Early in the Hillary Clinton email case, the Department of Justice reached a decision that would have far-reaching implications for the FBI’s investigation into Clinton’s use of a private email server.
The Justice Department (DOJ), under then-Attorney General Loretta Lynch, decided to set an unusually high threshold for prosecuting Clinton, effectively ensuring from the outset that she would not be charged.
In order for Clinton to be prosecuted, the DOJ required the FBI to establish evidence of intent—even though the gross negligence statute explicitly does not require this.
This meant that the FBI would have needed to find a smoking gun, such as an email or an admission made during FBI questioning, that revealed Clinton or her aides knowingly set up the private email server to send classified information.
Notably, Comey had been convinced to remove the term “gross negligence” to describe Clinton’s actions from his prepared statement by, among others, FBI lawyer Lisa Page, FBI agent Peter Strzok, senior legal counsel Trisha Anderson, and FBI analyst Jonathan Moffa.
Because of Comey’s statement, many have mistakenly concluded that the FBI acted independently from DOJ influence in its investigation of Clinton. Congressional testimonies by high-ranking FBI officials involved in the investigation reveal, however, that this was not the case.
The testimonies, which were conducted last year behind closed doors, have not been publicly released, but were reviewed for this article.
DOJ Involvement in Clinton Case and Requirement of Intent
Lisa Page, an FBI lawyer who served as special counsel to FBI Deputy Director Andrew McCabe during the time of the Clinton investigation, noted during her testimony in July 2018 that the DOJ was intimately involved in the investigation.
“Everybody talks about this as if this was the FBI investigation, and the truth of the matter is there was not a single step, other than the July 5th statement, there was not a single investigative step that we did not do in consultation with or at the direction of the Justice Department,” Page told congressional investigators on July 13, 2018.
Comey had also hinted at the influence exerted by the DOJ over the Clinton investigation in his July recommendation, stating that “there are obvious considerations, like the strength of the evidence, especially regarding intent.”
Intent is a requirement of several statutes the FBI was looking into, but it is specifically not a factor under the charge of gross negligence—contained within 18 U.S. Code § 793(f)—a fact that was brought up by Rep. John Ratcliffe (R-Texas) during Page’s testimony:
Rep. Ratcliffe: “Okay. And that’s — I think, when you talk about intent, that’s certainly true under part of 18 793(f), but it sounds like you all just blew over gross negligence.”
Ms. Page: “We did not blow over gross negligence. We, in fact — and, in fact, the Director — because on its face, it did seem like, well, maybe there’s a potential here for this to be the charge. And we had multiple conversations, multiple conversations with the Justice Department about charging gross negligence.”
Page made clear during her testimony that the DOJ had decided that, due to “constitutional vagueness,” a charge of gross negligence would not be supported without accompanying proof of intent—a seemingly oxymoronic position:
Rep. Ratcliffe: “Okay. So let me if I can, I know I’m testing your memory, but when you say advice you got from the Department, you’re making it sound like it was the Department that told you: You’re not going to charge gross negligence because we’re the prosecutors and we’re telling you we’re not going to –“
Ms. Page: “That is correct.”
Rep. Ratcliffe: “– bring a case based on that.”
Trouble Defining Intent
The word “intent” drove the entirety of the FBI’s investigation of the Clinton email server.
It appears, however, that there were differing understandings of the word “intent” within the FBI. Trisha Anderson, the No. 2 lawyer at the bureau, told investigators that what she viewed as intent was “an email that the Secretary sent saying, I set up this server for the purpose of sending unclassified information for my convenience, even though I know it’s not a secure system.”
Page viewed the situation somewhat differently, agreeing they were looking for “an intent to do an act which is in violation of the law’s central command.” As she told investigators, the FBI “couldn’t find any indicia of knowledge that she knew that these [classified emails] shouldn’t be traversing her server.”
In Anderson’s understanding, she was looking for a prosecutable reason behind the establishment of the server itself. Page, however, was looking at whether Clinton knew which emails should not have traveled through the private server.
Meanwhile, Bill Priestap, head of the FBI’s counterintelligence division and who was officially in charge of the Clinton investigation, said during testimony that he thought the “number of instances is absolutely a proper consideration” in establishing intent.
According to Ryan Breitenbach, who was the House majority counsel at the time of Priestap’s interview, the State Department had identified 22 top-secret emails and 1,300 classified emails on Clinton’s email server. As Breitenbach noted to Priestap during testimony, “I think there might be many who would question whether people in this room would still be in this room if we had hit 1,300 emails on our personal Gmail service.”
‘DOJ Not Willing to Charge This’
Priestap was shown an email sent from an unknown individual in the FBI general counsel’s office to Priestap’s former boss, Michael Steinbach, which contained a chart of “available statutes for prosecuting the former Secretary of State.” Gross negligence was specifically excluded from the chargeable statutes available to the FBI. Priestap, who had not previously seen the document, expressed concerns that this might have hindered the work of FBI investigators.
