this exchange continued as follows.

4:10 a.m., Page: “Hey I’ll just text andy this morning with my

thought.”

4:11 a.m., Advisor: “Sounds good.”

The text message to McCabe was on February 25, 2016, at 7:41 a.m.:

Page: “Hey, you’ve surely already considered this, but in my view our best reason to hold the line at 2 and 2 is: She might be our next president. The last thing we need is us going in there loaded for bear, when it is not operationally necessary. You think she’s going to remember or care that it was more doj than fbi? This is as much about reputational protection as anything.”

The next text message exchange between McCabe and Page was in the evening on February 25, 2016:

9:16 p.m., Page: “Hey I’m sorry. It’s just wildly aggravating how much churn has gone on this. Have a good night.”

9:50 p.m., McCabe: “Agree. Strongly.”

Page told us that the term “loaded for bear” in her mind meant “a ton of people,” such that the FBI was “trying to intimidate.” She stated that the message she was trying to send in her text message was not that Clinton should be treated differently, but that she should be handled the same as any other witness the FBI interviews. She further stated that as a former prosecutor her “personal preference” would be to not have too many people in an interview, because “[t]hat’s just sort of not conducive to both rapport-building and also just…what it looks like…just pure optics.” In addition, she told us that she believed the additional interviewers were “unnecessary” and “if there is no value to be added, then we should do things the way we always do things, which is with a smaller, more discrete footprint.” She further told us that, while “it’s irrelevant whether or not [Clinton]…would or would not become president…if she did become president, I don’t want her left with a feeling that…the FBI marched in with an army of 50 in order to interview me.” In other words, Page stated that her concern had to do with the “reputational risk” to the FBI.

McCabe’s advisor told us that he was not substantively involved in the Midyear investigation but, as an advisor to McCabe, he was sometimes present when Midyear was discussed at meetings and copied on emails in which Midyear was discussed. He stated that he believed that he was involved in the late February conversations regarding how many Midyear team members should attend Clinton’s interview, because he was filling in for Page at one point during the conversations. McCabe’s advisor told us that he did not recall the above text message exchange with Page, likely because he was not substantively involved with the issues and was distracted at the time he received it. McCabe’s advisor stated that he “did not know that the fact that [Clinton] might be our next President might be one of those motivating factors in Pete’s or in Lisa’s mind in determining the size of the interview team.” After reviewing the text message exchange during his OIG interview he stated:

My reaction to that is that that should not be a consideration in, in determining the right investigative step to take in the investigation, in determining the size of the team, the interview team. That…should have no bearing on it. What’s right for the case is right for the case, and that’s how we should make our decisions.

However, Strzok told us that he did not take Page’s comment to mean that “we need to treat her differently because she’s the next president.” He further told us, “I am certain I made no decision based on anything [Clinton] might be or become.” Strzok stated that strategically, to obtain “the best answer” it is “always ideal” to conduct an interview with “two agents and the subject.” He went on: “Now, if they want counsel, fine. If you have a DOJ attorney, fine. But ideally…my experience is the smaller the setting, the more effective the interview.” Strzok told us that the only relevance of her being the next president was that “you don’t want the president thinking you’re a bunch of clowns.”

Similarly, McCabe stated that the “typical” way to run an interview is with two agents and one attorney, and “one of the reasons for doing that is to kind of keep the interviewees…defenses a little bit lower and not make people so concerned.” He stated that he understood Page to be saying in her text message that she would not want the future president to think the FBI was “a bunch of…brutes.” In addition, McCabe told us that when he wrote that he “agree[d] strongly” with Page, he was agreeing that it was “ridiculous that we’re still talking about who is going to what interview from which side,” not that the team should not go into Clinton’s interview too aggressively.

Several other FBI and Department witnesses we interviewed corroborated Page’s, Strzok’s, and McCabe’s testimony that typically the FBI limits the number of interviewers in an interview for strategic investigative purposes, and that Laufman’s insistence on attending certain interviews caused frustration within the FBI. For example, Agent 2 stated, “when the room gets too big…it’s hard as the interviewer to try to build that connection with the person you’re interviewing…to get a good interview.” AAG Carlin told us that disputes regarding which prosecutors and agents will attend an interview are common. He further told us that “to do an effective interview you don’t want to have 50 people in the room.” As noted in Section VI of this chapter, Laufman told us that he attended the interviews of Clinton and other key witnesses to ensure that those interviews were handled properly and to ensure that he had a complete picture of the investigation before accepting the FBI’s and the prosecutors’ recommendations.

Ultimately, Clinton’s interview was attended by Agents 1 and 2, Strzok, Laufman, and all four line prosecutors. McCabe stated that the number of people that ultimately attended Clinton’s interview shows that investigative steps were not influenced by a desire to go easy on Clinton. In addition, multiple witnesses told us that they never heard anyone discussing the need to go easy on Clinton in light of her candidacy for president and that any such discussions would have been

inappropriate. Carlin stated that such discussions would have been “thoroughly unacceptable and no one on our team would have done that.”

1. Conduct of Clinton’s Interview

Both agents and prosecutors told us that by the time of Clinton’s interview they did not believe criminal charges were likely because they had conducted all other investigative steps and, absent a confession from Clinton, they had concluded that there was insufficient evidence of intent. Comey told us that by early May 2016 (when he circulated a first draft of a public statement recommending that the Midyear investigation be closed without prosecution), the team had not “found anything that seemed to the team or to me as a case that DOJ would prosecute” andhe hada “reasonable confidence read at this point that barring something else, this looks like it’s on a path” toward declination. However, he stated that if Clinton had “lied to us in a way that we thought we could prove, that would have changed everything.” Prosecutor 1 stated that there were important topics the team wanted to cover with Clinton, including whether she was aware that classified information was present in her emails, her understanding of the highly classified SAP material contained in some of her emails, why she used a private email account on a private server, and security measures she took when emailing overseas.

Agents 1 and 2 were the case agents that conducted Clinton’s interview, in the presence of all four prosecutors, Laufman, Strzok, and Clinton’s attorneys. Witnesses told us that Agent 2 focused on questioning Clinton regarding her involvement in emails that the FBI determined to contain classified information, while Agent 1 questioned her regarding her server and the production of emails to the State Department by her attorneys.

As discussed in Chapter Twelve, we identified instant messages from Agent 1 that raised concerns about potential bias. This included an instant message exchange on November 8, 2016 (Election Day), between Agent 1 and Agent 5 (who were in a relationship at the time and are now married), in which Agent 1 messaged, “You should know;…. that I’m…. with her.”111 (Punctuation in original). Additionally, we observed instant messages in which Agent 1 expressed concerns about the quality of the Midyear investigation, as described in Section XI of this chapter. Two of the instant message exchanges we identified occurred close in time to the Clinton interview.

On June 28, 2016, four days before the Clinton interview, Agent 1 sent an instant message complaining about the numerous people involved in preparing for the Clinton interview. Agent 1 messaged, “…very aggravating making this flow with 20+ voices for disparate information anyway. We have nothing – shouldn’t [sic] even be interviewing. Today, someone said we really need to call out that she had two phones when her excuse not to have a state bb [State Department Blackberry] in the first place was because she didnt [sic] want to carry two phones.” Agent 1 sent a series of messages that continued, “My god…. I’m

111 “I’m with her” was one of the Clinton campaign slogans.

actually starting to have embarrassment sprinkled on my disappointment…. Ever been forced to do something you adamantly opposed.”

We asked Agent 1 about this instant message exchange. He told us that when he wrote “20+ voices” he was referring to the number of FBI and Department employees involved in the Clinton interview preparation. He stated that Agent 2 and he were “working together well,” and they “just kept saying to each other when are we going to actually have time to prepare for this other than prepare everyone else for it?” He stated that the frustration expressed in the instant message exchange was related to his sense that Midyear was not the “normal” case where the FBI “culminate[s]” with an interview of a subject who introduced classified information onto an unclassified system, unlike Clinton who mostly received classified material from others. We asked Agent 1 if he thought that the Clinton interview was unnecessary. Agent 1 told us he thought the interview was necessary and stated:

I think we needed to get statements from the Secretary about what she knew this information to be, she was the Secretary of State, so if you thought this was classified, why did you not, if you had an impression it was classified, why did you not stop it, or why did you not say to the people that were underneath you that you should handle this better? What did you know about where it was? How do you understand a server to, to work, and do you know that a copy resides there? Those types of things, to include a couple that we found. I don’t, I don’t want to make it sound like there was no reason to interview her. That, including, including a couple of emails we found where there were portion markings, what we thought to be portion markings inside of the email. And she had made statements before that…there were no emails that were marked classified.

Agent 1 told us that he did not know what he meant by “forced to do something you adamantly opposed.” Agent 1 stated that this may have been a reference to

not being able to prevent Mills and Samuelson from attending the Clinton interview.

On July 6, 2016, four days after Clinton’s interview, Agent 1 sent an instant message in which he stated that he was “done interviewing the President,” referring

to Clinton. We asked Agent 1 if he thought of Clinton as the next president while conducting the Midyear investigation. Agent 1 stated, “I think my impression going into the election in that personal realm is that all of the polls were favoring Hillary Clinton.” We asked Agent 1 if he treated Clinton differently because of this assumption. Agent 1 stated, “Absolutely not. I think the message they said that

our leadership told us and our actions were to find whatever was there and

whatever, whatever that means is what it means.”

