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 Fourteen

WHETHER FORMER ASSISTANT ATTORNEY GENERAL

PETER J. KADZIK SHOULD HAVE RECUSED FROM CERTAIN

MATTERS

1. Introduction

This chapter addresses allegations that former Department of Justice

(Department or DOJ) Assistant Attorney General (AAG) for the Office of Legislative Affairs (OLA) Peter J. Kadzik improperly disclosed non-public information to the Clinton campaign and/or should have been recused from participating in certain matters.

The allegations regarding Kadzik stem from the public release of certain emails of John D. Podesta, Jr., the 2016 chairman of the Hillary Clinton presidential campaign and longtime friend of Kadzik. Beginning in October 2016, Wikileaksreleased Podesta emails, including emails between Kadzik and Podesta. Among the emails released by WikiLeaks was a May 19, 2015 email from Kadzik to Podesta with the subject line “Heads up” and which included information concerning a Department Freedom of Information Act (FOIA) litigation and a congressional oversight hearing. Shortly before that email, Kadzik had made efforts to assist his son in obtaining a position with the 2016 Clinton campaign.

On or about November 2, 2016, Department leadership determined that Kadzik’s May 19, 2015 “Heads up” email to the chairman of the Clinton campaign created an appearance of a conflict of interest and required Kadzik to recuse himself from Clinton-related matters. The Department’s Office of Professional Responsibility (OPR) subsequently conducted an inquiry and determined that Kadzik did not disclose privileged or confidential Department information in the email to Podesta.

The OIG’s investigation included reviewing investigative materials,

documents, and emails from several DOJ components including OLA, OPR, and the Civil Division. The OIG also interviewed numerous witnesses, including Kadzik, then Principal Assistant Deputy Attorney General (PADAG) Matt Axelrod, Associate Deputy Attorney General Scott Schools, and the current and former Departmental Ethics Directors. Two relevant witnesses who worked in OLA under Kadzik, but are no longer with the Department, declined our request for an interview or were unable to schedule an interview.245

As detailed below, we found that Kadzik demonstrated poor judgment by

failing to recuse himself under Section 502(a)(2) of the Standards of Ethical

Conduct prior to November 2, 2016. First, Kadzik did not recognize the appearance of a conflict that he himself had created when he initiated an effort to obtain

245 The Inspector General Act of 1978, as amended, does not provide the OIG with the

authority to compel non-Department employees to participate in interviews.

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employment for his son with the Clinton campaign while he was participating in senior staff meetings where Clinton-related matters were discussed and signing letters to Congress regarding Clinton-related matters on behalf of the Department.

Second, Kadzik created an appearance of a conflict when he sent Podesta the

“Heads up” email that included government information about the FOIA litigation in an effort to be helpful to the Clinton campaign without knowing whether the information had yet been made public. His willingness to do so raised a reasonable question about his ability to act impartially on Clinton-related matters in connection with his official duties.

Additionally, although Department leadership ultimately decided to recuse

Kadzik from Clinton-related matters upon learning of Kadzik’s “Heads up” email to Podesta, Kadzik subsequently forwarded several emails communicating information related to Clinton-related matters within the Department and indicated his intent to speak with staff about those matters. We therefore concluded that Kadzik exercised poor judgment by failing to strictly adhere to his recusal.

Lastly, because the government information in the “Heads up” email had in

fact been released publically, we did not find that Kadzik released non-public

information or misused his official position.

1. Timeline of Key Events

Jun 17, 2014 Kadzik is confirmed as AAG for OLA.

Jan 25, 2015 FOIA litigation is initiated seeking the release of former

Secretary of State Clinton’s emails.

Mar 2, 2015 The New York Times reports that Clinton exclusively used

personal email to conduct government business while Secretary

of State.

Apr 12, 2015 Clinton announces candidacy for President of the United States.

John Podesta serves as her campaign chairman; Brian Fallon,

former DOJ Office of Public Affairs Director, serves as her

campaign spokesman; and Jennifer Palmieri serves as her

Director of Communications.

Apr 23, 2015 Kadzik emails Fallon asking for a job for his son with the Clinton

campaign.

Apr 30, 2015 Fallon emails Kadzik asking for his son’s resume and stating that

Palmieri would be reviewing resumes over the weekend. Kadzik

replies, sending his son’s resume and noting that Kadzik’s wife

and Palmieri went to college together.

May 5, 2015 Kadzik’s son emails Podesta his resume and asks for a job with

the Clinton campaign. Podesta forwards the email to Palmieri

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who replies that Kadzik’s wife had contacted her and that she

told Kadzik’s wife that there were currently no openings with the

campaign but positions might become available in July. (Email

released by WikiLeaks).

May 18, 2015 Department files a proposed schedule for the release of the

Clinton emails with the court in the FOIA litigation.

Politico reports on the Department FOIA filing and proposed

schedule for the release of the Clinton emails.

May 19, 2015 Kadzik sends Podesta the “Heads up” email about the FOIA filing

and proposed schedule for the release of the Clinton emails, and

about a congressional oversight hearing, which could include

questions about the Clinton emails. (Email released by

WikiLeaks).

Civil Division Chief testifies at the congressional oversight

hearing.

Jul 10, 2015 FBI opens the Clinton email investigation.

Jan 2016 FBI opens Clinton Foundation investigation.

Nov 1, 2016 WikiLeaks releases the May 5 email chain that begins with

Kadzik’s son asking Podesta for a job with the Clinton campaign.

Nov 2, 2016 WikiLeaks releases Kadzik’s May 19 “Heads up” email to

Podesta.

~ Nov 2, 2016 PADAG Axelrod tells Kadzik to recuse himself from Clinton related

matters.

Nov 8, 2016 Presidential Election

Dec 2016 OPR conducts an inquiry and finds that Kadzik did not send

privileged or confidential information in his May 19, 2015

“Heads up” email to Podesta.

Jan 19, 2017 Kadzik’s last day with the Department.

III. Relevant Standards

In this section we identify the regulations from the Standards of Ethical

Conduct for Employees of the Executive Branch Standards of Ethical Conduct), 5

C.F.R. Part 2635, relevant to our analysis.

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1. Personal and Business Relationships Creating an Appearance of

a Conflict 5 C.F.R. § 2635.502

Personal and Business Relationships Creating an Appearance of a Conflict 5

C.F.R. § 2635.502 (Section 502) establishes the analytical framework for

determining when a federal employee has an appearance of a conflict of interest.

As discussed in greater detail in Chapter Thirteen of this report, Section 502

requires an employee to consider the appearance of his participation in a particular

matter involving specific parties (1) that is likely to have a direct and predictable

effect on the financial interest of a household member or (2) if the employee has a

covered relationship with someone who is a party or represents a party to the

matter. Section 502 also includes catchall provision which may apply to “other

circumstances” that would lead a reasonable person to question an employee’s

impartiality in a matter.

