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 TWO:

APPLICABLE LAWS AND DEPARTMENT POLICIES

In this chapter, we describe the applicable laws, regulations, policies, and practices that govern the conduct of the Midyear investigation and are relevant to the analysis in the report. We identify specific Department and FBI policies related to investigative steps taken during the Midyear investigation, overt investigative activities in advance of an election, and the disclosure of information to the media and to Congress. We also describe the Department regulations governing the appointment of a special counsel.

Finally, we summarize the criminal statutes relevant to the Midyear investigation. These statutes provide the legal framework for our discussion of the investigative strategy and the FBI’s and Department’s assessment of the evidence in subsequent chapters.

1. Policies and Laws Governing Criminal Investigations

Under federal law, investigators and prosecutors are given substantial authority and discretion in conducting criminal investigations. To navigate challenges and issues that they may face during these investigations, and to assist them in exercising their authority and discretion appropriately, the Department maintains the United States Attorneys Manual (USAM) as a “comprehensive…quick and ready reference for…attorneys responsible for the prosecution of violations of federal law.” USAM 1-1.2000, 1-1.1000. In reviewing investigative decisions made during the Midyear investigation, we identified several provisions of the USAM of potential relevance.

The principles guiding the exercise of decisions related to federal prosecutorial discretion and those relevant to criminal prosecutions can be found within USAM Title 9-27.000, the Principles of Federal Prosecution. There the Department lays out guidance for federal prosecutors with the intent of “ensuring the fair and effective exercise of prosecutorial discretion and responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of the facts and circumstances of each case.” USAM 9-27.001. USAM Section 9-27.220 specifies grounds for commencing or declining prosecution, stating that an attorney for the government should commence or recommend federal prosecution if he or she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless the prosecution would serve no substantial federal interest, the person is subject to effective prosecution in another jurisdiction, or there exists an adequate non-criminal alternative to prosecution. This section also states, “[B]oth as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”

1. Grand Jury Subpoenas

A federal grand jury is a group of sixteen to twenty-three eligible citizens, empaneled by a federal court that considers evidence in order to decide if there has been a violation of federal law. Fed. R. Crim. P. 6(a)(1). It is the responsibility of federal prosecutors “to advise the grand jury on the law and to present evidence for its consideration.” USAM 9-11.010.

Grand jury subpoenas are one tool frequently used by federal prosecutors to collect evidence to present to a grand jury. USAM 9-11.120, Fed. R. Crim. P. 17. There are two types of grand jury subpoenas: (1) a grand jury subpoena ad testificandum which compels an individual to testify before the grand jury; and (2) a grand jury subpoena duces tecum which compels an individual or entity, such as a business, to produce documents, records, tangible objects, or other physical evidence to the grand jury. G.J. Manual § 5.2; Fed. R. Crim. P. 17.1

Federal prosecutors have “considerable latitude in issuing [grand jury] subpoenas.” G.J. Manual § 5.4 (quoting Doe v. DiGenova, 779 F.2d 74, 80 (D.C. Cir. 1985)). Nonetheless, “the powers of the grand jury are not unlimited.” G.J. Manual § 5.1 (quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)). A court may quash a grand jury subpoena, upon motion, “if compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17. In addition, a grand jury subpoena cannot override the invocation of a valid “constitutional, common-law, or statutory privilege” and cannot be used when “a federal statute requires the use of a search warrant or other court order.” G.J. Manual § 5.1 (quoting Branzburg, 408 U.S. at 688) and §§ 5.6, 5.26. These limitations are discussed, insofar as they are relevant to this review, in subparts I.B., I.C., and 1.E. of this chapter.

There are also policy limitations governing the use of grand jury subpoenas. For example, the USAM provides guidelines for issuing grand jury subpoenas to attorneys regarding their representation of clients.2 USAM 9-13.410. These guidelines are discussed in subpart I.B. of this chapter. In addition, the USAM generally advises prosecutors to consider alternatives to grand jury subpoenas, such as obtaining testimony and other evidence by consent, in light of the requirement that the government maintain the secrecy of any testimony or evidence accessed through the grand jury. USAM 9-11.254(1).

1. Search Warrants and 2703(d) Orders

The Fourth Amendment protects individuals from unlawful searches and seizures of their property. Generally, the government must obtain a search warrant

1 Federal Grand Jury Practice, Office of Legal Education (October 2008), available at https://dojnet.doj.gov/usao/eousa/ole/usabook/gjma/index.htm.

2 The USAM also provides guidelines for the use of grand jury subpoenas to obtain testimony from targets or subjects of an investigation. “Target” means a “person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant,” while “subject” means a “person whose conduct is within the scope of the grand jury’s investigation.” USAM 9-11.151.

before searching a person’s property in which the person retains a reasonable expectation of privacy. United States v. Ross, 456 U.S. 798, 822-23 (1982). Courts have held that individuals retain a reasonable expectation of privacy in data held within electronic storage devices, such as computers and cellular telephones. E.g., Riley v. California, 134 S. Ct. 2473, 2485 (2014); Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001). To obtain a search warrant pursuant to Federal Rule of Criminal Procedure 41 (Rule 41 search warrant), the government must make a showing of facts under oath demonstrating probable cause to believe that the property to be searched contains evidence of a crime. Thus, while the government may issue a grand jury subpoena to obtain an electronic device, such as a computer or cellular telephone, the government generally will only be able to search the electronic device if it can demonstrate probable cause to believe the device contains evidence of a crime.

In addition, as discussed above, a grand jury subpoena cannot be used when “a federal statute requires the use of a search warrant or other court order.” The Stored Communications Act provides that the government must obtain a search warrant in order to require a “provider of electronic communication service” to produce the contents of a subscriber’s electronic communication that have been in electronic storage for 180 days or less. See 18 U.S.C. § 2703(a). For the content of electronic communications that have been in electronic storage for more than 180 days, the government must usually either obtain a search warrant or provide prior notice to the subscriber or customer and obtain a court order or subpoena.3 See 18 U.S.C. § 2703(b). Thus, except for specific circumstances, in order to obtain the contents of an individual’s email communications that are older than 180 days from a communications service provider such as Yahoo! or Google (Gmail) without notifying the subscriber in advance, the government must first obtain a Rule 41 search warrant upon a showing of probable cause that the stored emails in possession of the provider contain evidence of a crime.

Independent of whether the government can make the requisite probable cause showing to warrant a Rule 41 search warrant, the government may be able to obtain a court order pursuant to 18 U.S.C. § 2703(d) (2703(d) order). A 2703(d) order requires a communications service provider to produce information related to an individual’s email account other than the content of the individual’s emails, such as subscriber information and email header information. A court will issue a 2703(d) order if the government “offers specific and articulable facts showing that there are reasonable grounds to believe that…the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).

3 Under 18 U.S.C. § 2703(b)(1)(b)(ii), the court may permit delays in noticing a subscriber/customer for up to 90 days to avoid the adverse results listed at 18 U.S.C. § 2705. Those adverse results include: (A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or

(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

1. Evidence Collection Related to Attorney-Client Relationships

The USAM contains guidelines for the use of subpoenas and search warrants to obtain information from attorneys related to their representation of clients.

When a subpoena issued to an attorney may relate to information concerning the attorney’s representation of a client, the USAM mandates additional process. USAM 9-13.410. As a preliminary matter, all reasonable attempts must be made to obtain the information from alternative sources (specifically including by consent) before issuing the subpoena to the attorney, unless such efforts would compromise the investigation. The Department thereafter exercises “close control” over the issuance of such a subpoena. Before seeking such a subpoena, it “must first be authorized by the Assistant Attorney General or a DAAG [Deputy Assistant Attorney General] for the Criminal Division” except in unusual circumstances. Before the Department official can authorize the subpoena, several principles must be examined regarding the submitted draft subpoena, including:

• All reasonable attempts to obtain the information from alternative sources shall have proved unsuccessful;
• The information sought is reasonably needed for the successful completion of the investigation;
• In a criminal investigation, there must be reasonable grounds to

believe that a crime has been or is being committed, and that the

information sought is reasonably needed for the successful completion

of the investigation or prosecution; and

• The need for the information must outweigh the potential adverse effects upon the attorney-client relationship.

USAM 9-13.410.C.

