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 SIX:

“ENDGAME” DISCUSSIONS AND FORMER DIRECTOR

COMEY’S PUBLIC STATEMENT

Our review found that the Midyear team concluded beginning in early 2016 that evidence supporting a prosecution of former Secretary Clinton or her senior aides was likely lacking. This conclusion was based on the fact that the Midyear team had not found evidence that former Secretary Clinton or her senior aides knowingly transmitted classified information on unclassified systems because (1) classified information exchanged in unclassified emails was not clearly or properly marked, and (2) State Department staff introducing classified information into emails made an effort to “talk around” it. Although the Midyear team continued its investigation, taking the investigative steps described in Chapter Five and looking for evidence that could change their assessment, they also began discussing what witnesses referred to as the “endgame” for the investigation—ways for the Department and FBI to credibly announce the closing of the investigation.

In this chapter, we discuss the factors that led the Midyear team to conclude that the investigation likely would result in a declination. We then describe the discussions among Comey, Rybicki, Yates, and Axelrod beginning in April 2016 about how to announce the closing of the Midyear investigation, including Comey’s mention of a special counsel and Lynch’s knowledge of these discussions. We also describe the origins of Comey’s decision to hold a press conference without coordinating with or informing the Department in advance, the various drafts of his public statement, and the Department’s reactions to the statement after he delivered it on July 5, 2016. In addition, we describe the tarmac meeting between Lynch and former President Bill Clinton on June 27, 2016, and its impact on the Midyear investigation. Finally, we describe Comey’s congressional testimony about the reasons for his public statement.

1. Evidence that the Case Was Headed toward a Declination

As described above, both Department and FBI witnesses said that the central question in the Midyear investigation was whether there was evidence that former Secretary Clinton and her aides acted with knowledge that the information transmitted was classified or transmitted with criminal intent. Various witnesses told the OIG that the investigation focused on identifying what classified information transited former Secretary Clinton’s server, who introduced it, and why. The investigative team looked for evidence that individuals who sent emails containing classified information did so with knowledge that the information was classified—for example, took information from documents that were marked with classification headers and stripped off the header information—or that former Secretary Clinton’s private server was set up to circumvent classification requirements.

From early in the investigation, the investigative team said they knew that proving intent would be a challenge.124 Prosecutor 1 told the OIG:

[T]his whole case turned on mens rea [guilty state of mind]…. I’ve run a lot of mishandling cases. The issue is usually that people are taking things home or they’re communicating them to someone for, to set up a business outside or to do something that’s like, what we don’t tend to prosecute criminally anyway are people who are communicating things for work purposes…. Usually to people who are already cleared. So, those are the kinds of things that when we’re talking about mens rea, were sort of instructive for us….

This prosecutor explained that Secretary Clinton and her staff did not display any of the counterintelligence indicators that prosecutors typically see in mishandling

cases, such as unreported foreign contacts or “weird” meetings with foreigners.

This prosecutor said that evidence of intent was lacking for other reasons as well, including that numerous witnesses testified that the State Department had terrible information technology (IT) systems and that its remote email system did not work when employees were traveling and sending emails in different time zones. As a result, the investigative team said they could not infer bad intent from the use of personal email accounts as they might in other cases.

Prosecutor 2 similarly stated that mishandling cases generally involve

“people who have an intent to give classified information to others, people who

have an intent to…take documents home and…do nefarious things with them, or sometimes hoarders of classified information.” This prosecutor told the OIG that, unlike the typical mishandling case, the State Department employees who introduced classified information into the unclassified system were trying to “talk around” it in the course of doing their jobs. This prosecutor stated, “And looking in terms of some of the times when the classified information appeared on [un]classified systems in this case, we see, we see problems, you know, late at night, weekends, the time between Christmas and New Year’s when no one is in the office.”

FBI officials agreed with the prosecutors that the need to prove intent was problematic from the outset. In his recent book, Comey stated:

…Hillary Clinton’s case, at least as far as we knew at the start, did not appear to come anywhere near General Petraeus’s in the volume and classification level of the information mishandled. Although she seemed to be using an unclassified system for some classified topics,

124 The legal framework for the Midyear investigation and the basis for the decision not to recommend or pursue prosecution of former Secretary Clinton or her staff are described in Chapters Two and Seven, respectively. Even though Section 793(f)(1) does not require intent, prosecutors told us that the Department has interpreted the provision to require that the person accused of having removed or delivered classified information in violation of this provision possess knowledge that the information is classified. In addition, based on the legislative history of Section 793(f)(1), the

prosecutors determined that conduct must be “so gross as to almost suggest deliberate intention,” be “criminally reckless,” or fall “just a little short of willful” to meet the “gross negligence” standard.

everyone she emailed appeared to have both the appropriate clearance and a legitimate need to know the information. So although we were not going to prejudge the result, we started the Clinton investigation aware that it was unlikely to be a case that career prosecutors at the Department of Justice would prosecute. That might change, of course, if we could find a smoking-gun email where someone in government told Secretary Clinton not to do what she was doing, or if we could prove she obstructed justice, or if she, like Petraeus, lied to us in an interview. It would all turn on what we could prove beyond a reasonable doubt[.]125

As described in more detail below, Comey said that by early May 2016, when he wrote the first draft of his public statement, the Midyear team was aware that evidence of intent was lacking.

Others on the Midyear team agreed. FBI Attorney 1 stated, “I have cases where there [are] people with thousands of classified documents in their home and we don’t prosecute them…. [T]his is not something we prosecute lightly or we do regularly. There needs to be, usually, some either nefarious intent or some…actual harm that has happened because of it.” Agent 2 told the OIG:

[F]rom like my level looking at it…you were hard-pressed to find the intent of anyone to put classified information on that server. And again, sloppy security practices, for sure. Right? But, and, and preventable? Yes. But somebody intentionally putting classified on it, we just never found clear-cut evidence of somebody intending to do that.

As early as September 2015, FBI and Department officials realized that they were unlikely to find evidence of intent. Prosecutor 2 stated that within a month of first obtaining criminal process, they had seen no evidence of intent. This prosecutor told the OIG that the team realized that the case likely would lead to a declination after they had reviewed the classified information in former Secretary Clinton’s emails and heard the explanations for including that information in unclassified emails. Prosecutor 2 said that there were a number of other investigative steps they needed to take to complete their due diligence, but that by September 2015 they knew that they would need a “game changer” to be able to prove intent.

Notes obtained by the OIG from a meeting between Toscas and then EAD John Giacalone on December 4, 2015, confirm that the lack of intent was the subject of ongoing discussions. According to the notes, Giacalone asked the team, “Still [do not] have much on the intent side, right?” The notes show that the team members present at the meeting agreed with him. Giacalone, who retired from the FBI in February 2016, said that there were “no smoking guns” showing intent when he left.

125 COMEY, supra, at 164-65.

Similarly, other notes show that prosecutors met with NSD supervisors on January 29, 2016, to discuss the lack of evidence supporting prosecution. The notes state:

Don’t see prosecutable case at this point.

A lot of stuff done from Ops Center [lower level State Department

staff] —> up. HRC is receiving.

Want to insulate DOJ from criticism about how we did this work.

No daylight [between] FBI management and investigative team agents

re: view of criminal liability.

Asked what led the team to conclude by January 2016 that there would not be a prosecutable case, Laufman said that there was not a fixed point in time or organized discussion that produced this realization. He said that every time the team concluded “another consequential investigative step, and no additional information emerged that…pointed in the direction of potential criminal liability, then the…foundation of facts emerged that was not likely to support a recommendation to charge.”

Asked whether there was a particular piece of evidence or an interview that led to the realization that the case would result in a declination, Prosecutor 3 stated that it became apparent once the team had interviewed all of former Secretary Clinton’s senior staff members, including Jake Sullivan and Cheryl Mills, and heard the same explanation for what they believed to be an innocuous transmission of emails containing classified information. Other witnesses described the team’s realization that the investigation would not result in a prosecutable case as “iterative” or “emerging over time” based on the cumulative lack of intent evidence over the course of the entire investigation. In any event, various witnesses agreed that the team had come to the conclusion that there likely was not a prosecutable case by the Spring of 2016.

Baker told the OIG that he thought that the conduct of former Secretary

Clinton and her senior aides was “appalling with respect to how they handled the

classified information…[and] arrogant in terms of their knowledge and understanding of these matters.” He stated that he was concerned about former Secretary Clinton’s level of knowledge and intent, and thought that she should have recognized the sensitivity of information in the emails sent to her. Baker said that he “debated and argued” with Comey and the Midyear team about former Secretary Clinton’s criminal liability, but ultimately came to the conclusion that declining prosecution was the correct decision after reviewing a binder of her emails. Baker said that he recognized there was a lack of evidence establishing knowledge or criminal intent, and that based on “the volume of…communications coming at [Clinton] at all times, day and night, given the heavy responsibilities that a Secretary of State has, isn’t she entitled to rely on [the classification determinations by] her folks?” Baker stated that he “did not like it…. I eventually agreed with it, but I did not like it.”

Yates told the OIG that she had been getting updates regularly from Carlin and Toscas about where the investigation was going. In Spring 2016, Carlin or Toscas told her that if the investigation continued in the same direction it was going, they expected that the prosecutors and the agents would be recommending a declination. Yates told us that this assessment of the case was based on evidence indicating that the people transmitting classified information did not have a “bad purpose.” She pointed to a variety of factors, including that emails were sent by State Department employees to other State Department employees, and usually contained time-sensitive logistical information that former Secretary Clinton needed to receive. She said that the information was not marked classified, with

the exception of three paragraphs that were portion marked as “Confidential,” and

that there were even disputes within the originating agencies as to whether the information should be classified at all.

Yates said that Department leadership began talking internally in the Spring of 2016 about how to convey a declination decision because they knew that it would be controversial, and that they were all of the view that it needed to be clear that the decision was supported by both the FBI and the Department. Yates said

that these discussions always proceeded with the “great big caveat” that former

Secretary Clinton could lie during her interview, but that they could not wait until after the interview to begin preparing for a declination due, in part, to the proximity of the election. Discussions between the FBI and the Department about the “endgame” for concluding the Midyear investigation began around this same time, and are described in more detail below.

1. Discussions between FBI and Department Leadership about How to Credibly Announce a Declination (Spring 2016)

As noted above, Comey said that the Midyear team was aware from the outset that the investigation was unlikely to result in a prosecutable case, absent a “smoking-gun” email. Comey told the OIG that he realized sometime in March or April 2016 that the evidence obtained in the Midyear investigation likely would not support a prosecution. Asked what led him to that conclusion at that time, Comey stated:

[T]he picture that was fairly clear at that point, [was] that Hillary Clinton had used a private email…to conduct her State Department business. And in the course of conduct [of] her State Department business, she discussed classified topics on eight occasions TS, dozens of occasions SECRET, and there was no indication that we had found that she knew that was improper, unlawful, that someone had said don’t do that, that will violate 18 U.S.C. [the federal criminal code], but that there was no evidence of intent and it’s looking, despite the fact of the prominence of it, like an unusual, but in a way fairly typical spill and that there was no fricking way that the Department of Justice in a million years was going to prosecute that.

And because Counterintelligence Division of the FBI was involved in all the other spill cases and it collected for me the history of them, no way, there’s no way, unless we find something else in May and June or we get [18 U.S.C. §] 1001 [false statements] handed to us during her interview.

Comey said that, as he came to this realization, he became concerned that the Department would be unable to announce the closing of the investigation in a way that the public would find credible and objective. Comey said he was concerned that having the Department’s political leadership announce a declination would expose it to a “corrosive doubt about whether you did [the investigation] in a credible way.” He said that this concern “dominated [his] thinking…for most of 2016, but especially from the spring on.” According to Comey, his concern was based on the appearance or perception created by the Department’s leadership declining prosecution of the presumptive Democratic nominee, because they were political appointees; it was not based on evidence that Lynch or Yates were interfering in the investigation or were politically biased.

1. Initial Discussion between Comey and Yates in April 2016
2. Options Discussed at the Meeting

Comey said that beginning in March or April 2016, he began to think of ways to announce a declination. Comey said that during this time he had a meeting with Rybicki, Yates, and Axelrod to discuss how the FBI and Department could credibly close the investigation. Based on Yates’s description of the circumstances of the meeting (described below) and FBI emails, we determined that this meeting likely took place on Tuesday, April 12, 2016.

According to Comey, he told Yates and Axelrod during the meeting that they needed to begin thinking about the how to announce the end of the investigation. Comey said that he told Yates, “[M]y sense of this, and I’m not done, but my sense of this is this is heading for a declination and how do you credibly decline this? And what can you say to people to support the credibility of the work that’s been done?”

Comey said that he urged Yates and Axelrod to consider the most transparent options available for announcing a declination. Comey told the OIG:

[M]y view was, still is, that the more information you are able to supply, the higher the credibility of the investigation and the conclusion. And that especially in a poisonous political atmosphere, where all kinds of nonsense is said, the more you can fill that space with actual facts, the more reliable, believable, credible the conclusion is.

He stated, “People are still going to disagree. They are still going to fight, but at

least there will be facts in the public square that show…[we] did this in a good way, thought about it in a good way and here is our reasoning as to why we think there

is no there there.”

Comey told the OIG that they did not discuss or consider specific options, but that he simply said to Yates, “[Y]ou need to get smart people working on what are the range of possibilities…what is possible under the law, I remember mentioning the Privacy Act, what is possible and what are the vehicles for transparency, what are the outer boundaries…. I think I just teed up the issue and said, hope you will get smart people thinking about this.” Asked whether he was ever involved in discussions about a joint appearance with Attorney General Lynch, Comey said that he did not recall any discussions about that option.

Yates recalled this discussion with Comey differently. Yates said that she had a regular monthly meeting with Comey, and that the day before one of these meetings, Axelrod received a call from Rybicki suggesting that they meet to discuss how to conclude the case. She did not recall precisely when this meeting took place or what had happened in the investigation leading up to it, but she described the investigation at that time as “wrapping up.”

Yates said that the meeting took place in her office. She said that they talked about the investigation and agreed that public confidence in its resolution was important. She said that everyone was of the same view that there was not a criminal case based on the evidence to date, and that it was not going to be sufficient to announce the conclusion by saying, “We looked at it…case closed.” She said that the four of them agreed that people needed to have confidence that there had been a thorough look at the facts, and that a declination was the right decision.

Yates told the OIG that any discussion about how to announce a declination always proceeded with “great big caveat on it” that former Secretary Clinton could lie during her interview. Yates stated, “This is if things continue to go that way. Because you don’t want to be like planning the declination that you don’t really know is a declination yet. Because I mean, if she lied for example. There’s about, that could change things entirely if she wasn’t truthful in the interview.”

According to Yates, one of the options they considered was a written memorandum released to the public, which would give some level of facts about the investigation. Yates stated that they all agreed that if they released a written memorandum, they also would need to hold a press conference to allow them to “look the [American] people in the eye” and say that there was not a criminal case, rather than “hiding behind a behind a [press] release or a writing that…would not be sufficient to convey the earnestness of that decision.” She said that no one committed to a decision at this meeting, but rather they were “thinking out loud.”

We asked Axelrod about these discussions between Yates and Comey. He said they focused on whether the FBI would be part of any announcement at the conclusion of the investigation. Axelrod said that they discussed preparing a letterhead memorandum (LHM) that could at least be provided to Congress, along with some form of a public announcement.

Axelrod said that one of the options they discussed was a joint announcement involving Lynch and Comey. Axelrod told the OIG that “the view from the Department was it would be important for the Bureau to be part of that.” He stated, “[Comey] hadn’t committed to it but was…comfortable with it being some sort of joint thing.” Asked why he thought it was important to have Comey participate in an announcement, Axelrod said that it was important for the Department and the FBI to display a “unified front…having both organizations together saying the truth, which was this was done by the book and this was the

result.”

Axelrod said that they never discussed the idea of Comey being the one to announce a declination because it was never raised, but that he was “not sure that would have been rejected out of hand.” He stated, “[T]here would have been some advantages to that having been coordinated and planned that way. And some disadvantages, too…. [T]he thing…that I knew that the Department felt strongly about was that Bureau had to be part of that [announcement].”

Rybicki said that he did not recall any specific discussions, stating, “I just remember all ideas sort of being, you know, people talking about, you know, press conferences and, and, and ways of closing and things like that. I don’t remember specific conversations.”

2. Comey Mentions a Special Counsel at April Meeting with Yates

Comey’s Testimony

Comey told the OIG that during the April meeting with Yates and Axelrod, he told Yates that the closer they got to the political conventions, the more likely he would be to insist that a special counsel be appointed, because there was no way the Department could credibly finish the investigation once former Secretary Clinton was the Democratic Party nominee. Comey said that his comment to Yates was motivated in part by his frustration that it was taking the Midyear prosecutors too long to obtain the Mills and Samuelson laptops (discussed above in Chapter Five). He said that he emphasized to Yates that the team needed to obtain the laptops to be able to finish the investigation. According to Comey, Yates reacted to his comment about the possible need for a special counsel with concern, and that he responded, “[L]ook I’m not saying we have to do it, but the deeper we get into this summer, the more likely it’s going to be that I’ll feel that way. And I was saying it in part to get them to just move—to move, to get us this thing [the laptops].”

As part of this discussion, Comey said he recounted his experience when he was the DAG appointing then U.S. Attorney Patrick Fitzgerald as the special counsel to investigate the leak of the name of a covert CIA operative, Valerie Plame.126 He said he explained to Yates that the investigation focused in part on whether Karl

126 Comey served as the DAG from December 9, 2003, to August 15, 2005, under President

George W. Bush. On July 14, 2003, the Washington Post published Plame’s name, sourced to

unidentified senior administration officials. On December 30, 2003, then Attorney General Ashcroft recused himself from the investigation. Comey became the Acting Attorney General for purposes of the investigation and appointed Fitzgerald to oversee it.

Rove, then President George W. Bush’s senior political advisor, had leaked the information, and that he (Comey) was concerned about the appearance of a conflict of interest between Rove and then Attorney General John Ashcroft because Rove had managed one of Ashcroft’s Senate campaigns. He told the OIG that he mentioned this to Yates because he saw similarities between the Plame leak case and the Midyear investigation: namely, that in the Plame case there was no basis to prosecute Rove, and he did not think the Bush Administration could have announced a declination in a way that assured the public the investigation was done objectively.

Comey said that his comment to Yates about appointing a special counsel also was motivated by concerns about the appearance of political bias in the Department. He said that these concerns were based on the overall political environment—given then President Obama’s comments about the investigation, he did not think the Department leadership could credibly complete the investigation without charges.127

Comey said that he also was concerned about an issue specific to Lynch. As discussed in more detail in the classified appendix to this report, Comey told the OIG that the FBI had obtained highly classified information in March 2016 that included allegations of partisan bias or attempts to impede the Midyear investigation by Lynch. Numerous witnesses we interviewed—including Comey— said that the FBI assessed that these allegations were not credible based on various factors, including that some of the information was objectively false. For example, the information also suggested that Comey was attempting to influence the investigation by extending it to help Republicans win the election, which witnesses said the FBI knew was not true. By mid-June 2016, the FBI had obtained no information corroborating the Lynch-related allegations.

When asked about this information, Comey stated that he knew it was not credible on its face because it was not consistent with his personal experience with Lynch. Comey stated, “I saw no, I’ll say this again, I saw no reality of Loretta Lynch interfering in this investigation.” However, Comey said that he became concerned that the information about Lynch would taint the public’s perception of the Midyear investigation if it leaked, particularly after DCLeaks and Guccifer 2.0 began releasing hacked emails in mid-June 2016.

Despite these concerns, Comey told the OIG that it did not occur to him to request a special counsel in late 2015, after Lynch’s instruction to use the term “matter” or former President Obama’s public comments about the investigation (discussed in Chapter Four), because Comey was satisfied with the nature and the quality of the investigation being conducted by the FBI. Comey emphasized that

127 As discussed in Chapter Four, former President Obama made comments about the investigation in October 2015 and April 2016, while White House Press Secretary Josh Earnest made statements in January 2016 suggesting that the Midyear investigation was not headed toward an indictment.

the FBI had its “A team” working on the investigation, and that he was closely involved to ensure that the team was protected from political or other influence.

As we describe in more detail in the classified appendix, Yates and Axelrod told us that the FBI mentioned this information to them sometime in the Spring of 2016 and provided a defensive briefing on it on July 12, 2016.128 Yates said that the FBI told her that the information was not deemed credible and did not show her the relevant documents. After being shown the documents in her OIG interview, Yates expressed frustration and said that, had she been informed that the FBI had concerns about the information, she would have engaged Comey in discussions about the impact on the Midyear investigation. The FBI also did not provide Lynch with a defensive briefing about the information until August 2016, more than a month after investigative activity in Midyear was concluded, and she also was told that the information was not credible. Lynch said that until Comey’s public testimony in 2017, she was never told that the information played a role in his unilateral decision to make a public statement about the Midyear investigation or concerns about whether a special counsel was necessary.

However, Comey said that he became increasingly concerned and began thinking about the possible need for a special counsel when he realized in March or April 2016 that the case likely would result in a declination, and that the declination might not happen until after the political conventions. He explained that the Department’s leadership could not credibly announce a declination around or after the nominating convention, because “the confluence of a decision on a case and a key political event” would cause “grievous” damage to the Department’s and the FBI’s reputation.129

Yates’s and Axelrod’s Testimony

Yates told us that she recalled Comey raising the possibility of a special counsel at the April meeting. She told the OIG that Comey commented that they may need a special counsel to announce the closing of the Midyear investigation if the investigation ran past the convention and former Secretary Clinton was formally the Democratic Party’s nominee.130 According to Yates, Comey added that there was no reason to request a special counsel because the investigation would be

128 A defensive briefing is intended to warn government officials of specific security concerns or risks. As we describe in the classified appendix to this report, the Department discussed this information with career Department officials in March 2016, and later provided defensive briefings to Yates and Lynch on July 12, 2016 and August 10, 2016, respectively.

129 In Section VI.C below, we describe Comey’s testimony before the Senate Select Committee on Intelligence on June 8, 2017. During that testimony, Comey was asked whether Lynch had an appearance of a conflict of interest in the Midyear investigation. Comey replied, “I think that’s fair. I didn’t believe she could credibly decline that investigation—at least, not without grievous damage to the Department of Justice and to the FBI.”

130 The Democratic National Convention was held from July 25 to 28, 2016. Clinton was

formally nominated to be the Democratic Party’s Presidential nominee on July 26, and accepted the

nomination on July 28, 2016. However, she secured a majority of delegates and became the presumptive nominee several weeks earlier, on June 6, 2016.

completed before the convention. She said that she did not interpret Comey’s comment as a line drawn in the sand, but more of a “musing.”

Yates characterized Comey’s suggestion as a “weird thing” that he raised “out of the blue,” and said that she did not understand why the convention was a bright line for him. She stated, “Because if you were concerned about an

appearance that [Clinton is] the Democratic nominee and you have a Democratic Attorney General, well, you got that before the convention. You’ve kind of had that for quite some time now.” Yates said that she may have mentioned to Comey that Clinton had been the presumptive Democratic Party nominee for some time and

that using the convention as a dividing line seemed “really artificial.”

Yates also said that she was taken aback by Comey’s comments, because the investigation had been going on for some time and he had never mentioned the need for a special counsel. She said that his concern was based on the perception created by a Democratic-appointed Attorney General announcing that the Democratic Party’s Presidential nominee would not be prosecuted. Yates said that she understood that this was “all for appearance reasons.” She stated, “Jim

[Comey] never, ever, raised any concern about Attorney General Lynch having any kind of actual conflict or even an appearance of a conflict before we got to the tarmac. Never, ever. Nor did anyone else at the FBI ever raise any concern about that that I’m aware of.”

Asked whether Comey at any time raised concerns about the involvement of Lynch in either the investigation or the announcement, Yates stated:

No…I mean, this is where, and when I am so emphatic about that it’s because I read articles and testimony later that frankly, shocked me. Because I thought, this was not the only discussion that I had with former Director Comey about how we would roll it out. And I thought…I read and I have no way of knowing if this is true, but I think Director Comey’s testimony indicated that he had been thinking for quite some time that he felt like he needed to go in alone in making the announcement. And not only did I never hear that, I’m not aware of anybody, I mean, maybe somebody else at DOJ had heard that and it never made its way to me. But I’m not aware of anybody else at DOJ hearing that.

