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

Executive Summary

i-xiv A Review of Various Actions byt

Background

In response to requests from Congress, various organizations, and members of the public, the Department of Justice (Department) Office of the Inspector General (OIG) undertook this review of various actions by the Federal Bureau of Investigation (FBI) and the Department in connection with the investigation into former Secretary of State Hillary Clinton’s use of a private email server.   Our review included examining;

Allegations that Department or FBI policies or procedures were not followed in connection with, or in actions leading up to or related to, then FBI Director James Comey’s public announcement on July 5, 2016 , and Comey’s Letters to Congress on October 28 and November 6, 2016.

Allegations that certain investigative decisions were based on improper considerations;

Allegations that then FBI Deputy Director Andrew McCabe should have been recused from participating in certain investigative matters;

Allegations that the Department’s then Assistant Attorney General for Legislative Affairs, Peter Kadzik, improperly disclosed non-public information and/or should have been recused from participating in certain matters;;

Allegations that Department and FBI employees improperly disclosed non-public information during the course of the investigation; and

Allegations that decisions regarding the timing of the FBI’s release of certain Freedom of Information Act (FOIA) documents on October 30 and November 1, 2016, and the use of a Twitter account to publicize this release, were influenced by improper considerations.

During the course of the review, the OIG discovered text messages and instant messages between some FBI employees on the investigative team, conducted using FBI mobile devices and computers, that expressed statement of hostility toward then candidate Donald Trump and statements of support for then candidate Clinton. We also identified messages that expressed opinions that were critical of the conduct and quality of the investigation. We included in our review an assessment of these messages and actions by the FBI employees.

OIG Methodology

The OIG reviewed significantly more than 1.2 million documents during the review and interviewed more that 100 witnesses, several on more than one occasion. Theses included former Director Comey, former Attorney General (AG) Loretta Lynch, former Deputy Attorney General (DAG) Sally Yates, FBI agents and supervisors and Department attorneys and supervisors who conducted the investigation, former and current members of the FBI’s senior executive leadership, and former President Bill Clinton.

Conduct of the Midyear Investigation.

The FBI and Department referred to the investigation as ‘’Midyear Exam’’ or ‘’Midyear.’’ The Midyear investigation was opened by the FBI in July 2015 based on a referral form the Office of the Intelligence Community Inspector General (IC IG). The investigation was staffed by prosecutors from the Department’s National Security Division (NSD) and the U.S. Attorney’s Office for the Eastern District of Virginia (EDVA), and agents and analysts selected primarily from the FBI’s Washington Field Office to work at FBI Headquarters.

The Midyear investigation focused on whether Clinton intended to transmit classified information on unclassified systems, knew that information included in unmarked emails was classified, or later became aware that information was classified and failed to report it. The Midyear team employed an investigative strategy that included three primary lines of inquiry; collection and examination of emails that traversed Clinton’s servers and other relevant evidence, interviews of relevant witnesses, and analysis of whether classified information was compromised by hostile cyber intrusions.

As described in Chapter Five of our report, we selected for examination particular investigative decisions that were the subject of public or internal controversy. These include the following;

The preference for consent over compulsory process to obtain evidence;

Decisions not to obtain or seek to review certain evidence, such as the person devices used by former Secretary Clinton’s senior aides;

The use of voluntary witnesses interviews;

• Decisions to enter into “letter use” or “Queen

for a Day” immunity agreements with three

witnesses;

• The use of consent agreements and “act of

production” immunity to obtain the laptops used

by Clinton’s attorneys (Cheryl Mills and Heather

Samuelson) to “cull” her personal and workrelated

emails; and

• The handling of Clinton’s interview on July 2,

2016.

With regard to these investigative decisions, we found,

as detailed in Chapter Five, that the Midyear team:

• Sought to obtain evidence whenever possible

through consent but also used compulsory

process, including grand jury subpoenas, search

warrants, and 2703(d) orders (court orders for

non-content email information) to obtain

various evidence. We found that the

prosecutors provided justifications for the

preference for consent that were supported by

Department and FBI policy and practice;

• Conducted voluntary witness interviews to

obtain testimony, including from Clinton and her

senior aides, and did not require any witnesses

to testify before the grand jury. We found that

one of the reasons for not using the grand jury

for testimony involved concerns about exposing

grand jurors to classified information;

• Did not seek to obtain every device, including

those of Clinton’s senior aides, or the contents

of every email account through which a

classified email may have traversed. We found

that the reasons for not doing so were based on

limitations the Midyear team imposed on the

investigation’s scope, the desire to complete the

investigation well before the election, and the

belief that the foregone evidence was likely of

limited value. We further found that those

reasons were, in part, in tension with Comey’s

response in October 2016 to the discovery of

Clinton emails on the laptop of Anthony Weiner,

the husband of Clinton’s former Deputy Chief of

Staff and personal assistant, Huma Abedin;

• Considered but did not seek permission from

the Department to review certain highly

classified materials that may have included

information potentially relevant to the Midyear

investigation. The classified appendix to this

report describes in more detail the highly

classified information, its potential relevance to

the Midyear investigation, the FBI’s reasons for

not seeking access to it, and our analysis;

• Granted letter use immunity and/or “Queen for

a Day” immunity to three witnesses in exchange

for their testimony after considering, as

provided for in Department policy, the value of

the witness’s testimony, the witness’s relative

culpability, and the possibility of a successful

prosecution;

• Used consent agreements and “act of

production” immunity to obtain the culling

laptops used by Mills and Samuelson, in part to

avoid the uncertainty and delays of a potential

motion to quash any subpoenas or search

warrants. We found that these decisions were

occurring at a time when Comey and the

Midyear team had already concluded that there

was likely no prosecutable case and believed it

was unlikely the culling laptops would change

the outcome of the investigation;

• Asked Clinton what appeared to be appropriate

questions and made use of documents to

challenge Clinton’s testimony and assess her

credibility during her interview. We found that,

by the date of her interview, the Midyear team

and Comey had concluded that the evidence did

not support criminal charges (absent a

confession or false statement by Clinton during

the interview), and that the interview had little

effect on the outcome of the investigation; and

• Allowed Mills and Samuelson to attend the

Clinton interview as Clinton’s counsel, even

though they also were fact witnesses, because

the Midyear team determined that the only way

to exclude them was to subpoena Clinton to

testify before the grand jury, an option that we

found was not seriously considered. We found

no persuasive evidence that Mills’s or

Samuelson’s presence influenced Clinton’s

interview. Nevertheless, we found the decision

to allow them to attend the interview was

inconsistent with typical investigative strategy.