We interviewed all eight of the FBI and Department officials that attended Clinton’s interview, and none of the witnesses we interviewed expressed concerns about the way the case agents handled the interview. Prosecutor 1 told us that Prosecutors 1 and 2 and the case agents did “most of the talking during the interview,” which was “led by the agents.” Prosecutor 1 further told us that

generally “agents would lead [the interviews], and attorneys would interject as needed, and we’d pause after different, as we transitioned to make sure things were covered.” In addition, Prosecutor 1 stated that, “The agents had a good rapport with [Clinton].” Prosecutor 1 further stated, generally, that the agents did a “good job” in interviews and that he did not have concerns about the agents not “pushing hard enough.”

Based on a review of the FD-302 and contemporaneous notes from Clinton’s interview, Clinton told the Midyear team that she chose to use a personal Blackberry connected to her personal email account for official communications for convenience, and she denied using personal email or a personal server to avoid FOIA or Federal Records Act requirements. Clinton further told the FBI that during her tenure she received classified information through secure briefings, secure calls, classified hard documents, and classified faxes, and she “did not recall receiving any emails she thought should not be on an unclassified system.” According to the FD-302, Clinton stated that she was aware that her email was supported by a private server, but she did not know the details of the different server systems she used. The FD-302 indicated that the interviewers showed Clinton numerous unmarked emails she had received containing information that was determined to have been classified. Clinton responded with respect to each email that she did not believe the information contained in the email was classified or that she relied on the State Department employees who worked for her to use their judgment in determining whether information was classified and appropriate to send on unclassified systems. Agent 1 told us that the interviewers asked “probing questions” with respect to each of Clinton’s responses. Prosecutor 1 told us, and our review of other FD-302s showed, that Clinton’s responses to these questions were consistent with the testimony of other witnesses on the email chains, including Clinton’s senior aides who forwarded classified information to her.

The FD-302 and contemporaneous notes indicate that the interviewers asked Clinton about her understanding of her record keeping obligations, the culling process that was used to provide her work-related emails to the State Department, and the deletion of emails from her server. According to the FD-302, Clinton told the FBI, among other things, that she did not recall being asked to turn over her email records upon her departure from State and that she believed her work-related emails were “captured by her practice of sending them to state.gov email addresses of her staff.” She stated that, upon receiving a request from the State Department in 2014, she “expected” her attorneys to turn over any emails that were “work-related or arguably work-related,” but she did not otherwise participate in developing the culling process. Agent 1 told us, consistent with the FD-302, that he pressed her on her lack of involvement in the State Department production, by showing her a work-related email that was not produced as part of the 30,490. Clinton responded that she agreed that the email was work-related and did not know why it was not included in the State Department production. Clinton told the FBI that in December 2014, after the production of her work-related emails to the State Department, her staff asked her what she wanted to do with her personal emails and she responded that she “did not need them anymore.” The FD-302 states that “Clinton never deleted, nor did she instruct anyone to delete, her email to avoid complying with Federal Records Act, FOIA, or State or FBI requests for

information” and that she “trusted her legal team” would comply with the March 3,

2015 Congressional preservation request.

In addition, the interviewers asked Clinton about an email that contained a parenthetical with a “(C)” at the beginning. According to the prosecutors, Clinton received three email chains during her State Department tenure that contained at least one paragraph that began with a ‘(C),’ a classification marking used to denote information classified at the Confidential level. The prosecutors stated that these were the only emails containing classification markings that the FBI identified during its investigation, the emails did not contain any markings other than the one or two paragraphs in each email beginning with a “(C),” and as of July 6, 2016, the State Department had not responded to the FBI’s request for a determination as to as to whether the information in these three emails was classified at the time the emails were sent. The prosecutors further stated that the State Department had determined through the FOIA process that only one of the three emails contained information that was classified as of July 6, 2016, and that this email was classified at the Confidential level. According to the FD-302 from Clinton’s interview, Clinton told the FBI that she did not know what the “(C)” meant and “speculated it was a reference to paragraphs ranked in alphabetical order.” The FD-302 indicates that the FBI had added a classification marking of “Confidential” to the top of the document and that, upon noticing this marking, Clinton asked if the “(C)” meant Confidential. Clinton told the interviewers that she did not agree that the information contained in the email was classified, because it described information that was already in the press. Witnesses told us, and contemporaneous emails show, that the FBI and Department officials who attended Clinton’s interview found that her claim that she did not understand the significance of the “(C)” marking strained credulity. Agent 1 stated, “I filed that in the bucket of hard to impossible to believe.” Agent 1 further stated that he and the other interviewers asked Clinton about her understanding of the “(C)” markings four or five times, but she did not change her answer. He told us, “I also don’t know at that point in the interview what else we could have done besides all the different ways that we asked it.”

Comey told us that one of the purposes of interviewing Clinton was to see if she would be truthful. However, he stated that the agents that conducted the interview found her credible and were surprised at how “technically illiterate” she was. While Comey did not specifically comment on the team’s reactions to Clinton’s testimony regarding the “(C)” portion markings, he stated, “By her demeanor, she was credible and open and all that kind of stuff, but—so I can’t sit here and tell you I believed her. I can only tell you, in no particular could we prove that she was being untruthful to us.” The prosecutors similarly indicated that the team did not believe it could prove that Clinton had been dishonest during her interview or that she knew that the document with the “(C)” marking was classified. The prosecutors stated that the “(C)” markings were somewhat ambiguous given their placement in the email chains and the fact that the classification marking ‘Confidential’ was not spelled out anywhere in the email, let alone in a readily apparent manner. They further stated that Clinton’s statement regarding her knowledge of the “(C)” marking was not one that could be affirmatively disproved.

1. Decision to Allow Mills and Samuelson to Attend Clinton Interview

According to the FD-302 for Clinton’s interview, Mills and Samuelson attended the interview as Clinton’s counsel, in addition to Clinton’s three attorneys from the Williams and Connolly law firm. Numerous FBI and Department witnesses told us that they were opposed to Mills and Samuelson attending Clinton’s interview, because Mills and Samuelson were also witnesses in the investigation. They stated that they were concerned both that Mills and Samuelson could influence Clinton’s testimony and that their presence would be bad from an “optics” standpoint.

Prosecutor 1 told us that the prosecutors first learned that Mills and Samuelson planned to attend Clinton’s interview less than a week before the interview took place. Witnesses told us that the prosecutors contacted Kendall to discuss their concerns about Mills and Samuelson attending, but that Kendall “pushed back.” Several Midyear team members stated, and contemporaneous notes show, that after the call with Kendall the Midyear team conferred more than once and that everyone agreed that, although they were not comfortable with the situation, they could not prevent Clinton from bringing her counsel of choice to a voluntary interview. Laufman stated, “We gave careful thought to whether we had any grounds to bar admission to Mills and Samuelson from the interview of Secretary Clinton. And we determined we did not have a legal or bar rule-slash•ethics based premise to do so.” Several witnesses also told us that they were more concerned with the “optics” of Mills and Samuelson attending than them influencing Clinton’s testimony, because they were confident that Clinton had already been well prepared by her attorneys and had probably conferred with Mills and Samuelson in advance of the interview in any event (which the investigators could not prevent).

Based on the evidence we reviewed, the issue of Mills’s and Samuelson’s attendance was raised up the chain within the FBI through former Director Comey and within NSD through Toscas. According to FBI Attorney 1, the issue was discussed at a meeting she attended that included Comey, McCabe, Baker, Rybicki, Deputy General Counsel Anderson, EAD Steinbach, AD Priestap, Strzok, Page, and the Lead Analyst. FBI Attorney 1 stated that the lawyers in the meeting, including Comey, all agreed that there was no legal basis to exclude Mills and Samuelson from the interview. Comey told us that he could not remember the specifics of his conversations regarding Mills and Samuelson attending the Clinton interview; however, he stated that he believed “it was a fairly brief discussion because our judgment was it’s an essential interview, we’ve washed them out. We’ve looked at their conduct pretty carefully and so those two things together, so we don’t really have a basis for excluding…either of them from the interview.”

Lynch and Yates both told us they did not recall being briefed on Mills and Samuelson attending Clinton’s interview. Carlin told us, “I don’t remember [Mills’s and Samuelson’s attendance] being a major issue so I’m assuming they worked that out without, I kind of more was just briefed that that was occurring rather than that there was some dispute over it.”

The prosecutors told us that the team put a plan in place to prevent Mills or Samuelson from influencing Clinton’s testimony: if Mills or Samuelson “actively involved themselves in the interview” they would address the issue further at that time, possibly through a “side bar” with Kendall. The prosecutors and agents that attended the interview all told us that ultimately Mills and Samuelson did not interfere or object, engage in side-bars with Clinton, or speak substantively during the interview. Rather, Prosecutor 1 told us that Clinton’s Williams and Connolly attorneys did the “actual…lawyering, such that there was any there.”

Prosecutor 1 stated that they did not consult PRAO regarding the ethical implications of Mills’s and Samuelson’s attendance. We asked the prosecutors whether they spoke to Wilkinson about their concerns or suggested to Wilkinson that her clients’ attendance could violate their own ethical duties, given that at the time of the culling testimony and laptop dispute Wilkinson had indicated that her client’s interests were different from Clinton’s in the Midyear investigation.112 They told us they had not done so, and Laufman stated he did not recall considering those ethical concerns. However, Laufman and FBI Attorney 1 both told us that if there was such a conflict, Clinton could waive it. In addition, Prosecutor 1 stated that the team did not question at the time of the Clinton interview whether Mills and Samuelson in fact had ongoing attorney-client relationships with Clinton, because the prosecutors had already concluded there were ongoing attorney-client relationships when they sought subpoenas for the culling laptops.113

1. Consideration of Subpoenaing Clinton before the Grand Jury

We asked several witnesses whether they considered subpoenaing Clinton before the grand jury in order to avoid Mills’s and Samuelson’s presence at the interview. We also asked whether they considered simply refusing to interview Clinton if she insisted on having Mills and Samuelson present, given the pressure on Clinton to cooperate with the investigation—in other words, whether the Midyear team underestimated its strategic position against Clinton’s attorneys.

