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 ONE:

INTRODUCTION

1. Background

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 Department in connection with the investigation into the use of a private email server by former Secretary of State Hillary Clinton. Clinton served as Secretary of State from January 21, 2009, until February 1, 2013, and during that time used private email servers hosting the @clintonemail.com domain to conduct official Department of State (State Department) business.

In 2014, in response to a request from the State Department to Clinton for “copies of any Federal records in [her] possession, such as emails sent or received on a personal email account while serving as Secretary of State,” Clinton produced to the State Department 30,490 emails from her private server that her attorneys determined were work-related. Clinton and her attorneys did not produce to the State Department approximately 31,830 emails because, they stated, they were personal in nature, and these emails subsequently were deleted from the laptop computers that the attorneys used to review them.

In 2015, at the State Department’s request, the Office of the Inspector General of the Intelligence Community (IC IG) reviewed emails from Clinton’s private email server that she had produced to the State Department and identified a potential compromise of classified information. The IC IG subsequently referred this information to the FBI.

The FBI opened an investigation, known as “Midyear Exam” (MYE or Midyear), into the storage and transmission of classified information on Clinton’s unclassified private servers in July 2015. Over the course of the next year, FBI agents and analysts and Department prosecutors conducted the investigation. Their activities included obtaining and analyzing servers and devices used by Clinton, contents of private email accounts for certain senior aides, and computers and email accounts used to back up, process, or transfer Clinton’s emails. The investigative team interviewed numerous witnesses, including current and former State Department employees.

On June 27, 2016, while the Midyear investigation was nearing completion, then Attorney General (AG) Loretta Lynch and former President Bill Clinton had an unscheduled meeting while their planes were parked on the tarmac at Phoenix’s Sky Harbor Airport. Former President Clinton boarded Lynch’s plane, and Lynch, Lynch’s husband, and the former President met for approximately 20 to 30 minutes. Following the meeting, Lynch publicly denied having any conversation about the Midyear investigation or any other substantive matter pending before the Department. Nevertheless, the meeting created significant controversy. On July 1, 2016, Lynch publicly announced that she would accept the recommendation of the Midyear investigative and prosecutorial team regarding whether to charge former Secretary Clinton.

The following day, Saturday, July 2, 2016, the FBI and Department prosecutors interviewed former Secretary Clinton at the FBI’s Headquarters building. Then, on July 5, 2016, without coordinating with the Department and with very brief notice to it, then FBI Director James Comey publicly delivered a statement that criticized Clinton, characterized her and her senior aides as “extremely careless” in their handling of classified information, and asserted that it was possible hostile actors gained access to Clinton’s personal email account. Comey concluded, however, that the investigation should be closed because “no reasonable prosecutor” would prosecute Clinton or others, citing the strength of the evidence and the lack of precedent for bringing a case on these facts. The following day, July 6, 2016, Lynch was briefed by the prosecutors and formally accepted their recommendation to decline prosecution.

On October 28, 2016, 11 days before the presidential election, Comey sent a letter to Congress announcing the discovery of emails that “appear[ed] to be pertinent” to the Midyear investigation. Comey’s letter was referring to the FBI’s discovery of a large quantity of emails during the search of a laptop computer obtained in an unrelated investigation of Anthony Weiner, the husband of Clinton’s former Deputy Chief of Staff and personal assistant, Huma Abedin.

The FBI obtained a search warrant to review the emails 2 days later, on October 30, 2016. Over the next 6 days, the FBI processed and reviewed a large volume of emails. On November 6, 2016, 2 days before the election, Comey sent a second letter to Congress stating that the review of the emails on the laptop had not changed the FBI’s earlier conclusions with respect to Clinton.

The OIG initiated this review on January 12, 2017, in response to requests from numerous Chairmen and Ranking Members of Congressional oversight committees, various organizations, and members of the public to investigate various decisions made in the Midyear investigation. The OIG announced that it would review the following issues:

• Allegations that Department or FBI policies or procedures were not followed in connection with, or in actions leading up to or related to, Comey’s public announcement on July 5, 2016, and Comey’s letters to Congress on October 28 and November 6, 2016, and that certain underlying 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 then Assistant Attorney General for the Department’s Office of Legislative Affairs, Peter Kadzik, improperly disclosed non-public information to the Clinton campaign and/or should have been recused from participating in certain matters;
• Allegations that Department and FBI employees improperly disclosed non-public information; 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 the same, were influenced by improper considerations.