The intent behind this additional process is to strike a “balance between an individual’s right to the effective assistance of counsel and the public’s interest in the fair administration of justice and effective law enforcement.” USAM 9•

13.410.B.

The Department similarly exercises “close control” when law enforcement seeks the issuance of a search warrant for “the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients.” USAM 9-13.420. Such a search has the potential to “effect…legitimate attorney-client relationships” or uncover material “protected by a legitimate claim of privilege[.]” Id. Therefore, prosecutors “are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law.” USAM 9-13.420.A. Unless it would compromise an investigation, the USAM advises that consideration be given to obtaining needed information from other sources or through the use of consent or a subpoena, rather than issuing such a search warrant. USAM 9-13.420.A. Consultation with the Criminal Division and approval from an Assistant Attorney General or U.S. Attorney are required as well. USAM 9•13.420.B-C.

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

1. Use of Classified Evidence Before A Grand Jury

The classification of information and evidence can be another significant challenge for a federal prosecutor advising a grand jury. See USAM 9-90.230. Because jurors lack security clearances, the disclosure of such information “may only be done with the approval of the agency responsible for classifying the information[.]” USAM 9-90.230. Though the Department offers measures to “increase the likelihood” a classifying agency will approve the use of such information, the Department encourages prosecutors to consider several alternatives to seeking such disclosures. Id. A significant number of limitations and high-level Department approvals make seeking approval from the classifying agency complex, and inevitably such approval takes additional time. See USAM 9-90.200, 210.

1. Immunity Agreements

When a witness invokes their Fifth Amendment right against self-incrimination, the government must either forgo the witness’s incriminating testimony or offer the witness protection from prosecution resulting from such testimony, a protection known as “use immunity.” 28 C.F.R. § 0.175(a), Crim. Resource Manual 716. The term “use immunity” encompasses several degrees of legal protections for a witness: transactional immunity, formal use immunity, letter immunity, and “Queen for a Day” agreements. Crim. Resource Manual 719.

1. Transactional Immunity

Transactional immunity offers the highest level of legal protection to a compelled witness, protecting the witness from actual prosecution for the offense(s) involved in the Grand Jury proceeding. Crim. Resource Manual 717. For decades prior to 1972, the Supreme Court only recognized transactional immunity as the government vehicle to compel testimony from a witness invoking their Fifth Amendment rights. See Kastigar v. United States, 406 U.S. 441, 449-52 (1972).

2. Formal Use Immunity

In 1970, Congress created a framework for the Department to grant formal “use immunity” for a witness offering testimony in a federal criminal investigation. 18 U.S.C. § 6002; Crim. Resource Manual 716. Unlike transactional immunity, use immunity only protects the witness against the government’s use of the immunized testimony in a subsequent prosecution of the witness, except for perjury or giving a false statement. Crim. Resource Manual 717. However, the Supreme Court subsequently found that the statutory framework creating formal use immunity also prohibits the government from using immunized testimony to discover new evidence that is then used to prosecute the witness. Kastigar, 406 U.S. at 453. This additional protection is known as “derivative use immunity.” Crim. Resource Manual 718. Thus, the government retains the ability to prosecute a witness given formal use immunity, but only with evidence obtained independently of the witness’s immunized testimony. Crim. Resource Manual 717-18. In order to do so, the government must overcome a “heavy, albeit not insurmountable burden, by a preponderance of the evidence” to demonstrate wholly independent discovery of such evidence. United States v. Allen, 864 F.3d 63, 92 (2d Cir. 2017) (citing Kastigar, 406 U.S. at 460).

To obtain formal, court-ordered use immunity, a U.S. Attorney, after obtaining the approval of the Attorney General or her designee and the Criminal Division, seeks a court order to compel testimony of a witness appearing before the grand jury. 18 U.S.C. § 6003(b); USAM 9-23.130. Such compelled testimony should be sought when the witness’s testimony, in the judgment of the U.S. Attorney, is necessary for the public interest and the witness is likely to invoke (or has invoked) their Fifth Amendment privilege against self-incrimination.4 Id. The decision to grant immunity by a designated Department division ultimately requires final approval from the Department’s Criminal Division. Crim. Resource Manual

720. Once the U.S. Attorney receives Department approval, he or she submits a motion to the judge overseeing the grand jury requesting the order to compel testimony from the witness. Id. at 723.
721. Letter Immunity and “Queen for a Day” Agreements

In contrast with transactional and formal use immunity, a witness receiving either letter immunity or a “Queen for a Day” agreement is provided legal protections by the prosecutor pursuant to an agreement in exchange for the witness’s agreement to provide testimony. Crim. Resource Manual 719. The legal

4 The USAM offers a non-exhaustive list of factors that should be weighed in judging the public interest: (1) the importance of the investigation or prosecution to effective enforcement of the criminal laws; (2) the value of the person’s testimony or information to the investigation or prosecution; (3) the likelihood of prompt and full compliance with a compulsion order, and the effectiveness of available sanctions if there is no such compliance; (4) the person’s relative culpability in connection with the offense or offenses being investigated or prosecuted, and his or her criminal history; (5) the possibility of successfully prosecuting the person prior to compelling his or her testimony; and (6) the likelihood of adverse collateral consequences to the person if he or she testifies under a compulsion order. USAM 9-23.210.

protections the witness receives for voluntary testimony result from the type of agreement the witness makes with the prosecutor. Id.

Letter immunity describes an agreement between the prosecuting office and the witness that results in a letter from the prosecuting office to the witness authorizing the grant of legal protections.5 Id. While the provisions of the agreement can vary, as a general matter letter immunity, like formal immunity, only protects the witness against the government’s use of the immunized testimony in a subsequent prosecution of the witness, except for perjury or giving a false statement. Crim. Resource Manual 717; see United States v. Pelletier, 898 F.2d 297, 301 (2d Cir. 1990). Depending on the provisions of the agreement, the government may retain the ability to prosecute the witness with evidence obtained independently of the witness’s immunized testimony, but as with formal use immunity, the government bears a considerable burden in such a prosecution. Crim. Resource Manual 717-18; see also Pelletier, 88 F.2d at 303.

In a “Queen for a Day” agreement, often referred to as a “proffer” agreement, a witness “proffers” or informs prosecutors of what the witness would state under oath if called to testify and, in exchange, the federal prosecutor agrees to limited legal protection for the witness conditioned on the witness’s truthful testimony. Crim. Resource Manual 719. In a standard “Queen for a Day” agreement, the government agrees not to use any statements made by the witness pursuant to the proffer agreement against the witness in its case-in-chief in any subsequent prosecution of the witness, or in connection with the sentencing of the witness if the witness is subsequently prosecuted and convicted. However, unlike with formal use immunity or letter use immunity, the government typically may use leads obtained from the witness’s statements to develop evidence against the witness and may use the witness’s statements to cross-examine the witness in any future prosecution of the witness. United States v. Stein, 440 F. Supp. 2d 315, 322

(S.D.N.Y. 2006); see also Richard B. Zabel and James J. Benjamin, Jr., “Queen for a Day” or “Courtesan for a Day”: The Sixth Amendment Limits to Proffer Agreements, 15 No. 9 White–Collar Crime Rep. 1 (2001).

4. Act of Production Immunity

Act of production or “Doe” immunity describes a distinct type of immunity applying to a witness’s production of records, instead of witness testimony. USAM 9-23.250; United States v. Doe, 465 U.S. 605 (1984). The production of records by a witness in response to a grand jury subpoena potentially implicates the right against self-incrimination if the fact that the witness produced the records could be used against the witness in a future prosecution as an admission of the existence and possession of the records. USAM 9-23.250. The Department uses the same procedure to grant act of production immunity as it does for formal use immunity, producing a formal letter authorizing the U.S. Attorney to make a motion for a judicial order to compel the production of specifically enumerated records in

5 The reach of the legal protections offered in such a letter may vary, with some instances of letter immunity being restricted to the jurisdiction of a particular U.S. Attorney and others applying in multiple districts or extending nationwide, typically with the agreement of the other prosecutors.

exchange for not using the witness’ act of production against the witness in a subsequent prosecution of the witness. Id.; Crim. Resource Manual 722. Alternatively, the prosecutor can enter into a letter agreement with the individuals. In either situation, the act of production immunity does not provide any protection for the witness from a future prosecution.