In fact, that’s just the opposite of what our discussions were. I would have thought when…we’re talking about a joint press conference, et cetera, that if he harbored either (A), any reservations about whether Attorney General Lynch had a conflict or appeared to have a conflict he would have said something. I don’t know how you have a discussion about that and have those feelings and not say anything about it. And then (B), if he was actually planning on doing it on his own I don’t know how he didn’t tell me that.

Yates said that she would have expected Comey to discuss any concerns he had about Lynch or the Department with her, and said that Comey had not been shy or hesitant to give his opinion in discussions with her. However, she said that Comey “kept FBI’s information very tight,” and that she “sometimes…felt like [she] had to pry information out of him.”

Axelrod gave a similar account of Comey’s mention of a special counsel. He said that Comey was concerned with the dates of the national political conventions, particularly the Democratic National Convention, because he thought that it would not be tenable for the Department’s leadership to continue to oversee the investigation or announce a declination once former Secretary Clinton was the Democratic Party’s nominee. Axelrod said that he perceived Comey’s concern as “purely calendar-driven.” He told the OIG that he did not know if Comey appreciated the way that the appointment of a special counsel would be perceived by the outside world, or whether it was “some sort of gambit to sort of say hey, if you guys don’t pick up the pace, right, this is going to get really ugly.” Axelrod said that at the time he interpreted the suggestion as Comey thinking through how to “navigate this in such a way that it gets accepted by, again, not by everyone but at least by some chunk of the public, the reasonable center, as having been done on the level.”

Rybicki told the OIG that he did not recall any discussions between Comey and Yates about the need to appoint a special counsel.

3. Lynch’s Knowledge of the April Meeting

Asked about her knowledge of the meeting between Yates and Comey, Lynch said that Yates told her that she met with Comey, and that Comey indicated that he was not sure there was a “there there” with respect to the Midyear investigation. According to Lynch, Yates said that Comey mentioned that he should be the one to make any announcement about the resolution of the case, because this would be best for the independence of the Department. Lynch said that Yates and she both thought that any discussion about an announcement was “very premature.”

Lynch said that she did not think about the option to have Comey make any eventual announcement in terms of a “decision tree” because it was so premature. She stated that she was not aware of any other options that Comey and Yates discussed, but that she did not see a basis for the Department to “have the investigative arm announce a prosecutive decision.” Asked whether there was anything about the case that in her view would warrant deviating from the standard practice of having prosecutors announcing a prosecutorial decision, Lynch responded that there was not.

Lynch told the OIG that she understood from Yates that Comey wanted to complete the investigation before the political conventions. However, she said she did not recall being told that Comey had mentioned the possibility of requesting a special counsel if the investigation continued beyond that point. She said that, other than letters from Members of Congress requesting a special counsel to handle the investigation, no one ever mentioned that a special counsel might be necessary or might be requested if the investigation took too long.131

Lynch said that she had looked at the special counsel regulation at one point because that is “a decision that the AG has to make,” but had not taken steps to have anyone look into it or research it. She said that she was convinced that the team handling the investigation could come to a conclusion. She stated, “I was convinced that if, for example, they thought that someone should be charged, they were not going to hesitate to recommend that.”

As we discuss in Section IV.B below, Lynch received an ethics opinion following the tarmac meeting with former President Bill Clinton on June 27, 2016, that she was not required to recuse herself from the Midyear investigation. She decided not to voluntarily recuse herself for a variety of reasons, including that she did not have a personal relationship with either former President Clinton or former Secretary Clinton.

1. Subsequent Discussions Between Comey and Yates

Yates said that sometime after her initial meeting with Comey, she received a phone call from him in which he said that he had been talking to “his people,” and they had decided that the FBI would not make a recommendation at all. Yates said that Comey told her that the FBI instead would “just give DOJ the facts and DOJ would make the decision and [the FBI] wouldn’t make a recommendation.” According to Yates, Comey described this as the way the FBI and the Department “normally do it.”

Yates said that she asked Comey what he was talking about, because the FBI always makes recommendations about charging decisions. According to Yates, she recalled saying the following to Comey:

Jim, I thought we had talked about it the last meeting…. That we were all going to hold hands and jump off the bridge together. Because that’s kind of how I viewed this was that this was going to be a tough thing here. That a lot of people were not going to like our decision but that’s our job. And that we were going to, you know, we were all going to stand there together. We were going to announce it together.

Yates said that Comey was non-committal after she made this statement.

131 On October 28, 2015, 44 Members of the House of Representatives sent a letter to Lynch requesting the appointment of a special counsel in the Midyear investigation, citing former President Obama’s comments about the investigation on 60 Minutes as evidence that he had prejudged the investigation. The letter stated that a special counsel was warranted to ensure that the investigation was conducted free of undue bias from the White House. In addition, Senator Charles Grassley sent a letter to former Director Comey on May 17, 2016, asking various questions, including whether Comey believed that a special counsel was necessary.

Yates said that she remembered sitting at her desk after this call and thinking, “What?” She said that she spoke to Axelrod and Carlin after hanging up the phone, saying, “Holy cow. I mean, what is this business of now they’re not even going to make a recommendation?”

Yates said that when she thought back to every major announcement she had done throughout her career, the lead investigative agency was always involved. She said that by that point it was “really clear that from the line agents all the way up they were all of the view that this shouldn’t be a criminal prosecution.” She said that given that agents and prosecutors agreed there was no basis to prosecute former Secretary Clinton, it was important to present a unified view of the investigation.

Comey told the OIG that he did not recall discussions about the end of the investigation with the Department other than his initial April meeting with Yates and Axelrod, and he did not recall any discussions with them about a joint Director-Attorney General announcement. Rybicki also said he did not recall any discussions about the end of the investigation.

Axelrod said he recalled that the FBI “went back and forth on whether…they wanted to be, whether they were willing or the Director was going to be willing to be part of…sort of some sort of joint roll out.” Lynch also told the OIG that she recalled Yates mentioning that at some point that she had had another discussion with Comey, and that Comey was no longer sure that he should be the person making the announcement.

Yates said that after this call with Comey, there were other discussions with him where they were “back on track” and “all holding hands and jumping off the bridge together.” Yates said she did not recall whether these subsequent discussions took place face-to-face or on the phone, or whether anyone else from the FBI was there. She said that they never made a final decision about how they would announce the declination, but that it was likely to be with a press conference where they laid out the facts supporting a conclusion that there was not a crime to be prosecuted. Yates said she had anticipated that Lynch would speak, but that they had not determined whether there would be other speakers. She said that they also planned to release a written document.

Yates told the OIG that she did not recall identifying a target date for making

the announcement, but that they understood it would be a “matter of days” after

the interview of former Secretary Clinton on Saturday, July 2, 2016. Yates stated,

“And we were trying to be careful not to plan this too much, again, because we hadn’t made the final decision yet. This is where we thought it was going to go but you don’t know until that interview is concluded.” Axelrod also told us that plans for an announcement were not “solidified because we weren’t quite at the end.”

1. Other Discussions within the FBI and Department
2. Discussions between McCabe and Carlin

Axelrod said that the discussions between Yates and Comey about the conclusion of the case were not the only ones that took place between the Department and the FBI. He said that during the Spring of 2016, Toscas, Carlin, Rybicki, and McCabe also were involved in discussions about how to credibly conclude and announce the conclusion of the investigation.

We asked various witnesses about these discussions but were unable to develop a precise timeline for them or a specific recollection of what was discussed. Carlin told the OIG that he may have talked about how to credibly announce a declination with McCabe “once or twice.” He said that they discussed the “incredible scrutiny” that the case would receive and the need to memorialize in

writing any disagreements between the team. He said they also discussed the need for a written description recounting the steps that were taken in the investigation. Carlin stated:

And then what made this a little unusual for me anyway was that it came over as an IG, an 811 referral matter. And so one thing we had discussed was doing some closeout [summary of] facts to the IG…. If there were no criminal charges that doesn’t mean there’s not more to be done for the IG and lessons that they can learn from what we did in terms of the steps that they apparently felt they couldn’t take…for things that were outside Government servers. And so I’d always thought at the end that some version of just the facts, not our thinking as to whether or not you bring a criminal charge, should go back to the IG in a closeout form. So then they could continue with whatever they were going to do, either administratively because there may be bad practices, or the set. Substantively it was clear to me from the investigation that there could be improvements made in terms of how the State Department was giving guidance and handling potentially classified information.

Carlin said that he did not know if Comey ever approved the idea of a referral back

to IC IG, “But at the Deputy [McCabe] level I thought there was some agreement by a meeting of the minds that that was the likely way we were going to proceed.” He said that he did not want to overstate it or give the impression that everyone

had “signed off on” the idea, but that when he “raised that as a potential course it seemed like people thought that was reasonable.” Carlin said that he did not recall discussing a joint press appearance by Lynch and Comey.

McCabe told the OIG that he recalled talking to Carlin about how to credibly conclude the investigation during lunch together in May or June 2016. McCabe said that neither of them had a “very well-formed idea” about what the end of the investigation looked like at that point, but that Carlin felt strongly that Comey

should have a “very active and prominent role” in any public announcement.

McCabe said that they discussed various options, including a written memorandum or a joint press conference.

Asked about his involvement in discussions with the FBI about how to announce the conclusion of the case, Toscas said that he did not have a specific recollection of any such discussions. He stated:

I very much wanted the Bureau [to be] part of the discussion and I know that there was some discussion of making sure that—or to try to have a joint AG/FBI Director statement, whether in front of cameras or an issued written statement, and I remember thinking, and I may have even talked to our team you know specifically about this, like we want—like we want the FBI Director talking about this, right. We want there to be—the American public to know that DOJ and FBI are together on this and that we’ve run it down and we’ve concluded the investigation.

Toscas also said that he thought that Department leadership separately was involved in discussions with the FBI about how to announce a declination, and that he vaguely recalled a discussion the week before the interview of former Secretary Clinton about what a joint appearance or statement would look like.

2. Discussions among Prosecutors and NSD Supervisors

On March 30, 2016, Prosecutor 1 sent an email to Prosecutor 2 stating, “Read the Ruth Marcus column in the [Washington] Post if you haven’t yet.”132 The column referenced in the email discussed the public skepticism that would result from a decision not to indict former Secretary Clinton and recommended that the Department consider releasing a detailed investigative summary. It included a hyperlink to a public report released by the Department in 2010 that summarized the investigation into the 2001 anthrax letter attacks. The column also highlighted the need for a credible government official to provide the public with information

about the investigation, noting, “Senior Justice officials will be mistrusted whatever

they say, but what about FBI Director James B. Comey, who served in the Justice Department under George W. Bush?” Apparently after reading this column, Prosecutor 2 replied, “It is not dissimilar from some of the thoughts running

through my head in the middle of the night…or what I tried expressing at that

disastrous meeting we called with Toscas a couple months ago.”

Prosecutor 2 told the OIG that they had a meeting with Toscas in or around February 2016 focused on what the end of the investigation should look like. According to Prosecutor 2, Toscas said at this meeting that the prosecutors would provide their legal analysis and conclusions to Carlin, through Toscas, and that

there was some “vague idea” that Comey or McCabe would release a statement. This prosecutor told the OIG that the Department’s involvement in any FBI statement was uncertain, and it was unclear at that point whether the statement

would be written or oral. This prosecutor described this meeting as “contentious,”

132 See Ruth Marcus, What If Clinton Isn’t Indicted?, WASH. POST, Mar. 30, 2016, A17.

and said that NSD supervisors seemed to wonder what the line prosecutors wanted from them. This prosecutor said they brought up the issue of how to announce the end of the investigation because they were searching for assurances from their management that high-level Department officials would be involved. Prosecutor 2 stated:

[I]f the statement is made, who is making that statement? Is it Comey? Will DOJ be standing by his side? If DOJ is standing by his side, is that going to be the Attorney General, or is that going to be [Prosecutor 1] and [Prosecutor 2]? Because [Prosecutor 1] and [Prosecutor 2] are driving this investigation for DOJ.

Prosecutor 1 did not recall when the meeting with Toscas took place, but estimated that it was sometime in early 2016. Prosecutor 1 stated that the plan discussed at that meeting was for them to finalize their legal analysis and conclusions and provide it to the NSD chain of command. Prosecutor 1 said that he also expected that there would be a public announcement of some sort given the high-profile nature of the investigation. As described in Section II.C.4 below, Prosecutor 1 said that as the investigation moved toward completion, he understood that Comey likely would be the official publicly announcing a declination.

Prosecutors 3 and 4 said that the team thought that the FBI would be involved in announcing the conclusion of the investigation, but they did not know what the plans were. Prosecutor 3 stated, “We speculated…that it would be some FBI report, like maybe a classified report of findings, and then a public report…because it was a high-profile investigation…. And no one really knew what, what the FBI was going to do.” Prosecutor 4 told the OIG that he did not care how announcing a declination was handled, other than he wanted Comey to participate in it. This prosecutor stated:

And from my vantage point, I didn’t care other than the fact that I wanted Comey up there on a podium. I didn’t care whether the AG was sitting next to, standing next to him or not. But I wanted Comey to make the announcement that, that the investigation was closed and that in FBI’s viewpoint that there was not a prosecutable case….

Because Comey was a Republican, or [had] a Republican background. He’d been a Republican-appointed U.S. Attorney. He had been a Republican-appointed DAG. I know Comey from his EDVA days. I think, thought he was widely respected on both sides of the aisle, before this case especially. And I thought that he had the gravitas, that no matter what he did, it was going to be questioned, but that it would be, that there would be an air of legitimacy to what I thought was a legitimate investigation if he made the announcement, and especially after the tarmac meeting.

This prosecutor told the OIG that Laufman had tried on several occasions to raise the issue of planning for a joint announcement at meetings with the FBI, and that Strzok was “always really squirrely about that.” He said that Strzok would say that they should wait to see how everything worked out, or that the decision was

“above [his] pay grade.”

3. Additional Special Counsel Discussions

FBI Attorney 1 told us that the FBI Midyear team discussed whether they needed a special counsel at the beginning of the investigation in 2015. She said that at that time they had a legal intern research the statute, which expired and was replaced by regulations requiring appointment by the Attorney General.133 She said that the discussion among the FBI Midyear team was, “[D]o we need one? When would we need one? How does this work sort of questions…. Was it necessary? And I, and I think we kind of thought we could handle this without the special counsel.”

FBI Attorney 1 stated that the idea of a special counsel came up again at various points during the investigation, but that “[t]here was not any really significant discussion about it.” She said that the team thought that they could complete the investigation, and they saw no signs of a conflict of interest on the part of the NSD lawyers.

Discussions about requesting a special counsel resurfaced within the Midyear team in mid-March 2016, following the discovery of the highly classified information, and occurred at various points through at least mid-May 2016. Text messages between Page and Strzok on March 18, 2016, indicate that the two of them discussed requesting a special counsel to oversee the investigation:

7:31

a.m., Strzok: “Thought of the perfect person D[irector Comey] can bounce this off of.”

7:31

a.m., Page: “Who?”

7:37 a.m., Strzok: “Pat [Fitzgerald]. You gotta give me credit if we go with him. And delay briefing him on until I can get back and do it. Late next week or later.”

7:38 a.m., Page: “We talked about him last night, not for this, but how great he is. He’s in private practice though, right? Suppose you could still bring him back. And yes, I’ll hold.”

7:57 a.m., Strzok: “Yes, he’s at Skadden in Chicago. I haven’t talked to him for a year or two. Don’t forget that D[AG] Comey appointed

133 As discussed in Chapter Two, Department regulations at 28 C.F.R. § 600.1 provide that the Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and (a) that investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and (b) that under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

him as special counsel in the Plame matter, and that he was there for Comey’s investiture.”

7:58

a.m., Strzok: “I could work with him again. And damn we’d get sh*t DONE.”

7:58

a.m., Page: “I know. Like I said, we discussed boss and him yesterday.”

Based on the date of this exchange, Page told the OIG that the discovery of classified information relating to Lynch likely prompted her discussion with Strzok, but that she did not recall the idea of appointing Fitzgerald to be the special counsel for the Midyear investigation being discussed with FBI leadership. After reviewing a draft of the report, Page stated that she and Strzok had discussed consulting Fitzgerald about the classified information relating to Lynch, not about serving as a special counsel. Strzok said that he did not recall what led to this discussion, but he speculated that it may have been motivated by concerns about the information discussed in the classified appendix to this report. Strzok told the OIG that discussions about a special counsel reflected a genuine concern about the Department’s ability to credibly close the investigation, denying that the idea was intended to get the Department to move more quickly on the Mills and Samuelson laptops.

Although witnesses denied that there was a specific deadline for completing the Midyear investigation, witnesses told us that Comey and other senior FBI officials strongly encouraged the team to finish the investigation as quickly as possible to avoid impacting the 2016 election. Notes reviewed by the OIG reflect that Comey increasingly was concerned by the timetable for completing the investigation as the debate about obtaining the laptops continued into May 2016. According to these notes, on May 9, 2016, Comey met with the FBI’s Midyear team and told them that there “will come a point when DOJ can’t credibly close this, and will need a special prosecutor.” On May 11, 2016, other notes indicate that Comey told agents and prosecutors at a Midyear briefing that there was an “extraordinary sense of urgency” to complete the investigation, and that there was the risk that a declination would be perceived as partisan the closer they got to the election.

The next day, May 12, 2016, Strzok raised the possibility of a special counsel during a meeting with Laufman. Notes indicate that there was a lengthy discussion about Comey’s timetable for completing the investigation and the need to obtain the Mills and Samuelson laptops, and that Strzok mentioned the possibility of requesting a special counsel if they got closer to the election. Laufman said that he viewed Strzok’s comment as a “veiled threat” to make it clear that the FBI was dissatisfied with how NSD was handling the laptop issue and would proceed how it wanted. Laufman said he did not recall other instances where anyone from the FBI mentioned the possibility of requesting a special counsel.

4. NSD Notes Reflecting Plans for an Announcement

As the team progressed toward the end of the investigation, information obtained by the OIG indicates that prosecutors and NSD supervisors were aware that Comey was planning to participate in an announcement. On May 16, 2016, Priestap sent an email to Toscas stating:

I wanted you to be aware that Director Comey would like to see a list of all cases charged in the last 20 years where the gravam[e]n of the charge was mishandling classified information. He requested the information in chart form with: (1) case name, (2) a short summary for context (3) charges brought, and (4) charge of conviction.

Toscas forwarded the email to Laufman, who replied, “What is the meaning

of this request? Have no problem sharing data we have amassed, but am concerned that it signifies an expectation by Bureau to play a larger role in DOJ

charging decision than usual.” Toscas replied, “We will all continue to work

together with the Bu[reau] on all aspects of this, including with respect to any such decisions, so we should plan for and expect that our usual close collaboration with the Bureau will continue all the way through to the conclusion, including any such

decisions.”

Toscas also asked Laufman to call him. Notes memorializing a telephone call that day indicate that Toscas told Laufman, “Bureau may simply close this…. Don’t think this is an insane request. Thinks Comey wants to see cases because he wants to be able to say why outcome not [out] of line. Everyone knows where we are

going to end up.”

NSD prosecutors prepared a chart of cases indicted since 2000 under various provisions prohibiting the mishandling and improper retention of classified information. Toscas emailed McCabe and Rybicki about the chart on May 23, 2016, and hand-delivered a copy to them at his routine morning meeting. The email sent by Toscas included the following caveats distinguishing the charged cases from the Midyear investigation:

While it is not noted specifically in the chart, the vast majority of the listed cases involved documents or electronic files with classification markings on them. The few examples of charged cases where no markings were present involved photographs taken by the defendant (e.g., a case involving photos inside sensitive areas of a nuclear submarine) or handwritten notes where there were clear indications of knowledge of the sensitive nature of the materials (e.g., a case in which there was a recording of the defendant speaking about the classified nature of information in his hand-written notebooks).

The “charging/plea information” column should make it clear, but the

mishandling noted in the chart often occurred in conjunction with other criminal activity, including espionage, export control violations, and false statements, among others.

The chart did not include any examples of cases charged under Section 793(f).

Asked whether he thought Comey’s request signaled a plan for greater involvement by the FBI, Laufman told the OIG that he viewed it as part of Comey’s desire to make as knowledgeable a decision as possible about whether to charge Secretary Clinton or her senior aides. He stated, “And that’s a conversation prosecutors always have with the agent, right?… So, I didn’t have any problem arming him with the legal precedents that we thought informed our judgment, which we expected to be somewhat controversial, especially on the gross

negligence statute.”

Notes reviewed by the OIG indicate that Laufman had, or was told about by Toscas, discussions with the FBI regarding plans to announce a declination as the interview of former Secretary Clinton approached. In early June, the FBI and NSD began working jointly on an LHM outlining the facts developed in the investigation. The prosecutors began developing the legal framework for their analysis around the same time, but did not finalize any charging recommendations until after the interview.

On June 19, 2016, Laufman had a telephone conversation with Strzok about Comey’s plans to make a statement about the investigation. Laufman’s notes from this conversation listed the following topics for discussion:

(1)

July 2 —–> Director’s statement.

Q:

How many days later?

Q:

Content?

E.g., is he planning on saying anything about DOJ’s conclusions?

(2)

Do you foresee any investigative activity after July 2?

The notes do not indicate what Strzok’s responses were about Comey’s plans for a statement. However, according to the notes, Strzok told Laufman that Comey wanted the investigation to be completed as soon as feasible, and thought it could be “largely done” other than classification reviews that were “unlikely to change [our] view” by July 2.

Laufman’s notes from a telephone call with Toscas on June 24, 2016 indicate that the two of them discussed plans for a coordinated statement with Comey. The notes state:

“Good news/bad news”

Sounds like greater sense of “ownership” than expected – coming to

realization that better if Dir[ector] is person who announces it; and

seems like Dir[ector] will be up front explaining thoroughness,

conclusion, not proceeding with any case. Voice of joint investigation.

But don’t know what form this will take.

Bureau’s exploitation of computers: by July 2 completed —> goal.

Soon after interview, all will be put into motion.

Director will be champing at bit to make announcement….

Want team to sit down w[ith] DAG and AG, before Dir[ector] speaks.

On June 27, 2016, Laufman provided this information to Prosecutor 1 and another NSD supervisor. Laufman’s notes from this date state, “Director will want to wrap up and make announcement quickly after interview…. Will be withering pressure after interview…expect to be very little that occurs at interview pertinent to mens

rea determinations.” These notes discuss the need to complete the joint LHM and the prosecutors’ legal analysis and conclusions as quickly as possible.

Other notes obtained by the OIG indicate that prosecutors expected an announcement by Comey by Friday, July 8, 2016. On June 30, 2016, Laufman was

told by another NSD supervisor, “Expect that FBI wants to announce by next Friday…. Wed or Thurs: briefing for DOJ leadership.” On July 1, 2016, Laufman received a telephone call from Toscas stating that Toscas had spoken to McCabe

and was told they were “still on track for Friday and FBI statement that day.” Laufman met with Prosecutors 1 and 2 later that day and told them, “No change in known timetable for next week —> Friday, July 8 announcement by Bureau.

Details not known yet. Expect briefing of DAG + AG before (Thursday?)” The notes

indicate that the team proposed staying at the FBI after the Clinton interview to

“hash out differences” and finalize the closing LHM.

Asked whether these notes reflected advance knowledge by NSD supervisors

and prosecutors about former Director Comey’s plans for a public statement,

Laufman said they did not. He told the OIG that discussions about how to announce the closing of the case intensified as the interview of former Secretary Clinton approached. He said that they understood that Comey was going to make some kind of a statement, but that anything he was going to say would be closely coordinated with the Department. He said he had no knowledge of and was not privy to discussions about plans for a joint statement by Comey and Lynch. Asked what he thought would happen as of July 1, 2016, he stated:

I expected that we would complete the Clinton interview. The Bureau would complete its LHM. We would complete our [legal analysis]. Discussions would take place within DOJ, between DOJ and the Bureau, there would be a closely-coordinated endgame, like there is in the disposition of many matters in the Department where a bunch of people stand up…in front of a bunch of flags and carefully orchestrated, well thought through set of statements about a matter…. And we were going to be briefing the AG and the DAG before that.

Laufman also recalled Toscas telling him on several occasions that there was value

in having Comey out front on the investigation, given the accusations by “political actors” that the Department could not be trusted to conduct a fair and balanced or

complete investigation.

Strzok told the OIG that he participated in discussions with prosecutors about how to announce the closing of the investigation, including some discussions with Toscas. Strzok said they discussed whether there would be a press conference, who would participate in a press conference, and what level of detail any statement

would provide, but he characterized these discussions as “preliminary.” Anderson similarly told the OIG, “So, I think at some point, DOJ began pressing us to start

talking about the end game. But we, within the Bureau, were already pretty far along in terms of our own thinking about what we thought the end game should be, such that we didn’t really engage that meaningfully with DOJ on the issue at the line level.”

