THE CLINTON EMAIL SCANDAL AND THE FBI’S INVESTIGATION OF IT
February 8th, 2018 7:56 pm     A+ | a-

THE CLINTON EMAIL SCANDAL AND THE FBI’S INVESTIGATION OF IT


An Interim Report


A Majority Staff Report of the

Committee on Homeland Security and Governmental Affairs United States Senate

Senator Ron Johnson, Chairman

February 7, 2018


 Executive Summary

Given the recent interest in Congress’s and this Committee’s oversight of the Federal Bureau of Investigation (FBI) and the FBI’s investigation of classified information on former Secretary of State Hillary Clinton’s private email server, this interim majority staff report serves as an update on actions we have taken and what we have learned to date. As the Committee continues to investigate, Chairman Johnson has requested additional documents and materials from the Justice Department.

The FBI is the nation’s premier law enforcement agency, and it is crucial that the public has full faith and confidence in its integrity and impartiality. Unfortunately, a number of actions taken by high-level FBI officials have legitimately called both into question.

Over the course of almost three years, since March 2015, Chairman Johnson has diligently utilized oversight letters in the Committee’s attempt to obtain relevant information. The Committee has never held a hearing because the Chairman was not interested in creating a media frenzy show trial. Chairman Johnson simply wanted to get the facts, establish the truth, and hold people accountable.

Following the November 2016 election, President-elect Trump announced that his Justice Department would not pursue any further action against former Secretary Clinton—the voters had held her accountable.1 Chairman Johnson agreed with this decision and considered the matter closed.

However, because of the Justice Department and the FBI’s unusual management of the investigation and intrusion into the electoral process, charges of politicization arose from both sides of the political spectrum. The Office of Special Counsel ultimately initiated a Hatch Act investigation into FBI Director James Comey’s public statements about the Clinton investigation.2 The Justice Department Office of Inspector General (DOJ OIG) also initiated an investigation into Director Comey’s actions.3

The DOJ OIG’s investigation led to the discovery of the text message exchanges between FBI Deputy Assistant Director of the Counterintelligence Division Peter Strzok and FBI attorney Lisa Page. When presented with the content of these text messages, Special Counsel Robert Mueller immediately dismissed DAD Strzok from his investigative team.4

The Committee was not notified of the text messages between Strzok and Page by an official federal government source, but only learned of them from news reports. On December 6, 2017, Chairman Johnson and Chairman Grassley sent a letter to the Department of Justice

1 See Julie Hirschfeld & Michael D. Shear, Donald Trump drops threat of new Hillary Clinton investigation, N.Y. Times (Nov. 22, 2016).

2 Off. of Special Counsel, Complaint No. HA-17-0515.

3 Dep’t of Justice Off. of Inspector Gen., DOJ OIG Announces Initiation of Review (Jan. 12, 2017).

4 See Kathryn Watson, FBI agent suspected of sending anti-Trump texts removed from Mueller team, CBS News (Dec. 2, 2017).

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requesting the text messages. The Justice Department produced a first tranche of text messages on December 12, 2017, and a second tranche on January 19, 2018.5

Although sometimes cryptic and disjointed due to their nature, these text messages raise several questions about the FBI and its investigation of classified information on Secretary Clinton’s private email server. Strzok and Page discussed serving to “protect the country from the menace” of Trump “enablers,” and the possibility of an “insurance policy” against the “risk” of a Trump presidency. The two discussed then-Attorney General Loretta Lynch knowing that Secretary Clinton would not face charges—before the FBI had interviewed Secretary Clinton and before her announcement that she would accept Director Comey’s prosecution decision. They wrote about drafting talking points for then-Director Comey because President Obama “wants to know everything we’re doing.” Strzok and Page also exchanged views about the investigation on possible Russian collusion with the Trump campaign—calling it “unfinished business” and “an investigation leading to impeachment,” drawing parallels to Watergate, and expressing Strzok’s “gut sense and concern there’s no big there there.”

The text messages raise several important questions that deserve further examination:

Whether, and the extent to which, any personal animus and/or political bias influenced the FBI’s investigation;

Whether, and the extent to which, the Obama Department of Justice or White House influenced the FBI’s investigation; and

Whether, and the extent to which, any personal animus and/or political bias influenced the FBI’s actions with respect to President Trump.