1. Department Policies and Practices Governing Investigative Activities in Advance of an Election

Department policies require all Department officials to “enforce the laws…in a neutral and impartial manner” and to remain “particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.”6 Various policies also address investigative activities timed to affect an election and require that prosecutors and agents consult with the Criminal Division’s Public Integrity Section (PIN) before taking overt investigative steps in advance of a primary or general election. No Department policy contains a specific prohibition on overt investigative steps within a particular period before an election. Nevertheless, various witnesses testified that the Department has a longstanding unwritten practice to avoid overt law enforcement and prosecutorial activities close to an election, typically within 60 or 90 days of Election Day. We discuss relevant Department policies and practices below.

1. Election Year Sensitivities Policy

In 2008, 2012, and 2016, the then Attorney General issued a memorandum “to remind [all Department employees] of the Department’s existing policies with respect to political activities.”7 These memoranda are substantially similar. Each memorandum contains two sections, one addressing the investigation and prosecution of election crimes and the other describing restrictions imposed on Department employees by the Hatch Act.8 In its election crimes section, the 2016 memorandum requires consultation with PIN at “various stages of all criminal matters that focus on violations of federal and state campaign-finance laws, federal patronage laws and corruption of the election process.”9 However, the memorandum also states the following:

Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal

6 See Loretta Lynch, Attorney General, U.S. Department of Justice, Memorandum for all Department Employees, Election Year Sensitivities, April 11, 2016, 1.

7 Lynch, Memorandum for Department Employees, 1; Eric Holder, Attorney General, U.S. Department of Justice, Memorandum for all Department Employees, Election Year Sensitivities, March 9, 2012, 1; Michael Mukasey, Attorney General, U.S. Department of Justice, Memorandum for all Department Employees, Election Year Sensitivities, March 5, 2008, 1.

8 The Hatch Act prohibits Department employees from engaging in partisan political activity while on duty, in a federal facility, or using federal property, including using the Internet at work for political activities. See 5 U.S.C. §§ 7321-7326 (2017).

9 Lynch, Memorandum for Department Employees, 1.

charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution.

Likewise, the 2016 memorandum recommends that all Department employees consult with PIN whenever an employee is “faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election,” without regard to the type or category of crime at issue.10 Ray Hulser, the former Section Chief of PIN who currently is a DAAG in the Criminal Division, told us that this policy does not impose a “mandatory consult” with PIN, but rather encourages prosecutors to call if they have questions about investigative steps or criminal charges before an election.

1. The Unwritten 60-Day Rule

After the FBI released its October 28, 2016 letter to Congress informing them that the FBI had learned of the existence of additional emails and planned to take investigative steps to review them, contemporaneous emails between Department personnel highlighted editorials authored by former Department officials discussing a longstanding Department practice of delaying overt investigative steps or disclosures that could impact an election. These former officials cited the so-called “60-Day Rule,” under which prosecutors avoid public disclosure of investigative steps related to electoral matters or the return of indictments against a candidate for office within 60 days of a primary or general election.11

The 60-Day Rule is not written or described in any Department policy or regulation. Nevertheless, high-ranking Department and FBI officials acknowledged the existence of a general practice that informs Department decisions. Former Director Comey characterized the practice during his OIG testimony as “a very important norm which is…we avoid taking any action in the run up to an election, if we can avoid it.” Preet Bharara, the former U.S. Attorney for the Southern District of New York, told us that the Department’s most explicit policy is about crimes that affect the integrity of an election, such as voter fraud, but that there is generalized, unwritten guidance that prosecutors do not indict political candidates or use overt investigative methods in the weeks before an election.

10 During late 2016, Department personnel also considered guidance in The Federal Prosecution of Election Offenses prohibiting overt investigative steps before an election. U.S. Department of Justice, The Federal Prosecution of Election Offenses, 7th edition (May 2007). However, this publication explicitly applies to election crimes, not to criminal investigations that involve candidates in an election. See id. at 91-93.

11 See Eric Holder, James Comey Is A Good Man, But He Made A Serious Mistake, WASH. POST, Oct. 30, 2016; Jamie Gorelick and Larry Thompson, James Comey is Damaging Our Democracy, WASH. POST, Oct. 29, 2016; Jane Chong, Pre-Election Disclosures: How Does, and Should, DOJ Analyze Edge Cases, LAWFARE BLOG (Nov. 8, 2016), https://www.lawfareblog.com/pre-election-disclosures-how•does-and-should-doj-analyze-edge-cases (accessed May 8, 2018).

Several Department officials described a general principle of avoiding

interference in elections rather than a specific time period before an election during which overt investigative steps are prohibited. Former AG Lynch told the OIG, “[I]n general, the practice has been not to take actions that might have an impact on an election, even if it’s not an election case or something like that.” Former DAG Yates stated, “I look at it sort of differently than 60 days. To me if it were 90 days off, and you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now you don’t do it.” Former Principal Associate Deputy Attorney General Matt Axelrod stated, “…DOJ has policies and procedures on…how you’re supposed to handle this. And remember…those policies and procedures apply to…every election at whatever level…. They apply, you know, months before…. [P]eople sometimes have a misimpression there’s a magic 60-day rule or 90-day rule. There isn’t. But…the closer you get to the election the more fraught it is.”

Hulser told the OIG that there was “a sense, there still is, that there is a rule out there, that there is some specific place where it says 60 days or 90 days back from a primary or general [election], that you can’t indict or do specific investigative steps.” He said that there is not any such specific rule, and there never has been, but that there is a general admonition that politics should play no role in investigative decisions, and that taking investigative steps to impact an election is inconsistent with the Department’s mission and violates the principles of federal prosecution.

Hulser said that while working on the Election Year Sensitivities memorandum, they considered codifying the substance of the 60-Day Rule, but that they rejected that approach as unworkable, and instead included the general admonition described above. Citing PIN guidance, Hulser told OIG that a prosecutor should look to the needs of the case and significant investigative steps should be taken “when the case is ready, not earlier or later.”12

III.       Public Allegations of Wrongdoing Against Uncharged Individuals and Disclosure of Information in a Criminal Investigation

The USAM instructs prosecutors that “[i]n all public filings and proceedings, federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third-parties” and that there is ordinarily no legitimate governmental interest in the public allegation of wrongdoing by an uncharged party. USAM 9•

27.760. Accordingly, even where prosecutors have concluded that an uncharged individual committed a crime, Department policies generally prohibit the naming of unindicted individuals (as well as co-conspirators) because their privacy and reputational interests merit significant consideration and protection. See USAM 9•11.130, 9-16.500, 9-27.760.

12 Hulser produced an excerpt of a publication, written by a former Deputy Chief of PIN, discussing the issues involved in choosing the timing for charging a public corruption case. U.S. Department of Justice, Prosecution of Public Corruption Cases (February 1988), 214-15.

Department regulations governing interactions with the media recognize that “[t]he availability to news media of information in criminal and civil cases is a matter which has become increasingly a subject of concern in the administration of justice.” 28 C.F.R. § 50.2(a)(1). Addressing this concern, the FBI issued a Media Relations Policy Guide for FBI personnel. The FBI Media Relations Policy Guide recognizes that the regulations found at 28 C.F.R. § 50.2 lay out specific and controlling guidelines addressing the release of information to the media from Department authorities as well as from subordinate law enforcement components, including the FBI. Id.; see also 28 C.F.R. § 0.1. The FBI Media Relations Policy Guide also recognizes that the USAM offers further specific guidance consistent with federal regulations in its Media Policy section “governing the release of information…by all components (FBI…and DOJ divisions) and personnel of the Department of Justice.” USAM 1-7.001. The Department’s policy and regulations forbid the confirmation or denial and any discussion of active investigations, except in limited, specified circumstances. USAM 1-7.530. Taken together, these documents offer an understanding of Department operations related to the media, particularly publicity around FBI investigations.

