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 TEN: THE DECISION TO NOTIFY CONGRESS ON OCTOBER 28

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 TEN: THE DECISION TO NOTIFY CONGRESS ON OCTOBER 28

In this Chapter we address Comey’s decision to send a letter to Congress on October 28, 2016, about the emails discovered on the Weiner laptop. Comey made the decision to send the letter on October 27, following the briefing he received from the Midyear team that morning.

In Section I of this Chapter, we address various factors that Comey and others in the FBI said they considered with respect to the decision to make the disclosure. In Section II we compare the decision to notify Congress about the Midyear investigation with the way in which the Russia and Clinton Foundation investigations were handled. In Section III we discuss certain internal FBI messages about the decision that we discovered in the course of our review. In Section IV we address the process by which the FBI announced Comey’s decision to the Department and how Department leadership reacted to his decision. In Section V we discuss how the October 28 letter was drafted, edited, and finalized. In Section VI we provide our analysis of Comey’s decision.

Factors Considered as Part of Comey’s Decision to Notify Congress

The question of whether to notify Congress of the Midyear team’s discovery of emails on the Weiner laptop was first raised during the briefing to Comey on the morning of October 27. FBI personnel involved in the decision told us that over the next 24 hours, numerous discussions occurred about whether to notify Congress of this development. Below we address the various factors relevant to this decision that Comey and others in the FBI told us they considered.

Belief That Failure to Disclose Would Be an Act of Concealment

Two broad categories of longstanding Department and FBI policies, norms, and practices were potentially relevant to the decision to announce the reactivation of Midyear. First, the Department and the FBI regularly decline to comment publicly or to Congress regarding ongoing criminal investigative activity. Comey endorsed this principle in general, stating, “I believe very strongly that our rule should be, we don’t comment on pending investigations.”

Second, the Department has a longstanding practice of avoiding actions that could impact an imminent election, which Comey described as a “very important norm.” Comey stated:

I said to [the team] here’s the way I think about it. I’ve lived my entire career in the Department of Justice under the norm, the principle, that we, if at all possible, avoid taking any action in the run up to an election, avoid taking any action that could have some impact, even if unknown, on an election whether that’s a dogcatcher election or president of the United States….

Comey told us that the circumstances surrounding the discovery of emails on the Weiner laptop did not permit him to conform to these policies and norms, and that, in particular, remaining silent did not appear to be an option. Comey explained:

I couldn’t see a door—I said to the people inside the organization—I can’t see a door labeled, no action here. I can only see two doors and both were actions. One is speak, the other is conceal. Because having testified about this multiple, multiple times, like working backwards in September, July and having spoken about it on July 5th, and told Congress, the American people, a material fact which is, this is done and there is no there there. To now restart and not just in a marginal way, in a way where we may have found the missing emails, that to not speak about that would be, in my view, an affirmative act of concealment. And so I said okay, those are the doors. One says speak, the other says conceal. Let’s see what’s behind the speak door. It’s really bad. We’re 11 days from a presidential election. Given the norm I’ve long operated under, that’s really bad. That will bring such a storm. Okay, close that one, really bad. Open the second one. Catastrophic. And again this is something reasonable people can disagree about, but my view was to conceal at that point given all I had said would be catastrophic. Not just to the Bureau, but beyond the Bureau and that as between catastrophic and really bad, that’s actually not that hard a choice. I’ll take really bad over catastrophic any day. And so I said to the team, welcome to the world of really bad.

Comey testified before the Senate Judiciary Committee on May 3, 2017, and spoke at length about the Midyear investigation. When talking about the October 28 letter, Comey testified:

[W]hen the Anthony Weiner thing landed on me on October 27 and there was a huge—this is what people forget—new step to be taken, we may be finding the golden missing emails that would change this case. If I were not to speak about that, it would be a disastrous, catastrophic concealment.

Perceived Obligation to Update Congress

Comey told us that he felt he had an obligation to update Congress that the FBI was seeking a search warrant for the Weiner laptop in the Midyear investigation because the email discovery was potentially very significant and that made Comey’s prior testimony no longer true. Comey stated:

I don’t think the obligation was rooted in my having promised to come back to them if I learned new evidence. I have read some of that in the open source; people saying the reason he did it is he had made a promise to Congress that he would supplement the record. No. I mean maybe I did in some form, but that’s not how I thought about it.

I thought my obligation to Congress is—I testified under oath for 10 hours and said there’s no there there; we’re done…. And now that is materially untrue and that’s the obligation I felt.

Comey stated that his July 5 statement was “actually irrelevant” to this obligation.

Comey told us that the Department could never have closed the Midyear investigation with a “no comment.” Instead, he said that, in the absence of his July 5 statement, the Department would have had to state that it conducted a “fair, honest, and independent” investigation and that the investigation was now closed. Comey stated that once that statement was made—in whatever form it came—“the decision that came in October [was] inevitable because all of a sudden that’s not true.”

In his testimony to the Senate Judiciary Committee, Comey stated, “I’ve got to tell Congress that we’re restarting this, not in some frivolous way, in a hugely significant way.” Comey added that “everyone on my team agreed we have to tell Congress that we are restarting this in a hugely significant way.”