However, notes indicate that FBI agents, lawyers, and senior officials were aware that the Department expected to make a joint announcement with the FBI at the end of the investigation. According to FBI Attorney 1’s notes from a Midyear update meeting with Comey on June 27, 2016, the FBI discussed this expectation, stating, “Laufman saying pros memo + joint statement one week after HRC interview.” Page’s notes from the June 27 meeting indicate that FBI leadership told the Midyear team what to say to NSD about an announcement: “[Clinton] Interview Sat[urday]; LHM Tues[day], and our leadership will be talking to yours, & what you expect a final announcement will look like.”

The next day, June 28, 2016, Laufman’s notes reflect that an attorney in NSD’s Front Office asked him to call Strzok and find out when the FBI planned to close the investigation. The notes read, “If not w/in short order after July 2 – if not by next week – Why not?! What’s the plan…?” The notes indicate that Laufman spoke to Strzok, and Strzok told him that the FBI would finalize the LHM by the following Tuesday. The notes indicate that Laufman asked what Comey’s goal was for announcing the closing of the investigation, and Strzok told Laufman he was not sure how soon it would be. That same day, Strzok and Page exchanged the following text messages:

12:43 p.m., Strzok: “God I am getting GRILLED by Laufman right now.”

12:46 p.m., Page: “You’ve got your answer to give him….”

12:52 p.m., Strzok: “I do…Still going….”

III. Drafting of Former Director Comey’s Public Statement

1. Original Draft Statement

Former Director Comey told the OIG that after his initial meeting with Yates and Axelrod in April 2016, he began thinking about the “outer boundaries” for announcing the conclusion of the investigation. He explained that a one-line press release by the Department stating that the case was closed was one outer boundary, and an FBI-only press conference providing a detailed statement about the investigation was the other. Comey said that the team from Strzok and the Lead Analyst on up discussed every option in between these two “outer boundaries.” Comey told the OIG that he considered what options would be best calculated to minimize the reputational damage to the Department that might result from a declination decision given the partisan political environment in the country at that time.

Comey said that the possibility of the FBI doing a statement separate from the Department occurred to him around that time. He stated:

I mean to my mind it was a crazy idea, but we were in a [500]-year flood, as you all have now investigated enough and lived enough to know, that this is a circumstance that has never happened before. We’re criminally investigating one of the candidates for president of the United States…. [P]resident [Obama’]s comments obviously weighed on me as well. You’ve got the President who has already said there’s no there there…. And so all of that creates a situation where how do we get out of this without grievous damage to the institution?

Comey told us that, in addition to preserving the credibility and integrity of the

Department and the FBI, his concern was protecting “a sense of justice more broadly in the country—that things are fair not fixed, and they’re done independently.”

McCabe told the OIG that he recalled that Comey first mentioned the idea of doing an independent statement as “an aside, at either the beginning or the end of a meeting that we had…in his conference room.” McCabe said that Baker and Rybicki also were present, and that the group had been discussing where the

investigation was going and what the end would look like “if we end up with nothing.” He said that Comey asked them, “[W]hat do you think about the prospect of just like me doing something solo?” McCabe stated:

And I remember when he said it kind of looking at Rybicki. And the both of us are just kind of like, oh my God, you know? And I, I mean honestly I, I, at first blush I was like, whew, wow, that’s, that could go really wrong…. Because for, you know, for the obvious reason. It’s just so not what we do. And we thought…that would be a huge break with…protocol…and everything else.

McCabe said that he may have told Comey that he was concerned that an

independent statement would be a “complete departure” from Department protocol and could set a “potentially dangerous precedent” for the FBI. McCabe said that Comey was “very aware” that there were many reasons he should not do a statement on his own, and that “conventional wisdom might mitigate against it.” He said that in late April and early May 2016, Comey was “not anywhere close to having decided to do it that way.”

Comey told the OIG that he sat down one weekend and typed out a draft statement. He told the OIG that he did so from memory, explaining that it helps him to write when he is struggling with an idea. Comey described the draft statement as a “straw person,” and told the OIG that he did this with the intention of giving the draft to the team and asking, “What do you think?”

On May 2, 2016, Comey sent an email to McCabe, Baker, and Rybicki including the text of the draft “straw person.” He stated at the beginning of the email: I’ve been trying to imagine what it would look like if I decided to do an FBI only press event to close out our work and hand the matter to DOJ. To help shape our discussions of whether that, or something different, makes sense, I have spent some time crafting what I would say, which follows. In my imagination, I don’t see me taking any questions. Here is what it might look like.

Comey sent a four-page draft statement outlining what the Midyear team did and found by email, which we have provided as Attachment C to this report. The May 2 draft was substantially similar to Comey’s final version, but with several notable exceptions. In particular, the May 2 draft statement used the statutory language from Section 793(f)(1), describing former Secretary Clinton’s handling of classified information as “grossly negligent.” It also concluded that there was evidence of potential violations of this provision and the misdemeanor removal statute, Section 1924. The draft stated:

There is evidence to support a conclusion that Secretary Clinton, and others, used the private email server in a manner that was grossly negligent with respect to the handling of classified information…. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for such an email conversation. Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

Similarly, the sheer volume of information that was properly classified as Secret at the time it was discussed on email (that is, excluding the

“up classified” emails) supports an inference that the participants were

grossly negligent in their handling of that information….

Finally, with respect to our recommendation to the Department of Justice. In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped

collect. Although we don’t normally make public our recommendations

to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.

Although there is evidence of potential violations of the statute proscribing gross negligence in the handling of classified information and of the statute proscribing misdemeanor mishandling, my judgment is that no reasonable prosecutor would bring such a case. At the outset, we are not aware of a case where anyone has been charged solely based on the gross negligence prohibition in the statute. All charged cases of which we are aware have involved the accusation that a government employee intentionally mishandled classified information. In looking back at our investigations in similar circumstances, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: (1) clearly intentional misconduct; (2) vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; (3) indications of disloyalty to the United States; or (4) efforts to obstruct justice. We see none of that here.

As described in more detail below, the language characterizing former Secretary Clinton’s conduct as “grossly negligent,” the inference of gross negligence from the volume of classified email, and the reference to the misdemeanor mishandling statute were omitted from the final version delivered by Comey on July 5, 2016.

We asked Comey about the date of this initial draft and whether it indicated that he had predecided the outcome of the investigation even before the interview of former Secretary Clinton. Comey stated:

[I]f you were in my position after nine months you’re incompetent if you don’t know where this is going. Now the notion that I committed perjury by saying the decision wasn’t made by then. The decision was not made by then. But it was a high probability…this was going to end in a certain way that would be really, really hard, which is the declination, so we better get to work thinking about that. Now if we find something else, great, or if…Hillary Clinton either gives us [18 U.S.C. §] 1001 [false statements] during the interview or the team says you know what, we’ve got to dig into some more stuff because she might have lied to us, wants to pursue additional investigative steps, you either recommend the 1001 or you say you know what, we’ve got more work to do here…. But in May, unless those things happen, I can see where this is headed and we’ve got to start to think carefully because you cannot be thinking about this on the weekend before the case ends. That’s my reaction.

Comey also told the OIG that when he wrote the May 2 draft, he thought the investigation would be completed by June. As described in more detail below, Comey said he did not recall that his original draft used the term “gross negligence,” and did not recall discussions about that issue.

On May 6, 2016, Comey emailed Rybicki and McCabe, stating, “Think maybe

you should share my straw person announcement with Priestap, [Strzok], and [the Lead Analyst]. Close hold to the three of them but might be good to get them thinking.” That afternoon, McCabe forwarded the draft statement to Priestap, Strzok, and the Lead Analyst, as well as Page. In the email, McCabe stated:

The Director composed the below straw man in an effort to compose

what a “final” statement might look like in the context of a press

conference. This was really more of an exercise for him to get his thoughts on the matter in order, and not any kind of decision about venue, strategy, product, etc.

The Director asked me to share this with you four, but not any further. The only additional people who have seen this draft are Jim Rybicki and Jim Baker. Please do not disseminate or discuss any further. (Emphasis in original).

McCabe’s email noted that Comey might want to discuss the draft at the update meeting the following Monday, May 9, 2016. Strzok replied, “Understood and will do.” McCabe then replied to Comey, “Spoke to Bill [Priestap] and passed the email on the red side to Bill, Pete and [the Lead Analyst]. Also took the liberty of including Lisa [Page] – I hope that was ok.”

On May 6, 2016, shortly after receiving the draft, Priestap sent McCabe his initial comments. Priestap stated, “The piece is superb,” and made several suggestions for minor changes. Priestap also noted that the draft contained information indicating that former Secretary Clinton did not comply with federal record requirements, suggesting that Comey have someone study the impact such a statement could have on administrative inquiries related to federal record obligations. McCabe sent these comments to Comey the following week.

On May 16, 2016, Rybicki sent the original draft to a larger group of people that included Anderson, FBI Attorney 1, and Bowdich, stating, “Please send me any comments on this statement so we may roll into a master doc for discussion with the Director at a future date.” The draft statement also was discussed at a meeting that day that was attended by Comey, Rybicki, Bowdich, Steinbach, Priestap, Strzok, the Lead Analyst, Baker, Anderson, FBI Attorney 1, and Page. According to notes from this meeting, one of the items discussed was, “Do we agree w[ith] gross negligence assessment??”

Later that same day, the Lead Analyst provided comments to Strzok for incorporation into a “team response.” The Lead Analyst characterized his comments as technical corrections, including one in which he recommended highlighting that some of the emails were found to contain classified information when sent, not just after the fact. The Lead Analyst stated, “All of this to emphasize that it is not true that this is all a matter of classification after-the-fact and that the people sending these emails should have known better.”

Strzok included these comments and added his and Page’s to an email that he sent to Rybicki, McCabe, and Priestap on behalf of the team on May 17, 2016. This email provided “overarching observations” about the draft, stating that they would provide additional comments and fact checking as Comey narrowed down what he wanted to say. Among the specific recommendations provided were suggestions that the statement include the number of emails containing information that was determined to be classified at the time they were sent to “more directly counter the continuous characterization by Hillary Clinton describing the emails involved in this investigation as having been classified after the fact.”

The May 17 comments also noted the need to distinguish between prior high-profile mishandling prosecutions and the Midyear investigation. Strzok stated:

We’d draw the distinction in noting that we have no evidence classified information was ever shared with an unauthorized party, i.e., notwithstanding the server set up, we have not seen classified information shared with a member of the media, an agent of a foreign power, a lover, etc. Additionally, it’s important to note that had these same emails been sent on a state.gov system rather than a private one, it’s not clear that the FBI would currently have an open investigation.

The May 17 email also commented on language in the initial draft that it was “reasonably likely that hostile actors gained access to Secretary Clinton’s private email account.” Strzok stated:

It is more accurate to say we know foreign actors obtained access to some of her emails (including at least one Secret one) via compromises of the private email accounts of some of her staffers. It’s also accurate to say that a sophisticated foreign actor would likely have known about her private email domain, and would be competent enough not to leave a trace if they gained access. But we have seen no direct evidence they did.

Finally, the May 17 comments listed “whether her conduct rises to the legal definition of gross negligence” as a topic for further discussion.

Responding to Strzok’s email, Priestap provided additional comments on the draft the following day, May 18, 2016. Priestap suggested that the statement should more fully describe the FBI’s role in recommending or not recommending that charges be brought in criminal cases, and why Comey was recommending that charges not be brought against former Secretary Clinton, stating:

I believe it’s equally important for the Director to more fully explain why the FBI can, in good faith, recommend to DOJ that they not charge someone who has committed a crime (as defined by the letter of the law). It’s important the Director explain our recommendation from the FBI perspective and not from the DOJ/prosecutorial perspective. The FBI is recommending that charges not be brought in

this instance, not only because “no reasonable prosecutor would bring such a case,” but because the FBI believes it’s the right thing to do based on…. (Emphasis and ellipses in original).

Priestap also suggested that Comey had the option of not making a charging recommendation at all, but that this would undermine the FBI’s position with the Department in future cases. He suggested that Comey could emphasize privately

to the Department that it should take the FBI’s charging recommendations seriously, stating, “DOJ can’t just stand with us when it’s easy for them to do so.” Priestap’s comments also stated, “While I was initially wary of having the Director

provide an investigative update, I’m beginning to warm to the idea…if we don’t soon shape the narrative with the facts, the narrative will be shaped by others,

potentially harming the FBI.”

According to a meeting log prepared by FBI OGC, on May 24, 2016, Comey met with Page, Strzok, Baker, Anderson, FBI Attorney 1, and others to discuss the statement. Page’s notes from the meeting indicate that the group discussed adding language highlighting how well the Midyear investigation was done and that there had been no political interference. The notes also state that they planned to “have another conversation about the strategy at all [sic].”

1. The Decision to Omit “Gross Negligence”

Comey again met with Rybicki, Bowdich, Steinbach, Priestap, Strzok, the Lead Analyst, Baker, Anderson, FBI Attorney 1, and Page to discuss the statement on May 31, 2016. Notes from this meeting indicate that the discussion included “Lisa [Page]/[FBI Attorney 1] legal thinking.” According to Page, she raised concerns about the use of “grossly negligent” in the draft statement at one of the meetings with Comey (likely the May 31 meeting) before making edits to the statement. Page told us:

I believe that I raised with [Comey] the concern…with the use of gross negligence in particular because I was concerned that it would be confusing if we used a…term that has a legal definition…if we say she’s grossly negligent, that despite the fact that we, we and the Department had a good reason to not charge her with gross negligence, given the fact that they thought it was unconstitutionally vague, and it had never been done, and, you know, sort of all of the concomitant defenses that would also follow from, from her conduct, that it would just be overly confusing.

Page further stated, “If the purpose of this is sort of clarity, and the purpose of this is to sort of try to explain to the American populace what happened and what we think about it, that to use a term that had an actual legal definition would be confusing.” She said that the team discussed the need to find some other way to characterize former Secretary Clinton’s conduct.

FBI Attorney 1 told the OIG that she remembered sitting down with Rybicki, Strzok, the Lead Analyst, and Page to discuss the language of the statute and whether to use “grossly negligent” wording in the draft statement. Based on a meeting log prepared by FBI OGC, we determined that this meeting took place on June 6, 2016. Rybicki said that he did not recall the substance of discussions about removing “grossly negligent” from the draft, but that there was “a lot of discussion” among the FBI OGC lawyers about the statute.” He said he primarily input changes made by others and described his role in revising the statement as “scribe detail.”

After this meeting, Strzok, the Lead Analyst, Page, and FBI Attorney 1 met to edit the statement. Page told the OIG that the four of them edited the document together at Strzok’s computer. Metadata from a version of the statement indicates that Strzok modified the draft on June 6, 2016.134

The next day, June 7, 2016, Strzok emailed an electronic copy of the revised draft to Page, and Page sent it to Rybicki, stating in the email, “Our thoughts, for the Director’s consideration.” The revised draft attached to Page’s email was entitled “MYE thoughts 06-07-16” and included a number of changes from Comey’s original draft. Among the changes in the revised draft was the removal of the conclusion that there was evidence that former Secretary Clinton and her staff were “grossly negligent” in their handling of classified information. Instead, the June 7 draft moved language from the end of the same paragraph in Comey’s original version to the beginning of that paragraph, stating:

Although we did not find evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information…. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for such an email conversation.

Page told us that FBI Attorney 1 was the one who moved “extremely careless” to the beginning of the paragraph. FBI Attorney 1 agreed that she likely was the one who suggested this edit given that she had the most familiarity with the statute. This change was included in the final version of the statement.

The draft also removed a reference to evidence of potential violations of the misdemeanor mishandling statute.135 The draft instead concluded that there was evidence of potential violations of statutes regarding the handling of classified information, and used the language from Comey’s original draft that no reasonable prosecutor would bring such a case.

The June 7 draft included two other significant changes. It removed the statement that the sheer volume of information classified as Secret supported an inference of gross negligence, replacing it with a statement that the Secret information they discovered was “especially concerning because all of these emails

134 Separately, on June 6, 2016, Priestap sent an email to McCabe and other providing input

on the draft statement. In this email, he stated, “In my opinion, due to the election, this matter

warrants the Director providing the American public an update. Ideally, this update would be provided as many weeks in advance of the National Conventions as is possible.” When asked about this email, Priestap told the OIG that in his view the investigation had been politicized, and that former Secretary Clinton engendered strong feelings of support or dislike in some. He explained that he viewed it as

the FBI’s obligation to “let people know what was and was not found.”

135 As set forth in Chapter Two, 18 U.S.C. § 1924 prohibits the knowing removal of documents or materials containing classified information without authority and with the intent to retain such documents or materials at an unauthorized location.

were housed on servers not supported by full-time staff.” The draft also stated that it was “possible,” rather than “reasonably likely,” that hostile actors gained access to former Secretary Clinton’s server.136

Comey told the OIG that he did not recall that his initial draft used “grossly negligent,” and did not specifically recall what discussions led to this change. He said that the group that met to discuss the drafts of his statement—which included Rybicki, Bowdich, Steinbach, Priestap, Strzok, the Lead Analyst, Baker, Anderson, FBI Attorney 1, and Page—struggled to figure out what term to use to describe former Secretary Clinton’s conduct, because “it was more than your ordinary somebody left a document in a unprotected place or had a single conversation.”

According to Comey, they tried to capture the sense that her use of the private server was “really sloppy, but it doesn’t rise to the level of prosecution.” He speculated during his OIG interview that the team advised him that it was unwise to track the statutory language because the “grossly negligent” conduct required by Section 793(f) is something just short of willful or reckless.

Comey told the OIG that nothing the FBI learned between May 2 and July 5 changed their view of whether former Secretary Clinton’s conduct met the definition of “gross negligence.” Comey said that it was his understanding based on the statute’s legislative history that Congress intended for there to be some level of willfulness present even to prove a “gross negligence” violation. When asked whether he believed at any time in the process that former Secretary Clinton was grossly negligent within the meaning of Section 793(f), Comey said, “No.” Comey explained:

There was no evidence to establish anything close to willfulness which I take as a conscious disregard of a non-legal duty and that the closest to there to me was, it’s just really sloppy. A reasonable person in her position should have known, but what I understood 793(f) to be about is something closer to actual knowledge, but I think that it was this is obviously wildly distorted, but I think that’s what we were grappling with….

I’m trying to find a way to credibly describe what we think she did and our sense was, frankly mere negligence didn’t get it because it was not just ordinary sloppiness, it was sloppiness across a multiyear period and so there was, I had in my head some sense that to be credible, we have to capture that and what words do we use to capture it—and

136 As described in Chapter Five, the LHM summarizing the Midyear investigation stated, “FBI investigation and forensic analysis did not find evidence confirming that Clinton’s email server systems were compromised by cyber means.” The LHM noted that the FBI identified one successful compromise of an account belonging to one of former President Clinton’s staffers on a different

domain within the same server that former Secretary Clinton used during her tenure, as well as compromises to email accounts belonging to certain people who communicated with Clinton by email, such as Jake Sullivan and Sidney Blumenthal. The FBI Forensics Agent who conducted the intrusion

analysis told the OIG that, although he did not believe there was “any way of determining…100%” whether Clinton’s servers had been compromised, he felt “fairly confident that there wasn’t an intrusion.”

that’s where we found the formulation extremely careless. Now if I had to do it over again, I might have tried to find another term because this, we sort of walked into this entire side show about 793(f), but I haven’t thought of another term since then.

Comey said that he thought that the June 7 edits “track[ed] [his] formulation” by moving the “extremely careless” language from the end of the paragraph in his original draft to the beginning.

After reviewing a draft of the report, Anderson told the OIG that she raised

concerns about the use of the phrase “extremely careless” to describe former Secretary Clinton’s conduct, as being unnecessary to the statement and also likely to raise questions as to why the conduct did not constitute gross negligence. Anderson said that she recalled that others voiced the same concern, but that she did not recall precisely who raised this issue or what was said. She said that she

recalled that Comey felt strongly that former Secretary Clinton’s behavior was “extremely careless,” and thought that this was the most accurate phrase to describe Clinton’s conduct notwithstanding concerns about criticizing her uncharged conduct or the potential for confusion.

1. Comey’s Edits to the Statement

On June 10, 2016, Rybicki emailed a revised draft of the statement to Comey. Two days later, on June 12, 2016, Comey emailed additional revisions to

Rybicki. Comey stated in his email, “Here is my near final [draft]. Please have the

team review it. I have saved as PDF so the team reads it fresh and not as a track-

change.”

Comey’s June 12 draft incorporated the “extremely careless” language from the previous revisions:

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

For example, seven email chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending emails about those matters and receiving emails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on email (that is, excluding the later “upclassified” emails).

Comey’s June 12 draft added new language that stated, “Separately, it is important to point out that even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.” This language was included in a revised form in the final statement delivered by Comey.

The revisions by Comey and Rybicki included new language about the factors that a “reasonable prosecutor” would consider in declining to prosecute a case. Comey’s June 12 draft stated:

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially about intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

Following these revisions, discussions about the draft statement continued. Meetings took place on June 13, 14, and 15 to discuss various issues related to the draft. Documents provide little information about the substance of these meetings, and witnesses did not have a specific recollection of them.

Comey and Rybicki also continued to refine the draft statement, exchanging revised versions on June 25, 26, and 30, and July 1, 2, and 4. Two significant changes appeared in the statement during this time period.

A June 25 draft added a sentence to a paragraph that summarized the factors that led the FBI to conclude that it was possible that hostile actors accessed former Secretary Clinton’s private server. This new sentence stated, “She also used her personal email extensively while outside the United States, including from the territory of sophisticated adversaries. That use included an email exchange with the President while Secretary Clinton was on [sic] the territory of such an adversary.” On June 30, Rybicki circulated another version that changed the second sentence to remove the reference to the President, replacing it with

“another senior government official.”137 The final version of the statement omitted this reference altogether and instead read, “She also used her personal email

extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries.” FBI emails indicate that the decision to remove this sentence was based on concerns about litigation risk under the Privacy Act.

In addition, on the morning of June 30, Comey added the following paragraph to the statement introduction:

This will be an unusual statement in at least a couple ways. First, I am going to include more detail than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

This paragraph was included in the final version of the statement that Comey publicly delivered on July 5, 2016. While we did not ask Comey if he added this paragraph in response to the tarmac meeting between Lynch and former President Clinton, as described below in Section IV.D, Comey told us that this meeting

“tipped the scales” in terms of his decision to deliver his statement “separate and apart” from the Department.138

137 After reviewing a draft of this report, Rybicki explained that, although he circulated the new version of the draft statement, he did not suggest or make this specific edit.

138 Text messages between Page and Strzok on July 1, 2016, the day Lynch announced she would accept the recommendations of career prosecutors and agents, speculated that the tarmac meeting was the reason for inserting the “no coordination” language:

5:34 p.m., Strzok: “Holy cow…nyt breaking Apuzzo, Lync[h] will accept whatever rec D and career prosecutors make. No political appointee input.”

5:41 p.m., Strzok: “Lynch. Timing not great, but whatever. Wonder if that’s why the no coordination language added[.]”

7:29 p.m., Strzok: “Timing looks like hell. Will appear choreographed. All major news networks literally leading with ‘AG to accept FBI D’s recommendation.’”

7:30 p.m., Page: “Yeah, that is awful timing. Nothing we can do about it.”

7:31

p.m., Strzok: “What I meant was, did DOJ tell us yesterday they were doing this, so D added that language[?]”

7:31

p.m., Strzok: “Yep. I told Bill the same thing. Delaying just makes it worse.”

7:35

p.m., Page: “And yes. I think we had some warning of it. I know they sent some statement to rybicki, bc he called andy.”

7:35

p.m., Page: “And yeah, it’s a real profile in courag[e], since she knows no charges will be brought.”

1. FBI Analysis of Legal and Policy Issues Implicated by the Draft Statement

Comey told the OIG that he included criticism of former Secretary Clinton’s uncharged conduct because “unusual transparency…was necessary for an unprecedented situation,” and that such transparency “was the best chance we had of having the American people have confidence that the justice system works[.]” He said that that he asked Baker and FBI OGC to “scrub” his draft statement and “think about it through all possible policy, legal lenses.” He said that his recollection was that “the only [issue] they thought that was worthy of discussion was the Privacy Act, and they had their Privacy Act czar d[o] a memo for me laying out how—why they thought it was fine under the Privacy Act.”139 Comey said that Baker’s advice to him was that “there w[ere] no policy or legal issues created by you doing this.” Baker told the OIG that he and other FBI OGC attorneys did see numerous legal and policy issues associated with the statement, but that they could not find a clear legal prohibition that would have prevented Comey from issuing the statement.