For each of these decisions, we analyzed whether there

was evidence of improper considerations, including bias,

and also whether the justifications offered for the

decision were a pretext for improper, but unstated,

considerations.

The question we considered was not whether a

particular investigative decision was the ideal choice or

one that could have been handled more effectively, but

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whether the circumstances surrounding the decision

indicated that it was based on considerations other than

the merits of the investigation. If a choice made by the

investigative team was among two or more reasonable

alternatives, we did not find that it was improper even if

we believed that an alternative decision would have

been more effective.

Thus, a determination by the OIG that a decision was

not unreasonable does not mean that the OIG has

endorsed the decision or concluded that the decision

was the most effective among the options considered.

We took this approach because our role as an OIG is

not to second-guess valid discretionary judgments

made during the course of an investigation, and this

approach is consistent with the OIG’s handling of such

questions in past reviews.

In undertaking our analysis, our task was made

significantly more difficult because of text and instant

messages exchanged on FBI devices and systems by

five FBI employees involved in the Midyear

investigation. These messages reflected political

opinions in support of former Secretary Clinton and

against her then political opponent, Donald Trump.

Some of these text messages and instant messages

mixed political commentary with discussions about the

Midyear investigation, and raised concerns that political

bias may have impacted investigative decisions.

In particular, we were concerned about text messages

exchanged by FBI Deputy Assistant Director Peter

Strzok and Lisa Page, Special Counsel to the Deputy

Director, that potentially indicated or created the

appearance that investigative decisions were impacted

by bias or improper considerations. As we describe in

Chapter Twelve of our report, most of the text

messages raising such questions pertained to the

Russia investigation, which was not a part of this

review. Nonetheless, the suggestion in certain Russiarelated

text messages in August 2016 that Strzok might

be willing to take official action to impact presidential

candidate Trump’s electoral prospects caused us to

question the earlier Midyear investigative decisions in

which Strzok was involved, and whether he took specific

actions in the Midyear investigation based on his

political views. As we describe Chapter Five of our

report, we found that Strzok was not the sole

decisionmaker for any of the specific Midyear

investigative decisions we examined in that chapter.

We further found evidence that in some instances

Strzok and Page advocated for more aggressive

investigative measures in the Midyear investigation,

such as the use of grand jury subpoenas and search

warrants to obtain evidence.

There were clearly tensions and disagreements in a

number of important areas between Midyear agents and

prosecutors. However, we did not find documentary or

testimonial evidence that improper considerations,

including political bias, directly affected the specific

investigative decisions we reviewed in Chapter Five, or

that the justifications offered for these decisions were

pretextual.

Nonetheless, these messages cast a cloud over the

FBI’s handling of the Midyear investigation and the

investigation’s credibility. But our review did not find

evidence to connect the political views expressed in

these messages to the specific investigative decisions

that we reviewed; rather, consistent with the analytic

approach described above, we found that these specific

decisions were the result of discretionary judgments

made during the course of an investigation by the

Midyear agents and prosecutors and that these

judgment calls were not unreasonable. The broader

impact of these text and instant messages, including on

such matters as the public perception of the FBI and the

Midyear investigation, are discussed in Chapter Twelve

of our report.

Comey’s Public Statement on July 5

“Endgame” Discussions

As we describe in Chapter Six of the report, by the

Spring of 2016, Comey and the Midyear team had

determined that, absent an unexpected development,

evidence to support a criminal prosecution of Clinton

was lacking. Midyear team members told us that they

based this assessment on a lack of evidence showing

intent to place classified information on the server, or

knowledge that the information was classified. We

describe the factors that the Department took into

account in its decision to decline prosecution in Chapter

Seven of our report and below.

Comey told the OIG that as he began to realize the

investigation was likely to result in a declination, he

began to think of ways to credibly announce its closing.

Comey engaged then DAG Yates in discussions in April

2016 about the “endgame” for the Midyear

investigation. Comey said that he encouraged Yates to

consider the most transparent options for announcing a

declination. Yates told the OIG that, as a result of her

discussions with Comey, she thought the Department

and FBI would jointly announce any declination.

Comey said he also told Yates that the closer they got

to the political conventions, the more likely he would be

to insist that a special counsel be appointed, because he

did not believe the Department could credibly announce

the closing of the investigation once Clinton was the

Democratic Party nominee. However, we did not find

evidence that Comey ever seriously considered

requesting a special counsel; instead, he used the

reference to a special counsel as an effort to induce the

Department to move more quickly to obtain the Mills

and Samuelson culling laptops and to complete the

investigation.

Although Comey engaged with the Department in these

“endgame” discussions, he told us that he was

concerned that involvement by then AG Loretta Lynch in

a declination announcement would result in “corrosive

doubt” about whether the decision was objective and

impartial because Lynch was appointed by a President

from the same political party as Clinton. Comey cited

other factors to us that he said caused him to be

concerned by early May 2016 that Lynch could not

credibly participate in announcing a declination:

• An alleged instruction from Lynch at a meeting

in September 2015 to call the Midyear

investigation a “matter” in statements to the

media and Congress, which we describe in

Chapter Four of our report;

• Statements made by then President Barack

Obama about the Midyear investigation, which

also are discussed in Chapter Four; and

• Concerns that certain classified information

mentioning Lynch would leak, which we

describe in Chapter Six and in the classified

appendix.

As we discuss below and in Chapter Six of our report,

the meeting between Lynch and former President

Clinton on June 27, 2016 also played a role in Comey’s

decision to deliver a unilateral statement.

Comey did not raise any of these concerns with Lynch

or Yates. Rather, unbeknownst to them, Comey began

considering the possibility of an FBI-only public

statement in late April and early May 2016. Comey told

the OIG that a separate public statement was

warranted by the “500-year flood” in which the FBI

found itself, and that he weighed the need to preserve

the credibility and integrity of the Department and the

FBI, and the need to protect “a sense of justice more

broadly in the country—that things are fair not fixed,

and they’re done independently.”