Some witnesses told us that use of the grand jury was the only way to legally prevent Mills and Samuelson from attending, but that the team did not seriously consider that option. Prosecutor 4 stated:

112 In the March 31, 2016 PRAO request seeking advice on whether the prosecutors could seek a waiver of attorney-client privilege from Kendall, Laufman wrote that Wilkinson had represented that her clients’ interests “may differ from, or conflict with” Clinton’s interests.

113 As part of the application for the subpoenas for the laptops, the prosecutors had to answer whether Mills and Samuelson had ongoing attorney client relationships with Clinton and whether the subpoenas would have any potential adverse effects on those relationships. The prosecutors wrote in the applications that Wilkinson had represented that Mills and Samuelson continued to have attorney-client relationships with Clinton, but that “the nature and scope of that representation is unclear given that the former Secretary has separate counsel (David Kendall) representing her during this investigation.” They further wrote, “Even if [Mills and Samuelson are] representing Clinton in conjunction with this matter, it is highly unlikely that issuance of the subpoena would result in Mills being disqualified from representing the former Secretary.”

I thought Mills being present was idiotic. And I believe that [Prosecutor 1] and I talked about it. And I said, well, look, we cannot exclude her as a legal matter unless we are willing to threaten to throw Hillary in the grand jury, at which point I’m fairly confident that they will fold. And [Prosecutor 1] and I discussed it. And I don’t know if he ever raised that possibility. But it was obvious to me that nobody was willing to, to threaten, to threaten Hillary in the grand jury.

However, Prosecutor 4 stated that his concern about Mills and Samuelson attending Clinton’s interview was “from an optics standpoint” and that “from my vantage point, the cost-benefit analysis of trying to go through and get somebody to authorize me to threaten to throw Hillary in the grand jury was not worth getting the, the interview done at that point.” Prosecutor 3 told us that if the Midyear team insisted that Mills and Samuelson not attend, Clinton likely would have relented because of her desire to say publicly that she cooperated with the investigation. Other FBI and Department witnesses we interviewed told us that they simply did not consider these options.

The SSA told us that it would have been anomalous to subpoena Clinton before the grand jury given that no other witnesses had testified before the grand jury and Clinton, like the other witnesses, was cooperating. Strzok told us that the team decided against subpoenaing Clinton to testify before the grand jury because “the expectation of the information we would get from her in either setting was not substantively different,” given that she had “extraordinary counsel” preparing her.

Toscas told us that if Clinton had been required to testify before the grand jury, members of the FBI team would not have been able to participate in the interview. In addition, Laufman, Prosecutor 1, and FBI Attorney 1 told us that admitting classified information before the grand jury would have involved an uncertain and lengthy process of obtaining approvals from the various government agencies that owned the classified information. Prosecutor 1 stated that, even if the approvals could be obtained, it is better to avoid sharing classified information with the grand jury, if possible.

Laufman stated that subpoenaing Clinton to testify before the grand jury would have been “a grossly disproportionate course of action in relation to what we were dealing with and [out of] step with how we had previously been conducting the investigation throughout its course.” He further stated, “[W]e did not think this was worth blowing up the investigation, and, and creating what almost certainly would have become a matter of public knowledge that we had suddenly issued a grand jury subpoena to the Secretary at this stage of the national electoral process.” He explained that throughout the investigation the team was attempting to avoid “extrinsic information” from the investigation being publicly disclosed and used for political purposes, and this was no exception.

Witnesses told us that at the point of Clinton’s interview, they had conducted all other investigative steps and knew that there was insufficient evidence to prosecute Clinton unless she incriminated herself. Laufman told us that because the prosecutors did not believe a subsequent trial was likely, they were not concerned that Mills’s or Samuelson’s later testimony would be influenced by being privy to Clinton’s interview. Prosecutor 4 told us that if he had the investigation to do over again, the one thing he would have done differently was “insist that Mills not attend the Hillary interview.” However, he also stated that at that point he agreed with the rest of the team that there was no prosecutable case and the main reason to have put her in the grand jury was to avoid subjecting the investigation to criticism.114

Comey told us that he did not remember discussing with anyone the possibility of subpoenaing Clinton before the grand jury. However, he stated:

At that point, I really didn’t think there was a there there, and the question was, is she going to lie to us? She’d be as likely to lie to us in a grand jury or in an interview. And I just suppose in the grand jury is you’ve got the transcript, but we’ve got a bunch of agents taking notes, so I don’t think it would’ve mattered much to me at that point.

1. FBI Inspection Division Internal File Review of the Midyear Investigation

In September and October 2017, the FBI assigned three SSAs (File Review SSAs) from the Boston Field Office to the FBI’s Inspection Division (INSD) to conduct a special review of the Midyear investigation (File Review).115 Baker told us that he proposed the File Review after being informed of the OIG’s discovery of text messages between Strzok and Page expressing political views. He stated that once he learned of the text messages, he suggested to EAD Carl Ghattas and possibly other senior FBI officials that a review team be brought in to “look at the case and all the decisions that were made in a quiet way.” Baker further stated that the purposes of the File Review were to “make sure that [Strzok, Page,] or others did not make decisions in the case based on improper political considerations, including failing to taken actions they should have,” and to “make sure that, from a management perspective, if other steps needed to be taken, we should find that out quickly and take those steps, including reopening the investigation.” He told us that they decided that the File Review team would not interview witnesses, because they did not want to interfere with the ongoing OIG review. Baker stated that Ghattas took the lead on the review.

Two of the SSAs who conducted the File Review had experience in the FBI’s Criminal Investigative Division (CID) while the third SSA had experience in the FBI’s Counterintelligence Division (CD). The File Review SSAs told us that Ghattas requested that they do the File Review, and that they met with Ghattas in FBI

114 Prosecutor 4 stated that once he realized there was no prosecutable case, he had two goals in the investigation: “One was to conduct the investigation quickly to get it resolved before the election, as soon before the election as possible. And the second was to do it in a way that would engender public trust to the maximum extent possible.”

115 Due to fact that the OIG’s review was ongoing at the time, the FBI sought and obtained permission from the OIG to conduct the File Review.

Headquarters at the start of their review. They stated that they were instructed not to discuss their review with other FBI employees. The File Review SSAs also told us that they were not told about the text messages between Strzok and Page before the start of the review. Baker told us he was unaware that the File Review SSAs were not told about the text messages before the start of the File Review.

File Review SSAs 2 and 3 told us that they understood the purpose of the review to be to assess what the Midyear investigators appeared to have done well, what investigative steps were missed, and what lessons could be learned from the investigation. File Review SSA 2 stated that the File Review was not intended to be a reinvestigation. The File Review SSAs told us that their review was limited, by design, to the official FBI Midyear file. They did not interview any witnesses nor did they review any documents that were not included in the official file, such as handwritten notes taken by Midyear team members during meetings, emails or text messages sent or received by Midyear team members, or materials maintained by the prosecutors or others Department officials. They also did not review SAP material. File Review SSA 2 told us that the team did not “intend [for the file review] necessarily to be a…final…judgment or indictment on the FBI or on WFO or the case agents. It was more just…here are our observations, and here are some questions…should anyone else…take a look at this…take this into consideration. That’s kind of all we intended by it.”

The File Review SSAs told us, consistent with their File Review Report, that they conducted their review over the course of six days, between September 5 and September 8, 2017, and between October 3 and 4, 2017; however, the first day was mostly spent meeting with Ghattas and locating the records to review. They stated that thereafter they spent approximately 12 hours per day reviewing records in the official file, discussing items they came across that caused them concern, and recording information in spreadsheets. File Review SSAs 2 and 3 told us that each File Review SSA focused on a different portion of the file, and none of them individually reviewed the entire file. During the course of their review, in addition to reviewing and discussing the records, the File Review SSAs completed a first draft of the File Review Report, which File Review SSA 1 finalized with minor edits thereafter. The File Review SSAs told us that they all approved the final File Review Report.

Under the heading “FBI Investigative Actions,” the File Review Report stated:

The [File] Review Team’s analysis of the MIDYEAR EXAM investigation did not find substantial or significant areas of investigative oversight based on the stated goals of the investigation. In contrast, [the File Review Team] assessed [that] the [Midyear] investigative team conducted a thorough investigation within the constraints imposed by DOJ. Appropriate witnesses were interviewed, records preserved, information and computer devices obtained, and necessary business records were subpoenaed to meet the goals of the investigation. FBI resources such as [Computer Analysis and Recovery Team (CART) personnel], Intelligence personnel, communication analysis, and Cyber Agents were skillfully and successfully utilized to review and fully exploit substantial amounts of data in support of the investigation…. The efforts of the case Agents and case team should be commended.