The OIG announcement added that “if circumstances warrant, the OIG will consider including other issues that may arise during the course of the review.” One such issue that the OIG added to the scope of this review arose from the discovery of text messages and instant messages between some FBI employees on the investigative team, conducted using FBI mobile devices and computers, that expressed statements of hostility toward then candidate Donald Trump and statements of support for then candidate Clinton, as well as comments about the handling of the Midyear investigation. We addressed whether these communications evidencing a potential bias affected investigative decisions in the Midyear investigation.

This review is separate from the review the OIG announced on March 28, 2018, concerning the Department’s and FBI’s compliance with legal requirements, and with applicable Department and FBI policies and procedures, in applications filed with the U.S. Foreign Intelligence Surveillance Court (FISC) relating to a certain U.S. person. We will issue a separate report relating to those issues when our investigative work is complete at a future date.

1. Methodology

During the course of this investigation, the OIG interviewed more than 100 witnesses, several on more than one occasion. These included former Director Comey, former AG Lynch, former Deputy Attorney General (DAG) Sally Yates, members of the former AG’s and DAG’s staffs, FBI agents and supervisors and Department attorneys and supervisors who conducted the Midyear investigation, personnel from the FBI’s New York Field Office (NYO) and the U.S. Attorney’s Office for the Southern District of New York (SDNY) involved in the Anthony Weiner investigation, former and current members of the FBI’s senior executive leadership, and former President Clinton.

All of the former Department and FBI officials we contacted to request interviews related to the Midyear investigation agreed to be interviewed. However, two witnesses with whom we requested interviews in connection with our review of whether Peter Kadzik, the former Assistant Attorney General for the Department’s Office of Legislative Affairs (OLA), should have been recused from certain matters declined our request for an interview or were unable to schedule an interview.

We also reviewed significantly more than 1.2 million documents. Among these were FBI documents from the Midyear investigation, including electronic communications (EC) and interview reports (FD-302s), agent notes from witness interviews, draft and final versions of the letterhead memorandum (LHM) summarizing the Midyear investigation, drafts of Comey’s public statement and letters to Congress, and contemporaneous notes from agents and supervisors involved in meetings about the statement and letters to Congress. We also obtained documents from prosecutors and supervisors in the Department’s National Security Division (NSD) and the U.S. Attorney’s Office for the Eastern District of Virginia (EDVA), as well as the Office of the Deputy Attorney General (ODAG) and the Office of the Attorney General (OAG). Importantly, among these documents were contemporaneous notes from the prosecutors and supervisors involved in the investigation.

In connection with our efforts to investigate the circumstances surrounding the FBI’s discovery of Midyear-related emails on Anthony Weiner’s laptop computer and Comey’s notification to Congress on October 28, 2016, we obtained documents from NYO and SDNY personnel. These documents included forensic logs from processing of the Weiner laptop by NYO Computer Analysis and Recovery Team (CART) personnel, NYO and SDNY communications about the discovery of the emails, and other documents.

We obtained communications between and among agents, prosecutors, supervisors, and FBI and Department officials to understand what happened during the investigation and identify the contemporaneous factors considered in making investigative decisions. In addition to a large volume of emails, we obtained and reviewed well in excess of 100,000 text messages and instant messages to or from FBI personnel who worked on the investigation.

Our review also included the examination of highly classified information. We were given broad access to relevant materials by the Department and the FBI, including the sensitive compartmented information (SCI) discussed in the classified appendix to this report and emails and instant messages from both the FBI’s Top Secret SCINet system and Secret FBINet system. Several of the State Department emails between Secretary Clinton and her staff from the underlying Midyear investigation included information relevant to a tightly-held Special Access Program (SAP), and we did not seek or obtain the required read-ins for that program. Based on our review of emails containing redacted SAP and the FBI’s explanation of the program, we determined that this information was not needed for us to make the findings in this report.

Finally, and as discussed in more detail below, our review included information obtained in the Midyear investigation and the Anthony Weiner child exploitation investigation pursuant to grand jury subpoenas and sealed search warrants. At the Inspector General’s request, the Department sought court orders authorizing the release of sealed information that does not otherwise affect individual privacy interests so that we can include relevant information in this report. This information is included in the report where appropriate.

