Inspector general on Comey: dissecting an error in judgment

The former FBI director violated policies and procedures when he commented publicly about the revived Clinton investigation, the Justice Department inspector general concluded.

Eleven days before the 2016 presidential election, FBI Director James Comey sent a three-paragraph letter to members of Congress announcing that the FBI was reopening its investigation into Hillary Clinton’s use of a private email server.  

The ramifications of the announcement were huge. Mr. Comey had said in July that no charges would be filed against Mrs. Clinton and that the investigation was closed. Now, suddenly, the investigation was being revived.

Press coverage about the reversal exploded, and Clinton’s six-point lead in the polls was cut in half as Election Day drew nearer. Many political analysts believe that had Comey not sent his Oct. 28 letter to Congress, Clinton would be president today.

Despite the FBI’s highly unusual and potentially influential role in the 2016 election, there has never been a detailed accounting of what led to Comey’s decision.

Until now.

On Thursday, Michael Horowitz, the Justice Department’s inspector general (IG), released a 565-page report based on his 17-month investigation into the FBI’s handling of the Clinton email case.

Comey’s Oct. 28 letter to Congress occupies only a portion of the massive investigative tome, but given its possible impact on the election, the letter and related events came under close scrutiny.

President Trump and his supporters have long charged that the FBI conducted a sham investigation of Clinton. Trump is touting the IG report as justification for his firing of Comey last year and as further proof of political bias at the Bureau.

In contrast, Clinton and her supporters complain that during the 2016 presidential campaign, Comey’s FBI maintained complete silence about the emerging Trump-Russia investigation while making numerous damaging public pronouncements about the Clinton email probe.

The FBI director ran into trouble because he tried to do too much on his own, according to some analysts.

“Comey felt that the credibility of the FBI and to some extent the fate of the Republic rested on his shoulders alone, and that led to some bad decisions,” says Nick Schwellenbach, director of investigations at the Washington-based Project on Government Oversight.

Anthony Weiner's laptop

Comey has said he felt obligated in late October 2016 to tell Congress that the Clinton email investigation was being reopened after agents found hundreds of thousands of Clinton emails on a laptop computer being used by the estranged husband of a Clinton aide, Huma Abedin.

The husband, former Congressman Anthony Weiner, was under investigation for allegedly sending sexually explicit messages over the internet to a 15-year-old girl.

As part of that investigation, agents examined Mr. Weiner’s computer and discovered the Clinton emails. The computer had also been used by Ms. Abedin, apparently to routinely back up Clinton’s emails. Among those computer documents were 13 email chains containing classified information. Four of them were listed as “Secret” at the time they were sent, according to the IG report.

Ultimately, the FBI found 350,000 emails on the laptop, and 344,000 backup files for messages from Clinton’s Blackberry.

The Blackberry files were considered potentially critical because some of them were for communications during Clinton’s first three months as secretary of State when she might have sent and received messages via Blackberry about using a private email server. Federal agents thought such messages might reveal criminal intent to circumvent laws on the handling of classified information.

Investigators had been unable to locate any surviving emails or messages from that three-month period – until they were found on Weiner’s laptop, the IG report says.

In his Oct. 28 letter to Congress, Comey said: “The FBI has learned of the existence of emails that appear to be pertinent to the [Clinton email] investigation.”

He added: “I am writing to inform you that an investigative team briefed me on this yesterday.”

The letter suggests that Comey first learned of the potential significance of the emails on Weiner’s laptop on Oct. 27.

But the account presented by the inspector general shows that the FBI discovered the trove of Clinton emails a month earlier, on Sept. 26.

The inspector general looked into the month-long delay, but the report does not explain why no action was taken until late October to examine the newly discovered emails.

A text message recovered as part of the inspector general’s review shows that a top agent and FBI Deputy Director Andrew McCabe were both aware of the potential critical evidence on the Weiner laptop in late September.

“Got called up to Andy’s [Deputy Director McCabe] earlier … hundreds of thousands of emails turned over by Weiner’s [attorney] to sdny [federal prosecutors in NY City], includes a ton of material from spouse. Sending team up tomorrow [Sept. 29] to review … this will never end,” FBI Agent Peter Strzok wrote in a private text message to his girlfriend, Lisa Page, an FBI lawyer working with McCabe.

The Strzok text was sent Sept. 28, 2016. But according to the IG report, no team was sent to examine the Weiner laptop in late September. In fact, no action was taken until late October, the report says.

Part of the reason for the inactivity was that many members of the team assembled to investigate the Clinton email case had been reassigned in late July to work on the Trump-Russia investigation. The Clinton email issue was no longer a top priority, some FBI officials told the IG.

Agent Strzok, who worked on both the Clinton and Trump investigations, suggested at one point that the team might get to the Weiner laptop emails in January or February 2017 – after the election.

IG investigators asked Strzok whether the inaction on the newly-discovered emails was a “politically motivated attempt to bury information that could negatively impact the chances of Hillary Clinton in the election.”

He replied that FBI actions taken in the Clinton case hurt her election chances rather than helped them. He denied there was any conspiracy to help Clinton.

A month's delay

Nonetheless, up until Comey’s intervention in the case in late October, the Weiner laptop issue appeared to have successfully slipped between the cracks where it likely would have remained dormant until well after the election.

Part of the reason that didn’t happen is that the case agent in New York who discovered the emails on Weiner’s laptop in September couldn’t understand why no one in the Clinton email investigation had ever followed up to examine the evidence he’d found.

The case agent was worried that someone was trying to “bury” the evidence, according to the IG report. He took his concerns to federal prosecutors in New York.

