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 SEVEN:

THE DEPARTMENT’S DECISION NOT TO PROSECUTE

After former Director Comey’s statement on July 5, 2016, the Midyear prosecutors finalized their analysis and conclusions under the relevant statutes, recommending that prosecution of former Secretary Clinton and others be declined. They then provided their conclusions to NSD supervisors.

On the afternoon of July 6, 2016, former AG Lynch held a briefing attended by Comey, McCabe, and other senior Department and FBI officials. The Midyear prosecutors briefed Lynch on the relevant evidence, the applicable statutes, and the basis for their recommendations. Following the briefing, the Department issued a brief statement announcing that Lynch had accepted the recommendation of the career prosecutors and agents who worked on the Midyear investigation.

In this chapter we discuss the prosecutors’ conclusions and the July 6 briefing, focusing on issues that have been subject to public criticism. Consistent with the role of the OIG and our statement that we will not substitute the OIG’s judgment for the judgments made by the Department or the FBI regarding the substantive merits of investigative or prosecutive decisions, we reviewed whether there was evidence that the Department’s decision to decline prosecution was based on improper considerations or bias. As with our review of investigative decisions, our role was not to determine whether a prosecution should or should not have been brought but rather whether the Department’s explanations for its declination decision were not unreasonable and whether there was evidence that the justifications offered for the decision were a pretext for improper, but unstated, considerations.

1. The Declination Recommendation

As described above, prosecutors and NSD supervisors began to realize that the investigation could lead to a declination in early 2016. As the investigation continued into the Spring of 2016, the prosecutors began to consider how to summarize the investigation and memorialize their legal conclusions to provide to their supervisors and to Department leadership. The prosecutors told the OIG that they wanted to wait until the end of the investigation before making a charging recommendation.

The prosecutors planned to complete their legal analysis after former Secretary Clinton was interviewed on July 2, 2016. Following Comey’s announcement on July 5, 2016, they realized they had a much shorter time period to do so and worked until almost midnight on July 5 to finish their legal analysis. They completed this process the following afternoon and provided their analysis and conclusions to Toscas.

The prosecutors’ legal analysis referenced an FBI letterhead memorandum (LHM) summarizing the Midyear investigation.159 In their analysis, the Midyear prosecutors categorized the witnesses that had been interviewed in the investigation into four categories:

• Originators of classified information (i.e., individuals who introduced classified information into unclassified emails, including State Department Bureau of Public Affairs employees, an individual who regularly interfaced with State Department employees, State Department Operations Center employees, and other State Department employees responsible for conveying information to their superiors);
• U.S. government employees who had involvement with a specific Top

Secret//Special Access Program (“TS//SAP”);

• Senior aides to former Secretary Clinton, including Huma Abedin, Cheryl Mills, and Jake Sullivan; and
• Former Secretary Clinton herself.

The prosecutors referred to the first three categories of witnesses—the Originators, the officials involved with the TS//SAP, and former Secretary Clinton’s senior aides—collectively as the “senders.”

The prosecutors analyzed the conduct of former Secretary Clinton and the

“senders” under five statutes:

• 18 U.S.C. §§ 793(d) and 793(e) (willful mishandling of documents or information relating to the national defense);
• 18 U.S.C. § 793(f) (removal, loss, theft, abstraction, or destruction of documents or information relating to the national defense through gross negligence, or failure to report such removal, loss, theft, abstraction, or destruction);
• 18 U.S.C. § 1924 (unauthorized removal and retention of classified documents or material by government employees); and
• 18 U.S.C. § 2071 (concealment, removal, or mutilation of government records).

The requirements of these statutes are described in more detail in Chapter Three.

As summarized below, the Midyear prosecutors concluded that there was not a basis to prosecute former Secretary Clinton, her senior aides, or others under any of these statutes. The prosecutors cited the following factual conclusions from the investigation as critical to its recommendation not to prosecute:

159 A redacted version of the LHM is publicly available on the FBI’s website. See FBI Records: The Vault, Hillary R. Clinton, Part 1, https://vault.fbi.gov/hillary-r.-clinton (accessed March 6, 2018).