Comey added that the significance of the potential evidence on the Weiner laptop was a factor in assessing his obligation to notify Congress and the public. He stated:

Yeah, so I’m sitting there. It’s October 27th and there’s a reasonable likelihood that we are going to find material—one possibility—that will change our view of the Hillary Clinton case. Two, even if it doesn’t, that we know something that is materially different than what the rest of the world knows and has relied upon since I spoke about this…. The FBI is done. There is no there there and that to conceal that, in my view, would be—subject the FBI and the Justice Department, frankly more broadly…to a corrosive doubt that you had engineered a cover up to protect a particular political candidate. And that especially given your pledges of transparency, not—I don’t actually put much stock in the notion that I promised to get back to Congress, but that I had said to everybody, the credibility of the Justice enterprise is enhanced by maximal credibility, maximal transparency. I offer that transparency, and then I know something that materially changes that picture and I hide it, I think the results would be generations-long damage to the credibility of the FBI and the Justice Department. That’s what I think about it.

Comey told us to put aside any hindsight bias about what was actually found on the laptop and “sit with me on October 28th and make this decision. And where you have a reasonable prospect of something that is world changing with respect to that investigation, then decide whether you speak about it or not.” Comey emphasized that this was “not just any investigative step, again you have reason to believe that there are hundreds of thousands of germane emails, including which is a very important fact to me, potentially the missing BlackBerry…emails from early in her tenure.” He continued, “[S]o this isn’t a frolic and detour, this is, it’s the reason the Department thought we had to get a search warrant, there’s potentially highly significant information there.”

We asked other FBI personnel about the nature of this obligation to update Congress. Rybicki told us that Comey felt he had an obligation “to basically supplement [the] record” with Congress because he had testified that the investigation was complete. Bowdich told us that he thought the obligation grew out of Comey’s July 5 press conference. Bowdich stated, “The Director felt like, hey, if we don’t notify them, after the July 5th notification, we could potentially be accused of concealing information. I remember him using that, that word.”

Steinbach described Comey’s decision and his obligation by stating:

[T]he overriding question was say nothing and get accused, worst case scenario, of covering up. Or be transparent and say we have something, we just don’t know what it is, and let that course play out. And I, you know, again, I, I describe the Director as a very transparent, communicative…person. And I want to say that that transparent piece probably weighed on him more than the not saying anything piece. And also I think his, his belief that he had somehow made that pledge to Congress.

The Lead Analyst stated that at one of the meetings during this period, Comey asked everyone in the room their opinion on whether the FBI had an obligation to notify Congress. When it was his turn, the Lead Analyst told us:

I will never forget what I told him. I said, sir, every instinct in my body tells me we shouldn’t do it, but I understand your argument that you have to make a, a factual representation, a factual correction to Congress to amend essentially what you told them, that otherwise, because I think that was really where he had coalesced or the discussion had, that he had made this statement to Congress, and that doing things like serving process is contrary to what he had told Congress. So he felt like he had to correct that record.

FBI Attorney 1 told us that an OGC attorney was tasked with researching whether Comey had a legal obligation to correct the record with Congress. FBI Attorney 1 stated, “I think what we decided was that he did not make a promise to come back to them. But that [the] implication was that the investigation was over.” We asked FBI Attorney 1 to explain her understanding of Comey’s obligation. She stated:

I think [Baker] and the Director just believed that, yes…the letter of what he said did not say I will come back to you. But they believed that he had an obligation to do so under…just general standards of candor…that we had finished the investigation. It was not finished…. I just think he felt that what he had said, the impression he had left, because he was the one testifying, was that he would come back to them. And [Baker] thought that, and [Baker] agreed with that part, definitely.

Baker told us that he believed that he was the person who first raised the issue of Comey’s obligation to update Congress. Baker stated that this obligation arose because Comey had “told Congress repeatedly this thing is closed” and had now authorized “a significant step forward in the investigation.” Baker stated that this obligation had nothing to do with the July 5 statement and was instead related to Comey’s testimony to Congress. Baker stated that even if Comey had not done the July 5 statement, eventually “[Comey] would have had to go to Congress, talk about the FBI’s investigation, talk about our conclusions. Say that we agreed or disagreed with the Department’s decision. And then, having done that, he would have been in the soup in the same way at the end of October.” Baker told the OIG that he believed that the perceived need to notify Congress was the overriding factor that drove the decisionmaking.

Anderson told us that she believed Comey needed to supplement his testimony to Congress because it “was such a significant issue” that “it would have been misleading by omission.” Anderson stated that even though Comey did not explicitly tell Congress he would update them, it was “implied” in “his testimony overall.”

Avoiding the Perception that the FBI Concealed the New Information to Help Clinton Win the Election

Comey told us that he was concerned that if the FBI failed to disclose the new information, it could be accused of attempting to help Clinton get elected. He stated that “to conceal that, in my view, would be—subject the FBI and the Justice Department, frankly more broadly…to a corrosive doubt that you had engineered a

cover up to protect a particular political candidate.”