A recused employee is prohibited from participating in the matter unless

authorized by the agency designee based on a determination that the Government’s

interest “in the employee’s participation outweighs the concern that a reasonable

person may question the integrity of the agency’s programs and operations.” 5

C.F.R. § 2635.502(d). According to OGE, a proper recusal requires “that an

employee avoid any official involvement in a covered matter.” OGE 99 x 8 at 2.

2635. Use of Non-public Information 5 C.F.R. § 2635.703

Section 703 of the Standards of Ethical Conduct, 5 C.F.R. § 2635.703, states:

“An employee shall not…allow the improper use of nonpublic information to further

his own private interest or that of another, whether through advice or

recommendation, or by knowing unauthorized disclosure.”

2635. Use of Public Office for Private Gain 5 C.F.R. § 2635.702

Section 702 of the Standards of Ethical Conduct, 5 C.F.R. § 2635.702, states:

“An employee shall not use his public office…for the private gain of friends,

relatives, or persons with whom the employee is affiliated in a nongovernmental

capacity….”

According to commentary to Section 702, “[i]ssues relating to an individual

employee’s use of public office for private gain tend to arise when the employee’s

actions benefit those with whom the employee has a relationship outside the

office…”. 57 Fed. Reg. 35030 (Aug. 7, 1992).

1. Factual Findings
2. Background
3. Peter J. Kadzik

Peter J. Kadzik was confirmed as the Assistant Attorney General (AAG) for

the Office of Legislative Affairs (OLA) on June 17, 2014, and served in the position

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until January 19, 2017. As OLA AAG, Kadzik reported to the Deputy Attorney

General. Kadzik had re-joined the Department as a Deputy Assistant Attorney General in OLA in 2013 after several decades in private practice. Early in his legal career, Kadzik served as an Assistant United States Attorney in the United States Attorney’s Office for the District of Columbia.

Kadzik is married to “LM.” LM previously served as a political appointee in

former-President Bill Clinton’s administration. “RS” is Kadzik’s child from a prior marriage, who was 24 years old at the time of these events.246

2. John D. Podesta, Jr.

John D. Podesta, Jr. is an attorney who served as chairman of the 2016 Clinton presidential campaign. During his career, Podesta also served in various high-level positions in both the Bill Clinton and Barack Obama administrations, including as White House Chief of Staff to Bill Clinton and as Counselor to Obama. Kadzik and Podesta have a long standing personal and professional relationship which, during the Bill Clinton administration, included Kadzik serving as Podesta’s lawyer in 1998 during the Independent Counsel investigation. Kadzik’s relationship with Podesta was known at the time of and raised during his confirmation for the OLA AAG position.

Kadzik told the OIG that neither he nor his wife had any business,

contractual, or financial relationship with Podesta or the Clinton campaign while he served as OLA AAG. He said that he did not serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee of Podesta, Clinton, or the Clinton campaign. Kadzik said that neither he nor Podesta had performed any legal work for the other in the past five years.

3. Office of Legislative Affairs

The Office of Legislative Affairs (OLA) is responsible for managing the

Department’s relationship with Congress and advancing its interests on Capitol Hill.

Among its responsibilities, OLA prepares nominees for confirmation hearings and

Department witnesses for congressional hearings; responds to congressional

inquiries and oversight requests; advises and assists Department leadership on a

variety of congressional matters; and advocates for the Department’s legislative

priorities. When answering congressional inquiries and preparing nominees and

employees for hearings, OLA routinely coordinates with the relevant DOJ

investigative, litigation, and administrative components.

As OLA AAG, Kadzik reviewed and signed letters on behalf of the Department

responding to Congressional inquiries, prepared the highest level nominees and

witnesses for congressional testimony, and represented OLA at the daily senior staff

246 We have anonymized Kadzik’s wife and son by giving them initials as pseudonyms. We

refer to Kadzik’s wife as “LM” and his son as “RS.”

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meetings. Senior staff meetings were generally attended by the Attorney General

(AG) and members of her staff, the Deputy Attorney General (DAG) and her

Principal Assistant Deputy Attorney General (PADAG), as well as the Directors of

OLA and the Office of Public Affairs (OPA).247 At the senior staff meeting, among

other things, attendees discussed sensitive information regarding Department cases

and investigations and coordinated matters and information that were expected to

become public or to be the source of public commentary and questions.

Kadzik told the OIG that his role was that of the Department’s liaison with

Congress and that as such, he was “not involved” in Department investigations. He

stated that, “[t]o the extent that I corresponded with Congress, it was based on

information provided to my office by the relevant component within the

Department. So I didn’t participate in any investigations.”

Department cases and investigations are often the subject of Congressional

inquiries. As discussed below, OLA received numerous congressional inquiries

related to the Clinton matters.

4. Ethics Training and Obligations

All Department employees are responsible for complying with Department

policies as well as the Standards of Ethical Conduct for Employees of the Executive

Branch, codified in 5 C.F.R. Part 2635, which include rules and regulations

governing conflicts of interest, use of nonpublic information, and misuse of position.

The Department provides training and resources to ensure all employees are aware

of their ethical responsibilities and are able to obtain ethics advice as specific

questions and situations arise. The ethics program includes annual mandatory

ethics training, and a Deputy Designated Agency Ethics Official (DDAEO) in each

Department component, among other things. A designated DDAEO works within

OLA.

Kadzik acknowledged participating in the Department’s annual ethics

training. He also acknowledged that OLA employees are subject to the same ethics

rules and regulations as all other Departmental employees even though OLA

employees are not assigned to investigative or litigation teams.

5. Kadzik’s Recusals

As a presidential appointee, Kadzik was required to enter an ethics

agreement indicating that he understood and would comply with the conflict of

interest laws and regulations and submit the financial disclosure form required by

the provisions of the Ethics in Government Act of 1978.248 After he was confirmed,

247 The Office of Public Affairs is the Department’s principal point of contact for the news

media.

248 The Ethics Agreement was signed by Kadzik and Lee Lofthus, the AAG for Administration

and the Department’s Designated Ethics Official, and sent to the Director of Office of Government

Ethics (OGE).

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Kadzik also sent a 2014 recusal memorandum to various Department components

(including OLA) listing the matters from which he was recused and identifying the

OLA DDAEO as the individual who would evaluate his need to recuse himself (serve

as his “gatekeeper”) and the individuals who would serve in his capacity as Acting

OLA AAG on those matters.249

Kadzik’s 2014 recusal memorandum stated that for matters from which he

had recused, all communications should be with the Acting OLA AAG and “in no

event should there be any discussions with [Kadzik].” Email shows that after the

initial 2014 memorandum, Kadzik emailed the OLA DDAEO when he recused himself

from additional matters involving clients of his former law firm, clients of his wife’s

business, and personal matters. Kadzik told the OIG that he likely orally informed

the OLA DDAEO, his deputies, and chief of staff when he was recused from Clintonrelated

matters on or about November 2, 2016, as discussed below.

1. Events Preceding the “Heads Up” Email from Kadzik to Podesta

(March through May 2015)

This section focuses on the events in the spring of 2015 leading up to the

“Heads up” email from Kadzik to Podesta, which included information about the

FOIA litigation and a congressional oversight hearing.

