Office of the Inspector General 

U.S. Department of Justice 

OVERSIGHT* INTEGRITY * GUIDANCE 

A Review of Various Actions by the 

Federal Bureau of Investigation and 

Department of Justice in Advance of the 

2016 Election 

Oversight and Review Division 18-04 June 2018 

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Department of Justice in Advance of the 2016 Election

• Decisions to enter into “letter use” or “Queen 

for a Day” immunity agreements with three 

witnesses;

• The use of consent agreements and “act of 

production” immunity to obtain the laptops used 

by Clinton’s attorneys (Cheryl Mills and Heather 

Samuelson) to “cull” her personal and workrelated emails; and

• The handling of Clinton’s interview on July 2, 

2016.

With regard to these investigative decisions, we found, 

as detailed in Chapter Five, that the Midyear team:

• Sought to obtain evidence whenever possible 

through consent but also used compulsory 

process, including grand jury subpoenas, search 

warrants, and 2703(d) orders (court orders for 

non-content email information) to obtain 

various evidence. We found that the 

prosecutors provided justifications for the 

preference for consent that were supported by 

Department and FBI policy and practice;

• Conducted voluntary witness interviews to 

obtain testimony, including from Clinton and her 

senior aides, and did not require any witnesses 

to testify before the grand jury. We found that 

one of the reasons for not using the grand jury 

for testimony involved concerns about exposing 

grand jurors to classified information;

• Did not seek to obtain every device, including 

those of Clinton’s senior aides, or the contents 

of every email account through which a 

classified email may have traversed. We found 

that the reasons for not doing so were based on 

limitations the Midyear team imposed on the 

investigation’s scope, the desire to complete the 

investigation well before the election, and the 

belief that the foregone evidence was likely of 

limited value. We further found that those 

reasons were, in part, in tension with Comey’s 

response in October 2016 to the discovery of 

Clinton emails on the laptop of Anthony Weiner, 

the husband of Clinton’s former Deputy Chief of 

Staff and personal assistant, Huma Abedin;

• Considered but did not seek permission from 

the Department to review certain highly 

classified materials that may have included 

information potentially relevant to the Midyear 

investigation. The classified appendix to this 

report describes in more detail the highly 

classified information, its potential relevance to 

the Midyear investigation, the FBI’s reasons for 

not seeking access to it, and our analysis;

• Granted letter use immunity and/or “Queen for 

a Day” immunity to three witnesses in exchange 

for their testimony after considering, as 

provided for in Department policy, the value of 

the witness’s testimony, the witness’s relative 

culpability, and the possibility of a successful 

prosecution;

• Used consent agreements and “act of 

production” immunity to obtain the culling 

laptops used by Mills and Samuelson, in part to 

avoid the uncertainty and delays of a potential 

motion to quash any subpoenas or search 

warrants. We found that these decisions were 

occurring at a time when Comey and the 

Midyear team had already concluded that there 

was likely no prosecutable case and believed it 

was unlikely the culling laptops would change 

the outcome of the investigation;

• Asked Clinton what appeared to be appropriate 

questions and made use of documents to 

challenge Clinton’s testimony and assess her 

credibility during her interview. We found that, 

by the date of her interview, the Midyear team 

and Comey had concluded that the evidence did 

not support criminal charges (absent a 

confession or false statement by Clinton during 

the interview), and that the interview had little 

effect on the outcome of the investigation; and

• Allowed Mills and Samuelson to attend the 

Clinton interview as Clinton’s counsel, even 

though they also were fact witnesses, because 

the Midyear team determined that the only way 

to exclude them was to subpoena Clinton to 

testify before the grand jury, an option that we 

found was not seriously considered. We found 

no persuasive evidence that Mills’s or 

Samuelson’s presence influenced Clinton’s 

interview. Nevertheless, we found the decision 

to allow them to attend the interview was 

inconsistent with typical investigative strategy.

For each of these decisions, we analyzed whether there 

was evidence of improper considerations, including bias, 

and also whether the justifications offered for the 

decision were a pretext for improper, but unstated, 

considerations.

The question we considered was not whether a 

particular investigative decision was the ideal choice or 

one that could have been handled more effectively, but 
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Department of Justice in Advance of the 2016 Election

whether the circumstances surrounding the decision 

indicated that it was based on considerations other than 

the merits of the investigation. If a choice made by the 

investigative team was among two or more reasonable 

alternatives, we did not find that it was improper even if 

we believed that an alternative decision would have 

been more effective.

Thus, a determination by the OIG that a decision was 

not unreasonable does not mean that the OIG has 

endorsed the decision or concluded that the decision 

was the most effective among the options considered. 

We took this approach because our role as an OIG is 

not to second-guess valid discretionary judgments 

made during the course of an investigation, and this 

approach is consistent with the OIG’s handling of such 

questions in past reviews.

In undertaking our analysis, our task was made 

significantly more difficult because of text and instant 

messages exchanged on FBI devices and systems by 

five FBI employees involved in the Midyear 

investigation. These messages reflected political 

opinions in support of former Secretary Clinton and 

against her then political opponent, Donald Trump. 

Some of these text messages and instant messages

mixed political commentary with discussions about the 

Midyear investigation, and raised concerns that political 

bias may have impacted investigative decisions.

In particular, we were concerned about text messages 

exchanged by FBI Deputy Assistant Director Peter 

Strzok and Lisa Page, Special Counsel to the Deputy 

Director, that potentially indicated or created the 

appearance that investigative decisions were impacted 

by bias or improper considerations. As we describe in 

Chapter Twelve of our report, most of the text 

messages raising such questions pertained to the 

Russia investigation, which was not a part of this 

review. Nonetheless, the suggestion in certain Russiarelated text messages in August 2016 that Strzok might 

be willing to take official action to impact presidential 

candidate Trump’s electoral prospects caused us to 

question the earlier Midyear investigative decisions in 

which Strzok was involved, and whether he took specific 

actions in the Midyear investigation based on his 

political views. As we describe Chapter Five of our 

report, we found that Strzok was not the sole 

decisionmaker for any of the specific Midyear

investigative decisions we examined in that chapter. 

We further found evidence that in some instances 

Strzok and Page advocated for more aggressive 

investigative measures in the Midyear investigation, 

such as the use of grand jury subpoenas and search 

warrants to obtain evidence.

There were clearly tensions and disagreements in a 

number of important areas between Midyear agents and

prosecutors. However, we did not find documentary or 

testimonial evidence that improper considerations, 

including political bias, directly affected the specific 

investigative decisions we reviewed in Chapter Five, or 

that the justifications offered for these decisions were 

pretextual.

Nonetheless, these messages cast a cloud over the 

FBI’s handling of the Midyear investigation and the 

investigation’s credibility. But our review did not find 

evidence to connect the political views expressed in 

these messages to the specific investigative decisions 

that we reviewed; rather, consistent with the analytic 

approach described above, we found that these specific 

decisions were the result of discretionary judgments 

made during the course of an investigation by the

Midyear agents and prosecutors and that these 

judgment calls were not unreasonable. The broader 

impact of these text and instant messages, including on 

such matters as the public perception of the FBI and the 

Midyear investigation, are discussed in Chapter Twelve 

of our report.

Comey’s Public Statement on July 5

“Endgame” Discussions

As we describe in Chapter Six of the report, by the 

Spring of 2016, Comey and the Midyear team had 

determined that, absent an unexpected development, 

evidence to support a criminal prosecution of Clinton 

was lacking. Midyear team members told us that they

based this assessment on a lack of evidence showing 

intent to place classified information on the server, or 

knowledge that the information was classified. We 

describe the factors that the Department took into 

account in its decision to decline prosecution in Chapter 

Seven of our report and below.

Comey told the OIG that as he began to realize the 

investigation was likely to result in a declination, he 

began to think of ways to credibly announce its closing. 

Comey engaged then DAG Yates in discussions in April 

2016 about the “endgame” for the Midyear 

investigation. Comey said that he encouraged Yates to 

consider the most transparent options for announcing a 

declination. Yates told the OIG that, as a result of her 
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discussions with Comey, she thought the Department 

and FBI would jointly announce any declination.

Comey said he also told Yates that the closer they got 

to the political conventions, the more likely he would be 

to insist that a special counsel be appointed, because he 

did not believe the Department could credibly announce 

the closing of the investigation once Clinton was the 

Democratic Party nominee. However, we did not find 

evidence that Comey ever seriously considered 

requesting a special counsel; instead, he used the 

reference to a special counsel as an effort to induce the 

Department to move more quickly to obtain the Mills 

and Samuelson culling laptops and to complete the 

investigation.

Although Comey engaged with the Department in these 

“endgame” discussions, he told us that he was 

concerned that involvement by then AG Loretta Lynch in 

a declination announcement would result in “corrosive 

doubt” about whether the decision was objective and 

impartial because Lynch was appointed by a President 

from the same political party as Clinton. Comey cited 

other factors to us that he said caused him to be 

concerned by early May 2016 that Lynch could not 

credibly participate in announcing a declination:

• An alleged instruction from Lynch at a meeting 

in September 2015 to call the Midyear 

investigation a “matter” in statements to the 

media and Congress, which we describe in 

Chapter Four of our report;

• Statements made by then President Barack 

Obama about the Midyear investigation, which 

also are discussed in Chapter Four; and

• Concerns that certain classified information 

mentioning Lynch would leak, which we 

describe in Chapter Six and in the classified 

appendix.

As we discuss below and in Chapter Six of our report, 

the meeting between Lynch and former President 

Clinton on June 27, 2016 also played a role in Comey’s 

decision to deliver a unilateral statement.

Comey did not raise any of these concerns with Lynch 

or Yates. Rather, unbeknownst to them, Comey began 

considering the possibility of an FBI-only public 

statement in late April and early May 2016. Comey told 

the OIG that a separate public statement was 

warranted by the “500-year flood” in which the FBI 

found itself, and that he weighed the need to preserve 

the credibility and integrity of the Department and the 

FBI, and the need to protect “a sense of justice more 

broadly in the country—that things are fair not fixed, 

and they’re done independently.”

Comey’s Draft Statement

Comey’s initial draft statement, which he shared with 

FBI senior leadership on May 2, criticized Clinton’s 

handling of classified information as “grossly negligent,” 

but concluded that “no reasonable prosecutor” would 

bring a case based on the facts developed in the 

Midyear investigation. Over the course of the next 2

months, Comey’s draft statement underwent various 

language changes, including the following:

• The description of Clinton’s handling of 

classified information was changed from 

“grossly negligent” to “extremely careless;”

• A statement that the sheer volume of 

information classified as Secret supported an 

inference of gross negligence was removed and 

replaced with a statement that the classified 

information they discovered was “especially 

concerning because all of these emails were 

housed on servers not supported by full-time 

staff”;

• A statement that the FBI assessed that it was 

“reasonably likely” that hostile actors gained 

access to Clinton’s private email server was 

changed to “possible.” The statement also 

acknowledged that the FBI investigation and its 

forensic analysis did not find evidence that 

Clinton’s email server systems were 

compromised; and

• A paragraph summarizing the factors that led 

the FBI to assess that it was possible that 

hostile actors accessed Clinton’s server was 

added, and at one point referenced Clinton’s 

use of her private email for an exchange with 

then President Obama while in the territory of a 

foreign adversary. This reference later was 

changed to “another senior government 

official,” and ultimately was omitted.

Each version of the statement criticized Clinton’s 

handling of classified information. Comey told us that 

he included criticism of former Secretary Clinton’s 

uncharged conduct because “unusual transparency...was 

necessary for an unprecedented situation,” and that 

such transparency “was the best chance we had of 

having the American people have confidence that the 

justice system works[.]”
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Other witnesses told the OIG that Comey included this 

criticism to avoid creating the appearance that the FBI 

was “letting [Clinton] off the hook,” as well as to 

“messag[e]” the decision to the FBI workforce to 

emphasize that employees would be disciplined for 

similar conduct and to distinguish the Clinton 

investigation from the cases of other public figures who 

had been prosecuted for mishandling violations.

The Tarmac Meeting and Impact on Comey’s Statement

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.

Comey told the OIG that he was “90 percent there, like 

highly likely” to make a separate public statement prior 

to the tarmac meeting, but that the tarmac meeting 

“tipped the scales” toward making his mind up to go 

forward with his own public statement.

Comey’s Decision Not to Tell Department Leadership

Comey acknowledged that he made a conscious 

decision not to tell Department leadership about his 

plans to make a separate statement because he was 

concerned that they would instruct him not to do it. He 

also acknowledged that he made this decision when he 

first conceived of the idea to do the statement, even as 

he continued to engage the Department in discussions 

about the “endgame” for the investigation.

Comey admitted that he concealed his intentions from 

the Department until the morning of his press 

conference on July 5, and instructed his staff to do the 

same, to make it impracticable for Department 

leadership to prevent him from delivering his 

statement. We found that it was extraordinary and 

insubordinate for Comey to do so, and we found none of 

his reasons to be a persuasive basis for deviating from 

well-established Department policies in a way 

intentionally designed to avoid supervision by 

Department leadership over his actions.

On the morning of July 5, 2016, Comey contacted Lynch 

and Yates about his plans to make a public statement, 

but did so only after the FBI had notified the press—in 

fact, the Department first learned about Comey’s press 

conference from a media inquiry, rather than from the 

FBI. When Comey did call Lynch that morning, he told 

her that he was not going to inform her about the 

substance of his planned press statement.

While Lynch asked Comey what the subject matter of 

the statement was going to be (Comey told her in 

response it would be about the Midyear investigation), 

she did not ask him to tell her what he intended to say 

about the Midyear investigation. We found that Lynch, 

having decided not to recuse herself, retained authority 

over both the final prosecution decision and the 

Department’s management of the Midyear investigation. 

As such, we believe she should have instructed Comey 
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to tell her what he intended to say beforehand, and 

should have discussed it with Comey.

Comey’s public statement announced that the FBI had 

completed its Midyear investigation, criticized Clinton 

and her senior aides as “extremely careless” in their 

handling of classified information, stated that the FBI 

was recommending that the Department decline 

prosecution of Clinton, and asserted that “no reasonable 

prosecutor” would prosecute Clinton based on the facts 

developed by the FBI during its investigation. We 

determined that Comey’s decision to make this 

statement was the result of his belief that only he had 

the ability to credibly and authoritatively convey the 

rationale for the decision to not seek charges against 

Clinton, and that he needed to hold the press 

conference to protect the FBI and the Department from 

the extraordinary harm that he believed would have 

resulted had he failed to do so. While we found no 

evidence that Comey’s statement was the result of bias 

or an effort to influence the election, we did not find his 

justifications for issuing the statement to be reasonable 

or persuasive.

We concluded that Comey’s unilateral announcement 

was inconsistent with Department policy and violated 

long-standing Department practice and protocol by, 

among other things, criticizing Clinton’s uncharged 

conduct. We also found that Comey usurped the 

authority of the Attorney General, and inadequately and 

incompletely described the legal position of Department 

prosecutors.

The Department’s Declination Decision 

on July 6

Following Comey’s public statement on July 5, the 

Midyear prosecutors finalized their recommendation 

that the Department decline prosecution of Clinton, her 

senior aides, and the senders of emails determined to 

contain classified information. On July 6, the Midyear 

prosecutors briefed Lynch, Yates, Comey, other 

members of Department and FBI leadership, and FBI 

Midyear team members about the basis for the 

declination recommendation. Lynch subsequently 

issued a short public statement that she met with the 

career prosecutors and agents who conducted the 

investigation and “received and accepted their 

unanimous recommendation” that the investigation be 

closed without charges.

We found that the prosecutors considered five federal 

statutes:

• 18 U.S.C. §§ 793(d) and (e) (willful mishandling 

of documents or information relating to the 

national defense);

• 18 U.S.C. § 793(f) (removal, loss, theft, 

abstraction, or destruction of documents or 

information relating to the national defense 

through gross negligence, or failure to report 

such removal, loss, theft, abstraction, or 

destruction);

• 18 U.S.C. § 1924 (unauthorized removal and 

retention of classified documents or material by 

government employees); and

• 18 U.S.C. § 2071 (concealment, removal, or 

mutilation of government records).

As described in Chapter Seven of our report, the 

prosecutors concluded that the evidence did not support 

prosecution under any of these statutes for various 

reasons, including that former Secretary Clinton and her 

senior aides lacked the intent to communicate classified 

information on unclassified systems. Critical to their 

conclusion was that the emails in question lacked 

proper classification markings, that the senders often 

refrained from using specific classified facts or terms in 

emails and worded emails carefully in an attempt to 

“talk around” classified information, that the emails 

were sent to other government officials in furtherance 

of their official duties, and that former Secretary Clinton 

relied on the judgment of State Department employees 

to properly handle classified information, among other 

facts.