Baker also expressed this concern. He stated:

[N]ot to notify Congress is…an action because it also potentially could have an impact on the election…so for example, [imagine] we don’t say anything. We push past the election, and then we announce that, well, by the way, we’ve authorized a search warrant, and we found all these emails. Let’s imagine, right? Because we don’t know what the facts are.

We find all these emails. You guys have probably heard this story, but I’ll just say it again. And it turns out that, oh, my God, there were more classified emails of a different type, or there’s clear evidence that she knew what she was doing. It kind of pushes us from the probable cause thing up to the beyond a reasonable doubt. And now we’re going to change our view about charging her…. If she’s been elected president of the United States, then Donald Trump would say, oh my God, these people knew this beforehand and didn’t say anything. This is a rigged system. This is, this, these people intentionally hid that until after the election so that they could get her elected and, and thwart me.

Steinbach also stated a similar concern. He stated:

I think weighing on everyone’s mind is if, if we get through this and a week after the general election we find relevant material, the Congress and the American public will never allow the FBI to live that down. You clearly hid this from the American public. And you knew you had something, yet you waited until after, until after she became president before you disclosed that you found something relevant. That was one course of action. The other course of action is we, we state it and get accused of influencing the election beforehand.

Steinbach continued:

We felt that, again, the, the Congress, the American people, would never be able to say FBI, you withheld this. The last thing we wanted to have happen was, hey, I wouldn’t have voted for her if I had known this. And so that was weighing on our minds. We wanted there to be transparency, both in November as well as in, in July. Hey, here is the set of facts. Here is the good and the bad. You, and again, I think that’s, there’s somebody, many feel that’s not your job, but I think the discussion items were, lay out the facts and let people decide for themselves. And that, and maybe not in those exact words, that was a theme through the course of this.

Steinbach told us he did not recall if Comey “said it in exactly these words, but, in the totality, that’s what he conveyed to us.” Steinbach added that Comey “wanted to be transparent.”

Protecting the Reputation of the FBI

Several witnesses articulated a concern that failing to disclose the decision to seek the search warrant would injure the reputation of the FBI—a concern that, as discussed above, was closely related to avoiding the perception that the FBI was hiding the information to help Clinton.

Bowdich stated, “I know [Comey] really felt hung out there with Congress, and he was so worried about the institution getting hurt. He didn’t, he knew it was a bad situation. But the institution getting hurt by thoughts of us concealing this

information.”

FBI Attorney 1 told us that the team “certainly considered” what would happen if the FBI chose not to disclose this information to Congress and the information became known after the election. She stated that would have had “a much more significant impact on the reputation of the FBI” because the FBI would have been accused of “somehow hiding” that information from Congress. We pointed out to FBI Attorney 1 that the FBI’s standard practice is not to release

information on investigations and asked her if not sending the letter would have simply been consistent with standard practice. She responded:

It would be, except we had already released information. And that’s what I said about, maybe I would have done something differently on the July 5th [statement]. We had already released all of the information and said this is what we’re doing. This is what we’ve decided. And then to then go back to the same stuff and…leave everybody with the impression that that’s what we’ve decided, and then a week later, everybody finds out that we, we had reopened this investigation. I think that would have been much more detrimental. To the FBI’s reputation and to the, the Justice Department’s reputation.

Protecting the Legitimacy of a Clinton Presidency

Comey told us that he was concerned about the perceived illegitimacy of a

Clinton presidency that would follow from a failure to make the October 28

disclosure. Comey stated:

I don’t remember thinking this explicitly, but I’m sure I was operating in an environment where she was going to be the next president, and I was in a position to have her be an illegitimate president the moment she was elected because I would have concealed a material development in her investigation. And the moment she took office, the FBI is dead, the Department of Justice is dead and she’s dead as president….

FBI Attorney 1 expressed similar concerns to us, but said she did not express them at the time. FBI Attorney 1 stated:

I also think it would have been detrimental…. I was careful not to discuss this. But in my mind, it was detrimental…if Secretary Clinton was elected president, then…it would have come out. It would have definitely come out that we had done the search warrant. And then, then it would have been an illegitimate, like it would have been grounds for, you know, you couldn’t have elected her. She was under investigation. All of those sorts of things that would have…had more of an impact if you didn’t say anything.

Concerns about the Electoral Impact of the Announcement

Comey told us that he decided at the time that he would not consider who

would be helped or hurt by making public the reactivation of the Midyear

investigation. Comey stated:

I will not engage in the exercise of figuring out who will be helped/who will be hurt, which way this will cut, who will play it, because then I’m starting to make judgments based on a political calculation. Instead, I should think about what is the right thing to do given the circumstance which we find ourselves. Where I’ve…made material representations and what is the best thing for the Justice institution to do given that, without regard to what may happen, so consciously I did not.