This report is not intended to answer these questions, but to demonstrate that the information received warrants further inquiry to examine possible bias and wrongdoing within the FBI and the Justice Department. Any serious and impartial reader of this material should find it hard to deny the need for further inquiry.

The Committee, as the chief oversight committee of the Senate, has a responsibility to promote transparency and accountability throughout the federal government. The FBI and Justice Department are no exceptions—two critical institutions that must be above reproach from even the perception of bias. Due to the seriousness of the issues and the institutions involved, the Committee must carry out this obligation in parallel with the ongoing inquiry of the DOJ OIG and other congressional inquiries. Americans of all political stripes must have complete faith that federal law-enforcement agencies are, and will remain, independent, apolitical, and unbiased.

5 Letter from Stephen Boyd, Dep’t of Justice, to Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs (Jan. 19, 2018) [hereinafter “Jan. 19th Boyd letter”]; Letter from Stephen Boyd, Dep’t of Justice, to Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs (Dec. 12, 2017) [hereinafter “Dec. 12th Boyd letter”].

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Although the Committee’s work continues, this staff report highlights some of what has been learned and some of the key pieces of information received to date. In the interest of transparency, this staff report includes appendices with letters sent by Chairman Johnson as a part of the Committee’s oversight, documents cited in the report, and text messages received by the Committee. A central component of the Committee’s mission is promoting a more efficient, effective, and accountable government. Unlike prosecutors who enforce laws or inspectors general who make recommendations, the Committee pursues oversight with the goal of full transparency in order to promote public awareness and confidence in federal agencies, and to inform any necessary legislative reforms. As we continue to receive information, Chairman Johnson will continue to make every effort to keep the public informed about this important work.

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I. Background

The Committee conducts oversight of the entire federal government and has legislative jurisdiction over federal records and “the effectiveness of present national security methods, staffing, and procedures as tested against the requirements imposed by the rapidly mounting complexity of national security problems.”6 In an effort to fulfill this responsibility, the Committee has been investigating former Secretary of State Hillary Clinton’s use of a private email server for official communication and her apparent mishandling of documents related to national security since March 2015.

The existence of Secretary Clinton’s private email account became publicly known in March 2013. A website called The Smoking Gun published several stories about how a hacker (later identified as Marcel Lehel Lazar, aka “Guccifer”) had broken into the AOL account of former Clinton aide Sidney Blumenthal.7 The Smoking Gun identified the clintonemail.com domain for Secretary Clinton’s emails, and later showed screenshots of emails Blumenthal had sent to Secretary Clinton’s private email account, hdr22@clintonemail.com.8

Politico reported at the time: “The hacker had apparently sorted the mail to list (and possibly download) the Word files attached to these specific emails, which include foreign policy and intelligence memos that were sent to Clinton when she served as Secretary of State.”9

Two years later, on March 2, 2015, the New York Times reported that Secretary Clinton “exclusively used a private email account to conduct government business while Secretary of State” from January 2009 to February 2013.10 The article noted that Secretary Clinton did not have an official State Department email account during her tenure at the Department.11

On March 7, 2015, in an interview with President Obama, CBS News correspondent Bill Plante asked, “When did you first learn that Hillary Clinton used an email system outside the U.S. government for official business when she was Secretary of State?” President Obama answered: “The same time everybody else learned it through news reports.”12

On March 9, 2015, responding to press inquiries about the President’s interview with Plante, White House Press Secretary Josh Earnest stated: “The President was referring specifically to the arrangement associated with Secretary Clinton’s email. Yes, the President was aware of her email address. He traded emails with her. That shouldn’t be a surprise that the

6 S. Rule XXV(k); S. Res. 62, 115th Cong. (2017).

7 See, e.g., Hacker Begins Distributing Confidential Memos Sent To Hillary Clinton On Libya, Benghazi Attack, The Smoking Gun (Mar. 18, 2013), http://thesmokinggun.com/buster/sidney-blumenthal/hacker-distributes-memos- 784091.

8 Id.; Hillary Clinton’s private e-mail draws scrutiny. The Smoking Gun (Mar. 3, 2015), http://www.thesmokinggun.com/file/hrc-e-mails.