1. OLA Clinton-Related Work

On March 2, 2015, the New York Times reported that Clinton exclusively used

a personal email account to conduct government business while serving as

Secretary of State. The same day, the Department filed its initial response

(Answer) in a FOIA litigation seeking Clinton’s email and other documents during

her tenure as Secretary of State.250

At the time, both Lynch and Yates were awaiting confirmation for the

positions of Attorney General and Deputy Attorney General, respectively.251 In

order to prepare Lynch and Yates to answer questions related to the former

Secretary of State’s exclusive use of a personal email account (and the applicable

federal laws and regulations), Kadzik’s principal deputy drafted the briefing paper

on the topic on March 18, 2015, and Kadzik added edits on March 21, 2015, after

the document was reviewed by personnel in the Office of the Attorney General

(OAG), Office of the Deputy Attorney General (ODAG), and the OPA.252 The briefing

249 Emails show that Kadzik coordinated his recusal memorandum with OLA’s DDAEO. The

individual who served as OLA’s DDAEO under Kadzik has since retired from the Department and

declined our requests for an interview.

250 The FOIA litigation discussed in this report is Leopold v. U.S. Dep’t of State, 15-cv-123

(D.D.C.).

251 Congress confirmed Attorney General Lynch on April 23, 2015, and Deputy Attorney

General Yates on May 13, 2015.

252 Despite the OIG’s repeated attempts, Kadzik’s principal deputy in OLA, who is no longer

with the Department, was unable to accommodate the OIG’s request for an interview.

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paper contained potential questions and the Department’s vetted answers on the

topic as approved by personnel in OLA, the Civil Division, and the Office of the

Attorney General. Briefing papers are used to help prepare nominees and

employees to speak publicly on a Department issue or concern.253 Emails show that

OLA (in conjunction with other components) scheduled “moots” or preparatory

sessions with Lynch and Yates to prepare them to answer questions related to the

State Department emails, among other issues, in March, April, and May 2015.

OLA also responded to congressional inquiries related to Clinton’s use of

email during her tenure as Secretary of State. Emails show that Kadzik coordinated

with the Office of the Attorney General and the White House with respect to

nominee-Lynch’s response to an April 2, 2015 congressional inquiry asking whether

Lynch would commit to an investigation into Clinton’s use of an email server and

appoint a special counsel. Kadzik also replied on May 21, 2015, on behalf of the

Attorney General, to an April 22, 2015 Congressional inquiry into whether Clinton

was lobbied while Secretary of State by an unregistered agent of a foreign power

associated with the Clinton Foundation.

In addition to preparing nominees Lynch and Yates, OLA participated in the

preparation of the Director of the Office of Information Policy (OIP) and the Chief of

the Civil Division to answer questions related to the State Department emails at

their respective hearings. The OIP Director testified on a panel addressing open

government at a Senate Judiciary Committee hearing on May 6, 2015.254 After the

hearing, the OLA employee who accompanied the OIP Director emailed Kadzik that

the majority of questions were directed to the panelist from the State Department

regarding Clinton’s emails.

The Civil Division Chief testified on a panel on general oversight at a House

Judiciary Committee hearing on May 19, 2015.255 Although prepared to answer, the

Civil Division Chief was not asked questions related to the State Department emails

at the hearing. After the hearing, Kadzik sent an email complementing the several

DOJ division leaders who testified.

On May 18, the evening prior to the Civil Division Chief’s testimony before

the House Judiciary Committee, the Department filed a proposed schedule for the

production of former Secretary of State Clinton’s emails as required by the court in

the FOIA litigation. According to the proposed schedule, the State Department

emails would be released in January 2016.

253 At the time, both Lynch and Yates were U.S. Attorneys and therefore they could be

provided with Department information as part of their briefing materials.

254 The hearing was titled “Ensuring an Informed Citizenry: Examining the Administration’s

Efforts to Improve Open Government.”

255 The hearing was before the Judiciary Subcommittee on Regulatory Reform, Commercial

and Antitrust Law and titled “Ongoing Oversight: Monitoring the Activities of the Justice Department’s

Civil, Tax and Environment and Natural Resources Divisions and the U.S. Trustee Program.”

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2. 2016 Clinton Campaign Staffed and Announced

In early 2015, Clinton was preparing to announce her candidacy for

President. Prior to her announcement, in February 2015, Podesta left his position in

the White House as Counselor to the President to become Chief of Staff for the

Clinton campaign. In mid-March 2015, Brian Fallon announced that he would be

leaving his position as the Director of OPA at the end of the month to become the

Clinton campaign’s national spokesperson. Clinton formally announced her

candidacy for President on April 12, 2015.

Kadzik told the OIG that neither he nor his wife sought employment with the

campaign or discussed the prospect of employment with the campaign with Podesta

or other campaign members.

3. Kadzik Assists Son’s Job Search

Also in early 2015, Kadzik’s son “RS” was looking for employment

opportunities and sought a job with the Clinton campaign. Emails show that

Kadzik’s wife forwarded Kadzik her edited version of RS’s resume on March 22,

2015, and that RS sent his resume to Kadzik and his wife for their “final review” on

April 1, 2015.

According to RS’s resume, he lived in New York City and had worked for

Kadzik’s wife’s public affairs firm since December 2014 (approximately 3 months).

Emails indicate that RS was paid for hourly work performed from January to March

2015.

Kadzik told the OIG that he did not support his son financially other than

paying for his cell phone. He said that he did not declare his son a dependent on

his 2015 tax returns and provided a redacted copy of his 2015 return to the OIG.

On April 23, 2015, shortly after he left the Department and on the day Lynch

was confirmed as Attorney General, Fallon sent an email from his Clinton campaign

address to Kadzik’s Department address that included a single word on the subject

line “Congrats!” Kadzik replied:

Thanks! Hope all is well with you, [Fallon’s wife], the kids, and the

candidate. Let me know if you or someone else needs a great assistant; my

25 year old son is ready for [Hillary Rodham Clinton].

One week later, on April 30, 2015, Fallon replied to Kadzik:

Can you send me his resume? Unfortunately I do not get an assistant but

Palmieri is hiring one and will be looking over resumes this weekend.

Within the hour, Kadzik emailed RS asking for his current resume and then

forwarded RS’s resume

to Fallon stating “Here you go. Again, thanks. FYI,

[Palmieri] and my wife [LM], went to college together.”

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Kadzik told the OIG that he did not recall sending Fallon the emails

requesting a job for his son. Kadzik also said that his son was neither hired nor

offered a job by the Clinton campaign and that he found employment with a digital

education company in New York City in August 2015.