We further found that the statute that required the 

most complex analysis by the prosecutors was Section

793(f)(1), the “gross negligence” provision that has 

been the focus of much of the criticism of the 

declination decision. As we describe in Chapters Two 

and Seven of our report, the prosecutors analyzed the 

legislative history of Section 793(f)(1), relevant case 

law, and the Department’s prior interpretation of the 

statute. They concluded that Section 793(f)(1) likely 

required a state of mind that was “so gross as to almost 

suggest deliberate intention,” criminally reckless, or 

“something that falls just short of being willful,” as well 

as evidence that the individuals who sent emails 

containing classified information “knowingly” included or 

transferred such information onto unclassified systems.

The Midyear team concluded that such proof was 

lacking. We found that this interpretation of Section 

793(f)(1) was consistent with the Department’s 

historical approach in prior cases under different 

leadership, including in the 2008 decision not to 
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prosecute former Attorney General Alberto Gonzales for 

mishandling classified documents.

We analyzed the Department’s declination decision 

according to the same analytical standard that we 

applied to other decisions made during the 

investigation. We did not substitute the OIG’s 

judgment for the judgments made by the Department, 

but rather sought to determine whether the decision 

was based on improper considerations, including 

political bias. We found no evidence that the 

conclusions by the prosecutors were affected by bias or 

other improper considerations; rather, we determined 

that they were based on the prosecutors’ assessment of 

the facts, the law, and past Department practice.

We therefore concluded that these were legal and policy 

judgments involving core prosecutorial discretion that 

were for the Department to make.

Discovery in September 2016 of Emails 

on the Weiner Laptop

Discovery of Emails by the FBI’s New York Field Office

In September 2016, the FBI’s New York Field Office 

(NYO) and the U.S. Attorney’s Office for the Southern 

District of New York (SDNY) began investigating former 

Congressman Anthony Weiner for his online relationship 

with a minor. A federal search warrant was obtained on 

September 26, 2016, for Weiner’s iPhone, iPad, and 

laptop computer. The FBI obtained these devices the 

same day. The search warrant authorized the 

government to search for evidence relating to the 

following crimes: transmitting obscene material to a 

minor, sexual exploitation of children, and activities 

related to child pornography.

The Weiner case agent told the OIG that he began 

processing Weiner’s devices on September 26, and that 

he noticed “within hours” that there were “over 300,000 

emails on the laptop.” He said that either that evening 

or the next morning, he saw at least one BlackBerry PIN 

message between Clinton and Abedin, as well as emails 

between them. He said that he recalled seeing emails 

associated with “about seven domains,” such as 

yahoo.com, state.gov, clintonfoundation.org, 

clintonemail.com, and hillaryclinton.com. The case 

agent immediately notified his NYO chain of command,

and the information was ultimately briefed to NYO 

Assistant Director in Charge (ADIC) William Sweeney on 

September 28.

Reporting of Emails to FBI Headquarters

As we describe in Chapter Nine of our report, Sweeney 

took the following steps to notify FBI Headquarters 

about the discovery of Midyear-related emails on the 

Weiner laptop:

• On September 28, during a secure video 

teleconference (SVTC), Sweeney reported that 

Weiner investigation agents had discovered 

141,000 emails on Weiner’s laptop that were 

potentially relevant to the Midyear investigation. 

The OIG determined that this SVTC was led by 

then Deputy Director Andrew McCabe, and that 

approximately 39 senior FBI executives likely 

would have participated. Comey was not 

present for the SVTC.

• Sweeney said he spoke again with McCabe on 

the evening of September 28. Sweeney said 

that during this call he informed McCabe that 

NYO personnel had continued processing the 

laptop and that they had now identified 347,000 

emails on the laptop.

• Sweeney said he also called two FBI Executive 

Assistant Directors (EAD) on September 28 and 

informed them that the Weiner case team had 

discovered emails relevant to the Midyear 

investigation. One of the EADs told the OIG 

that he then called McCabe, and that McCabe 

told the EAD that he was aware of the emails. 

The EAD told us that “[T]here was no doubt in 

my mind when we finished that conversation 

that [McCabe] understood the, the gravity of 

what the find was.”

• Sweeney said he also spoke to FBI Assistant 

Director E.W. “Bill” Priestap on September 28 

and 29, 2016. Emails indicate that during their 

conversation on September 29, they discussed 

the limited scope of the Weiner search warrant 

(i.e., the need to obtain additional legal process 

to review any Midyear-related email on the 

Weiner laptop).

Initial Response of FBI Headquarters

McCabe told the OIG that he considered the information 

provided by Sweeney to be “a big deal” and said he 

instructed Priestap to send a team to New York to 

review the emails on the Weiner laptop. McCabe told 

the OIG that he recalled talking to Comey about the 

issue “right around the time [McCabe] found out about 

it.” McCabe described it as a “fly-by,” where the Weiner 
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laptop was “like one in a list of things that we 

discussed.”

Comey said that he recalled first learning about the 

additional emails on the Weiner laptop at some point in 

early October 2016, although he said it was possible 

this could have occurred in late September 2016. 

Comey told the OIG that this information “didn’t index” 

with him, which he attributed to the way the 

information was presented to him and the fact that, “I 

don’t know that I knew that [Weiner] was married to 

Huma Abedin at the time.”

Text messages of FBI Deputy Assistant Director Peter 

Strzok indicated that he, McCabe, and Priestap 

discussed the Weiner laptop on September 28. Strzok 

said that he had initially planned to send a team to New 

York to review the emails, but a conference call with 

NYO was scheduled instead. The conference call took 

place on September 29, and five members of the FBI 

Midyear team participated. Notes from the conference 

call indicate the participants discussed the presence of a 

large volume of emails (350,000) on the Weiner laptop 

and specific domain names, including clintonemail.com 

and state.gov. The Midyear SSA said that NYO also 

mentioned seeing BlackBerry domain emails on the 

Weiner laptop.

Additional discussions took place on October 3 and 4, 

2016. However, after October 4, we found no evidence 

that anyone associated with the Midyear investigation, 

including the entire leadership team at FBI 

Headquarters, took any action on the Weiner laptop 

issue until the week of October 24, and then did so only 

after the Weiner case agent expressed concerns to 

SDNY, prompting SDNY to contact the Office of the 

Deputy Attorney General (ODAG) on October 21 to raise 

concerns about the lack of action.

Reengagement of FBI Headquarters

On Friday, October 21, SDNY Deputy U.S. Attorney Joon 

Kim contacted ODAG and was put in touch with DAAG 

George Toscas, the most senior career Department 

official involved in the Midyear investigation. 

Thereafter, at Toscas’s request, one of the Midyear 

prosecutors called Strzok. This was the first 

conversation that the FBI had with Midyear prosecutors 

about the Weiner laptop.

Toscas said he asked McCabe about the Weiner laptop 

on Monday, October 24, after a routine meeting 

between FBI and Department leadership. McCabe told 

us that this interaction with Toscas caused him to follow 

up with the FBI Midyear team about the Weiner laptop 

and to call McCord about the issue. 

On October 26, NYO, SDNY, and Midyear team 

members participated in a conference call. The FBI 

Midyear team told the OIG that they learned important 

new information on this call, specifically: (1) that there 

was a large volume of emails on the Weiner laptop, 

particularly the potential for a large number of 

@clintonemail.com emails; and (2) that the presence of 

Blackberry data indicated that emails from Clinton’s first 

three months as Secretary of State could be present on 

the laptop. However, as we describe above and in 

Chapter Nine of our report, these basic facts were 

known to the FBI by September 29, 2016.

The FBI Midyear team briefed McCabe about the 

information from the conference call on the evening of 

October 26, 2016. McCabe told us that he felt the 

situation was “absolutely urgent” and proposed that the 

FBI Midyear team meet with Comey the following day. 

On October 27 at 5:20 a.m., McCabe emailed Comey 

stating that the Midyear team “has come across some 

additional actions they believe they need to take,” and 

recommending that they meet that day to discuss the 

implications “if you have any space on your calendar.” 

Comey stated that he did not know what this email was 

about when he received it and did not initially recall that 

he had been previously notified about the Weiner 

laptop.

We found that, by no later than September 29, FBI 

executives and the FBI Midyear team had learned 

virtually every fact that was cited by the FBI in late 

October as justification for obtaining the search warrant 

for the Weiner laptop, including that the laptop 

contained:

• Over 340,000 emails, some of which were from 

domains associated with Clinton, including 

state.gov, clintonfoundation.org, 

clintonemail.com, and hillaryclinton.com;

• Numerous emails between Clinton and Abedin;

• An unknown number of Blackberry 

communications on the laptop, including one or 

more messages between Clinton and Abedin, 

indicating the possibility that the laptop 

contained communications from the early 

months of Clinton’s tenure; and

• Emails dated beginning in 2007 and covering 

the entire period of Clinton’s tenure as 

Secretary of State.
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As we describe in Chapter Nine of our report, the 

explanations we were given for the FBI’s failure to take 

immediate action on the Weiner laptop fell into four 

general categories:

• The FBI Midyear team was waiting for additional 

information about the contents of the laptop 

from NYO, which was not provided until late 

October;

• The FBI Midyear team could not review the 

emails without additional legal authority, such 

as consent or a new search warrant;

• The FBI Midyear team and senior FBI officials 

did not believe that the information on the 

laptop was likely to be significant; and

• Key members of the FBI Midyear team had been 

reassigned to the investigation of Russian 

interference in the U.S. election, which was a 

higher priority.

We found these explanations to be unpersuasive 

justifications for not acting sooner, given the FBI 

leadership’s conclusion about the importance of the 

information and that the FBI Midyear team had 

sufficient information to take action in early October 

and knew at that time that it would need a new search 

warrant to review any Clinton-Abedin emails. 

Moreover, given the FBI’s extensive resources, the fact 

that Strzok and several other FBI members of the 

Midyear team had been assigned to the Russia 

investigation, which was extremely active during this 

September and October time period, was not an excuse 

for failing to take any action during this time period on 

the Weiner laptop.

The FBI’s failure to act in late September or early 

October is even less justifiable when contrasted with 

the attention and resources that FBI management and 

some members of the Midyear team dedicated to other 

activities in connection with the Midyear investigation 

during the same period. As detailed in Chapter Eight, 

these activities included:

• The preparation of Comey’s speech at the FBI’s 

SAC Conference on October 12, a speech 

designed to help equip SACs to “bat down” 

misinformation about the July 5 declination 

decision;

• The preparation and distribution of detailed 

talking points to FBI SACs in mid-October in 

order, again, “to equip people who are going to 

be talking about it anyway with the actual facts 

and [the FBI’s] actual perspective on [the 

declination]”; and

• A briefing for retired FBI agents conducted on 

October 21 to describe the investigative 

decisions made during Midyear so as to arm 

former employees with facts so that they, too, 

might counter “falsehoods and exaggerations.”

In assessing the decision to prioritize the Russia 

investigation over following up on the Midyear-related 

investigative lead discovered on the Weiner laptop, we 

were particularly concerned about text messages sent 

by Strzok and Page that potentially indicated or created 

the appearance that investigative decisions they made 

were impacted by bias or improper considerations. 

Most of the text messages raising such questions 

pertained to the Russia investigation, and the 

implication in some of these text messages, particularly 

Strzok’s August 8 text message (“we’ll stop” candidate 

Trump from being elected), was that Strzok might be 

willing to take official action to impact a presidential 

candidate’s electoral prospects. Under these 

circumstances, we did not have confidence that Strzok’s 

decision to prioritize the Russia investigation over 

following up on the Midyear-related investigative lead 

discovered on the Weiner laptop was free from bias.

We searched for evidence that the Weiner laptop was 

deliberately placed on the back-burner by others in the 

FBI to protect Clinton, but found no evidence in emails, 

text messages, instant messages, or documents that 

suggested an improper purpose. We also took note of 

the fact that numerous other FBI executives—including 

the approximately 39 who participated in the 

September 28 SVTC—were briefed on the potential 

existence of Midyear-related emails on the Weiner 

laptop. We also noted that the Russia investigation was 

under the supervision of Priestap—for whom we found 

no evidence of bias and who himself was aware of the 

Weiner laptop issue by September 29. However, we 

also did not identify a consistent or persuasive 

explanation for the FBI’s failure to act for almost a 

month after learning of potential Midyear-related emails 

on the Weiner laptop.

The FBI’s inaction had potentially far-reaching 

consequences. Comey told the OIG that, had he known 

about the laptop in the beginning of October and 

thought the email review could have been completed 

before the election, it may have affected his decision to 

notify Congress. Comey told the OIG, “I don’t know [if]

it would have put us in a different place, but I would 

have wanted to have the opportunity.”
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Executive Summary

A Review of Various Actions by the Federal Bureau of Investigation and 

Department of Justice in Advance of the 2016 Election

Comey’s Decision to Notify Congress on 

October 28

Following the briefing from the FBI Midyear team on 

October 27, 2016, Comey authorized the Midyear team 

to seek a search warrant, telling the OIG that “the 

volume of emails” and the presence of BlackBerry 

emails on the Weiner laptop were “two highly significant 

facts.” As we describe in Chapter Thirteen of our 

report, McCabe joined this meeting by phone but was 

asked not to participate, and subsequently recused 

himself from the Midyear investigation on November 1, 

2016.

The issue of notifying Congress of the Weiner laptop 

development was first raised at the October 27 briefing 

and, over the course of the next 24 hours, numerous 

additional discussions occurred within the FBI. As we 

describe in Chapter Ten of our report, the factors 

considered during those discussions included:

• Comey’s belief that failure to disclose the 

existence of the emails would be an act of 

concealment;

• The belief that Comey had an obligation to 

update Congress because the discovery was 

potentially significant and made his prior 

testimony that the investigation was closed no 

longer true;

• An implicit assumption that Clinton would be 

elected President;

• Fear that the information would leak if the FBI 

failed to disclose it;

• Concern that failing to disclose would result in 

accusations that the FBI had “engineered a 

cover up” to help Clinton get elected;

• Concerns about protecting the reputation of the 

FBI;

• Concerns about the perceived illegitimacy of a 

Clinton presidency that would follow from a 

failure to disclose the discovery of the emails if 

they proved to be significant;

• Concerns about the electoral impact of any 

announcement; and

• The belief that the email review could not be 

completed before the election.

As a result of these discussions on October 27, Comey 

decided to notify Congress about the discovery of 

Midyear-related emails on the Weiner laptop. Comey 

told us that, although he “believe[d] very strongly that 

our rule should be, we don’t comment on pending 

investigations” and that it was a “very important norm” 

for the Department to avoid taking actions that could 

impact an imminent election, he felt he had an 

obligation to update Congress because the email 

discovery was potentially very significant and it made 

his prior testimony no longer true.

We found no evidence that Comey’s decision to send 

the October 28 letter was influenced by political 

preferences. Instead, we found that his decision was 

the result of several interrelated factors that were 

connected to his concern that failing to send the letter 

would harm the FBI and his ability to lead it, and his 

view that candidate Clinton was going to win the 

presidency and that she would be perceived to be an 

illegitimate president if the public first learned of the 

information after the election. Although Comey told us 

that he “didn’t make this decision because [he] thought 

it would leak otherwise,” several FBI officials told us 

that the concern about leaks played a role in the 

decision.

Much like with his July 5 announcement, we found that 

in making this decision, Comey engaged in ad hoc 

decisionmaking based on his personal views even if it 

meant rejecting longstanding Department policy or 

practice. We found unpersuasive Comey’s explanation 

as to why transparency was more important than 

Department policy and practice with regard to the

reactivated Midyear investigation while, by contrast, 

Department policy and practice were more important to 

follow with regard to the Clinton Foundation and Russia 

investigations.

Comey’s description of his choice as being between 

“two doors,” one labeled “speak” and one labeled 

“conceal,” was a false dichotomy. The two doors were 

actually labeled “follow policy/practice” and “depart 

from policy/practice.” Although we acknowledge that 

Comey faced a difficult situation with unattractive 

choices, in proceeding as he did, we concluded that 

Comey made a serious error of judgment.

Department and FBI Leadership Discussions

On October 27, Comey instructed his Chief of Staff, 

James Rybicki, to reach out to the Department about 

his plan to notify Congress. As we describe in Chapter 

Ten of our report, Comey told the OIG that he decided 

to ask Rybicki to inform the Department rather than to 

contact Lynch or Yates directly because he did not 

“want to jam them and I wanted to offer them the 
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A Review of Various Actions by the Federal Bureau of Investigation and 

Department of Justice in Advance of the 2016 Election

opportunity to think about and decide whether they 

wanted to be engaged on it.” Rybicki and Axelrod 

spoke on the afternoon of October 27 and had “a series 

of phone calls” the rest of the day. Rybicki told Axelrod 

that Comey believed he had an obligation to notify 

Congress about the laptop in order to correct a 

misimpression that the Midyear investigation was 

closed.