1. FBI Media Relations Policy

In October 2015, the FBI issued the version of its Media Relations at FBI Headquarters (HQ) and in Field Offices Policy Guide (“FBI Media Policy Guide”) pertinent to this review.13 The FBI Media Policy Guide recognizes that the FBI Office of Public Affairs (FBI OPA) “works to enhance the public’s trust and confidence in the FBI by releasing and promoting information about the FBI’s responsibilities, operations, accomplishments, policies, and values.” The FBI Media Policy Guide confirms that FBI OPA “operations are governed by DOJ-OPA’s instructions, located at Title 28 Code of Federal Regulations (C.F.R.) § 50.2, and by the United States Attorneys’ Manual [USAM], Title 1-7.000, ‘Media Relations.’” As such, where the guidance in the FBI Media Policy Guide conflicts with the USAM or 28 C.F.R. § 50.2, the USAM and Code of Federal Regulations control FBI media practices.

In its provisions governing disclosure of information to the media from FBI

Headquarters in Washington, the FBI Media Policy Guide states “the [FBI] Director,

[FBI] deputy director (DD), associate deputy director (ADD), [Assistant Director] for [FBI] OPA, and [FBI] OPA personnel designated by the [OPA Assistant Director] are authorized to speak to the media.” However “[a]ll releases of information by…any FBI personnel…authorized to speak to the media must conform with all

applicable laws and regulations, as well as policies issued by DOJ,” which includes

specific reference to the USAM, among other Department legal authorities. The FBI Media Policy Guide itself constrains authorized disclosures, explaining “[d]isclosures

13 The October 2015 FBI Media Policy Guide is available online in the FBI records vault. See FBI Office of Public Affairs, Media Relations at FBIHQ and in Field Offices Policy Guide, October 13, 2015, https://go.usa.gov/xQNXQ (accessed May 7, 2018). On November 14, 2017, the FBI released a significantly revised guidance for media relations entitled Public Affairs Policy Guide: Media Relations, External Communications, and Personal Use of Social Media.

must not prejudice an adjudicative proceeding and…must not address an ongoing investigation” except in specified circumstances.14 The FBI Media Policy Guide offers limited justifications to release information regarding an ongoing investigation, specifying the need “to assure the public that an investigation is in progress[,]…to protect the public interest, welfare, or safety,…[or] to solicit

information from the public that might be relevant to an investigation.” Any such release requires “prior approval of FBIHQ entities…[and] the careful supervision of OPA.”

The FBI Media Policy Guide specifies that when releasing information to the media via a press conference, FBI OPA personnel “must request approval…in advance from DOJ-OPA for any case or investigation that may result in an indictment.” Further, FBI personnel “must coordinate with DOJ OPA on any materials, quotes, or information to be released in the press conference.”

50. 28 C.F.R. § 50.2

In all criminal matters, federal regulations bar Department personnel from “furnish[ing] any statement or information…if such a statement or information may reasonably be expected to influence the outcome of…a future trial.” 28 C.F.R. § 50.2(b)(2). The regulation also provides that “where information relating to the circumstances of…an investigation would be highly prejudicial or where the release thereof would serve no law enforcement function, such information should not be made public.” 28 C.F.R. § 50.2(b)(3).

The regulations permit, subject to limitations, some facts to be released publicly, including a defendant’s name, age, and similar background information, the substance of the charges at issue, specified details regarding an investigation, and the circumstances surrounding an arrest. See 28 C.F.R. § 50.2(b)(3). But while permitting this limited release, the regulation specifies that the Department personnel making the public “disclosures should include only incontrovertible, factual matters, and should not include subjective observations.” Id. These strict limitations “shall apply to the release of information to news media from the time a person is the subject of a criminal investigation until any proceeding resulting from such an investigation has been terminated by trial or otherwise.” 28 C.F.R. § 50.2(b)(1). A Department official explained to the OIG that “otherwise” included criminal actions ended when the Department declines to prosecute.

The regulations do provide for exceptions, acknowledging situations in which the regulations “limit the release of information which would not be prejudicial under the particular circumstances.” 28 C.F.R. § 50.2(b)(9). When a Department official believes that “in the interest of the fair administration of justice and the law enforcement process information beyond these guidelines should be released, in a particular case, he shall request the permission of the Attorney General or the Deputy Attorney General to do so.” Id.

14 When FBI officials make a public comment, the FBI Office of General Counsel “must advise FBI OPA on the potential impact of public comment on…proposed and pending litigation.”

1. USAM Media Relations Guidance

The Attorney General’s central role to information disclosures to the media is also recognized in the USAM’s Media Relations policy.15 See USAM 1-7.210. The USAM makes clear that “[f]inal responsibility for all matters involving the news media and the [Department] is vested in the Director of the Office of Public Affairs (OPA)” and, without exception, the “Attorney General is to be kept fully informed of appropriate matters at all times.” USAM 1-7.210.

The USAM’s Media Relations section offers several provisions governing how information disclosure to the media may permissibly take place. Overall, the USAM 1-701(E) requires “any public communication by any…investigative agency about pending matters or investigations that may result in a case, or about pending cases or final dispositions, must be approved by the appropriate Assistant Attorney General, the United States Attorney, or other designate responsible for the case.” Reinforcing a general principle of non-disclosure, the USAM declares “[a]t no time shall any component or personnel of the Department of Justice furnish any statement or information that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” USAM 1-7.500.

In keeping with that principle, USAM 1-7.530 instructs Department personnel

that, except in unusual circumstances, they “shall not respond to questions about

the existence of an ongoing investigation or comment on its nature or progress, including such things as the issuance or serving of a subpoena, prior to the public

filing of the document.” Those unusual circumstances where comment may be appropriate included “matters that have already received substantial publicity, or

about which the community needs to be reassured that the appropriate law enforcement agency is investigating the incident, or where release of information is necessary to protect the public interest, safety, or welfare[.]” USAM 1-7.530. But in any such circumstances, “the involved investigative agency will consult and

obtain approval from the…Department Division handling the matter prior to

disseminating any information to the media.” Id.

USAM 1-7.401 addresses specifically press conferences, emphasizing a preference for written press releases as the “usual method to release public information…by investigative agencies.” While permissible, press conferences “should be held only for the most significant and newsworthy actions, or if a particularly important deterrent or law enforcement purpose would be served. Prudence and caution should be exercised in the conduct of any press conference[.]” USAM 1-7.401. Repeatedly the USAM states that before holding a

15 The Department significantly revised the USAM Media Relations provisions in November

2017, retitling them under “Confidentiality and Media Contacts Policy.” This report primarily

addresses the USAM Media Relations provisions in effect at the time of the events within the scope of this review. We consider the revised USAM provisions related to the media in Chapter Six of this report.

press conference “prior coordination with OPA is required” for information “of national significance.” USAM 1-7.330(B), 1-7.401(B).

1. Release of Information to Congress

The provision of information from the Department and the FBI to Congress is governed by Department policy guidance, the USAM, and FBI rules.16

1. USAM Congressional Relations Guidance

Under the USAM Title 1-8.000, and consistent with 28 C.F.R. § 0.27, communications between Congress and the Department are the responsibility of the Assistant Attorney General, Office of Legislative Affairs (OLA).17 As written, the USAM 1-8.000 generally addresses personnel within the staff of the various United States Attorneys’ Offices. However, USAM 1-8.000 explicitly applies to Department components and several provisions of the USAM guidance regarding the Department’s congressional relations bind all Department personnel.18

One such provision is USAM 1-8.030 requiring coordination of a Department response when Congress seeks information that is not public. USAM 1-8.030 states “[a]ll Congressional requests for information (other than public information), meetings of any type, or assistance must immediately be referred to the…OLA[.]” The USAM lists the following examples of congressional requests requiring referral to OLA: “requests for non-public documents or information; discussion of or requests for briefings on cases;…[and] suggestions or comments on case disposition or other treatment[.]” USAM 1-8.030. These standards apply “in both open and closed cases” and the USAM highlights a specific bar on “provid[ing] information on (1) pending investigations;…(3) matters that involve grand jury, tax, or other restricted information; (4) matters that would reveal…sensitive investigative techniques, deliberative processes, the reasoning behind the exercise

16 We note that the policies and rules described herein do not restrict lawful whistleblowing, protections for which were recognized by Attorney General Sessions in a recent memorandum reiterating the Department’s “commit[ment] to protecting the rights of whistleblowers (i.e., those employees or applicants who have made a lawfully protected disclosure to Congress).” Jefferson B. Sessions, Attorney General, U.S. Department of Justice, Memorandum for All Heads of Department Components, Communications with Congress, May 2, 2018, 2.