4. Kadzik’s Son Separately Seeks Employment with the

Clinton Campaign

According to an email released by Wikileaks, on May 5, 2015, one week after

Kadzik emailed Fallon his son’s resume, RS emailed his resume directly to

Podesta.256 In his email to Podesta, RS said he was sending Podesta his resume at

the suggestion of Kadzik and his wife, LM. Podesta then forwarded RS’s email to at

least two other campaign workers, one of whom was Palmieri, the campaign’s

Director of Communications. Podesta’s email stated “Do you need any help in

[headquarters] or states? [Kadzik] and [LM’s] son.” Palmieri replied:

Heard from [LM], too. Told her we did not have openings for rest of quarter

but can open back up in July.

Kadzik told the OIG that he did not recall when RS applied for a position with

the Clinton campaign, whether he and his wife suggested that RS send his resume

to Podesta, or whether he spoke to his wife about any discussions with Palmieri on

RS’s behalf. Kadzik also said that he did not know whether his wife or son ever

followed up with Podesta, Fallon, Palmieri, or anyone else associated with the

campaign for a job for RS, but that he (Kadzik) did not.

5. Kadzik Gives Podesta a “Heads Up”

On May 19, 2015, Kadzik sent from his personal email account the “Heads

up” email to Podesta. There is no timestamp on the email. Kadzik wrote:

256 This email was published by WikiLeaks on November 1, 2016. WikiLeaks obtained emails

from Podesta’s personal email account and released those emails online in the weeks leading up to the

November 2016 election. Some of these emails, including this email from RS to Podesta, were not

sent to or from a DOJ email address, and as such we were not able to authenticate them. Where the

only source for an email was the WikiLeaks publication, we have identified the email as such.

“In January of [2017], our Intelligence Community determined that Russian military

intelligence—the GRU—had used WikiLeaks to release data of US victims that the GRU had obtained

through cyber operations[.]” Director Pompeo Delivers Remarks at CSIS, April 13, 2017, available at

https://www.cia.gov/news-information/speeches-testimony/2017-speeches-testimony/pompeodelivers-

remarks-at-csis.html (accessed April 25, 2018). The OIG is cognizant of the fact that the

release of emails discussed in this chapter may be part of this cyber operation and our review of this

material is in no way intended to validate or justify WikiLeaks’ data releases.

We note that the fact that the email became public after Podesta’s email was allegedly hacked

and then released by WikiLeaks did not excuse or minimize Kadzik’s conduct. While Department

leadership did not publically acknowledge the authenticity of the illegally hacked emails, Axelrod

confronted Kadzik (who then authenticated the email), recognized the appearance of the conflict and

its impact on the integrity of the Department, and ensured Kadzik’s recusal.

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There is a [House Judiciary Committee] oversight hearing today where the

head of our Civil Division will testify. Likely to get questions on State

Department emails. Another filing in the FOIA case went in last night or will

file in this am that indicates it will be awhile (2016) before the State

Department posts the [Clinton] emails.257

Kadzik told the OIG that he did not recall, but does not deny sending the

“Heads up” email to Podesta and that he “apparently” sent the email to Podesta to

identify two important events of the day.

Kadzik told the OIG that no one in the Clinton campaign asked him for

information regarding the FOIA litigation and that he did not send the email to try

to help his son get a job with the campaign. Kadzik also said he did not send any

other “heads up” type emails or otherwise communicate about Department matters

to Podesta.258

Kadzik also said he did not speak with Podesta about Clinton after the

Department opened an investigation into the Clinton email server in July 2015.

Kadzik told the OIG that he distinguished speaking to Podesta about the FOIA

litigation and the Clinton email investigation. “Whether [the email server

investigation] was criminal or a security review, [], it was now the Department

doing something as a Department, rather than the Department defending FOIA

litigation, which was all public.”

1. Kadzik’s Subsequent OLA Work Related to or Referencing

Clinton

In the time between spring 2015 and the day in November 2016 when

Kadzik was recused from Clinton-related matters, the FOIA litigation continued and

the FBI opened an investigation into Clinton’s use of a private email server and an

investigation related to the Clinton Foundation. These cases generated Clintonrelated

inquiries from Congress to which Kadzik responded both in testimony and in

letters.

OLA continually responded to congressional inquiries and prepared

Department employees to respond to congressional inquiries related to Clinton’s

email server and the Department’s investigation. The inquiries corresponded to

various aspects of the Department’s actions and investigative choices including:

257 Wikileaks published this email on November 2, 2016. We have no independent source for

this email. Kadzik told us he did not recall it, but did not allege that it was inauthentic or inaccurate.

Moreover, Kadzik acknowledged its authenticity to Axelrod when the “Heads up” email was released.

258 Kadzik’s “Heads Up” email was not the only email of this type sent to the Clinton

campaign. According to emails later released by WikiLeaks, on May 18, 2015, the same evening the

Department filed its proposed schedule for releasing the emails, an unidentified Department employee

emailed the FOIA filing to Fallon at Fallon’s personal email address and wrote “This was filed tonight.”

Fallon forwarded the email to campaign members including Podesta. As noted above, Fallon left the

Department at the end of March 2015 to join the campaign. Kadzik told the OIG that he had no

participation in, or knowledge of, the May 18 email to Fallon with the FOIA filing.

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requests to appoint a special counsel; decisions to grant immunity; potential

perjury charges; the Lynch/Bill Clinton tarmac conversation; Comey’s July 5, 2016

and Lynch’s July 6, 2016 announcements regarding the email server investigation

and declination; congressional access to FBI investigative documents; additional

FOIA inquiries; and Comey’s October 28 and November 6, 2016 letters to Congress

regarding the FBI review of additional Clinton related emails.259 OLA also

coordinated its hearing preparation and congressional responses with the

appropriate components which, with respect to the Clinton-related matters,

included, depending on the specific question, the OAG, ODAG, OPA, the Civil

Division, the National Security Division (NSD), and the FBI. Thus while Kadzik had

no role in the conduct of the underlying Clinton litigation and investigation, he

reported on and defended the Department’s actions with respect to its handling of a

wide variety of Clinton-related matters.

In addition, Kadzik, along with his FBI counterpart (the then Acting Assistant

Director of the FBI’s Office of Congressional Affairs), and representatives from the

Department of State and Office of the Director of National Intelligence were called

to testify before Congress on September 12, 2016, to address congressional access

to and redactions of FBI investigative material from the email server investigation.

The last letters that Kadzik signed before the 2016 election were sent on

October 31, 2016, to several senators who had written to the Attorney General and

FBI Director after receiving the FBI Director’s October 28, 2016 letter announcing

the review of additional Clinton related emails. Kadzik wrote, in part, “We assure

you that the Department will continue to work closely with the FBI and together

dedicate all necessary resources and take appropriate steps as expeditiously as

possible.”

Kadzik told the OIG that he had no role in the email server investigation and

that to his memory, in response to a congressional inquiry, met with Department

attorneys on the investigative team on only one occasion to discuss the terms of

the immunity agreements.

With respect to letters from Congress, Kadzik approved standardized

language which OLA used to respond with consistency. For example, when asked

about the Clinton email investigation, OLA consistently responded: “Any

investigation related to this referral will be conducted by law enforcement

professionals and career attorneys in accordance with established Department

policies and procedures which are designed to ensure the integrity of all ongoing

investigations” and when asked about a special counsel OLA consistently responded

by acknowledging the authority and stating that the “authority is rarely exercised.”

