Revealed: Multiple References to Potential Crimes Deleted From Early Drafts of Comey's Hillary Email Scandal Memo

Posted: Jan 05, 2018 1:30 PM

First, a few thoughts on the DOJ's reported interest in taking another look at Hillary Clinton's protocol-violating and national security-compromising email server, a scandal about which she lied repeatedly: (1) I'd be a bit surprised if DOJ ends up pursuing charges, as that ship likely sailed when James Comey (wrongly, in my view) chose not to recommend prosecution in July 2016.  (2) I'm somewhat uncomfortable seeing the supposedly-independent Justice Department clearly bowing to incessant political pressure from the president on this subject.  It's true that President Obama telegraphed his preferred outcome while the FBI was probing the matter during the election, and that Attorney General Lynch severely harmed the integrity of the process with her infamous tarmac meeting and subsequent actions.  But conservatives rightly decried undue partisan influence in those cases.  Would Justice be re-examining this case if Trump weren't pounding away at it on social media? (3) Nevertheless, there are multiple questions that still need to be adequately answered regarding how nobody in Mrs. Clinton's orbit was ever held responsible for the grossly negligent scheme she erected for the purposes of avoiding public scrutiny of work-related and exceedingly sensitive emails, some of which the permanently deleted under false pretenses.  One of those questions involves this memo:

Ex-FBI Director James Comey’s original statement closing out the probe into Hillary Clinton's use of a private email server was edited by subordinates to remove five separate references to terms like “grossly negligent” and to delete mention of evidence supporting felony and misdemeanor violations, according to copies of the full document. Comey also originally concluded that it was “reasonably likely” that Clinton’s nonsecure private server was accessed or hacked by hostile actors though there was no evidence to prove it. But that passage was also changed to the much weaker “possible,” the memos show...The full draft, with edits, leaves little doubt that Comey originally wrote on May 2, 2016 that there was evidence that Clinton and top aides may have violated both felony and misdemeanor statutes, though he did not believe he could prove intent before a jury.

“Although there is evidence of potential violations of the statute proscribing gross negligence in the handling of classified information and of the statute proscribing misdemeanor mishandling, my judgment is that no reasonable prosecutor would bring such a case,” Comey originally penned. That passage, however, was edited to remove the references to “gross negligence” and “misdemeanor mishandling,” leaving a much more generic reference to “potential violations of the statutes.” The FBI has told Congress the edits were made by subordinates to Comey and then accepted by the then-director before he made his final announcement July 5, 2016 that he would not pursue criminal charges against Clinton.

The "intent" excuse has always been a red herring, but what about this watered-down language? We know that one of the agents who softened Comey's verbiage was an anti-Trump figure who has since been booted from Robert Mueller's team. Were these changes made to spare Hillary more political problems than she'd already earned? And why was the memo even drafted before key FBI interviews ever took place (more below), including with Hillary herself?  Comey should testify under oath again and address these inquiries in detail.  And then there's the issue of bizarre offers of immunity and elaborate and unusual evidentiary arrangements seemingly designed -- as former federal prosecutor Andy McCarthy has written -- for the Justice Department to un-make a case against Mrs. Clinton.  We've watched as Robert Mueller has slapped lower-level Trumpworld figures with charges such as lying to the FBI, presumably in exchange for cooperation in snagging superiors.  This is how cases are methodically built, with an eye toward the people at the very top.  But in Hillary's case, the people around her were preemptively spared, with the DOJ voluntarily relinquishing leverage from the outset.  Here's a partial summary of "irregularities" assembled by National Review, followed by a new and related development: 