Comey’s Draft Statement

Comey’s initial draft statement, which he shared with

FBI senior leadership on May 2, criticized Clinton’s

handling of classified information as “grossly negligent,”

but concluded that “no reasonable prosecutor” would

bring a case based on the facts developed in the

Midyear investigation. Over the course of the next 2

months, Comey’s draft statement underwent various

language changes, including the following:

• The description of Clinton’s handling of

classified information was changed from

“grossly negligent” to “extremely careless;”

• A statement that the sheer volume of

information classified as Secret supported an

inference of gross negligence was removed and

replaced with a statement that the classified

information they discovered was “especially

concerning because all of these emails were

housed on servers not supported by full-time

staff”;

• A statement that the FBI assessed that it was

“reasonably likely” that hostile actors gained

access to Clinton’s private email server was

changed to “possible.” The statement also

acknowledged that the FBI investigation and its

forensic analysis did not find evidence that

Clinton’s email server systems were

compromised; and

• A paragraph summarizing the factors that led

the FBI to assess that it was possible that

hostile actors accessed Clinton’s server was

added, and at one point referenced Clinton’s

use of her private email for an exchange with

then President Obama while in the territory of a

foreign adversary. This reference later was

changed to “another senior government

official,” and ultimately was omitted.

Each version of the statement criticized Clinton’s

handling of classified information. Comey told us that

he included criticism of former Secretary Clinton’s

uncharged conduct because “unusual transparency…was

necessary for an unprecedented situation,” and that

such transparency “was the best chance we had of

having the American people have confidence that the

justice system works[.]”

Other witnesses told the OIG that Comey included this

criticism to avoid creating the appearance that the FBI

was “letting [Clinton] off the hook,” as well as to

“messag[e]” the decision to the FBI workforce to

emphasize that employees would be disciplined for

similar conduct and to distinguish the Clinton

investigation from the cases of other public figures who

had been prosecuted for mishandling violations.

The Tarmac Meeting and Impact on Comey’s Statement

On June 27, 2016, Lynch met with former President

Clinton on Lynch’s plane, which was parked on the

tarmac at a Phoenix airport. This meeting was

unplanned, and Lynch’s staff told the OIG they received

no notice that former President Clinton planned to

board Lynch’s plane. Both Lynch and former President

Clinton told the OIG that they did not discuss the

Midyear investigation or any other Department

investigation during their conversation. Chapter Six of

our report describes their testimony about the

substance of their discussion.

Lynch told the OIG that she became increasingly

concerned as the meeting “went on and on,” and stated

“that it was just too long a conversation to have had.”

Following this meeting, Lynch obtained an ethics

opinion from the Departmental Ethics Office that she

was not required to recuse herself from the Midyear

investigation, and she decided not to voluntarily recuse

herself either. In making this decision, Lynch told the

OIG that stepping aside would create a misimpression

that she and former President Clinton had discussed

inappropriate topics, or that her role in the Midyear

investigation somehow was greater than it was.

On July 1, during an interview with a reporter, Lynch

stated that she was not recusing from the Midyear

investigation, but that she ”fully expect[ed]” to accept

the recommendation of the career agents and

prosecutors who conducted the investigation, “as is the

common process.” Then, in a follow up question, Lynch

said “I’ll be briefed on [the findings] and I will be

accepting their recommendations.” Lynch’s statements

created considerable public confusion about the status

of her continuing involvement in the Midyear

investigation.

Although we found no evidence that Lynch and former

President Clinton discussed the Midyear investigation or

engaged in other inappropriate discussion during their

tarmac meeting, we also found that Lynch’s failure to

recognize the appearance problem created by former

President Clinton’s visit and to take action to cut the

visit short was an error in judgment. We further

concluded that her efforts to respond to the meeting by

explaining what her role would be in the investigation

going forward created public confusion and did not

adequately address the situation.

Comey told the OIG that he was “90 percent there, like

highly likely” to make a separate public statement prior

to the tarmac meeting, but that the tarmac meeting

“tipped the scales” toward making his mind up to go

forward with his own public statement.

Comey’s Decision Not to Tell Department Leadership

Comey acknowledged that he made a conscious

decision not to tell Department leadership about his

plans to make a separate statement because he was

concerned that they would instruct him not to do it. He

also acknowledged that he made this decision when he

first conceived of the idea to do the statement, even as

he continued to engage the Department in discussions

about the “endgame” for the investigation.

Comey admitted that he concealed his intentions from

the Department until the morning of his press

conference on July 5, and instructed his staff to do the

same, to make it impracticable for Department

leadership to prevent him from delivering his

statement. We found that it was extraordinary and

insubordinate for Comey to do so, and we found none of

his reasons to be a persuasive basis for deviating from

well-established Department policies in a way

intentionally designed to avoid supervision by

Department leadership over his actions.

On the morning of July 5, 2016, Comey contacted Lynch

and Yates about his plans to make a public statement,

but did so only after the FBI had notified the press—in

fact, the Department first learned about Comey’s press

conference from a media inquiry, rather than from the

FBI. When Comey did call Lynch that morning, he told

her that he was not going to inform her about the

substance of his planned press statement.

While Lynch asked Comey what the subject matter of

the statement was going to be (Comey told her in

response it would be about the Midyear investigation),

she did not ask him to tell her what he intended to say

about the Midyear investigation. We found that Lynch,

having decided not to recuse herself, retained authority

over both the final prosecution decision and the

Department’s management of the Midyear investigation.

As such, we believe she should have instructed Comey

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to tell her what he intended to say beforehand, and

should have discussed it with Comey.

Comey’s public statement announced that the FBI had

completed its Midyear investigation, criticized Clinton

and her senior aides as “extremely careless” in their

handling of classified information, stated that the FBI

was recommending that the Department decline

prosecution of Clinton, and asserted that “no reasonable

prosecutor” would prosecute Clinton based on the facts

developed by the FBI during its investigation. We

determined that Comey’s decision to make this

statement was the result of his belief that only he had

the ability to credibly and authoritatively convey the

rationale for the decision to not seek charges against

Clinton, and that he needed to hold the press

conference to protect the FBI and the Department from

the extraordinary harm that he believed would have

resulted had he failed to do so. While we found no

evidence that Comey’s statement was the result of bias

or an effort to influence the election, we did not find his

justifications for issuing the statement to be reasonable

or persuasive.