Axelrod also told the OIG that Kadzik had “no role” in the email server

investigation. Axelrod said that the investigative information pertaining to that

investigation was closely held, not discussed in senior staff meetings, and not

259 We note that upon receiving a September 2016 congressional inquiry requesting the

appointment of special counsel, Kadzik specifically requested the latest Department filing in the FOIA

litigation.

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discussed with Kadzik. However, Axelrod stated that Kadzik worked “on things

related to [the Clinton email investigation].” Axelrod also said that Kadzik likely

had more access to information regarding the FOIA litigation for the Clinton emails

since that was a civil matter in litigation and discussed in senior staff meetings.

1. Response to WikiLeaks Release

The WikiLeaks release of Podesta/Kadzik emails on November 1 and 2, 2016,

generated inquiries about Kadzik’s conduct from several sources.

Axelrod told us that when WikiLeaks released the “Heads up” email, he

contacted Kadzik, who authenticated the email and, after searching his emails,

assured Axelrod that there were no other similar emails (referencing Departmental

matters) that could be released by WikiLeaks.

The Acting Director of OPA emailed Kadzik on November 2 stating that he

wanted to speak with Kadzik. The same day the OPA Acting Director informed the

press that Kadzik’s “Heads up” email contained “public information” that Kadzik

sent “in his personal capacity” and was not sent “during work hours.” The OPA

Acting Director told us that he made the statements attributed to him in the press

and said that while he did not specifically recall the conversation with Kadzik, he did

not dispute that the information came from Kadzik.260

The then Director of the DOJ Ethics Department told us that she contacted

the OLA DDAEO about the “Heads up” email and asked whether it contained nonpublic

Departmental information. She said the OLA DDAEO assured her that the

information in the email was public when Kadzik sent the email. The then Ethics

Director nevertheless expressed concern to us that a Department leader had sent

an email to a third party without knowing whether the Department-related

information in the email had been made public.

Also following the disclosure, the Department’s Office of Professional

Responsibility (OPR) initiated an inquiry into whether Kadzik had disclosed

privileged or confidential Department information to the Clinton campaign. OPR

submitted questions for Kadzik’s written response and, in December 2016, closed

the inquiry after determining that the Kadzik’s “Heads up” email contained only

public information and personal opinion. Among other things, OPR found that on

May 18, 2015, the Department filed with the court the document containing the

proposed schedule for the release of the Clinton emails; the media reported the

schedule the same evening; and Kadzik sent his “Heads up” email to Podesta on

May 19, 2015, the following day. OPR concluded that Kadzik’s email did not include

privileged or confidential information. OPR did not consider Kadzik’s conduct in

terms of other ethical standards including recusal.

260 The Acting OPA Director said that he spoke to the reporter off the record and should not

have been quoted because the Department did not want to acknowledge illegally obtained emails.

473

1. Kadzik Is Recused

Axelrod told us that after Wikileaks posted the “Heads up” email, he

concluded that Kadzik should be recused from all Clinton-related matters. He

stated the email created an appearance problem because high level DOJ employees

should not be giving a “heads up” to a campaign and that Kadzik had admitted he

did not know whether the schedule in the FOIA litigation had been publicly filed at

the time he sent Podesta the email. Axelrod stated that the recusal was not

because of Kadzik’s personal relationship with Podesta but because Kadzik sent the

“Heads up” email. Axelrod said that “it was a feeling that, right, DOJ folks,

especially like senate confirmed senior leaders, but really anyone in DOJ shouldn’t

be, you know, it wasn’t good practice to be emailing sort of people involved in sort

of political campaigns to, right. It’s not our job to give campaigns a head’s up. It’s

our job to do our work free from politics.”

Axelrod said that because Kadzik was a presidential appointee, Axelrod

probably discussed the matter with the Deputy Attorney General and possibly the

Attorney General and Associate Deputy Attorney General. Axelrod said that in

those discussions, “the decision was made was made [that Kadzik] should…be

screened off from…things Clinton related.”

Axelrod said that he told Kadzik that he needed to be recused on all Clintonrelated

matters and that Kadzik should recuse himself. Axelrod said that Kadzik

“understood” but was not “wild about” the need to recuse himself. He said that

Kadzik was not on the email server investigative team or the FOIA litigation team

but it was an appearance issue and someone else needed to sign the Department’s

letters to Congress.

Associate Deputy Attorney General (ADAG) Scott Schools told the OIG that

after the “Heads up” email was posted, Axelrod called him and they agreed that

Kadzik should be recused from Clinton-related matters because of the appearance

problem. In a subsequent telephone call, Axelrod informed Schools that Kadzik did

not agree with, but was willing to abide by, the decision to recuse himself from the

Clinton-related matters. Axelrod also asked if Kadzik’s recusal needed to be

documented. Schools said that there was no requirement to document the recusal

and told the OIG that while the decision to recuse was not difficult, the rationale

was nuanced and might be over scrutinized if the document was subject to a FOIA

request.

According to Schools, Kadzik’s principal deputy in OLA later called him to ask

whether OLA should be informed of Kadzik’s recusal. Schools told her that she

could inform OLA personnel about Kadzik’s recusal but told the OIG that he did not

know if she had.261

Kadzik told us Axelrod called him “on or about November 2, 2016” and said

that “in light of the controversy, I should recuse myself from anything further

261 As noted above, despite the OIG’s repeated attempts, Kadzik’s principal deputy, who is no

longer with the Department, was unable to accommodate the OIG’s request for an interview.

474

concerning the Clinton emails.” Kadzik said that since he “had nothing to do with

the Hillary Clinton email investigation or [FOIA] litigation,” the recusal only meant

he would not review and sign anymore letters to Congress about the matters.

Kadzik said that he would have informed his OLA deputies, OLA DDAEO, and

chief of staff of his recused status but did not recall the conversation or who stood

in his place as Acting OLA AAG for those matters. He said it was likely that it was

his principal deputy, as she was “the oversight person.”

Axelrod said that Kadzik’s principal deputy took over his responsibilities on

Clinton-related matters – that she took Kadzik’s place in the discussions related to

the Clinton email investigation during the week before the election and then

generally handled the Clinton related matters through the rest of Kadzik’s term as

OLA AAG, which ended on January 19, 2017.

Kadzik told the OIG that he could not recall how Axelrod defined the scope of

his recusal but that, as a practical matter, Kadzik understood that he would no

longer sign letters to Congress on behalf of the Department that were related to the

Clinton emails and that he was not aware that any letters came in after November

2, 2016. Kadzik said that he “wasn’t participating in anything with respect to

Hillary Clinton and the emails other than signing letters to Congress.” Kadzik also

said that despite his recusal, he never had to leave a meeting because the Clinton

email server investigation was never discussed. However, Axelrod and the OPA

Acting Director told us that Kadzik was replaced by his principal deputy for a time

at senior staff meetings after WikiLeaks released the “Heads up” email. Axelrod

said that the principal deputy replaced Kadzik because the discussions involved

Clinton-related matters.

