Aug 31, 2017
Grassley, Graham seek documents linked to Hatch Act investigation of former FBI head
WASHINGTON
– Transcripts reviewed by the Senate Judiciary Committee reveal that
former FBI Director James Comey began drafting an exoneration statement
in the Clinton email investigation before the FBI had interviewed key
witnesses. Chairman Chuck Grassley and Senator Lindsey Graham, chairman
of the Judiciary Subcommittee on Crime and Terrorism, requested all
records relating to the drafting of the statement as the committee
continues to review the circumstances surrounding Comey’s removal from
the Bureau.
“Conclusion first,
fact-gathering second—that’s no way to run an investigation. The FBI
should be held to a higher standard than that, especially in a matter of
such great public interest and controversy,” the senators wrote in a
letter today to the FBI.
Last fall, following allegations
from Democrats in Congress, the Office of Special Counsel (OSC) began
investigating whether Comey’s actions in the Clinton email investigation
violated the Hatch Act, which prohibits government employees from using
their official position to influence an election. In the course of
that investigation, OSC interviewed two FBI officials close to Comey:
James Rybicki, Comey’s Chief of Staff, and Trisha Anderson, the
Principal Deputy General Counsel of National Security and Cyberlaw. OSC
provided transcripts of those interviews at Grassley’s request after it
closed the investigation due to Comey’s termination.
Both
transcripts are heavily redacted without explanation. However, they
indicate that Comey began drafting a statement to announce the
conclusion of the Clinton email investigation in April or May of 2016,
before the FBI interviewed up to 17 key witnesses including former
Secretary Clinton and several of her closest aides. The draft statement
also came before the Department entered into immunity agreements with
Cheryl Mills and Heather Samuelson where the Department agreed to a very
limited review of Secretary Clinton’s emails and to destroy their
laptops after review. In an extraordinary July announcement, Comey
exonerated Clinton despite noting “there is evidence of potential
violations of the statutes regarding the handling of classified
information.”
In their letter, the two chairmen
requested all drafts of Comey’s statement closing the Clinton
investigation, all related emails and any records previously provided to
OSC in the course of its investigation.
OSC is
the permanent, independent investigative agency for personnel matters in
the federal government and is not related to Robert Mueller’s temporary
prosecutorial office within the Justice Department.
Full text of the letter from Grassley and Graham follows.
August 30, 2017
VIA ELECTRONIC TRANSMISSION
The Honorable Christopher Wray
Director
Federal Bureau of Investigation
935 Pennsylvania Avenue, N.W.
Washington, D.C. 20535
Dear Director Wray:
The
Senate Judiciary Committee has been investigating the circumstances
surrounding Director Comey’s removal, including his conduct in handling
the Clinton and Russia investigations. On June 30, 2017, the Committee
wrote to the Office of Special Counsel (OSC)[1]
requesting transcripts of OSC’s interviews with then-Director Comey’s
Chief of Staff, Jim Rybicki, and the Principal Deputy General Counsel of
National Security and Cyberlaw, Trisha Anderson. OSC investigators had
interviewed them as part of the OSC’s investigation into whether
then-Director Comey’s actions in the Clinton investigation violated the
Hatch Act.[2]
OSC closed its inquiry after Mr. Comey’s removal pursuant to its
standard policy of not investigating former government employees. On
August 8, 2017, the OSC provided transcripts of those interviews at the
Committee’s request.[3]
Since then, Committee staff has been asking the Department informally
to explain the reasons for the extensive redactions to the transcripts.
According
to the unredacted portions of the transcripts, it appears that in April
or early May of 2016, Mr. Comey had already decided he would issue a
statement exonerating Secretary Clinton. That was long before FBI agents finished their work.
Mr. Comey even circulated an early draft statement to select members of
senior FBI leadership. The outcome of an investigation should not be
prejudged while FBI agents are still hard at work trying to gather the
facts.
OSC attorneys questioned two witnesses,
presumably Mr. Rybicki and Ms. Anderson, about Mr. Comey’s July 5, 2016,
statement exonerating Secretary Clinton. The transcript of what appears
to be Mr. Rybicki’s interview contains the following exchanges:
Q: … We talked about outcome of the investigation, … how did
the statement – I guess the idea of the statement come about?