17 According to the Code of Federal Regulations, “[t]he following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Office of Legislative and Intergovernmental Affairs: (a) Maintaining liaison between the Department and the Congress.” 28 C.F.R. § 0.27.

18 While the AAG of OLA “is responsible for communications between Congress and the Department under the authority of the Attorney General” per the USAM, that authority does not override statutory reporting requirements to Congress, such as those required for the OIG found at 5

U.S.C. App. 4(a)(5).

of prosecutorial discretion, or the identity of individuals who may have been investigated but not indicted.”19 Id.

1. FBI Guidance on Information Sharing with Congress

The FBI’s status as the primary investigative agency of the federal government makes its sharing of information with Congress of special concern. Relevant guidance is provided in The Attorney General’s Guidelines for Domestic FBI Operations (“AGG-Dom”) and the FBI’s Domestic Investigations and Operations Guide (“DIOG”). The AGG-Dom directs that the FBI may “disseminate information obtained or produced” through its domestic investigations “to congressional committees as authorized by the Department of Justice Office of Legislative Affairs.”20 AGG-Dom § VI.B.1(c). This direction is reinforced in the DIOG’s section on the retention and sharing of information, which states “that the FBI may disseminate information obtained or produced through activities under the AGG-Dom…[t]o Congress or to congressional committees in coordination with the FBI Office of Congressional Affairs (OCA) and the DOJ Office of Legislative Affairs.” DIOG § 14.3.1(D). Notably, both the AGG-DOM and DIOG anticipate circumstances requiring departure from their rules. DIOG §§ 2.6-2.7. The DIOG spells out how such departures may occur, usually involving high-level FBI approval, coordination with the FBI Office of General Counsel, and notice and/or approval at the highest levels of the Department of Justice. Id.

1. Current Department Policy on Communication of Investigative Information to Congress

While the USAM, AGG-Dom, and DIOG lay out the consistent institutional relationships in the Department and its components for Congressional information flow, the Department also uses policy memoranda and other communications to provide guidance on how communication should be handled with Congress in sensitive, investigation-related circumstances. Among these are two memoranda governing Department communications with Congress and a letter addressing the principles of Department communications with Congress on ongoing investigations.

19 On its face, this portion of USAM 1-8.030 addresses U.S. Attorney’s Offices specifically. But the provision thereafter offers broader guidance that “[a]ll requests for these types of information should be referred to OLA[.]” USAM 1-8.030. Moreover, a Department official with long-term experience in OLA explained that he viewed the entirety of the USAM guidance on Congressional Relations as helping to understand “the playing field on which we operate in terms of a sensitivity of congressional contacts.”

20 The FBI is required to coordinate with OLA before sending formal communications to Congress regarding substantive matters that impact the Department. According to a Department official with long-term experience in OLA, the FBI can sometimes speak to Congress more informally by email or phone about certain types of matters like procedural matters, without first obtaining OLA approval.

1. Policy Memoranda on Department Communications with Congress

On May 11, 2009, then Attorney General Holder issued a policy memorandum for all Department components (including the FBI) entitled Communications with Congress and the White House (“May 2009 Memo”). In addressing pending criminal investigations and cases, the May 2009 Memo explained that the heads of investigative agencies, tasked with the primary duty of initiating and supervising cases, “must be insulated from influences that should not affect decisions in particular criminal…cases.” The May 2009 Memo continues that for communications with Congress, consistent with “policies, laws, regulations, or professional ethical obligations…and consistent with the need to avoid publicity that may undermine a particular investigation,” congressional inquiries related to pending criminal investigations and cases “should be directed to the Attorney General or [DAG].”21

On August 17, 2009, then Attorney General Holder issued an updated memo (“August 2009 Memo”) entitled Communications with Congress. The August 2009 Memo clarified that all inquiries from congressional officials should be directed to DOJ OLA. The August 2009 Memo also spelled out that “all communications between the Department and Congress…should be managed by OLA to ensure that relevant Department interests and other Executive Branch interests are protected.” “[C]omponents should not communicate with members, committees, or congressional staff without advance coordination with OLA.” The August 2009 Memo concluded with direction for component heads to contact DOJ OLA for any questions on the policy.22

2. The Linder Letter

In a January 2000 letter from the Department’s AAG for OLA to then Congressman John Linder (“Linder letter”), the Department described in detail the principles that guide OLA and the Department in their decision to disclose or withhold information from Congress. The letter remains a reference guide for OLA.

The Linder letter lays out “governing principles” to foster “improved communications and sensitivity between the Executive and Legislative Branches regarding our respective institutional needs and interests.” After discussing the general tension between the interests of the two branches, the Linder letter

21 The May 2009 Memo exempts congressional hearing communications and communications internal to an investigation from this requirement. The August 2009 Memo does not include any exemption for congressional hearing communications.

22 On January 29 and May 2, 2018, Attorney General Sessions released memoranda also entitled Communications with Congress that reiterated and expanded direction to Department and component personnel regarding coordination with OLA “[c]onsistent with past policy and practice[.]” Among other changes, the May 2018 memorandum states “communications between the Department and Congress…will be managed or coordinated by [OLA] to ensure that relevant Department and Executive Branch interests are fully protected.” In addition, the May 2018 memorandum states that “OLA will review prior to transmittal all Department written communications to Congress, including letters…and any other materials intended for submission or presentation on Capitol Hill.”

examines the “inherent threat to the integrity of the Department’s law enforcement and litigation functions” that comes from congressional inquiries during pending investigations. The letter noted that this concern was “especially significant with respect to ongoing law enforcement investigations.” It then described the Department’s longstanding policy, “dating back to the beginning of the 20th Century,” to decline to provide congressional committees with access to open law enforcement files. One risk, according to the letter, is the possible public perception that such congressional inquiries amount to pressure resulting in “undue political and Congressional influence over law enforcement and litigation decisions.” Another risk is the “severe[] damage” to the reputations of those mentioned in disclosure of information on open matters, “even though the case might ultimately not warrant prosecution or other legal action.”

Finally, even when an investigation results in a declination, the Linder letter explains that the disclosure of information contained in such a declination memorandum “would implicate significant individual privacy interests as well.” Such information “often contain[s] unflattering personal information as well as assessments of witness credibility and legal positions. The disclosure of the contents of these documents could be devastating to the individuals they discuss.”

1. Special Counsel Regulations

Since the 1999 lapse of the Independent Counsel Reauthorization Act, Department regulations govern the process of appointing a special counsel. 28

U.S.C. §§ 591-599, 64 Fed. Reg. 37,038 (1999). According to 28 C.F.R. § 600.1, the Attorney General (or Acting Attorney General) may appoint a special counsel for the criminal investigation of a person or matter when it would be in the public interest and there exists a Department conflict of interest or other extraordinary circumstance.

The regulations provide that the Attorney General need not appoint a special counsel immediately when a possible conflict emerges. Instead, the Attorney General may authorize further investigation or mitigation efforts, such as recusal. See 28 C.F.R. § 600.2. The special counsel must come from outside the government.23 See 28 C.F.R. § 600.3. The Attorney General sets the criminal jurisdiction of the special counsel through a “specific factual statement of the matter to be investigated,” though the Attorney General may authorize the

23 In 2003, then Deputy Attorney General James Comey, who was the Acting Attorney General after the recusal of then Attorney General John Ashcroft, appointed a U.S. Attorney as special counsel in a letter citing 28 U.S.C. §§ 509, 510, 515, which describe the delegation authority of the Attorney General’s office. See United States v. Scooter Libby, 429 F.Supp. 27, 40 (D.D.C. 2006). This method of appointing a special counsel did not rely on Department regulations, eliminating restrictions on who may be appointed special counsel and removing guidance setting the Attorney General’s supervisory role over the office. See 28 C.F.R. §§ 600.2, 600.7.

additional areas of investigation.24 28 C.F.R. §§ 600.3-600.4. Day to day, the special counsel is not subject to Department supervision, but the Attorney General maintains the ability to review and overrule special counsel decisions in certain circumstances. 28 C.F.R. § 600.7.