Though Kadzik said he told his deputies and the OLA DDAEO that he was

recused, emails show that Kadzik subsequently sent and received emails about

Clinton-related matters.

Kadzik forwarded various congressional inquiries about Clinton-related

matters to ODAG, OAG, OAAG, OLA, and FBI personnel that had also been sent to

his principal deputy. When we asked why he did not leave the matter for his

principal deputy to handle, Kadzik said he forwarded the emails to the persons who

he thought could respond to the inquiries and that action was no different than

reminding his principal deputy that he was recused.

We also asked Kadzik about two Clinton-related emails forwarded to him by

his principal deputy. Kadzik’s principal deputy sent one email on November 3,

2016, with the notation “FYSA” (for your situational awareness) and another on

November 6, 2016, with the notation “I’ve got it. (Calls throughout today. All the

right people looped.)” Kadzik said he did not know why his principal deputy sent

him emails after he was recused, that he had not asked her to keep him informed

of the matter despite his recused status, and that he did not believe the ”looped in”

email “[broke] the recusal.” As noted previously, we were unable to ask the

principal deputy about these emails because she did not make herself available for

an interview.

475

There is evidence that on two other occasions, Kadzik may have spoken with

his principal deputy and DDAEO directly about Clinton-related matters. On

November 4, 2016, Kadzik’s principal deputy forwarded him an email from a Senate

Judiciary staffer asking whether there would soon be an official update on the

Weiner laptop email review. Kadzik replied, “Call me later this am.” Kadzik told

the OIG that he did not recall receiving the email, responding to his principal

deputy, or whether he ultimately spoke with her. On November 28, 2018, when

the OLA DDAEO asked Kadzik and his principal deputy about the Mills immunity

agreements with respect to a FOIA request, Kadzik replied “Will circle back with

both of you tomorrow.” Kadzik said he asked that they circle back to “find out what

she was asking about.”

In contrast, emails also show that with respect to other (non-Clinton related

matters) on which Kadzik was recused, he reminded or informed the persons on the

email of his recused status.

1. Analysis

We analyze Kadzik’s actions with respect to three regulations from the

Standards of Ethical Conduct for Employees of the Executive Branch (Standards of

Ethical Conduct), 5 C.F.R. Part 2635: Personal and business relationships, 5 C.F.R.

• 2635.502 (Section 502); Use of non-public information, 5 C.F.R. § 2635.703

(Section 703); and Use of public office for private gain, 5 C.F.R. § 2635.702

(Section 702).

1. Whether Kadzik Should Have Been Recused Prior to November

2 from Clinton-Related Matters under Section 502 of the

Standards of Ethical Conduct

Section 502 of the Standards of Ethical Conduct, 5 C.F.R. § 2635.502

establishes the analytical framework for determining when a federal employee has

an appearance of a conflict of interest that merits recusal. As discussed above,

Section 502 requires an employee to consider the appearance of his participation in

a particular matter involving specific parties (1) that is likely to have a direct and

predictable effect on the financial interest of a household member, or (2) if the

employee has a covered relationship with someone who is a party or represents a

party to the matter. Section 502 also includes catchall provision which may apply

to “other circumstances” that would lead a reasonable person to question an

employee’s impartiality in a matter.

1. Whether There Was a Particular Matter Involving Specific

Parties

The threshold issue for a Section 502(a) analysis is whether there is a

“particular matter involving specific parties” before the Department. A “particular

matter involving specific parties” denotes a specific proceeding which affects the

legal rights of the parties such as an investigation or litigation. 5 C.F.R.

• 2640.102(l).

476

During Kadzik’s tenure as OLA AAG, the Department defended the

Department of State in a FOIA litigation filed in January 2015 seeking emails from

Clinton’s personal server during her tenure as Secretary of State, among other

things. The Department also initiated the Clinton email investigation in July 2015.

Both the FOIA litigation and the email server investigation are “particular matters

involving specific parties,” as each is a discrete litigation or investigation. Clinton

and others were specific subjects of the Clinton email investigation, and the FOIA

litigation involved particular plaintiffs and defendants.262 Therefore, we include

both the FOIA litigation and the email server investigation in our analysis (and for

the ease of the reader refer to both as “Clinton-related matters.”)

2. Whether Kadzik Should Have Recused Because of his

Son’s Efforts to Obtain Employment with the Clinton

Campaign

We next considered whether Kadzik was required to recuse from the Clintonrelated

matters because of Kadzik and his son RS’s efforts to obtain employment

for his son with the Clinton campaign.

Under the “financial interests” provisions of Section 502(a), recusal would be

required if the Clinton-related matters were likely to have a direct and predictable

effect on the financial interest of a member of Kadzik’s household. A direct and

predictable effect requires a causal link between a decision on the matter and the

effect on the specified financial interest and cannot be attenuated or dependent on

the occurrence of speculative events. 5 C.F.R. §§ 2635.502(b)(2), 2635.402(b)(1).

Kadzik told the OIG that his son lived in New York City and supported himself

financially. Kadzik also provided a redacted copy of his 2015 federal tax returns on

which he did not declare his son as a dependent.

Even if the Clinton-related matters could affect his son’s financial interests,

RS was not a member of Kadzik’s household. Therefore, we found that RS’s efforts

to obtain employment with the Clinton campaign did not require Kadzik to recuse

himself from Clinton-related matters under the financial interest provision of

Section 502(a).

Under the “covered relationship” provision of Section 502(a), recusal would

be required if Kadzik had a covered relationship with a party or with someone who

represents a party to a matter. Section 502 defines “covered relationship” to

include a “person for whom the employee’s…dependent child is, to the employee’s

knowledge,…seeking to serve as an…contractor or employee.” This is the only

category of “covered relationship” potentially applicable with respect to Kadzik’s

262 Although Clinton was not a named party to the FOIA litigation, it is possible that she would

be considered a “party” within the meaning of Section 502 because the litigation centered around her

use of a private server and sought emails stored on it. OGE does not take a narrow or strictly legal

view of what it means to be a party under Section 502. OGE letter 01 x 8. As detailed below, we

were not required to reach this issue. The FOIA litigation indisputably had specific parties, even if

Clinton was not one of them.

477

son.263 If RS was a dependent child, Kadzik would have had a covered relationship

with a party to the particular matter since RS was seeking employment with the

Clinton campaign and Clinton was clearly a party to the Clinton email investigation

and may have been a party to the FOIA litigation. 5 C.F.R. § 2635.502(b)(1)(iii).