9 Breanna Edwards, Report: Sidney Blumenthal hacked, Politico, Mar. 15, 2013.

10 Michael S. Schmidt, Hillary Clinton used personal email account at State Dept., possibly breaking rules, N.Y. Times, Mar. 2, 2015.

11 Id.

12 Obama weighs in on Hillary Clinton’s private emails, CBS News, Mar. 7, 2015.

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President of the United States is going to trade emails with the Secretary of State. But the President was not aware that this was the email address that she was using exclusively for all her business. The president was not aware of that until that had been more widely reported.”13

Plante, however, was not asking about Secretary Clinton’s exclusive use of a private email system—only the President’s knowledge that Secretary Clinton had used a private system for official business.

With legislative jurisdiction over federal records and oversight jurisdiction over the entire federal government, the Committee on Homeland Security and Governmental Affairs joined the Committee on Foreign Relations and the Select Committee on Intelligence in writing our first oversight letter to the State Department Inspector General on March 12, 2015. Our investigation into this matter had begun.

1. The Committee’s Investigation

In the 114th Congress, the Committee sent letters to the State Department, the Justice Department, the FBI, the Office of the Director of National Intelligence, the State Department Office of Inspector General, and the Intelligence Community Inspector General seeking various categories of information relating to Secretary Clinton’s private server.14 The Committee also

13 The White House, Barack Obama Administration, Press Briefing by Press Secretary Josh Earnest, 3/9/2014, https://obamawhitehouse.archives.gov/the-press-office/2015/03/09/press-briefing-press-secretary-josh-earnest- 392014.

14 See Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to James Comey, Fed. Bureau of Investigation (Nov. 7, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to James Comey, Fed. Bureau of Investigation (Oct. 28, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Lamar Smith, H. Comm. on Science, Space & Tech., to Loretta Lynch, Dep’t of Justice (Sept. 9, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Loretta Lynch, Dep’t of Justice (July 11, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to John Kerry, Dep’t of State (July 11, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to James Clapper, Off. of Director of Nat’l Intel. (July 11, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Charles McCullough, Intelligence Community Inspector Gen. (July 11, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Steve Linick, State Dep’t Off. of Inspector Gen. (July 11, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to James Comey, Fed. Bureau of Investigation (July 5, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Loretta Lynch, Dep’t of Justice (Mar. 3, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to John Kerry, Dep’t of State (Feb. 22, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to John Kerry, Dep’t of State (Jan. 26, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to John Kerry, Dep’t of State (Jan. 13, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to John Kerry, Dep’t of State (Oct. 5, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Patrick Kennedy, Dep’t of State (Sept. 22, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to John Kerry, Dep’t of State (Sept. 21, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to John Kerry, Dep’t of State (Sept. 16, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to James Clapper, Off. of Director of Nat’l Intel. (Sept. 16, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Loretta Lynch, Dep’t of Justice (Sept.

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requested information from private entities involved in securing and maintaining Secretary Clinton’s private server;15 private parties responsible for providing IT support to Secretary Clinton, both in government and out;16 and other relevant entities relating to Secretary Clinton’s server.17 While the Committee received some information—especially from private entities— the Committee rarely received adequate responses from federal government agencies (see appendix B). Often, the FBI cited its ongoing criminal investigations as an excuse for declining to provide detailed answers. On October 21, 2015, at the request of now-Ranking Member

14, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to John Kerry, Dep’t of State (Sept. 11, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to John Kerry, Dep’t of State (July 9, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to John Kerry, Dep’t of State (June 23, 2015);Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Steve Linick, State Dep’t Off. of Inspector Gen. (Mar. 18, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, Bob Corker, S. Comm. on Foreign Relations, & Richard Burr, S. Sel. Comm. on Intel., to Steve Linick, State Dep’t Off. of Inspector Gen. (Mar. 12, 2015).

15 See Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Lamar Smith, H. Comm. on Science, Space & Tech., to Austin McChord, Datto Inc. (Aug. 22, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Lamar Smith, H. Comm. on Science, Space & Tech., to Victor Nappe, SECNAP (Aug. 22, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Lamar Smith, H. Comm. on Science, Space & Tech., to Treve Suazo, Platte River Networks (Aug. 22, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Lamar Smith, H. Comm. on Science, Space & Tech., to Austin McChord, Datto Inc. (July 12, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Lamar Smith, H. Comm. on Science, Space & Tech., to Victor Nappe, SECNAP (July 12, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Lamar Smith, H. Comm. on Science, Space & Tech., to Treve Suazo, Platte River Networks (July 12, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Austin McChord, Datto Inc. (Oct. 5, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Victor Nappe, SECNAP (Oct. 5, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Treve Suazo, Platte River Networks (Aug. 11, 2015).