• None of the emails contained clear classification markings as required under Executive Order 13526 and its predecessor. Only three email chains contained any classification markings of any kind. These email chains had one or two paragraphs that were marked “(C)” for “Confidential” but contained none of the other required markings, such as classification headers.
• There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information. In the absence of clear classification markings, the prosecutors determined that it would be difficult to dispute the sincerity of these witnesses’ stated beliefs that the material was not classified.
• The senders and former Secretary Clinton relied on the judgment of employees experienced in protecting sensitive information to properly handle classified information.
• The emails in question were sent to other government officials in furtherance of the senders’ official duties. There was no evidence that the senders or former Secretary Clinton intended that classified information be sent to unauthorized recipients, or that they intentionally sought to store classified information on unauthorized systems.
• There was no evidence that former Secretary Clinton had any contemporaneous concerns about the classified status of the information that was conveyed on her unclassified systems, nor any evidence that any individual ever contemporaneously conveyed such concerns to her.
• Although some witnesses expressed concern or surprise when they saw some of the classified content in unclassified emails, the prosecutors concluded that the investigation did not reveal evidence that any U.S. government employees involved in the SAP willfully communicated the information to a person not entitled to receive it, or willfully retained the same.
• The senders used unclassified emails because of “operational tempo,” that is, the need to get information quickly to senior State Department officials at times when the recipients lacked access to classified systems. To accomplish this, senders often refrained from using specific classified facts or terms in emails and worded emails carefully in an attempt to avoid transmitting classified information.
• There was no evidence that Clinton set up her servers or private email account with the intent of communicating or retaining classified information, or that she had knowledge that classified information would be communicated or retained on it.

In addition to these facts as described by the prosecutors, various witnesses told us that one reason it was difficult to establish intent was that the mishandling of classified information was a persistent practice at the State Department. These practices made it difficult for the Midyear team to conclude that particular individuals had the necessary criminal intent to mishandle classified materials. According to Prosecutor 4, “[T]he problem was the State Department was so screwed up in the way they treated classified information that if you wanted to prosecute Hillary Clinton, you would have had to prosecute 150 State Department

people.”

Based on facts evincing a lack of intent to communicate classified information on unclassified systems, the prosecutors concluded that there was no basis to recommend prosecution of former Secretary Clinton or the senders of classified information under Sections 793(d) or (e).

In addition, as described in Chapter Two, prosecutors reviewed the legislative history of the gross negligence provision in Section 793(f)(1) and court decisions impacting the interpretation of it. The prosecutors noted that the congressional debate at the time the predecessor to Section 793(f)(1) was passed indicated that conduct charged under the provision must be “so gross as to almost suggest deliberate intention,” criminally reckless, or “something that falls just a little short of being willful.” The prosecutors also reviewed military and federal court cases and previous prosecutions under Section 793(f)(1), and concluded that they involved either a defendant who knowingly removed classified information from a secure facility, or inadvertently removed classified information from a secure facility and, upon learning this, failed to report its “loss, theft, abstraction, or destruction.” In addition, based on a review of constitutional vagueness challenges of Sections 793(d) and (e), the Midyear prosecutors observed that “the government would very likely face a colorable constitutional challenge to the statute if it prosecuted an individual for gross negligence who was both unaware he had removed classified information at the time of the removal and never became aware he had done so.”

The prosecutors concluded that based on case law and the Department’s prior interpretation of the statute, charging a violation of Section 793(f) likely required evidence that the individuals who sent emails containing classified information “knowingly” included the classified information or transferred classified information onto unclassified systems (Section 793(f)(1)), or learned that classified information had been transferred to unclassified systems and failed to report it (Section 793(f)(2)).