Nonetheless, the File Review Report also contained criticisms of the Midyear investigation. Generally, the File Review Report assessed that it would have been better to run the Midyear investigation as a traditional criminal investigation out of a Criminal Investigative Division (CID) field office, rather than as a counterintelligence investigation out of CD. The File Review SSAs expressed concern that treating the investigation as a CD investigation with NSD oversight resulted in more limited use of compulsory process such as grand jury subpoenas and search warrants. However, the File Review SSAs told the OIG that they were not aware of any precedent for handling a counterintelligence investigation out of CID. File Review SSA 2 stated that counterintelligence investigations “are always run out of the Counterintelligence Division.”116

The File Review SSAs identified specific concerns with the Midyear investigation, although we found that many of these concerns were the result of the fact that the File Review SSAs had incomplete information. For example, the File Review Report states, “No immunity in exchange for testimony was observed in the investigation,” and “[o]ne instance of a proffer letter was observed,” referring to the limited use immunity agreement between the Department and John Bentel. The File Review SSAs told us that they were unaware that the Midyear prosecutors also entered into letter use immunity agreements with Combetta and Pagliano.117

The File Review SSAs told us, consistent with the File Review Report, that they believed the Midyear agents relied too heavily on outlines during interviews and did not ask sufficient follow-up questions. However, they stated that they based this assessment only on their review of the FD-302s. The Midyear SSA and Agent 1 told us that the CD Division does not draft FD-302s in such a way that a reader would know what follow-up questions were asked of witnesses; instead, the FD-302s generally set forth each witness’s ultimate statements in response to series of questions.

In addition, the File Review SSAs told us that they considered the DIOG, but did not consider any Department policies, such as the USAM, regarding guidelines for obtaining evidence relevant to the Midyear investigation. For example, they

116 The File Review Report also described a concern that the Midyear Team was “directly

supervised by CD-4 personnel [in FBIHQ] as opposed to an SSA and ASAC as found during field office

investigations.” In fact, at the time the Midyear investigation began, Strzok was an ASAC in the FBI’s

Washington Field Office (WFO) and the Midyear SSA was an SSA in WFO.

117 Additionally, the File Review Report expressed a concern regarding the timing of the Pagliano declination letter, but we found that this concern was based on incomplete information. The report stated, “It was unclear to the [file] review team the need for such an expedited prosecution declination.” However, the File Review SSAs told us they were unaware that the declination concerned only Pagliano’s compensation from the Clintons (for which PIN ultimately determined he faced no criminal exposure), and not the mishandling of classified information or destruction of federal records.

stated they did not consult the USAM provisions regarding obtaining evidence from attorneys concerning their representation of clients.

Based on these findings, the report concluded:

INSD assessed the FBI Midyear Exam investigation successfully

determined classified information was improperly stored and

transmitted on Clinton’s email server, and classified information was

compromised by unauthorized individuals, to include foreign government’s or intelligence services, via cyber intrusion or other means [referring to compromises of email accounts associated with certain individuals who communicated with Clinton’s server, such as Blumenthal]. However, the structure of the investigation and prosecution team, as prescribed in the CD PG, and treatment of the investigation as a traditional espionage matter rather than a criminal investigation significantly hindered the ability of the investigative team to obtain full, accurate and timely information.

1. Instant Messages Relating to the Conduct of the Midyear Investigation

FBI employees have the ability to communicate internally via Microsoft Lync instant messages when logged on to their FBI workstation. As part of our review, the OIG identified contemporaneous instant messages in which Agent 1 expressed concerns about the quality of the Midyear investigation. These messages were sent to numerous FBI employees, including an agent assigned to the Midyear filter team (Agent 5). Agent 1 and Agent 5, who are now married, were in a relationship for the entirety of the Midyear investigation. We identified additional instant messages sent by Agent 1 and Agent 5 that raised concerns about potential bias. We discuss these messages and others in Chapter Twelve.

The Midyear filter team was responsible for conducting an initial review of evidence obtained during the investigation and ensuring that nothing that was either beyond the scope of the FBI’s authority to review or protected by a valid privilege was provided to the investigative team. We found that Agent 1 and Agent 5 exchanged numerous instant messages about the Midyear investigation. However, we identified no instances where Agent 5 provided Midyear-related information to Agent 1 that should have been withheld from the investigative team. Agent 1 and Agent 5 told us that their Midyear supervisors were aware of their relationship by the end of 2015 at the latest and it was never identified as a concern.

We asked Agent 1 generally about his use of instant messaging on his FBI workstation. Agent 1 told us that he believed that instant messages were not retained by the FBI and therefore used less caution with those communications than he would have with other types of communications, such as email or text messages. Agent 1 also repeatedly emphasized that the instant messages served as a type of emotional release for him. Agent 1 stated: I took that [instant messaging] as an informal, akin to a conversation almost, almost, you know, water cooler style. I think in there…. There is personal and emotional communications between my then girlfriend, now wife. There is some jocularity there. There is, you know, I think, I think some outlet, stress outlet….

You know, guys, I just, I think this was primarily used as a personal conversation venting mode for me. I’m embarrassed for it. I don’t think that it affected my actions.

Agent 1 told us that the nature of his workspace also contributed to his use of instant messaging. Agent 1 explained that for the Midyear investigation he was relocated to FBI Headquarters and placed inside a SCIF with others on the Midyear team. Due to this, he was effectively unable to use his personal electronic devices at work and was also in a small space with his coworkers and supervisors, thereby preventing phone communication. Agent 1 emphasized that these were not excuses for the substance of his instant messages, but explanations for why he used them as an outlet for “stress relief” about frustrations he encountered at work. Agent 1 described his instant messages with Agent 5 as personal communications with his significant other that they used for mutual support and complaints. Similarly, Agent 1 stated his instant messages with FBI personnel not assigned to the Midyear investigations were typically communications with friends. He also noted that many of these communications were initiated by FBI personnel seeking information on the Midyear investigation. Agent 5 echoed many of Agent 1’s explanations, stating that she considered instant messaging to be a private channel to communicate with Agent 1. Agent 5 told us that Agent 1 was her outlet at work

for “emotional outbursts” and “relief of stress.”

Agent 1 sent instant messages in the initial months of the Midyear investigation commenting on the investigation. Some of these messages are listed below, along with the date sent and the recipient.

September 2, 2015, to Agent 5: “Have a really bad feeling about

this…this case…situation…. No control and horrible decisions and chaos on the most meaningless thing I’ve ever done with people acting like fucking 9/11.”

September 25, 2015, to an FBI employee: “…I dont care about it. I think its continued waste of resources and time and focus….”

October 26, 2015, to Agent 5: “Its just so obvious how pointless this exercise is. And everyone is so into it….”

We asked Agent 1 about these messages. Agent 1 told us that prior to Midyear he had worked on other high-profile cases and part of the sentiment he expressed in these messages was a reluctance to be involved in another high-profile investigation. Agent 1 stated that he knew from prior experience that decisions in such investigation were typically made at higher levels. Agent 1 described the comment about the investigation being “meaningless” as “a little exaggerated” and explained that “maybe the intense scrutiny didn’t seem commensurate to what we

had to do.” Agent 1 explained, “The FBI absolutely needs to investigate why

classified information is in a place where it should not be. I just, it would, this is more probably an emotional comment on how scrutinized and how focused and how continued, there’s a continued focus on it to this day.”

Agent 1 also sent numerous messages that referenced “political” considerations in the context of the Midyear investigation. We list examples of these messages below with the date sent and the content of the message along with context where necessary. Unless otherwise identified, the recipients of the messages are FBI employees not involved in the Midyear investigation.

January 15, 2016: Responding to a question of when the investigation would be finished, Agent 1 stated, “[M]y guess is March. Doesnt matter what we have, political winds will want to beat the Primarys.”

January 28, 2016: “…The case is the same is all of them. Alot of work and bullshit for a political exercise.”

February 1, 2016: “…Its primary season – so we’re being dictated to now….”

February 1, 2016: “This is the biggest political shit show of them all. No substance. Up at dawn – pride swallowing seige. No headset and hermetically sealed in SIOC.”

February 2, 2016: Responding to a question about how the investigation was going, “Going well…. Busy, and sometimes I feel for naught (political exercise), but I feel good….”

May 6, 2016, to Agent 5: “pretty bad news today…someone has breathed some political urgency into this…. Everyday DD brief and

once a week D brief from now on.”

We asked Agent 1 about these messages. Agent 1 stated that he hoped these messages “would just directly reflect upon me and not anybody else that worked the case.” He explained that these messages simply reflect the fact that he wanted to work on something besides Midyear. We asked Agent 1 whether these messages indicated that the Midyear investigation was simply an exercise in “going through the motions.” Agent 1 responded, “No. I think this investigation needed to be worked.” He later continued, “I think if classified information is found in a place that it shouldn’t be, there should be an investigation.” Agent 1 added that he felt the scrutiny and attention that Midyear received was not “commensurate” with the nature of the violation the team was investigating. As to the messages about timing, Agent 1 told us that at some point in the investigation the “pace” increased and, although the team was never given a “finish by” date, there was “a sense that things were picking up.”

On February 9, 2016, Agent 5 sent Agent 1 an instant message complaining about a meeting the filter team had with a Department attorney and the frustrating review task she was assigned. Agent 1 responded: Yeah, I hear you. You guys have a shitty task, in a shitty environment. To look for something conjured in a place where you cant find it, for a case that doesnt matter and is predestined. All you ask for is acknowledgment of that and clear guidance. But no. DOJ comes in there every once in awhile and takes a wishy-washy, political, cowardice stance. Salt meets wound. That is the environment love. Can’t sugar coat it. Now, what? What can you do? What can you control? Work hard, do the best you can, and try to keep others motivated.