16 See Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Justin Cooper, c/o Aaron Zebley, WilmerHale (May 12, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to John Bentel, Dep’t of State (Mar. 4, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Bryan Pagliano (Mar. 3, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Justin Cooper, c/o Aaron Zebley, WilmerHale (Dec. 7, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Ken Xie, Fortinet, Inc. (Nov. 5, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Bryan Pagliano (Oct. 8, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Bryan Pagliano (Sept. 14, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Bryan Pagliano (Sept. 4, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to David Brown, Web.com Group, Inc. (Aug. 26, 2015).

17 See Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Marcel Lazar (June 14, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Marcel Lazar (Apr. 27, 2016); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to David Kendall, Williams & Connolly LLP (Nov. 4, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Rorrie Gregorio, Clinton Exec. Servs. Corp. (Sept. 18, 2015); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to David Kendall, Williams & Connolly LLP (July 29, 2015).

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Claire McCaskill, the Committee released emails and documents obtained from Platte River Networks, the company that maintained Secretary Clinton’s server after she left the State Department.18

In the 115th Congress, the Committee has requested information from the Justice Department, the FBI, the Justice Department Office of Inspector General, and the Office of Special Counsel.19 Several of these requests remain outstanding (see Appendix B).

2. Laws Governing the Protection of Classified Information

Several federal statutes criminalize the mishandling of classified information. The Espionage Act, 18 U.S.C. §§ 793-798, prohibits various types of mishandling of “national defense information.” Section 793(a) prohibits obtaining information about national defense facilities and equipment “with intent . . . that the information is to be used to the injury of the United States.”20 Section 793(b) prohibits obtaining photographs, plans, blueprints, and similar documents for the same intent,21 while section 793(c) criminalizes receiving these types of documents for the purpose of harming the United States.22 Section 793(d) prohibits someone with lawful access to national defense information from releasing it to someone not authorized to receive it.23 Similarly, section 793(e) prohibits someone with unlawful access to national defense information from releasing it or failing to return it back to an authorized party.24

Section 793(f) prohibits the mishandling of classified material through one’s gross negligence.25 This subsection does not require a specific intent to harm national security, and even without intent, it is considered a serious crime. Other American citizens have been charged under this statute for less serious actions.26 The relevant portion of Section 793(f) reads:

18 “Ongoing Migration from Central America: An Examination of FY2015 Apprehensions”: Hearing before the S. Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015).

19 Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Rod Rosenstein, Dep’t of Justice (Jan. 31, 2018); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Michael E. Horowitz, Dep’t of Justice Off. of Inspector Gen. (Jan. 23, 2018); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Christopher Wray, Fed. Bureau of Investigation (Jan. 20, 2018); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Christopher Wray, Fed. Bureau of Investigation (Dec. 14, 2017); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Christopher Wray, Fed. Bureau of Investigation (Dec. 13, 2017); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Rod Rosenstein, Dep’t of Justice (Dec. 6, 2017); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, & Charles E. Grassley, S. Comm. on the Judiciary, to Michael E. Horowitz, Dep’t of Justice Off. of Inspector Gen. (Dec. 6, 2017); Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Adam Miles, Off. of Special Counsel (Sept. 8, 2017).

20 18 U.S.C. § 793(a). 21 Id. § 793(b).

22 Id. § 793(c).

23 Id. § 793(d).

24 Id. § 793(e).

25 Id. § 793(f).

26 See, e.g., United States v. Roller, 42 M.J. 264 (C.A.A.F. 1995) (service member inadvertently packing classified documents with his personal belongings on his last day before a transfer); United States v. Gonzalez, 16 M.J. 428 (C.M.A. 1983) (service member inadvertently intermingling classified messages with personal mail). See also

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Whoever . . . having lawful possession or control of any document . . . relating to national defense, (1) through gross negligence permits the same to be removed from its proper place of custody . . . or (2) having knowledge that same has been illegally removed from its proper place of custody . . . and fails to make prompt report of such loss . . . Shall be fined under this title or imprisoned not more than ten years, or both.27