A: Sure. We’re talking about July 5th, correct?
Q: Yes. I’m sorry. July 5th.
A: The – so in the – sometime in the spring – again, I don’t remember exactly when, I – early spring I would say, the Director emailed a couple folks – I can’t remember exactly; I know I was on there, probably the Deputy Director, not the full, what I’ll call the briefing group, but a subset of that – to
say, you know, again knowing sort of where – knowing the direction the
investigation is headed, right, what would be the most forward-leaning
thing we could do, right, information that we could put out about it…And -- and, you know, by that -- you know, so that -- and he sent a draft around of, you know what - what it might look like. . . .
A: …So that was the early spring.
Q: Yeah. And I think we've seen maybe that email where he sent it out, it was early May of 2016; does that sound about right?
A: That sounds right. That -- quite honestly, that strikes me as a little late, but may --
Q: Okay.
A:
-- but again, I definitely remember spring. I had in my head like the
April timeframe, but May doesn't seem out of the -- out of the realm.
***
Q: And so at that point in time, whether it was April or early May, the team hadn’t yet interviewed Secretary Clinton –
A: Correct.
Q: – but
was there – I guess, based on what you’re saying, it sounds like there
was an idea of where the outcome of the investigation was going to go?
A: Sure. There was a – right, there was – based on – [redacted section].
Similarly, the transcript of what appears to be Ms. Anderson’s interview states:
Q: So moving along to the first public statement on the case or Director Comey’s first statement the July 5, 2016 statement. When
did you first learn that Director Comey was planning to make some kind
of public statement about the outcome of the Clinton email
investigation?
A: The
idea, I’m not entirely sure exactly when the idea of the public
statement um first emerged. Um it was, I just, I can’t put a precise
timeframe on it um but [redaction]. And then I believe it was in early May of 2016 that the Director himself wrote a draft of that statement …
Q:
So when you found out in early May that there was, that the Director
had written a draft of what the statement might look like, how did you
learn about that?
A: [Redacted] gave me a hard copy of it…
Q: So what happened next with respect to the draft?
A: I don’t know for sure um, I don’t know. There were many iterations, at some point there were many iterations of the draft that circulated…
As
of early May 2016, the FBI had not yet interviewed Secretary Clinton.
Moreover, it had yet to finish interviewing sixteen other key witnesses,
including Cheryl Mills, Bryan Pagliano, Heather Samuelson, Justin
Cooper, and John Bentel.[4]
These
individuals had intimate and personal knowledge relating to Secretary
Clinton’s non-government server, including helping her build and
administer the device. Yet, it appears that the following key FBI
interviews had not yet occurred when Mr. Comey began drafting his
exoneration statement:
1. May 3, 2016 – Paul Combetta
2. May 12, 2016 – Sean Misko
3. May 17, 2016 – Unnamed CIA employee[5]
4. May 19, 2016 – Unnamed CIA employee[6]
5. May 24, 2016 – Heather Samuelson
6. May 26, 2016 - Marcel Lehel (aka Guccifer)
7. May 28, 2016 – Cheryl Mills
8. June 3, 2016 – Charlie Wisecarver
9. June 10, 2016 – John Bentel
10. June 15, 2016 – Lewis Lukens
11. June 21, 2016 – Justin Cooper
12. June 21, 2016 – Unnamed State Dept. Employee[7]
13. June 21, 2016 – Bryan Pagliano
14. June 21, 2016 – Purcell Lee
15. June 23, 2016 – Monica Hanley
16. June 29, 2016 – Hannah Richert
17. July 2, 2016 – Hillary Clinton
Conclusion
first, fact-gathering second—that’s no way to run an investigation.
The FBI should be held to a higher standard than that, especially in a
matter of such great public interest and controversy.
Mr.