1. Criminal Statutes Relevant to the Midyear Investigation

Four statutes governing the handling and retention of classified information are relevant to the Midyear investigation: 18 U.S.C. §§ 793(d), 793(e), 793(f), and 1924.25 Section 793(f)(1), which prohibits the grossly negligent removal of “national defense information,” became a central focus of the investigation and of subsequent prosecutive decisions. In addition to the mishandling and retention statutes, prosecutors also considered whether former Secretary Clinton or others violated 18 U.S.C. § 2071, a criminal statute prohibiting the willful concealment, removal, or destruction of federal records, in connection with the deletion of emails.

We discuss the Department’s analysis of these statutes in Chapter Seven.

1. Mishandling and Retention of Classified Information
2. 18 U.S.C. §§ 793(d) and (e)

Sections 793(d) and (e) are felony statutes that apply to the willful mishandling and retention of classified information. Section 793(d) governs the mishandling of classified documents or information by individuals who are authorized to possess it — that is, who have the appropriate security clearance and require access to the specific classified information to perform or assist in a lawful and authorized governmental function (“need to know”).26 Section 793(d) provides:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the

24 A special counsel’s jurisdiction also covers “federal crimes committed in the course of, and with the intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” 28 C.F.R. § 600.4.

25 Under the USAM, the Department’s National Security Division (NSD) must expressly approve any prosecution involving these statutory provisions. See USAM 9-90.020.

26 See Exec. Order 13526 §§ 4.1(a)(1)-(3), 6.1(dd) (Dec. 29, 2009); see also United States

1. Truong Dinh Hung, 629 F.2d 908, 919 n.10 (4th Cir. 1980).

same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it…[is subject to a criminal fine or imprisonment].

Thus, to prove a violation of Section 793(d), the government must establish the following:

• The individual lawfully had possession of documents or “information relating to the national defense;”
• If information, he or she had reason to believe that the information could be used to the injury of the United States or to the advantage of a foreign nation; and
• The individual willfully communicated, delivered, or transmitted the document or information to a person not entitled to receive it, or willfully retained the document or information and failed to deliver it to the officer or employee of the United States entitled to receive it.

Section 793(e) addresses the possession and transmission of classified information by persons who are not authorized to possess it, either because they lacked the requisite security clearance and need to know, or because they exceeded the scope of their authorization by removing classified materials from a secure facility.27 Apart from this distinction, Sections 793(d) and 793(e) are substantially identical.

Information Relating to the National Defense

Both 793(d) and 793(e) apply to individuals who possess documents or

“information relating to the national defense.” This term is not defined in the

statute. Courts have not limited this phrase to any specific subject matter, but the Fourth Circuit has held that the government must establish first that the

information is “closely held by the government,” and second, that its “disclosure

would be potentially damaging to the United States or useful to an enemy of the United States.” United States v. Rosen, 445 F. Supp. 2d 602, 618, 620-21 (E.D. Va. 2006) (Rosen I) (citing Gorin v. United States, 312 U.S. 19 (1941)); United States v. Morison, 844 F.2d 1057, 1073 (4th Cir. 1988); United States v. Truong, 629 F.2d 908, 918-19 (4th Cir. 1980); United States v. Heine, 151 F.2d 813, 817 (2d Cir. 1945).

The classification level of information may be “highly probative of whether the information at issue is ‘information relating to the national defense’ and whether the person to whom they disclosed the information was ‘entitled to receive’

27 See, e.g., United States v. Hitselberger, 991 F. Supp. 2d 101, 104 (D.D.C. 2013) (Navy linguist who printed and removed Secret documents indicted under 793(e)); United States v. Chattin, 33 M.J. 802, 803 (1991) (Navy seaman who stuffed classified document down his pants and walked out of a secure facility charged under 793(e)).

[it].”28 However, classification level does not conclusively establish that a document or information is “information relating to the national defense.” In United States v. Rosen, 599 F. Supp. 2d 690, 694-95 (E.D. Va. 2009) (Rosen II), the court stated that the term “information relating to the national defense” is not synonymous with classified information. While the classification level of information may serve as evidence that the government intended that it be closely held, the defendant can rebut the conclusion by showing that the government in fact failed to hold it closely. The court also stated that the classification level could not be introduced to show that unauthorized disclosure of the information might potentially damage the United States or aid an enemy of the United States.29

Willfulness

Sections 793(d) and (e) both require that the prohibited act be done

“willfully.” Courts have interpreted “willfully” to mean an act done “intentionally

and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law.”30

In Rosen I, the court held that to prove that the defendants “willfully” committed the conduct prohibited under Sections 793(d) and (e), the government is required to prove beyond a reasonable doubt:

[T]hat the defendants knew the information was NDI [information relating to the national defense], i.e., that the information was closely held by the United States and that disclosure of this information might potentially harm the United States, and that the persons to whom the defendants communicated the information were not entitled under the classification regulations to receive the information. Further the government must prove beyond a reasonable doubt that the defendants communicated the information they had received from their government sources with “a bad purpose either to disobey or to disregard the law.” It follows, therefore, that if the defendants, or

28 Rosen I, 445 F. Supp. 2d at 623; see also Hitselberger, 991 F. Supp. 2d at 106 (document

marked “Secret” was “information relating to the national defense” because the classification level

indicated that it would cause serious damage to the security of the United States if lost, and

defendant’s training placed him on notice that the government considers information in classified

documents important to national security); United States v. Kiriakou, 2012 WL 3263854, at *6 (E.D.

Va. 2012) (unreported decision) (rejecting defendant’s argument that 793(d) is unconstitutionally

vague because courts have relied on the classified status of information to determine whether it is closely held by the government and harmful to the United States); United States v. Kim, 808 F. Supp.

2d 44, 53 (D.D.C. 2011) (“Defendant’s vagueness challenge is particularly unpersuasive in light of the

fact that he is charged with disclosing the contents of an intelligence report…which was marked TOP

SECRET/SENSITIVE COMPARTMENTED INFORMATION….”).

29 Several weeks before trial was scheduled to begin, prosecutors moved to dismiss the

indictment based on the “unexpectedly higher evidentiary threshold” required to prevail at trial. See Motion to Dismiss, United States v. Rosen, Crim. No. 1:05CR225 (E.D. Va. filed May 1, 2009).

30 Bryan v. United States, 524 U.S. 184, 190 (1998) (cited in Hitselberger, 991 F. Supp. 2d at 107-08); see also Morison, 844 F.2d at 1071; United States v. Truong, 629 F.2d 908, 918-19 (4th Cir. 1980).

either of them, were truly unaware that the information they are alleged to have received and disclosed was classified, or if they were truly ignorant of the classification scheme governing who is entitled to receive the information, they cannot be held to have violated the statute.31

Additional Burden of Proof for Disclosures of Intangible Information

Courts have held that Sections 793(d) and (e) contain a “heightened” or “additional” mens rea requirement where the transmission of intangible information (as contrasted with the retention or transmission of classified documents) is involved.32 In addition to showing that an individual acted willfully, the government must prove beyond a reasonable doubt that he or she possessed “reason to believe that the information could be used to the injury of the United States or to the advantage of a foreign nation.”33

Vagueness Challenges

The term “information relating to the national defense” in Sections 793(d) and (e) repeatedly has been challenged as unconstitutionally vague. Courts have rejected such challenges because the statute requires the government to prove that an individual “willfully” committed the prohibited conduct, a requirement that “eliminat[es] any genuine risk of holding a person ‘criminally responsible for conduct which he could not reasonably understand to be proscribed.’”34

2. 18 U.S.C. § 793(f)

Section 793(f)(1), known as the gross negligence provision, became a central focus in the controversy over the decision not to recommend prosecution of former Secretary Clinton or her senior aides, and former Director Comey’s public statement on July 5, 2016. Below we discuss the statutory requirements under Section 793(f), the Midyear prosecutors’ interpretation of Section 793(f)(1), and previous cases in which prosecution was declined under the gross negligence provision.

1. Statutory Requirements

Section 793(f) provides as follows:

31 Rosen I, 445 F. Supp. 2d at 625 (internal citation omitted).

32 See Hitselberger, 991 F. Supp. 2d at 105; Drake, 818 F. Supp. 2d 909, 916-17 (D. Md.); see also United States v. Leung, No. 03-CR-434 (C.D. Cal. Jul. 14, 2003).

