A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election

Authors

Office of the Inspector General, U.S. Department of Justice

Date of this Version

5-2018

Citation

Oversight and Review Division 18-04, June 2018

Comments

US government work.

Abstract

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 nonpublic 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.