Comey described the debate within the FBI about the congressional

notification as a “family conversation,” where everyone was free to state their

opinions and concerns. Comey specifically told us of a concern expressed by Anderson during this conversation. Comey stated:

[O]ne important part of the family conversation about whether to send the October 28th letter was Jim Baker knew from his conversations with Trisha Anderson that one of her concerns was how should we think about the fact that this might hurt Hillary Clinton and help elect another candidate, that kind of thing, and Baker said we should raise it with the Director and that’s the kind of stuff he wants you to raise and I gather he thought she might not raise it. So at our next family discussion that evening, he said let me ask you a contrarian question. You know how do you think about this? And then I think she spoke herself and said, how do you think about the fact that you might be helping elect Donald Trump? And I said, I cannot consider that at all. Down that path lies the death of the FBI because if I ever start thinking about whose political ox will be gored by this or that, who will be hurt or helped, then we are done as an independent force in American life and so I appreciate you raising it, I cannot consider it. And I was very glad she raised it because it was probably a question that was looming in lots of people’s minds and I think my answer was the right answer….

Anderson stated that she did not remember exactly what she articulated in

the discussions about the letter, but she told us that she had a conversation with

Baker prior to the final meeting with Comey on the morning of October 28.

Anderson stated:

I do remember saying more explicitly to Jim Baker that I was worried that what we were doing was going to have an impact on the election. Was that appropriate for the Bureau? Was that, you know, did, I was concerned about that for, you know, for us as a, as an institution. And, and at least that that was how we were going to be perceived. The FBI was going to be perceived as having impacted the outcome of the election. And, you know, and sort of tied to that…had we reached the threshold, you know, that it was essential that we send this letter? And this is where, you know my, you know, my concerns about materiality and sort of fairness to the former Secretary, you know, played in. You know, in light of the fact that we’re going to be perceived to be affecting the outcome of the election, is there really enough here to warrant us doing that?

Anderson stated that Baker first raised Anderson’s concerns to Comey during the October 28 morning meeting and “kind of put [Anderson] on the hot seat.”

Anderson stated that she articulated her views to Comey and told him, “I’m not so certain that this is the right thing to do.” Anderson told us that a robust discussion

ensued. Anderson stated that she did not recall either candidate being mentioned by name in this discussion and said any discussion of impact on the election

“certainly would not have been couched in terms of” helping or hurting either candidate. Anderson added that “it would have been highly inappropriate for there

to be any partisan you know, motive or interest in influencing the outcome of the election.” Anderson stated, “I don’t know that I walked away from the meeting feeling, you know, totally convinced that it was the right thing to do, but I also understood why the other options were worse.”

After reviewing a draft of this report, Anderson clarified her testimony to the OIG. Anderson added:

While I do not remember the specific words that I used, I recall very clearly that I did not couch my concerns in terms of the FBI’s actions helping or hurting any particular presidential candidate. Rather, I asked [Comey] whether we should take into account that sending the letter might have an impact on the outcome of the election, or could be perceived as having such an impact. I stated that I had concerns about our actions having such an impact particularly given that it was unclear—and perhaps even unlikely—that the emails would be material to the investigation. I also recall raising a concern about it being unfair to the former Secretary—in a sort of due process sense— because no matter how carefully we wrote such a letter, the importance of the emails would be overinflated and misunderstood. So, in my mind, and what I believe I argued in the meeting, was that we were about to do something that could have a very significant impact on the outside world even though what we had might not be material, yet people would very likely view it as such.

We asked Baker about Anderson’s concerns. Baker told us that Anderson came to him the morning of October 28 and stated:

I’ve thought about this overnight. I have serious reservations about going down this road. I’m very concerned about this, Jim. Why? Well, because I’m concerned that we are going to interject ourselves into this process. We’re going to interject ourselves into the election in a way that’s, that potentially or almost certainly will change the outcome. And I am, I, Trisha, am quite concerned about that. And I’m concerned about us being responsible for getting Donald Trump elected.

Baker stated that Anderson was worried about “putting the thumb on the scale” in a way that is “going to hurt one candidate and benefit another one right before the election.” Baker told us that he asked Anderson if she wanted to bring this up with Comey, but Baker stated that “she was reticent” to do so. Baker said that he brought the issue up with Comey during the meeting that morning in order to make sure Anderson’s concern was brought to Comey’s attention without attributing it to her. Baker stated that Anderson then “chimed in” and “elaborated” on her concerns once he raised the issue. Baker told us that Comey responded “[a]long the lines of like we can’t think that way. We just can’t think that way.”

FBI Attorney 1 told us that she recalled others expressing “concern about what impact this would have on the election.” Specifically, FBI Attorney 1 stated that she spoke directly with Anderson about these concerns, which they both shared. She said that Anderson spoke to Baker about this concern and Baker raised it at one of the group meetings. FBI Attorney 1 stated:

As I was going through this, I was thinking I should not be bringing politics into this. And so I was trying to be careful about thinking about this in an apolitical way and not raising the concern as who is going to get elected, because that actually is not something that I thought we should be considering as the Bureau. I brought that up with Trisha, because she and I, you know, we’re close and we talked about it. But I did not, no one, I don’t think anyone brought up the outcome on the election. We talked about the policy, about, you know, that, making announcements so close in time to the election. But we didn’t bring up the fact that if you do this, Trump will get elected sort of question, because I, I don’t know that anyone thought it was appropriate to bring that up.