Lynch, Yates, Axelrod, and their staffs had several 

discussions that same day as to whether Lynch or Yates 

should call Comey directly, but said they ultimately 

decided to have Axelrod communicate “the strong view 

that neither the DAG nor [AG] felt this letter should go 

out.” Yates told us they were concerned that direct 

contact with Comey would be perceived as “strongarming” him, and that based on her experience with 

Comey, he was likely to “push back hard” against input 

from Lynch or her, especially if accepting their input 

meant that he had to go back to his staff and explain 

that he was reversing his decision. She said that she 

viewed Rybicki as the person they needed to convince if 

they wanted to change Comey’s mind. Accordingly, 

Axelrod informed Rybicki on October 27 of the 

Department’s strong opposition to Comey’s plan to send 

a letter.

Rybicki reported to Comey that the Department 

“recommend[ed] against” the Congressional notification 

and thought it was “a bad idea.” Although Comey told 

us that he would not have sent the letter if Lynch or 

Yates had told him not to do so, he said he viewed their 

response as only a recommendation and interpreted 

their lack of direct engagement as saying “basically...it’s 

up to you.... I honestly thought they were taking kind 

of a cowardly way out.” The following day, October 28, 

Comey sent a letter to Congress stating, in part, that 

“the FBI has learned of the existence of emails that 

appear to be pertinent to the [Midyear] investigation.”

Comey, Lynch, and Yates faced difficult choices in late 

October 2016. However, we found it extraordinary that 

Comey assessed that it was best that the FBI Director 

not speak directly with the Attorney General and 

Deputy Attorney General about how best to navigate 

this most important decision and mitigate the resulting 

harms, and that Comey’s decision resulted in the 

Attorney General and Deputy Attorney General 

concluding that it would be counterproductive to speak 

directly with the FBI Director. We believe that open and 

candid communication among leaders in the 

Department and its components is essential for the 

effective functioning of the Department.

Text and Instant Messages, Use of 

Personal Email, and Alleged Improper 

Disclosures of Non-Public Information

Text Messages and Instant Messages

As we describe in Chapter Twelve, during our review we 

identified text messages and instant messages sent on 

FBI mobile devices or computer systems by five FBI 

employees who were assigned to the Midyear 

investigation. These included:

• Text messages exchanged between Strzok and 

Page;

• Instant messages exchanged between Agent 1, 

who was one of the four Midyear case agents, 

and Agent 5, who was a member of the filter 

team; and

• Instant messages sent by FBI Attorney 2, who 

was assigned to the Midyear investigation.

The text messages and instant messages sent by these 

employees included statements of hostility toward then 

candidate Trump and statements of support for 

candidate Clinton, and several appeared to mix political 

opinions with discussions about the Midyear 

investigation.

We found that the conduct of these five FBI employees 

brought discredit to themselves, sowed doubt about the 

FBI’s handling of the Midyear investigation, and 

impacted the reputation of the FBI. Although our 

review did not find documentary or testimonial evidence 

directly connecting the political views these employees 

expressed in their text messages and instant messages 

to the specific investigative decisions we reviewed in 

Chapter Five, the conduct by these employees cast a 

cloud over the FBI Midyear investigation and sowed 

doubt the FBI’s work on, and its handling of, the 

Midyear investigation. Moreover, the damage caused 

by their actions extends far beyond the scope of the 

Midyear investigation and goes to the heart of the FBI’s 

reputation for neutral factfinding and political 

independence.

We were deeply troubled by text messages exchanged 

between Strzok and Page that potentially indicated or 

created the appearance that investigative decisions 

were impacted by bias or improper considerations. 

Most of the text messages raising such questions 

pertained to the Russia investigation, which was not a 

part of this review. Nonetheless, when one senior FBI 

official, Strzok, who was helping to lead the Russia 
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Executive Summary

A Review of Various Actions by the Federal Bureau of Investigation and 

Department of Justice in Advance of the 2016 Election

investigation at the time, conveys in a text message to 

another senior FBI official, Page, “No. No he won’t. 

We’ll stop it” in response to her question “[Trump’s] not 

ever going to become president, right? Right?!”, it is 

not only indicative of a biased state of mind but, even 

more seriously, implies a willingness to take official 

action to impact the presidential candidate’s electoral 

prospects. This is antithetical to the core values of the 

FBI and the Department of Justice.

We do not question that the FBI employees who sent 

these messages are entitled to their own political views. 

However, we believe using FBI devices to send the 

messages discussed in Chapter Twelve—particularly the 

messages that intermix work-related discussions with 

political commentary—potentially implicate provisions in 

the FBI’s Offense Code and Penalty Guidelines. At a 

minimum, we found that the employees’ use of FBI 

systems and devices to send the identified messages 

demonstrated extremely poor judgment and a gross 

lack of professionalism. We therefore refer this 

information to the FBI for its handling and consideration 

of whether the messages sent by the five employees 

listed above violated the FBI’s Offense Code of Conduct.

Use of Personal Email

As we also describe in Chapter Twelve, we learned 

during the course of our review that Comey, Strzok, 

and Page used their personal email accounts to conduct 

FBI business.

We identified numerous instances in which Comey used 

a personal email account to conduct unclassified FBI 

business. We found that, given the absence of exigent 

circumstances and the frequency with which the use of 

personal email occurred, Comey’s use of a personal 

email account for unclassified FBI business to be 

inconsistent with Department policy.

We found that Strzok used his personal email accounts 

for official government business on several occasions, 

including forwarding an email from his FBI account to 

his personal email account about the proposed search 

warrant the Midyear team was seeking on the Weiner 

laptop. This email included a draft of the search 

warrant affidavit, which contained information from the 

Weiner investigation that appears to have been under 

seal at the time in the Southern District of New York 

and information obtained pursuant to a grand jury 

subpoena issued in the Eastern District of Virginia in the 

Midyear investigation. We refer to the FBI the issue of 

whether Strzok’s use of personal email accounts 

violated FBI and Department policies.

Finally, when questioned, Page also told us she used 

personal email for work-related matters at times. She 

stated that she and Strzok sometimes used these 

forums for work-related discussions due to the technical 

limitations of FBI-issued phones. Page left the FBI on 

May 4, 2018.

Improper Disclosure of Non-Public Information

As we also describe in Chapter Twelve, among the 

issues we reviewed were allegations that Department 

and FBI employees improperly disclosed non-public 

information regarding the Midyear investigation. 

Although FBI policy strictly limits the employees who 

are authorized to speak to the media, we found that 

this policy appeared to be widely ignored during the 

period we reviewed.

We identified numerous FBI employees, at all levels of 

the organization and with no official reason to be in 

contact with the media, who were nevertheless in 

frequent contact with reporters. Attached to this report 

as Attachments E and F are two link charts that reflect 

the volume of communications that we identified 

between FBI employees and media representatives in 

April/May and October 2016. We have profound 

concerns about the volume and extent of unauthorized 

media contacts by FBI personnel that we have

uncovered during our review.

In addition, we identified instances where FBI 

employees improperly received benefits from reporters, 

including tickets to sporting events, golfing outings, 

drinks and meals, and admittance to nonpublic social 

events. We will separately report on those 

investigations as they are concluded, consistent with 

the Inspector General Act, other applicable federal 

statutes, and OIG policy.

The harm caused by leaks, fear of potential leaks, and a 

culture of unauthorized media contacts is illustrated in 

Chapters Ten and Eleven of our report, where we detail 

the fact that these issues influenced FBI officials who 

were advising Comey on consequential investigative 

decisions in October 2016. The FBI updated its media 

policy in November 2017, restating its strict guidelines 

concerning media contacts, and identifying who is 

required to obtain authority before engaging members 

of the media, and when and where to report media 

contact. We do not believe the problem is with the 

FBI’s policy, which we found to be clear and 

unambiguous. Rather, we concluded that these leaks 

highlight the need to change what appears to be a 

cultural attitude among many in the organization.
xiii

Executive Summary

A Review of Various Actions by the Federal Bureau of Investigation and 

Department of Justice in Advance of the 2016 Election

Recusal Issues

Former Deputy Director Andrew McCabe: As we 

describe in Chapter Thirteen, in 2015, McCabe’s spouse, 

Dr. Jill McCabe, ran for a Virginia State Senate seat. 

During the campaign, Dr. McCabe’s campaign 

committee received substantial monetary and in-kind 

contributions, totaling $675,288 or approximately 40 

percent of the total contributions raised by Dr. McCabe 

for her state senate campaign, from then Governor 

McAuliffe’s Political Action Committee (PAC) and from 

the Virginia Democratic Party. In addition, on June 26, 

2015, Hillary Clinton was the featured speaker at a 

fundraiser in Virginia hosted by the Virginia Democratic 

Party and attended by Governor McAuliffe.

At the time his wife sought to run for state senate, 

McCabe was the Assistant Director in Charge of the 

FBI’s Washington Field Office (WFO) and sought ethics 

advice from FBI ethics officials and attorneys. We 

found that FBI ethics officials and attorneys did not fully 

appreciate the potential significant implications to 

McCabe and the FBI from campaign donations to Dr. 

McCabe’s campaign. The FBI did not implement any 

review of campaign donations to assess potential 

conflicts or appearance issues that could arise from the 

donations. On this issue, we believe McCabe did what 

he was supposed to do by notifying those responsible in 

the FBI for ethics issues and seeking their guidance.

After McCabe became FBI Deputy Director in February 

2016, McCabe had an active role in the supervision of 

the Midyear investigation, and oversight of the Clinton 

Foundation investigation, until he recused himself from 

these investigations on November 1, 2016. McCabe 

voluntarily recused himself on November 1, at Comey’s 

urging, as the result of an October 23 article in the Wall 

Street Journal identifying the substantial donations from 

McAuliffe’s PAC and the Virginia Democratic Party to Dr. 

McCabe.

With respect to these investigations, we agreed with the 

FBI’s chief ethics official that McCabe was not at any 

time required to recuse under the relevant authorities. 

However, voluntary recusal is always permissible with 

the approval of a supervisor or ethics official, which is 

what McCabe did on November 1. Had the FBI put in 

place a system for reviewing campaign donations to Dr. 

McCabe, which were public under Virginia law, the 

sizable donations from McAuliffe’s PAC and the Virginia 

Democratic Party may have triggered prior 

consideration of the very appearance concerns raised in 

the October 23 WSJ article. Finally, we also found that 

McCabe did not fully comply with this recusal in a few 

instances related to the Clinton Foundation 

investigation.

Former Assistant Attorney General Peter Kadzik: 

In Chapter Fourteen, we found that Kadzik 

demonstrated poor judgment by failing to recuse 

himself from Clinton-related matters under federal 

ethics regulations prior to November 2, 2016. Kadzik 

did not recognize the appearance of a conflict that he 

created when he initiated an effort to obtain 

employment for his son with the Clinton campaign while 

participating in Department discussions and 

communications about Clinton-related matters.

Kadzik also created an appearance of a conflict when he 

sent the Chairman of the Clinton Campaign and a 

longtime friend, John Podesta, the “Heads up” email 

that included the schedule for the release of former 

Secretary Clinton’s emails proposed to the court in a 

FOIA litigation without knowing whether the information 

had yet been filed and made public. His willingness to 

do so raised a reasonable question about his ability to 

act impartially on Clinton-related matters in connection 

with his official duties.

Additionally, although Department leadership 

determined that Kadzik should be recused from Clintonrelated matters upon learning of his “Heads up” email 

to Podesta, we found that Kadzik failed to strictly 

adhere to this recusal. Lastly, because the government 

information in the “Heads up” email had in fact been 

released publically, we did not find that Kadzik released 

non-public information or misused his official position.

FBI Records Vault Twitter 

Announcements

As we describe in Chapter Fifteen, on November 1, 

2016, in response to multiple FOIA requests, the FBI 

Records Management Division (RMD) posted records to 

the FBI Records Vault, a page on the FBI’s public 

website, concerning the “William J. Clinton Foundation.” 

The @FBIRecordsVault Twitter account announced this 

posting later the same day. We concluded that these 

requests were processed according to RMD’s internal 

procedures like other similarly-sized requests, and 

found no evidence that the FOIA response was 

expedited or delayed in order to impact the 2016 

presidential election. We also found no evidence that 

improper political considerations influenced the FBI’s 

use of the Twitter account to publicize the release.
xiv

Executive Summary

A Review of Various Actions by the Federal Bureau of Investigation and 

Department of Justice in Advance of the 2016 Election

Recommendations

Our report makes nine recommendations to the 

Department and the FBI to assist them in addressing 

the issues that we identified in this review:

• We recommend that the Department and the 

FBI consider developing guidance that identifies 

the risks associated with and alternatives to 

permitting a witness to attend a voluntary 

interview of another witness (including in the 

witness’s capacity as counsel).

• We recommend that the Department consider 

making explicit that, except in situations where 

the law requires or permits disclosure, an 

investigating agency cannot publicly announce 

its recommended charging decision prior to 

consulting with the Attorney General, Deputy 

Attorney General, U.S. Attorney, or his or her 

designee, and cannot proceed without the 

approval of one of these officials.

• We recommend that the Department and the 

FBI consider adopting a policy addressing the 

appropriateness of Department employees 

discussing the conduct of uncharged individuals 

in public statements.

• We recommend that the Department consider 

providing guidance to agents and prosecutors 

concerning the taking of overt investigative 

steps, indictments, public announcements, or 

other actions that could impact an election.

• We recommend that the Office of the Deputy 

Attorney General take steps to improve the 

retention and monitoring of text messages 

Department-wide.

• We recommend that the FBI add a warning 

banner to all of the FBI’s mobile phones and 

devices in order to further notify users that they 

have no reasonable expectation of privacy.

• We recommend that the FBI consider (a) 

assessing whether it has provided adequate 

training to employees about the proper use of 

text messages and instant messages, including 

any related discovery obligations, and (b) 

providing additional guidance about the 

allowable uses of FBI devices for any nongovernmental purpose, including guidance 

about the use of FBI devices for political 

conversations.

• We recommend that the FBI consider whether 

(a) it is appropriately educating employees 

about both its media contact policy and the 

Department’s ethics rules pertaining to the 

acceptance of gifts, and (b) its disciplinary 

provisions and penalties are sufficient to deter 

such improper conduct.