Mr. Breitenbach: “We see in this chart that DOJ is not willing to charge this, meaning 18 U.S.C. 793(f). My question is going back to those draft affidavits. If DOJ is not willing to charge this statute, why would the FBI in an affidavit use this statute as predication to obtain a search warrant if this statute is never going to be prosecuted?”
Mr. Priestap: “So I — I don’t know who put this together and used this language.”
Mr. Breitenbach: “Well, someone in the FBI general counsel’s office.”
Mr. Priestap: “Yeah. No. No. I trust you. But I don’t know why they, again, put it together. I don’t know why they used this language, ‘DOJ not willing to charge this.’
“My attitude is that if there is a Federal criminal statute still on the books, then, you know — and we think there may or might be a violation of that, we still have to work to uncover whether, in fact, there was.
“The prosecutive history of a particular statute isn’t going to affect — I sure hope it does not affect the fact-finder’s work.”
Priestap said that it was his understanding that the gross negligence standard had not been met—as opposed to not pursued—in the Clinton case. As Priestap noted, “If I understood from the department that they would never charge a particular statute, I would want to know that before I’m going to dedicate resources to a particular topic. I didn’t know that.”
But Lisa Page, a lawyer by training, seemed to have a very different understanding of what would be allowed by the DOJ. Page appeared to indicate during her testimony that because of the DOJ’s position, there was no reason for the FBI to even pursue evidence related to the specific statute of gross negligence.
“Let’s assume things are going swimmingly and, in fact, all 17 of those witnesses admit, ‘We did it, it was on purpose, we totally wanted to mishandle classified information,’ gross negligence would still have been off the table because of the department’s assessment that it was vague. We would have other crimes to now charge, but gross negligence would not have been among them,” Page said in her testimony.
FBI General Counsel James Baker, who called Clinton’s behavior “alarming, appalling,” told congressional lawmakers, “I thought these folks should know that this stuff is classified, that it was alarming what they were talking about, especially some of the most highly classified stuff.”
Baker said that he “argued with others about why they thought she shouldn’t be charged.” However, Baker said he was eventually persuaded by other senior FBI personnel, including Comey, “that charging her was not appropriate because we could not establish beyond a reasonable doubt that — we, the government, could not establish beyond a reasonable doubt that she had the intent.”
FBI Used Gross Negligence Statute to Obtain Search Warrant
Interestingly, despite the DOJ’s unwillingness to pursue a charge under the gross negligence statute, the FBI utilized it while obtaining a search warrant in the Clinton email case:
Mr. Breitenbach: “You don’t remember whether there were search warrants obtained in the case, other than the Weiner laptop?”
Mr. Priestap: “There certainly could have been, but I don’t remember.”
Mr. Breitenbach: “I can stipulate that we have seen drafts of search warrants submitted to the Eastern District of Virginia to obtain material in the Hillary Clinton case.”
Mr. Priestap: “Okay.”
Mr. Breitenbach: “Based on those search warrants, the predication in the search warrants were listed the statute of 18 U.S.C. 793(f).”
Anderson also was questioned regarding the search warrant and appeared to struggle when asked why the FBI was requesting search warrants based on “a particular statute that has real potential legal problems, according to the DOJ analysis.”
“In this particular case, had we had evidence of intent, it’s theoretically possible that we could have brought a prosecution, might have brought a prosecution under that statute. I’m not saying that’s, you know, what would have happened necessarily, but the statute is not — it is not the Department’s view, as I understand it, the statute is invalid for constitutional reasons in every circumstance,” Anderson said.
Congress Makes the Laws
Page, Baker, and Anderson all testified that the gross negligence statute was rarely if ever used, as part of their explanation for the DOJ’s unwillingness to pursue it, but this logic was repeatedly challenged by then-majority House counsel Breitenbach:
“If part of that rationale was that it had never been used, then, by extension, one might presume that other statutes that are on the books, if they aren’t being used, should not be ever considered as predication for a prosecution.”
Breitenbach was providing a less-than-subtle reminder that it is Congress, not the DOJ or the FBI, that creates laws. The DOJ, as part of the executive branch, has an obligation to enforce the statutes put in place by Congress, not to pass legal judgment on them.
Anderson had no material response to this rebuttal, only noting, “That was not the intent of my statement.”
FBI Ignored Both Volume and Sensitivity of Clinton’s Email Violations
Included within Clinton’s emails was “classified information up to the Special Access Program level.” SAPs, as they are known, are established to “control access, distribution, and provide protection for sensitive classified information beyond that normally required” on a need-to-know basis with only a small number of individuals cleared to view the information.