We concluded that Comey’s unilateral announcement

was inconsistent with Department policy and violated

long-standing Department practice and protocol by,

among other things, criticizing Clinton’s uncharged

conduct. We also found that Comey usurped the

authority of the Attorney General, and inadequately and

incompletely described the legal position of Department

prosecutors.

The Department’s Declination Decision

on July 6

Following Comey’s public statement on July 5, the

Midyear prosecutors finalized their recommendation

that the Department decline prosecution of Clinton, her

senior aides, and the senders of emails determined to

contain classified information. On July 6, the Midyear

prosecutors briefed Lynch, Yates, Comey, other

members of Department and FBI leadership, and FBI

Midyear team members about the basis for the

declination recommendation. Lynch subsequently

issued a short public statement that she met with the

career prosecutors and agents who conducted the

investigation and “received and accepted their

unanimous recommendation” that the investigation be

closed without charges.

We found that the prosecutors considered five federal

statutes:

• 18 U.S.C. §§ 793(d) and (e) (willful mishandling

of documents or information relating to the

national defense);

• 18 U.S.C. § 793(f) (removal, loss, theft,

abstraction, or destruction of documents or

information relating to the national defense

through gross negligence, or failure to report

such removal, loss, theft, abstraction, or

destruction);

• 18 U.S.C. § 1924 (unauthorized removal and

retention of classified documents or material by

government employees); and

• 18 U.S.C. § 2071 (concealment, removal, or

mutilation of government records).

As described in Chapter Seven of our report, the

prosecutors concluded that the evidence did not support

prosecution under any of these statutes for various

reasons, including that former Secretary Clinton and her

senior aides lacked the intent to communicate classified

information on unclassified systems. Critical to their

conclusion was that the emails in question lacked

proper classification markings, that the senders often

refrained from using specific classified facts or terms in

emails and worded emails carefully in an attempt to

“talk around” classified information, that the emails

were sent to other government officials in furtherance

of their official duties, and that former Secretary Clinton

relied on the judgment of State Department employees

to properly handle classified information, among other

facts.

We further found that the statute that required the

most complex analysis by the prosecutors was Section

793(f)(1), the “gross negligence” provision that has

been the focus of much of the criticism of the

declination decision. As we describe in Chapters Two

and Seven of our report, the prosecutors analyzed the

legislative history of Section 793(f)(1), relevant case

law, and the Department’s prior interpretation of the

statute. They concluded that Section 793(f)(1) likely

required a state of mind that was “so gross as to almost

suggest deliberate intention,” criminally reckless, or

“something that falls just short of being willful,” as well

as evidence that the individuals who sent emails

containing classified information “knowingly” included or

transferred such information onto unclassified systems.

The Midyear team concluded that such proof was

lacking. We found that this interpretation of Section

793(f)(1) was consistent with the Department’s

historical approach in prior cases under different

leadership, including in the 2008 decision not to

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prosecute former Attorney General Alberto Gonzales for

mishandling classified documents.

We analyzed the Department’s declination decision

according to the same analytical standard that we

applied to other decisions made during the

investigation. We did not substitute the OIG’s

judgment for the judgments made by the Department,

but rather sought to determine whether the decision

was based on improper considerations, including

political bias. We found no evidence that the

conclusions by the prosecutors were affected by bias or

other improper considerations; rather, we determined

that they were based on the prosecutors’ assessment of

the facts, the law, and past Department practice.

We therefore concluded that these were legal and policy

judgments involving core prosecutorial discretion that

were for the Department to make.

Discovery in September 2016 of Emails

on the Weiner Laptop

Discovery of Emails by the FBI’s New York Field Office

In September 2016, the FBI’s New York Field Office

(NYO) and the U.S. Attorney’s Office for the Southern

District of New York (SDNY) began investigating former

Congressman Anthony Weiner for his online relationship

with a minor. A federal search warrant was obtained on

September 26, 2016, for Weiner’s iPhone, iPad, and

laptop computer. The FBI obtained these devices the

same day. The search warrant authorized the

government to search for evidence relating to the

following crimes: transmitting obscene material to a

minor, sexual exploitation of children, and activities

related to child pornography.

The Weiner case agent told the OIG that he began

processing Weiner’s devices on September 26, and that

he noticed “within hours” that there were “over 300,000

emails on the laptop.” He said that either that evening

or the next morning, he saw at least one BlackBerry PIN

message between Clinton and Abedin, as well as emails

between them. He said that he recalled seeing emails

associated with “about seven domains,” such as

yahoo.com, state.gov, clintonfoundation.org,

clintonemail.com, and hillaryclinton.com. The case

agent immediately notified his NYO chain of command,

and the information was ultimately briefed to NYO

Assistant Director in Charge (ADIC) William Sweeney on

September 28.

Reporting of Emails to FBI Headquarters

As we describe in Chapter Nine of our report, Sweeney

took the following steps to notify FBI Headquarters

about the discovery of Midyear-related emails on the

Weiner laptop:

• On September 28, during a secure video

teleconference (SVTC), Sweeney reported that

Weiner investigation agents had discovered

141,000 emails on Weiner’s laptop that were

potentially relevant to the Midyear investigation.

The OIG determined that this SVTC was led by

then Deputy Director Andrew McCabe, and that

approximately 39 senior FBI executives likely

would have participated. Comey was not

present for the SVTC.

• Sweeney said he spoke again with McCabe on

the evening of September 28. Sweeney said

that during this call he informed McCabe that

NYO personnel had continued processing the

laptop and that they had now identified 347,000

emails on the laptop.

• Sweeney said he also called two FBI Executive

Assistant Directors (EAD) on September 28 and

informed them that the Weiner case team had

discovered emails relevant to the Midyear

investigation. One of the EADs told the OIG

that he then called McCabe, and that McCabe

told the EAD that he was aware of the emails.

The EAD told us that “[T]here was no doubt in

my mind when we finished that conversation

that [McCabe] understood the, the gravity of

what the find was.”

• Sweeney said he also spoke to FBI Assistant

Director E.W. “Bill” Priestap on September 28

and 29, 2016. Emails indicate that during their

conversation on September 29, they discussed

the limited scope of the Weiner search warrant

(i.e., the need to obtain additional legal process

to review any Midyear-related email on the

Weiner laptop).