33 See Rosen I, 445 F. Supp. 2d at 643; see also Memorandum Opinion, United States v. Sterling, No. 1:10-CR-00485-LHB (filed Jun. 28, 2011) (government asserted that it must prove that the defendant acted willfully and had reason to believe the information would harm the United States where he is alleged to have disclosed classified information).

34 Id. at 625; Morison, 844 F.2d at 1073; Truong, 629 F.2d at 918-19 (4th Cir. 1980); see also Gorin v. United States, 312 U.S. 19 (1941) (holding that information “connected with” or “relating to” the national defense used in the predecessor to a related Espionage Act statute was not unconstitutionally vague because the statute included a scienter requirement).

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer…[is subject to a criminal fine or imprisonment].

Section 793(f)(1) addresses the removal, delivery, loss, theft, abstraction, or

destruction of any document or “information relating to the national defense”

through gross negligence, while Section 793(f)(2) penalizes the failure to report the

removal, loss, theft, abstraction, or destruction of any document or “information relating to the national defense,” if an individual has knowledge that it has been

removed from its proper place of custody.

Section 793(f), like sections 793(d) and (e), requires that the information in question be “information relating to the national defense.” In United States v. Dedeyan, 584 F.2d 36, 39 (4th Cir. 1978), the Fourth Circuit upheld jury instructions in a Section 793(f)(2) case that required the government to prove that

“disclosure of information in the document would be potentially damaging to the

national defense, or that information in the document disclosed might be useful to

an enemy of the United States.”

1. Prosecutors’ Interpretation of the “Gross Negligence” Provision in Section 793(f)(1)

Section 793(f)(1) does not define what constitutes “gross negligence,” nor

have any federal court decisions interpreted this specific provision of the statute. However, the prosecutors analyzed the legislative history of Section 793(f)(1) and identified statements made during the 1917 congressional debate indicating that

the state of mind required for a violation of Section 793(f)(1) is “so gross as to almost suggest deliberate intention,” criminally reckless, or “something that falls just a little short of being willful.” The prosecutors cited a statement by Congressman Andrew Volstead during the 1917 debate about the predecessor to Section 793(f)(1):

I want to call attention to the fact that the information that is covered by this section may be, and probably would be, of the very highest importance to the Government…. It is not an unusual provision at all. It occurs in a great many criminal statutes. Men are convicted for gross negligence, but it has to be so gross as almost to suggest deliberate intention before a jury will convict. For instance, a person is killed by a man running an automobile recklessly on a crowded street. He may, and under the laws of most States would be, adjudged guilty of manslaughter, and can be sent to State prison…. We have, as I have already stated, a number of statutes of that kind. This provision is not revolutionary. It is the ordinary practice to apply such statutes to cases where lack of care occasions the death or serious injury of persons. This section should be, and probably would be, applied only in those cases where something of real consequence ought to be guarded with extreme care and caution.35

Given the absence of a definition of “gross negligence” in Section 793(f), the prosecutors researched state manslaughter statutes in effect at the time of the 1917 congressional debate, and determined that gross negligence was interpreted in that context to require wantonness or recklessness that was equivalent to criminal intent. However, the prosecutors also identified contemporaneous state

court decisions interpreting other criminal statutes using “gross negligence” to

require proof that ranged from something more than civil negligence to willful, intentional conduct.

The Midyear prosecutors did not find any court cases addressing the state of mind required for a violation of Section 793(f)(1). However, the prosecutors analyzed United States v. Dedeyan, 584 F.2d 36, 39 (4th Cir. 1978), a Fourth Circuit decision interpreting Section 793(f)(2). This case involved a civilian employee who completed a military vulnerability analysis and marked it “Secret,” then took a copy of it home to proofread. While at home, his cousin secretly photographed part of the analysis with a camera provided by the Soviet Union. When the defendant later learned that his cousin had taken these photos, he accepted $1,000 as a “payment for remaining silent” rather than reporting that the information had been compromised. Upholding the statute against a challenge that it was unconstitutionally vague, the court held that Section 793(f)(2) requires the government to prove that the defendant knew that the document had been illegally abstracted, and that this knowledge requirement was sufficient to save the statute from vagueness.

In addition, the Midyear prosecutors reviewed previous prosecutions under Section 793(f)(1) in federal or military courts and concluded that these cases involved either a defendant who knowingly removed classified information from a secure facility, or inadvertently removed classified information from a secure facility and, upon learning of its removal, failed to report its “loss, theft, abstraction, or destruction.”36 The prosecutors concluded that based on case law and the

35 65 Cong. Rec. H1762-63 (daily ed. May 3, 1917).

36 See Indictment, United States v. Smith, No. 03-CR-429 (C.D. Cal filed Feb. 24, 2004); see also United States v. Courpalais, No. ACM 35571, 2005 WL 486145 (A.F. Ct. Crim. App. Feb. 10, 2005) (defendant removed four classified photographs and took them home); United States v. Roller, 37 M.J. 1093 (1993) (defendant inadvertently placed two classified documents in his gym bag and took them home, and left the documents in his garage when he later discovered them); United States

1. Chattin, 33 M.J. 802 (1991) (defendant stuffed classified documents down his pants and took them home); United States v. Gaffney, 17 M.J. 565 (1983) (defendant was supposed to destroy classified material but instead took it home and put it in a neighborhood dumpster); United States v. Gonzalez, 12 M.J. 747 (1981) (defendant intermingled two classified messages with personal mail he was

Department’s prior interpretation of the statute, charging a violation of Section 793(f) likely required evidence that the individuals who sent emails containing classified information “knowingly” included the classified information or transferred classified information onto unclassified systems (Section 793(f)(1)), or learned that classified information had been transferred to unclassified systems and failed to report it (Section 793(f)(2)). Thus, the Midyear prosecutors interpreted the “gross negligence” provision of Section 793(f)(1) to require proof that an individual acted with knowledge that the information in question was classified.37

As noted above, sections 793(d) and (e) have survived constitutional vagueness challenges because of the existence of a scienter requirement in the form of the requirement to prove “willfulness.” Such a challenge has not yet been raised in a Section 793(f)(1) “gross negligence” case. The Midyear prosecutors stated:

[T]he government would likely face a colorable constitutional challenge to the statute if it prosecuted an individual for committing gross negligence who was both unaware he had removed classified information at the time of the removal and never became aware he had done so…. Moreover, in bringing a vagueness challenge, defense counsel would also likely point to the significant disagreement as to

the meaning of “gross negligence.”

1. Previous Section 793(f)(1) Declinations

The Midyear prosecutors also reviewed at least two previous investigations where prosecution was declined under the gross negligence provision in Section 793(f)(1). The Midyear prosecutors told us that these declinations informed their understanding of the Department’s historical approach to Section 793(f)(1). We discuss these previous declinations below.

Gonzales Declination Decision

One of these previous cases involved an OIG investigation into the mishandling of documents containing highly classified, compartmented information about a National Security Agency (NSA) surveillance program by former White House Counsel and Attorney General Alberto Gonzales. In 2004, while Gonzales

carrying to a friend in Alaska, then put the message in a desk drawer in the friend’s room and forgot them); cf. United States v. Oxfort, 44 M.J. 337 (1996) (defendant removed classified messages from a Sensitive Compartmented Information Facility (SCIF) in Japan with the intention of passing them along to individuals who were not entitled to receive them; although the opinion states the defendant was charged under 793(e), prosecutors found documents referencing charges filed under Section 793(f)(1) based on the same facts); United States v. McGuinness, 33 M.J. 781 (1991) (defendant took home numerous classified items from previous assignments and was charged under Section 793(e), but a Section 793(f)(1) conviction was set aside for statute of limitation reasons).

37 Proof of such knowledge would also be necessary to establish a violation of Sections 793(d)

or (e), which required proof of “willfulness.” Accordingly, as detailed below and in subsequent

chapters, the investigative team focused significant attention on determining whether Clinton, her senior aides, and senders of emails that contained classified information had actual knowledge of the classified status of the information.

was the White House Counsel, he took handwritten notes memorializing a meeting about the legality of the NSA program. The notes included operational details about the program, including its compartmented codeword. Although Gonzales did not mark the notes as classified, he said that he used two envelopes to double-wrap the notes and may have written an abbreviation for the codeword on the inner envelope. On the outer envelope, Gonzales said that he wrote “AG – EYES ONLY – TOP SECRET.” He stored these notes in a safe in the West Wing of the White House

and said that he took them with him when he became the Attorney General in February 2005. Gonzales said that he did not recall where he stored the notes after removing them from the White House, but that he may have taken them home. Gonzales also stored the notes and several other documents containing TS//SCI classification markings in a safe in the Attorney General’s office that was not approved to hold such materials.

