“I KNOW THAT THERE’S DOCUMENTS”
by Sharon Rondeau
(May 28, 2019) — On page 118 of the transcript of former Attorney General Loretta Lynch’s closed-door testimony to members of the House Judiciary and Oversight & Government Reform Committees late last year, an attorney for the majority, then the Republicans, asked Lynch if the Justice Department in 2016 considered charging Clinton “under 18 U.S.C. 793(f),” a statute dealing with loss, “illegal” removal or destruction of “national defense” materials “through gross negligence.”
The interview was convened for the purpose of acquiring more detail as to the decision made by the Justice Department in early July that year not to pursue a criminal charge against Hillary Clinton for having used a private, non-governmental server to conduct government business when she served as Secretary of State between 2009 and early 2013.
During the December 19, 2018 interview, Democrats generally praised Lynch and thanked her for her service, both as Obama’s last attorney general and in her previous position as U.S. Attorney for the Eastern District of New York, while Republicans largely asked questions as to who made the decision, and when, not to pursue a criminal case against Clinton or any of her aides for mishandling classified information.
During its yearlong investigation, the FBI determined that approximately 110 emails in “52 chains” exchanged among Clinton, her aides and possibly other parties contained classified or “top-secret” information which may have been intercepted by foreign adversaries.
Clinton’s use of the private server was made public in March 2015. The FBI subsequently opened an investigation ostensibly to determine whether or not any federal statutes had been violated. According to testimony from former FBI Deputy Director Andrew McCabe two days after Lynch’s, the probe consumed an enormous amount of time in examining various devices used by the parties and reassembling of emails. The devices, McCabe said, were obtained following “negotiations” between the DOJ and counsel for Clinton and her aides.
When then-Oversight Committee Chairman Trey Gowdy asked McCabe if “negotiating” was within the “normal course” of events within the Bureau, McCabe responded, “This was the approach and the strategy that the Department of Justice chose to pursue in this case.”
“And did the Bureau agents agree with that approach,” [sic] Gowdy was noted as having replied, to which McCabe replied, “Many times we did not.”
McCabe testified that the FBI team investigating Clinton, which he led and included a number of FBI attorneys, determined that Clinton did not “intend” to mishandle classified information. Very early in the probe, “Midyear Exam” was deemed colloquially a “headquarters special,” McCabe testified (p. 23).
On July 2, 2016, Clinton was interviewed by then-FBI Deputy Assisted Director of Counterintelligence Peter Strzok, among other agents. Strzok would go on to become a key figure in the counterintelligence investigation opened into the Trump campaign on the premise that someone was “colluding” with Russians to gain an election advantage.
The premise was proved unsubstantiated in March when Special Counsel Robert Mueller, a former FBI Director and U.S. attorney and widely lauded by politicians on both sides of the aisle upon his hiring, delivered a report to Attorney General William P. Barr finding no “conspiracy” between any American and the Russian government to affect the presidential election.
During her testimony, Lynch expressed “a great confidence” in Mueller’s integrity and work (p. 75).
Clinton’s July 2, 2016 interview with the FBI was reportedly not conducted under oath, nor was any record of her responses made, according to public reports. Two witnesses, Heather Samuelson and Cheryl Mills, who served on Clinton’s staff and exchanged messages over the server, were permitted to represent Clinton and granted “unlimited immunity” from the FBI according to The Wall Street Journal.
A report released last June by the Justice Department’s Office of the Inspector General states that “the decision to allow them (Mills and Samuelson) to attend the interview was inconsistent with typical investigative strategy” (p. 3).
Three days after Clinton’s interview, then-FBI Director James Comey gave a solo press conference in which he faulted Clinton extensively for her handling of classified information but at the same time maintained that “no reasonable prosecutor would bring such a case.”
While excoriating Clinton for her conduct, Comey claimed she was “extremely careless” in her handling of classified information but contended it did not rise to the level of a prosecutable crime under “gross negligence” as outlined in 18 USC 793(f).
A memo Comey drafted on May 2, 2016 and circulated to a small number of colleagues, McCabe testified, altered the term “gross negligence” to “extremely careless.” McCabe said he did not participate in the decision to change the wording and that the evidence gathered to that date did not show “intent” on Clinton’s part to mishandle classified information.
In his public statement of July 5, 2016, Comey said, as did Lynch in December, that he did not inform his superiors at the Justice Department as to what he would say that day, although Lynch said he had called her to advise that he would be making a statement.
The same IG report found Comey “insubordinate” for making the announcement in lieu of Lynch or one of her DOJ designees (p. 6 of PDF).
Comey was fired in May 2017, and McCabe met the same fate in March 2018. As a result of the IG’s report, McCabe was referred to the U.S. Attorney for the District of Washington, DC for possible criminal prosecution for allegedly lying during interviews with IG staff.