Initial Response of FBI Headquarters

McCabe told the OIG that he considered the information

provided by Sweeney to be “a big deal” and said he

instructed Priestap to send a team to New York to

review the emails on the Weiner laptop. McCabe told

the OIG that he recalled talking to Comey about the

issue “right around the time [McCabe] found out about

it.” McCabe described it as a “fly-by,” where the Weiner

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laptop was “like one in a list of things that we

discussed.”

Comey said that he recalled first learning about the

additional emails on the Weiner laptop at some point in

early October 2016, although he said it was possible

this could have occurred in late September 2016.

Comey told the OIG that this information “didn’t index”

with him, which he attributed to the way the

information was presented to him and the fact that, “I

don’t know that I knew that [Weiner] was married to

Huma Abedin at the time.”

Text messages of FBI Deputy Assistant Director Peter

Strzok indicated that he, McCabe, and Priestap

discussed the Weiner laptop on September 28. Strzok

said that he had initially planned to send a team to New

York to review the emails, but a conference call with

NYO was scheduled instead. The conference call took

place on September 29, and five members of the FBI

Midyear team participated. Notes from the conference

call indicate the participants discussed the presence of a

large volume of emails (350,000) on the Weiner laptop

and specific domain names, including clintonemail.com

and state.gov. The Midyear SSA said that NYO also

mentioned seeing BlackBerry domain emails on the

Weiner laptop.

Additional discussions took place on October 3 and 4,

2016. However, after October 4, we found no evidence

that anyone associated with the Midyear investigation,

including the entire leadership team at FBI

Headquarters, took any action on the Weiner laptop

issue until the week of October 24, and then did so only

after the Weiner case agent expressed concerns to

SDNY, prompting SDNY to contact the Office of the

Deputy Attorney General (ODAG) on October 21 to raise

concerns about the lack of action.

Reengagement of FBI Headquarters

On Friday, October 21, SDNY Deputy U.S. Attorney Joon

Kim contacted ODAG and was put in touch with DAAG

George Toscas, the most senior career Department

official involved in the Midyear investigation.

Thereafter, at Toscas’s request, one of the Midyear

prosecutors called Strzok. This was the first

conversation that the FBI had with Midyear prosecutors

about the Weiner laptop.

Toscas said he asked McCabe about the Weiner laptop

on Monday, October 24, after a routine meeting

between FBI and Department leadership. McCabe told

us that this interaction with Toscas caused him to follow

up with the FBI Midyear team about the Weiner laptop

and to call McCord about the issue.

On October 26, NYO, SDNY, and Midyear team

members participated in a conference call. The FBI

Midyear team told the OIG that they learned important

new information on this call, specifically: (1) that there

was a large volume of emails on the Weiner laptop,

particularly the potential for a large number of

@clintonemail.com emails; and (2) that the presence of

Blackberry data indicated that emails from Clinton’s first

three months as Secretary of State could be present on

the laptop. However, as we describe above and in

Chapter Nine of our report, these basic facts were

known to the FBI by September 29, 2016.

The FBI Midyear team briefed McCabe about the

information from the conference call on the evening of

October 26, 2016. McCabe told us that he felt the

situation was “absolutely urgent” and proposed that the

FBI Midyear team meet with Comey the following day.

On October 27 at 5:20 a.m., McCabe emailed Comey

stating that the Midyear team “has come across some

additional actions they believe they need to take,” and

recommending that they meet that day to discuss the

implications “if you have any space on your calendar.”

Comey stated that he did not know what this email was

about when he received it and did not initially recall that

he had been previously notified about the Weiner

laptop.

We found that, by no later than September 29, FBI

executives and the FBI Midyear team had learned

virtually every fact that was cited by the FBI in late

October as justification for obtaining the search warrant

for the Weiner laptop, including that the laptop

contained:

• Over 340,000 emails, some of which were from

domains associated with Clinton, including

state.gov, clintonfoundation.org,

clintonemail.com, and hillaryclinton.com;

• Numerous emails between Clinton and Abedin;
• An unknown number of Blackberry

communications on the laptop, including one or

more messages between Clinton and Abedin,

indicating the possibility that the laptop

contained communications from the early

months of Clinton’s tenure; and

• Emails dated beginning in 2007 and covering

the entire period of Clinton’s tenure as

Secretary of State.

Viii

As we describe in Chapter Nine of our report, the

explanations we were given for the FBI’s failure to take

immediate action on the Weiner laptop fell into four

general categories:

• The FBI Midyear team was waiting for additional

information about the contents of the laptop

from NYO, which was not provided until late

October;

• The FBI Midyear team could not review the

emails without additional legal authority, such

as consent or a new search warrant;

• The FBI Midyear team and senior FBI officials

did not believe that the information on the

laptop was likely to be significant; and

• Key members of the FBI Midyear team had been

reassigned to the investigation of Russian

interference in the U.S. election, which was a

higher priority.

We found these explanations to be unpersuasive

justifications for not acting sooner, given the FBI

leadership’s conclusion about the importance of the

information and that the FBI Midyear team had

sufficient information to take action in early October

and knew at that time that it would need a new search

warrant to review any Clinton-Abedin emails.

Moreover, given the FBI’s extensive resources, the fact

that Strzok and several other FBI members of the

Midyear team had been assigned to the Russia

investigation, which was extremely active during this

September and October time period, was not an excuse

for failing to take any action during this time period on

the Weiner laptop.

The FBI’s failure to act in late September or early

October is even less justifiable when contrasted with

the attention and resources that FBI management and

some members of the Midyear team dedicated to other

activities in connection with the Midyear investigation

during the same period. As detailed in Chapter Eight,

these activities included:

• The preparation of Comey’s speech at the FBI’s

SAC Conference on October 12, a speech

designed to help equip SACs to “bat down”

misinformation about the July 5 declination

decision;

• The preparation and distribution of detailed

talking points to FBI SACs in mid-October in

order, again, “to equip people who are going to

be talking about it anyway with the actual facts

and [the FBI’s] actual perspective on [the

declination]”; and

• A briefing for retired FBI agents conducted on

October 21 to describe the investigative

decisions made during Midyear so as to arm

former employees with facts so that they, too,

might counter “falsehoods and exaggerations.”

In assessing the decision to prioritize the Russia

investigation over following up on the Midyear-related

investigative lead discovered on the Weiner laptop, we

were particularly concerned about text messages sent

by Strzok and Page that potentially indicated or created

the appearance that investigative decisions they made

were impacted by bias or improper considerations.