Applying this interpretation, the prosecutors concluded that there was no evidence that the senders of emails knew that classified information had been improperly transferred to an unclassified system, or that former Secretary Clinton acted in a grossly negligent manner with respect to receiving emails determined to contain classified information. According to information reviewed by the OIG, the prosecutors also considered whether the decision to conduct official business using a personal server could itself constitute gross negligence, but concluded that there was no evidence that former Secretary Clinton ever considered the possibility that classified information would be present in unclassified emails or on her private email server.

Distinguishing military prosecutions for “grossly negligent” mishandling, the prosecutors also noted that there was no evidence that classified emails were provided to or discovered by people who were unauthorized to receive them. The prosecutors stated, “[A]ll of the emails containing information subsequently determined to be classified were sent for work purposes and were delivered to State Department or other U.S. government officials.”

Regarding Section 1924, the prosecutors stated that the statute requires proof that an individual knew of the removal of classified information and intended to retain that information in an unauthorized location, and that such proof was lacking. The prosecutors cited the absence of classification markings on the emails sent by the senders, with the exception of the three emails forwarded to Clinton containing paragraph markings denoting Confidential information, as well as the lack of evidence that the senders knowingly took classified information and sent it in unmarked emails over unclassified systems. The prosecutors similarly concluded that former Secretary Clinton did not recognize or have reason to believe that the information sent to her contained classified information. Prosecutors cited Clinton’s reliance on the judgment of senior aides and other State Department staff, their attempts to talk around sensitive information in unclassified emails, and her testimony that she did not have reason to question their use of unclassified systems to send that information. The prosecutors concluded that the evidence was insufficient to charge former Secretary Clinton under Section 1924.

The prosecutors also concluded that there was insufficient evidence to support prosecution under 18 U.S.C. § 2071, which prohibits the willful concealment, removal, or destruction of federal records. They concluded that there was insufficient evidence to establish beyond a reasonable doubt that former Secretary Clinton or her senior aides intended to conceal records, citing testimony that these witnesses expected that any emails sent to a state.gov address would be preserved. The prosecutors acknowledged that this testimony was undercut by former Secretary Clinton’s admission that she sometimes communicated with her senior aides using their personal email accounts, as well as an email she received from former Secretary of State Colin Powell at the beginning of her tenure outlining his use of personal email. However, the prosecutors noted that Section 2071 had “never been used to prosecute individuals for attempting to avoid Federal Records Act requirements by failing to ensure that government records are filed appropriately.”

Finally, the prosecutors evaluated whether Mills and Samuelson intentionally deleted emails during the culling process used to separate former Secretary Clinton’s “personal” and “work-related” emails for production to the State Department. They concluded that there was no evidence that emails intentionally were deleted by former Secretary Clinton’s lawyers to conceal the presence of classified information on former Secretary Clinton’s server, particularly because some of the emails produced as “work-related” later were determined to contain highly classified, compartmented information.

1. The Attorney General Briefing

A briefing for Lynch and Yates on the prosecutors’ recommendation was held in the Attorney General’s Conference Room at 4 p.m. on July 6, 2016. According to the prosecutors, they learned about the briefing after they completed their legal analysis, and had only a short time to prepare. Prosecutors 1 and 2 said they quickly divided the topics and prepared bullet points for the presentation based on their legal analysis.

Attending the briefing were Lynch, Yates, Axelrod, and David Margolis, at the time the most senior career official in ODAG, as well as several OAG and ODAG staff members. Toscas and Laufman were present from NSD, while Carlin participated by phone. Present from the FBI were Comey, McCabe, Rybicki, Baker, FBI Attorney 1, and Strzok. All four prosecutors attended the briefing.

Toscas told the OIG that he gave a brief introduction at the meeting. Toscas prepared handwritten talking points that he used as a guide for his comments at the meeting, but he said that these did not end up being his “precise script.” Toscas said that he “frontloaded” his comments with an acknowledgement that Lynch had stated publicly that she planned to accept the recommendation of the career staff, and that the prosecutors and the FBI were in agreement that no charges should be filed. According to Toscas’s handwritten talking points, he stated, “[A]t the conclusion of the meeting you will have the unanimous recommendation of the FBI [and] DOJ team that this investigation should be closed [and] that charges should not be brought against anybody within the scope of the investigation in this matter.”