We did not find that RS was a “dependent child.” In April 2015, Kadzik’s son

was 24 years old.264 Kadzik said that his son was supporting himself financially

while living in New York City and that Kadzik only covered the cost of his son’s cell

phone. Kadzik also told the OIG that he did not declare his son as a dependent on

his 2015 tax returns and provided a redacted copy of his 2015 return to the OIG

confirming this fact. Thus we found no evidence of a covered relationship based on

Kadzik and his non-dependent son’s efforts to obtain employment for his son with

the Clinton campaign.265

The “other circumstances” provision in Section 502 applies when a federal

employee is concerned that “other circumstances” would cause a reasonable person

to question his impartiality. As with all Section 502 provisions, the conflict may be

self-identified by the employee or directed by management. OGE Memorandum 04

x 5.

Kadzik did not self-identify a potential appearance of a conflict under the

“other circumstances” provision based on his, his wife’s, and his son’s efforts to get

his son a job with the Clinton campaign. In April and May 2015, Kadzik, his wife,

and son reached out to personal acquaintances in the Clinton campaign in an

attempt to obtain a job for his son RS with the campaign. At the same time, Kadzik

was participating in senior staff meetings where Clinton-related matters were

discussed and signing letters to Congress regarding Clinton-related matters on

behalf of the Department.

We believe that these circumstances would cause a reasonable person to

question Kadzik’s impartiality in Clinton-related matters during the time RS was

seeking employment with the Clinton campaign. We therefore concluded that

under the “other circumstances” provision of Section 502(a)(2), Kadzik should have

either recused himself from Clinton-related matters beginning in April 2015, when

he initiated employment solicitations to the Clinton campaign, until RS was no

longer seeking employment with the campaign, or disclosed these circumstances to

the appropriate Department ethics officer so that the Department could have

considered whether Kadzik should be recused.

According to OGE, self-identification under the “other circumstances”

provision is permissive, but not required, and therefore the failure to recuse under

263 Although RS was a relative of Kadzik’s with whom he who presumably had a “close

personal relationship,” this fact did not create a “covered relationship” because RS was not a party to

the Clinton-related investigations, nor did he represent a party.

264 Kadzik wrote in the email to Fallon that his son was 25 years old; however, his son would

not turn 25 until later in the year.

265 Because RS was not a dependent child, and no other “covered relationship” appears to be

in issue, we were not required to determine whether Clinton was a “party” to the FOIA litigation

478

the provision is not an ethics violation. “Employees are encouraged to use the

process provided by [the “other circumstances” provision], [but] the ‘election not to

use that process cannot appropriately be considered to be an ethical lapse.’” OGE

letter 01 x 08 citing OGE letter 94 x 10(2); see also OGE 97 x 8, OGE 95 x 5; OGE

94 x 10. Instead, according to the former Departmental Ethics Director, the failure

to self-identify under the “other circumstances” is evidence of an employee’s

judgment and may reflect on whether the employee has the judgment necessary

for a particular Department position.

Although Kadzik did not commit an ethics violation by failing to recuse

himself under Section 502(a)(2), we found that his failure to recognize the

appearance of a conflict by participating in Clinton-related matters when he, his

wife, and his son were trying to get his son a job with the Clinton campaign

demonstrated poor judgment.

3. Whether Kadzik Should Have Recused from Clinton-

Related Matters in May 2015 by Reason of Sending the

“Heads Up” Email to Podesta

According to Kadzik, Axelrod told him he should recuse himself from Clintonrelated

matters “on or about” November 2, 2016, after learning that Kadzik had

sent the “Heads up” email to Podesta on May 19, 2015. Axelrod told us that the

“Heads up” email to Podesta raised appearance concerns because Kadzik

communicated with a partisan campaign about Department matters and provided

information without knowing whether it had yet been made public.266

As noted, Kadzik sent the “Heads up” email in May 2015. He continued to

participate in senior staff meetings, prepare Department employees for hearings,

and respond to inquiries about Clinton-related matters between May 19 and

November 2, when Axelrod instructed him to recuse himself. We therefore

analyzed whether Kadzik should have recused himself under Section 502 in May

2015 rather than waiting for Axelrod to do it a year and a half later.

We determined that the “Heads up” email did not require Kadzik to recuse

under the personal or financial interests provision of Section 502(a). Neither

sending the email nor any other aspect of Kadzik’s relationship with Podesta or the

266 We also note that long standing Department policies addressing employee participation in

political activity place greater restrictions on the political activities of presidential appointees than does

the Hatch Act. The Department’s stated purpose for further restricting the political activities of

political appointees is to ensure that “there is not an appearance that politics plays any part in the

Department’s day to day operations.” Among other things, Department policy prohibited Kadzik from

participating in political activity “in concert” with a political party, partisan group, or candidate for

partisan political office, even when off duty. We believe that it is a close question whether Kadzik

violated Department policy by acting “in concert” with the campaign when he sent Podesta the “Heads

up” email. Even if Kadzik did not violate the letter of the Department’s policy, he certainly intended to

provide assistance, however small, directly to Podesta, the campaign Chairman, which was

inconsistent with the stated intent of the policy. See James M. Cole, Deputy Attorney General, U.S.

Department of Justice, memorandum for All Department of Justice Non-Career Employees, July 14,

2014, https://www.justice.gov/sites/default/files/jmd/legacy/2014/03/24/pol-activ-dag-noncareer

479

Clinton campaign gave Kadzik or a member of his household a financial interest

that would be affected by the outcome of the Clinton-related investigations. We are

not aware of any evidence that Kadzik or any member of his household had any

business, contractual, or financial relationship of any kind with Podesta, Clinton, or

the Clinton campaign, or any other financial interest that would be affected by any

Clinton-related matters pending in the Department of Justice.

Nor did the facts create a “covered relationship” within the definition in

Section 502(b)(1). For example, Kadzik did not serve as, or seek to serve as, an

officer, director, trustee, general partner, agent, attorney, consultant, contractor, or

employee of Podesta, Clinton, or the Clinton campaign. See 5 C.F.R.

• 2635.502(b)(1).

We therefore turned to the question of whether Kadzik’s “Heads up” email to

the Clinton campaign was an “other circumstance” that would raise a question

about Kadzik’s impartiality with respect to Clinton-related matters within the

meaning of Section 502(a)(2). As noted above, according to OGE, selfidentification

under the “other circumstances” provision is permissive, but not

required. Therefore, the failure to recuse oneself under the provision may be bad

judgment, but not an ethics violation.

The “Heads up” email reflected an effort by Kadzik to be helpful to the

Clinton campaign. Kadzik sent government information (the proposed schedule for

the release of the Clinton emails in the FOIA litigation) to a partisan campaign

without knowing whether it had been made public. Kadzik’s May 2015 “Heads up”

email explicitly stated that he did not know whether the Department had yet filed

the proposed schedule in court. Similarly, according to Axelrod, Kadzik admitted in

November 2016 that he did not know whether the information had been released

publically when he sent the email to Podesta. Because Kadzik admittedly did not

know that the information had been released publically when he sent the “Heads

up” email to Podesta, Department leadership decided that Kadzik should be recused

from Clinton-related matters. As discussed below, Kadzik actually used information

he acquired in his official position with the intention to assist the campaign in a

manner that would have been a misuse of office but for a fact that Kadzik did not

definitely know — that the proposed schedule had already been made public.267

267 After reviewing a draft of this chapter, Kadzik’s attorney submitted a letter to the OIG

which, among other things, stated that “Mr. Kadzik learned the information he shared with Mr.