FBI Attorney 1 told us that this issue was raised with Comey in the context of having an undue influence on the election, rather the potential impact of the decision in an electoral sense. FBI Attorney 1 stated that Comey recognized the concern, but Comey framed the issue in terms of “what was our obligation…to Congress and to the people to do the right thing.” FBI Attorney 1 reiterated that although the issue was discussed in terms of the proximity to the election, “we did not discuss, but if you say this, then Trump will get elected. Like, we did not in any way talk about it in those stark of terms. And so at least not in the, you know, as

the group decision.”

We asked other participants in the discussion about Anderson’s comments. Rybicki stated that Anderson raised a concern that the notification to Congress

“could help elect candidate Trump at that point.” Strzok told us that someone commented that the letter “might influence the ultimate outcome of the election.”

Bowdich stated that Anderson made an argument against the letter, but he told us that he could not recall what that argument was.

Expectation that Clinton Would Be Elected President

Comey told us that “like the rest of the world [he] assumed that Hillary Clinton was going to be elected president.” When asked whether this had an impact in his decision to notify Congress, he stated:

I think none and I tried very hard to both be that and maybe convinced myself of that…. I’ve often asked myself, so were you influenced in any way by the knowledge what the polls were showing? Not consciously, and in fact I tried to be very conscious about saying I don’t give a rip. I don’t care. But you know if anything, I suppose like if it’s unconscious, I may have been consoled that it wasn’t going to make any difference anyway. I don’t remember thinking that consciously, but the environment which I was operating—well I don’t want to psychoanalyze myself too much more—not consciously is the honest answer.

When asked if his decision would have been the same if Clinton was expected to lose by 20 points, he stated:

[T]hat’s a reasonable question…. I think I would have said still, if you conceal something, maybe the matter wouldn’t have been of such intense interest if she was down 20 points all summer long or something. But a matter of intense public interest and debate that and people have relied upon your credible investigation and your word here, even if it was foreordained that she was going to lose the election, I think to hide that would have subjected this institution to justifiable withering criticism.

In a subsequent OIG interview, Comey stated: “I am sure I was influenced by the tacit assumption that Hillary Clinton was sure to be the next President.”

We asked Baker if anyone raised the issue of Clinton being up in the polls and likely to win the election no matter what the FBI did. Baker said that this issue

“definitely came up” and “somebody said something along those lines.” Baker

stated:

There was some discussion about if she, if we do this and she wins, then nobody can allege that it was a rigged system and things had been hidden to try to benefit her. Somebody may have said in that context, well, she’s ahead in the polls anyway and that’s probably what’s going to happen, and, and so on. So I think, yes, I think that aspect of it came up in that way. But it was more like, you know, if we do this and she gets elected, then she should be thanking us.

Baker told us that he could not remember who made this comment and added, “It could have been the Director, but I don’t specifically remember.”

Belief that Email Review Could Not Be Completed Before the Election

Each of the participants in the FBI discussions to seek the search warrant told us that no one expected the review of the Weiner laptop to be completed prior to the election. Comey told us that this fact—that the Midyear team did not expect to finish the review of the Weiner laptop prior to the election—“was a really important fact for me” in making the decision whether to make the October 28 announcement.

Comey stated that he asked the Midyear team directly during these discussions if they could “finish the review before the election.” Comey said that the team told him, “There’s absolutely no way we’ll get that done before the election. It will be long after the election.” When asked why he did not just assign 30,000 people to review the laptop, Comey stated:

Yeah, I could have, but I actually raised this and their answer was, the review has to be done by people that understand the context. If we bring in a class out of Quantico it doesn’t do us any good because the quality of the work will be such that we can’t rely on. It’s not like searching a field for a bullet fragment…we have to put eyes on them to understand this.

We asked Comey if his decision to notify Congress would have been different

if the team told him they could finish the review prior to the election. Comey

stated:

Maybe, yeah. If they could tell me with you know high confidence that this is something we can knock out in a week, maybe, yeah, maybe. But I do think it was an important consideration that we’re about to undertake something of indefinite duration and so I think—maybe—I’m not certain that would make it differently, but I would have waited probably differently. If it was October 3rd and they said, we think there may be something here and we can knock it out in the next six days; I might have. Then—it’s interesting—I hadn’t thought about this—but then I might have been on to considering the prospect of a leak you know because I might have said, not going to do it, but what would be the effect on the Department if there’s a leak about the search warrant, yeah.

Comey later added that the ultimate impact on his decision would have depended “upon how high a confidence read they could give to me that it’ll be finished far enough in advance of the election to responsibly report a result.” Comey reiterated:

[I]f I had known the information or even a reasonable facsimile of the information that I was given on the 27th, three weeks earlier, I’m highly confident I would have said, let’s get a search warrant and then we would have had a conversation about how soon can you finish and whether there [was] a prospect of finishing this before the election. I still would have had a very hard decision to make, but I would have been making it three weeks earlier. I don’t know whether it would have led to a different place—but I certainly would have wanted to have the option to be there and to consider whether…let’s make it up, three weeks’ of time, does that make me think differently about the choice between speak or conceal? Is there a reasonable prospect I could run this out and have a conclusion far enough in advance of the election that if it changes the FBI’s view, I could still, well you’d have to go through all that decision tree. But I don’t know it would have put us in a different place, but I would have wanted to have the opportunity.