Most of the text messages raising such questions

pertained to the Russia investigation, and the

implication in some of these text messages, particularly

Strzok’s August 8 text message (“we’ll stop” candidate

Trump from being elected), was that Strzok might be

willing to take official action to impact a presidential

candidate’s electoral prospects. Under these

circumstances, we did not have confidence that Strzok’s

decision to prioritize the Russia investigation over

following up on the Midyear-related investigative lead

discovered on the Weiner laptop was free from bias.

We searched for evidence that the Weiner laptop was

deliberately placed on the back-burner by others in the

FBI to protect Clinton, but found no evidence in emails,

text messages, instant messages, or documents that

suggested an improper purpose. We also took note of

the fact that numerous other FBI executives—including

the approximately 39 who participated in the

September 28 SVTC—were briefed on the potential

existence of Midyear-related emails on the Weiner

laptop. We also noted that the Russia investigation was

under the supervision of Priestap—for whom we found

no evidence of bias and who himself was aware of the

Weiner laptop issue by September 29. However, we

also did not identify a consistent or persuasive

explanation for the FBI’s failure to act for almost a

month after learning of potential Midyear-related emails

on the Weiner laptop.

The FBI’s inaction had potentially far-reaching

consequences. Comey told the OIG that, had he known

about the laptop in the beginning of October and

thought the email review could have been completed

before the election, it may have affected his decision to

notify Congress. Comey told the OIG, “I don’t know [if]

it would have put us in a different place, but I would

have wanted to have the opportunity.”

Ix

Comey’s Decision to Notify Congress on

October 28

Following the briefing from the FBI Midyear team on

October 27, 2016, Comey authorized the Midyear team

to seek a search warrant, telling the OIG that “the

volume of emails” and the presence of BlackBerry

emails on the Weiner laptop were “two highly significant

facts.” As we describe in Chapter Thirteen of our

report, McCabe joined this meeting by phone but was

asked not to participate, and subsequently recused

himself from the Midyear investigation on November 1,

2016.

The issue of notifying Congress of the Weiner laptop

development was first raised at the October 27 briefing

and, over the course of the next 24 hours, numerous

additional discussions occurred within the FBI. As we

describe in Chapter Ten of our report, the factors

considered during those discussions included:

• Comey’s belief that failure to disclose the

existence of the emails would be an act of

concealment;

• The belief that Comey had an obligation to

update Congress because the discovery was

potentially significant and made his prior

testimony that the investigation was closed no

longer true;

• An implicit assumption that Clinton would be

elected President;

• Fear that the information would leak if the FBI

failed to disclose it;

• Concern that failing to disclose would result in

accusations that the FBI had “engineered a

cover up” to help Clinton get elected;

• Concerns about protecting the reputation of the

FBI;

• Concerns about the perceived illegitimacy of a

Clinton presidency that would follow from a

failure to disclose the discovery of the emails if

they proved to be significant;

• Concerns about the electoral impact of any

announcement; and

• The belief that the email review could not be

completed before the election.

As a result of these discussions on October 27, Comey

decided to notify Congress about the discovery of

Midyear-related emails on the Weiner laptop. Comey

told us that, although he “believe[d] very strongly that

our rule should be, we don’t comment on pending

investigations” and that it was a “very important norm”

for the Department to avoid taking actions that could

impact an imminent election, he felt he had an

obligation to update Congress because the email

discovery was potentially very significant and it made

his prior testimony no longer true.

We found no evidence that Comey’s decision to send

the October 28 letter was influenced by political

preferences. Instead, we found that his decision was

the result of several interrelated factors that were

connected to his concern that failing to send the letter

would harm the FBI and his ability to lead it, and his

view that candidate Clinton was going to win the

presidency and that she would be perceived to be an

illegitimate president if the public first learned of the

information after the election. Although Comey told us

that he “didn’t make this decision because [he] thought

it would leak otherwise,” several FBI officials told us

that the concern about leaks played a role in the

decision.

Much like with his July 5 announcement, we found that

in making this decision, Comey engaged in ad hoc

decisionmaking based on his personal views even if it

meant rejecting longstanding Department policy or

practice. We found unpersuasive Comey’s explanation

as to why transparency was more important than

Department policy and practice with regard to the

reactivated Midyear investigation while, by contrast,

Department policy and practice were more important to

follow with regard to the Clinton Foundation and Russia

investigations.

Comey’s description of his choice as being between

“two doors,” one labeled “speak” and one labeled

“conceal,” was a false dichotomy. The two doors were

actually labeled “follow policy/practice” and “depart

from policy/practice.” Although we acknowledge that

Comey faced a difficult situation with unattractive

choices, in proceeding as he did, we concluded that

Comey made a serious error of judgment.

Department and FBI Leadership Discussions

On October 27, Comey instructed his Chief of Staff,

James Rybicki, to reach out to the Department about

his plan to notify Congress. As we describe in Chapter

Ten of our report, Comey told the OIG that he decided

to ask Rybicki to inform the Department rather than to

contact Lynch or Yates directly because he did not

“want to jam them and I wanted to offer them the

x

wanted to be engaged on it.” Rybicki and Axelrod

spoke on the afternoon of October 27 and had “a series

of phone calls” the rest of the day. Rybicki told Axelrod

that Comey believed he had an obligation to notify

Congress about the laptop in order to correct a

misimpression that the Midyear investigation was

closed.

Lynch, Yates, Axelrod, and their staffs had several

discussions that same day as to whether Lynch or Yates

should call Comey directly, but said they ultimately

decided to have Axelrod communicate “the strong view

that neither the DAG nor [AG] felt this letter should go

out.” Yates told us they were concerned that direct

contact with Comey would be perceived as “strongarming”

him, and that based on her experience with

Comey, he was likely to “push back hard” against input

from Lynch or her, especially if accepting their input

meant that he had to go back to his staff and explain

that he was reversing his decision. She said that she

viewed Rybicki as the person they needed to convince if

they wanted to change Comey’s mind. Accordingly,

Axelrod informed Rybicki on October 27 of the

Department’s strong opposition to Comey’s plan to send

a letter.