“I’m a little scared here,” he told a prosecutor, according to the report. “I don’t know what to do because I’m not political. Like I don’t care who wins the election, but this is going to make us look really, really horrible.”

The agent’s concerns were eventually relayed to the Justice Department and FBI in Washington. This happened at the same time the presidential election was reaching a crescendo and there were increasing concerns at the FBI that there might be leaks of information to the press about the Weiner laptop that would damage the FBI’s credibility.

By Oct. 25, the Weiner laptop issue had become a topic of discussion within the FBI.

Two days later, Comey received his first substantive briefing on the issue, according to the IG report. He immediately instructed the agents to obtain a search warrant and examine the emails. The following day, he sent his letter to Congress.

As part of the IG investigation, the inspector general searched for evidence that the laptop issue was put on a back burner by sympathetic FBI agents to protect Clinton. The IG found no evidence supporting that theory.

But there was one exception. It arose in the context of the Trump-Russia investigation. The IG report notes that text messages exchanged between Agent Strzok and Ms. Page expressed “hostility for then candidate Trump and preference for a Clinton victory.”

The report cited an Aug. 8, 2016, text message exchange in which Page asked: “[Trump’s] not ever going to become president, right? Right?!”

Strzok replied: “No. No he won’t. We’ll stop it.”  

The inspector general said such a comment was not only indicative of a political bias, but that it implies a willingness to take official action to undercut a candidate’s electoral prospects.

Under those circumstances, the IG said, Strzok’s decision in October 2016 to focus on the Trump-Russia investigation to the exclusion of the Weiner laptop issue may have been motivated by political bias.

Strzok’s lawyer, Aitan Goelman, took issue with this conclusion. He said his client’s actions were not tainted by political bias.

“All facts contained in the report lead to the conclusion that the delay was caused by a variety of factors and miscommunications that had nothing to do with Special Agent Strzok’s political views,” the lawyer said in a statement.

He said the agent did not “back burner” the Weiner laptop issue.

Consequences of 'FBI's neglect'

Ultimately, the inspector general concluded that none of the explanations given by FBI official that sought to justify the month-long inaction on the Weiner laptop were persuasive.

“The FBI had all the information it needed on September 29 to obtain a search warrant that it did not seek until more than a month later,” the report says. “The FBI’s neglect had potentially far-reaching consequences.”

Comey told the IG that if he’d been briefed about Weiner’s laptop in early October it might have affected his decision to notify Congress.

Many officials at the FBI and Justice Department – including Attorney General Loretta Lynch – had suggested to Comey that he should allow agents to review the new emails on Weiner’s laptop before deciding whether to make a public statement effectively reopening the investigation.

But by late October, the rhetoric in the presidential campaigns was off-the-charts nasty, and FBI officials worried that there might soon be a leak of information about the Weiner laptop.

The situation might have been different, according to the IG report, if Comey had been briefed on the Weiner laptop issue weeks earlier.

That prospect presents a potential bitter irony for the Clinton campaign. If, in fact, Agent Strzok and others involved in the investigation sought to help Clinton by “burying” the Weiner laptop evidence until after the presidential election, that effort ultimately backfired and may have actually contributed to Trump’s victory.

Prior to Comey’s Oct. 28 letter to Congress, Clinton had a six-percentage-point lead in the polls. After the letter was made public, triggering nonstop press coverage of the investigation, Clinton’s lead was cut roughly in half, according to a post-election analysis in 2017 by Nate Silver on his FiveThirtyEight website. The disruption may have paved the way for narrow Trump victories in Michigan, Wisconsin, Pennsylvania, and Florida, he wrote.

Mr. Silver’s conclusion: “The real story is that the Comey letter had a fairly large and measurable impact, probably enough to cost Clinton the election.”

When asked why he decided to notify Congress, Comey offered IG investigators the same rationale he provided in his book, “A Higher Loyalty.” He said he faced a stark choice – either speak out about the revived investigation or engage in concealment about it.

“We’re 11 days from a presidential election,” he told the IG investigators. To announce the revived investigation would be “really bad,” and would unleash a “storm.” But his other option, to remain silent and conceal, would have been catastrophic, he said.

“This is something reasonable people can disagree about, but my view was to conceal at that point given all I had said [earlier during the investigation] would be catastrophic,” he said. “Not just to the Bureau, but beyond the Bureau…”

The 'stay silent' principle

The inspector general concluded that Comey violated government policies and procedures when he commented publicly about the revived Clinton investigation.

The Justice Department routinely follows a “stay silent” principle during investigations. It applies doubly during the run-up to an election where disclosure of investigative activity might influence election results, according to the IG report.

The report says Comey’s Oct. 28 letter was “a serious error of judgment.”

“Comey engaged in ad hoc decision-making based on his personal views even if it meant rejecting longstanding department policy or practice,” the report says.

Mr. Schwellenbach agrees that Comey’s instinct to chart his own course got him into trouble.

“There are policies and norms and practices where the Justice Department and FBI refrain from taking any public steps within the proximity of an election,” he says. “There are important reasons for that. These institutions need to be seen as impartial and non-political.”

Schwellenbach added: “He was well intentioned to protect the reputation of the FBI, but he had put himself in a box.” He felt he had an obligation to speak about the investigation, despite regulations against it.

“You can see the path he is going down where one controversial decision led to another controversial decision, culminating in that October letter.”

On Nov. 6 – two days before Election Day – the FBI completed its review of the emails on the laptop. Comey sent another letter to Congress, this one announcing that agents had found nothing on the laptop that changed their view that Clinton should not be charged in the case.

Two days later, Donald Trump was elected president of the United States.