• We recommend that Department ethics officials 

include the review of campaign donations for 

possible conflict issues when Department 

employees or their spouses run for public office.
xv

TABLE OF CONTENTS

CHAPTER ONE: INTRODUCTION...................................................................... 1

I. Background.......................................................................................... 1

II. Methodology ........................................................................................ 3

III. Analytical Construct .............................................................................. 5

IV. Structure of the Report.......................................................................... 6

CHAPTER TWO: APPLICABLE LAWS AND DEPARTMENT POLICIES ........................ 9

I. Policies and Laws Governing Criminal Investigations.................................. 9

A. Grand Jury Subpoenas................................................................ 10

B. Search Warrants and 2703(d) Orders ........................................... 10

C. Evidence Collection Related to Attorney-Client Relationships ........... 12

D. Use of Classified Evidence Before A Grand Jury.............................. 13

E. Immunity Agreements................................................................ 13

1. Transactional Immunity..................................................... 13

2. Formal Use Immunity........................................................ 14

3. Letter Immunity and “Queen for a Day” Agreements ............. 14

4. Act of Production Immunity................................................ 15

II. Department Policies and Practices Governing Investigative Activities in 

Advance of an Election ........................................................................ 16

A. Election Year Sensitivities Policy .................................................. 16

B. The Unwritten 60-Day Rule ......................................................... 17

III. Public Allegations of Wrongdoing Against Uncharged Individuals and 

Disclosure of Information in a Criminal Investigation ............................... 18

A. FBI Media Relations Policy........................................................... 19

B. 28 C.F.R. § 50.2 ........................................................................ 20

C. USAM Media Relations Guidance .................................................. 21

IV. Release of Information to Congress....................................................... 22

A. USAM Congressional Relations Guidance....................................... 22

B. FBI Guidance on Information Sharing with Congress ...................... 23

C. Current Department Policy on Communication of Investigative 

Information to Congress ............................................................. 23
xvi

1. Policy Memoranda on Department Communications with 

Congress ......................................................................... 24

2. The Linder Letter .............................................................. 24

V. Special Counsel Regulations ................................................................. 25

VI. Criminal Statutes Relevant to the Midyear Investigation .......................... 26

A. Mishandling and Retention of Classified Information ....................... 26

1. 18 U.S.C. §§ 793(d) and (e) .............................................. 26

2. 18 U.S.C. § 793(f) ............................................................ 29

3. 18 U.S.C. § 1924.............................................................. 34

B. 18 U.S.C. § 2071(a)................................................................... 36

CHAPTER THREE: OVERVIEW OF THE MIDYEAR INVESTIGATION ...................... 37

I. Referral and Opening of the Investigation .............................................. 37

A. Background............................................................................... 37

1. Clinton’s Use of Private Email Servers ................................. 37

2. Production of Emails from the Private Email Servers to the State 

Department and Subsequent Deletion of Emails by Clinton’s 

Staff ............................................................................... 37

B. State Department Inspector General and IC IG Review of Clinton’s 

Emails and Subsequent 811 Referral ............................................ 39

C. FBI’s Decision to Open a Criminal Investigation ............................. 40

D. Initial Briefing for the Department ............................................... 41

II. Staffing the Midyear Investigation......................................................... 42

A. FBI Staffing............................................................................... 42

B. Department Staffing................................................................... 46

III. Role of Senior FBI and Department Leadership in the Investigation........... 47

A. FBI Leadership .......................................................................... 47

B. Department Leadership .............................................................. 50

IV. Investigative Strategy ......................................................................... 54

A. Collection and Examination of Emails that Traversed Clinton’s Servers 

and Other Relevant Evidence....................................................... 55

B. Witness Interviews..................................................................... 56

C. Intrusion Analysis ...................................................................... 57

CHAPTER FOUR: DECISION TO PUBLICLY ACKNOWLEDGE THE MIDYEAR 

INVESTIGATION AND REACTION TO WHITE HOUSE STATEMENTS ABOUT THE 

INVESTIGATION ................................................................................. 59
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I. Public Acknowledgement of the Investigation ......................................... 59

A. Statements about the Investigation in Department and FBI Letters to 

Congress in August and September 2015...................................... 59

B. September 28, 2015 Meeting between Attorney General Lynch and 

Director Comey ......................................................................... 60

1. Comey’s Account of the Meeting ......................................... 60

2. Lynch’s Recollection of the Meeting ..................................... 61

3. Toscas’s Notes and Recollection of the Meeting..................... 64

C. October 1, 2015 Comey Meeting with Media.................................. 65

II. Reaction to White House Statements about the Midyear Investigation ....... 66

CHAPTER FIVE: INVESTIGATIVE METHODS USED IN THE INVESTIGATION......... 71

I. FBI’s Efforts to Identify and Review Relevant Sources of Evidence ............ 71

II. The Midyear Team’s Efforts to Understand and Access Clinton’s Servers .... 76

III. Use of Criminal Process to Obtain Documentary and Digital Evidence ........ 79

IV. Use of Consent to Obtain Physical Evidence............................................ 81

A. Debate over the Use of Consent................................................... 81

B. Limits of Consent Agreements ..................................................... 85

V. Efforts to Obtain Email Content from the Private Accounts of Clinton’s Senior 

Aides................................................................................................. 88

A. Section 2703(d) Orders for Non-Content Information for Mills’s and 

Abedin’s Private Email Accounts................................................... 90

B. Decisions Regarding Search Warrants for Private Email Accounts ..... 91

C. Access to Personal Devices for Clinton’s Senior Aides ..................... 92

D. Review of Abedin’s Emails on the Clinton Server ............................ 95

E. Decision Not to Seek Access to Certain Highly Classified Information 96

VI. Voluntary Interviews ........................................................................... 97

VII. Use Immunity Agreements................................................................... 99

A. Pagliano ................................................................................... 99

B. Combetta.................................................................................102

C. Bentel .....................................................................................108

VIII. Use of Consent and Act of Production Immunity to Obtain Mills and 

Samuelson Testimony and Laptops ......................................................109

A. Privilege Claims Raised by Mills and Samuelson ............................109
xviii

B. Debate over Interviewing Mills and Samuelson Regarding the Culling 

Process and Obtaining the Culling Laptops ...................................110

C. Events Leading to Voluntary Interviews of Mills and Samuelson 

Regarding the Culling Process.....................................................112

1. Attorney Proffer on March 19, 2016 ...................................112

2. Midyear Team Meeting on March 28, 2016 ..........................113

3. FBI Call to Wilkinson on April 8 About Mills and Samuelson 

Interviews Without Informing Prosecutors...........................114

4. FBI Surprise Statement at Outset of April 9 Mills Interview ...115

5. Mills and Samuelson Agree to Voluntary Interviews Regarding 

the Culling Process...........................................................116

D. Steps Taken to Obtain and Search the Culling Laptops ..................118

1. Internal Strategizing and Call with Clinton’s Counsel ............118

2. Approval to Subpoena the Culling Laptops ..........................119

3. Act of Production Immunity for Mills and Samuelson ............120

4. Limitations in the Consents to Search the Culling Laptops .....122

5. Review of the Laptops ......................................................125

E. Involvement of Senior Department and FBI Officials......................125

F. Motivations behind the Culling Testimony and Laptop Dispute ........128

IX. Interview of Former Secretary Clinton ..................................................129

A. Decision to Conduct Clinton’s Interview Last.................................130

B. Number of People Attending (“Loaded for Bear” Text Message).......130

C. Conduct of Clinton’s Interview ....................................................134

D. Decision to Allow Mills and Samuelson to Attend Clinton Interview ..138

E. Consideration of Subpoenaing Clinton before the Grand Jury..........139

X. FBI Inspection Division Internal File Review of the Midyear Investigation ..141

XI. Instant Messages Relating to the Conduct of the Midyear Investigation.....144

XII. Analysis of Investigative Decisions .......................................................148

A. Preference for Consent Rather than Compulsory Process to Obtain 

Evidence..................................................................................150

B. Decisions Not to Obtain or Seek to Review Certain Evidence...........152

C. Voluntary Interviews .................................................................154

D. Use Immunity Agreements.........................................................155

E. Mills and Samuelson..................................................................157

F. Handling of Clinton’s Interview ...................................................160
xix

CHAPTER SIX: “ENDGAME” DISCUSSIONS AND FORMER DIRECTOR COMEY’S 

PUBLIC STATEMENT ...........................................................................163

I. Evidence that the Case Was Headed toward a Declination .......................163

II. Discussions between FBI and Department Leadership about How to Credibly 

Announce a Declination (Spring 2016) ..................................................167

A. Initial Discussion between Comey and Yates in April 2016..............168

1. Options Discussed at the Meeting ......................................168

2. Comey Mentions a Special Counsel at April Meeting with 

Yates .............................................................................170

3. Lynch’s Knowledge of the April Meeting ..............................174

B. Subsequent Discussions Between Comey and Yates ......................175

C. Other Discussions within the FBI and Department.........................177

1. Discussions between McCabe and Carlin .............................177

2. Discussions among Prosecutors and NSD Supervisors...........178

3. Additional Special Counsel Discussions ...............................180

4. NSD Notes Reflecting Plans for an Announcement................181

III. Drafting of Former Director Comey’s Public Statement............................185

A. Original Draft Statement............................................................185

B. The Decision to Omit “Gross Negligence” .....................................191

C. Comey’s Edits to the Statement..................................................194

D. FBI Analysis of Legal and Policy Issues Implicated by the Draft 

Statement................................................................................197

E. Concerns about a Public Statement.............................................200

F. Comey’s Decision Not to Inform the Department ..........................201

IV. June 27, 2016 Tarmac Meeting and Aftermath.......................................202

A. Meeting between Lynch and Former President Clinton ...................202

1. How the Meeting Came About ...........................................202

2. Discussion between Former President Clinton and Lynch.......205

3. Intervention by Lynch’s Staff.............................................209

B. Responding to Media Questions about the Tarmac Meeting.............211

C. Discussions about Possible Recusal .............................................214

1. Departmental Ethics Opinion .............................................214

2. Discussions about Voluntary Recusal..................................214

D. Lynch’s July 1 Aspen Institute Statement.....................................217

E. Impact of the Tarmac Meeting on Comey’s Decision to Make a Public 

Statement................................................................................219
xx

V. July 5, 2016 Press Conference.............................................................221

A. Notifications to Department Leadership .......................................221

1. Call to Yates....................................................................223

2. Call to Lynch ...................................................................224

3. Notifications to NSD .........................................................225

B. Reactions to the Statement........................................................226

1. Department and NSD Leadership .......................................226

2. Prosecutors.....................................................................232

VI. Congressional Testimony Explaining the July 5 Statement.......................233

A. July 7, 2016 .............................................................................233

B. September 28, 2016 .................................................................235

C. June 8, 2017............................................................................235

VII. Analysis ............................................................................................238

A. Comey’s Decision to Make a Unilateral Announcement...................239

B. Content of Comey’s Unilateral Announcement...............................245

C. Lynch’s Decision Not to Recuse after the Tarmac Meeting ..............249

D. Lynch’s Response to Comey’s Notification ....................................250

CHAPTER SEVEN: THE DEPARTMENT’S DECISION NOT TO PROSECUTE..............253

I. The Declination Recommendation ........................................................253

II. The Attorney General Briefing..............................................................258

III. Analysis ............................................................................................260

CHAPTER EIGHT: OCTOBER EFFORTS BY FBI LEADERSHIP TO RESPOND TO 

CRITICISM OF THE MIDYEAR INVESTIGATION.......................................265

I. SAC Conference (October 11 to 14)......................................................265

II. Midyear Talking Points Distributed to FBI Field Offices (October 21) .........266

III. Midyear Briefing for Retired FBI Special Agents (October 21)...................267

IV. FBI Office of Public Affairs Research Project (October 14 to 31) ...............269

V. FOIA and Congressional Requests in October.........................................271

CHAPTER NINE: DISCOVERY OF CLINTON EMAILS ON THE WEINER LAPTOP AND 

REACTIVATION OF THE MIDYEAR INVESTIGATION.................................273

I. Discovery of Emails by the FBI’s New York Field Office............................273
xxi

A. Seizure of Weiner Laptop and Devices .........................................273

B. Emails and BlackBerry PIN Message Viewed by Case Agent............273

C. Reporting of Clinton-Related Emails to FBI NYO Supervisors...........274

D. Reporting of Clinton-Related Emails to SDNY................................276

II. Reporting of Clinton-Related Emails to FBI Headquarters ........................277

A. AD Secure Video Teleconference on September 28........................277

B. McCabe Post-SVTC Phone Call and Meeting on September 28.........278

1. Phone Call with Sweeney ..................................................278

2. Meeting with Strzok and Priestap.......................................279

C. Comey and McCabe Communications After AD SVTC on September 

28...........................................................................................280

D. Sweeney Calls Other FBI Executives on September 28 ..................282

1. Criminal EAD Coleman......................................................283

2. National Security EAD Steinbach........................................283

3. Counterintelligence AD Priestap .........................................284

III. Initial Response of FBI Headquarters to Discovery of Midyear-Related 

Information on the Weiner Laptop........................................................284

A. Phone Call between Sweeney and Priestap on September 29..........284

B. Conference Call between NYO and Midyear Personnel on September 

29...........................................................................................285

1. Testimony and Contemporaneous Notes from Call 

Participants.....................................................................286

2. Post-Call NYO Communications..........................................288

3. Post-Call Midyear Team and FBI Headquarters Response ......288

C. McCabe Call to NSD Leadership on October 3 ...............................291

D. FBI Headquarters Discussions on October 3 and 4.........................292

1. EAD Coleman October 3 Meeting with Baker and Bowdich.....292

2. Email from Bowdich to Comey on October 3........................293

3. Meeting between Comey and Coleman on October 4 ............293

IV. NYO Completes Processing of Weiner Laptop Around October 4 ...............295

V. FBI Headquarters Inaction and Explanations for the Delay ......................295

A. Delays in Processing the Weiner Laptop.......................................296

B. Prioritization of Weiner Laptop and Russia Investigation ................296

C. Lack of Specific Information .......................................................299

D. Questions About Legal Authority .................................................300

E. Strzok Timeline ........................................................................300
xxii

VI. Concerns of Weiner Case Agent and Conversation with SDNY AUSAs on 

October 19........................................................................................302

VII. SDNY Response to Weiner Case Agent Concerns ....................................304

A. SDNY Internal Discussions on October 20 ....................................304

B. SDNY Calls to ODAG and NSD on October 21................................304

C. SDNY Memo on October 21 ........................................................306

VIII. DOJ and FBI Response to SDNY Notification ..........................................307

A. Prosecutor 1-Strzok Call on October 21 .......................................307

B. FBI Leadership Knowledge of SDNY Notification on October 21 .......308

C. Toscas Asks McCabe About Weiner Laptop on October 24 ..............309

D. Call between McCabe, Sweeney, and NYO Criminal SAC on October 

24...........................................................................................311

IX. Reengagement of FBI Headquarters and the Midyear Team on the Weiner 

Laptop..............................................................................................311

A. McCabe Phone Call with McCord on October 25.............................311

B. Comey, McCabe, and Sweeney Discuss the Weiner Laptop on October 

25...........................................................................................312

C. Midyear Team Emails on October 25 ...........................................313

X. Events Leading to the Decision to Seek a Search Warrant.......................314

A. Midyear-NYO-SDNY Call on October 26........................................315

B. Briefing of McCabe on October 26 ...............................................317

C. McCabe Recollection of Discussion with Comey on October 26 ........319

D. McCabe Email to Comey on October 27 .......................................320

E. Midyear Team Communications Preceding Comey Briefing on October 

27...........................................................................................321

F. Comey Briefing on October 27....................................................322

XI. Analysis ............................................................................................324

A. Failure of the FBI to Take Earlier Action on the Weiner Laptop........324

B. Decision to Seek Search Warrant on October 27 ...........................330

CHAPTER TEN: THE DECISION TO NOTIFY CONGRESS ON OCTOBER 28 ...........333

I. Factors Considered as Part of Comey’s Decision to Notify Congress ..........333

A. Belief That Failure to Disclose Would Be an Act of Concealment......333

B. Perceived Obligation to Update Congress .....................................334
xxiii

C. Avoiding the Perception that the FBI Concealed the New Information to 

Help Clinton Win the Election......................................................337

1. Protecting the Reputation of the FBI...................................338

2. Protecting the Legitimacy of a Clinton Presidency.................339

D. Concerns about the Electoral Impact of the Announcement............339

E. Expectation that Clinton Would Be Elected President .....................342

F. Belief that Email Review Could Not Be Completed Before the 

Election ...................................................................................343

G. Fear that the Information Would Be Leaked .................................345

II. Comparison to Other Ongoing Investigations.........................................346

A. The Differential Treatment of the Russia Investigation...................346

B. The Differential Treatment of the Clinton Foundation Investigation..348

III. Internal FBI Discussions Regarding the Decision to Notify Congress .........349

A. McCabe, Strzok, and Page Text Messages on October 27 ...............349

B. Strzok Call with Midyear SSA, Agent 1, and Agent 2 on October 28.350

C. Agent 1’s Instant Messages on October 28...................................351

IV. The FBI Informs DOJ Leadership About Comey’s Decision .......................352

A. FBI and DOJ Midyear Team Discussions .......................................352

B. Department and FBI Leadership Discussions ................................355

1. Comey’s Decision Not to Engage Directly with Lynch or Yates356

2. Phone Calls between Rybicki and Axelrod............................356

3. Internal Department Discussions .......................................359

4. Decision Not to Order Comey to Stand Down.......................360

5. Decision Not to Engage Directly with Comey .......................363

6. Comey’s Reaction to the Department’s Response.................364

V. Finalizing the FBI’s October 28, 2016 Letter to Congress.........................366

A. October 28, 2016 Letter to Congress...........................................366

B. Drafting the Letter and Key Edits ................................................366

1. “Appear to be Pertinent” ...................................................367

2. “Briefed Me On This Yesterday” .........................................368

3. Discussions About Letter With the Department ....................369

4. Comey Email to All FBI Employees .....................................370

VI. Analysis of the Decision to Send the October 28 Letter ...........................371

A. Substantive Assessment of Comey’s Decision ...............................371

1. FBI and Department Norms and Policies .............................371

2. Comey’s Justification for Departing ....................................372
xxiv

3. Comey’s Comparison of Risks and Outcomes.......................374

4. Fear of Leaks ..................................................................376

B. Lack of Communication Between Comey and Department 

Leadership ...............................................................................376

CHAPTER ELEVEN: COMPLETION OF THE INVESTIGATION...............................379

I. The October 30, 2016 Search Warrant..................................................379

A. Decision Not to Seek Consent from Abedin and Weiner before Seeking 

a Warrant ................................................................................379