III. Analytical Construct

As noted above, the OIG undertook this review to determine, among other things, whether “certain investigative decisions [taken in connection with the Midyear investigation] were based on improper considerations,” including political bias or concerns for personal gain. In conducting this portion of our review, it was necessary to select particular investigative decisions for focused attention. It would not have been possible to recreate and analyze every decision made in a year-long complex investigation. We therefore identified particular case decisions or other incidents which were the subject of controversy. These included the use of consent agreements and voluntary interviews to obtain evidence; grants of immunity to witnesses; and the decision to allow Cheryl Mills and Heather Samuelson, two of former Secretary Clinton’s attorneys, to attend her interview.

During our investigation, we looked for direct evidence of improper considerations, such as contemporaneous statements in emails, memoranda, or other documents explicitly linking political or other improper considerations to specific investigative decisions. We likewise questioned witnesses about whether they had direct evidence of improper considerations affecting decisionmaking. As noted above, we reviewed significantly more than 1.2 million emails, text messages, and internal documents relating to the investigation, and interviewed more than 100 witnesses who were involved in the matter.

We also analyzed the justifications offered for the investigative decisions we selected for focused review (including contemporaneous justifications and those offered after the fact) to determine whether they were a pretext for improper, but unstated, considerations. We conducted this assessment with appreciation for the fact that Department and FBI officials were required to make numerous decisions involving complex matters daily, under the unusual pressures and challenges present in the Midyear investigation.

In the January 12, 2017 memorandum announcing this review, we stated, “Our review will not substitute the OIG’s judgment for the judgments made by the FBI or the Department regarding the substantive merits of investigative or prosecutive decisions.” Consistent with this statement, we do not criticize particular decisions or infer that they were influenced by improper considerations merely because we might have recommended a different investigative strategy or tactic based on the facts learned during our investigation. The question we considered was not whether a particular investigative decision was perfect or ideal or one that we believed could have been handled more effectively, but whether the circumstances surrounding the decision indicated that it was based on considerations other than the merits of the investigation. If the explanations that we were given for a particular decision were consistent with a rational investigative strategy and not unreasonable, we did not conclude that the decision was based on improper considerations in the absence of evidence to the contrary. 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.

We applied this same standard as we reviewed and considered the Department’s declination decision, the letterhead memorandum (LHM) summarizing the investigation, and contemporaneous emails and notes reflecting analysis and discussion of legal research conducted by the prosecutors.

1. Structure of the Report

This report is divided into sixteen chapters.

Following this introduction,

Chapter Two summarizes the relevant Department policies governing the release of information to the public and to Congress and the conduct of criminal investigations, as well as the relevant statutes regarding the mishandling of classified information that provided the legal framework for the Midyear investigation.

In Chapter Three, we provide an overview of the Midyear investigation, including decisions about staffing and investigative strategy.

In Chapter Four, we discuss the decision to publicly acknowledge the Midyear investigation and former President Obama’s statements about the Midyear investigation.

In Chapter Five, we discuss the conduct of the investigation, focusing on the significant investigative decisions that were subject to criticism by Congress and the public after the fact.

In Chapters Six and Seven, we describe the events leading to former Director Comey’s July 5 statement and the Department’s decision to decline prosecution of former Secretary Clinton.

Chapters Eight through Eleven provide a chronology of events between the FBI’s discovery of Clinton-related emails on the Weiner laptop in late September 2016 and Comey’s letter to Congress on October 28, 2016, and describe the FBI’s analysis of those emails and letter to Congress on November 6, 2016.

Chapter Twelve describes the text messages and instant messages expressing political views we obtained between certain FBI employees involved in the Midyear investigation and provides the employees’ explanations for those messages. It also briefly discusses the use of personal email by several FBI employees, and provides an update on the status of the OIG’s leak investigations.

Chapters Thirteen and Fourteen address allegations that then Deputy Director Andrew McCabe and then Assistant Attorney General Peter Kadzik should have been recused from participating in certain matters, or violated the terms of their recusals.

Chapter Fifteen addresses allegations that the timing of the FBI’s release of FOIA documents and its use of Twitter to publicize the release were influenced by improper considerations or were otherwise improper.

Chapter Sixteen includes our conclusions and recommendations.

We also include a non-public classified appendix, which discusses highly classified information relevant to the Midyear investigation (Appendix One), and a non-public Law Enforcement Sensitive (LES) appendix containing the complete, unmodified version of Chapter Thirteen (Appendix Two).

We are providing copies of our unclassified report and the classified appendix to Congress, and are publicly releasing our report without these appendices. We also are providing copies of our unclassified report to the Office of Special Counsel (OSC) for its consideration.