Rybicki reported to Comey that the Department

“recommend[ed] against” the Congressional notification

and thought it was “a bad idea.” Although Comey told

us that he would not have sent the letter if Lynch or

Yates had told him not to do so, he said he viewed their

response as only a recommendation and interpreted

their lack of direct engagement as saying “basically…it’s

up to you…. I honestly thought they were taking kind

of a cowardly way out.” The following day, October 28,

Comey sent a letter to Congress stating, in part, that

“the FBI has learned of the existence of emails that

appear to be pertinent to the [Midyear] investigation.”

Comey, Lynch, and Yates faced difficult choices in late

October 2016. However, we found it extraordinary that

Comey assessed that it was best that the FBI Director

not speak directly with the Attorney General and

Deputy Attorney General about how best to navigate

this most important decision and mitigate the resulting

harms, and that Comey’s decision resulted in the

Attorney General and Deputy Attorney General

concluding that it would be counterproductive to speak

directly with the FBI Director. We believe that open and

candid communication among leaders in the

Department and its components is essential for the

effective functioning of the Department.

Text and Instant Messages, Use of

Personal Email, and Alleged Improper

Disclosures of Non-Public Information

Text Messages and Instant Messages

As we describe in Chapter Twelve, during our review we

identified text messages and instant messages sent on

FBI mobile devices or computer systems by five FBI

employees who were assigned to the Midyear

investigation. These included:

• Text messages exchanged between Strzok and

Page;

• Instant messages exchanged between Agent 1,

who was one of the four Midyear case agents,

and Agent 5, who was a member of the filter

team; and

• Instant messages sent by FBI Attorney 2, who

was assigned to the Midyear investigation.

The text messages and instant messages sent by these

employees included statements of hostility toward then

candidate Trump and statements of support for

candidate Clinton, and several appeared to mix political

opinions with discussions about the Midyear

investigation.

We found that the conduct of these five FBI employees

brought discredit to themselves, sowed doubt about the

FBI’s handling of the Midyear investigation, and

impacted the reputation of the FBI. Although our

review did not find documentary or testimonial evidence

directly connecting the political views these employees

expressed in their text messages and instant messages

to the specific investigative decisions we reviewed in

Chapter Five, the conduct by these employees cast a

cloud over the FBI Midyear investigation and sowed

doubt the FBI’s work on, and its handling of, the

Midyear investigation. Moreover, the damage caused

by their actions extends far beyond the scope of the

Midyear investigation and goes to the heart of the FBI’s

reputation for neutral factfinding and political

independence.

We were deeply troubled by text messages exchanged

between Strzok and Page that potentially indicated or

created the appearance that investigative decisions

were impacted by bias or improper considerations.

Most of the text messages raising such questions

pertained to the Russia investigation, which was not a

part of this review. Nonetheless, when one senior FBI

official, Strzok, who was helping to lead the Russia

xi

investigation at the time, conveys in a text message to

another senior FBI official, Page, “No. No he won’t.

We’ll stop it” in response to her question “[Trump’s] not

ever going to become president, right? Right?!”, it is

not only indicative of a biased state of mind but, even

more seriously, implies a willingness to take official

action to impact the presidential candidate’s electoral

prospects. This is antithetical to the core values of the

FBI and the Department of Justice.

We do not question that the FBI employees who sent

these messages are entitled to their own political views.

However, we believe using FBI devices to send the

messages discussed in Chapter Twelve—particularly the

messages that intermix work-related discussions with

political commentary—potentially implicate provisions in

the FBI’s Offense Code and Penalty Guidelines. At a

minimum, we found that the employees’ use of FBI

systems and devices to send the identified messages

demonstrated extremely poor judgment and a gross

lack of professionalism. We therefore refer this

information to the FBI for its handling and consideration

of whether the messages sent by the five employees

listed above violated the FBI’s Offense Code of Conduct.

Use of Personal Email

As we also describe in Chapter Twelve, we learned

during the course of our review that Comey, Strzok,

and Page used their personal email accounts to conduct

FBI business.

We identified numerous instances in which Comey used

a personal email account to conduct unclassified FBI

business. We found that, given the absence of exigent

circumstances and the frequency with which the use of

personal email occurred, Comey’s use of a personal

email account for unclassified FBI business to be

inconsistent with Department policy.

We found that Strzok used his personal email accounts

for official government business on several occasions,

including forwarding an email from his FBI account to

his personal email account about the proposed search

warrant the Midyear team was seeking on the Weiner

laptop. This email included a draft of the search

warrant affidavit, which contained information from the

Weiner investigation that appears to have been under

seal at the time in the Southern District of New York

and information obtained pursuant to a grand jury

subpoena issued in the Eastern District of Virginia in the

Midyear investigation. We refer to the FBI the issue of

whether Strzok’s use of personal email accounts

violated FBI and Department policies.

Finally, when questioned, Page also told us she used

personal email for work-related matters at times. She

stated that she and Strzok sometimes used these

forums for work-related discussions due to the technical

limitations of FBI-issued phones. Page left the FBI on

May 4, 2018.

Improper Disclosure of Non-Public Information

As we also describe in Chapter Twelve, among the

issues we reviewed were allegations that Department

and FBI employees improperly disclosed non-public

information regarding the Midyear investigation.

Although FBI policy strictly limits the employees who

are authorized to speak to the media, we found that

this policy appeared to be widely ignored during the

period we reviewed.

We identified numerous FBI employees, at all levels of

the organization and with no official reason to be in

contact with the media, who were nevertheless in

frequent contact with reporters. Attached to this report

as Attachments E and F are two link charts that reflect

the volume of communications that we identified

between FBI employees and media representatives in

April/May and October 2016. We have profound

concerns about the volume and extent of unauthorized

media contacts by FBI personnel that we have

uncovered during our review.

In addition, we identified instances where FBI

employees improperly received benefits from reporters,

including tickets to sporting events, golfing outings,

drinks and meals, and admittance to nonpublic social

events. We will separately report on those

investigations as they are concluded, consistent with

the Inspector General Act, other applicable federal

statutes, and OIG policy.

The harm caused by leaks, fear of potential leaks, and a

culture of unauthorized media contacts is illustrated in

Chapters Ten and Eleven of our report, where we detail

the fact that these issues influenced FBI officials who

were advising Comey on consequential investigative

decisions in October 2016. The FBI updated its media

policy in November 2017, restating its strict guidelines

concerning media contacts, and identifying who is

required to obtain authority before engaging members

of the media, and when and where to report media

contact. We do not believe the problem is with the

FBI’s policy, which we found to be clear and

unambiguous. Rather, we concluded that these leaks

highlight the need to change what appears to be a

cultural attitude among many in the organization.