Comey cited as precedent for his statement the press conference he gave in June 2004, when he was the Deputy Attorney General, summarizing the evidence against José Padilla, a U.S. citizen who had been designated as an enemy combatant due to his support for al Qaeda.140 He stated:

I mean it wasn’t a case, but I actually remember when I was DAG providing extraordinary transparency to the public around José Padilla which was a subject of great concern and controversy at the time and I remember commissioning the drafting of a very transparent statement about everything we knew about him and then pushing to get it declassified, get it reviewed for Privacy Act compliance which we

139 The Privacy Act of 1974, 5 U.S.C. § 552a, prohibits an agency from disclosing a record

about an individual to a person, or to another government agency, from a “system of records” absent

the written consent of the individual, unless the disclosure is pursuant to a statutory exception. A system of records is a group of records under the control of an agency from which information is retrieved by the name of the individual or some other personal identifier assigned to the individual. Relevant information about an individual may be disclosed without consent under 12 statutory exceptions set forth in the Privacy Act, including one permitting “routine use” by the agency. See 5

U.S.C. § 552a(b)(3). One of the “routine uses” adopted by the FBI permits disclosure to “members of

the general public in furtherance of a legitimate law enforcement or public safety function as

determined by the FBI,” for example, “to provide notification of arrests…or to keep the public

appropriately informed of other law enforcement or FBI matters or other matters of legitimate public interest where disclosure could not reasonably be expected to constitute an unwarranted invasion of personal privacy.” This includes the disclosure of information under 28 C.F.R. § 50.2, which governs the release of information about criminal and civil proceedings by Department personnel (including the FBI).

140 See Transcript, Press Conference of James Comey, CNN, June 1, 2004, http://www.cnn.com/2004/LAW/06/01/comey.padilla.transcript (accessed May 1, 2018). Padilla was initially arrested on a material witness warrant in May 2002 but was then declared an enemy combatant by President Bush in June 2002 and transferred to military custody. Padilla was subsequently prosecuted by the Department in the civilian court system and in August 2007 a federal jury found him guilty of conspiring to commit murder and fund terrorism.

also did here and then getting that out, so I remembered that pretty well.

Comey also cited the Department’s letter to Congress summarizing the results of the criminal investigation into Internal Revenue Service (IRS) officials, including Lois Lerner.141 Comey said that the Lerner letter, which criticized IRS officials for

“mismanagement, poor judgment, and institutional inertia” that did not amount to criminal conduct, supported his decision to criticize former Secretary Clinton’s handling of classified information even in the absence of sufficient evidence to establish her criminal liability.142

Witnesses told us that the Privacy Act concerns stemmed largely from Comey’s criticism of former Secretary Clinton’s conduct in his draft statement, but that they believed including such criticism served a legitimate law enforcement function (and thus was permitted). According to FBI Attorney 1, the high public interest in the case, the particular individual involved, and the need to deter others provided justifications for including the information:

So it wasn’t just that we weren’t prosecuting her, but you didn’t want to leave the impression with…the rest of the community that she’s getting away with something or…that this is okay to do this. And so I think there was that, that balance. And that’s why I don’t think I thought so hard about the, the fact that we were talking about uncharged conduct of her. I was thinking more in terms of well we need to kind of balance this so that people understand that we’re not

141 On October 23, 2015, the Department’s Office of Legislative Affairs (OLA) sent a letter to Congress summarizing the results of a criminal investigation conducted by the Criminal and Civil Rights Divisions, in conjunction with the FBI and the Treasury Inspector General for Tax Administration, into whether any IRS official targeted tax-exempt organizations for scrutiny based on their ideological views. The letter stated that the investigation uncovered “substantial evidence of mismanagement, poor judgment, and institutional inertia,” but “no evidence that any IRS official acted based on political, discriminatory, corrupt, or other inappropriate motives that would support a criminal prosecution.” Regarding Lois Lerner, the former Director of the IRS Exempt Organizations Division, the letter stated that the investigation had focused on her criminal culpability given her oversight role and emails discovered in which she “expressed her personal political views and, in one case, hostility toward conservative radio personalities.” The letter concluded that Lerner “exercised poor judgment in using her IRS email account to exchange personal messages that reflected her political views,” but that prosecutors could not “show that these messages related to her official duties and actions[.]” Peter Kadzik, Assistant Attorney General, U.S. Department of Justice, letter to The Honorable Bob Goodlatte and John Conyers, Jr., October 23, 2015, at http://online.wsj.com/public/resources/documents/IRS1023.pdf.

142 Comey told the OIG that “a friend of [his who] is a law professor” had a law student compile a chart showing cases in which the Department made a public statement announcing the closing of an investigation. The chart was created in January 2017, and included 31 cases since February 2010 in which such statements were made by Department leadership or a U.S. Attorney’s Office. Although the chart noted one case in which an FBI agent spoke at a press conference with the

U.S. Attorney, every case listed in the chart involved a public statement coordinated with or made by the prosecutors. The OIG determined that the “law professor” referenced by Comey was Dan Richman, a professor at Columbia Law School who was also a special government employee (SGE) for the FBI from June 2015 to February 2017.

giving her a clean bill of health, you know, and that people can do this kind of activity.

Anderson told the OIG that she expressed concerns about criticizing uncharged conduct during discussions with Comey in June 2016. She said that the decision to include such criticism “was a signal that…we weren’t just letting her off the hook…. [O]ur conclusions were going to be viewed as less assailable…at the end of the day if this kind of content was included.”

Baker told the OIG that “there were multiple audiences” for the criticism of former Secretary Clinton in Comey’s statement. He recounted hearing that FBI employees not involved in the Midyear investigation hated former Secretary Clinton and had made comments such as, “[Y]ou guys are finally going to get that bitch,” and, “[W]e’re rooting for you.” Baker stated, “And if we’re not going to get her on these facts and circumstances, then we’d better explain that now.” Related to this idea, notes taken by Strzok at a May 12, 2016 meeting involving the Midyear team state, “Messaging thoughts: Workforce Qs: (1) If I did this, I’d be prosecuted; (2) Petraeus, Berger, etc. were charged; (3) Overwhelming conservative outlook.”

FBI Attorney 1 told the OIG that she also considered whether the July 5 statement would violate the Department’s Election Year Sensitivities Policy. As described in Chapter Two, that policy requires approval from the Public Integrity Section of the Criminal Division before filing charges or taking overt investigative steps near the time of a primary or general election. However, the policy applies only to election crimes cases. FBI Attorney 1 told us, “Someone mentioned [the policy] at that time. And I looked into it, and…it’s not specific to this kind of case. And that’s kind of the problem, I think, with the policy.”

Baker told the OIG that the FBI took into account and complied with the requirement that Department personnel obtain the approval of the Attorney General or the Deputy Attorney General for the public release of certain information.143 Baker said that Comey’s call to Lynch and Yates on the morning of his July 5 press conference (described below) telling them that he planned to hold a press conference later that morning, and their failure to instruct him not to do so, constituted “permission” under Department regulations. Baker said that this was so even though Comey called Lynch and Yates only after calling the press and he had refused to tell Lynch and Yates what he planned to say. When pressed by the OIG about this interpretation of the regulation, Baker acknowledged that it was “aggressive.” In comments to the draft report, Baker further explained that because Comey did call Yates and Lynch on July 5:

They could have demanded to know what he was going to say, and/or could have told him not to do it without a full discussion with them. They did not. One is the AG, the other the DAG. They had an

143 Under 28 C.F.R. § 50.2(b)(9), the permission of the Attorney General or the Deputy

Attorney General is required “if a representative of the Department believes that in the interest of the

fair administration of justice and the law enforcement process information beyond these guidelines

should be released.”

opportunity to say “no” or “stop” to the FBI Director. For whatever

reasons, they did not. That is on them.

1. Concerns about a Public Statement

Numerous witnesses told the OIG that, while they did not recall any significant disagreement within the FBI about whether Comey should do a public statement, there was concern about whether he should do one on his own, without advance notification to or coordination with the Department. McCabe’s initial reaction to the idea was that it would breach Department protocol and create “dangerous precedent” for the FBI, among “a million other possible things” that could go wrong. However, McCabe told the OIG, “[U]ltimately I was convinced that, that he was doing what he thought was right and that what was right for the case.”

Baker told the OIG that he raised similar concerns in various one-on-one discussions with Comey over an extended time period. Baker said he did so because he “viewed it as my obligation to push back aggressively with respect to whatever [Comey] said if I thought it was wrong,” to make sure that all legal, policy, and ethical issues were fully evaluated, and to “think about how others would think about things” from different perspectives and at different times. Baker said that he and Comey discussed a range of options for announcing a declination and thought through the benefits and drawbacks of each, “tr[ying] to find some door other than the doors that led to hell.”

Comey also sought input from his former FBI Chief of Staff, Chuck Rosenberg, who at the time was the Acting Administrator of the Drug Enforcement Administration. Comey told the OIG that in May and June 2016 he spoke to Rosenberg and “sounded him out” about the possibility of doing an FBI-only press announcement to close the investigation. According to Comey, Rosenberg was concerned that doing a statement would be unprecedented, expose Comey to “extraordinary fire,” and create an irreparable breach with the Department. Comey said that Rosenberg thought that doing the statement was a “close call, but on balance, it’s the right call.”

Rosenberg told the OIG that he spoke to Comey three times about the draft statement. He said that Comey first reached out to him in late April or early May 2016, before there was a draft statement and well before the tarmac meeting between Lynch and former President Clinton. Rosenberg said that Comey was seeking guidance on whether he should make a public statement to announce the FBI was closing the Midyear investigation, or should do a referral to the Department. Rosenberg described Comey as “wrestling” with the decision and trying to figure out the right thing to do.

Rosenberg said that Comey showed him a hard copy of the May 2 draft statement, and told him that he planned to do the statement on his own, without coordinating with the Department. Rosenberg said that Comey thought he could more credibly announce a declination without the Department because of the “politics” of having an Attorney General appointed by a Democratic President close an investigation into the Democratic presidential nominee without charges. Asked whether Comey discussed concerns about Lynch based on her instruction to him to call the investigation a “matter” or classified issues reflecting potential bias by her, Rosenberg said that he did not recall Comey mentioning those to him.

Rosenberg said that he had two competing reactions to the statement. He

said that on one hand, it was “outside the norm” and inconsistent with the Department’s practice, and that had the FBI publicly announced a recommendation when he was a U.S. Attorney instead of giving it to him privately, he would not have been happy. On the other hand, he thought that Comey was a “compelling and credible public servant,” and he said he understood why Comey thought he could “do this and do it well.” Rosenberg said that he did not tell Comey that it was a good or bad idea, but instead raised questions about what other options were available and the potential ramifications of an FBI Director giving a public declination. Rosenberg said that he recalled telling Comey it was a “52-48 call,” but that he went back and forth on whether the “52” weighed in favor of or against

doing the statement.

1. Comey’s Decision Not to Inform the Department

As described above, documents and testimony indicate that Comey planned to do the statement independently without advance notice to the Department even before the tarmac meeting between Lynch and former President Bill Clinton. Comey acknowledged that he made a conscious decision not to tell Department leadership about his plans to independently announce a declination because he was concerned that they would instruct him not to do it, and that he made this decision when he first conceived of the idea to do the statement. He stated:

The, come May, and I’m trying to figure out how the endgame should work, to preserve the option that I ended up concluding was best suited to protect the institutions, I couldn’t tell them that I was considering that. Because if I told them that one of the—in my mind I drew this spectrum—at one end of the spectrum is I’m going to announce separate from you what the FBI thinks about this and very practical about it they, I remember thinking this, if I surface that with them, they might well say, I order you not to do that and then I would abide that, I wouldn’t do that.

And so I remember saying to the Midyear team when I circulated in May my first draft I said what would the most, one end of the spectrum, what would that option look like? I said keep this close hold, I mean you can have conversations with the Department of Justice about the endgame, but don’t tell them I’m considering this because then that option is going from us. Because if I were the DAG, maybe they wouldn’t have, but what I was thinking was, if I’m the DAG I say, just to be clear, I order you not to make any statements on this case without coordinating it with us. And so to be honest, I would lose that option.

Asked whether he owed it to Department leadership to inform them of what he was thinking so that they could make a decision on behalf of the Department, Comey

stated, “In a normal circumstance, sure.” He explained that the Midyear

investigation was not a normal circumstance:

[T]o my mind, the peril to the Department, including the FBI, was so extraordinary, the potential for damage to the institution, that I needed to preserve that option…. And so look I, everything about this is unprecedented and God willing no Director will ever face this circumstance, but I thought that to protect the institution I care about so much, I have to preserve that option. Of course, in a normal circumstance it’s the right of the Attorney General and Deputy Attorney General to make those decisions and the FBI Director should tell them, but this was not the normal circumstance.

Comey told the OIG that he did not credibly think that Lynch and Yates were going to stop him when he informed them about his plans on the morning of his press conference, and that he wrestled with whether to tell them at all.

1. June 27, 2016 Tarmac Meeting and Aftermath
2. Meeting between Lynch and Former President Clinton
3. How the Meeting Came About

On June 27, 2016, Lynch flew to Phoenix as the first stop in a week-long community policing tour.144 Traveling with her were her husband, her Deputy Chief of Staff, a senior counselor to the AG (Senior Counselor), a supervisor in the Department’s Office of Public Affairs (OPA Supervisor), and another Department official. Lynch told the OIG that her plane landed several hours late, and they arrived in Phoenix around 7 p.m. local time. According to Department witnesses, Lynch’s staff left the plane first and boarded the staff van. Lynch remained on the plane with her husband and the head of her security detail, and waited to get off the plane until her motorcade was ready. The OPA Supervisor explained that this practice is standard FBI protocol and is intended to leave the Attorney General “out in the open for the least amount of time.”

Approximately 20 to 30 yards from Lynch’s plane was a private plane with former President Bill Clinton on it. Former President Clinton had been in Phoenix for several campaign events, including a roundtable discussion with Latino leaders and a campaign fundraiser, and his plane was preparing to depart. Former President Clinton said that he did not know in advance that Lynch was in Phoenix and was not aware that her plane was close to his until his staff told him. Asked

144 The Attorney General is required to travel on government aircraft for communications and security reasons, and used FBI and Department aircraft to do so.

about news reports that he purposely delayed his takeoff to speak to Lynch, former President Clinton stated:

It’s absolutely not true. I literally didn’t know she was there until somebody told me she was there. And we looked out the window and it was really close and all of her staff was unloading, so I thought she’s about to get off and I’ll just go shake hands with her when she gets off. I don’t want her to think I’m afraid to shake hands with her because she’s the Attorney General.

He said that he discussed with his Chief of Staff whether he should say hello to Lynch, and that they debated whether he should do it because of “all the hoopla” in the campaign. He stated, “I just wanted to say hello to her and I thought it would look really crazy if we were living in [a] world [where] I couldn’t shake hands with the Attorney General you know when she was right there.”

Former President Clinton said that he did not consider that meeting with Lynch might impact the investigation into his wife’s use of a private email server. He stated, “Well what I didn’t want to do is to look like I was having some big huddle-up session with her you know…. [B]ecause it was a paranoid time, but…I knew what I believed to be the truth of that whole thing. It was after all my server and the FBI knew it was there and the Secret Service approved it coming in and she just used what was mine.” As a result, he said that he never thought the investigation “amounted to much frankly so I didn’t probably take it as seriously as maybe I might have in this unusual period[.]”

Former President Clinton said that he recalled walking toward Lynch’s plane with his Chief of Staff, and that Lynch and her staff were “getting off the airplane.” He said that he greeted Lynch, who was on the plane, and Lynch stated, “[L]ook it’s a 100 degrees out there, come up and we’ll talk about our grandkids.”

The Senior Counselor told the OIG that she was waiting in the van with the three other Department employees on the trip, and she saw two people walking toward Lynch’s plane. She said that as the two people went up the stairs to the plane, she realized that one of them was former President Clinton. The Senior Counselor said that she saw the head of Lynch’s security detail turn away the second person at the door and allow former President Clinton to board the plane. Other witnesses recalled that former President Clinton had additional staff members with him, and that these people did not board the plane.

The Deputy Chief of Staff said that she had “zero knowledge” that former President Clinton was there before she saw him approach the plane. She stated, “And if I had knowledge, I would not have been in that van. I would’ve…stayed on the plane and got everybody off…. No heads up or anything.” The Senior Counselor said she asked everyone in the van if they knew that former President Clinton was going to be there, and they all said no. The OPA Supervisor said that he later learned that former President Clinton’s Secret Service detail had contacted Lynch’s FBI security detail and let them know that the former President wanted to meet with Lynch. Although Lynch’s staff was supposed to receive notice of such requests, witnesses told us that they were not informed of the request from former President Clinton.145

Lynch said that she was on the plane with her husband and the head of her security detail, and that they were preparing to leave when she learned that former President Clinton had asked to speak to her. She stated:

[W]e were walking toward the front door, and then…the head of my detail stopped and spoke to someone outside the plane, turned around and said former President Clinton is here, and he wants to say hello to you. And I think my initial reaction was the profound statement, what? Something like that. And he repeated that. And he spoke again to someone outside the plane. And we were, we were about to walk off the plane. We were going to go down the stairs and get into the motorcade and go on, and…the head of my detail said…can he come on and say hello to you? And I said, yes, he can come on the plane and say hello. And he was literally there. So I don’t know if he was talking to President Clinton or somebody else. I don’t know who was on the steps.

Lynch said that former President Clinton boarded the plane in a matter of seconds, suggesting that he was in the stairwell near the door to the plane. Lynch said that she was very surprised that he wanted to meet with her because they did not have

a social relationship, and she was also surprised to see him “right there in the doorway so quickly.”

Lynch said that she had “never really had a conversation” with former

President Clinton before this meeting, or with former Secretary Clinton at any time.

She said that “years ago” when she was the U.S. Attorney for the Eastern District of

New York, she saw former Secretary Clinton at a 9/11 event and said hello.146 She said that she also saw both of them at the funeral for former Vice President Joe Biden’s son, Beau Biden, which was held on June 6, 2015. She said that she recalled that during that conversation former President Clinton congratulated her on the FIFA corruption case. Lynch told the OIG that she did not have a social

145 On July 2, 2016, the head of Lynch’s security detail sent an email to another agent in the FBI Security Division, stating, “I will explain the details later, but you know, we [are] not the final word as to who comes in or out of the AG’s space. Her staff dropped the ball in a big way, and we were the easy scapegoats! I’m pretty pissed about the way things went down and how they were handled afterwards, needless to say I will be making some changes as to how much interaction we will

have with this staff going forward.” The OIG considered but decided not to interview the head of Lynch’s FBI security detail because of concerns that requiring a member of the Attorney General’s

security detail to testify about what he observed in the course of conducting his official duties could impair the protective relationship and because the security concerns raised by the head of the security detail in his email were not a focus of this review. Further, we believed it was unlikely that the head of the security detail would have been in a position to be able to overhear the conversation between Lynch and former President Clinton.

146 Lynch was nominated by former President Clinton to be the U.S. Attorney for the Eastern District of New York, and served from June 2, 1999 to May 2, 2001. Lynch served in the same position from May 8, 2010 to April 27, 2015.

relationship or socialize with either former President Clinton or former Secretary Clinton.

However, Lynch said that public officials often stopped her to say hello when she traveled, and that as a result she was not initially concerned when former President Clinton wanted to say hello. For example, Lynch told us that Ohio Governor John Kasich, who was a candidate in the 2016 Republican presidential primary, stopped her one time to say hello in an airport, and they had a 10-minute conversation even though they had never met before. The OPA Supervisor told the OIG, “It wouldn’t be uncommon for [Lynch] to…match courtesy with courtesy regardless of [whether the person was] Republican, Democrat, whatever.”

2. Discussion between Former President Clinton and Lynch

During our review, we found no contemporaneous evidence, such as notes, documenting the substance of the discussion between Lynch and former President Clinton. The only documentary evidence we identified that summarized the meeting were “talking points” created by Lynch’s staff after the meeting became a subject of controversy, as discussed in Section IV.B.

Former President Clinton and Lynch denied that they discussed the Midyear investigation, the upcoming interview of former Secretary Clinton, any other Department investigation, or plans for Lynch to serve in some capacity in a Hillary Clinton administration. We summarize below what they told us about their discussion.

Former President Clinton’s Testimony

Former President Clinton told us that he congratulated Lynch on being named Attorney General and mentioned several things that she had done that he thought were good policy, such as continuing with criminal justice reforms that were implemented by former Attorney General Eric Holder. He said that they then talked about their grandchildren, his recent visit to see former Attorney General Janet Reno, and his golf game.

We asked former President Clinton if he had discussed Brexit or West Virginia coal policy with Lynch. He said he did not recall Brexit coming up, but acknowledged that he probably did discuss it with her because he was very worried that it would disrupt the Irish peace process.147 When asked whether his comments included the potential implications of the Brexit vote and the rise of populism for the U.S. election, he stated that he did not remember discussing that, but that one of his “automatic responses” during the campaign was to describe how the press had underestimated the reaction to globalization and the resulting identity crisis, and how Brexit was simply a manifestation of that. As a result, he said he could not rule out that he said something similar to Lynch. Former President Clinton also said that he did not recall mentioning West Virginia coal policy to Lynch, but that he

147 On June 23, 2016, voters in the United Kingdom approved a referendum to leave the European Union, a decision known as Brexit.

would not be shocked if he had done so because he thought a lot about it, and he frequently talked about the issue.

Former President Clinton said he did not recall telling Lynch that she was doing a great job, but told us he probably did so because “the Justice Department…when President Obama was there, I thought they did a lot of good things that needed doing, especially in criminal justice.” However, he denied that his comments were motivated by an intent to influence the investigation. He told us that he did not recall telling Lynch that she was his favorite cabinet member, and he did not think it was likely that he would have made such a comment. He stated, “I like her, but I’m very close to Tom Vilsack and was very close to a couple of the others, so I couldn’t have said that, but I do like her a lot.”

Former President Clinton said he only mentioned former Secretary Clinton once during the discussion, and that concerned how happy she was to be a grandmother. He said he told Lynch:

[T]hat she was a happy grandmother and an ardent one and that we were very lucky because our daughter and her husband and our grandchildren live in New York, so they are about an hour from us in a decent traffic day. And I told her that before the campaign was underway Hillary and I tried to see our grandkids every week and in the best weeks, she would see them once when she was down there. Then I would see them once and then we’d see them once together and I was down, and I remember talking about every now and then we got them up in Chappaqua where we live and it was quite bracing trying to keep up with them and how much fun it was and that’s really what we talked about.

I do remember saying that grandparents typically say it’s better than being a parent because it’s all the fun and none of the responsibilities, and I told Chelsea once after [her daughter] was born that she would never hear me say that, that I still thought being her father was the best gig I ever had.

When asked whether they discussed former Secretary Clinton’s upcoming interview with the FBI, Clinton replied, “Absolutely not…. [I]t wouldn’t have been appropriate for me to talk to her about any of that and I didn’t.” He said that they also did not discuss the Midyear investigation, the Clinton Foundation matter, any other Department investigation, the Benghazi hearings held by Congress, or then FBI Director Comey.

We asked former President Clinton whether he discussed the possibility of Lynch serving as Attorney General or in another position in a future Hillary Clinton administration, or a possible judicial nomination. He stated:

No. Not even with anybody else. Not with Hillary. Not with anybody…. We didn’t discuss that because…I’m very superstitious. I never discuss anything like that. I want everybody to focus on the matter at hand and I thought the environment was much more volatile than a lot of people did.

Former President Clinton also said that he was a little surprised by the criticism after his tarmac meeting with Lynch. He stated:

[T]he mainstream media wasn’t as bad on that as they were on a lot of things, I thought, I think the ones that were criticizing me, I thought you know, I don’t know whether I’m more offended that they think I’m crooked or that they think I’m stupid. I’ve got an idea, I’ll do all these things they accuse me of doing in broad daylight in an airport in Phoenix when the whole world can see it in front of an Air Force One crew and I believe one of her security guards. It was an interesting proposition, but no we did not.