Everything that has happened in the Trump probe stands out against a backdrop of leniency in the Clinton investigation. While Mueller has prosecuted two Trump associates for lying to the FBI, the Obama Justice Department gave a pass to Mrs. Clinton and her subordinates, who gave the FBI misinformation about such key matters as whether Clinton understood markings in classified documents and whether her aides knew about her homebrew server system during their State Department service...The irregularities in the Clinton-emails investigation are breathtaking: the failure to use the grand jury to compel the production of key physical evidence; the Justice Department’s collaboration with defense lawyers to restrict the FBI’s ability to pursue obvious lines of inquiry and examine digital evidence; immunity grants to suspects who should have been charged with crimes and pressured to cooperate; allowing subjects of the investigation to be present for each other’s FBI interviews and even to act as lawyers for Clinton, in violation of legal and ethical rules; Comey’s preparation of a statement exonerating Clinton months before the investigation was complete and key witnesses — including Clinton herself — were interviewed; and the shameful tarmac meeting between Obama attorney general Loretta Lynch and Mrs. Clinton’s husband just days before Mrs. Clinton sat for a perfunctory FBI interview (after which Comey announced the decision not to charge her).

Huma Abedin and Cheryl Mills both gave false statements to the FBI about their knowledge of the "homebrew" server.  Rather than having the specter of prosecution hung over their heads, they were granted sweeping and generous immunity deals, under which they protected themselves and their boss.  And they weren't the only ones:

A computer technician who deleted Clinton emails from her server in March 2015 after a congressional subpoena had been issued for them, originally lied to the FBI during his interviews, memos show. The witness’s name was redacted from documents released by the FBI but he was identified as an employee of a computer firm that helped maintained Clinton’s email server. His admission of false statements came one day after the Comey statement was already being drafted, investigators told The Hill. The computer employee originally told the FBI in a February 2016 interview that he did not recall making any deletions from Clinton’s server in March 2015, FBI records show. But then on May 3, 2016, the same employee in a subsequent FBI interview told agents he had an “oh shit moment” and in late March 2015 deleted Clinton’s email archive from the server, according to FBI documents reviewed by The Hill...the FBI decided not to pursue criminal charges against the witness, and instead gave the technician an immunity deal so he could correct his story, congressional investigators said.

This tech's name may have been redacted from the memos, but we've been aware of his "oh sh*t" moment for some time. Clinton's team started permanently eliminating evidence (which was under Congressional subpoena) after the New York Times publicly reported the existence of her private server. But unless I'm mistaken, this is the first we've heard about the "oh sh*t" guy having originally lied to the FBI about it. John Sexton notes the importance of the timeline here: "That line in bold is significant because it suggests that even as the FBI gained leverage against one of the minor players in the drama the higher-ups had already started writing Hillary’s exoneration." That does seem quite curious, doesn't it?  And as Sexton writes, so does this:

Lawmakers on the House Judiciary Committee who attended a Dec. 21 closed-door briefing by FBI Deputy Director Andrew McCabe say the bureau official confirmed that the investigation and charging decisions were controlled by a small group in Washington headquarters rather the normal process of allowing field offices to investigate possible criminality in their localities. The Clinton email server in question was based in New York. In normal FBI cases, field offices where crimes are believed to have been committed investigate the evidence and then recommend to bureau hierarchy whether to pursue charges with prosecutors. In this case, the bureau hierarchy controlled both the investigation and the charging decision from Washington, a scenario known in FBI parlance as a “special,” the lawmakers said.

Granted, an active investigation into a major party presidential candiate is an unusual circumstance, which would obviously be treated as "special," considering all of the potential implications. Just like subordinates altering the severity of the language in Comey's memo isn't necessarily incriminating or shocking unto itself, this detail isn't an instant game changer either.  But the oddities and questions have added up over time, especially when juxtaposed with the Russia probe.  One can demand clarity and transparency on these fronts without trashing the FBI, impugning Mueller, or even obliquely defending Trump.  I'll leave you with this strange expression of misplaced frustration:

She merely compromised national security by exposing top secret information to hostile government hackers, all in order to shield her work-related emails (perhaps including foundation-related dealings) from public scrutiny -- then lied about it endlessly.  What an outrage that some journalists took that pattern of conduct very seriously.  

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