After reading this message during his OIG interview, Agent 1 stated:

I have no information that it was a pre-determined outcome by anyone. I had, I had no statement from anyone that I can tell you that I worked with that said this is where we’re going…. I think even the leadership that stopped by in the, in the, in our space always said that as well. Whatever you find, you know, is what it is. You know, just, just find what it was, and, you know, don’t worry about anything else, the outside noise.

All I can tell you is this is probably, I mean, it’s a little overwhelming to see all [these messages] at once, as probably somebody who was, who wanted to do something else, I think.

Agent 1 stated that he could not recall anything specific to add to this exchange.

In another exchange on February 4, 2016, Agent 1 and an FBI employee who

was not assigned to the Midyear investigation discussed Agent 1’s interview with a

witness who assisted the Clintons at their Chappaqua residence. Part of this

exchange follows.

FBI Employee: “boom…how did the [witness] go”

Agent 1: “Awesome. Lied his ass off. Went from never inside the scif [sensitive compartmented information facility] at res, to looked in when it was being constructed, to removed the trash twice, to troubleshot the secure fax with HRC a couple times, to everytime there was a secure fax i did it with HRC. Ridic,”

FBI Employee: “would be funny if he was the only guy charged n this deal”

Agent 1: “I know. For 1001. Even if he said the truth and didnt have a clearance when handling the secure fax – aint noone gonna do shit”

We asked Agent 1 about the implication in this message that no one would be charged irrespective of what the team found. Agent 1 stated:

Yeah, I, I don’t think I can say there’s a specific person that I worked with in this case that wouldn’t charge him for that. I think it’s a general complaint of, you know, of FBI agents that are kind of, kind of being emotional and, and complaining that no one is going to do something about, about something…. But there’s nothing specific that I, that I can tell you.

Agent 1 told us he did not recall any discussion about whether this witness should be charged with a crime.

In a January 19, 2016 message to Agent 4, Agent 1 stated, “What we want to do and what we’re going to be allowed to do are two different things.” Agent 1 told us that he did not remember this exchange and did not know what he was referring to in this message. However, he stated that he appears “to be venting a little bit” to Agent 4.

XII. Analysis of Investigative Decisions

In this part, we provide our analysis of whether the investigative decisions taken in connection with the Midyear investigation that we reviewed were based on improper considerations, including political bias. As described in the Analytical Construct set forth in Chapter One of this report, we selected for examination particular case decisions that were the subject of public or internal controversy. For each decision, we analyzed whether there was evidence of improper considerations or evidence that the justifications offered for the decision were a pretext for improper, but unstated, considerations. If a choice made by the investigative team was among two or more reasonable alternatives, we did not find that it was improper even if we believed an alternative decision would have been more effective. Thus, a determination by the OIG that a decision was not unreasonable does not mean that the OIG has endorsed the decision or concluded that the decision was the most effective among the options considered. We took this analytical approach because our role as an OIG is not to second-guess valid discretionary judgments made during the course of an investigation, and this approach is consistent with the OIG’s handling of such questions in past reviews.

In undertaking this analysis, our task was made significantly more difficult because of the text messages we discovered between Strzok and Page, given the critical roles they played in most of the decisions made by the FBI; the instant messages of Agent 1, who was one of four Midyear case agents; and the instant messages of FBI Attorney 2, who was one of the FBI attorneys assigned to the investigation.118 That these employees used an FBI system or device to express political views about individuals affected by ongoing investigations for which they were responsible was particularly disappointing in comparison to their colleagues on the Midyear investigative team who, based on the emails, notes, memoranda, and

118 As we describe in this chapter and in Chapter Twelve, many of those messages reflected hostility toward then candidate Trump and statements of support for candidate Clinton, and some of them mixed political commentary with discussions regarding the Midyear investigation.

other materials we reviewed, conducted themselves with professionalism during a difficult and high-pressure investigation.119

We were cognizant of and considered these messages in reaching the conclusions regarding the specific investigative decisions discussed below. In particular, we were concerned about text messages exchanged by Strzok and Page that potentially indicated or created the appearance that investigative decisions were impacted by bias or improper considerations. As we describe in Chapter Twelve, most of the text messages raising such questions pertained to the Russia investigation. Nonetheless, the implication in certain Russia-related text messages that Strzok might be willing to take official action to impact presidential candidate Trump’s electoral prospects—for example, the August 8, 2016 text exchange in which Page asked Strzok “[Trump’s] not ever going to become president, right? Right?!” and Strzok replied “No. No he won’t. We’ll stop it”—caused us to question the earlier Midyear investigative decisions in which he was involved, and whether he took specific actions in the Midyear investigation based on his political views.120 As we describe in this chapter, we found that Strzok was not the sole decisionmaker for any of the specific investigative decisions examined in this chapter. We further found evidence that in some instances Strzok and Page advocated for more aggressive investigative measures than did others on the Midyear team, such as the use of grand jury subpoenas and search warrants to obtain evidence.

There were clearly tensions and disagreements in a number of important areas between Midyear agents and prosecutors. However, we did not find documentary or testimonial evidence that improper considerations, including political bias, directly affected the specific investigative decisions discussed below, or that the justifications offered for these decisions were pretextual. We recognize that these text and instant messages cast a cloud over the FBI’s handling of the Midyear investigation and the investigation’s credibility. But our review did not find documentary or testimonial evidence that these political views directly affected the specific investigative decisions that we reviewed in this chapter. The broader impact of these text and instant messages, including on such matters as the public perception of the FBI and the Midyear investigation, are discussed in Chapter Twelve.

119 As discussed in Section X of this chapter, FBI INSD conducted a File Review of the Midyear

investigation. We found that the File Review’s ability to assess the Midyear investigation was limited

based on the narrow scope of the review and the limited information available to them. We also found that, as a result of the limited information available to the File Review SSAs, a number of the factual statements in the File Review report were inaccurate. Accordingly, the assessments and recommendations of the File Review did not significantly influence the analysis of the OIG, which had a far more developed record, including extensive interviews, as discussed in our report.

120 As we describe in Chapter Nine, these text messages also caused us to assess Strzok’s decision in October 2016 to prioritize the Russia investigation over following up on the Midyear-related investigative lead discovered on the Weiner laptop. We concluded that we did not have confidence that this decision by Strzok was free from bias.

1. Preference for Consent Rather than Compulsory Process to Obtain Evidence

At the outset we note that, contrary to public perception, the Midyear team used compulsory process in the Midyear investigation. This included grand jury subpoenas, search warrants, and 2703(d) orders. Nonetheless, the Midyear prosecutors told us that they obtained evidence through consent whenever possible. We found no evidence that the use of consent to obtain evidence in the Midyear investigation was based on improper considerations. The decisions regarding how to obtain particular pieces of evidence were primarily made by the career prosecutors, for whom we identified no evidence of political or other bias, and we found that the reasons they provided for those decisions were not unreasonable.

The FBI investigators, attorneys, and supervisors involved with the Midyear investigation—including individuals for whom we identified electronic messages expressing political opinions—advocated for greater use of compulsory process and for more aggressive investigative methods, including the use of search warrants. However, the prosecutors told us that they often chose consent over compulsory process or court orders based on the following considerations: (1) avoiding delay that could result from motions to quash subpoenas or search warrants; (2) complying with Department policies; (3) protecting classified and other sensitive information; (4) avoiding media leaks and public disclosures that could harm the investigation; (5) the perceived obstacles to establishing probable cause; and (6) the risk of improperly accessing privileged information. We found these explanations to be supported by Department and FBI policy and practice, and that the disputes between the agents and the prosecutors about how aggressively to pursue certain evidence were good faith disagreements.

It was not unreasonable for Department prosecutors to consider the delay that could result from motions to quash subpoenas and search warrants. Both Department and FBI witnesses told us that they hoped to complete the investigation well in advance of the election, if possible, to avoid influencing the political process. Indeed, Comey pressed in early May for the prompt completion of the investigation. However, in seeking to avoid delay, prosecutors were required to balance the need for timely completion of an investigation against the need to ensure a thorough and complete investigation. We did not identify bias or improper considerations affecting that judgment call by the prosecutors.

Both Department and FBI policies generally support the use of consent agreements to obtain evidence. The USAM advises prosecutors to consider alternatives to grand jury subpoenas when practicable, such as obtaining testimony and other evidence by consent, in light of the requirement that the government maintain the secrecy of any testimony or evidence accessed through the grand jury. USAM 9-11.254(1). Had the prosecutors not used consent agreements to obtain most of the evidence in the Midyear investigation, the FBI likely would not have been able to be as transparent as it was in response to FOIA and Congressional requests following the conclusion of the investigation.

The Attorney General’s Guidelines for Domestic Operations (AGG-Dom) and the FBI’s Domestic Investigations and Operations Guide (DIOG) require the FBI, when choosing among two or more operationally sound and effective methods for obtaining evidence or intelligence, to strongly consider using the one that is “least intrusive” with respect to “such factors as the effect on the privacy and civil liberties of individuals and potential damage to reputation.” AGG-Dom § I.C.2; DIOG §§ 4.1.1, 4.4, 5.3, 18.2. The DIOG specifically identifies search warrants as a method that is “very intrusive.” DIOG § 4.4.3 The DIOG’s guidance regarding choosing the least intrusive method is emphasized in relation to Sensitive Investigative Matters (SIMs), such as the Midyear investigation. The DIOG states, “In the context of a SIM, particular care should be taken when considering whether the planned course of action is the least intrusive method if reasonable based upon the circumstances of the investigation.” DIOG § 10.1.3. Assessing which investigative options to use, and whether various options are operationally sound and effective, are judgment calls. Accordingly, the Midyear team’s use of consent agreements, after their evaluation of the circumstances, was an approach to gathering evidence that complied with Department policies. Likewise, had the prosecutors and agents agreed to pursue a more aggressive course after evaluating the circumstances and determining that it would have been a more effective method, it also would have been a rational approach to gathering evidence.