Section 794 prohibits transmitting national defense information to a foreign government,28 and sections 795 to 797 criminalize the unauthorized use or creation of images of national defense facilities or equipment.29 Section 798 prohibits the intentional disclosure of classified communications intelligence.30

Other federal statutes prohibit using a computer to willfully retain or transmit classified information,31 disclosing the identity of a covert intelligence officer,32 and publishing without authorization diplomatic material.33 In addition, section 1924 of title 18 prohibits the removal of classified information with the intent to keep the information at an unauthorized location.34 Former Clinton National Security Advisor Sandy Berger pled guilty to violating this statute. Berger was fined $50,000, sentenced to serve two years of probation and 100 hours of community service, and stripped of his security clearance for three years.35

II. Initial Phases of the Committee’s Investigation and Information Obtained

1. Prior to the Strzok-Page text messages, the Committee had information that raised questions about Secretary Clinton’s actions and the FBI’s investigation

Even before the receipt of text messages exchanged by Strzok and Page, the Committee had obtained information—in addition to other information in the public domain—that raised questions about Secretary Clinton and other Administration officials’ culpability in potentially mishandling classified information. This information includes:

1. Secretary Clinton allowed a private server to be set up in her home, in violation of State Department policy and federal IT standards, according to the State Department Office of Inspector General.36 Director Comey repeatedly referred to her behavior as

Indictment, United States v. Smith, CR 03-0429 (C.D. Cal. 2003) (FBI agent allowed Chinese informant to handle classified documents).

27 18 U.S.C. § 793(f).

28 Id. § 794.

29 Id. § 795-97.

30 Id. § 798.

31 Id. § 1030(a)(1).

32 50 U.S.C. § 3121.

33 18 U.S.C. § 952.

34 Id. § 1024.

35 Carol D. Leonnig, Berger is fined for smuggling classified papers, Wash. Post, Sept. 9, 2005.

36 State Dep’t Off. of Inspector Gen., Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements, ESP-16-03 (May 2016) [hereinafter “State OIG audit”]. See 12 F.A.M. § 544.3 (“It is

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“grossly negligent”—the legal standard under § 793(f)—in his original drafts of his public statement.37 That phrase was subsequently edited to “extremely careless”—a legal distinction without a practical difference.

2. On August 18, 2015, when asked, “Did you wipe your server?,” Secretary Clinton stated, “What, like with a cloth or something?”38 Over a year later, on August 25, 2016, Congressman Trey Gowdy announced that a software application called BleachBit had been used to wipe Secretary Clinton’s private server so that, in Congressman Gowdy’s words, “even God couldn’t read them.”39 According to Secretary Clinton, her attorneys ultimately deleted over 30,000 emails that she deemed to be unrelated to her official duties.40

3. The FBI found that 110 emails in 52 separate email chains contained classified information at the time the emails were sent or received— including eight chains that contained Top Secret information, 36 chains that contained Secret information, and eight chains that contained Confidential information.41 Another 2,000 emails were later determined to contain classified information.42 This is why Director Comey originally referred to the “sheer volume” of classified information flowing through Secretary Clinton’s email server.43 “Sheer volume” was later edited out from Director Comey’s statement, even though he cited “vast quantities” of classified material as a consideration weighing in favor of prosecution.44

4. According to Director Comey, Secretary Clinton “used her personal e-mail extensively while outside the United States, including sending and receiving work- related e-mails in the territory of sophisticated adversaries.”45 As a result, Director Comey’s original statement assessed that “it is reasonably likely that hostile actors

the Department’ general policy that normal day-to-day operations be conducted on an authorized [automated information system], which has the proper level of security control to provide nonrepudiation, authentication, and encryption, to ensure confidentiality, integrity, and availability of the resident information.”). An automated information system includes servers, laptops, tablets, and smartphones. Id. § 91. The Federal Information Management Security Act requires each agency head—here, the Secretary of State—to ensure the information security protections “commensurate with the risk and magnitude of the harm resulting from unauthorized access, use, disclosure, disruption, modification, or destruction of—(i) information collected or maintained by or on behalf of the agency . . . .” 44 U.S.C. § 3554(a).