Podesta from the Politico article.” However, Kadzik’s attorney provided no evidentiary basis for the

statement, and it conflicts with the content of the May 19, 2015 “Heads up” email and is inconsistent

with Kadzik’s previous statements to the Department. The Politico article (that Kadzik provided to

OPR in response to the inquiry that arose because of his “Heads up” email) clearly states that the

proposed schedule was “filed in U.S. District Court in Washington” on “Monday night.” Yet Kadzik

wrote in his Tuesday morning email that he did not know if the document had yet been filed and

admitted the same to Axelrod in November 2016. In addition, in his December 2016 written response

to OPR’s inquiry, Kadzik wrote that he “did not recall” the source from which he learned the

information in his email and cited the Politico article only to establish that the information had been

made public when he sent it to Podesta.

480

Kadzik’s willingness to do that raised a reasonable question about whether he

would be willing or inclined to act partially toward the Clinton campaign in

connection with his official duties, which sometimes touched on Clinton-related

matters. At minimum, this created an appearance problem with respect to Kadzik’s

ability to act impartially that justified Axelrod in recusing him from further

participation in Clinton-related matters.

We believe that Kadzik used poor judgment not only in sending the email to

a partisan campaign without knowing whether its content was public, but also in

failing to recognize how his action would impact the Department and in failing

thereafter to recuse himself from Clinton-related matters pursuant to Section

502(a)(2).

1. Whether Kadzik Violated the Terms of his Recusal after

November 2, 2016

In this section, we discuss whether Kadzik violated the terms of his recusal

after Axelrod instructed him to recuse from Clinton-related matters on or about

November 2, 2016.

Shortly after his confirmation, Kadzik signed an ethics agreement with JMD

(for OGE’s approval) which identified the scope of his recusals and sent a 2014

memorandum to various leadership components and OLA identifying the specific

matters from which he would be recused. Kadzik’s memorandum stated that no

one should communicate with him about the matters from which he was recused.

Furthermore, Kadzik demonstrated his knowledge that a recusal included

communications when he received emails related to other recused matters and

replied notifying the sender that he was recused.

Communicating about a matter is considered participation and employees

should not communicate with others about matters from which they have been

recused.268 Occasionally, a recused employee may receive communications about

the matter in an email, telephone call, or meeting. On those occasions, recused

employees are trained to clearly identify their recusal to the sender of the email,

the caller, or meeting attendees (as the employee leaves the meeting room or the

discussion is tabled). While an inadvertent communication would not be considered

“participation” in violation of the recusal, repeated and unaddressed

communications may evidence a violation of the recusal or a lack of respect for

both the process and the Department that would represent poor judgment.

We found that Kadzik forwarded several emails communicating information

related to Clinton-related matters within the Department after his recusal and

indicated his intent to speak with staff about those matters. In each of those

268 We recognize that Kadzik did not have complete visibility into all Department matters

(particularly the closely-held Clinton email investigation). However, recusals not only serve to prevent

an employee from affecting a particular investigation or litigation, but also serve to prevent an

employee from receiving and misusing Department information. Once an employee is recused from a

matter, the employee must fully respect the recusal and cease all participation or seek a

determination by the agency designee under section 502(d).

481

instances his principal deputy also was copied on the incoming email and aware of

Kadzik’s recusal. In none of those instances did Kadzik either respond to the

incoming email informing the sender that he was recused from Clinton-related

matters or advise the recipients of his forwarded emails that he was recused from

Clinton-related matters. By contrast, when Kadzik received emails related to other

matters from which he was recused, he appropriately responded to the senders

alerting them to or reminding them of his recusal.

We therefore found that Kadzik understood his responsibilities when

contacted about matters from which he was recused, and that he exercised poor

judgment when he failed to fully respect his post-November 2 recusal. Kadzik

argued that his post-recusal participation was not substantial. However, even if

this was a mitigating factor, we could not substantiate his assertion because Kadzik

told us he was unable to recall details of his activities during this time. In addition,

as noted previously, his principal deputy and his ethics advisor (OLA DDAEO),

neither of whom still work for the Department, did not make themselves available

to speak with us.

Ultimately, once Department leadership made the decision that Kadzik should

be recused from Clinton-related matters, Kadzik was required to cease all

participation.

1. Whether Kadzik Improperly Used Non-Public information in

Violation of the Standards of Ethical Conduct

We next consider whether Kadzik violated Section 703 of the Standards of

Ethical Conduct, 5 C.F.R. § 2635.703, which states: “An employee shall not…allow

the improper use of nonpublic information to further his own private interest or that

of another, whether through advice or recommendation, or by knowing

unauthorized disclosure.”

In December 2016, OPR conducted an inquiry to consider whether Kadzik

disclosed privileged or confidential Department information to the Clinton campaign

and determined that Kadzik’s “Heads up” email contained public information and

personal opinion. Among other things, OPR found that on May 18, 2015, the

Department filed with the court the document containing the proposed schedule for

the release of the Clinton emails; the media reported the schedule the same

evening; and Kadzik sent his “Heads up” email to Podesta on May 19, 2015, the

following day. OPR concluded that Kadzik’s email did not include privileged or

confidential information.

Although OPR did not specifically address Kadzik’s compliance with Section

703, the fact that the information in Kadzik’s “Heads up” email did not include

nonpublic information also requires the finding that Kadzik did not violate Section 703.

482

1. Whether Kadzik Misused His Public Office for Private Gain in

Violation of the Standards of Ethical Conduct

We next consider whether Kadzik violated Section 702 of the Standards of

Ethical Conduct, 5 C.F.R. § 2635.702, which states: “An employee shall not use his

public office…for the private gain of friends, relatives, or persons with whom the

employee is affiliated in a nongovernmental capacity…”. According to commentary

to Section 702, “[i]ssues relating to an individual employee’s use of public office for

private gain tend to arise when the employee’s actions benefit those with whom the

employee has a relationship outside the office…”. 57 Fed. Reg. 35030 (Aug. 7,

1992).

We found that Kadzik learned of the proposed schedule for the release of the

Clinton server emails in his capacity as a Department employee. We also found

that Kadzik sent the information to a longtime personal friend and professional

colleague, Podesta, with whom Kadzik had a relationship outside the office.

Further, we found that Kadzik believed that the information would be of benefit to

the Clinton campaign.269 However, as discussed above, the information included in

the “Heads up” email was public at the time that Kadzik sent it. Therefore we did

not find that these facts amounted to a violation of Section 702.

269 In his email, Kadzik also said that the Civil Division Chief may be asked questions about

the Clinton emails in the congressional hearing scheduled that day. However, Kadzik’s opinion was

not based on nonpublic information, as notice of the hearing had been posted on the committee’s

website and congressional interest in the Clinton emails was public information. We note that the Civil

Division Chief was not asked questions about the Clinton email server during the hearing.

483