The notes indicate that Toscas then praised the team and handed the briefing over to Laufman to introduce the prosecutors. Following their introduction, Prosecutors 1 and 2 walked through the various legal statutes and the facts developed in the investigation. Prosecutor 2 handled sections 793(d) and (e), while Prosecutor 1 handled discussion of the other statutes, including the gross negligence provision.

Lynch described the briefing as “very, very thorough.” She said that it lasted about an hour-and-a-half, and included a “very specific, very dense” briefing of the case. Lynch told the OIG that the prosecutors showed her various documents, including some of the emails that were determined to contain classified information. She said that she asked questions about access to the classified emails and who saw them, as well as numerous questions that related to the issue of intent. Lynch described the prosecutors as “very responsive” to her questions.

Lynch told the OIG that the meeting included a briefing on key interviews, including the interview of former Secretary Clinton. Lynch said that the prosecutors provided a synopsis of her interview, her reaction when shown documents, and their opinions about what she said. Lynch said that she asked whether any of the witnesses, including former Secretary Clinton, had engaged in obstruction of justice, committed perjury, or made false statements, and she was told that they had not.

Prosecutor 1 told the OIG that the discussion with Lynch about Secretary Clinton’s interview included whether Clinton was credible when she testified that (C) paragraph markings in an email could mean subparagraphs (A), (B), and (C), rather than that the paragraph contained information classified at the “Confidential” level. Prosecutor 1 stated that he told Lynch that Clinton’s testimony “strained credulity a little bit because, well, if anyone knows Confidential, the State Department is the entity that uses Confidential information a lot.” He said that they discussed with Lynch that their reaction to this explanation was skeptical, but that they also did not know what “people at the very highest levels” understood about classification markings.

Prosecutor 4 said that he recalled Yates also asking whether former Secretary Clinton was truthful in her interview, and that they all responded that she was. He said that this answer caused him some “consternation” but that he did not disagree.160 Asked to explain this statement, Prosecutor 4 told the OIG that he did not think that former Secretary Clinton lied in a provable way, but that her responses to questions about paragraph markings for information designated as

“Confidential” and her statement that the private server was set up for convenience were questionable. Prosecutor 4 stated, “My view was and still remains that the private email server was set up to avoid FOIA…. [I]f you look at Colin Powell’s email, he pretty much was trying to avoid FOIA too.”

Various witnesses told the OIG that the briefing included legal discussion of the gross negligence provision, and that prosecutors fielded questions from Comey and Baker about the provision. Prosecutor 2 stated:

I think their attorneys hadn’t really gotten him up to speed on the prior use of 793(f), and how it hadn’t been used, and the Department’s views on the statute. So I think it was kind of an opportunity for him and his team to figure out how Comey was going to explain the decision [to Congress] under 793(f). And following the briefing, questions from his team came our way, specifically about 793(f).

Prosecutor 1 similarly told the OIG that Comey was “very interested” in section 793(f), and that “a lot of notebooks came out from the Bureau” when Prosecutor 1

160 On July 8, 2016, following Comey’s congressional testimony about the Midyear

investigation described in Chapter Six, Prosecutor 3 emailed Strzok and Prosecutors 1, 2, and 4 and stated the following:

[O]ne thing that was apparent just from the highlights of the Committee hearings that

I saw last night was the fact that the Director’s statements about the number and

levels of classified doc[ument]s found are being used by the Hill and others to claim that [Clinton] was lying when she has said in the past that she never sent or received classified info[rmation]. What undercuts the ability to prove intent in support of a false statement charge is that when [Clinton] made these statements she didn’t have the benefit of later findings by those who did the classification reviews and of course

there weren’t the classification markings on the emails to put her on notice, and give

us the ability to prove, that she was lying. This never seemed to get discussed or emphasized in the clips I saw last night.

began to talk about the provision. Prosecutor 1 stated that his briefing about section 793(f) included “[w]hat kind of factors we considered…, what gross negligence meant in the criminal context, what it meant in the statute, [and] how it had been applied in the [Uniform Code of Military Justice].”