B. Factual Basis of the October 30 Search Warrant Application ...........380

C. Difference in Approach to Devices during Main Investigation ..........382

II. Lynch-Comey Meeting on October 31 ...................................................384

III. FBI Review of Weiner Laptop Emails.....................................................388

IV. Agent 1 Instant Messages from November 1 .........................................390

V. Comey Letter to Congress on November 6 ............................................390

CHAPTER TWELVE: TEXT MESSAGES, INSTANT MESSAGES, USE OF PERSONAL 

EMAIL, AND ALLEGED IMPROPER DISCLOSURES OF NON-PUBLIC 

INFORMATION...................................................................................395

I. Text Messages and Instant Messages ...................................................395

A. Text Messages between Lisa Page and Peter Strzok ......................396

1. Text Messages Commenting on Trump or Clinton.................399

2. Text Messages Discussing Political Sentiments and the Midyear 

Investigation...................................................................401

3. Text Messages Discussing Political Sentiments and the Russia 

Investigation...................................................................403

4. Other Notable Text Messages ............................................407

B. Instant Messages between Agent 1 and Agent 5 ...........................410

1. Instant Messages Referencing the Midyear Investigation.......410

2. Instant Messages Commenting on Trump or Clinton.............412

C. FBI Attorney 2 Instant Messages ................................................415

D. Analysis...................................................................................420

II. Use of Personal Email .........................................................................424

A. Comey.....................................................................................425

B. Strzok and Page .......................................................................426
xxv

III. Allegations that Department and FBI Employees Improperly Disclosed NonPublic Information..............................................................................428

CHAPTER THIRTEEN: WHETHER FORMER DEPUTY DIRECTOR ANDREW MCCABE 

SHOULD HAVE RECUSED FROM CERTAIN MATTERS................................431

I. Introduction ......................................................................................431

II. Timeline of Key Events .......................................................................431

III. Relevant Standards and Procedures .....................................................432

A. Financial Conflict of Interest Statute............................................432

B. Executive Branch Regulations Addressing Appearance Concerns and 

Impartiality in Performing Official Duties......................................433

C. Department of Justice Regulation Requiring Disqualification Arising 

from Personal or Political Relationships ........................................435

D. What Constitutes “Participation” Under the Regulations .................436

E. FBI Procedures and Ethics Officials..............................................436

IV. Factual Findings.................................................................................437

A. Background Facts .....................................................................437

1. Andrew McCabe...............................................................437

2. FBI Clinton Investigations .................................................438

3. Dr. McCabe Meets Governor McAuliffe in February 2014 .......438

4. Recruitment to Run for Virginia State Senate in February 

2015 ..............................................................................438

5. The McCabes’ Meeting with Governor McAuliffe in March 

2015 ..............................................................................438

6. Dr. McCabe’s Campaign....................................................440

B. McCabe Discusses Wife’s Candidacy with FBI Officials, Seeks Ethics 

Advice, and Recuses from Various FBI Investigations ....................441

1. Meeting with Comey’s Chief of Staff; Extent of Director Comey’s 

Knowledge or Approval.....................................................441

2. Conversation with Deputy Director Giuliano.........................442

3. Meeting with Acting Chief Division Counsel on March 10 .......442

4. Meeting with Kelley and Baker on March 11 ........................443

5. McCabe Recusal EC Issued on April 29................................444

C. No Reassessment of Conflict/Recusal when McCabe becomes ADD or 

after Dr. McCabe Loses Election..................................................445

D. Participation in Clinton Email and Clinton Foundation Investigations 445

1. McCabe Not Recused as ADIC, ADD, or DD .........................445

2. Recusal Concerns Related to Clintons Raised in May 2015 when 

McCabe is ADIC...............................................................446
xxvi

E. Clinton Email and Clinton Foundation Investigations Recusals.........448

1. October 23, 2016 Wall Street Journal Article .......................448

2. Internal Deliberations and Recusals from Clinton Email and 

Clinton Foundation Investigations ......................................449

3. Participation in Clinton Foundation Investigation after November 

1 ...................................................................................454

F. Decision Not to Disclose McCabe’s Recusals to Congress ................455

V. OIG Analysis .....................................................................................456

A. Recusal Issues..........................................................................456

1. Summary of Findings .......................................................456

2. Recusal from Clinton-Related Investigations........................457

B. Conclusion ...............................................................................460

CHAPTER FOURTEEN: WHETHER FORMER ASSISTANT ATTORNEY GENERAL 

PETER J. KADZIK SHOULD HAVE RECUSED FROM CERTAIN MATTERS.......461

I. Introduction ......................................................................................461

II. Timeline of Key Events .......................................................................462

III. Relevant Standards ............................................................................463

A. Personal and Business Relationships Creating an Appearance of a 

Conflict 5 C.F.R. § 2635.502 ......................................................464

B. Use of Non-public Information 5 C.F.R. § 2635.703.......................464

C. Use of Public Office for Private Gain 5 C.F.R. § 2635.702 ...............464

IV. Factual Findings.................................................................................464

A. Background..............................................................................464

1. Peter J. Kadzik ................................................................464

2. John D. Podesta, Jr. .........................................................465

3. Office of Legislative Affairs................................................465

4. Ethics Training and Obligations..........................................466

5. Kadzik’s Recusals.............................................................466

B. Events Preceding the “Heads Up” Email from Kadzik to Podesta (March 

through May 2015) ...................................................................467

1. OLA Clinton-Related Work.................................................467

2. 2016 Clinton Campaign Staffed and Announced...................469

3. Kadzik Assists Son’s Job Search.........................................469

4. Kadzik’s Son Separately Seeks Employment with the Clinton 

Campaign .......................................................................470

5. Kadzik Gives Podesta a “Heads Up”....................................470

C. Kadzik’s Subsequent OLA Work Related to or Referencing Clinton ...471
xxvii

D. Response to WikiLeaks Release ..................................................473

E. Kadzik Is Recused.....................................................................474

V. Analysis ............................................................................................476

A. Whether Kadzik Should Have Been Recused Prior to November 2 from 

Clinton-Related Matters under Section 502 of the Standards of Ethical 

Conduct...................................................................................476

1. Whether There Was a Particular Matter Involving Specific 

Parties............................................................................476

2. Whether Kadzik Should Have Recused Because of his Son’s 

Efforts to Obtain Employment with the Clinton Campaign .....477

3. Whether Kadzik Should Have Recused from Clinton-Related 

Matters in May 2015 by Reason of Sending the “Heads Up” 

Email to Podesta..............................................................479

B. Whether Kadzik Violated the Terms of his Recusal after November 2, 

2016 .......................................................................................481

C. Whether Kadzik Improperly Used Non-Public information in Violation of 

the Standards of Ethical Conduct ................................................482

D. Whether Kadzik Misused His Public Office for Private Gain in Violation 

of the Standards of Ethical Conduct.............................................483

CHAPTER FIFTEEN: FBI RECORDS VAULT TWITTER ANNOUNCEMENTS .............485

I. Introduction ......................................................................................485

II. Background.......................................................................................486

A. Freedom of Information Act, 5 U.S.C. § 552.................................486

B. The FBI FOIA Process ................................................................488

1. Records/Information Dissemination Section’s FOIA Process...488

2. Release of FOIA Documents on the FBI Vault ......................490

III. Findings............................................................................................490

A. Facts .......................................................................................490

1. Timeline .........................................................................490

2. Detailed Chronology.........................................................491

B. Analysis...................................................................................495

CHAPTER SIXTEEN: CONCLUSIONS AND RECOMMENDATIONS .........................497

I. Conclusions.......................................................................................497

II. Recommendations..............................................................................499
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CHAPTER ONE:

INTRODUCTION

I. Background

The Department of Justice (Department) Office of the Inspector General 

(OIG) undertook this review of various actions by the Federal Bureau of 

Investigation (FBI) and Department in connection with the investigation into the 

use of a private email server by former Secretary of State Hillary Clinton. Clinton 

served as Secretary of State from January 21, 2009, until February 1, 2013, and 

during that time used private email servers hosting the @clintonemail.com domain 

to conduct official Department of State (State Department) business. 

In 2014, in response to a request from the State Department to Clinton for 

“copies of any Federal records in [her] possession, such as emails sent or received 

on a personal email account while serving as Secretary of State,” Clinton produced

to the State Department 30,490 emails from her private server that her attorneys 

determined were work-related. Clinton and her attorneys did not produce to the 

State Department approximately 31,830 emails because, they stated, they were 

personal in nature, and these emails subsequently were deleted from the laptop 

computers that the attorneys used to review them.

In 2015, at the State Department’s request, the Office of the Inspector 

General of the Intelligence Community (IC IG) reviewed emails from Clinton’s 

private email server that she had produced to the State Department and identified 

a potential compromise of classified information. The IC IG subsequently referred 

this information to the FBI.

The FBI opened an investigation, known as “Midyear Exam” (MYE or 

Midyear), into the storage and transmission of classified information on Clinton’s 

unclassified private servers in July 2015. Over the course of the next year, FBI 

agents and analysts and Department prosecutors conducted the investigation. 

Their activities included obtaining and analyzing servers and devices used by 

Clinton, contents of private email accounts for certain senior aides, and computers 

and email accounts used to back up, process, or transfer Clinton’s emails. The 

investigative team interviewed numerous witnesses, including current and former 

State Department employees.

On June 27, 2016, while the Midyear investigation was nearing completion, 

then Attorney General (AG) Loretta Lynch and former President Bill Clinton had an 

unscheduled meeting while their planes were parked on the tarmac at Phoenix’s 

Sky Harbor Airport. Former President Clinton boarded Lynch’s plane, and Lynch, 

Lynch’s husband, and the former President met for approximately 20 to 30

minutes. Following the meeting, Lynch publicly denied having any conversation 

about the Midyear investigation or any other substantive matter pending before the 

Department. Nevertheless, the meeting created significant controversy. On July 1, 

2016, Lynch publicly announced that she would accept the recommendation of the 
2

Midyear investigative and prosecutorial team regarding whether to charge former 

Secretary Clinton.

The following day, Saturday, July 2, 2016, the FBI and Department 

prosecutors interviewed former Secretary Clinton at the FBI’s Headquarters 

building. Then, on July 5, 2016, without coordinating with the Department and with 

very brief notice to it, then FBI Director James Comey publicly delivered a 

statement that criticized Clinton, characterized her and her senior aides as 

“extremely careless” in their handling of classified information, and asserted that it 

was possible hostile actors gained access to Clinton’s personal email account. 

Comey concluded, however, that the investigation should be closed because “no 

reasonable prosecutor” would prosecute Clinton or others, citing the strength of the 

evidence and the lack of precedent for bringing a case on these facts. The following 

day, July 6, 2016, Lynch was briefed by the prosecutors and formally accepted their

recommendation to decline prosecution.

On October 28, 2016, 11 days before the presidential election, Comey sent a 

letter to Congress announcing the discovery of emails that “appear[ed] to be 

pertinent” to the Midyear investigation. Comey’s letter was referring to the FBI’s 

discovery of a large quantity of emails during the search of a laptop computer 

obtained in an unrelated investigation of Anthony Weiner, the husband of Clinton’s 

former Deputy Chief of Staff and personal assistant, Huma Abedin.

The FBI obtained a search warrant to review the emails 2 days later, on 

October 30, 2016. Over the next 6 days, the FBI processed and reviewed a large 

volume of emails. On November 6, 2016, 2 days before the election, Comey sent a 

second letter to Congress stating that the review of the emails on the laptop had 

not changed the FBI’s earlier conclusions with respect to Clinton.

The OIG initiated this review on January 12, 2017, in response to requests 

from numerous Chairmen and Ranking Members of Congressional oversight 

committees, various organizations, and members of the public to investigate 

various decisions made in the Midyear investigation. The OIG announced that it 

would review the following issues:

 Allegations that Department or FBI policies or procedures were not 

followed in connection with, or in actions leading up to or related to, 

Comey’s public announcement on July 5, 2016, and Comey’s letters to 

Congress on October 28 and November 6, 2016, and that certain 

underlying investigative decisions were based on improper 

considerations;

 Allegations that then FBI Deputy Director Andrew McCabe should have 

been recused from participating in certain investigative matters;

 Allegations that then Assistant Attorney General for the Department’s 

Office of Legislative Affairs, Peter Kadzik, improperly disclosed nonpublic information to the Clinton campaign and/or should have been 

recused from participating in certain matters;
3

 Allegations that Department and FBI employees improperly disclosed 

non-public information; and

 Allegations that decisions regarding the timing of the FBI’s release of 

certain Freedom of Information Act (FOIA) documents on October 30 

and November 1, 2016, and the use of a Twitter account to publicize 

the same, were influenced by improper considerations.

The OIG announcement added that “if circumstances warrant, the OIG will 

consider including other issues that may arise during the course of the review.” 

One such issue that the OIG added to the scope of this review arose from the 

discovery of text messages and instant messages between some FBI employees on 

the investigative team, conducted using FBI mobile devices and computers, that 

expressed statements of hostility toward then candidate Donald Trump and 

statements of support for then candidate Clinton, as well as comments about the 

handling of the Midyear investigation. We addressed whether these

communications evidencing a potential bias affected investigative decisions in the 

Midyear investigation.

This review is separate from the review the OIG announced on March 28, 

2018, concerning the Department’s and FBI’s compliance with legal requirements, 

and with applicable Department and FBI policies and procedures, in applications 

filed with the U.S. Foreign Intelligence Surveillance Court (FISC) relating to a 

certain U.S. person. We will issue a separate report relating to those issues when 

our investigative work is complete at a future date.

II. Methodology

During the course of this investigation, the OIG interviewed more than 100 

witnesses, several on more than one occasion. These included former Director

Comey, former AG Lynch, former Deputy Attorney General (DAG) Sally Yates, 

members of the former AG’s and DAG’s staffs, FBI agents and supervisors and 

Department attorneys and supervisors who conducted the Midyear investigation, 

personnel from the FBI’s New York Field Office (NYO) and the U.S. Attorney’s Office 

for the Southern District of New York (SDNY) involved in the Anthony Weiner 

investigation, former and current members of the FBI’s senior executive leadership, 

and former President Clinton.

All of the former Department and FBI officials we contacted to request 

interviews related to the Midyear investigation agreed to be interviewed. However, 

two witnesses with whom we requested interviews in connection with our review of 

whether Peter Kadzik, the former Assistant Attorney General for the Department’s 

Office of Legislative Affairs (OLA), should have been recused from certain matters 

declined our request for an interview or were unable to schedule an interview.

We also reviewed significantly more than 1.2 million documents. Among 

these were FBI documents from the Midyear investigation, including electronic 

communications (EC) and interview reports (FD-302s), agent notes from witness 

interviews, draft and final versions of the letterhead memorandum (LHM) 
4

summarizing the Midyear investigation, drafts of Comey’s public statement and 

letters to Congress, and contemporaneous notes from agents and supervisors 

involved in meetings about the statement and letters to Congress. We also 

obtained documents from prosecutors and supervisors in the Department’s National 

Security Division (NSD) and the U.S. Attorney’s Office for the Eastern District of 

Virginia (EDVA), as well as the Office of the Deputy Attorney General (ODAG) and 

the Office of the Attorney General (OAG). Importantly, among these documents 

were contemporaneous notes from the prosecutors and supervisors involved in the 

investigation.

In connection with our efforts to investigate the circumstances surrounding 

the FBI’s discovery of Midyear-related emails on Anthony Weiner’s laptop computer 

and Comey’s notification to Congress on October 28, 2016, we obtained documents 

from NYO and SDNY personnel. These documents included forensic logs from 

processing of the Weiner laptop by NYO Computer Analysis and Recovery Team 

(CART) personnel, NYO and SDNY communications about the discovery of the 

emails, and other documents.

We obtained communications between and among agents, prosecutors, 

supervisors, and FBI and Department officials to understand what happened during 

the investigation and identify the contemporaneous factors considered in making 

investigative decisions. In addition to a large volume of emails, we obtained and 

reviewed well in excess of 100,000 text messages and instant messages to or from 

FBI personnel who worked on the investigation.

Our review also included the examination of highly classified information. We 

were given broad access to relevant materials by the Department and the FBI, 

including the sensitive compartmented information (SCI) discussed in the classified 

appendix to this report and emails and instant messages from both the FBI’s Top 

Secret SCINet system and Secret FBINet system. Several of the State Department 

emails between Secretary Clinton and her staff from the underlying Midyear 

investigation included information relevant to a tightly-held Special Access Program 

(SAP), and we did not seek or obtain the required read-ins for that program. Based 

on our review of emails containing redacted SAP and the FBI’s explanation of the 

program, we determined that this information was not needed for us to make the 

findings in this report.