Lynch’s Testimony

As described above, Lynch said the head of her security detail told her that former President Clinton wanted to speak to her, and she said that he could come on the plane and say hello. Lynch told the OIG that she thought that she and former President Clinton would briefly exchange greetings, and then she would get off the plane. She described what happened after he boarded the plane:

Well first we’re…standing in the…the cabin of the plane because, again, he’s saying he wanted to say hello. I introduce him to my husband. We were standing up, because I thought we were going to stand up, say hello, and then keep walking. There were two members of the flight crew in the back section of the plane. So, President Clinton shook hands with the head of my detail, with my husband, with me. He went back and spoke to the two members of the flight crew, and he stayed back there for a few minutes, like five minutes maybe, because he spoke individually to each of them for a few minutes…. And they were very excited, you know…. [H]e was very gracious to them.

Lynch said that former President Clinton then returned to the front of the plane where she and her husband were standing and began talking to her husband. She said they had a brief discussion about Lynch’s trip to Phoenix, Clinton’s new grandchild, and various family issues including how to deal with sibling rivalry. She said they were still standing during this discussion, but that former President Clinton sat down after a few minutes:

At some point, after two or three minutes, President Clinton turned around. I had my tote bags on the bench seat of the plane, because I had put them there when he came on board. I had been holding them. I put them down. He picked up my tote bags and moved them, and then he sat down. So he sat down, and my husband and I were still standing in front of him having the discussion. And…he sort of sat heavily, and…I didn’t know…how he felt, so I can’t say one way or the other. But he sat down and started talking about, you know, the grandkids and how they introduced them to each other. And so, and ultimately, because this went on for a little but, my husband and I sat down also, and, you know, had that discussion about his family and the kids[.]

She said that after this, the discussion continued, with former President Clinton doing most of the talking. She stated:

Well, after he was sharing with us his story about how…they introduced the two grandchildren to each other, which involved a toy…and that was green, and just, again, the family issues, he said what brings you to Phoenix. And I said I’m here on a police tour, and I’m doing a lot about the law enforcement community relations. And I said, you know, how did you find Phoenix? And he mentioned that he had been there for several meetings, he had played golf. I made a reference to the heat, because it was still incredibly hot while we landed, which was why we were still on the plane.

And he made a comment about playing golf, and you can manage the heat. Just, he was talking a lot about the golfing issue was well, but nothing of substance about that. And he asked about my travels, and I said that I had been recently traveling to China. I had to come back for the Pulse Nightclub [shooting]. I had been to Alaska and met with Native youth. I then said…you know, that was an issue of great importance to [former Attorney General Janet] Reno. Have you talked with her lately and do you know about her health? And he said, yes, I’ve seen her. I visited her along with Donna Shalala, I visited her, and he told me when. And I said because she’s not doing well. We talked about that for a few minutes.

And I remember at that point saying, well, you know, thank you very much kind of thing, and he sort of continued chatting and, and said, and made a comment about his travels he was headed on. And I said, well, we’ve got to get going to the hotel. And I said I’m sure you’ve got somewhere to, to go. And he said yes. And I forget where he told me he was going. He was flying somewhere, but…I’ve forgotten where. He said I’m going to wherever I’m off to. And then he made some comment about West Virginia. And I do not know if he was headed to West Virginia. I just don’t know…if that was the reference to it. And he made a…comment about West Virginia and coal issues and how their problems really stem from policies that were set forth in 1932. And he talked about those policies for a while. And, and I said, okay, well.

According to Lynch, Clinton discussed West Virginia coal policy as an historical issue, not in connection with the campaign. She said that he discussed Brexit in a similar context, talking about the cultural issues that led to the decision and

whether “people in the UK viewed themselves as citizens of the world or the country or whatever.”

In response to specific questions asked by the OIG, Lynch said that she and former President Clinton did not discuss the Midyear investigation or any other Department investigation, James Comey, Donald Trump, or the upcoming Presidential election. She said that they also did not discuss possible positions for her in a future Hillary Clinton administration, a potential nomination to the Supreme Court, or her future plans after President Obama left office.

Lynch said that Clinton told her that she was “doing a great job as a cabinet member or…words to that effect.” She said that she thought that he was flattering her and “would have said that to every cabinet member at that time. No, I, I viewed it as…him being jovial, honestly, and being genial.”

Lynch estimated that she talked to former President Clinton for approximately 20 minutes before a member of her staff came back onto the plane, as we describe below. She said that she became increasingly concerned as the meeting “went on and on.” Lynch said that when she thought about it later that evening and discussed it with her staff about in the context of the case, she concluded “that it was just too long a conversation to have had. It…went beyond hi, how are you, shake hands, move on sort of thing. It went beyond the discussions I’ve had with other people in public life, even in political life, it went beyond that [in terms of length].”

3. Intervention by Lynch’s Staff

While former President Clinton was on the plane, Lynch’s staff were waiting in the staff van. The Deputy Chief of Staff said that they quickly realized that the meeting was problematic, because Clinton was not just the former President but was also the husband of someone who was under investigation. The Deputy Chief of Staff said that she felt “shocked,” and that they all “just felt completely…blindsided.” The Senior Counselor said that they immediately were aware that the meeting was ill-advised and that the “optics were not great.”

The OPA Supervisor said that he waited approximately 5 minutes, and then he left the van. He said he went over to one of the other agents on Lynch’s security detail, who was waiting in the vehicle that was going to carry Lynch. The OPA Supervisor said that he asked the agent what was going on, whether there had been any notice that former President Clinton wanted to say hello, and how long he was supposed to be on the plane. The OPA Supervisor said that the agent did not know. According to the OPA Supervisor, he asked the agent to tell the head of Lynch’s security detail that Lynch needed to end the meeting. The OPA Supervisor stated, “And I don’t know that [the head of Lynch’s security detail] thought it was appropriate to [ask her to] wrap it up because I guess that’s his boss too.”

The OPA Supervisor said that there was a photographer outside, and he recalled telling the photographer that Lynch would not be taking pictures. The OPA Supervisor said that he remembered telling the photographer that he (the photographer) needed to go back in his car. The OPA Supervisor stated, “I’m going back in my car. Like, no one is hanging out. I like President Clinton, too. I’m not hanging out for a photo.” The OPA Supervisor said that he then got back in the staff van.148

By this time, former President Clinton had been on the plane for approximately 10 to 15 minutes. The Deputy Chief of Staff said that they were discussing the need for someone to go back on the plane when the Senior Counselor, who led the Phoenix portion of the trip and therefore was seated in the front of the van closest to the door, told the group that she was going to go and jumped out of the van. The Deputy Chief of Staff said, “And then [the Senior Counselor] was just running upstairs. And so, that’s how—that’s when we decided…to do something.” The Senior Counselor described her thinking at the time: “And I don’t know what’s going on up there, but I should at least go up to intervene or help her if she needs help…. I think…it was part uncertainty and part kind of like this is a bad idea.”

The Senior Counselor said that when she tried to go back on the plane, she was stopped by the head of Lynch’s security detail, who was at the door of the plane. The Senior Counselor said that she told him that Lynch’s meeting with former President Clinton was not a good idea, and that she needed to get back on the plane, but he still would not let her on. The Senior Counselor said that she then asked him to convey to Lynch that she was advising that the meeting was a bad idea. According to the Senior Counselor, he told her, “All right, why don’t you tell her yourself,” and finally allowed her to board.

The Senior Counselor said that when she got on the plane, she saw Lynch, Lynch’s husband, and former President Clinton sitting down and “chatting…in a casual way.” The Senior Counselor said that she walked up to the three of them and stood there hoping that her presence would break up the meeting. She said that Lynch saw her and introduced her to former President Clinton, and she shook his hand. The Senior Counselor said that she hoped this would get everyone moving, but then former President Clinton sat back down. The Senior Counselor stated, “So then…I kind of didn’t know what to do because…it was a little bit unusual to be in a room with…a former president and say…you need to leave…. So…I think I stared at them for a little bit longer, and then went back to where [the head of Lynch’s security detail] was standing.” The Senior Counselor said that she considered whether she should go get someone else or go back over to Lynch and tell her, “Look, ma’am, we have to go.” She said she then went and stood in front of the group again.

The Senior Counselor said that her presence prompted Lynch to tell former President Clinton that the reason she (the Senior Counselor) was standing there was that she was too polite to tell Lynch that they had to go. The Senior Counselor said that Lynch told former President Clinton, “And we do have to go. You know…we have a pretty busy schedule.” The Senior Counselor said that she could not recall what Lynch and former President Clinton were discussing, but that her

148 We asked Lynch about news reports that her security detail did not allow photos to be taken of the meeting. Lynch said that she did not recall any such discussions, but that it was her standard practice not to take photos with anyone involved in a campaign around an election.

impression was that Lynch was “uncomfortable and wanted the meeting to be done.”

Lynch said that after the Senior Counselor got back on the plane, former President Clinton commented, “Oh, she’s mad at me, because I’d been on the plane too long. And she’s come to get you.” Lynch said that she replied to him, “[W]ell, we do have to go. And then he kept talking about something else.” She said that he kept talking for “a good 5 minutes” after the Senior Counselor got back on the plane. Lynch said that she finally stood up and said, “[Y]ou know, it was very nice of you to come. Thank you so much. And just…thank you again for stopping by.” She said that they said goodbye several times, and her husband shook former President Clinton’s hand again. Former President Clinton then left the plane.

The Senior Counselor said she went to talk to Lynch after former President Clinton left. She stated, “And I kind of looked at her and…I think I said…something like that was not great, or…something like that. And she’s like, yeah.” She described Lynch as “look[ing] kind of…gray and, you know, not pleased.” The Senior Counselor said that after they left the plane, she got into the staff van, Lynch got into her vehicle, and they went to the hotel. She said that they did not talk to Lynch about what happened until the next day.

The Deputy Chief of Staff told the OIG that they did not attempt to get information from the head of Lynch’s security detail about the conversation that took place on the plane. She explained:

And my only conversation with [the head of Lynch’s security detail] was a rare, fairly admonishing one…just saying, this is not okay, this shouldn’t be the protocol; you didn’t contact me; you could’ve radioed your FBI guy in the van to say, send someone up. So…my conversation was not a very pleasant one by the time I talked to [the head of Lynch’s security detail]. So I didn’t ask questions like, oh, what did you hear. I was just like, we need to figure this out, and this never needs to happen again.

The Deputy Chief of Staff said that the security protocol was changed almost immediately as the result of what happened. Under the revised protocol, the senior counselor (i.e., the staff member in charge of the trip) was required to remain on the plane with Lynch and the head of her security detail, and to escort her at other times.

1. Responding to Media Questions about the Tarmac Meeting

Melanie Newman, the Director of OPA, said that the OPA Supervisor called her from the van and “sounded the alarm,” telling her that he just saw former President Clinton board Lynch’s plane. According to Newman, she asked the OPA Supervisor a number of questions, including why former President Clinton was there and whether he had a press pool with them, which he could not answer. Newman said that she asked the OPA Supervisor to get out of the van and figure out what was going on. Newman said that she was not just concerned that there was a press event going on that they did not know about, but that the potential

implications for the investigation were obvious to everyone “except apparently the FBI agents on the Attorney General’s detail.”

Newman said that the OPA Supervisor called her back approximately 30 minutes later, after the Senior Counselor had returned to the van. According to Newman, the OPA Supervisor told her that there was no press pool, but that former President Clinton had his own photographer there. Newman said that the OPA Supervisor told her that former President Clinton had asked Lynch’s FBI detail if he could go on Lynch’s plane, and no one had communicated this to her staff. Newman stated, “No one talks to the AG without staff saying they can talk to the AG. But they didn’t do this because he’s a former President.”149

Newman said she spoke to Lynch and the staff traveling with her by phone the next day, June 28, 2016. According to Newman, during this call Lynch described how the meeting with former President Clinton happened, what they discussed, and how she had tried to end the discussion. Newman characterized Lynch as “devastated” about the tarmac meeting. She stated:

[Lynch] doesn’t take mistakes lightly, and she felt like she had made…an incredible…mistake in judgment by saying yes instead of no, that he could come on the plane. But also, she’s like the most polite, Southern person alive. I, I don’t know in what circumstances she would have said no, or what would have happened if she had said no…. I would have much preferred a story that the Attorney General turned a former President of the United States away on the tarmac, but…she doesn’t make mistakes, and she was not pleased with herself for making this kind of high-stakes mistake.

Newman said that they discussed the best way to respond to any press questions about the meeting. She said that Lynch had a press conference scheduled in Phoenix, so she (Newman) wanted to have talking points prepared in case someone asked about the meeting with former President Clinton.

At approximately 1:15 p.m. EDT, Newman received an email from an ABC News reporter asking about the meeting between Lynch and former President Clinton, based on information from its Phoenix affiliate. Newman said that this inquiry confirmed that the meeting would come up at Lynch’s press conference, and she sped up the process to develop talking points. Newman forwarded the inquiry to the OPA Supervisor and Lynch’s Acting Chief of Staff stating, “We need to talk.”

The Acting Chief of Staff arranged a conference call, and added Matt Axelrod, the Deputy Chief of Staff, and the Senior Counselor to the list of invitees. However, the OPA Supervisor and the Senior Counselor were waiting for an event in Phoenix to begin and could not join the call. Following the call, Newman emailed a short

149 After reviewing draft of the OIG’s report, Newman clarified that “typically” no one talks to the AG without staff approval, and that she “assumed” that this typical practice was not followed because Clinton was a former president.

draft statement to the Senior Counselor and the Deputy Chief of Staff, copying Axelrod, the Acting Chief of Staff, the OPA Supervisor, and Peter Kadzik, the AAG for the Office of Legislative Affairs (OLA). A number of additional emails and phone calls followed as the draft statement was expanded and edited to include talking points about the topics Lynch and former President Clinton discussed. Newman then emailed the statement to Lynch and her staff.

During Lynch’s Phoenix press conference, a local reporter asked Lynch about her meeting with former President Clinton and whether Benghazi was discussed. She answered the question based on the talking points and draft statement:

No. Actually, while I was landing at the airport, I did see President Clinton at the Phoenix airport as I was leaving, and he spoke to myself and my husband on the plane. Our conversation was a great deal about his grandchildren. It was primarily social and about our travels. He mentioned the golf he played in Phoenix, and he mentioned travels he’d had in West Virginia. We talked about former Attorney General Janet Reno, for example, whom we both know, but there was no discussion of any matter pending before the Department or any matter pending before any other body. There was no discussion of Benghazi, no discussion of the State Department emails, by way of example. I would say the current news of the day was the Brexit decision, and what that might mean. And again, the Department’s not involved in that or implicated in that.

Lynch did not receive any follow up questions from either the reporter who asked the question or from the other reporters in attendance.

Based on the lack of follow up questions, Newman decided not to release a statement about Lynch’s meeting with former President Clinton. However, by the following afternoon, several media organizations had begun picking up coverage of the meeting.

On June 29, 2016, Newman emailed Lynch’s statement at her Phoenix press conference and the Department’s talking points to two officials in the FBI’s Office of Public Affairs (OPA), stating, “I want to flag a story that is gaining some traction

tonight…about a casual, unscheduled meeting between former [P]resident Bill Clinton and the AG.” The FBI OPA officials forwarded the talking points to McCabe, Rybicki, and Comey. We discuss the impact of the tarmac meeting on Comey’s decision not to tell the Department about his decision to do a public statement in Section IV.E below.

1. Discussions about Possible Recusal
2. Departmental Ethics Opinion

Lynch told the OIG that she began discussing whether she needed to recuse herself from the Midyear investigation on June 28, 2016, the morning after the tarmac incident. Lynch said that she called her Acting Chief of Staff, who was back in Washington, D.C., and asked her to contact the Departmental Ethics Office to find out if the ethics regulations required recusal. Lynch said (and the Acting Chief of Staff confirmed) that she obtained an oral ethics opinion that there was no legal requirement to recuse herself.

Janice Rodgers, the former Director of the Departmental Ethics Office, said that she remembered receiving a call from someone on Lynch’s staff, although she did not remember who it was. Rodgers said that she spoke to Lynch’s staff member over the phone, and after hearing what happened, concluded that the ethics regulations did not require recusal. Rodgers explained her understanding of the facts:

[T]he fact that the subject’s spouse had, I don’t know what the right word is. You know, sort of created, engineered a, you know, contact with the AG, which was apparently, you know, completely non-substantive, and in my view. And also in circumstances that made it very difficult for the AG to decline or avoid contact.

Rodgers said that the question was “more of…a capital-P political issue…meaning people were going to make hay of it,” and that Department leadership would have to weigh the amount of heat they were willing to take versus the importance of Lynch’s participation in the matter. She stated, “There was nothing about that that required recusal…. [W]hether the AG chose to recuse based on sort of the more…global considerations was…out of my bailiwick.”

2. Discussions about Voluntary Recusal

Lynch said that she then considered whether she should recuse voluntarily based on appearance concerns—i.e., concerns that the meeting created the appearance that former President Clinton was influencing the Midyear investigation through her, or that she was influencing it by having a connection to him. Lynch said she wanted to be able to make a statement about her plans for remaining involved in the Midyear investigation during an interview with a Washington Post reporter at the Aspen Ideas Festival, which was scheduled for the last day of her trip, July 1, 2016.

Lynch said she held a number of calls that involved Yates, Axelrod, Newman, the Acting Chief of Staff, and other Department officials, and that these calls likely took place on the Wednesday or Thursday of that week. She said she also discussed the issue with the staff members who were traveling with her. Lynch said that she did not recall anyone expressing the view that she should recuse herself; she said that her staff raised issues and concerns for discussion, but no one presented her with a conclusion that she should recuse.

Discussions Involving Yates, Axelrod, and Other Department Officials

Yates told the OIG that the group participating in these calls quickly dismissed the idea of recusal because they knew that the Department was going to announce what they expected to be a declination “in a matter of days.” She stated:

And the fear [was] that this is going to look really artificial…if you’ve spent over a year with [Lynch] at the helm of this investigating it, and then this tarmac thing happens and she recuses…. That’s going to look really artificial then if all of a sudden somebody else is announcing it and we’re saying oh, there’s no problem with the tarmac because she’s recused. When really that decision had been all but made…while she was AG.

Axelrod expressed a similar opinion, and stated that other factors weighed against recusal as well. In particular, he said that he understood that Lynch had not discussed anything improper with former President Clinton, and for her to recuse would have made it look like she had. He said he also thought that the people calling for her recusal would not be satisfied by it:

I thought that for folks who had already, again, for…political reasons been calling for a special counsel I wasn’t sure that a recusal…would be sufficient. That it would end there with…the AG stepping aside and the DAG taking over. I thought calls would increase for Department leadership to step out altogether. Which again, I didn’t think was good for the integrity of the investigation. And that was my goal was to protect the integrity of the investigation.

Axelrod told the OIG that he did not specifically recall having a discussion with Rybicki or McCabe about the tarmac incident, but said that he was “sure [he] did have conversations…. [T]his would be a big thing not to have a conversation about[.]” Rybicki told us that Axelrod called him early in the week to tell him that the tarmac meeting had happened. McCabe said that he also spoke to Axelrod a day or two after the tarmac meeting, and that Axelrod told him that Lynch likely would not recuse herself from the Midyear investigation.

Toscas said he was on vacation the week of the tarmac meeting, and Axelrod contacted him by phone to tell him about it. Toscas said that he contacted Laufman, and that both he and Laufman thought that recusal was unwise. Toscas stated, “I thought that a recusal would make it look like, oh this person who is doing inappropriate things has been overseeing this thing for a long time now, so that means the whole thing is tainted by it…. [T]hat would actually probably be more harmful to our investigation and the appearance to the public of our investigation.”

Lynch’s Decision Not to Recuse

Lynch said that she decided not to recuse herself from the Midyear investigation. In making this decision, Lynch said she considered whether her meeting with former President Clinton would cause people not to have faith in the judgment or decisions of the Department. She said she weighed this against the concern that stepping aside would create a misimpression that she and former President Clinton had discussed inappropriate topics, or that her role in the case somehow was greater than it was.

She explained that other considerations informed her decision:

And I, and I also had the view that, you know, when you create a situation, as I felt I did by sitting down with, with the President, it’s, yes, it can be almost a relief in some ways to say, you know what? I’m going to recuse myself and get out of it and not take, not take the hits. And then you’re just asking someone else to step up and endure all the hits the Department will take for the case for the result, whatever it is.

And, you know, I thought about it from that, that angle as well. You’re just asking someone else to step up and do your job for you. And if I did not think it rose to the level of recusal, then I did not want to do something out of a desire to protect myself sort of personally from embarrassment also because that’s not the way to make somebody else take on that responsibility.

Lynch said that she took into account that NSD did not think recusal was necessary. She said she conveyed her regrets to the Midyear prosecutors for putting them in the position of having people outside the Department look at their work and think that it would be influenced by anything improper.

Planning for the Aspen Interview

Axelrod told the OIG that the “game plan” that emerged from these discussions was for Lynch to explain publicly how the Midyear investigation had been handled all along:

• It was handled by career agents and prosecutors;
• The career agents and prosecutors had been the ones doing the work for more than a year;
• When the career agents and prosecutors finished their work, they would make a recommendation to Department leadership; and
• When Lynch received that recommendation, she fully expected to accept it, but she ultimately was the decider.

Axelrod said it was “definitely not the game plan” for Lynch to convey that she would accept the recommendation of the career staff no matter what they brought her, or that she would take herself out of the decisionmaking process but not formally recuse herself. However, he acknowledged that the different ways she described this process in her interview with the Washington Post reporter (discussed below) led to some confusion.

Carlin spoke at the Aspen Ideas Festival before Lynch arrived and said he was scheduled to return to Washington, D.C., with her. Carlin said that he met with Lynch, her husband, and her staff in person before her interview with the Washington Post reporter, and Carlin conveyed to her that NSD was not making a request that she recuse herself. Carlin said they also discussed what Lynch planned to say in her interview. Like Axelrod, Carlin told us that Lynch intended to provide more insight than she normally would into the investigative process, not to communicate that something had changed because of the tarmac incident.

Melanie Newman told the OIG that she made it known that she disagreed with this approach from a messaging perspective. Newman said that she thought recusal was appropriate because public statements and actions “need to be clear-cut.” Newman stated:

[W]e tried to have it both ways…. [W]e said that she would accept the recommendation of the senior career prosecutors and investigators on the case. Well, usually that is what the Attorney General does anyway. That means literally nothing….

This is the Attorney General, I mean, I’m not aware of, there may be disputes [in other cases] between the [FBI and the prosecutors] that the Attorney General is sort of the deciding vote. But generally speaking, in charging decisions, the Attorney General accepts the recommendation of those people who know the evidence most intimately. I think in the rare instance that there are disagreements, the Attorney General may, may accept the recommendation of one over the other, for example. But that’s, that’s sort of what they do.

Newman said that Lynch was doing the same thing that she usually does, except that “she was saying before the conclusion of the investigation that this was how she was going to handle it. That was the difference.”

1. Lynch’s July 1 Aspen Institute Statement

During the interview with the Washington Post reporter, Lynch acknowledged that her meeting with former President Clinton raised questions about her role in the Midyear investigation. Addressing how that investigation would be resolved, Lynch stated:

But I think the issue is, again, what is my role in how that matter is going to be resolved? And so let me be clear on how that is going to be resolved. I’ve gotten that question a lot also over time and we usually don’t go into those deliberations, but I do think it’s important that people see what that process is like.

As I have always indicated, the matter is being handled by career agents and investigators with the Department of Justice. They’ve had it since the beginning. They are independent…. It predates my tenure as Attorney General. It is the same team and they are acting independently. They follow the law, they follow the facts. That team will make findings. That is to say they will come up with a chronology of what happened, the factual scenario. They will make recommendations as to how to resolve what those facts lead to. Those—the recommendations will be reviewed by career supervisors in the Department of Justice and in the FBI and by the FBI Director. And then, as is the common process, they present it to me and I fully expect to accept their recommendations.

Lynch then responded to a question about a news article that morning reporting that she planned to recuse herself from the Midyear investigation. She stated, “Well, a recusal would mean that I wouldn’t even be briefed on what the findings were or what the actions going forward would be. And while I don’t have a role in those findings and coming up with those findings or making those recommendations as to how to go forward, I’ll be briefed on it and I will be accepting their recommendations.”

As the discussion continued, Lynch responded to additional questions about her continued role in Midyear. Asked about a news report that she had made the decision in April 2016 to accept the recommendations of the career staff, Lynch replied:

Yes, I had already determined that that would be the process…. And as I’ve said on occasions as to why we don’t talk about ongoing investigations in terms of what’s being discussed and who’s being interviewed, is to preserve the integrity of that investigation. We also typically don’t talk about the process by which we make decisions, and I have provided that response too.