Fear that the Information Would Be Leaked

We asked the FBI personnel involved in these discussions if a fear of leaks impacted the decision to notify Congress. Comey told us that he “didn’t make this decision because [he] thought it would leak otherwise.” Comey stated that he thought “that would be a cowardly way to make a decision.” Nevertheless, Comey told us, “I kind of consoled myself, this was a hard call and you’re going to get the crap beat out of you for it, but it would have come out anyway.” He reiterated, however, “I [don’t] want to leave you with the impression that I sent the letter to Congress because I thought it was going to leak otherwise.”

Others, however, had a different recollection. Rybicki told us that, while not remembering the context, he recalled the issue of leaks being raised during these discussions. Strzok stated that the fear of leaks played a role in the ultimate decision. Strzok explained that the decision to seek a search warrant for the Weiner laptop was known to many people beyond the Midyear team and this raised a concern that the information could leak. Draft talking points that were circulated to FBI senior management on October 31 regarding the decision to send the letter to Congress, which incorporated comments by Strzok, the Lead Analyst, and Page, included the following bullet point: “It’s important to note the [sic] I notified Congress before moving forward with additional investigative steps in this investigation, because of my commitment to transparency and because I wanted Conrgess [sic] to hear it from me first.” (Emphasis in original). Page told us that her “personal belief” was that there was “a substantial and legitimate fear that when we went to seek the warrant in order to get access to the Weiner laptop, that the fact of that would leak.” Page said that this concern related to the suspicion that NYO personnel had been leaking negative Clinton Foundation stories. Bowdich, Anderson, and FBI Attorney 1 told us that they did not recall a discussion of leaks during the debates about notifying Congress.

Baker told us that a concern about leaks played a role in the decision to send the letter to Congress. Baker stated:

We were quite confident that…somebody is going to leak this fact. That we have all these emails. That, if we don’t put out a letter, somebody is going to leak it. That definitely was discussed…. [If] we don’t do a letter. It’s either going to be leaked before or after the election, and we either find something or we don’t. And either way, there’s going to be claims that we tried to play games with the election, and we tried to steer it in a certain way to help Hillary Clinton and hurt Donald Trump. We’re not about that. We don’t, we’re not making decisions on the basis of which candidate we like or don’t like. We’re not going to do that. And so we are just going to have to ignore all that and do what, again, what we think is right, consistent with our obligations to Congress.

Baker told us that “the discussion was somebody in New York will leak this.” Baker continued, “[W]hat we discussed was the possibility that if we go forward with the search warrant and take that step, that’s a step being taken in the Hillary Clinton

investigation. And that’s what will leak.” Baker explained, “[T]he sense was that that this significant of a step is not going to go unnoticed. And if we don’t put something out, somebody will leak it. That’s just what we talked about.”

Comparison to Other Ongoing Investigations

In this section we address the Russia and Clinton Foundation investigations, both of which were ongoing in October 2016. Comey and other witnesses told us that these investigations were not discussed during deliberations regarding whether to announce to Congress the reactivation of the Midyear investigation.

The Differential Treatment of the Russia Investigation

On March 20, 2017, Comey testified before Congress that the FBI began an investigation in late July 2016 into “the Russian government’s efforts to interfere in the 2016 presidential election,” including “investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.”

Despite the existence of this investigation into individuals associated with the Trump campaign in the fall of 2016, none of the participants in the FBI’s internal discussions about the October 28 notification to Congress recalled any mention of the Russia investigation.

We asked Comey whether the existence of investigations into individuals affiliated with the Trump campaign impacted his consideration as to whether to send the October 28 notification to Congress regarding Clinton. Comey told us that “you’ve got to lookat each case individually” and stated that comparing those investigations is “a calculation you shouldn’t engage in because then you’re starting to weigh political impacts of your work—who’s hurt by this, who’s hurt by that.” Comey explained:

Well I don’t think—I shouldn’t think of them in relation to each other. I should look at a case involving a John Smith and given our norms and rules around that, I don’t see and I don’t think the Department sees, a reason for treating those cases as exceptions the way we did the Hillary Clinton case. In part, among the considerations [in] the Hillary Clinton case, the whole world knew we were doing it, right? The candidate and her campaign themselves had talked about the review, the security inquiry. We know the government is working on this. The referral had been public, so all of that to my mind puts this in a different position. And counterintelligence investigations are very different—and for all reasons you can imagine, we are very, very careful about—because we don’t want the adversary who’s not necessarily the subject, but is the nation-state to know what we’re doing or who we may have thought of to focus on, so there it would take even more to be the exception to the rule as I just look at—I wouldn’t look at them in relation to each other, but if I found another case where I and the Department thought that made sense to make an exception, we would.