Xii

Recusal Issues

Former Deputy Director Andrew McCabe: As we

describe in Chapter Thirteen, in 2015, McCabe’s spouse,

Dr. Jill McCabe, ran for a Virginia State Senate seat.

During the campaign, Dr. McCabe’s campaign

committee received substantial monetary and in-kind

contributions, totaling $675,288 or approximately 40

percent of the total contributions raised by Dr. McCabe

for her state senate campaign, from then Governor

McAuliffe’s Political Action Committee (PAC) and from

the Virginia Democratic Party. In addition, on June 26,

2015, Hillary Clinton was the featured speaker at a

fundraiser in Virginia hosted by the Virginia Democratic

Party and attended by Governor McAuliffe.

At the time his wife sought to run for state senate,

McCabe was the Assistant Director in Charge of the

FBI’s Washington Field Office (WFO) and sought ethics

advice from FBI ethics officials and attorneys. We

found that FBI ethics officials and attorneys did not fully

appreciate the potential significant implications to

McCabe and the FBI from campaign donations to Dr.

McCabe’s campaign. The FBI did not implement any

review of campaign donations to assess potential

conflicts or appearance issues that could arise from the

donations. On this issue, we believe McCabe did what

he was supposed to do by notifying those responsible in

the FBI for ethics issues and seeking their guidance.

After McCabe became FBI Deputy Director in February

2016, McCabe had an active role in the supervision of

the Midyear investigation, and oversight of the Clinton

Foundation investigation, until he recused himself from

these investigations on November 1, 2016. McCabe

voluntarily recused himself on November 1, at Comey’s

urging, as the result of an October 23 article in the Wall

Street Journal identifying the substantial donations from

McAuliffe’s PAC and the Virginia Democratic Party to Dr.

McCabe.

With respect to these investigations, we agreed with the

FBI’s chief ethics official that McCabe was not at any

time required to recuse under the relevant authorities.

However, voluntary recusal is always permissible with

the approval of a supervisor or ethics official, which is

what McCabe did on November 1. Had the FBI put in

place a system for reviewing campaign donations to Dr.

McCabe, which were public under Virginia law, the

sizable donations from McAuliffe’s PAC and the Virginia

Democratic Party may have triggered prior

consideration of the very appearance concerns raised in

the October 23 WSJ article. Finally, we also found that

McCabe did not fully comply with this recusal in a few

instances related to the Clinton Foundation

investigation.

Former Assistant Attorney General Peter Kadzik:

In Chapter Fourteen, we found that Kadzik

demonstrated poor judgment by failing to recuse

himself from Clinton-related matters under federal

ethics regulations prior to November 2, 2016. Kadzik

did not recognize the appearance of a conflict that he

created when he initiated an effort to obtain

employment for his son with the Clinton campaign while

participating in Department discussions and

communications about Clinton-related matters.

Kadzik also created an appearance of a conflict when he

sent the Chairman of the Clinton Campaign and a

longtime friend, John Podesta, the “Heads up” email

that included the schedule for the release of former

Secretary Clinton’s emails proposed to the court in a

FOIA litigation without knowing whether the information

had yet been filed and made public. His willingness to

do so raised a reasonable question about his ability to

act impartially on Clinton-related matters in connection

with his official duties.

Additionally, although Department leadership

determined that Kadzik should be recused from Clintonrelated

matters upon learning of his “Heads up” email

to Podesta, we found that Kadzik failed to strictly

adhere to this recusal. Lastly, because the government

information in the “Heads up” email had in fact been

released publically, we did not find that Kadzik released

non-public information or misused his official position.

FBI Records Vault Twitter

Announcements

As we describe in Chapter Fifteen, on November 1,

2016, in response to multiple FOIA requests, the FBI

Records Management Division (RMD) posted records to

the FBI Records Vault, a page on the FBI’s public

website, concerning the “William J. Clinton Foundation.”

The @FBIRecordsVault Twitter account announced this

posting later the same day. We concluded that these

requests were processed according to RMD’s internal

procedures like other similarly-sized requests, and

found no evidence that the FOIA response was

expedited or delayed in order to impact the 2016

presidential election. We also found no evidence that

improper political considerations influenced the FBI’s

use of the Twitter account to publicize the release

xiii

Recommendations

Our report makes nine recommendations to the

Department and the FBI to assist them in addressing

the issues that we identified in this review:

• We recommend that the Department and the

FBI consider developing guidance that identifies

the risks associated with and alternatives to

permitting a witness to attend a voluntary

interview of another witness (including in the

witness’s capacity as counsel).

• We recommend that the Department consider

making explicit that, except in situations where

the law requires or permits disclosure, an

investigating agency cannot publicly announce

its recommended charging decision prior to

consulting with the Attorney General, Deputy

Attorney General, U.S. Attorney, or his or her

designee, and cannot proceed without the

approval of one of these officials.

• We recommend that the Department and the

FBI consider adopting a policy addressing the

appropriateness of Department employees

discussing the conduct of uncharged individuals

in public statements.

• We recommend that the Department consider

providing guidance to agents and prosecutors

concerning the taking of overt investigative

steps, indictments, public announcements, or

other actions that could impact an election.

• We recommend that the Office of the Deputy

Attorney General take steps to improve the

retention and monitoring of text messages

Department-wide.

• We recommend that the FBI add a warning

banner to all of the FBI’s mobile phones and

devices in order to further notify users that they

have no reasonable expectation of privacy.

• We recommend that the FBI consider (a)

assessing whether it has provided adequate

training to employees about the proper use of

text messages and instant messages, including

any related discovery obligations, and (b)

providing additional guidance about the

allowable uses of FBI devices for any nongovernmental

purpose, including guidance

about the use of FBI devices for political

conversations.

• We recommend that the FBI consider whether

(a) it is appropriately educating employees

about both its media contact policy and the

Department’s ethics rules pertaining to the

acceptance of gifts, and (b) its disciplinary

provisions and penalties are sufficient to deter

such improper conduct.

• We recommend that Department ethics officials

include the review of campaign donations for

possible conflict issues when Department

employees or their spouses run for public office

xiv