But in this situation, you know, because I did have that meeting, it has raised concerns, I feel, and I feel that while I can certainly say this matter’s going to be handled like any other, as it has always been, it’s going to be resolved like any other, as it was always going to be. I think people need the information about exactly how that resolution will come about in order to know what that means and really accept that and have faith in the ultimate decision of the Department of Justice.

Lynch’s comments about the status of her continuing involvement in the Midyear investigation created considerable confusion. After her appearance, various new articles reported that she had decided to defer to the recommendations of the FBI or had effected a “non-recusal recusal.”150 Lynch said she participated in a follow-up interview with the Washington Post reporter during which she attempted to clarify her statement. The resulting article quoted her as follows:

I can certainly say this matter is going to be handled like any other as it has always been. It’s going to be resolved like any other, as it was always going to be…. I’ve always said that this matter will be handled by the career people who are independent. They live from administration to administration. Their role is to follow the facts and follow the law and make a determination as to what happened and what those next steps should be…. This team is dedicated and professional. So I can’t imagine a circumstance in which I would not be accepting their recommendations.151

Lynch told us that her role in oversight of the Midyear investigation did not change. She stated:

[A]s I said to, to the reporter at the time, that the team is going to continue and, and do what they needed to do in terms of interviews, forensics, all the investigative steps that they would take that were not influenced by me. They would look at all the facts, all the evidence, and come up with a recommendation that was going to be vetted through supervisors on both sides of the house, the legal side of the house, the investigative side of the house, and they would make a recommendation to me.

Lynch continued:

[T]hey are going to present me with a recommendation, that I expect to accept, which I always expected that I would accept given the people involved in the process, then there is really no need for me to step aside from this because I’m, I’m listening to their recommendation. I’m doing what I’m supposed to do in terms of discharging my duties in running the Department, in, in managing the Department in what is an important case and a sensitive case. And, and essentially, there won’t be a change.

1. Impact of the Tarmac Meeting on Comey’s Decision to Make a Public Statement

As described above, Comey began drafting a public statement announcing

the conclusion of the Midyear investigation in early May 2016, well before the

tarmac meeting, and told the OIG that he planned not to inform the Department.

Comey told us that he had struggled with the decision, and that “in a way the

150 See, e.g., Mark Landler et al., Loretta Lynch to Accept F.B.I. Recommendations in Clinton

Email Inquiry, N.Y. TIMES, Jul. 1, 2016; Joel B. Pollak, Loretta Lynch’s Non-Recusal Recusal, BREITBART,

Jul. 1, 2016.

151 Jonathan Capehart, This Is What Loretta Lynch is Thinking Now, WASH. POST, Jul. 5, 2016.

tarmac thing made it easy for me” and “tipped the scales” towards making his mind up to go forward with an independent announcement. He stated, “I think I was nearly there. That I have to do this separate and apart…. And so I would say I was 90 percent there, like highly likely going to do it anyway, and [the tarmac

meeting] capped it.”

Comey said that Lynch’s decision not to recuse herself and to defer to his recommendation impacted his decision. He stated:

[I]f you believe the nature, the circumstance, 500-year flood, if you believe that it’s officially unusual that you can’t participate meaningfully in one of the most important investigations in here, in your organization, then I think your obligation is to find another way to discharge leadership responsibilities. Either appoint someone within the organization to be in charge of the case to make sure there is leadership to engage across the street with us, not to be this neither fish nor fowl, I’m still the Attorney General and really in an odd way, what she said explicitly was sort of the culture of the case before the tarmac thing [in that she was not closely involved in the investigation], which was I’m the Attorney General and that’s not really my thing and then she made it explicit by saying, I’m still the Attorney General, but I’m going to accept what Jim Comey and the prosecutors say.

Comey also stated:

Had Loretta said, I’m stepping out of this [after the tarmac meeting]. I’m making Sally Yates the acting Attorney General and had I gone and sat down with Sally and heard her vision for it, maybe we would have ended up in a different place. I don’t know. It’s possible we’d end up in the same place, but it’s hard to relive different, imaginary lives.

As described in more detail in Chapter Eight, on October 13, 2016, Comey

gave a speech at the SAC Conference in which he spoke at length about the

Midyear investigation. Comey stated the following regarding the tarmac meeting in

explaining his decision to deliver a unilateral public statement:

At the end of [the investigation], [the team’s] view of it was there isn’t

anything that anybody could prosecute. My view was the same. Everybody between me and the people who worked this case felt the same way about it. It was not a prosecutable case…. The decision there was not a prosecutable case here was not a hard one. The hard one, as I’ve told you, was how do we communicate about it. I decided to do something unprecedented that I was very nervous about at the

time, and I’ve asked myself a thousand times since was it the right

decision. I still believe it was.

Here was the thinking. Especially after the Attorney General met with former President Clinton on that airplane the week before we [interviewed] Hillary Clinton…. The hard part in the wake of the

Attorney General’s meeting was what would happen to the FBI if we

did the normal thing? The normal thing would be send over an LHM

even if we didn’t write it. Go talk to them. Tell them what we think, tell them whether we think there’s something here or whether we

think a declination makes sense, but all of that would be done

privately.

What I said to myself at the time, we talked about it as a leadership team a lot and all believed that this was the right course, try to imagine what will happen to the FBI if we do the normal thing. Then what will happen to us is the Department of Justice will screw around it for Lord knows how long, issue probably a one sentence declination, and then the world will catch on fire, and then the cry in the public will be where on the earth is the FBI, how could the FBI be part of some corrupt political bargain like this, there’s no transparency whatsoever, where is the FBI, where is the FBI. Then, after a period of many

weeks where a corrosive doubt about us leaks into the public’s square, then I’d have to testify in exactly the way I did before. Our view of it would be dragged out in that way, in a way I think would’ve hugely

damaging to us, and frankly, to the Justice Department more broadly and for the sense of justice in the country more broadly.

1. July 5, 2016 Press Conference
2. Notifications to Department Leadership

On July 1, 2016, Comey emailed Rybicki a script containing what he planned to say to Lynch and Yates on the morning of July 5. Entitled “What I will say Tuesday on phone,” the script stated:

I wanted to let you know that I am doing a press conference this morning announcing the completion of our Midyear investigation and referral of the matter to DOJ. I’m not going to tell you anything about what I will say, for reasons I hope you understand. I think it is very important that I not have coordinated my statement outside the FBI. I’m not going to take questions at the press conference. When it is over, my staff will be available to work with your team.

Rybicki told the OIG that Comey wanted to be “very careful” about what he said on the phone to avoid substantive discussion before the actual press conference, and that was why he wrote out what he planned to say. Rybicki said that Comey did not deliver this script verbatim during his calls to Lynch and Yates, but that it was close to what he actually said.

Comey and Rybicki also developed a timeline for notifying the media, the Department, and Congress about the press conference. After notifying the press pool and sending out a media advisory by 8:00 a.m., Comey planned to call Yates at 8:30 a.m. and Lynch at 8:35 a.m. After those calls took place, McCabe, Rybicki, and, Strzok were assigned to call Toscas, Axelrod, and Laufman, respectively, beginning at 8:30 a.m. The timeline is set forth below in Figure 4.1.

Figure 6.1: FBI Timeline for Notifications on July 5, 2016

Emails indicate that the Department first learned about Comey’s press conference as the result of the media notifications on the morning of July 5, not from Comey or Rybicki. At 8:08 a.m., Melanie Newman sent an email to Lynch’s Acting Chief of Staff, Axelrod, and Lynch’s Deputy Chief of Staff entitled “FBI presser at 11 a.m.” This email stated, “Just heard that the Director is having a press briefing today at 11 a.m. I have not heard anything but have asked for guidance.” Axelrod replied at 8:15 a.m., “I’ll call Rybicki.” At 8:16 a.m., apparently after talking to the FBI Office of Public Affairs (OPA), Newman stated, “[The FBI OPA Section Chief] says the Director has called the DAG.” Axelrod replied at 8:18 a.m., “Nope.” At 8:31 a.m., Axelrod replied again and stated, “They just spoke. He’s going to call the AG too.”

Newman emailed Axelrod and Lynch’s Acting Chief of Staff with additional information at 8:33 and 8:43 a.m. She stated in the first email, “For the record, these notifications [to Lynch and Yates] are happening AFTER they notified press. I learned from a reporter that they were requesting pool coverage—which means they want live TV.” In the second email she stated, “They are also doing an off the record call this morning.”

Newman told the OIG that in the weeks leading up to July 5, she had been “clamoring” for information from Axelrod about the conclusion of the investigation so that she could get some sense of the timeline. She said she had been “hearing from reporters that [the investigation] was, it was coming to an end and the FBI was likely to announce something.” She said that Axelrod assured her that the FBI would not announce a conclusion without the Department, that they were not at the point where they were ready to announce anything, and that he would tell her when they were. Newman told the OIG that she did not doubt that Axelrod “believed this to be true.”

Newman said that on the morning of July 5, after she found out from a reporter that the FBI would hold a press conference that day, she called the FBI OPA Section Chief to inquire about it and was told, “I can’t tell you what this is about…but I’m sure you can guess.” According to Newman, the Department’s OPA had longstanding problems getting information from FBI OPA, but this was “unprecedented” and “absolutely ridiculous.”

1. Call to Yates

Comey said that when he spoke with Yates, he told her he was about to make a public press statement about the email investigation, including that the FBI had finished it and was sending it to the Department with its recommendation. Comey told the OIG that Yates did not say anything except “thanks for letting me know.” According to contemporaneous emails, both Yates and Axelrod were notified by the FBI by 8:28 a.m.

Yates told us that she remembered Comey saying that he was going to hold a press conference that morning. She said that she did not recall if Comey said that it would be about the Clinton investigation, but that she knew it would be. She stated, “And I remember thinking sort of, what the heck is this? And hanging up immediately and calling Matt [Axelrod] to find out more of what he knew, because if there’s ever anybody who’s going to know what’s going on it’s going to be Matt.” She said that Comey’s tone during the call was “very emphatic, I’m not going to tell you what it is,” and that made her determined to find some other way to find out what Comey planned to say.

Yates said that she and Axelrod assumed that Comey would deliver a very brief statement that the FBI had concluded the Clinton investigation and had reached a determination, and possibly would state what the FBI’s recommendation to the Department was going to be. She said that based on her knowledge of the investigation, they expected that if Comey announced a recommendation it would be a declination. She stated, “But [we] certainly didn’t expect what then happened.” She said that she viewed Comey’s decision to do a press statement without coordinating with the Department as problematic, particularly the failure to coordinate on the content of the statement. We discuss Yates’s reaction to the content of Comey’s statement in more detail below.

Axelrod said that he was surprised that Comey had chosen to do an independent press statement. He said he thought that the statement should have been “coordinated and planned and discussed” with the Department. However, at the time, he did not view the fact that Comey was the one delivering the declination as the primary problem. He stated:

I think it’s important to think about Comey’s press conference in two ways. One was the decision to do it. And then two was…what he said. I just, one was the decision to do it at all. And on the decision to do it at all, I mean, we’re surprised. We were like completely taken aback. But you know, again, we had already wanted the FBI to at least be, even before the tarmac, be part of the public face of this…. Comey was…about to be the entire public face of it. You know, there were some upsides and downsides to that. But you know, it wasn’t all bad.

As described in more detail below, Axelrod thought that the content of Comey’s statement was misleading, and that the way Comey executed the press conference hurt the perception of the integrity of the investigation in a significant way.

Axelrod said that he and Yates did not discuss ordering Comey not to make the statement. Axelrod stated, “I don’t recall that being discussed. Because I don’t think that would have been tenable, right. The press was already coming. And…ordering the Director not to do something can be very fraught. And so I don’t recall that being a discussion.”

2. Call to Lynch

At 8:24 a.m., Lynch’s Acting Chief of Staff, after being told by Newman about the notice of the FBI press conference, sent an email to Axelrod, asking, “[P]lease call my cell when you are done with Rybicki.” At 8:39 a.m., the Acting Chief of Staff sent the following email to Lynch: “AG: [Y]ou are about to receive a call from the director. Please give me a call on my cell, and I can fill you in as to what it’s about. Alternatively I will be in the office in about 5 to 10 minutes and will stop by.”

Comey said that he called Lynch that morning and told her that he was going to make a public press statement about the email investigation, and that the FBI had completed the investigation and was sending it to the Department with its recommendation. Comey stated that Lynch asked him, “Can you tell me what your recommendation is going to be?” He said that he replied, “I can’t and I hope someday you’ll understand why, but I can’t answer any of your questions—I can’t answer any questions. I’m not going to tell you what I’m going to say.” Rybicki told us that Comey called from his (Rybicki’s) office because of the “snafus” with connecting the calls and provided us with a similar account of what Comey said.

Lynch told the OIG that she was in her office when Comey called her. She said that he told her he was going to make a public statement “very soon,” and that it would be about the email investigation. She described this call as follows:

And I said, when are you proposing to do this? And he said, very soon, within a few moments. I don’t recall if he said 10:00, but certainly it was a short time period. And then he said, and I am not going to discuss the contents with you because I think it’s best if we say, if we, if we are able to say that we did not coordinate the statement. Then I said something, I had another question…. I don’t recall whether I said, what is it about? I just don’t recall my other question. And he said, it’s about, it’s going to be about the email investigation.

Lynch said that he gave her no further indication about the substance of his statement. She said that Comey told her he was not going to go over the statement with her so they both could say that it was not coordinated. Asked whether this language raised a red flag indicating that she should find out more or tell him to stop, Lynch said it did not because it did not occur to her that Comey would talk about the end of the investigation or the FBI’s recommendation. She stated, “And certainly I did not, at that time…on that day, even though [I] knew that they had interviewed the Secretary, I don’t think I had a view that [the investigation] was done at that point.”

Lynch told the OIG that, had she known what Comey was going to do, she would have told him to stop. She said she also would have asked him, “Why would you want to do this?” She stated, “Ultimately, announcing the end of a matter, whether it’s going to be…how will we resolve it, would not be something that I would ever think that the, that the investigative side would do, which is why that

was not what I thought he was going to do.”

3. Notifications to NSD

At 8:28 a.m., McCabe and Strzok received notice that Axelrod and Yates had been notified, which served as the “green light” for them to contact Toscas and Laufman, respectively. At 8:33 a.m., McCabe sent an email to Toscas, stating:

The Director just informed the DAG that at 1100 this morning he has convened a press conference to announce the completion of our investigation and the referral to DOJ. He will not tell her what he is going to say. It is important that he not coordinate his statement in any way. He will not take questions at the conference. His next call is to the AG.

I wanted you to hear this from me. I understand that this will be troubling to the team and I very much regret that. I want to talk to you after the [Principals Committee] and am happy to bring my folks over to DOJ this afternoon to discuss next steps.

McCabe said that he called Toscas, but Toscas was traveling, so he instead sent Toscas an email. At 8:53 a.m., Toscas sent an email to Carlin, Laufman, and Mary McCord, stating:

I’m on hold to talk to the DD now. I received a message from him a few minutes ago saying that this morning the Director informed the DAG that he will have a press conference at 11am today to announce the completion of the FBI’s investigation and the referral to DOJ. He will not take questions at the conference, but he is not coordinating his statement with us. I’ll call when I get off the phone.

According to Laufman’s notes, Toscas then held a conference call with McCord, Laufman, and Prosecutors 1 and 2. According to these notes, Toscas told the group that he had spoken with McCabe and learned that Comey planned to hold a press conference at 11:00 a.m. to announce the conclusion of the investigation and the FBI’s recommendation to the Department. The notes stated, “Director has told AG

+ DAG. McCabe refused to convey substance. Director doesn’t want statement to appear coordinated with DOJ.”

Laufman’s notes also stated that, even though McCabe said that he would not share the content of Comey’s planned statement, McCabe told Toscas that Comey planned to talk for 10 to 15 minutes and would say what the FBI had done, what the FBI had found, and what the FBI’s recommendation to the Attorney General and the Department would be. Finally, the notes indicate that Toscas spoke to Carlin, and Carlin “said not to discuss w/ OAG or ODAG in advance.”

Other notes obtained by the OIG indicate that Laufman separately spoke to Strzok at 8:35 a.m. that morning. According to these notes, Strzok called Laufman and said that he was “told to call [him] and say” that Comey would hold a press conference at 11:00 a.m. that morning. These notes indicate that Laufman asked, “What exactly will he say,” and that Strzok replied, “Midyear.” The notes also indicate that the “7th floor has told AG/DAG.”

1. Reactions to the Statement

Comey held his press conference at 11:00 a.m. on July 5, 2016. He delivered the final version of his statement verbatim (provided as Attachment D to this report) and did not take any questions. In this section we describe reactions to his statement within the Department.

1. Department and NSD Leadership

Lynch told the OIG that she watched Comey’s statement on the television in her office. She described her thoughts as she watched Comey speak:

[D]iscussing findings in something that was technically not closed was, I was a little stunned, actually…. I had no way to stop him at that

point, I mean, short of, you know, dashing across the street and

unplugging something….

But, so, as he went further into the analysis of not only what they found but what they recommended, I just thought this was, this was done to protect the image of the FBI because of the perception that somehow the FBI was not going to be allowed to have their views known or their views expressed or their views respected within the process. Because that had, that in fact had been, for those of us who were inside the Department at the time, and I don’t know how the FBI was taking it at the time, but certainly if you looked at criticism aimed at the Department, people said, oh yeah, you know, the AG was appointed by Bill Clinton to be U.S. Attorney.

But that was never the real, the real stated concern. It was that there was going to be, you know, these strong investigators who wanted to bring charges who would be somehow silenced or stepped on by the legal side of the house, whether it was the political side or the career side, they never really made much of a differentiation. Easy to attach it to the political side if you’re talking to the AG. But that was really something that was, that was thrown around a lot in, in debate outside of the Department.

So I viewed it as him trying to make his recommendation clear so that, and from, and when he made the recommendation clear and said this is our recommendation, I remember wondering does the, does the team know that this is happening, you know, that the literal investigative team, both sides of it? Did George [Toscas] know this was going to happen? Who knew that this was going to occur? And why didn’t we know in advance?… Meaning the fifth floor, myself, the DAG. Why weren’t we informed in advance of this? So those are my thoughts during the, during, watching of the, of that particular press conference.

Lynch said that she thought that the strongest public concern about the Midyear

investigation was not that she as the Attorney General was going to “kill it,” but

that the investigative side would want to charge somebody, and the legal side would say no for political reasons. She said that she viewed Comey’s public statement as “basically saying…look…we’re independent. We…aren’t influenced by anybody. And now…no one is also silencing us.” Lynch stated that she did not ascribe malicious intent to Comey, but that she thought that his statement was a

“huge mistake.”

Lynch told the OIG that she did not think that the FBI’s recommendation

should have been made public “because we don’t make those things public. That’s

part of the discussion that we [agents and prosecutors] have. That’s part of, you

know, we can talk about it. We can argue about it. We can go back and forth

about it.”

Yates told the OIG that she had concerns about the substance of Comey’s statement as she watched the press conference. She stated:

And while I can’t point to specific facts in Jim [Comey]’s description, you know, narrative description there that I would say were inaccurate, I also remember at the time thinking the facts as those are being laid out with much more censure than the facts as I understood them to be and how I had been briefed on this matter. Sort of by way of example, I don’t recall Jim going through and explaining that there were no classification markings on the vast, vast, vast majority. We got three email chains with a, you know, the small C [indicating that the information was Confidential]. Not the Top Secret or anything on there. That it was all to people within the State Department….

That were really, to me gave the most accurate picture of what the facts actually were there. And so I was stunned A, at the level of detail that he went into. B, that he then made judgments and said things like extremely careless and should have known that this material was. And every, anyone should know you shouldn’t have it on a private server. That he gave the impression that, you know, the private server could have been hacked. We don’t really know for sure…. That, you know, I thought wasn’t really a balanced description of what the facts were here.

And so, you know, there are a number of things that are concerning about that. One, that he sort of put that slant on it, that it was done without any consultation with folks at Main Justice. That it impugned someone we weren’t charging. We don’t trash people we’re not charging. And we don’t get to just make value or moral judgments about their conduct. And there were things in there that I thought were unnecessary from a factual, those, they were opinion as opposed to laying out, even if he were going to do this, what was a fair, evenhanded recitation of what the facts were. And I thought that was way out of order.

Asked what her reaction was when she looked back on the statement, Yates said that she was “even more stunned.” She stated:

At the time all of this is happening it’s such a swirl. You know, the tarmac happens and trying to figure out what to happen. I mean, all of this is happening so quickly and in such a charged environment it’s hard to fully, for it all to fully sink in like it does when you look at it then in the calm of day in, you know, in retrospect on that. And look, it was a difficult situation with the tarmac. But that’s not something I think that was appropriate for the FBI Director to unilaterally then decide how he was going to handle that. I think that was a factor that we should consider in how we were going to publicly convey the results of the investigation. And certainly if he had views about how that ought to happen I think he should speak up and should convey those views. But to make the unilateral decision to do it is one thing.

And then to put out that level of detail without coordinating that with DOJ or, you know, DOJ agreeing with that, and then for it to be with a slant that I didn’t think was accurate—and I’m not saying he did that intentionally. I don’t know. I certainly wouldn’t accuse anybody of that. But the way it was conveyed I didn’t think gave the most accurate description. And then, as I said, impugning someone that we weren’t charging with sort of personal judgments….

Yates said that she did agree with Comey’s statement that no reasonable prosecutor would bring a case based on the facts developed in the investigation,

but that she did not think that it was “the place of the FBI Director to be out telling the public what a prosecutor would do there.”

Axelrod stated that he and Yates watched the press conference in her office.

He said that he was “pretty confident” in what Comey was going to conclude based

on what they had been led to believe about the investigation and did not fully

process the content of the statement while Comey was delivering it. He said that

he reacted more negatively to the statement after attending the briefing by

prosecutors the next day:

I didn’t know all the facts because we were giving George [Toscas] the space to tell us what we thought we needed to know. We were not in the weeds. And the next day when we got the briefing o[n] some of the stuff in the weeds there were important facts that the NSD guys briefed the AG on that were absent from Comey’s statement. And so that was when I started to have a much more strongly negative reaction to what Comey had said.

Asked what facts were missing that he thought were important, Axelrod identified the following:

A couple. One, that according to the NSD guys and what I recall from their briefing is that if you look at the spectrum of cases that the Department has brought in the past historically in this area the Department has never brought a case where the classified information was shared between people who work for the Government. It was always someone sharing classified information with someone outside of the Government. That’s a pretty important fact. That if you are laying out your reasons or reasons for recommending declining prosecution that’s a, you know, to me a pretty important one. The other one I recall was that the NSD guys said that most of the emails were, I think whether it was all or most, the majority of the emails that turned out to be classified had been sent late at night or on the weekends. Which, you know, to me means it’s people sort of trying to, you know, were not at their desks, right, where they have access to classified systems trying to talk about, you know, talk around or talk about issues. So I thought that was a really important fact. And again, just when you’re talking about intent, right, that’s an important thing that bears on intent.

Axelrod contrasted Comey’s statement with the briefing by the prosecutors the following day, which he characterized as a “much more complete picture.” He stated, “[W]hen [the prosecutors] were done talking the reaction was like oh, this is clearly a declination. When Comey was done talking, as I think you saw from the public reaction,…it was much more of a mixed bag.”

Axelrod told the OIG that the way the press conference was executed hurt the perception of the integrity of the investigation in a significant way. He stated:

Because if the goal, to do what he did the goal would need to be, and I would imagine his goal was that by the time he’s done talking that even if people don’t agree with the outcome they can see why, you know, understand his thinking and see like why he got to the place he got. And that it would sort of be like a closing argument or something, right. It would be, right, here’s the rationale and I’ve [seen] the facts and here’s why I’m coming out the way I’m coming out. And people again, on the, and for the partisans and people with political agendas, they’re not going to be convinced. But that reasonable center would say like okay, yeah, we get it.

That was not the reaction to the statement. Which I think just by its own terms means the execution failed. Because it raised a lot of questions. It, just it wasn’t, it was much more of a, like I said, the difference in tone and emphasis between what he said and then what we heard in the AG’s office the next morning was striking—to me. And I think if he had, you know, if the folks who gave the briefing the next [day] were the ones who, I mean, obviously not but that those words had been said at the press conference I think it would have been received quite differently.