The classification level of SAPs is so high that Anderson actually refused to define her understanding of an SAP in the unclassified interview setting before congressional investigators, which led to an obvious question: In addition to considering the frequency of violation, would not the sensitivity of the emails also be a factor? Anderson’s answer was eye-opening:
Mr. Breitenbach: “[I] proposed that frequency of emails could be considered an element of the offense. And now what I’m proposing is, and I’m asking you, could the sensitivity of emails also be considered an element of an offense when considering intent, or even gross negligence?”
Ms. Anderson: “I don’t know. In this particular circumstance, our — the testimony of these witnesses was that they believed that there was — they did not believe the information to be classified. They believed themselves to be talking around the classified information and, therefore, not to actually be transmitting any classified information. So the facts that you’re presenting were simply not present in this particular case.”
In other words, under Anderson’s understanding of the DOJ’s standard, the extreme volume of emails was not a factor, nor was the classification level of the emails, as long as those being investigated were able to say they simply didn’t know any documents were actually classified—even if the primary subject of the investigation, the secretary of state, should have been qualified to discern between classified and unclassified information.
FBI Never Looked for Evidence of Negligence
Anderson was asked about her understanding of the difference between gross negligence and extreme carelessness. She answered that she didn’t “know exactly what the precise difference is between extremely careless and gross negligence.”
In her testimony, she was forced to admit that the team working on the case should have tried to better understand the difference between the two:
“Obviously, the use of the phrase ‘extremely careless’ has been open to interpretation and confusion after the fact. So, perhaps, that issue is something we should have more carefully considered, we as a group. I’m not saying, you know, there was anything that I did incorrectly here, but — so I don’t know that there is a single meaning of extremely careless.”
Which begs the question of why Anderson, among others, felt compelled to push Comey to change the language within his statement from the legal term of gross negligence to the non-legal term of extremely careless.
Anderson, who told congressional investigators that the phrase “extremely careless” had been the subject of competing interpretations, was quickly countered by Breitenbach, who noted, “It’s competing, because it has no legal effect, whereas gross negligence does.”
“I think you would agree with me that negligence is different than intent,” he told Anderson.
But according to Anderson’s testimony, the FBI never even looked into negligence due to the DOJ’s legal position:
Mr. Breitenbach: “So there was no review as to whether there was negligence in this case?”
Ms. Anderson: “It was legally irrelevant because the Department of Justice would not have brought a prosecution in a circumstance in which there was simply negligence.”
The issue at the heart of the Clinton email investigation was summarized by Breitenbach, who said that “the Department of Justice made a decision that intent was required, even though we have a statute on the books that does not require intent that [only] requires gross negligence.”
Gross negligence is different than willfulness and intentional conduct. But with the decision to require evidence of intent on the part of Clinton in order to prosecute, the DOJ managed to circumvent and in effect neutralize the entire FBI investigation from the outset.
This could have been why Comey and the hierarchy of the FBI felt comfortable in drawing up an exoneration statement in advance of Clinton’s actual interview. No actual evidence of intent, such as an email in which Clinton overtly admitted she established her knowingly unsecure server for the purpose of sending classified information for convenience, had been found. Clinton was almost certain not to admit to this during her own FBI interview.
Absent a slip-up on her part, Clinton was effectively in the clear from the outset of the FBI investigation due to the DOJ’s decision to require intent.
DOJ’s National Security Division Required Evidence of Intent
It was Page that testified as to whom was responsible for the decision within the DOJ to require intent as part of a gross negligence charge—Richard Scott and, secondarily, David Laufman.
Scott, the deputy chief of the Counterintelligence and Export Control Section (CES) of the Justice Department’s National Security Division (NSD), was involved in the investigation into Clinton’s private email server and reported to Laufman.
Laufman, chief of CES and Scott’s direct supervisor, was cited by Page as the individual responsible for altering the FBI’s normal policy of interviews by insisting on being personally present for the interviews of “not just Mrs. Clinton but also Huma Abedin, Cheryl Mills, Jake Sullivan, and her sort of core team.”
Both men were overseen by George Toscas, who was selected by the DOJ’s head of the NSD, John Carlin, to oversee the entirety of the Clinton investigation from the DOJ’s perspective. Working alongside Toscas were Stu Evans and Adam Hickey—both deputy assistant attorney generals like Toscas. According to Toscas, Evans, as the DOJ’s point person on the FISA application on former Trump campaign adviser Carter Page, was responsible for managing—and reading—not only the original Foreign Intelligence Surveillance Act (FISA) application on Carter Page, but also the three subsequent renewals.
Notably, with the exceptions of Moffa, Evans, and Hickey, every individual from the FBI and DOJ mentioned has either been fired or has resigned. Most have been the subject of congressional interviews.
Jeff Carlson is a regular contributor to The Epoch Times. He also runs the website TheMarketsWork.com and can be followed on Twitter @themarketswork.