Under FBI policy, it also was appropriate for the Midyear team to consider how the use of compulsory process or more intrusive evidence collection methods might result in the public disclosure of information about the investigation— particularly public disclosure that had the potential to negatively impact the investigation. The DIOG states that in deciding the least intrusive method necessary for effectively obtaining information, the FBI should consider the “risk of public exposure” and the potential that public exposure will be used to an individual’s “detriment and/or embarrassment.” DIOG §§ 4.4.3(E), 5.3. Witnesses told us that there is a need to be particularly cautious with respect to the use of process in national security cases, due to the risk of classified information being leaked.

It was, of course, proper for the prosecutors to consider whether they could demonstrate probable cause before using criminal process. The Fourth Amendment protects individuals from unlawful searches and seizures of their property, and courts have held that individuals have privacy interests in their electronic communications. See Ross, 456 U.S. at 822-23; Riley, 134 S. Ct. at 2485; Trulock, 275 F.3d at 403. Generally, the government must obtain a search warrant before searching data contained in an individual’s electronic storage devices, such as computers and cellular telephones. Id.; Riley, 134 S. Ct. at 2485. To obtain such a search warrant, the government must make a showing of facts under oath demonstrating probable cause to believe that a device to be searched contains evidence of a crime. See Fed. R. Crim. P. 41. Both Department and FBI witnesses told us that, in some circumstances, they were not certain they could make such a showing.

It was also proper for the prosecutors to consider privilege issues. By law, prosecutors cannot use compulsory process to override privileges, such as attorney-client or marital privilege. G.J. Manual § 5.1 (quoting Branzburg, 408 U.S. at 688); G.J. Manual §§ 5.6, 5.26. While a filter team may be used to cull privileged material from seized evidence before an investigative team reviews that evidence, there are also Department policies that apply to seizing evidence that may contain privileged information. For example, under USAM 9-13.410, prosecutors can only issue a subpoena to an attorney for information or evidence related to the representation of clients if the prosecutors first obtain approval from the AAG or DAAG of the Criminal Division. The AAG or DAAG will only provide such approval if the prosecutors make reasonable efforts to first obtain the evidence through alternative sources, including consent, unless such efforts would compromise the investigation. USAM 9-13.410. Similarly, the DIOG provides that,

“It is less intrusive to obtain information from existing government sources…or

from publicly-available data in commercial data bases, than to obtain the same information from a third party (usually through legal process) that has a confidential relationship with the subject.” DIOG § 4.4.3(D).

We questioned why the Midyear team did not serve subpoenas on or seek to obtain search warrants related to the last known persons to possess devices that the team was never able to locate. These included Combetta for the missing Archive Laptop and Clinton or her attorneys for Clinton’s handheld devices. Both FBI and Department witnesses told us that they believed Combetta and Clinton’s attorneys were being truthful that they could not locate these devices and therefore subpoenas would not have made a difference in these situations. This was a judgment call made by the prosecutors and agents, and we did not identify evidence that it was infected by bias or improper considerations.

We also found no evidence that the particular limitations contained in the consent agreements were based on improper considerations or bias. For example, the prosecutors told us that the scope of consent was often limited to the time period of Clinton’s tenure as Secretary of State, because that is when she had access to classified information. Although email communications among Clinton, her attorneys, and PRN staff following Clinton’s tenure may have been relevant to Clinton’s production of work-related emails to the State Department and the subsequent deletions of emails her attorneys deemed personal, the prosecutors told us that (1) most of these communications would have been protected by attorney-client privilege; and (2) the FBI obtained communications between Clinton’s staff, including her attorneys, and PRN staff from PRN. In determining that these and other limitations in the consent agreements were not unreasonable, we considered the Department and FBI policies cited above.

1. Decisions Not to Obtain or Seek to Review Certain Evidence

The Midyear team did not obtain or review some evidence that we found might have been useful to the investigation. The team’s reasons for not doing so appear to have been based on limitations they imposed on the scope of their investigation, the desire to complete the investigation well before the election, and their belief that the foregone evidence was likely of limited value. Those reasons were, in part, in tension with Comey’s reaction and response in October 2016 to the discovery of emails between Clinton and Abedin on the Weiner laptop. However, we found no evidence that the decisions not to obtain this evidence were based on improper considerations or bias. We concluded that these were judgment calls made by the prosecutors and agents.

We asked members of the Midyear team why they did not seek to obtain the personal devices that Clinton’s senior aides used during their tenure at the State Department, given that these devices were both (1) potential sources of Clinton’s work-related or classified emails; and (2) unauthorized locations where classified emails were potentially being stored. In addition, we inquired about the decision not to obtain Huma Abedin’s personal devices given (1) that she stated during her interview that she had given them to her attorneys for production of her work-related emails to the State Department; and (2) the decision to seek a search warrant in October 2016 in order to search the Weiner laptop. Witnesses also told us they believed there was a flaw in the culling process that resulted in the exclusion of most of Abedin’s clintonemail.com emails from the State Department production.

We found that the FBI team and the prosecutors decided together to generally limit the devices they sought to those that either belonged to Clinton or were used to back-up or cull Clinton’s emails. The team provided, among others, the following reasons for placing this limitation on the scope of the investigation:

(1) the culture of mishandling classified information at the State Department which made the quantity of potential sources of evidence particularly vast; (2) the belief that Clinton’s own devices and the laptops used to cull her emails were the most likely places to find the complete collection of her emails from her tenure as Secretary of State; and (3) the belief that the State Department was the better entity to conduct a “spill investigation.” With respect to the first rationale, we note that it fails to acknowledge that the team was not required to take an all-or-nothing approach. For example, a middle ground existed where those devices belonging to Clinton’s three top aides—which the team determined accounted for approximately 68 percent of Clinton’s email exchanges—would have been reviewed, but devices belonging to other State Department employees would not.

Regarding Abedin’s devices, witnesses told us that Abedin played largely an administrative role on Clinton’s staff and, as such, they did not believe her emails were likely to be significant to the investigation. Yet, as referenced above, this view was in tension with Comey’s approach in late October 2016, discussed in detail in Chapters Nine and Ten. Comey described the discovery on the Weiner laptop in October as being the potentially “golden emails” based on what we concluded was very little information about the possible contents of the emails—a stark contrast to the Midyear team’s assessment that the potential emails on Abedin’s devices, including exchanges with Clinton, were unlikely to be significant. The team distinguished their approach with the Weiner laptop based mostly on the fact that it happened to be in the government’s possession.

We recognize that reasonable minds differ on investigative approaches. We concluded that, in deciding not to seek the devices of Clinton’s top aides, the Midyear team members weighed what they believed to be the limited evidentiary value of the senior aides’ devices against their concerns about how pursuing them would add time to and increase the scope of the investigation. Ultimately, Department prosecutors have discretion with respect to “when, whom, how and even whether to prosecute for apparent violations of federal criminal law,” provided that discretion is exercised without reliance on improper considerations, such as political bias or concerns for personal gain, and otherwise consistent with their oath of office and Department policy. See USAM 9-27.110 (comment) (citing U.S. Const. Art. II § 3; United States v. LaBonte, 520 U.S. 751, 762 (1997); Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974); Oyler v. Boles, 368 U.S. 448 (1962); United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965)); 5 U.S.C. § 3331 (oath of office). We did not find evidence that the decisions not to obtain the senior aides’ devices were based on improper considerations, nor did we find that the reasons provided were a pretext for improper considerations. We also did not find that the decisions regarding the scoping of the investigation were inconsistent with any Department polices. Accordingly, these were judgment calls that were within the discretion of the Midyear agents and prosecutors to make.

In addition, as we describe in the classified appendix to this report, the OIG learned near the end of our review that the FBI had considered obtaining permission from the Department to review certain classified materials that may have included information potentially relevant to the Midyear investigation. Although the Midyear team drafted a memorandum to the Deputy Attorney General in late May 2016 stating that review of the highly classified materials was necessary to complete the investigation and requesting permission to access them, the FBI never sent this request to the Department. FBI witnesses told us that they did not seek access to these classified materials for various reasons, including that they believed this information would not materially impact the conclusion. The classified appendix describes in more detail the highly classified information, its potential relevance to the Midyear investigation, the FBI’s reasons for not seeking access to it, and our analysis.

1. Voluntary Interviews

The Midyear investigation did not use the grand jury for the purpose of collecting testimony from witnesses. FBI and Department witnesses told us that through voluntary interviews they were able to establish better rapport with witnesses and avoid risks associated with exposing grand jurors to classified information. We found no evidence that the use of voluntary interviews instead of grand jury testimony was based on improper considerations or influenced by bias. Rather, we concluded that these were judgment calls made by the prosecutors and agents.

As with the use of consent to obtain documentary and physical evidence, the use of voluntary interviews instead of grand jury testimony was consistent with the DIOG’s preference for the “least intrusive” method. In addition, due to grand jury secrecy the use of voluntary interviews contributed to the FBI’s ability to be transparent in response to FOIA requests and Congressional inquiries. The preference for voluntary interviews also was consistent with Department policy regarding the use of classified information before the grand jury. Before classified information can be utilized before the grand jury, the USAM requires prosecutors to seek approval from the agency responsible for classifying the information. USAM 9•

90.230. Witnesses told us that this can be a lengthy process. In addition, the USAM cautions that questioning grand jury witnesses regarding classified information poses a risk that the witness will disclose more classified information than expected or permitted. Id. Even if the Midyear team could have obtained the necessary approvals to use classified information in the grand jury, the prosecutors told us that there are concerns with exposing grand jurors to classified information—the more individuals that are exposed to classified information, the greater the risk of compromise.