Finally, and as discussed in more detail below, our review included 

information obtained in the Midyear investigation and the Anthony Weiner child 

exploitation investigation pursuant to grand jury subpoenas and sealed search 

warrants. At the Inspector General’s request, the Department sought court orders 

authorizing the release of sealed information that does not otherwise affect 

individual privacy interests so that we can include relevant information in this 

report. This information is included in the report where appropriate.
5

III. Analytical Construct

As noted above, the OIG undertook this review to determine, among other 

things, whether “certain investigative decisions [taken in connection with the 

Midyear investigation] were based on improper considerations,” including political 

bias or concerns for personal gain. In conducting this portion of our review, it was 

necessary to select particular investigative decisions for focused attention. It would 

not have been possible to recreate and analyze every decision made in a year-long

complex investigation. We therefore identified particular case decisions or other 

incidents which were the subject of controversy. These included the use of consent 

agreements and voluntary interviews to obtain evidence; grants of immunity to 

witnesses; and the decision to allow Cheryl Mills and Heather Samuelson, two of 

former Secretary Clinton’s attorneys, to attend her interview.

During our investigation, we looked for direct evidence of improper 

considerations, such as contemporaneous statements in emails, memoranda, or 

other documents explicitly linking political or other improper considerations to 

specific investigative decisions. We likewise questioned witnesses about whether 

they had direct evidence of improper considerations affecting decisionmaking. As 

noted above, we reviewed significantly more than 1.2 million emails, text 

messages, and internal documents relating to the investigation, and interviewed 

more than 100 witnesses who were involved in the matter.

We also analyzed the justifications offered for the investigative decisions we 

selected for focused review (including contemporaneous justifications and those 

offered after the fact) to determine whether they were a pretext for improper, but 

unstated, considerations. We conducted this assessment with appreciation for the 

fact that Department and FBI officials were required to make numerous decisions 

involving complex matters daily, under the unusual pressures and challenges 

present in the Midyear investigation.

In the January 12, 2017 memorandum announcing this review, we stated, 

“Our review will not substitute the OIG’s judgment for the judgments made by the 

FBI or the Department regarding the substantive merits of investigative or 

prosecutive decisions.” Consistent with this statement, we do not criticize 

particular decisions or infer that they were influenced by improper considerations 

merely because we might have recommended a different investigative strategy or 

tactic based on the facts learned during our investigation. The question we 

considered was not whether a particular investigative decision was perfect or ideal

or one that we believed could have been handled more effectively, but whether the 

circumstances surrounding the decision indicated that it was based on 

considerations other than the merits of the investigation. If the explanations that 

we were given for a particular decision were consistent with a rational investigative

strategy and not unreasonable, we did not conclude that the decision was based on

improper considerations in the absence of evidence to the contrary. We took this 

approach because our role as an OIG is not to second-guess valid discretionary 

judgments made during the course of an investigation, and this approach is 

consistent with the OIG’s handling of such questions in past reviews. 
6

We applied this same standard as we reviewed and considered the 

Department’s declination decision, the letterhead memorandum (LHM) summarizing 

the investigation, and contemporaneous emails and notes reflecting analysis and 

discussion of legal research conducted by the prosecutors.

IV. Structure of the Report

This report is divided into sixteen chapters. Following this introduction, 

Chapter Two summarizes the relevant Department policies governing the release of 

information to the public and to Congress and the conduct of criminal 

investigations, as well as the relevant statutes regarding the mishandling of 

classified information that provided the legal framework for the Midyear 

investigation.

In Chapter Three, we provide an overview of the Midyear investigation, 

including decisions about staffing and investigative strategy. In Chapter Four, we 

discuss the decision to publicly acknowledge the Midyear investigation and former 

President Obama’s statements about the Midyear investigation. In Chapter Five,

we discuss the conduct of the investigation, focusing on the significant investigative 

decisions that were subject to criticism by Congress and the public after the fact. 

In Chapters Six and Seven, we describe the events leading to former Director 

Comey’s July 5 statement and the Department’s decision to decline prosecution of 

former Secretary Clinton. Chapters Eight through Eleven provide a chronology of 

events between the FBI’s discovery of Clinton-related emails on the Weiner laptop 

in late September 2016 and Comey’s letter to Congress on October 28, 2016, and 

describe the FBI’s analysis of those emails and letter to Congress on November 6, 

2016.

Chapter Twelve describes the text messages and instant messages

expressing political views we obtained between certain FBI employees involved in 

the Midyear investigation and provides the employees’ explanations for those 

messages. It also briefly discusses the use of personal email by several FBI 

employees, and provides an update on the status of the OIG’s leak investigations.

Chapters Thirteen and Fourteen address allegations that then Deputy 

Director Andrew McCabe and then Assistant Attorney General Peter Kadzik should 

have been recused from participating in certain matters, or violated the terms of 

their recusals.

Chapter Fifteen addresses allegations that the timing of the FBI’s release of 

FOIA documents and its use of Twitter to publicize the release were influenced by 

improper considerations or were otherwise improper.

Chapter Sixteen includes our conclusions and recommendations.

We also include a non-public classified appendix, which discusses highly 

classified information relevant to the Midyear investigation (Appendix One), and a

non-public Law Enforcement Sensitive (LES) appendix containing the complete, 

unmodified version of Chapter Thirteen (Appendix Two).
7

We are providing copies of our unclassified report and the classified appendix

to Congress, and are publicly releasing our report without these appendices. We 

also are providing copies of our unclassified report to the Office of Special Counsel 

(OSC) for its consideration.
8

PAGE LEFT INTENTIONALLY 

BLANK
9

CHAPTER TWO:

APPLICABLE LAWS AND DEPARTMENT POLICIES

In this chapter, we describe the applicable laws, regulations, policies, and 

practices that govern the conduct of the Midyear investigation and are relevant to 

the analysis in the report. We identify specific Department and FBI policies related 

to investigative steps taken during the Midyear investigation, overt investigative 

activities in advance of an election, and the disclosure of information to the media 

and to Congress. We also describe the Department regulations governing the 

appointment of a special counsel.

Finally, we summarize the criminal statutes relevant to the Midyear 

investigation. These statutes provide the legal framework for our discussion of the 

investigative strategy and the FBI’s and Department’s assessment of the evidence 

in subsequent chapters.

I. Policies and Laws Governing Criminal Investigations

Under federal law, investigators and prosecutors are given substantial 

authority and discretion in conducting criminal investigations. To navigate 

challenges and issues that they may face during these investigations, and to assist 

them in exercising their authority and discretion appropriately, the Department 

maintains the United States Attorneys Manual (USAM) as a “comprehensive...quick 

and ready reference for...attorneys responsible for the prosecution of violations of 

federal law.” USAM 1-1.2000, 1-1.1000. In reviewing investigative decisions made 

during the Midyear investigation, we identified several provisions of the USAM of 

potential relevance.

The principles guiding the exercise of decisions related to federal 

prosecutorial discretion and those relevant to criminal prosecutions can be found 

within USAM Title 9-27.000, the Principles of Federal Prosecution. There the 

Department lays out guidance for federal prosecutors with the intent of “ensuring 

the fair and effective exercise of prosecutorial discretion and responsibility by 

attorneys for the government, and promoting confidence on the part of the public 

and individual defendants that important prosecutorial decisions will be made 

rationally and objectively on the merits of the facts and circumstances of each 

case.” USAM 9-27.001. USAM Section 9-27.220 specifies grounds for commencing 

or declining prosecution, stating that an attorney for the government should 

commence or recommend federal prosecution if he or she believes that the person’s 

conduct constitutes a federal offense, and that the admissible evidence will 

probably be sufficient to obtain and sustain a conviction, unless the prosecution 

would serve no substantial federal interest, the person is subject to effective 

prosecution in another jurisdiction, or there exists an adequate non-criminal 

alternative to prosecution. This section also states, “[B]oth as a matter of 

fundamental fairness and in the interest of the efficient administration of justice, no 

prosecution should be initiated against any person unless the attorney for the 

government believes that the admissible evidence is sufficient to obtain and sustain 

a guilty verdict by an unbiased trier of fact.”
10

A. Grand Jury Subpoenas

A federal grand jury is a group of sixteen to twenty-three eligible citizens, 

empaneled by a federal court that considers evidence in order to decide if there has 

been a violation of federal law. Fed. R. Crim. P. 6(a)(1). It is the responsibility of 

federal prosecutors “to advise the grand jury on the law and to present evidence for 

its consideration.” USAM 9-11.010.

Grand jury subpoenas are one tool frequently used by federal prosecutors to 

collect evidence to present to a grand jury. USAM 9-11.120, Fed. R. Crim. P. 17. 

There are two types of grand jury subpoenas: (1) a grand jury subpoena ad 

testificandum which compels an individual to testify before the grand jury; and (2) 

a grand jury subpoena duces tecum which compels an individual or entity, such as 

a business, to produce documents, records, tangible objects, or other physical 

evidence to the grand jury. G.J. Manual § 5.2; Fed. R. Crim. P. 17.

1

Federal prosecutors have “considerable latitude in issuing [grand jury] 

subpoenas.” G.J. Manual § 5.4 (quoting Doe v. DiGenova, 779 F.2d 74, 80 (D.C. 

Cir. 1985)). Nonetheless, “the powers of the grand jury are not unlimited.” G.J. 

Manual § 5.1 (quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)). A court 

may quash a grand jury subpoena, upon motion, “if compliance would be 

unreasonable or oppressive.” Fed. R. Crim. P. 17. In addition, a grand jury 

subpoena cannot override the invocation of a valid “constitutional, common-law, or 

statutory privilege” and cannot be used when “a federal statute requires the use of 

a search warrant or other court order.” G.J. Manual § 5.1 (quoting Branzburg, 

408 U.S. at 688) and §§ 5.6, 5.26. These limitations are discussed, insofar as they 

are relevant to this review, in subparts I.B., I.C., and 1.E. of this chapter.

There are also policy limitations governing the use of grand jury subpoenas. 

For example, the USAM provides guidelines for issuing grand jury subpoenas to 

attorneys regarding their representation of clients.2 USAM 9-13.410. These 

guidelines are discussed in subpart I.B. of this chapter. In addition, the USAM 

generally advises prosecutors to consider alternatives to grand jury subpoenas, 

such as obtaining testimony and other evidence by consent, in light of the 

requirement that the government maintain the secrecy of any testimony or 

evidence accessed through the grand jury. USAM 9-11.254(1).

B. Search Warrants and 2703(d) Orders

The Fourth Amendment protects individuals from unlawful searches and 

seizures of their property. Generally, the government must obtain a search warrant 

 

1

 Federal Grand Jury Practice, Office of Legal Education (October 2008), available at

https://dojnet.doj.gov/usao/eousa/ole/usabook/gjma/index.htm.

2

 The USAM also provides guidelines for the use of grand jury subpoenas to obtain testimony 

from targets or subjects of an investigation. “Target” means a “person as to whom the prosecutor or 

the grand jury has substantial evidence linking him or her to the commission of a crime and who, in 

the judgment of the prosecutor, is a putative defendant,” while “subject” means a “person whose 

conduct is within the scope of the grand jury's investigation.” USAM 9-11.151.
11

before searching a person’s property in which the person retains a reasonable 

expectation of privacy. United States v. Ross, 456 U.S. 798, 822-23 (1982). 

Courts have held that individuals retain a reasonable expectation of privacy in data 

held within electronic storage devices, such as computers and cellular telephones. 

E.g., Riley v. California, 134 S. Ct. 2473, 2485 (2014); Trulock v. Freeh, 275 F.3d 

391, 403 (4th Cir. 2001). To obtain a search warrant pursuant to Federal Rule of 

Criminal Procedure 41 (Rule 41 search warrant), the government must make a 

showing of facts under oath demonstrating probable cause to believe that the 

property to be searched contains evidence of a crime. Thus, while the government 

may issue a grand jury subpoena to obtain an electronic device, such as a 

computer or cellular telephone, the government generally will only be able to 

search the electronic device if it can demonstrate probable cause to believe the 

device contains evidence of a crime.

In addition, as discussed above, a grand jury subpoena cannot be used when 

“a federal statute requires the use of a search warrant or other court order.” The 

Stored Communications Act provides that the government must obtain a search 

warrant in order to require a “provider of electronic communication service” to 

produce the contents of a subscriber’s electronic communication that have been in 

electronic storage for 180 days or less. See 18 U.S.C. § 2703(a). For the content 

of electronic communications that have been in electronic storage for more than 

180 days, the government must usually either obtain a search warrant or provide 

prior notice to the subscriber or customer and obtain a court order or subpoena.3 

See 18 U.S.C. § 2703(b). Thus, except for specific circumstances, in order to 

obtain the contents of an individual’s email communications that are older than 180 

days from a communications service provider such as Yahoo! or Google (Gmail)

without notifying the subscriber in advance, the government must first obtain a 

Rule 41 search warrant upon a showing of probable cause that the stored emails in 

possession of the provider contain evidence of a crime.

Independent of whether the government can make the requisite probable 

cause showing to warrant a Rule 41 search warrant, the government may be able 

to obtain a court order pursuant to 18 U.S.C. § 2703(d) (2703(d) order). A 

2703(d) order requires a communications service provider to produce information 

related to an individual’s email account other than the content of the individual’s 

emails, such as subscriber information and email header information. A court will 

issue a 2703(d) order if the government “offers specific and articulable facts 

showing that there are reasonable grounds to believe that...the records or other 

information sought, are relevant and material to an ongoing criminal investigation.” 

18 U.S.C. § 2703(d).

 

3

 Under 18 U.S.C. § 2703(b)(1)(b)(ii), the court may permit delays in noticing a 

subscriber/customer for up to 90 days to avoid the adverse results listed at 18 U.S.C. § 2705. Those 

adverse results include: (A) endangering the life or physical safety of an individual; (B) flight from 

prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or 

(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
12

C. Evidence Collection Related to Attorney-Client Relationships

The USAM contains guidelines for the use of subpoenas and search warrants 

to obtain information from attorneys related to their representation of clients.

When a subpoena issued to an attorney may relate to information concerning

the attorney’s representation of a client, the USAM mandates additional process. 

USAM 9-13.410. As a preliminary matter, all reasonable attempts must be made to 

obtain the information from alternative sources (specifically including by consent) 

before issuing the subpoena to the attorney, unless such efforts would compromise 

the investigation. The Department thereafter exercises “close control” over the 

issuance of such a subpoena. Before seeking such a subpoena, it “must first be 

authorized by the Assistant Attorney General or a DAAG [Deputy Assistant Attorney 

General] for the Criminal Division” except in unusual circumstances. Before the 

Department official can authorize the subpoena, several principles must be 

examined regarding the submitted draft subpoena, including:

 All reasonable attempts to obtain the information from alternative 

sources shall have proved unsuccessful;

 The information sought is reasonably needed for the successful 

completion of the investigation;

 In a criminal investigation, there must be reasonable grounds to 

believe that a crime has been or is being committed, and that the 

information sought is reasonably needed for the successful completion 

of the investigation or prosecution; and

 The need for the information must outweigh the potential adverse 

effects upon the attorney-client relationship.

USAM 9-13.410.C.

The intent behind this additional process is to strike a “balance between an 

individual’s right to the effective assistance of counsel and the public’s interest in 

the fair administration of justice and effective law enforcement.” USAM 9-

13.410.B.

The Department similarly exercises “close control” when law enforcement 

seeks the issuance of a search warrant for “the premises of an attorney who is a 

subject of an investigation, and who also is or may be engaged in the practice of 

law on behalf of clients.” USAM 9-13.420. Such a search has the potential to 

“effect...legitimate attorney-client relationships” or uncover material “protected by 

a legitimate claim of privilege[.]” Id. Therefore, prosecutors “are expected to take 

the least intrusive approach consistent with vigorous and effective law enforcement 

when evidence is sought from an attorney actively engaged in the practice of law.” 

USAM 9-13.420.A. Unless it would compromise an investigation, the USAM advises 

that consideration be given to obtaining needed information from other sources or 

through the use of consent or a subpoena, rather than issuing such a search 

warrant. USAM 9-13.420.A. Consultation with the Criminal Division and approval 
13

from an Assistant Attorney General or U.S. Attorney are required as well. USAM 9-

13.420.B-C.

The use of process to recover materials from “disinterested third parties,” 

including disinterested third party attorneys, requires consideration of additional 

guidance under 28 C.F.R. § 59.1 and USAM 9-19.220. Pursuant to 28 C.F.R. 

§ 59.1(b), “It is the responsibility of federal officers and employees to...protect 

against unnecessary intrusions. Generally, when documentary materials are held 

by a disinterested third party, a subpoena, administrative summons, or 

governmental request will be an effective alternative to the use of a search warrant 

and will be considerably less intrusive.” Similarly, USAM 9-19.220 provides, “As 

with other disinterested third parties, a search warrant should normally not be used 

to obtain...confidential materials” from a disinterested third party attorney.

D. Use of Classified Evidence Before A Grand Jury

The classification of information and evidence can be another significant 

challenge for a federal prosecutor advising a grand jury. See USAM 9-90.230. 