Comey was asked during testimony before the Senate Judiciary Committee on May 3, 2017, if it was “appropriate” for Comey to comment on the Midyear investigation repeatedly and “not say anything” about the investigation involving “the Trump campaign’s connections to” Russia. Comey replied, “I think I treated both investigations consistently under the same principles. People forget that we would not confirm the existence of the Hillary Clinton email investigation until three months after it began, even though it began with a public referral and the candidate herself talked about it.”

Whether to make the public aware of the more general issue of Russian interference in the U.S. presidential election also arose in the fall of 2016. On October 6, the Department of Homeland Security and Office of the Director of National Intelligence issued a joint statement about election security. This statement was not drafted in connection with the FBI’s Russia investigation, but Comey’s reaction to it is highly relevant. The statement began, “The U.S. Intelligence Community (USIC) is confident that the Russian Government directed the recent compromises of emails from US persons and institutions, including from

US political organizations.” The statement then described the nature of these compromises and urged “state and local election officials to be vigilant.”

As a member of the USIC, the FBI was consulted on this statement. Comey told us that he decided the FBI should not be included in the statement because he

felt that it conflicted with the longstanding Department of Justice norm “that we, if

at all possible, avoid taking any action in the run up to an election, avoid taking any

action that could have some impact, even if unknown, on an election.” Comey

continued:

It was actually that norm that drove me to say the FBI should not be putting out a statement earlier in October about the Russian hacking, that I had advocated inside the U.S. government. In fact, I drafted an op-ed from my own name in August to call out the Russians, to say here’s what they are doing in our election. And our awesome interagency system, kicked that around, kicked that around, and then come October, there is then discussion about making a public statement about the Russians. And I said my view is…that the goal of a public statement is to inoculate the American people against what the Russians are doing. I think the inoculate goals have been by and large achieved because of all the press reporting on it. You had legislators talking about it. I said so there’s only a marginal increase in the inoculation by an official statement from the FBI. And given that we are now a month from a presidential election—from an election, I think we can reasonably avoid that action…. And so I said, I don’t think the FBI should put out such a statement; it’s too late. That if we need to do it, we should have done it then and I said that’s just how I’ve long operated.

In an October 5, 2016 email, Comey explained his position on the statement to Central Intelligence Agency Director John Brennan and Director of National Intelligence James Clapper. Comey stated, in part:

I think the window has closed on the opportunity for an official statement, with 4 weeks until a presidential election. I think the marginal incremental disruption/inoculation impact of the statement would be hugely outweighed by the damage to the [Intelligence Community’s] reputation for independence.

I could be wrong (and frequently am) but Americans already “know”

the Russians are monkeying around on behalf of one candidate. Our

“confirming” it (1) adds little to the public mix, (2) begs difficult

questions about both how we know that and what we are going to do about it, and (3) exposes us to serious accusations of launching our

own “October surprise.” That last bit is utterly untrue, but a reality in

our poisonous atmosphere.

The Differential Treatment of the Clinton Foundation Investigation

In 2016, the FBI had an open investigation into the Clinton Foundation. Comey refused to confirm the existence of the investigation on July 7, 2016, in testimony before the House Oversight and Government Reform Committee because the investigation was not public.

In addition, numerous witnesses told us that agents involved in the Clinton Foundation investigation were instructed to take no overt investigative steps prior to the election. We asked Yates about this instruction. Yates stated, “[Y]eah, I think there was discussion about look, if [agents on the Clinton Foundation investigation] want to go do record stuff and stuff that you can do covertly, fine. But not overtly…. And the sort of thought being we’ll address that again at the end after the election was over.” Yates explained that this instruction was explicit because the Department does “everything [it] can to avoid having an impact on an election.” Yates continued:

[Y]ou have to be cognizant of the fact that the actions that we take at DOJ can have an unintended impact on an election. And so that you do everything you can to avoid that…. Like if somebody wants to

send you a criminal referral we generally don’t initiate an investigation until after the election…. So it’s, you know, sort of basic DOJ practice that I don’t think anybody would dispute that you do everything you

can to avoid having an impact on an election….

And the Bureau never pushed back on that concept. This actually came up with, in the connection with Paul Manafort. And they had an investigation on Manafort and I had a lengthy discussion with [McCabe], at least one, maybe more, about how important it was at that time that our investigation not be overt. And what they were, what the Bureau was doing with respect to Manafort because that could impact Trump even though he was no longer his campaign manager. That unless there was something they really needed to do, because they were getting records and doing that kind of, unless there was something they needed, really needed to do overt they really needed to stay under the radar screen…. Because it’s not fair to impact [an election].

Axelrod echoed this point, stating that “DOJ’s policy, procedure, and tradition” is to avoid overt investigative steps in “the run up to [an] election.” Axelrod continued, “And [this policy] had actually been cited to the Bureau on other investigations during this election cycle,” including the Clinton Foundation and Manafort

investigations.