Witnesses told the OIG that they did not discuss Comey’s statement at the briefing. However, Yates said that she recalled thinking that “you’d kind of wonder if it’s the same case” when she heard the facts as laid out by the prosecutors at the briefing and compared them to Comey’s statement. She said that she recalled discussing with Axelrod, Lynch, and Carlin after the briefing whether the briefing impacted what Comey’s thinking was about the case and how those facts were cast in his statement.

Witnesses said that at the end of the discussion, Lynch went around the room and asked for people’s opinions to see if anyone objected to declining prosecution. According to several witnesses, Margolis responded that he did not see a prosecutable case, and that if the Department prosecuted former Secretary Clinton, it would be because she was a high-profile public official. Toscas, Baker, and Comey said that Margolis described this as “celebrity hunting.” Lynch said that she recalled that Margolis then said, “[W]e at the Department don’t do that…. We will bring cases when they should be brought. We don’t when they shouldn’t be brought.”

Lynch told the OIG that after everyone had the opportunity to provide his or her opinion, she expressed her appreciation to the team and asked Comey and Strzok to convey her appreciation to the agents who had worked on the case. She said that she then told the group that she accepted the recommendation to decline prosecution, and that the Department would issue a statement reflecting the decision shortly. Lynch said that about half of the group stayed behind to talk about how to announce the declination, and that Toscas drafted a short statement. That afternoon, the Department released the following statement:

Late this afternoon, I met with the FBI Director James Comey and career prosecutors and agents who conducted the investigation of Secretary Hillary Clinton’s use of a personal email system during her time as Secretary of State. I received and accepted their unanimous recommendation that the thorough, year-long investigation be closed and that no charges be brought against any individuals within the scope of the investigation.

III. Analysis

We analyzed the Department’s decision to decline to prosecute former Secretary Clinton or anyone else according to the same analytical standard that we applied to other decisions made during the investigation. We sought to determine whether the declination decision was based on improper considerations, including political bias. We both looked for direct evidence of improper considerations and analyzed the justifications offered for the decision to determine whether they were a pretext for improper, but unstated, considerations. We did not substitute the OIG’s judgment for the judgments made by the Department.

We found that the prosecutors’ decision was based on their assessment of the facts, the law, and past Department practice in cases involving these statutes. We did not identify evidence of bias or improper considerations. Our analysis focuses substantially on 18 U.S.C. § 793(f)(1), the “gross negligence” statute that has been the focus of much criticism of the Department’s decision. However, we first address the declination decision with respect to the other statutes that the Department considered.

We begin with 18 U.S.C. §§ 793(d) and (e), which prohibit the “willful” mishandling or retention of classified information. As detailed in Chapter Two, Courts have interpreted “willfully” to mean an act done “intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law.” All of the prosecutors and agents we asked told us that they could not prove that Clinton had actual knowledge that the emails in question were classified or that Clinton used private servers and a private email account with the purpose or intent of receiving classified information on them. None of the emails Clinton received were properly marked to inform her of the classified status of the information.161 Additionally, investigators found evidence of a conscious effort to avoid sending classified information by writing around the most sensitive material. The investigators did not find any emails in which the sender communicated information to someone not authorized to receive it. In brief, we found no evidence that the decision not to prosecute Clinton under these statutory provisions was tainted by bias or other improper considerations.

We reached a similar conclusion with respect to 18 U.S.C. § 1924, which, as described in Chapter Two, prohibits the “knowing” removal of classified information with “intent to retain” it in an unauthorized location. In determining that a Section 1924 prosecution was not viable, the prosecutors pointed to the same absence of evidence that Clinton had actual knowledge that any of the emails were classified or that she used private servers and a private email account with the purpose or intent of receiving classified information on them. The prosecutors distinguished the Petraeus case brought under this section (discussed in Chapter Two) on the basis that this case involved clear evidence that the defendant knew the information at issue was classified and took actions reflecting knowledge that his handling or storage of it was improper. This was precisely the evidence that the investigators told us was conspicuously absent in the Midyear case. We found no basis to conclude that the decision not to pursue a Section 1924 case was tainted by bias or other improper considerations.