Comey’s final statement acknowledged “there is evidence of potential
violations of the statutes regarding the handling of classified
information” but nonetheless cleared Secretary Clinton because he
claimed there was no intent or obstruction of justice. Yet, evidence of
destruction of emails known to be under subpoena by the House of
Representatives, and subject to congressional preservation requests, was
obtained in interviews around the time that Mr. Comey began drafting
his exoneration statement.[8]
Moreover, the Justice Department entered into highly unusual immunity
agreements with Cheryl Mills and Heather Samuelson in June 2016—after
Mr. Comey began drafting his exoneration statement—to review Clinton
email archives on their laptops.[9]
The
immunity agreements limited the FBI’s ability to review Clinton email
archives from Platte River Networks that were created after June 1,
2014, and before February 1, 2015, and which had been sent or received
from Secretary Clinton’s four email addresses during her tenure as
Secretary of State.[10]
These limitations prevented the FBI from reviewing records surrounding a
March 2015 conference call that Paul Combetta, an employee of Platte
River Networks, had with David Kendall and Ms. Mills, the attorneys for
Secretary Clinton.[11]
After having been initially untruthful and then receiving his own
immunity agreement, Mr. Combetta admitted in his third FBI interview, in
May 2016, that after a March 2015 conference call with Secretary
Clinton’s attorneys, he used BleachBit to destroy any remaining copies
of Clinton’s emails.[12]
The
limitations in the immunity agreements with Ms. Mills and Ms. Samuelson
also kept the FBI from looking at emails after Secretary Clinton left
office—the period in which communications regarding destruction or
concealment of federal records would have most likely taken place.[13] And finally, the agreements provided that the Department would destroy any records which it retrieved that were not turned over to the investigative team and would destroy the laptops.[14]
Despite public claims by the FBI that the laptops were not in fact
destroyed, the purpose of that promise to destroy them has not been
explained.[15]
However, Judiciary Committee staff reviewed the immunity agreements as
part of their oversight work, so there is no question that the terms of
the agreement called for the Department to destroy evidence that had not
been fully and completely reviewed.[16]
It
is unclear whether the FBI agents actually investigating the case were
aware that Mr. Comey had already decided on the investigation’s outcome
while their work was ongoing. However, it appears that the answer to
that question may be underneath some of the extensive redactions that
the Department made to the transcripts.[17]
In testimony before Congress, Mr. Comey was asked whether his decision
to not recommend charges “was [a] unanimous opinion within the FBI…” to
which he responded, “[w]ell, the whole FBI wasn’t involved, but the team
of agents, investigators, analysts, technologists, yes.”[18] Seeing under the redactions is necessary for the Committee to assess Mr. Comey’s testimony before Congress.
Pursuant
to the Committee’s responsibility and authority to review the
circumstances of the Director’s removal, please provide the following
without redactions by September 13, 2017:
1.
All drafts of Mr. Comey’s statement closing the Clinton investigation,
from his original draft in April or May to the final version.
2.
All records related to communications between or among FBI officials
regarding Comey’s draft statement closing the Clinton investigation,
including all memoranda or analyses of the factual or legal
justification for the announcement.
3.
All records previously provided to the Office of Special Counsel in the
course of its now-closed Hatch Act investigation of Mr. Comey.
We
anticipate that your written response and most of the responsive
documents will be unclassified. Please send all unclassified material
directly to the Committee. In keeping with the requirements of
Executive Order 13526, if any of the responsive documents do contain
classified information, please segregate all unclassified material
within the classified documents, provide all unclassified information
directly to the Committee, and provide a classified addendum to the
Office of Senate Security. The Committee complies with all laws and
regulations governing the handling of classified information. The
Committee is not bound, absent its prior agreement, by any handling
restrictions or instructions on unclassified information unilaterally
asserted by the Executive Branch.
Thank you for
your attention to this important matter. Transparency is essential to
restoring the public’s trust in the FBI. If you have questions, please
contact Josh Flynn-Brown of Chairman Grassley’s staff at (202) 224-5225
or Lee Holmes of Chairman Graham’s staff at (202) 224-5972.
Charles E. Grassley
Chairman
Committee on the Judiciary
Lindsey O. Graham
Chairman
Subcommittee on Crime and Terrorism
Committee on the Judiciary