We asked Comey about the different instructions given to the Midyear investigation and the Clinton Foundation investigation. Comey told us, “The principle is take no action if it can reasonably be avoided and there was nothing about the Clinton Foundation investigation that was time sensitive.” Comey continued:

The challenge of the discovery of the emails on the Weiner thing was, given the context that we had told the world, we the Justice Department and the FBI, that there was nothing there…to now be presented with all these emails that are…highly significant to that investigation, how is, where is the door labeled no action, that you either speak or you conceal. And so either one’s an action, so which action should we take. So it was very different, given the context, a very different posture than the Clinton Foundation. And my worry was, I have to be careful that people in New York aren’t by virtue of political enthusiasm, trying to take action that will generate noise that will have an impact on the election. No time sensitivity whatsoever to that….

III. Internal FBI Discussions Regarding the Decision to Notify Congress

McCabe, Strzok, and Page Text Messages on October 27

We reviewed text messages from Strzok, Page, and McCabe that indicated their disagreement with Comey’s decision to notify Congress on October 28. At

4:03 p.m. on October 27, Page sent a text message to Strzok that stated, “Please, let’s figure out what it is we HAVE first. What if we can’t make out [probable cause]? Then we have no further investigative step.” Strzok replied, “Agreed.” At

9:57 p.m. on October 27, McCabe sent a text message to Page that stated, in part,

“[Baker] says his meetings were mostly about the notification and statement which

the boss wants to send tomorrow. I do not agree with the timing but he is

insistent.” Page responded, “Fwiw, I also wildly disagree that we need to notify before we even know what the plan is. If we can’t get in, then no investigative step has been taken. Whatever. I hope you can get some rest tonight.”

We asked Strzok about his text message exchange with Page. Strzok stated

that there was a “vigorous, healthy debate” within the FBI about whether the

notification to Congress was a good idea and Strzok told us that he thought the concerns expressed in Page’s text message were part of that debate. Strzok told us that he ultimately agreed with Comey’s decision to send the letter to Congress.

Page told us that she could not remember the context of the text messages with Strzok. Page agreed with the content of the message and stated that she did not support Comey’s decision to notify Congress. Page added, “We just didn’t know what we had yet. It just felt premature to me.” Page also stated that there was “no guarantee” that the FBI would be able to make out probable cause for the search warrant and she felt it was “presumptuous of us to sort of say we’re reopening and we’re doing this before we have even a search warrant in hand.” However, Page told us that she was not involved in the discussions about the letter due to McCabe’s recusal.182

We asked McCabe about this text message exchange with Page. McCabe stated that Baker told him during a phone call that Comey planned to send a letter to Congress. McCabe told us that from his perspective—as someone who had not participated in the discussions about the letter—“it just seemed like we should have a better understanding of what we had before we made a notification.”

We also showed these text messages to Comey. Comey stated he did not recall discussing the issue of congressional notification with McCabe. Comey told us that he did not remember hearing Page express these concerns during the debate over the letter, adding, “I think I would remember that.”

Strzok Call with Midyear SSA, Agent 1, and Agent 2 on October 28

At 5:21 a.m. on October 28, Page sent a text message to Strzok that stated, “Any plan to tell the case agents? You know, since so much of this has hinged on the credibility of ‘the team.’ ••.” At 5:59 a.m., Strzok sent an email to the Midyear SSA and Agents 1 and 2, stating, “Would like to talk to the three of you on a conference call at 645. Sorry for late notice.”

Strzok stated that he reached out to the agents and the SSA on his own and not at Comey’s suggestion. Strzok told us that he wanted to make sure the agents and the SSA knew what was happening and he wanted their input. Strzok stated:

I think it was, hey look, we went, we briefed [Comey]. Our sense is they want us to reopen the case, and we need to get a warrant and go after it. And they’re going to send a letter to Congress. What do you think about that? Are you, are you good? Are you, objections, are we horribly off-base? Are we not thinking about something?

182 As discussed in Chapter Thirteen, Comey asked McCabe to drop out of the discussion about this topic on October 27, and Page left the discussion as well. McCabe formally recused himself from Clinton-related matters on November 1.

The Midyear SSA told us that Strzok called to inform him of Comey’s decision to send the letter and wanted to make sure “the case agents were informed” as well. The Midyear SSA, Agent 1, and Agent 2 told us that they each ultimately agreed with the decisions to seek the search warrant and send the letter. As noted previously, Agent 2 was on the September 29 phone call with NYO about the Weiner laptop. Agent 2 told us that around this time was the first he had heard about the Weiner laptop since September 29.

Agent 1’s Instant Messages on October 28

After the letter was sent by the FBI to Congress on October 28, Agent 1 sent a series of instant messages to other FBI employees about the reactivation of the Midyear investigation.

Beginning at 1:46 p.m., Agent 1 exchanged the following messages with Agent 5. The sender of each message is identified after the timestamp.

1:46 p.m., Agent 5: “jesus christ… Trump: Glad FBI is fixing

‘horrible mistake’ on clinton emails… for fuck’s sake.”

1:47 p.m., Agent 5: “the fuck’s sake part was me, the rest was

Trump.”