The Midyear prosecutors told us they kept open the possibility of subpoenaing witnesses before the grand jury, especially witnesses like Paul Combetta, whose testimony would not likely require the disclosure of classified information. The Midyear team subpoenaed Combetta to appear before the grand jury. However, Department prosecutors and FBI agents ultimately decided that questioning him before the grand jury was unnecessary because (1) they perceived him to be credible during his third interview; and (2) he did not implicate anyone else in criminal conduct such that it would have been helpful to “lock in” his testimony for a future trial. We did not find evidence that this decision was motivated by an improper consideration.

1. Use Immunity Agreements

Prosecutors have wide latitude in deciding to whom to give immunity, and the Department entered into “letter use” or “Queen for a Day” immunity agreements with three witnesses in the Midyear investigation: Pagliano, Combetta, and Bentel. We found no evidence that the decisions to enter into these immunity agreements were based on improper considerations. The factors that the Midyear prosecutors told us they considered in deciding to grant immunity were consistent with the factors Department policy required them to consider, including:

• “The value of the person’s testimony or information to the investigation or prosecution;”
• “The person’s relative culpability in connection with the offense or offenses being investigated or prosecuted;” and
• “The possibility of successfully prosecuting the person prior to compelling his or her testimony.”

See USAM 9-23.210.

With respect to Pagliano, the prosecutors told us that they entered into a letter use immunity agreement because they believed the information he could provide regarding the set-up and maintenance of Clinton’s servers was critical to the Midyear investigation and they determined that he faced no criminal exposure. Based on a review of his FD-302s (as described in Section VII.A of this chapter) and the fact that PIN considered and declined criminal charges against Pagliano, we found that the prosecutors’ assessments regarding Pagliano were not unreasonable or motivated by improper considerations or bias.

With respect to Bentel, the only immunity agreement was a Queen for a Day proffer agreement. This agreement prevented the Department from using any statements made by Bentel pursuant to the agreement against him in its case-in•chief in any subsequent prosecution, but did not prevent the Department from using leads obtained from Bentel’s statements or using Bentel’s statements to cross-examine him in any future prosecution. See Chapter Two, Section I.E.3. The prosecutors assessed that interviewing Bentel was a necessary investigative step, and that he faced no criminal exposure. Based on our review of Bentel’s FD-302 and the limited nature of the Queen for a Day immunity agreement, we found that the prosecutors’ decision to grant Bentel immunity was not unreasonable or based on improper considerations or bias.

With respect to Combetta, we found his actions in deleting Clinton’s emails in violation of a Congressional subpoena and preservation order and then lying about it to the FBI to be particularly serious. We asked the prosecutors why they chose to grant him immunity instead of charging him with obstruction of justice, in violation of 18 U.S.C. § 1505, or making false statements, in violation of 18 U.S.C. § 1001.

Department policy provides that, when considering whether to pursue criminal charges against an individual:

The attorney for the government should commence or recommend

federal prosecution if he/she believes that the person’s conduct

constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

USAM 9-27.220. In determining whether the prosecution would serve a federal

interest, the Department should “weigh all relevant considerations,” including:

• “The nature and seriousness of the offense;”
• “The person’s culpability in connection with the offense;” and
• “The person’s willingness to cooperate in the investigation or

prosecution of others.”

USAM 9-27.230.

We received mixed testimony from Department and FBI witnesses regarding the strength of the evidence that Combetta committed obstruction or made false statements following his first two interviews. The prosecutors and agents we interviewed indicated that, even assuming that “the admissible evidence [was] probably…sufficient to obtain and sustain a conviction” after Combetta’s first two interviews—an assumption the prosecutors indicated was not necessarily true—they believed prosecuting Combetta would not “serve a federal interest.” The reasons they provided to us for reaching this conclusion included: (1) relevant to the nature and seriousness of the offense, there was no evidence that Combetta knew

anything about the content of the emails on Clinton’s server or that they were classified when he deleted them; (2) relevant to Combetta’s culpability, they believed Combetta’s failure to be forthcoming had been primarily due to poor

representation rather than a motive to mislead the investigators; and (3) relevant to his willingness to cooperate, Combetta was willing to cooperate with immunity. Prosecutor 1 told us that the team would have considered pursuing charges against Combetta if he refused to cooperate with immunity, but that granting immunity was “the most expedient way” to obtain truthful information from him.

The prosecutors told us they believed granting Combetta use immunity was the best available option. They told us that they could not forgo Combetta’s testimony, because they believed his truthful testimony regarding his role and the roles of others in the March deletions was essential to the investigation. Moreover, they said they had no means other than immunity to gain his testimony, because he had stated that he would invoke his Fifth Amendment privilege against self-incrimination. The prosecutors told us they did not charge Combetta and then pursue his cooperation in exchange for a guilty plea to reduced charges or a sentencing reduction because of, as discussed above, concerns about the strength of the admissible evidence and because they did not believe criminal charges were in the federal interest given his willingness to cooperate with immunity. The decision to choose a use immunity agreement over a non-prosecution agreement is supported by the USAM, which provides that immunity is (1) appropriate when “the testimony or other information that is expected to be obtained from the witness may be necessary to the public interest;” and (2) preferable to a nonprosecution agreement in exchange for cooperation because immunity “at least leave[s] open the possibility of prosecuting [the witness] on the basis of independently obtained evidence.” USAM 9-23.210; 9-27.600 (comment).

We did not find evidence that the judgments made by the prosecutors in entering into these immunity agreements were inconsistent with Department policy, or based on improper considerations or bias. Ultimately, assessing the strength of the evidence and applying the provisions of the U.S. Attorney’s Manual in determining whether to pursue federal criminal charges is a matter within the discretion and judgment of the prosecutors.

1. Mills and Samuelson

The issues surrounding obtaining Mills’s and Samuelson’s testimony regarding the culling process and searching the culling laptops consumed a significant amount of the Midyear team’s time and attention and caused significant strife between the FBI and Department prosecutors. Several members of the FBI Midyear team, including Comey, expressed concerns that the prosecutors had not been sufficiently aggressive. Ultimately, Mills and Samuelson submitted to voluntary interviews—albeit with limitations that prevented the investigators from soliciting privileged information—and the laptops were secured through consent agreements and act-of-production immunity. Both the prosecutors and the FBI told us that the team obtained what it needed from Mills and Samuelson to conduct a thorough investigation. Comey himself, during a speech at an October 2016 FBI conference for Special Agents in Charge, which we describe below in Chapter Eight, acknowledged the complex issues involved with obtaining the culling laptops from Mills and Samuelson. He further stated that the decision to obtain the culling laptops by consent was “reasonable…to short circuit the months and months of litigation that would’ve come otherwise” and that he was “actually surprised they agree[d] to give us the laptops.”

We noted that these decisions concerning the laptops were occurring at a time when Comey and the Midyear team had already concluded that there was likely no prosecutable case and believed it was unlikely the culling laptops would change the outcome of the investigation. Moreover, as we describe in Chapter Six, at the time of the deliberations regarding the Mills and Samuelson issues, Comey was motivated by a desire to “credibly” complete the investigation sufficiently in advance of the election to not be perceived as political. Consistent with this motivation, Comey told us that one of the reasons he raised the possibility of a Special Counsel with Yates in April 2016 was to push the Department to move more quickly to obtain the culling laptops. Comey also pressed the Midyear investigators in early May for the prompt completion of the investigation.

The Mills and Samuelson issues were somewhat complicated. Not only were Mills and Samuelson both fact witnesses, Mills had numerous classified emails pass through her unclassified government and personal email addresses while working at the State Department under Secretary Clinton; both Mills and Samuelson acted as attorneys for Clinton after they departed from the State Department; and both were represented by their own (and the same) counsel, Beth Wilkinson, while former Secretary Clinton was represented by separate counsel, David Kendall, in connection with the Midyear investigation. These different layers of conduct and representation made obtaining evidence from Mills and Samuelson complex, whether the prosecutors sought to obtain the evidence by consent or compulsory process. In seeking evidence by consent, they had to consider whose consent was necessary—Wilkinsons’s on behalf of Mills and Samuelson, Kendall’s on behalf of Clinton, or both. They had to be cognizant of attorney-client privilege and attorney-work product with respect to Mills’s and Samuelson’s relationship to Clinton, Kendall’s relationship to Clinton, Wilkinson’s relationship to Mills and Samuelson, and information on the laptops related to Mills’s and Samuelson’s representation of other clients. They had to consider the implications of the fact that Wilkinson represented both Mills and Samuelson, as well as two other witnesses in the Midyear investigation. They also had to consider the policy restrictions set forth in the USAM, ethical issues, strategic issues (such as whether issuing criminal process might jeopardize the testimony that Mills consented to provide regarding her tenure at the State Department), and the concern that using criminal process could delay the investigation. Based on the evidence we reviewed, the Department prosecutors extensively considered all of these issues, analyzed the relevant law and policy, and ultimately made judgment calls with respect to Mills and Samuelson that were within their exercise of prosecutorial discretion and we found were not unreasonable.