37 SJC 000034, 142.

38 John Wagner & Rosalind S. Helderman, Hillary Clinton won’t say if he server was wiped, Wash. Post, Aug. 18, 2015.

39 America’s Newsroom, Interview with Congressman Trey Gowdy (Aug. 25,2016).

40 Amy Chozick & Michael S. Schmidt, Hillary Clinton tried to quell controversy over private email, N.Y. Times, Mar. 10, 2015.

41 Fed. Bureau of Investigation, Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System (July 5, 2016) [hereinafter “Comey statement”].

42 Id.

43 SJC 000142.

44 Comey statement, supra note 41.

45 Id.

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gained access to Secretary Clinton’s private email account.”46 “Reasonably likely” was downgraded to “possible” in the final statement.47

5. A reference in Director Comey’s statement to the FBI’s “extensive work” done with the Intelligence Community was edited out of final versions.48

6. According to the State Department Office of Inspector General, Secretary Clinton could not account for any emails she sent or received from January 2009 to March 2009.49 The Department of Defense later discovered, and provided to the inspector general, 19 emails that Secretary Clinton had exchanged with General David Petraeus.50

Additional information raised questions about the FBI’s investigation of Secretary Clinton’s handling of classified material:

7. In early May 2016, Director Comey emailed his draft statement clearing Secretary Clinton of any wrongdoing to FBI Deputy Director Andrew McCabe, FBI General Counsel James Baker, and FBI Chief of Staff James Rybicki.51 This draft came a full two months before the FBI completed over a dozen interviews, including immunized testimony from Cheryl Mills and Heather Samuelson and testimony from Secretary Clinton.52

8. Attorney General Lynch reportedly directed the FBI to call its Clinton investigation a “matter.”53

9. On June 10, 2016, the FBI and Justice Department agreed to immunize key figures in the investigation, including Cheryl Mills and Heather Samuelson.54 These agreements included side deals that required the FBI to destroy evidence on computer devices turned over to the FBI.55 A more rigorous investigation might have utilized its full authority (including use of an empaneled grand jury) to compel testimony and obtain evidence.

46 SJC 000143.

47 Comey statement, supra note 41.

48 SJC 000142.

49 State OIG audit, supra note 36.

50 Id.

51 SJC 000140.

52 Letter from Ron Johnson, S. Comm. on Homeland Security & Governmental Affairs, to Christopher Wray, Fed. Bureau of Investigation (Dec. 14, 2017).

53 Matt Apuzzo, Michael S. Schmidt, Adam Goldman, & Eric Lichtblau, Comey tried to shield the F.B.I. from politics. Then he shaped an election, N.Y. Times, Apr. 22, 2017.

54 Comm. review of Justice Dep’t immunity agreements with Cheryl Mills & Heather Samuelson (Sept. 27, 2016). 55 Id. See also FBI agreed to destroy laptops of Clinton aides with immunity deals, lawmaker says, Fox News, Oct. 3, 2016.

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2.

10. On June 27, 2016, Attorney General Lynch met with President Bill Clinton on the tarmac at Phoenix International Airport, before the FBI’s investigation of Secretary Clinton had concluded.56

11. As a result of the controversy over her questionable meeting with President Clinton, on July 1, 2016, Attorney General Lynch announced she would accept the recommendation from the FBI on whether to pursue criminal charges.57 (See point #5 below).

12. On July 2, 2016, the FBI and Justice Department allowed other fact witnesses to the investigation, including Mills and Samuelson, to be present during the interview of Secretary Clinton.58 The FBI and Justice Department also allowed attorneys to represent multiple individuals involved in the investigation.59 A more rigorous investigation might have separated witnesses in order to compare testimony and scrutinize discrepancies.

13. On July 5, 2016, FBI Director Comey held a press conference and read the statement he first began writing in May and announced Secretary Clinton’s exoneration. The final statement, as detailed above, had been significantly edited to downplay the severity of Secretary Clinton’s actions. Director Comey also stated that he had “not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.”60 (See point #5 below).

The Strzok-Page text messages augment the information already received and raise additional questions about the FBI’s investigation

The Committee received a first tranche of text messages exchanged between Strzok and Page on December 12, 2017.61 On January 19, 2018, the Committee received the second tranche, together with notice that text messages sent and received between December 14, 2016, and May 17, 2017, had not been preserved due to technical problems.

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