I had never heard the term “cluster fuck” until I saw the Clint Eastwood movie Heartbreak Bridge but after reading the ENTIRE DOJ inspector general’s report on the Hillary Clinton Email investigation, I can’t find a better term to describe it. Let me start off by stating that Hillary Clinton’s actions by declining to use the official State Department domain for her official communications is a violation of US policy as well as an invitation to foreign actors to penetrate her communications and extract sensitive and classified information. Her intentions were obvious to anyone with any experience in government – to avoid scrutiny. The result was the compromising of numerous pieces of classified information, including at least two that were in the super-secret, higher than Top Secret category. Yet FBI and DOJ investigators determined that Clinton wasn’t guilty of a prosecutable crime.
As I read the DOJ OIG report, it became more and more obvious that the investigators had no intention of finding evidence to indict and convict Clinton. The FBI and Justice Department decided to limit their investigation to determining if Clinton could be charged under 18 US Code 793 (f) – Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer— Shall be fined under this title or imprisoned not more than ten years, or both. Instead of examining computers and telephones belonging to members of Clinton’s team, the FBI and DOJ investigators limited themselves to Clinton’s own devices – which were no longer existent – and computers used to cull the former Secretary of State’s Emails prior to turning over her alleged work-related Emails to the Department of State to be archived, as is required by Federal law. As a result, in excess of 30,000 Clinton Emails were allegedly “lost” and could not be scrutinized by the investigators.
Although Attorney General Loretta Lynch instructed the investigators to refer to the investigation as a “matter” and President Barack Obama made like it was a minor incident, it was actually a full-fledged CRIMINAL investigation, even though the report makes it obvious that the FBI investigators and DOJ prosecutors imposed limitations on themselves, apparently so they wouldn’t find enough evidence to warrant charges. Although Inspector General Horowitz “found” that the investigation was unbiased, a reading of the report shows just the opposite – it was intended to be a whitewash from the beginning.
One thing that struck me about the OIG report is that the various subjects seemed to have possible selective memory loss when it came to recalling conversations, phone calls and meetings. Granted, their failure to recall details are in common with the human mind’s many foibles but there is also something fishy about it. “Plausible deniability” is a byword of Federal officials, from presidents on down the chains of command. Even though they took notes in many instances, the notes are so sketchy that even the notetakers have a difficult time understanding them. Of course, this is common with notes taken during a conversation or meeting.
During the investigation, the prosecutors preferred to use voluntary means to persuade witnesses to submit to interview rather than subpoena or warrants to obtain computers and phones. Witnesses were not sworn in and placed under oath. This was also true of Clinton, who was the last to be interviewed and then several months after senior executives in the FBI and DOJ decided there would be a declination to prosecute. Prosecutors allowed Cheryl Mills and Heather Samuelson to be present at Clinton’s interview even though they were themselves witnesses. Mills and Samuelson were responsible for culling Clinton’s Emails and should have been suspects. They were both Clinton insiders with no experience in government recordkeeping. Mills and Samuelson are both attorneys and were representing Clinton even though they were witnesses. The OIG faulted the prosecutors for allowing the two women to be present.
The investigation was conducted by the Department of Justice and thus under the authority of Attorney General Loretta Lynch. Agents of the Federal Bureau of Investigations, the investigative unit of the DOJ, reported to Director James Comey but Lynch had the final say in the conduct of the investigation. It became apparent early on that Lynch, who had been appointed by and reported to President Barrack Obama, was anxious to exonerate Clinton. Soon after the investigation got under way, Lynch instructed Comey and the DOJ prosecutors to refer to the investigation as a “matter” and to not use the word “investigation”. The Clinton campaign downplayed the investigation as a small matter and Obama himself, who knew Clinton was the subject of a criminal investigation, also downplayed it. After one meeting with Lynch, Comey came away feeling that Lynch was “carrying water” for Clinton. The FBI received information that Lynch intended to exonerate Clinton. The information remains classified, but the OIG revealed that it also claimed that Comey intended to carry the investigation through the election. Investigators believed the information was bogus, but nevertheless classified it and have yet to reveal the information. Comey’s distrust of Lynch would influence his later actions.