Toscas told the OIG that his initial reaction to Comey’s statement was,

“[H]oly cow, like they [Axelrod and the FBI] were talking about doing a joint

appearance or statement of some sort and he’s just doing it all on his own.” Toscas

said that he had concerns about Comey’s statement, both the substance of it and

the fact that it deviated from Department practice. He stated:

We don’t say we’re closing something, but let me tell you some bad stuff that we saw along the way, but it doesn’t rise to the level of bringing a case. We just don’t do it…. I don’t know whether you can point back to a document some place, but after doing this for almost 24 years, somehow it’s ingrained in me and it appears to be ingrained in everyone around me and everyone who does this whether they’re new or veterans, it’s just something you don’t do, you do not.

It’s the same reason why, if you, for example, and we have these discussions in some cases, if you go get a search warrant and it’s under seal and in the search warrant you’re seeing Tom—there’s probable cause that Tom committed, fill in the blank, whatever horrible crime you want or a lesser crime. You go do your search. There’s no case. There’s no prosecution. It never comes. You know it never leads to a prosecutable case. You don’t unseal that warrant and tell the public, hey, there’s probable cause that Tom is, you know engages in child pornography or we suspect him of a bank robbery, you just don’t do it.

And so it’s the same type of principle. When you decide you’re not proceeding, you say nothing more. I get that in some instances there’s going to be a lot of public knowledge of the facts. A shooting, for example, where the public has seen what happened, so they already know of actual conduct whether it’s criminal or not is different, so you could say, we’re not bringing a charge, but still comment on what everyone has seen.

But that’s not what this was and people could have tried to guess or you know surmise what the actual exchanges were in some instances or what the particular parts of the classified information were, but I just didn’t see it as something that—it did not square with the way we would ordinarily operate.

Toscas said that Comey’s decision to do the statement seemed “beyond strange” and “incredibly dangerous” considering the ongoing campaign and the proximity to the election.

Asked whether “extremely careless” was too similar to “gross negligence,” Toscas said that it was. Toscas said that once Comey was getting “grilled about…gross negligence,” it must have become obvious that they chose words that were so similar to the statutory language that they “created friction in being able to explain [his] ultimate decision.” He told the OIG that he did not know how Comey’s lawyers missed this issue, and that the statement would have benefitted from legal review by the prosecutors.

Toscas did not have a problem with Comey’s statement that no “reasonable prosecutor” would bring a case. He stated:

[T]hat didn’t bother me at all. This is a man who was the Deputy Attorney General of our country. He ran this Department. He was a lifelong prosecutor. I had no problem with that. I know other people do because they say, oh he’s usurping authority and things like that, butI thinkhe is a—he is perfectly qualified, and regardless of his position, even in private practice or as a citizen, a private citizen, he could say that and I think it has credibility.

However, Toscas expressed concerns about the downstream effects of Comey’s deviation from Department practice in making a public statement in July, which he said then impacted Comey’s decisions in October. We discuss those concerns in Chapter Ten.

2. Prosecutors

As described above, Prosecutors 1 and 2 learned about Comey’s plan to hold a press conference as the result of McCabe’s call to Toscas and Strzok’s call to Laufman. Strzok also spoke directly to Prosecutor 1 that morning. Prosecutor 1 said that he was “extremely angry” on the phone and pressed Strzok to tell him what Comey planned to say, but that Strzok flatly refused and said that he was not allowed to tell him. Following this call, Prosecutor 1 contacted Prosecutors 3 and 4 and informed them that Comey planned to hold a press conference that morning.

The prosecutors had varying reactions to the substance of Comey’s statement. Prosecutor 4 told the OIG that he was surprised at how strong Comey’s “no reasonable prosecutor” language was and by the inclusion of negative commentary about former Secretary Clinton’s conduct, but that he did not recall hearing anything factually inaccurate in the statement.

Prosecutors 1, 2, and 3 identified substantive concerns with Comey’s statement. Prosecutor 1 highlighted Comey’s negative comments about former Secretary Clinton, characterizing them as “declining to prosecute someone and then sort of dirtying them up with facts that you develop along the way.” Prosecutor 1 also said that the use of “extremely careless” to describe her conduct “begs questions about gross negligence” that could have been avoided if the statement were more carefully crafted. Prosecutor 2 thought that the statement was “totally unfair on many levels,” particularly the discussion of uncharged conduct, and that the characterization of the evidence in the statement was “very skewed.”

Prosecutors 3 and 4 said they had concerns about Comey’s use of “extremely careless” to describe former Secretary Clinton’s conduct in the statement. On July 6, 2016, Prosecutor 3 sent the following email to Prosecutors 1, 2, and 4:

It’s unfortunate that Comey didn’t differentiate the standard of proof between 793(f) and the other statutes. He glossed over all with mention of the absence of intent and made no mention of the necessity of proving knowledge of classified [information] with regard to 793(f) and why that proof was deficient. By using the phrase

“extremely careless” he lit up the talking heads last night, many of

whom opined that such verbiage warranted a gross negligence charge and that Comey was giving Clinton an unwarranted pass. Even the so-called legal experts didn’t seem to understand the elements of that statute and why it did not apply to the facts.

In his OIG interview, Prosecutor 3 said that he thought that Comey’s remarks had a good assessment of the investigation, but that he should have better articulated the

gross negligence provision “because that seemed to draw a lot of fire from the public.” Prosecutor 3 said that Comey’s statement did not explain well enough that under the gross negligence provision “you have to know…you’re being careless with what is in fact classified information.”

On August 2, 2016, Laufman sent an email to FBI Attorney 1 in connection with draft FBI responses to Congressional inquiries that had been made to Comey, and copied Toscas and the NSD prosecutors and supervisors on the email. Laufman stated the following about Comey’s July 5 statement:

We appreciate the Bureau sending us its draft response to the inquiries Director Comey received from Congress. We assume you have already considered and rejected simply responding to the letters (which were

sent before the Director’s congressional testimony) by referring the Committees to the Director’s lengthy [congressional] testimony. As the Director has publicly stated, the Bureau did not coordinate the

Director’s public statements about this case (many of which are repeated in the Bureau’s draft response) with the Justice Department,

and we therefore did not have an opportunity to express our views about those statements in advance. As I’m sure you understand, some of the Director’s statements went beyond the types of

statements that we, as prosecutors, would typically make in a case where no charges were brought (e.g., characterizing uncharged conduct of individuals within the scope of the investigation). While we

understand and respect the Director’s reasons for departing from

normal practice in this one instance, we, of course, have not departed from our practice of refraining from making such statements—and we do not want to be perceived as concurring in or adopting such statements.

1. Congressional Testimony Explaining the July 5 Statement

1. July 7, 2016

Two days after his statement, on July 7, 2016, Comey testified for several hours before the House Committee on Oversight and Government Reform (HOGR).152 During this hearing, Comey was asked numerous questions about the basis for the decision to recommend declining prosecution of former Secretary Clinton and whether there was evidence that former Secretary Clinton violated any criminal statutes, including the gross negligence provision in 18 U.S.C. § 793(f). He also was asked about the specific language used in his statement. In response to a question about the meaning of “extremely careless,” Comey stated, “I intended it as a common sense term…. Somebody who is—should know better, someone who is demonstrating a lack of care that strikes me as—there’s ordinary accidents, and then there’s just real sloppiness. So I kind of think of that as real sloppiness.”

Representative John Mica noted the proximity of the tarmac incident on June 27, Lynch’s announcement that she would “defer to the FBI” on July 1, Comey’s

152 See U.S. House of Representatives, Committee on Oversight and Government Reform, Oversight of the State Department, 114th Cong., 2d sess., July 7, 2016, https://oversight.house.gov/wp-content/uploads/2016/07/7-7-2016-Oversight-of-the-State•Department.pdf (accessed May 8, 2018).

statement on the morning of July 5, and former Secretary Clinton’s campaign appearance with then President Obama on the afternoon of July 5. In response to a series of questions about the circumstances of his statement, Comey responded, “Look me in the eye and listen to what I’m about to say. I did not coordinate [my statement] with anyone. The White House, the Department of Justice, nobody outside the FBI family had any idea what I was about to say. I say that under oath. I stand by that. There was no coordination.” Comey also testified that there was no interference in or attempt to influence the investigation by then President Obama, the Clinton campaign, or former Secretary Clinton herself.

Comey also was asked questions about his reasons for doing an independent

press conference. In response to a question about whether the system was

“rigged,” Comey stated:

I get a 10-year term to ensure that I stay outside of politics, but in a way that it’s easy. I lead an organization that is resolutely apolitical. We are tough aggressive people. If we can make a case, we’ll make a case. We do not care what the person’s stripes are or what their bank account looks like.

And I worry very much when people doubt that. It’s the reason I did the press conference 2 days ago. I care about the FBI’s reputation, I care about the Justice Department. I care about the whole system deeply. And so I decided I’m going to do something no Director’s ever done before. I’m not going to tell the Attorney General or anybody else what I’m going to say, or even that I’m going to say it. They did not know, nor did the media know, until I walked out what I was going to talk about.

And then I offered extraordinary transparency, which I’m sure

confused and bugged a lot of people.

Responding to another question about his statement, Comey stated:

[E]verything I did would have been done privately in the normal course. We have great conversations between the FBI and prosecutors. We make recommendations. We argue back and forth. What I decided to do was offer transparency to the American people about the “whys” of that, what I was going to do because I thought it was very, very important for their confidence in the system of justice. And within that their confidence in the FBI.

And I was very concerned that if I didn’t show that transparency, that in that lack of transparency people would say, “Gee. What is going on here? Something—you know, something seems squirrely here?” So I said I would do something unprecedented because I think it is unprecedented situation.

Now, the next Director who is criminally investigating one of the two candidates for President may find him or herself bound by my precedent. Okay. So if that happens in the next 100 years they’ll have to deal with what I did. So I decided it was worth doing.

1. September 28, 2016

Comey also testified in an oversight hearing before the House Judiciary Committee on September 28, 2016, several weeks after the FBI released various materials from the Midyear investigation to Congress and in response to Freedom of Information Act (FOIA) requests.153 During this hearing, Comey answered questions about the conduct of the Midyear investigation, including questions about the reliance on voluntary production of information, the destruction of devices used by former Secretary Clinton, decisions to grant immunity to witnesses, and the interpretation of the gross negligence provision.

Comey was asked again about the independence of the investigation. Representative Steve King asked about the interview of former Secretary Clinton and whether “Loretta Lynch had her people in there?” Comey responded, “There was no advice to me from the Attorney General or any of the lawyers working for her. My team formulated a recommendation that was communicated to me. And the FBI reached its conclusion as to what to do uncoordinated from the Department of Justice.” Asked whether he was responsible for the decision to decline prosecution, Comey said that the decision to decline was made in the Department, but acknowledged that there was “virtually zero chance” that the Department would make a different decision once Comey had made his recommendation public. He stated, “But part of my decision was based on my prediction that there was no way the Department of Justice would prosecute on these facts in any event.”

Importantly, at the September 28 hearing, Comey was asked, “Would you reopen the Clinton investigation if you discovered new information that was both relevant and substantial?” Comey answered, “It is hard for me to answer in the abstract. We would certainly look at any new and substantial information…. What we can say is…if people have new and substantial information, we would like to see it so we can make an evaluation.”

1. June 8, 2017

On June 8, 2017, following his firing as FBI Director, Comey testified about Russian interference in the 2016 presidential election before the Senate Select Committee on Intelligence (SSCI).154 In an exchange with Committee Chairman Senator Richard Burr, Comey was asked about the Midyear investigation, including whether his decision to publicly report the results of the investigation was

153 See U.S. House of Representatives, Committee on the Judiciary, Oversight of the Federal Bureau of Investigation, 114th Cong., 2d sess., September 28, 2016, https://judiciary.house.gov/wp•content/uploads/2016/09/114-91_22125.pdf (accessed May 8, 2018).

154 See U.S. Senate, Select Committee on Intelligence, Open Hearing with Former FBI Director James Comey, 115th Cong., 1st sess., June 8, 2017, https://www.intelligence.senate.gov/hearings/open-hearing-former-fbi-director-james-comey# (accessed May 8, 2018).

influenced by the tarmac meeting between former Attorney General Lynch and former President Clinton. Comey replied, “Yes. In—in an ultimately conclusive way. That was the thing that capped it for me that I had to do something separately to protect the credibility of the investigation, which meant both the FBI and the Justice

Department.”

Senator Burr then asked whether there were other things that contributed to Comey’s decision that he could describe in an open session. Comey stated:

There were other things that contributed to that. One significant item I can’t, I know the committee’s been briefed on. There’s been some public accounts of it, which are nonsense, but I understand the committee’s been briefed on the classified facts.

Probably the only other consideration that I guess I can talk about in an open setting is at one point the Attorney General had directed me not to call it an “investigation,” but instead to call it a “matter,” which confused me and concerned me. But that was one of the bricks in the load that led me to conclude I have to step away from the Department if we’re to close this case credibly.

The classified facts indicating potential bias by the former Attorney General referenced in Comey’s testimony are discussed in the classified appendix to this report. As described in more detail in that appendix, Comey had concerns about Lynch’s ability to credibly announce the closure of the investigation, in part because of classified information learned by the FBI in March 2016 regarding alleged attempts to influence the Midyear investigation by Lynch, as well efforts by Comey to extend the investigation to impact the election. Although the FBI did not find these allegations credible, did not investigate the allegations, and did not inform Lynch about the information until August 2016, Comey was concerned that, if the allegations became known, it could affect the public’s perception of Lynch’s involvement in the investigation.

Comey was asked to provide additional details about Lynch’s instruction to call the Midyear investigation a “matter” by Senator James Lankford. Comey stated:

Well, it concerned me because we were at the point where we had refused to confirm the existence, as we typically do, of an investigation for months, and it was getting to a place where that looked silly, because the campaigns were talking about interacting with the FBI in the course of our work.

The Clinton campaign at the time was using all kind of euphemisms— security review, matters, things like that—for what was going on. We were getting to a place where the Attorney General and I were both going to have to testify and talk publicly about [it]. And I wanted to know, was she going to authorize us to confirm we had an investigation?

And she said, “Yes,” but don’t call it that, call it a “matter.” And I said, why would I do that? And she said, just call it a “matter.”

And, again, you look back in hindsight, you think should I have resisted harder? I just said, all right, it isn’t worth—this isn’t a hill worth dying on and so I just said, okay, the press is going to completely ignore it. And that’s what happened. When I said, we have opened a matter, they all reported the FBI has an investigation open.

And so that concerned me because that language tracked the way the campaign was talking about FBI’s work and that’s concerning.155

In response to a follow up question about this testimony, Comey stated:

And again, I don’t know whether it was intentional or not, but it gave the impression that the Attorney General was looking to align the way we talked about our work with the way a political campaign was describing the same activity, which was inaccurate. We had a criminal investigation open with, as I said before, the Federal Bureau of Investigation. We had an investigation open at the time, and so that gave me a queasy feeling.

Comey also had an extended exchange with Senator John Cornyn about

whether Lynch had an appearance of a conflict of interest requiring appointment of

a special counsel.

SENATOR CORNYN: But it seems to me that you clearly believe that Loretta Lynch, the Attorney General, had an appearance of a conflict of interest on the Clinton email investigation. Is that correct?

COMEY: I think that’s fair. I didn’t believe she could credibly decline that investigation, at least not without grievous damage to the Department of Justice and to the FBI.

SENATOR CORNYN: And, under Department of Justice and FBI norms, wouldn’t it have been appropriate for the Attorney General, or, if she had recused herself—which she did not do—for the Deputy Attorney General to appoint a special counsel? That’s essentially what’s happened now with Director Mueller. Would that have been an appropriate step in the Clinton email investigation in your opinion?

COMEY: Certainly a possible step, yes, sir.

155 In an interview on September 8, 2015, former Secretary Clinton described the FBI’s investigation as a “security investigation…. It’s not, as has been confirmed, a criminal investigation.”

Interview with Hillary Clinton, ABC News (Sept. 8, 2015), https://abcnews.go.com/Politics/full•transcript-abcs-david-muir-interviews-hillary-clinton/story?id=33607656 (accessed June 1, 2018). Her campaign also referred to it as a “security review.” See Eugene Kiely, More Spin on Clinton Emails, FactCheck.org (Sept. 8, 2015), https://www.factcheck.org/2015/09/more-spin-on-clinton•emails (accessed June 2, 2018).

SENATOR CORNYN: And were you aware that Ms. Lynch had been requested numerous times to appoint a special counsel and had refused?

COMEY: Yes, from—I think Congress had, members of Congress had repeatedly asked. Yes, sir.

SENATOR CORNYN: Yours truly did on multiple occasions. And that heightened your concerns about the appearance of a conflict of interest with the Department of Justice, which caused you to make what you have described as an incredibly painful decision to basically take the matter up yourself and led to that July press conference.

COMEY: Yes, sir. After President Clinton, former President Clinton, met on the plane with the Attorney General, I considered whether I should call for the appointment of a special counsel and had decided that that would be an unfair thing to do, because I knew there was no case there. We had investigated it very, very thoroughly.

I know this is a subject of passionate disagreement, but I knew there was no case there. And calling for the appointment of a special counsel would be brutally unfair because it would send the message, aha, there’s something here. That was my judgment. Again, lots of people have different views of it. But that’s how I thought about it.

SENATOR CORNYN: Well, if the special counsel had been appointed, they could’ve made that determination that there was nothing there and declined to pursue it, right?

COMEY: Sure, but it would’ve been many months later or a year later.

VII. Analysis

We found no evidence that Comey’s public statement announcing the FBI’s

decision to close the investigation was the result of bias or an effort to influence the election. Instead, the documentary and testimonial evidence reviewed by the OIG reflected that Comey’s decision was the result of his consideration of the evidence that the FBI had collected during the course of the investigation and his understanding of the proof required to pursue a prosecution under the relevant statutes. Nevertheless, we concluded that Comey’s unilateral announcement was inconsistent with Department policy, usurped the authority of Attorney General, and did not accurately describe the legal position of the Department prosecutors.

Although we found no evidence that Lynch and former President Clinton discussed the Midyear investigation or engaged in other inappropriate discussion during their tarmac meeting on June 27, 2016, we also found that Lynch’s failure to recognize the appearance problem created by former President Clinton’s visit and to take action to cut the visit short was an error in judgment. We further concluded that her efforts to respond to the meeting by explaining what her role would be in the investigation going forward created public confusion and did not adequately address the situation. Finally, we found that Lynch, having decided not to recuse herself, retained authority over both the final prosecution decision and the Department’s management of the Midyear investigation, including whether to respond to Comey’s call to her on the morning of July 5 by instructing him to share his statement with her.

1. Comey’s Decision to Make a Unilateral Announcement

Beginning in early 2016, and certainly by late April 2016, the Midyear team reached a general consensus that the evidence would not support a prosecution, absent major unexpected developments in the form of newly discovered emails or testimony. This assessment was based on a lack of evidence showing that former Secretary Clinton, her senior aides, or other State Department officials knew that they were emailing unmarked classified information or intended to introduce classified information onto an unclassified system. Witnesses told us that, at the time, they understood the emails in question were sent by State Department employees to other State Department employees in the course of doing their jobs, and that both the senders and recipients had the appropriate clearances and the need to know the information. As described in Chapter Two, the prosecutors determined based on their legal research and review of past Department practice that evidence of knowledge or intent was necessary to charge any individual with violations of 18 U.S.C. §§ 793(d), 793(e), or 793(f)(1).

Comey understood and agreed with this assessment. He told us that, as he realized that the case likely would not result in charges, he became concerned that senior Department officials were unable to announce a declination in a way that the public would find credible and objective. Comey said that these concerns were based on the public perception created by an Attorney General appointed by a Democratic President announcing that the Democratic Presidential candidate would not be prosecuted, not on any actions by or concerns specific to Lynch or Yates; however, as discussed below, Comey also pointed to public comments made by then President Obama and his White House Press Secretary about the Midyear investigation, concerns that classified information referencing Lynch would be publicly released and would impact her credibility, Lynch’s alleged admonition to him early on to refer to the FBI’s investigation as a “matter,” and Lynch’s meeting with former President Clinton as contributing to his concerns about her.

In April 2016, Comey initiated discussions with Yates and Axelrod about how to credibly announce the conclusion of the investigation based on the likelihood that the case would result in a declination. During this discussion, Comey stated that he was likely to request the appointment of a special counsel “the deeper we get into summer” without concluding the investigation. Comey told the OIG that his reference to a special counsel was intended to induce the Department to move more quickly to obtain the Mills and Samuelson laptops. We did not find evidence that Comey at any time seriously considered requesting a special counsel.

Lynch told us that she was aware that Yates met with Comey, and that Comey indicated that he was not sure there was a “there there”—i.e., it was not a prosecutable case. Lynch also was receiving periodic briefings about the Midyear investigation, and said that she thought that any discussions about announcing a declination were “very premature” at that time because there were remaining investigative steps to be taken. Lynch told us that she did not know that Comey mentioned requesting a special counsel during his discussion with Yates, and that no one in the Department or the FBI ever suggested to her that a special counsel was needed.

Discussions about a strategy for announcing a declination also took place within the FBI. Comey told the OIG that he considered every option for announcing a declination, from a one-line press release issued by the Department to an FBI-only press conference providing a detailed statement about the investigation. Comey said that foremost in his mind was the need to minimize the “reputational damage” to the Department and the FBI that would result from a declination, and to preserve the credibility and integrity of the institution.

In late April 2016, Comey raised the possibility of “doing something solo” in a meeting with Baker, McCabe, and Rybicki. He also began drafting a public statement that contemplated that he would act alone in announcing the declination, sending a first draft of this statement to Baker, McCabe, and Rybicki on May 2, 2016. Witnesses told us that Comey had not yet made a firm decision to deliver a public statement when he sent this draft, but that he wanted to discuss it as one possible option for announcing a declination.

According to various witnesses we interviewed, Comey and other senior FBI officials knew that delivering a separate public statement held substantial risk. McCabe said that he expressed concerns that such a statement would represent a “complete departure” from Department protocol and could set a “potentially dangerous precedent” for the FBI. Rosenberg said that in discussions with Comey, he raised the possibility that doing a separate statement would create an irreparable breach with the Department. Comey said that he knew it was a “crazy idea, but we were in a [500]-year flood.”

Comey discussed the draft public statement in meetings with members of the Midyear team and with senior FBI officials at various times in May and June 2016. These discussions included whether to do a separate statement at all, in addition to the specific language revisions discussed in Section III.B and C above. Comey said that by June 27, 2016, the date of Lynch’s tarmac meeting with former President Clinton, he was “90 percent there, like highly likely” in terms of deciding to deliver the statement.

Despite this, Comey and other senior FBI officials continued to engage their Department counterparts in discussions about how to credibly announce a declination. These discussions occurred at various levels: between Comey and Yates; between McCabe and Carlin; and between Strzok and Laufman. At no time did anyone from the FBI inform anyone from the Department that Comey was even considering making a statement on his own, let alone that he had already drafted such a statement. Department witnesses at all levels told us that they believed that shortly after the interview of former Secretary Clinton was completed, the Department and the FBI would work together to deliver some sort of coordinated statement, and that Comey would be involved. Yates told the OIG that her

understanding was that they would be “all holding hands and jumping off the bridge together.”

Comey said that from the time he first conceived of making a separate statement, he intended to deliver it without coordinating with the Department. He told the OIG that he made a conscious decision not to tell Department leadership about his plans to “go it alone” because he was concerned that they would instruct him not to do it. Comey admitted that he concealed his intentions from the Department until the morning of his press conference, and instructed his staff to do the same, to make it impracticable for Department leadership to prevent him from delivering his statement.

We found that it was extraordinary and insubordinate for Comey to conceal his intentions from his superiors, the Attorney General and Deputy Attorney General, for the admitted purpose of preventing them from telling him not to make the statement, and to instruct his subordinates in the FBI to do the same. Comey waited until the morning of his press conference to inform Lynch and Yates of his plans to hold one without them, and did so only after first notifying the press. As a result, Lynch’s office learned about Comey’s plans via press inquiries rather than from Comey. Moreover, when Comey spoke with Lynch he did not tell her what he intended to say in his statement.

Factors Cited by Comey as Influencing His Decision

Comey cited several factors that he said influenced his decision to make a statement on his own and without coordinating with the Department. In addition to public comments made by former President Obama and his White House Press Secretary about the Midyear investigation, Comey cited four things that he said caused him to be concerned that Lynch could not credibly participate in announcing a declination: her alleged instruction to call the Midyear investigation a “matter” in a meeting held on September 28, 2015, which Comey said “made [his] spider sense tingle” and caused him to “worry…that she’s carrying water for the [Clinton] campaign”; concerns that highly classified information referencing Lynch would be publicly released and would impact her credibility; the tarmac meeting between Lynch and former President Bill Clinton; and the fact that Lynch was appointed by a President that was the same political party as former Secretary Clinton.