The Department also determined that prosecution under 18 U.S.C. § 2071 was not viable. Section 2071 prohibits the concealment, removal, or destruction of a record filed in a public office. The prosecutors concluded that, as to emails on the

161 As noted above, even the handful of emails in which some paragraphs were marked “(C)” did not bear the required classification headers or footers, and Clinton testified that she did not recognize these paragraph markings as denoting classified information.

Clinton servers that were sent to or from government email accounts, because they also existed on government systems there was no evidence that Clinton or anyone else took any actions to conceal, remove, or destroy them from the government systems on which they resided. As to the work-related emails that were not sent to or from any government system, the prosecutors concluded that such emails were never “filed within a public office.” The prosecutors also noted that every prosecution under Section 2071 involved the removal or destruction of documents that had already been filed or deposited in a public office. Additionally, the

prosecutors found no evidence that the laptop “culling” process involved the

intentional destruction of government records in an effort to conceal them in violation of Section 2071. We did not identify any evidence to suggest that these determinations were based on bias or other improper considerations.

The statute that required the most complex analysis by the prosecutors was 18 U.S.C. § 793(f)(1), which criminalizes the removal, delivery, loss, theft, abstraction, or destruction of national defense information through “gross negligence.” Due in part to Comey’s July 5 statement criticizing Clinton for being “extremely careless,” which many observers equated with being “grossly negligent,” this provision became the focus of much of the questioning of the declination decision. As detailed above, the prosecutors identified statements in the legislative history of Section 793(f)(1) that they found indicated that the state of mind required for a violation of that section is “so gross as to almost suggest deliberate intention,” criminally reckless, or “something that falls just short of being willful.” In addition, based on a review of constitutional vagueness challenges of Sections 793(d) and (e), the Midyear prosecutors stated that “the government would very likely face a colorable constitutional challenge to the statute if it prosecuted an individual for gross negligence who was both unaware he had removed classified information at the time of the removal and never became aware he had done so.” Based on all of these circumstances, and a review of the small number of prior civilian and military cases under Section 793(f), the prosecutors interpreted the “gross negligence” provision of Section 793(f)(1) to require proof that an individual acted with knowledge that the information in question was classified. The investigators and prosecutors told us that proof of such knowledge was lacking.

We found that the prosecutors’ interpretation of the requirements of Section 793(f)(1) was consistent with prior Department declination decisions that the prosecutors considered and that we reviewed. As noted in Chapter Two, in 2008 the Department declined to prosecute former Attorney General Gonzales based on an interpretation that would have required them to prove that his state of mind was “criminally reckless,” or that he had “a state of mind approaching ‘deliberate intention’ to remove classified documents from a secure location.” The same year, the Department declined prosecution of an AUSA for mishandling classified information because of its inability to prove that he was “criminally reckless.” Prosecutors told the OIG that they reviewed these declination decisions to see how the Department had construed Section 793(f)(1) in the past. These prior cases demonstrate that the interpretation of the gross negligence requirement of Section 793(f)(1) used as a basis to decline prosecution of former Secretary Clinton was consistent with interpretations applied in prior cases under different leadership.

We found no evidence that the conclusions by Department prosecutors were affected by bias or other improper considerations; rather, we concluded that they were based on the prosecutors’ assessment of the facts, the law, and past Department practice. In reaching this conclusion, we recognize that much of the questioning of the Department’s prosecutorial decision in this case has focused on whether the Department too narrowly interpreted the “gross negligence” provision of Section 793(f)(1) and should have pursued a prosecution because the FBI found Clinton to be “extremely careless.” That, however, is a legal and policy judgment involving core prosecutorial discretion for the Department to make.