The OIG referred investigative findings to NSD for a prosecutive decision. According to information reviewed by the OIG, on August 19, 2008, NSD analyzed Gonzales’ handling of the notes under the gross negligence provision in section 793(f)(1). NSD concluded that prosecutors likely could show that the documents were removed from their proper place of custody, but that the question was whether that removal constituted “gross negligence.” After discussing the legislative history of Section 793(f)(1), NSD stated that the government likely would have to prove that Gonzales’ conduct was “criminally reckless” to establish that he acted with gross negligence under Section 793(f)(1). NSD concluded that Gonzales’ inability to recall precisely where he stored the notes detracted from prosecutors’ ability to “show a state of mind approaching ‘deliberate intention’ to remove classified documents from a secure location.”

AUSA Declination Decision

The Midyear prosecutors also reviewed another 2008 case in which prosecution was declined under Section 793(f)(1). This case involved an AUSA who sent numerous boxes of documents to his personal residence in the United States following an overseas tour as a legal attaché. According to the prosecutors’ analysis, the boxes contained a large number of documents that were classified at the Secret and Confidential levels. Many of these documents were organized haphazardly or were improperly marked. The AUSA testified that he did not purposely ship classified documents to his house, but acknowledged that it was highly likely that the documents he shipped included some classified materials.

Interpreting section 793(f)(1), NSD stated that prosecutors likely would be required to prove that the AUSA’s conduct was “criminally reckless.” NSD identified factors suggesting that the AUSA’s conduct did not rise to the level of gross negligence, including that he testified that he did not purposely ship classified documents to his house, and thus he did not deliberately intend to remove the classified documents from a secure location. In addition, the documents were not separated into classified and unclassified categories, and they did not contain proper classification markings in that the first few pages of certain documents were not marked but later pages in the same document contained classification markings. Based on these and other factors, NSD concluded that prosecution was not warranted.

3. 18 U.S.C. § 1924

Section 1924 is a misdemeanor statute that 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. To establish a violation of this statute, the government must show that an individual knowingly removed classified materials without authority and intended to store these materials at an unauthorized location. To remove “without authority” means that the classified materials were removed from the controlling agency’s premises without permission.38 Although no reported cases interpret this provision, the Midyear prosecutors concluded that Section 1924 requires the government to show beyond a reasonable doubt that the defendant had knowledge that the location where he or she intended to store classified material was an “unauthorized” or “unlawful” place to retain it, citing the legislative history, the Petraeus case we describe below, and other previous prosecutions under this provision.

High profile cases considered by the Midyear prosecutors and by FBI leadership involving plea agreements under Section 1924 include former Central Intelligence Agency (CIA) Director David Petraeus, former National Security Advisor Samuel “Sandy” Berger, and former CIA Director John Deutch. In each of these cases, the defendants knew the information at issue was classified or took actions reflecting knowledge that their handling or storage of it was improper.

Petraeus, a retired U.S. Army General, served as the Commander of the International Security Assistance Force in Afghanistan from July 2010 to July 2011, and as the Director of the CIA from September 2011 to November 2012. While in Afghanistan, Petraeus kept notes in black notebooks that included information about the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and discussions with the President. Petraeus retained these notebooks when he returned from Afghanistan and later shared them with his biographer, Paula Broadwell, admitting to her in a recorded conversation that the notebooks were “highly classified” and contained “code word stuff.” He also stored them in an unlocked desk drawer in his home office. During a subsequent investigation into his mishandling and retention of classified information, Petraeus falsely told the FBI that he never provided or facilitated the provision of classified information to Broadwell. In March 2015, Petraeus pled guilty to one count under 18 U.S.C. § 1924, and was sentenced to 2 years of probation, a $25 special assessment, and a $100,000 fine.39

38 See Exec. Order 13526, § 4.1(d).

39 See Plea Agreement and Factual Basis, United States v. Petraeus, Crim. No. 3:15-CR-47

(W.D.N.C. filed Mar. 3, 2015); Information, Petraeus, 2015 WL 1884065 (W.D.N.C. filed Mar. 3, 2015)

(charging Petraeus with knowingly removing classified documents “without authority and with the

Sandy Berger, the National Security Advisor under former President Bill Clinton, visited the National Archives and Records Administration to review documents for production to the 9/11 Commission. During his visits, Berger concealed and removed documents by folding the documents in his clothes, walking out of the National Archives building, and placing them under a nearby construction trailer for later retrieval.40 Berger removed a total of five copies of classified documents, stored them in his office, and later destroyed three of them by cutting them into small pieces and discarding them. All of these documents were marked classified. Berger also created and removed handwritten notes of classified material that he had reviewed, and was aware that he removed these notes from the National Archives without authorization. Berger pled guilty to a criminal information charging one count of 18 U.S.C. § 1924.41 He was sentenced to 2 years of probation, a $56,905.52 fine, a $25 special assessment, and 100 hours of community service, and was precluded from accessing classified information for 5 years.

Former CIA Director John Deutch was investigated for using unclassified, Internet-connected computer systems to create and process classified documents and storing classified memory cards in his personal residence. During an investigation by the CIA Inspector General (CIA IG), investigators recovered files from a computer at Deutch’s residence that were labeled as unclassified but contained words indicating that the information was “Secret” or “Top Secret Codeword,” or was otherwise highly sensitive. For example, recovered documents included reports on covert operations, communications intelligence, memoranda to then President Bill Clinton, and classified CIA budget information. The CIA IG report states that Deutch told investigators that he “fell into the habit” of using the unclassified system “in an inappropriate fashion,” and admitted that he had intentionally created highly sensitive documents on unclassified computers. In addition, witnesses testified that Deutch was considered to be an “expert” or “fairly advanced” computer user. Following a criminal investigation, Deutch agreed to plead guilty to one count under 18 U.S.C. § 1924, but was pardoned by President Clinton on January 19, 2001, before the plea was consummated.

Examples of conduct prosecuted under Section 1924 include a former government employee who stored boxes of marked classified documents in his personal residence; a contractor who downloaded classified information from a secure network to a thumb drive, transferred the information to an unclassified computer, and shared it with others; and a government employee who concealed and removed highly classified documents from a Sensitive Compartmented

intent to retain such documents and materials at unauthorized locations, aware that these locations

were unauthorized for the storage and retention of such classified documents”).

40 See National Archives, Notable Thefts from the National Archives, at https://www.archives.gov/research/recover/notable-thefts.html (accessed Mar. 1, 2018).

41 See Factual Basis for Plea, United States v. Berger, Crim. No. 1:05-MJ-00175-DAR (D.D.C. filed Apr. 1, 2005).

Information Facility (SCIF) where he worked and stored the documents in his vehicle and house.

1. 18 U.S.C. § 2071(a)

Section 2071(a) is a felony statute criminalizing the concealment, removal, or mutilation of government records filed in any public office. To establish a violation of this provision, the government must prove the following beyond a reasonable doubt:

• An individual concealed, removed, or destroyed a record, or attempted to do so, or took and carried away a record with the intent to do so:
• The record was filed or deposited in a public office of the United States; and
• The individual acted willfully and unlawfully.

The purpose of this statute is to prohibit conduct that deprives the government of the use of its documents, such as by removing and altering or destroying them.42 The Midyear prosecutors concluded that every prosecution under Section 2071 has involved the removal or destruction of documents that had already been filed or deposited in a public office of the United States (i.e., physical removal of a document). In addition, to fulfill the requirement that the individual acted “willfully and unlawfully,” Section 2071 requires the government to show that

he or she acted intentionally, with knowledge that he or she was breaching the statute.43

42 See United States v. Hitselberger, 991 F. Supp. 2d 108, 124 (D.D.C. 2014) (See United States v. Rosner, 352 F.Supp. 915, 919-20 (S.D.N.Y. 1972); United States v. North, 716 F.Supp. 644, 647 (D.D.C. 1989).

43 See United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir. 1969).