Shortly before agents and prosecutors interviewed Clinton, her husband, former President William J. Clinton, precipitated an incident at the Phoenix Sky Harbor Airport that caused great consternation for Comey, in particular. Often erroneously called the “Tarmac” meeting, the impromptu meeting took place aboard the Air Force VIP transport carrying Lynch and her entourage on an inspection/speaking tour. (Tarmac is actually the brand name of an archaic paving technique used in the early Twentieth Century. It is commonly used by ignorant journalists to refer to the airplane parking ramp or apron at airports. Such ramps are actually made of concrete. The use of Tarmac is fairly recent. The author spent a lifetime in aviation, civilian as well as military, and not once did I ever hear an aircraft parking ramp referred to as a “Tarmac.”) Clinton’s private airplane was parked near the Air Force transport and the former president took it upon himself to force his way onto the attorney general’s airplane. Both Lynch and President Clinton claim that their conversation was all personal and had nothing to do with the ongoing investigation or anything else of an official nature. However, they were together for some twenty minutes in the cabin of the airplane where the only witness to their conversation was Lynch’s husband. Only Clinton, Lynch and Lynch’s husband know the actual content of the conversation.
The former president also played a role in the establishment of the private Internet server. Although the IG did not explore it and investigators never talked to him, “Slick Willy” claimed that he never thought much of the Email investigation and that the server belonged to him. Regarding the server and the use of Email, FBI investigators stated that they found Mrs. Clinton to be “technologically ignorant.” Investigators excused the use of the Clinton server to send messages containing classified information by rationalizing that the messages were only seen by State Department personnel and that they were sent by people who “talked around” the content during off-hours such as weekends. Bear in mind that at least two of those messages contained information that was classified above the Top Secret level. (Although Top Secret is the official highest level of classification, there is another, unacknowledged, level that is even higher. It is generally applied to information such as military and diplomatic codes.)
During her interview, Clinton claimed that she didn’t know how classified information was marked. Now, Mrs. Clinton had occupied the White House for eight years where she played an active role then served as a US Senator from New York for six years before her appointment as Secretary of State. All government personnel are given instruction on the marking and handling of classified information. Depending on their assignment, most government personnel are cleared for classified information up to the Secret level. Mrs. Clinton’s ignorance was either feigned or she really is ignorant. (Clinton is rumored to be an alcoholic who is usually drunk by mid-afternoon.) There is one thing for certain – ignorant or deliberate, Clinton’s use of an unsecure Email server allowed dozens of classified Emails to wind up on computers where they shouldn’t have been, and exposed them to the threat of interception by hostile powers.
Both the FBI and the DOJ had made up their minds by early 2016 that they were not going to charge Hillary Clinton with any crimes. Director Comey was especially concerned with how the information that no charges would be filed would be released to the public. He drafted a message as early as May 2016 in which he stated that although Mrs. Clinton had exhibited “gross negligence,” “no reasonable prosecutor” would bring charges. On July 5, without approval from Lynch or Yates, Comey addressed the nation. Although he stated that no charges would be filed, he made it very clear that Clinton had violated Federal policy and removal of any and all security clearances and loss of employment would have been appropriate. “Gross negligence” was replaced by “extremely careless” but the message he was sending to his fellow FBI agents and other Federal employees and military personnel was clear – Hillary Clinton had placed the security of the United States at risk by her use of an unofficial and unprotected Email server.
Although the investigating team and the DOJ, not to mention the White House, were fully aware of it, the OIG report ignores that the Clinton Email investigation was truly unique in the history of the United States – a presidential candidate was being investigated for their actions as a senior official in the United States government. Investigators determined that Clinton’s actions – and the actions of others who sent classified information to her unofficial Email account – had violated USC 793(f) but decided to go around it by claiming a requirement for “criminal intent,” which is not spelled out or even mentioned in the law, which only requires a negligent act. By using an unsecure server, Clinton was effectively doing the same as leaving a classified document in a bar in a foreign country – just removing a document from a secure place is negligent conduct. My personal experience with classified information is from the military, where each squadron had a “classifieds” officer. We were required to read the squadron classified information file monthly. Classified documents were kept locked in a safe. We went to the classifieds officer and he removed the file from the safe and we read them in his presence. On aircrews, the navigator was designated as the classifieds officer and all classified documents were in his care, with the exception of technical orders, which were signed for by whoever was using them.
A major finding by the OIG was the possibility of political bias on the part of some investigators. Although the IG determined that there was no evidence that bias had played a part in the investigator’s findings, conversations made on official Federal servers in the form of instant messages indicated the possibility, As it turns, out no less than five of the FBI agents and Federal prosecutors in the investigation – including Peter Strzok, the head of the FBI counter-espionage division – revealed themselves through personal messages recorded on Federal communication systems to be virulent Clinton supporters and, after he became the nominee, Trump haters. Their intent – along with high-level DOJ executives including Loretta Lynch and her deputy, Sally Yates – seems to have been to exonerate Clinton by claiming there wasn’t enough evidence to bring charges. Had FBI Director James Comey not decided to make a public statement, the nation would have never known that although no charges were brought, the investigation revealed that Clinton was “grossly negligent” in regard to classified information (“grossly negligent” was changed to “extremely careless” in the final draft of Comey’s address to the nation.)