We likewise found no evidence that bias impacted the decision to obtain testimony and evidence from Mills and Samuelson by consent agreement and with act-of-production immunity. Indeed, individuals for whom we had concerns about potential bias due to the content of their electronic messages advocated for the use of aggressive investigative measures with respect to Mills and Samuelson. For example, Strzok and Page both urged the Department to issue grand jury subpoenas for Mills’s and Samuelson’s testimony regarding the culling process and to seek a search warrant to seize the culling laptops from Wilkinson’s office.

The prosecutors told us that they followed the procedures set forth in Department policy for obtaining testimony and evidence from attorneys related to their representation of clients. Based on our review of the relevant Department policy and privilege law, we found that the prosecutors’ interpretations of the relevant Department policy were not unreasonable and we found no evidence that they were motivated by improper considerations. In accordance with 28 C.F.R. § 59.4, USAM 9-19.220, and USAM 9-13.420, the prosecutors correctly determined that, in the absence of evidence that such efforts would compromise the investigation, they could not seek a search warrant to seize the culling laptops from Wilkinson’s office without first attempting to obtain the culling laptops through consent and, if that was unsuccessful, a grand jury subpoena. Under the circumstances, and in accordance with USAM 9-13.410, they determined that they could not issue a subpoena for the culling laptops without first taking several preliminary steps, including: (1) assessing whether the laptops were reasonably needed for the successful completion of the investigation, (2) attempting to first obtain the laptops by consent, and (3) seeking approval from the AAG or DAAG of the Criminal Division. Also in accordance with USAM 9-13.410, they determined that they could not issue subpoenas for Mills’s and Samuelson’s testimony regarding the culling process without first seeking their testimony by consent and tailoring their questions such that they did not seek information that was “protected by a valid claim of privilege.”

In accordance with these policies, the prosecutors conducted voluntary interviews with Mills and Samuelson, obtained Criminal Division approval to issue subpoenas for the culling laptops, and ultimately obtained the culling laptops through consent agreements and act-of-production immunity agreements rather than subpoena. They told us that, even with the approval for subpoenas, they believed securing the laptops through consent was preferable to avoid the uncertainty and delays of a potential motion to quash the subpoenas. The act-of•production immunity agreements prevented the Department from using information obtained from the laptops in a criminal prosecution against Mills or Samuelson for violations of 18 U.S.C. §§ 793(e) and (f) (felony mishandling of classified information), 18 U.S.C. § 1924 (misdemeanor mishandling of classified information), and 18 U.S.C. § 2071 (destruction of federal records). The immunity agreements did not prevent the Department from: (1) using information obtained from the laptops to prosecute Mills or Samuelson for other crimes, such as obstructing a Congressional or FBI investigation or lying to federal investigators; (2) using evidence obtained from other sources, including their voluntary interviews, to prosecute Mills and Samuelson for mishandling classified information, destroying federal records, or any other offenses; (3) using information obtained from the laptops to prosecute other individuals, including Clinton, for mishandling classified information, destroying federal records, or any other offenses; or (4) using leads developed as a result of the FBI’s review of the information on the culling laptops.

Ultimately, these decisions were judgment calls made by, and within the discretion of, the prosecutors, much like the decisions discussed above regarding use immunity agreements. We found no evidence that these decisions were the result of improper considerations or were influenced by bias.

1. Handling of Clinton’s Interview

By the time of Clinton’s interview on July 2, we found that the Midyear agents and prosecutors, along with Comey, had decided that absent a confession or false statements by Clinton, the investigation would be closed without charges. We further found that this conclusion was based on the prosecutors’ view that there was insufficient evidence of Clinton’s knowledge and intent to support criminal charges, which we discuss in detail in Chapter Seven.

We did not find evidence that decisions regarding the timing or scoping of Clinton’s interview were based on improper considerations or influenced by bias. In addition, based on our review of the FD-302 and contemporaneous notes, the investigators appeared to ask appropriate questions of Clinton and made use of documents to challenge Clinton’s testimony and assess her credibility during the interview.121 However, we had three primary concerns related to the Clinton interview: (1) text messages sent by Page to Strzok, McCabe, and another FBI employee that appeared to suggest that the team limit the number of attendees at Clinton’s interview because she might be the next President and it could leave her upset at the FBI; (2) certain instant messages sent by Agent 1, who was one of the case agents that handled Clinton’s interview; and (3) the presence of Mills and Samuelson at Clinton’s interview, despite that they were also witnesses in the investigation.

With regard to the number of attendees, Page sent the following text message in support of fewer agents and prosecutors attending Clinton’s interview: “[S]he might be our next president. The last thing you need us going in there loaded for bear. You think she’s going to remember or care that it was more doj

121 For example, based on the FD-302 from Clinton’s interview, Clinton told the interviewing agents that she “expected her team to provide any work-related or arguably work-related emails to State.” The interviewing agents then challenged this statement by showing Clinton a work-related email that was not produced to the State Department. Clinton acknowledged that the email was work-related and stated that she did not know why her team did not produce it.

than fbi?”122 The text messages and contemporaneous emails reflect that Page was particularly concerned with the Department’s request that four prosecutors attend the interview. Ultimately, eight people attended Clinton’s interview from the Department and FBI, including five prosecutors. Therefore, we concluded that Page’s suggestion of limiting the number of attendees to four or six did not in fact occur. Moreover, based on witness testimony, we found that the approach Page was advocating—keeping the number of interviewers down to a lower number—was consistent with legitimate investigative strategy.

Nevertheless, we found that Page’s statement, on its face, consisted of a recommendation that the Midyear team consider how Clinton would treat the FBI if she were to become President in deciding how to handle Clinton’s interview. Suggesting that investigative decisions be based on this consideration was inappropriate and created an appearance of bias.

We also were concerned that Agent 1 was one of the two agents who questioned Clinton during the interview given certain instant messages that we identified from Agent 1, including some that expressed support for Clinton and hostility toward Trump. We interviewed each of the seven other FBI and Department attendees at Clinton’s interview, and none of them expressed concerns regarding the conduct of the interview. We also did not find, based on our review of the interview outline prepared in advance of the interview as well as the FD-302 and contemporaneous notes of the interview, evidence that bias or improper considerations influenced the conduct of the interview. We took note of the fact that, because the Midyear team and Comey had concluded prior to the interview that the evidence did not support criminal charges (absent a confession or false statement by Clinton during the interview), the interview had little effect on the outcome of the investigation. Nonetheless, as discussed above, we found Agent 1’s messages to be troubling and in Chapter Twelve, we discuss the impact of these instant messages on such matters as the public perception of the handling of the Midyear investigation and the FBI.

Finally, we questioned why the Department and FBI allowed Mills and Samuelson, two percipient witnesses (one of whom, Mills, herself had classified information transit through her unclassified personal email account) attend Clinton’s interview, even if they had also both served as lawyers for Clinton after they left the State Department. The FBI and Department employees we interviewed all agreed that the attendance of Mills and Samuelson at Clinton’s interview posed potential evidentiary problems, was unusual, and was unhelpful from an “optics” perspective. Witnesses also told us that the only way they could have excluded Mills and Samuelson was by subpoenaing Clinton before the grand jury, but that the team did not seriously consider that option. If the team had issued a grand jury subpoena, Clinton either would have been required to testify before the grand jury without her attorneys in the room or she might have agreed to a voluntary interview outside the presence of Mills and Samuelson to avoid having to appear

122 From the context of this message in the series of text messages that day, we determined that the text message was focused on the number of Midyear team members attending and not on the nature of the questioning.

before the grand jury, given that a grand jury appearance would have delayed the investigation.

We did not find evidence that bias played a role in the decision to proceed with the Clinton interview with Mills and Samuelson in attendance. Rather, we concluded that it was largely based on four factors. First, the Midyear prosecutors were concerned about interviewing Clinton before the grand jury because of the challenges of presenting classified information before the grand jury. Second, the Midyear team had decided by the time of Clinton’s interview that the case was headed toward a declination absent a confession or false statement by Clinton. Third, had Clinton been required to testify before the grand jury, the FBI would not have been able to participate in the interview. Fourth, the team planned to pause the interview and conduct a sidebar with Kendall if Mills or Samuelson interfered during the interview.

Ultimately, witnesses told us that Mills and Samuelson did not interfere, object, or speak substantively during the interview. Moreover, Clinton’s interview did not result in any change in the conclusion of the Midyear team and Comey that a declination decision was warranted. Accordingly, we found no persuasive evidence that Mills’s or Samuelson’s presence influenced Clinton’s interview, or that the outcome of the investigation would have been different had Clinton been subpoenaed before the grand jury.

Nevertheless, we found the decision to allow the Clinton interview to proceed in the presence of two fact witnesses, who also were serving as Clinton’s counsel, was inconsistent with typical investigative strategy and gave rise to accusations of bias and preferential treatment.123 Moreover, there are serious potential ramifications when one witness attends another witness’s interview. The Midyear team could have developed information during the Clinton interview that led the team to reconsider its conclusion that the investigation was headed towards a declination, or led the team to believe that Clinton made a false statement during the interview. In either case, the presence of two fact witnesses at the interview could have negatively impacted subsequent FBI investigative efforts or a subsequent trial. We believe that it would have been useful for the Midyear team to have had guidance to consider in this situation. Thus, we recommend that the Department and the FBI consider developing guidance consider developing practice guidance that would assist investigators and prosecutors in identifying the general risks with and alternatives to permitting a witness to attend a voluntary interview of another witness, in particular when the witness is serving as counsel for the other witness.

123 We recognize that, as a general matter, a witness is free to consult with counsel of the witness’s choice. However, the government is not required to agree to conduct an interview of a witness in the presence of counsel who is also a witness.