We found none of these reasons persuasive, either standing alone or considered together, as a basis for deviating from well-established Department policies and acting unilaterally in a way intentionally designed to avoid supervision by Department leadership over his actions.

Lynch’s Reference to the Investigation as a “Matter.” We found that the discussion between Lynch and Comey on September 28, 2015, was not generally viewed as a particularly significant event, other than by Comey. As described in Chapter Four, Department and FBI officials present at this meeting did not interpret Lynch’s reference in the way Comey did, and contemporaneous notes indicate that the discussion at the meeting was focused on the need to track language in recent letters to Congress and the State Department. Lynch told us that her intent in suggesting that Comey refer to Midyear as a “matter” was to allow them to answer questions about staffing and resources while also complying with longstanding Department policy to refrain from confirming ongoing criminal investigations, not to downplay the significance of the investigation. Other Department witnesses present at this meeting interpreted Lynch’s comment as a suggestion, not an instruction from Lynch. We found no evidence that this phrasing

was intended to “track” the language used by the Clinton campaign or was an

attempt to influence the investigation. Remarkably, Comey never told Lynch or Yates that this (or any other) incident raised questions about Lynch’s impartiality in his mind, or that such concerns might influence his actions in handling the case.

Concerns about Future Leaks of Classified Information. As described in the classified appendix to this report, Comey told the OIG that he became concerned in mid-June 2016 that classified information suggesting that Lynch was exerting influence on the Midyear investigation would be publicly released, and that this would impact her ability to credibly announce a declination. However, by mid-June Comey was already very far along in his plans to make a unilateral statement. Moreover, witnesses told us that the FBI determined based on various factors that the allegations that Lynch had interfered with the investigation were not credible, describing the information as “objectively false.”

Comey told the OIG that he never saw any actions by Lynch to interfere with the investigation, stating, “I’ll say this again, I saw no reality of Loretta Lynch interfering in this investigation.” Rather, Comey said he was concerned that leaks of this non-credible information about Lynch would undermine her credibility. The FBI did not inform Lynch about the allegation in the highly classified information until August 2016, more than a month after Comey’s announcement, and then (according to Lynch) did so in a way that highlighted the FBI’s assessment that the information lacked credibility.156 At no time did Comey alert Lynch or Yates that the information raised concerns about Lynch’s ability to participate credibly in the Midyear investigation or in any declination announcement. At no time did Comey consult with Lynch or Yates about how to deal with this false information to protect the credibility of the declination decision.

Finally, the OIG found that the same classified information also included an allegation, equally lacking in credibility, that Comey planned to delay the Midyear investigation to aid Republicans. Comey did not inform Lynch or Yates of this fact, let alone discuss with them whether this information might be leaked or whether, if it was, it might undermine his credibility as a spokesman.

Lynch’s Tarmac Meeting with Former President Clinton. Comey told us that by the time the tarmac incident occurred on June 27, 2016, he was already “90 percent there” in terms of the decision to make a public statement, but that the tarmac meeting “tipped the scales” towards making his mind up to go forward with an independent announcement on the Midyear investigation. While Comey’s

156 As described in the classified appendix to this report, the FBI notified senior career Department officials about this information in March 2016, but did not convey that it raised concerns about Lynch’s ability to credibly participate in announcing a declination in the Midyear investigation.

concerns about the impact of the meeting were legitimate, and warranted his informing Lynch of his concerns and providing her with any views he had on how it should be addressed, ultimately the decision whether Lynch should voluntarily recuse herself was Lynch’s to make, not Comey’s.

In his October 2016 SAC Conference speech, Comey emphasized the damage to the FBI that would result if he “did the normal thing” in the wake of the tarmac meeting. He stated that he was concerned that if the FBI made a private recommendation to Lynch, “the Department of Justice will screw around it for Lord knows how long, issue probably a one sentence declination, and then the world will catch on fire[.]” However, the stated concerns are inconsistent with what Comey had already discussed with the Department about the “endgame” of the investigation. Comey knew that the Department was well aware of his view that the Midyear investigation needed to be completed promptly. Comey had previously discussed with Yates the prospect of requesting a special counsel if the investigation continued past the nominating conventions, and Yates told us that she and Comey had made plans to “hold hands and jump off the bridge together” in announcing a declination. Moreover, notes from discussions of the Midyear team that occurred shortly before the Clinton interview on July 2 reflected that the prosecutors understood that Comey wanted to make the announcement by July 8 and therefore there would be “withering pressure” to complete the LHM and memorialize the Midyear prosecutors’ conclusions immediately after the Clinton interview. There simply was no basis for Comey to believe that the Department would take weeks to act on the FBI’s recommendation on such a consequential matter.

Moreover, Comey never raised his concerns about the tarmac meeting with Yates or requested that Lynch recuse herself. Instead, Comey viewed the tarmac meeting as a justification for proceeding with his existing plan to act alone. Comey admitted that had Lynch recused herself he might have reconsidered his decision to make a separate announcement, stating, “Had Loretta said, I’m stepping out of this. I’m making Sally Yates the Acting Attorney General and had I gone and sat down with Sally and heard her vision for it, maybe we would have ended up in a different place.” While Comey indicated that he did not speak with Yates because Lynch had already made her announcement on July 1, we found that he still could and should have done so.

Lynch was Appointed by a Democratic President. Comey cited a general concern that Lynch was appointed by a President who was from the same political party as former Secretary Clinton. Yet that fact existed at the beginning of the Midyear investigation. At no time did Comey inform either Lynch or Yates that he viewed Lynch as having a “conflict of interest,” or that he thought she should be recused from the investigation on the basis of party affiliation, or for any other reason. While Comey did mention the prospect of a special counsel in his April 2016 meeting with Yates, he did so seemingly as a bargaining chip to get the Department to move more quickly on the Mills and Samuelson laptops, and we found no evidence that he seriously pursued this option.

We found it troubling that Comey would have formed views about Lynch’s inability to participate in or credibly decline prosecution of the Midyear investigation, yet never once raised them with Lynch or Yates. If Comey genuinely believed that Lynch could not credibly participate in the Midyear investigation or announce a declination, he should have raised these concerns with Yates or Lynch and requested that Lynch recuse herself. If he believed that neither Lynch nor Yates could credibly make a prosecutive decision, he should have discussed this with them at the beginning of the investigation and requested appointment of a special counsel. He did not.

Impact of Comey’s Decision to Make a Unilateral Statement

Comey’s decision to depart from longstanding Department practice and publicly announce the FBI’s declination recommendation without coordinating with the Department was an unjustified usurpation of authority.157 Although Comey was aware that the Midyear prosecutors and Department leadership viewed the case as a likely declination, Comey made the decision to announce the conclusion of the investigation before prosecutors had a chance to render their own formal prosecutorial decision. Comey’s views on what a “reasonable prosecutor” would do—while informed by the prosecutors’ views on the likely outcome of the case and the Department’s research on past mishandling cases—were nonetheless made without consulting the Department in advance. Although Comey stated in his press conference that “the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect,” by making this public announcement about the FBI’s charging recommendation, and by stating his view that “no reasonable prosecutor” would bring charges, he effectively made the decision for the prosecutors because it would thereafter have been virtually impossible for them to make any other decision.

Even if Comey had every reason to believe that Lynch and Yates agreed with him, speaking unilaterally and publicly for the Department about a decision to decline prosecution is not a function granted to the Director. The authority to make such a statement had not been delegated to him by his superiors, the Attorney General and the Deputy Attorney General. Comey acknowledged this, but argued that “the potential for damage to the institution” outweighed the need to follow Department practice, stating, “[I]n a normal circumstance it’s the right of the

157 After reviewing a draft of the report, counsel for Comey stated that even before Lynch’s July 1 statement that she would accept the recommendation of the career staff, the decision about whether to prosecute former Secretary Clinton was publicly framed as belonging to him, and Department leadership did not correct this impression. See, e.g., Massimo Calabresi, Inside the FBI Investigation of Hillary Clinton’s Email, TIME, Mar. 31, 2016 (noting that Lynch testified in February 2016 that she was waiting for a charging recommendation from Comey, and that some Republicans were referring to the investigation as the “Comey primary”). As a result, counsel said that Comey did not “usurp” the Attorney General’s authority, but rather had the role of the Attorney General given to him by Department leadership. However, waiting for a charging recommendation from the FBI Director is substantially different than making a public announcement without any prior consultation with or approval from the Attorney General. Indeed, there would have been no need for Comey to have affirmatively concealed his plans for a public statement from Lynch if he believed Lynch had effectively ceded authority over the prosecution decision to him.

Attorney General and Deputy Attorney General to make those decisions and the FBI

Director should tell them, but this was not the normal circumstance.”

In our criminal justice system, the investigative and prosecutive functions are intentionally kept separate as a check on the government’s power to bring criminal charges. While Comey’s statement acknowledged those differing roles and responsibilities, his actions violated those separate authorities by arrogating to himself and the FBI the ability to make judgments about whether a case of the highest political consequence should be charged, and he did so by intentionally seeking to prevent Department leadership from being able to stop him based on concerns that he never even gave them an opportunity to consider. In making a statement announcing the conclusion of the Midyear investigation and opining on what the only possible prosecutorial decision could be, Comey made it virtually impossible for any prosecutor to make any other recommendation. He thereby effectively operated as not only the FBI Director, but also as the Attorney General. It is the Attorney General who is accountable to the public and to Congress for prosecutorial decisions made by the Department, not the head of the investigating law enforcement agency. Comey took that accountability away from Lynch and placed it on himself when he decided to deliver a unilateral statement.

Additionally, Comey’s decision to make an announcement without consulting or obtaining approval from Department leadership violated the Department’s media policy and also may have violated regulations regarding the public release of information. See 28 C.F.R. § 50.2(b)(9). Although Baker told the OIG that Comey’s call to Lynch and Yates on the morning of his press conference constituted approval for purposes of this regulation, Comey’s testimony that he concealed his plans from Lynch until the morning of July 5, only contacted her after the FBI had notified the press in order to make it impossible for her to stop him, and told Lynch when they did speak that he was not going to tell her what he intended to say in his statement, does not constitute consulting with or obtaining approval from Department leadership. In light of these events, we recommend that the Department consider making explicit in the USAM what we thought was obvious in light of Department policy and protocol—that an investigating agency cannot publicly announce its recommended charging decision in a criminal investigation prior to consulting with the Attorney General, Deputy Attorney General, U.S. Attorney, or his or her designee, and cannot proceed to publicly announce that decision prior to obtaining a final prosecution decision from one of these officials.158

1. Content of Comey’s Unilateral Announcement

We identified two significant substantive concerns with the content of Comey’s July 5 statement. First, Comey included criticism of former Secretary Clinton’s uncharged conduct, including calling her “extremely careless,” thereby violating longstanding Department practice to avoid what others described as “trash[ing] people we’re not charging.” Second, having improperly decided to comment on what were prosecutorial decisions, Comey proceeded to inadequately

158 Such a policy would necessarily need to include exceptions for certain situations where the law required or permitted disclosure.

and incompletely explain how the Department’s prosecutors applied the relevant statutory provisions and why they believed the evidence was insufficient to support a prosecution. For example, Comey described former Secretary Clinton’s handling of classified information as “extremely careless” but then asserted that such conduct did not amount to “gross negligence” under the relevant statute. In so doing, Comey failed to explain that, since at least 2008, it had been the Department’s position that, before bringing a “gross negligence” case, prosecutors had to be able to prove that a defendant knew at the time that the information was gathered, transmitted, or lost that it was in fact classified information. As delivered, Comey’s statement led to greater public confusion and second guessing, not greater public clarity.

Many of the problems with the statement resulted from Comey’s failure to coordinate with Department officials. By deciding not to consult with the Midyear prosecutors about their assessment of the Department’s historical approach to and interpretation of the “gross negligence” statute or their assessment of the evidence under the applicable legal standard, Comey lost the opportunity to hear the views of the career prosecutors responsible for prosecuting violations of the mishandling statutes. Based on our interviews, these prosecutors would likely have warned him about the substantive questions presented by his statement. In addition, Department witnesses told the OIG that the presentation of the case by the Midyear prosecutors at the briefing of the Attorney General on July 6, 2016, which is described in Chapter Six, differed significantly from Comey’s statement, leading these witnesses to conclude that the presentation of the facts in Comey’s statement was “very skewed” or delivered with a “slant.”

Description of Uncharged Conduct

It is not unprecedented for the Department to announce the completion of an investigation without a prosecution. In fact, it happens frequently in high profile matters, including in many federal civil rights investigations. Such an announcement may serve several legitimate purposes, including allowing the public to know that the Department thoroughly investigated the matter and lifting the cloud over an individual known to have been under investigation. In limited instances, the Department has included criticism of individuals not charged with a crime. Comey cited as precedent for his July 5 public statement the June 2004 press conference by then DAG Comey summarizing the evidence against Jose Padilla, who was designated as an enemy combatant, and the Department’s October 2015 letter to Congress summarizing the results of the criminal investigation into IRS officials, which did not result in criminal charges. However, in both of those instances, the Department was responsible for issuing the statement, not the FBI Director.

Moreover, Comey’s announcement was unusual in that it concentrated in substantial part on criticizing former Secretary Clinton’s uncharged conduct. This was contrary to longstanding Department practice and protocol. Witnesses told us that criticizing individuals for conduct that does not warrant prosecution is something that the Department simply does not do. For example, Toscas stated, “We don’t say we’re closing something, but let me tell you some bad stuff that we saw along the way, but it doesn’t rise to the level of bringing a case. We just don’t do it.” Prosecutor 1 characterized the negative comments about former Secretary Clinton as “declining to prosecute someone and then sort of dirtying them up with facts that you develop along the way.”

Department witnesses did not identify a specific regulation or USAM provision that required Comey to refrain from commenting on uncharged conduct, and we found none. Rather, witnesses described this as a practice that is “ingrained” in every Department prosecutor. This principle underlies other Department policies and practices that do not directly apply in these circumstances, but that are nonetheless salient. USAM 9-27.760 requires prosecutors to remain sensitive to the privacy and reputation interests of uncharged third parties—for example, by not identifying or causing a defendant to identify a third-party wrongdoer by name or description in public plea and sentencing proceedings, without the express approval of the U.S. Attorney and the appropriate Assistant Attorney General prior to the hearing absent exigent circumstances. USAM 9-27.760 states, “In other less predictable contexts, federal prosecutors should strive to avoid unnecessary public references to wrongdoing by uncharged third-parties.”

Similarly, when a case is closed without charges being filed, the Department does not seek to unseal a search warrant for the purpose of revealing to the public that there was probable cause that someone engaged in criminal activity. In addition, where the Department has concluded that an uncharged individual was a participant in a criminal conspiracy, the Department’s rules specifically prohibit prosecutors from naming the uncharged co-conspirator in an indictment or including sufficient detail in public filings that would allow the co-conspirator to be identified. See, e.g., USAM 9-11.130. The common principle underlying these policies is that neither the FBI nor Department prosecutors are permitted to insinuate or allege that an individual who has not been charged with a crime is nevertheless guilty of some wrongdoing. We see no reason why an unindicted co•conspirator should be afforded greater protection than a person who has been investigated and found not to be criminally liable. We therefore recommend that the Department and the FBI consider adopting a policy addressing the appropriateness of Department employees discussing uncharged conduct in public statements.

Several witnesses acknowledged that one major purpose of including negative comments about former Secretary Clinton was to send the message that the FBI was not condoning her conduct: essentially, to protect the FBI from criticism that it failed to recognize the seriousness of her conduct and was “letting her off the hook.” We recognize that this investigation was subject to scrutiny not typical of the average criminal case, but that does not provide a basis for violating well-established Department norms and, essentially, “trashing” the subject of an investigation with uncharged misconduct that Comey, every agent, and every prosecutor agreed did not warrant prosecution. Such norms exist for important reasons and none of the justifications provided by witnesses for why such criticism was warranted in the Midyear investigation—including expressing disapproval of former Secretary Clinton’s conduct to the FBI workforce, “counter[ing]” statements made on the campaign trail that the emails in question were classified after the fact, or informing the American people about the facts of the investigation— provided legitimate reasons to depart from normal and appropriate Department practice.

Substantive Issues with the Statement

Department witnesses told the OIG that they considered Comey’s statement to be both factually and legally incomplete. These witnesses said that critical facts supporting the decision to decline prosecution were not included in Comey’s statement. Axelrod told the OIG that Comey’s most notable omission was the failure to explain that the Department has never prosecuted mishandling violations “where the classified information was shared between people who work for the Government…. That’s a pretty important fact.” Axelrod and other Department witnesses also noted that Comey did not include information explaining that “the majority of the emails that turned out to be classified had been sent late at night or on the weekends,” suggesting that State Department employees sending the emails tried to “talk around” classified information in the course of doing their jobs. Department witnesses described the characterization of the evidence in Comey’s statement as “very skewed” or unintentionally “slant[ed].”

Comey also included in his statement a comment that although the FBI did not find direct evidence that former Secretary Clinton’s private email account was hacked, the FBI assessed that it was “possible” that hostile actors gained access to former Secretary Clinton’s personal email account based on various factors. He added that the FBI assessed it would be unlikely to see such direct evidence given the nature of the system and the actors potentially involved in hostile intrusions, and that former Secretary Clinton had used her personal email in the territory of foreign adversaries. The statement thus insinuated that hostile foreign actors may have in fact gained access to former Secretary Clinton’s private email account, based almost entirely on speculation and without any evidence from the Midyear investigation to support his claim. As described in Chapter Five, the FBI Midyear Forensics Agent told the OIG that, although he did not believe there was “any way of determining…100%” whether Clinton’s servers had been compromised, he felt “fairly confident that there wasn’t an intrusion.” The LHM summarizing the Midyear investigation similarly stated, “FBI investigation and forensic analysis did not find evidence confirming that Clinton’s email server systems were compromised by cyber means.”

In addition, Comey’s statement failed to describe accurately what the Midyear prosecutors deemed was essential to make out a violation of the “gross negligence” statute. As described in Chapters Two and Seven, the Midyear prosecutors took into account the legislative history of the statute, previous military prosecutions and indictments brought under it, and the Department’s historical interpretation of the provision in declinations dating to at least 2008. Based on this authority, the Midyear prosecutors determined that a violation of Section 793(f)(1) requires (1) a state of mind that is “just a little short of being willful,” “criminally reckless,” or “so gross as to almost suggest deliberate intention,” and (2) evidence that the individuals who sent emails containing classified information did so “knowingly.” With respect to former Secretary Clinton, the Midyear prosecutors determined that in the absence of evidence showing that she knew that emails she received contained classified information, such as through obvious classification markings, Department practice and precedent required that they decline prosecution.

Comey told the OIG that he understood Section 793(f)(1) to require “something closer to actual knowledge.” Yet nowhere in his statement did Comey say that the FBI concluded that former Secretary Clinton lacked knowledge that the information in question was classified, and that prosecutors determined that evidence of such knowledge was needed to bring charges under the “gross negligence” statute. On July 6, 2016, Prosecutor 3 sent an email to the other Midyear prosecutors highlighting this problem. He stated:

It’s unfortunate that Comey didn’t differentiate the standard of proof between 793(f) and the other statutes. He glossed over all with mention of the absence of intent and made no mention of the necessity of proving knowledge of classified [information] with regard to 793(f) and why that proof was deficient. By using the phrase

“extremely careless” he lit up the talking heads last night, many of

whom opined that such verbiage warranted a gross negligence charge and that Comey was giving Clinton an unwarranted pass. Even the so-called legal experts didn’t seem to understand the elements of that statute and why it did not apply to the facts.

By describing former Secretary Clinton’s conduct as “extremely careless” while failing to explain what the Midyear team concluded was the lack of proof for the other requirements of Section 793(f)(1), Comey created confusion about the FBI’s assessment of her culpability and the reasons for recommending that prosecution be declined. The focus on former Secretary Clinton’s “extremely careless” handling of classified information foreseeably and predictably led the public to question why former Secretary Clinton was not being charged with “gross negligence.”

The issue for the Midyear prosecutors was never whether former Secretary Clinton’s conduct was “extremely careless,” but whether her conduct met the requirements for charging a violation of Section 793(f)—i.e., whether there was sufficient evidence to establish that she knowingly included classified information on her unclassified private email server, or learned that classified information was transferred to her unclassified server and failed to report it. The prosecutors concluded that there was not. As described in Chapter Seven below, the prosecutors found no evidence that former Secretary Clinton believed or was aware that the emails contained classified information, or had concerns about the information included in unclassified emails sent to her.

1. Lynch’s Decision Not to Recuse after the Tarmac Meeting

After the tarmac meeting with former President Clinton, Lynch obtained an opinion from the Departmental Ethics Office that she was not legally required to recuse herself from the Midyear investigation. Although the opinion was not memorialized in writing, former OAG staff and former officials in the Departmental Ethics Office confirmed that Lynch obtained this opinion, and that the conclusion was that recusal was not required. Lynch was entitled to rely on that ethics opinion in the face of subsequent questions about her involvement in the Midyear investigation.

Lynch told the OIG that she considered voluntarily recusing herself. However, she thought that doing so would create the impression that something inappropriate had occurred during her conversation with former President Clinton. Lynch said that she felt a responsibility to remain involved in the Midyear investigation, because if she decided to recuse herself, she would be “asking someone else to step up and endure all the hits the Department will take for the case for the result, whatever it is.”

Lynch said that she applied her usual process in the Midyear investigation, and that her role did not change after the tarmac meeting. Lynch told the OIG that the only thing that differed was that she decided to speak publicly about how the Department’s process typically works. However, Lynch’s July 1, 2016 statements at the Aspen Institute were confusing and created the impression that, while she would not formally recuse from the investigation, she also would not remain in a deciding role in the investigation (by stating “I will be accepting their recommendations”). In an effort to address the confusion, Lynch sought to clarify her remarks by providing the reporter with another formulation of her intentions, stating, “I can’t imagine a circumstance in which I would not be accepting their recommendations.” However, these statements continued to make it appear that Lynch would cede her decisionmaking authority to the career staff and the FBI Director in a way that was akin to some type of recusal.

In our view, Lynch should have either made it unambiguously clear that she did not believe there was a basis for recusal and that she was going to remain the final decisionmaker (thereby making her accountable for the final decision, not Comey), or recused herself and allowed Yates to serve as Acting Attorney General, or sought a special counsel appointment. Instead, Lynch took none of these actions, leaving it ambiguous to the public as to what her role would be. Ultimately, that left the public with the perception that the FBI Director, and not the Attorney General, was accountable for the declination decision.

1. Lynch’s Response to Comey’s Notification

As described above, Comey concealed his plans to make a public statement from senior Department officials, and instructed his subordinates to do the same. He did not inform Lynch and Yates of his plans to hold a press conference until the morning of July 5, 2016. Comey intentionally left Department leadership a short time to respond to his information, admitting that he did this to avoid having them tell him not to do it.

Comey notified Lynch and Yates of his plans only after first contacting the press. He did not tell Lynch what he planned to say when she asked. According to Lynch, Comey told her he would not go over his statement with her so they both could say that it was not coordinated. Department officials understandably had concerns about directing Comey to cancel the press conference after he had already announced his plans to hold one.

Lynch said while Comey told her that his statement would be about the Midyear investigation, it did not occur to her that Comey would announce the end of the investigation or the FBI’s recommendation. She explained that while she knew that former Secretary Clinton had been interviewed, she was not aware that the investigation was considered complete. Lynch told the OIG that if she had known what Comey was planning to do, she would have told him to stop. However, Lynch said that she trusted him based on her long relationship with Comey and his comment to her that it would be better if they could both say that they did not coordinate his statement. Lynch told the OIG that she thought this was a reasonable decision, and that it was the right decision under the circumstances because the Comey she knew followed the rules. She said that once Comey started speaking and she realized what he was doing, she had “no way to stop him at that point, I mean, short of, you know, dashing across the street and unplugging something.”

Nonetheless, we found that Lynch retained authority over both the final prosecutive decision and the Department’s management of the Midyear investigation. This included the authority to insist that Comey share his statement with her and allow the Department to review and comment on it. Although we recognize that Comey made it impracticable for her to tell him not to make any statement given the FBI had already notified the press, there was time still available for her to review his proposed statement and to instruct him to make changes to it. Even if Lynch did not think that Comey was going to announce that the FBI was closing its Midyear investigation, Comey told her the statement was going to be about the Midyear investigation, a case over which she retained the authority and responsibility as the Attorney General. As such, we believe she should have instructed Comey to tell her what he intended to say beforehand, and should have discussed it with Comey.