Because jurors lack security clearances, the disclosure of such information “may 

only be done with the approval of the agency responsible for classifying the 

information[.]” USAM 9-90.230. Though the Department offers measures to 

“increase the likelihood” a classifying agency will approve the use of such 

information, the Department encourages prosecutors to consider several 

alternatives to seeking such disclosures. Id. A significant number of limitations

and high-level Department approvals make seeking approval from the classifying 

agency complex, and inevitably such approval takes additional time. See USAM 

9-90.200, 210.

E. Immunity Agreements

When a witness invokes their Fifth Amendment right against selfincrimination, the government must either forgo the witness’s incriminating 

testimony or offer the witness protection from prosecution resulting from such 

testimony, a protection known as “use immunity.” 28 C.F.R. § 0.175(a), Crim.

Resource Manual 716. The term “use immunity” encompasses several degrees of 

legal protections for a witness: transactional immunity, formal use immunity, letter 

immunity, and “Queen for a Day” agreements. Crim. Resource Manual 719.

1. Transactional Immunity

Transactional immunity offers the highest level of legal protection to a 

compelled witness, protecting the witness from actual prosecution for the offense(s) 

involved in the Grand Jury proceeding. Crim. Resource Manual 717. For decades 

prior to 1972, the Supreme Court only recognized transactional immunity as the 

government vehicle to compel testimony from a witness invoking their Fifth 

Amendment rights. See Kastigar v. United States, 406 U.S. 441, 449-52 (1972).
14

2. Formal Use Immunity

In 1970, Congress created a framework for the Department to grant formal 

“use immunity” for a witness offering testimony in a federal criminal investigation. 

18 U.S.C. § 6002; Crim. Resource Manual 716. Unlike transactional immunity, use 

immunity only protects the witness against the government’s use of the immunized 

testimony in a subsequent prosecution of the witness, except for perjury or giving a 

false statement. Crim. Resource Manual 717. However, the Supreme Court 

subsequently found that the statutory framework creating formal use immunity also 

prohibits the government from using immunized testimony to discover new 

evidence that is then used to prosecute the witness. Kastigar, 406 U.S. at 453. 

This additional protection is known as “derivative use immunity.” Crim. Resource 

Manual 718. Thus, the government retains the ability to prosecute a witness given 

formal use immunity, but only with evidence obtained independently of the 

witness’s immunized testimony. Crim. Resource Manual 717-18. In order to do so,

the government must overcome a “heavy, albeit not insurmountable burden, by a 

preponderance of the evidence” to demonstrate wholly independent discovery of 

such evidence. United States v. Allen, 864 F.3d 63, 92 (2d Cir. 2017) (citing

Kastigar, 406 U.S. at 460).

To obtain formal, court-ordered use immunity, a U.S. Attorney, after 

obtaining the approval of the Attorney General or her designee and the Criminal 

Division, seeks a court order to compel testimony of a witness appearing before the 

grand jury. 18 U.S.C. § 6003(b); USAM 9-23.130. Such compelled testimony 

should be sought when the witness’s testimony, in the judgment of the U.S. 

Attorney, is necessary for the public interest and the witness is likely to invoke (or 

has invoked) their Fifth Amendment privilege against self-incrimination.4 Id. The 

decision to grant immunity by a designated Department division ultimately requires 

final approval from the Department’s Criminal Division. Crim. Resource Manual 

720. Once the U.S. Attorney receives Department approval, he or she submits a 

motion to the judge overseeing the grand jury requesting the order to compel 

testimony from the witness. Id. at 723.

3. Letter Immunity and “Queen for a Day” Agreements

In contrast with transactional and formal use immunity, a witness receiving 

either letter immunity or a “Queen for a Day” agreement is provided legal 

protections by the prosecutor pursuant to an agreement in exchange for the 

witness’s agreement to provide testimony. Crim. Resource Manual 719. The legal 

 

4

 The USAM offers a non-exhaustive list of factors that should be weighed in judging the 

public interest: (1) the importance of the investigation or prosecution to effective enforcement of the 

criminal laws; (2) the value of the person's testimony or information to the investigation or 

prosecution; (3) the likelihood of prompt and full compliance with a compulsion order, and the 

effectiveness of available sanctions if there is no such compliance; (4) the person’s relative culpability 

in connection with the offense or offenses being investigated or prosecuted, and his or her criminal 

history; (5) the possibility of successfully prosecuting the person prior to compelling his or her 

testimony; and (6) the likelihood of adverse collateral consequences to the person if he or she testifies 

under a compulsion order. USAM 9-23.210.
15

protections the witness receives for voluntary testimony result from the type of 

agreement the witness makes with the prosecutor. Id.

Letter immunity describes an agreement between the prosecuting office and 

the witness that results in a letter from the prosecuting office to the witness 

authorizing the grant of legal protections.5 Id. While the provisions of the 

agreement can vary, as a general matter letter immunity, like formal immunity, 

only protects the witness against the government’s use of the immunized testimony 

in a subsequent prosecution of the witness, except for perjury or giving a false 

statement. Crim. Resource Manual 717; see United States v. Pelletier, 898 F.2d 

297, 301 (2d Cir. 1990). Depending on the provisions of the agreement, the 

government may retain the ability to prosecute the witness with evidence obtained 

independently of the witness’s immunized testimony, but as with formal use 

immunity, the government bears a considerable burden in such a prosecution. 

Crim. Resource Manual 717-18; see also Pelletier, 88 F.2d at 303.

In a “Queen for a Day” agreement, often referred to as a “proffer” 

agreement, a witness “proffers” or informs prosecutors of what the witness would

state under oath if called to testify and, in exchange, the federal prosecutor agrees 

to limited legal protection for the witness conditioned on the witness’s truthful 

testimony. Crim. Resource Manual 719. In a standard “Queen for a Day” 

agreement, the government agrees not to use any statements made by the witness 

pursuant to the proffer agreement against the witness in its case-in-chief in any 

subsequent prosecution of the witness, or in connection with the sentencing of the 

witness if the witness is subsequently prosecuted and convicted. However, unlike 

with formal use immunity or letter use immunity, the government typically may use 

leads obtained from the witness’s statements to develop evidence against the 

witness and may use the witness’s statements to cross-examine the witness in any 

future prosecution of the witness. United States v. Stein, 440 F. Supp. 2d 315, 322 

(S.D.N.Y. 2006); see also Richard B. Zabel and James J. Benjamin, Jr., “Queen for

a Day” or “Courtesan for a Day”: The Sixth Amendment Limits to Proffer 

Agreements, 15 No. 9 White–Collar Crime Rep. 1 (2001).

4. Act of Production Immunity

Act of production or “Doe” immunity describes a distinct type of immunity 

applying to a witness’s production of records, instead of witness testimony. USAM 

9-23.250; United States v. Doe, 465 U.S. 605 (1984). The production of records 

by a witness in response to a grand jury subpoena potentially implicates the right 

against self-incrimination if the fact that the witness produced the records could be 

used against the witness in a future prosecution as an admission of the existence 

and possession of the records. USAM 9-23.250. The Department uses the same 

procedure to grant act of production immunity as it does for formal use immunity, 

producing a formal letter authorizing the U.S. Attorney to make a motion for a 

judicial order to compel the production of specifically enumerated records in 

 

5

 The reach of the legal protections offered in such a letter may vary, with some instances of 

letter immunity being restricted to the jurisdiction of a particular U.S. Attorney and others applying in 

multiple districts or extending nationwide, typically with the agreement of the other prosecutors.
16

exchange for not using the witness’ act of production against the witness in a 

subsequent prosecution of the witness. Id.; Crim. Resource Manual 722. 

Alternatively, the prosecutor can enter into a letter agreement with the individuals. 

In either situation, the act of production immunity does not provide any protection 

for the witness from a future prosecution.

II. Department Policies and Practices Governing Investigative Activities 

in Advance of an Election

Department policies require all Department officials to “enforce the laws...in 

a neutral and impartial manner” and to remain “particularly sensitive to 

safeguarding the Department’s reputation for fairness, neutrality, and 

nonpartisanship.”6 Various policies also address investigative activities timed to 

affect an election and require that prosecutors and agents consult with the Criminal 

Division’s Public Integrity Section (PIN) before taking overt investigative steps in 

advance of a primary or general election. No Department policy contains a specific 

prohibition on overt investigative steps within a particular period before an election. 

Nevertheless, various witnesses testified that the Department has a longstanding 

unwritten practice to avoid overt law enforcement and prosecutorial activities close 

to an election, typically within 60 or 90 days of Election Day. We discuss relevant 

Department policies and practices below.

A. Election Year Sensitivities Policy

In 2008, 2012, and 2016, the then Attorney General issued a memorandum 

“to remind [all Department employees] of the Department’s existing policies with 

respect to political activities.”7 These memoranda are substantially similar. Each 

memorandum contains two sections, one addressing the investigation and 

prosecution of election crimes and the other describing restrictions imposed on 

Department employees by the Hatch Act.8 In its election crimes section, the 2016

memorandum requires consultation with PIN at “various stages of all criminal 

matters that focus on violations of federal and state campaign-finance laws, federal 

patronage laws and corruption of the election process.”9 However, the 

memorandum also states the following:

Simply put, politics must play no role in the decisions of federal 

investigators or prosecutors regarding any investigations or criminal 

 

6

 See Loretta Lynch, Attorney General, U.S. Department of Justice, Memorandum for all 

Department Employees, Election Year Sensitivities, April 11, 2016, 1.

7

 Lynch, Memorandum for Department Employees, 1; Eric Holder, Attorney General, U.S. 

Department of Justice, Memorandum for all Department Employees, Election Year Sensitivities, March 

9, 2012, 1; Michael Mukasey, Attorney General, U.S. Department of Justice, Memorandum for all 

Department Employees, Election Year Sensitivities, March 5, 2008, 1.

8

 The Hatch Act prohibits Department employees from engaging in partisan political activity 

while on duty, in a federal facility, or using federal property, including using the Internet at work for 

political activities. See 5 U.S.C. §§ 7321-7326 (2017).

9

 Lynch, Memorandum for Department Employees, 1.
17

charges. Law enforcement officers and prosecutors may never select 

the timing of investigative steps or criminal charges for the purpose of 

affecting any election, or for the purpose of giving an advantage or 

disadvantage to any candidate or political party. Such a purpose is 

inconsistent with the Department’s mission and with the Principles of 

Federal Prosecution.

Likewise, the 2016 memorandum recommends that all Department 

employees consult with PIN whenever an employee is “faced with a question 

regarding the timing of charges or overt investigative steps near the time of a 

primary or general election,” without regard to the type or category of crime at 

issue.10 Ray Hulser, the former Section Chief of PIN who currently is a DAAG in the 

Criminal Division, told us that this policy does not impose a “mandatory consult” 

with PIN, but rather encourages prosecutors to call if they have questions about 

investigative steps or criminal charges before an election.

B. The Unwritten 60-Day Rule

After the FBI released its October 28, 2016 letter to Congress informing them 

that the FBI had learned of the existence of additional emails and planned to take 

investigative steps to review them, contemporaneous emails between Department 

personnel highlighted editorials authored by former Department officials discussing 

a longstanding Department practice of delaying overt investigative steps or 

disclosures that could impact an election. These former officials cited the so-called 

“60-Day Rule,” under which prosecutors avoid public disclosure of investigative 

steps related to electoral matters or the return of indictments against a candidate 

for office within 60 days of a primary or general election.11

The 60-Day Rule is not written or described in any Department policy or 

regulation. Nevertheless, high-ranking Department and FBI officials acknowledged 

the existence of a general practice that informs Department decisions. Former 

Director Comey characterized the practice during his OIG testimony as “a very 

important norm which is...we avoid taking any action in the run up to an election, if 

we can avoid it.” Preet Bharara, the former U.S. Attorney for the Southern District 

of New York, told us that the Department’s most explicit policy is about crimes that 

affect the integrity of an election, such as voter fraud, but that there is generalized, 

unwritten guidance that prosecutors do not indict political candidates or use overt 

investigative methods in the weeks before an election.

 

10

 During late 2016, Department personnel also considered guidance in The Federal 

Prosecution of Election Offenses prohibiting overt investigative steps before an election. U.S. 

Department of Justice, The Federal Prosecution of Election Offenses, 7th edition (May 2007). 

However, this publication explicitly applies to election crimes, not to criminal investigations that 

involve candidates in an election. See id. at 91-93.

11

 See Eric Holder, James Comey Is A Good Man, But He Made A Serious Mistake, WASH. POST, 

Oct. 30, 2016; Jamie Gorelick and Larry Thompson, James Comey is Damaging Our Democracy, 

WASH. POST, Oct. 29, 2016; Jane Chong, Pre-Election Disclosures: How Does, and Should, DOJ Analyze 

Edge Cases, LAWFARE BLOG (Nov. 8, 2016), https://www.lawfareblog.com/pre-election-disclosures-howdoes-and-should-doj-analyze-edge-cases (accessed May 8, 2018).
18

Several Department officials described a general principle of avoiding 

interference in elections rather than a specific time period before an election during 

which overt investigative steps are prohibited. Former AG Lynch told the OIG, “[I]n 

general, the practice has been not to take actions that might have an impact on an 

election, even if it’s not an election case or something like that.” Former DAG Yates 

stated, “I look at it sort of differently than 60 days. To me if it were 90 days off, 

and you think it has a significant chance of impacting an election, unless there’s a 

reason you need to take that action now you don’t do it.” Former Principal 

Associate Deputy Attorney General Matt Axelrod stated, “...DOJ has policies and 

procedures on...how you’re supposed to handle this. And remember...those 

policies and procedures apply to...every election at whatever level.... They apply, 

you know, months before.... [P]eople sometimes have a misimpression there’s a 

magic 60-day rule or 90-day rule. There isn’t. But...the closer you get to the 

election the more fraught it is.”

Hulser told the OIG that there was “a sense, there still is, that there is a rule 

out there, that there is some specific place where it says 60 days or 90 days back 

from a primary or general [election], that you can’t indict or do specific 

investigative steps.” He said that there is not any such specific rule, and there 

never has been, but that there is a general admonition that politics should play no 

role in investigative decisions, and that taking investigative steps to impact an 

election is inconsistent with the Department’s mission and violates the principles of 

federal prosecution.

Hulser said that while working on the Election Year Sensitivities 

memorandum, they considered codifying the substance of the 60-Day Rule, but

that they rejected that approach as unworkable, and instead included the general 

admonition described above. Citing PIN guidance, Hulser told OIG that a 

prosecutor should look to the needs of the case and significant investigative steps 

should be taken “when the case is ready, not earlier or later.”12

III. Public Allegations of Wrongdoing Against Uncharged Individuals and 

Disclosure of Information in a Criminal Investigation

The USAM instructs prosecutors that “[i]n all public filings and proceedings, 

federal prosecutors should remain sensitive to the privacy and reputation interests 

of uncharged third-parties” and that there is ordinarily no legitimate governmental 

interest in the public allegation of wrongdoing by an uncharged party. USAM 9-

27.760. Accordingly, even where prosecutors have concluded that an uncharged 

individual committed a crime, Department policies generally prohibit the naming of 

unindicted individuals (as well as co-conspirators) because their privacy and 

reputational interests merit significant consideration and protection. See USAM 9-

11.130, 9-16.500, 9-27.760.

 

12

 Hulser produced an excerpt of a publication, written by a former Deputy Chief of PIN,

discussing the issues involved in choosing the timing for charging a public corruption case. U.S. 

Department of Justice, Prosecution of Public Corruption Cases (February 1988), 214-15.
19

Department regulations governing interactions with the media recognize that 

“[t]he availability to news media of information in criminal and civil cases is a 

matter which has become increasingly a subject of concern in the administration of 

justice.” 28 C.F.R. § 50.2(a)(1). Addressing this concern, the FBI issued a Media 

Relations Policy Guide for FBI personnel. The FBI Media Relations Policy Guide 

recognizes that the regulations found at 28 C.F.R. § 50.2 lay out specific and 

controlling guidelines addressing the release of information to the media from 

Department authorities as well as from subordinate law enforcement components, 

including the FBI. Id.; see also 28 C.F.R. § 0.1. The FBI Media Relations Policy 

Guide also recognizes that the USAM offers further specific guidance consistent with 

federal regulations in its Media Policy section “governing the release of 

information...by all components (FBI...and DOJ divisions) and personnel of the 

Department of Justice.” USAM 1-7.001. The Department’s policy and regulations 

forbid the confirmation or denial and any discussion of active investigations, except 

in limited, specified circumstances. USAM 1-7.530. Taken together, these 

documents offer an understanding of Department operations related to the media, 

particularly publicity around FBI investigations.