As for Lynch’s decisions in the Clinton investigation, dubbed “Midyear Exam,” the IG wrote:
On June 27, 2016, Lynch met with former President Clinton on Lynch’s plane, which was parked on the tarmac at a Phoenix airport. This meeting was unplanned, and Lynch’s staff told the OIG they received no notice that former President Clinton planned to board Lynch’s plane. Both Lynch and former President Clinton told the OIG that they did not discuss the Midyear investigation or any other Department investigation during their conversation. Chapter Six of our report describes their testimony about the substance of their discussion.
Lynch told the OIG that she became increasingly concerned as the meeting “went on and on,” and stated “that it was just too long a conversation to have had.”Following this meeting, Lynch obtained an ethics opinion from the Departmental Ethics Office that she was not required to recuse herself from the Midyear investigation, and she decided not to voluntarily recuse herself either. In making this decision, Lynch told the OIG that stepping aside would create a misimpression that she and former President Clinton had discussed inappropriate topics, or that her role in the Midyear investigation somehow was greater than it was.
On July 1, during an interview with a reporter, Lynch stated that she was not recusing from the Midyear investigation, but that she ”fully expect[ed]” to accept the recommendation of the career agents and prosecutors who conducted the investigation, “as is the common process.” Then, in a follow up question, Lynch said “I’ll be briefed on [the findings] and I will be accepting their recommendations.” Lynch’s statements created considerable public confusion about the status of her continuing involvement in the Midyear investigation.
Although we found no evidence that Lynch and former President Clinton discussed the Midyear investigation or engaged in other inappropriate discussion during their tarmac meeting, we also found that Lynch’s failure to recognize the appearance problem created by former President Clinton’s visit and to take action to cut the visit short was an error in judgment. We further concluded that her efforts to respond to the meeting by explaining what her role would be in the investigation going forward created public confusion and did not adequately address the situation.
On page 113 of the transcript, Lynch said that the day following Comey’s press conference, she made the decision not to pursue a criminal charge against Clinton after meeting with Comey’s investigational team in her office. She said her decision was based on the review Comey’s prosecutors gave her that day, which she said included identifying three or four federal statutes reportedly considered during the course of the investigation.
She did not address Comey’s having given the unusual presser, according to her testimony (p. 117). Her version of events differed as compared to Comey’s claim that she instructed Comey to call the Clinton probe a “matter” rather than an “investigation” (p. 21).
Continuing the Lynch interview, on page 118, Atty. Ryan Breitenbach for the majority asked her, “We have been told by other witnesses that there was really no way that the Department was going to charge 793(f) for a couple of reasons. One, it was an old statute, that it was originally –the Espionage Act itself was originally passed in 1917, but that this particular statute had only been charged once or so in 100 years. I don’t know if that’s necessarily a standard as to how many times a particular statute’s been used in prosecution as to the sufficiency of that statute in law. But was 793(f) ever considered by you as a particular standard?”
Lynch responded to Breitenbach, in part:
What I can tell you is that with respect to the relevant statutes that were presented to me, if it included a standard that would have touched on gross negligence, we would have had a discussion about that. I can’t, as I sit here now, recall enough about it to give you an accurate enough statement to really help with that. And I just don’t want to speculate as to what we may have said.
Breitenbach then asked Lynch if she was presented with the “legislative history” of 18 USC 793(f) in the context of whether or not it might be applicable to Clinton and/or her aides’ actions, to which Lynch responded, “I’d have to go back and see the materials that I was presented with on that day. That wouldn’t be the only –“
After a further exchange on the subject, Breitenbach remarked, “So if by the fact that we have heard this numerous times now in our prior interviews and that with regard to the legislative history, and if we’re hearing that the legislative history had been so heavily relied upon, yet you don’t recall being presented that legislative history, I’m just trying to understand where in the Department of Justice that final decision was made to indicate that gross negligence would not be considered as a particular standard–and charge Secretary Clinton.”
More discussion ensued, after which Lynch said, “With respect to whether or not that was presented to me on July 6th, again, my view is that if it was an element of the statute that we were considering, if it informed a review of whether or not that element had been met, I believe that it would have been, but I can’t tell you that my memory today encompasses that.”
Lynch then volunteered that to her knowledge, documentation exists as to her meeting with Comey’s investigative team on July 6, 2016.
At the top of page 124, Rep. Andy Biggs (R-AZ5) was noted to have cut in with, “You mentioned that you were given documents and a briefing of this. Any chance we can get ahold of those documents for review?”
“I don’t have anything, so I can’t answer that question,” Lynch replied.
Biggs then said, “The Department’s been singularly uncooperative. So thank you.”
Another response from Lynch followed, after which Biggs said, “I know that there’s documents.”