A. FBI Media Relations Policy

In October 2015, the FBI issued the version of its Media Relations at FBI 

Headquarters (HQ) and in Field Offices Policy Guide (“FBI Media Policy Guide”) 

pertinent to this review.13 The FBI Media Policy Guide recognizes that the FBI 

Office of Public Affairs (FBI OPA) “works to enhance the public’s trust and 

confidence in the FBI by releasing and promoting information about the FBI’s 

responsibilities, operations, accomplishments, policies, and values.” The FBI Media 

Policy Guide confirms that FBI OPA “operations are governed by DOJ-OPA’s 

instructions, located at Title 28 Code of Federal Regulations (C.F.R.) § 50.2, and by 

the United States Attorneys’ Manual [USAM], Title 1-7.000, ‘Media Relations.’” As 

such, where the guidance in the FBI Media Policy Guide conflicts with the USAM or 

28 C.F.R. § 50.2, the USAM and Code of Federal Regulations control FBI media 

practices.

In its provisions governing disclosure of information to the media from FBI 

Headquarters in Washington, the FBI Media Policy Guide states “the [FBI] Director, 

[FBI] deputy director (DD), associate deputy director (ADD), [Assistant Director] 

for [FBI] OPA, and [FBI] OPA personnel designated by the [OPA Assistant Director] 

are authorized to speak to the media.” However “[a]ll releases of information 

by...any FBI personnel...authorized to speak to the media must conform with all 

applicable laws and regulations, as well as policies issued by DOJ,” which includes 

specific reference to the USAM, among other Department legal authorities. The FBI 

Media Policy Guide itself constrains authorized disclosures, explaining “[d]isclosures 

 

13

 The October 2015 FBI Media Policy Guide is available online in the FBI records vault. See 

FBI Office of Public Affairs, Media Relations at FBIHQ and in Field Offices Policy Guide, October 13, 

2015, https://go.usa.gov/xQNXQ (accessed May 7, 2018). On November 14, 2017, the FBI released a 

significantly revised guidance for media relations entitled Public Affairs Policy Guide: Media Relations, 

External Communications, and Personal Use of Social Media.
20

must not prejudice an adjudicative proceeding and...must not address an ongoing 

investigation” except in specified circumstances.14 The FBI Media Policy Guide 

offers limited justifications to release information regarding an ongoing 

investigation, specifying the need “to assure the public that an investigation is in 

progress[,]...to protect the public interest, welfare, or safety,...[or] to solicit 

information from the public that might be relevant to an investigation.” Any such 

release requires “prior approval of FBIHQ entities...[and] the careful supervision of 

OPA.”

The FBI Media Policy Guide specifies that when releasing information to the 

media via a press conference, FBI OPA personnel “must request approval...in 

advance from DOJ-OPA for any case or investigation that may result in an 

indictment.” Further, FBI personnel “must coordinate with DOJ OPA on any 

materials, quotes, or information to be released in the press conference.”

B. 28 C.F.R. § 50.2

In all criminal matters, federal regulations bar Department personnel from 

“furnish[ing] any statement or information...if such a statement or information may 

reasonably be expected to influence the outcome of...a future trial.” 28 C.F.R.

§ 50.2(b)(2). The regulation also provides that “where information relating to the 

circumstances of...an investigation would be highly prejudicial or where the release 

thereof would serve no law enforcement function, such information should not be 

made public.” 28 C.F.R. § 50.2(b)(3).

The regulations permit, subject to limitations, some facts to be released 

publicly, including a defendant’s name, age, and similar background information, 

the substance of the charges at issue, specified details regarding an investigation, 

and the circumstances surrounding an arrest. See 28 C.F.R. § 50.2(b)(3). But 

while permitting this limited release, the regulation specifies that the Department 

personnel making the public “disclosures should include only incontrovertible, 

factual matters, and should not include subjective observations.” Id. These strict 

limitations “shall apply to the release of information to news media from the time a 

person is the subject of a criminal investigation until any proceeding resulting from 

such an investigation has been terminated by trial or otherwise.” 28 C.F.R.

§ 50.2(b)(1). A Department official explained to the OIG that “otherwise” included 

criminal actions ended when the Department declines to prosecute.

The regulations do provide for exceptions, acknowledging situations in which 

the regulations “limit the release of information which would not be prejudicial 

under the particular circumstances.” 28 C.F.R. § 50.2(b)(9). When a Department 

official believes that “in the interest of the fair administration of justice and the law 

enforcement process information beyond these guidelines should be released, in a 

particular case, he shall request the permission of the Attorney General or the 

Deputy Attorney General to do so.” Id.

 

14

 When FBI officials make a public comment, the FBI Office of General Counsel “must advise 

FBI OPA on the potential impact of public comment on...proposed and pending litigation.”
21

C. USAM Media Relations Guidance

The Attorney General’s central role to information disclosures to the media is 

also recognized in the USAM’s Media Relations policy.15 See USAM 1-7.210. The 

USAM makes clear that “[f]inal responsibility for all matters involving the news 

media and the [Department] is vested in the Director of the Office of Public Affairs 

(OPA)” and, without exception, the “Attorney General is to be kept fully informed of 

appropriate matters at all times.” USAM 1-7.210.

The USAM’s Media Relations section offers several provisions governing how 

information disclosure to the media may permissibly take place. Overall, the USAM 

1-701(E) requires “any public communication by any...investigative agency about 

pending matters or investigations that may result in a case, or about pending cases 

or final dispositions, must be approved by the appropriate Assistant Attorney 

General, the United States Attorney, or other designate responsible for the case.” 

Reinforcing a general principle of non-disclosure, the USAM declares “[a]t no time 

shall any component or personnel of the Department of Justice furnish any 

statement or information that he or she knows or reasonably should know will have 

a substantial likelihood of materially prejudicing an adjudicative proceeding.” USAM 

1-7.500.

In keeping with that principle, USAM 1-7.530 instructs Department personnel 

that, except in unusual circumstances, they “shall not respond to questions about 

the existence of an ongoing investigation or comment on its nature or progress, 

including such things as the issuance or serving of a subpoena, prior to the public 

filing of the document.” Those unusual circumstances where comment may be 

appropriate included “matters that have already received substantial publicity, or 

about which the community needs to be reassured that the appropriate law 

enforcement agency is investigating the incident, or where release of information is 

necessary to protect the public interest, safety, or welfare[.]” USAM 1-7.530. But 

in any such circumstances, “the involved investigative agency will consult and 

obtain approval from the...Department Division handling the matter prior to 

disseminating any information to the media.” Id.

USAM 1-7.401 addresses specifically press conferences, emphasizing a 

preference for written press releases as the “usual method to release public 

information...by investigative agencies.” While permissible, press conferences 

“should be held only for the most significant and newsworthy actions, or if a 

particularly important deterrent or law enforcement purpose would be served. 

Prudence and caution should be exercised in the conduct of any press 

conference[.]” USAM 1-7.401. Repeatedly the USAM states that before holding a 

 

15

 The Department significantly revised the USAM Media Relations provisions in November 

2017, retitling them under “Confidentiality and Media Contacts Policy.” This report primarily 

addresses the USAM Media Relations provisions in effect at the time of the events within the scope of 

this review. We consider the revised USAM provisions related to the media in Chapter Six of this 

report.
22

press conference “prior coordination with OPA is required” for information “of 

national significance.” USAM 1-7.330(B), 1-7.401(B).

IV. Release of Information to Congress

The provision of information from the Department and the FBI to Congress is 

governed by Department policy guidance, the USAM, and FBI rules.16

A. USAM Congressional Relations Guidance

Under the USAM Title 1-8.000, and consistent with 28 C.F.R. § 0.27, 

communications between Congress and the Department are the responsibility of the 

Assistant Attorney General, Office of Legislative Affairs (OLA).17 As written, the 

USAM 1-8.000 generally addresses personnel within the staff of the various United 

States Attorneys’ Offices. However, USAM 1-8.000 explicitly applies to Department 

components and several provisions of the USAM guidance regarding the 

Department’s congressional relations bind all Department personnel.18

One such provision is USAM 1-8.030 requiring coordination of a Department

response when Congress seeks information that is not public. USAM 1-8.030 states 

“[a]ll Congressional requests for information (other than public information), 

meetings of any type, or assistance must immediately be referred to the...OLA[.]” 

The USAM lists the following examples of congressional requests requiring referral 

to OLA: “requests for non-public documents or information; discussion of or 

requests for briefings on cases;...[and] suggestions or comments on case 

disposition or other treatment[.]” USAM 1-8.030. These standards apply “in both 

open and closed cases” and the USAM highlights a specific bar on “provid[ing] 

information on (1) pending investigations;...(3) matters that involve grand jury, 

tax, or other restricted information; (4) matters that would reveal...sensitive 

investigative techniques, deliberative processes, the reasoning behind the exercise 

 

16

 We note that the policies and rules described herein do not restrict lawful whistleblowing, 

protections for which were recognized by Attorney General Sessions in a recent memorandum 

reiterating the Department’s “commit[ment] to protecting the rights of whistleblowers (i.e., those 

employees or applicants who have made a lawfully protected disclosure to Congress).” Jefferson B. 

Sessions, Attorney General, U.S. Department of Justice, Memorandum for All Heads of Department 

Components, Communications with Congress, May 2, 2018, 2.

17

 According to the Code of Federal Regulations, “[t]he following-described matters are 

assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Office 

of Legislative and Intergovernmental Affairs: (a) Maintaining liaison between the Department and the 

Congress.” 28 C.F.R. § 0.27.

18

 While the AAG of OLA “is responsible for communications between Congress and the 

Department under the authority of the Attorney General” per the USAM, that authority does not 

override statutory reporting requirements to Congress, such as those required for the OIG found at 5 

U.S.C. App. 4(a)(5).
23

of prosecutorial discretion, or the identity of individuals who may have been 

investigated but not indicted.”

19 Id.

B. FBI Guidance on Information Sharing with Congress

The FBI’s status as the primary investigative agency of the federal 

government makes its sharing of information with Congress of special concern. 

Relevant guidance is provided in The Attorney General’s Guidelines for Domestic 

FBI Operations (“AGG-Dom”) and the FBI’s Domestic Investigations and Operations 

Guide (“DIOG”). The AGG-Dom directs that the FBI may “disseminate information 

obtained or produced” through its domestic investigations “to congressional 

committees as authorized by the Department of Justice Office of Legislative 

Affairs.”20 AGG-Dom § VI.B.1(c). This direction is reinforced in the DIOG’s section 

on the retention and sharing of information, which states “that the FBI may 

disseminate information obtained or produced through activities under the AGGDom...[t]o Congress or to congressional committees in coordination with the FBI 

Office of Congressional Affairs (OCA) and the DOJ Office of Legislative Affairs.” 

DIOG § 14.3.1(D). Notably, both the AGG-DOM and DIOG anticipate circumstances 

requiring departure from their rules. DIOG §§ 2.6-2.7. The DIOG spells out how 

such departures may occur, usually involving high-level FBI approval, coordination 

with the FBI Office of General Counsel, and notice and/or approval at the highest 

levels of the Department of Justice. Id.

C. Current Department Policy on Communication of Investigative 

Information to Congress

While the USAM, AGG-Dom, and DIOG lay out the consistent institutional 

relationships in the Department and its components for Congressional information 

flow, the Department also uses policy memoranda and other communications to 

provide guidance on how communication should be handled with Congress in 

sensitive, investigation-related circumstances. Among these are two memoranda 

governing Department communications with Congress and a letter addressing the 

principles of Department communications with Congress on ongoing investigations.

 

19

 On its face, this portion of USAM 1-8.030 addresses U.S. Attorney’s Offices specifically. But 

the provision thereafter offers broader guidance that “[a]ll requests for these types of information 

should be referred to OLA[.]” USAM 1-8.030. Moreover, a Department official with long-term 

experience in OLA explained that he viewed the entirety of the USAM guidance on Congressional 

Relations as helping to understand “the playing field on which we operate in terms of a sensitivity of 

congressional contacts.”

20

 The FBI is required to coordinate with OLA before sending formal communications to 

Congress regarding substantive matters that impact the Department. According to a Department 

official with long-term experience in OLA, the FBI can sometimes speak to Congress more informally 

by email or phone about certain types of matters like procedural matters, without first obtaining OLA 

approval.
24

1. Policy Memoranda on Department Communications with 

Congress

On May 11, 2009, then Attorney General Holder issued a policy 

memorandum for all Department components (including the FBI) entitled 

Communications with Congress and the White House (“May 2009 Memo”). In 

addressing pending criminal investigations and cases, the May 2009 Memo 

explained that the heads of investigative agencies, tasked with the primary duty of 

initiating and supervising cases, “must be insulated from influences that should not 

affect decisions in particular criminal...cases.” The May 2009 Memo continues that 

for communications with Congress, consistent with “policies, laws, regulations, or 

professional ethical obligations...and consistent with the need to avoid publicity that 

may undermine a particular investigation,” congressional inquiries related to 

pending criminal investigations and cases “should be directed to the Attorney 

General or [DAG].”21

On August 17, 2009, then Attorney General Holder issued an updated memo 

(“August 2009 Memo”) entitled Communications with Congress. The August 2009 

Memo clarified that all inquiries from congressional officials should be directed to 

DOJ OLA. The August 2009 Memo also spelled out that “all communications 

between the Department and Congress...should be managed by OLA to ensure that 

relevant Department interests and other Executive Branch interests are protected.” 

“[C]omponents should not communicate with members, committees, or 

congressional staff without advance coordination with OLA.” The August 2009

Memo concluded with direction for component heads to contact DOJ OLA for any 

questions on the policy.22

2. The Linder Letter

In a January 2000 letter from the Department’s AAG for OLA to then 

Congressman John Linder (“Linder letter”), the Department described in detail the 

principles that guide OLA and the Department in their decision to disclose or 

withhold information from Congress. The letter remains a reference guide for OLA.

The Linder letter lays out “governing principles” to foster “improved 

communications and sensitivity between the Executive and Legislative Branches 

regarding our respective institutional needs and interests.” After discussing the 

general tension between the interests of the two branches, the Linder letter 

 

21

 The May 2009 Memo exempts congressional hearing communications and communications 

internal to an investigation from this requirement. The August 2009 Memo does not include any 

exemption for congressional hearing communications.

22

 On January 29 and May 2, 2018, Attorney General Sessions released memoranda also 

entitled Communications with Congress that reiterated and expanded direction to Department and 

component personnel regarding coordination with OLA “[c]onsistent with past policy and practice[.]” 

Among other changes, the May 2018 memorandum states “communications between the Department 

and Congress...will be managed or coordinated by [OLA] to ensure that relevant Department and 

Executive Branch interests are fully protected.” In addition, the May 2018 memorandum states that 

“OLA will review prior to transmittal all Department written communications to Congress, including 

letters...and any other materials intended for submission or presentation on Capitol Hill.”
25

examines the “inherent threat to the integrity of the Department’s law enforcement 

and litigation functions” that comes from congressional inquiries during pending 

investigations. The letter noted that this concern was “especially significant with 

respect to ongoing law enforcement investigations.” It then described the 

Department’s longstanding policy, “dating back to the beginning of the 20th 

Century,” to decline to provide congressional committees with access to open law 

enforcement files. One risk, according to the letter, is the possible public 

perception that such congressional inquiries amount to pressure resulting in “undue 

political and Congressional influence over law enforcement and litigation decisions.” 

Another risk is the “severe[] damage” to the reputations of those mentioned in 

disclosure of information on open matters, “even though the case might ultimately 

not warrant prosecution or other legal action.”

Finally, even when an investigation results in a declination, the Linder letter 

explains that the disclosure of information contained in such a declination 

memorandum “would implicate significant individual privacy interests as well.” 

Such information “often contain[s] unflattering personal information as well as 

assessments of witness credibility and legal positions. The disclosure of the 

contents of these documents could be devastating to the individuals they discuss.”

V. Special Counsel Regulations

Since the 1999 lapse of the Independent Counsel Reauthorization Act,

Department regulations govern the process of appointing a special counsel. 28 

U.S.C. §§ 591-599, 64 Fed. Reg. 37,038 (1999). According to 28 C.F.R. § 600.1, 

the Attorney General (or Acting Attorney General) may appoint a special counsel for 

the criminal investigation of a person or matter when it would be in the public 

interest and there exists a Department conflict of interest or other extraordinary 

circumstance.

The regulations provide that the Attorney General need not appoint a special 

counsel immediately when a possible conflict emerges. Instead, the Attorney 

General may authorize further investigation or mitigation efforts, such as recusal. 

See 28 C.F.R. § 600.2. The special counsel must come from outside the 

government.

23

 See 28 C.F.R. § 600.3. The Attorney General sets the criminal 

jurisdiction of the special counsel through a “specific factual statement of the 

matter to be investigated,” though the Attorney General may authorize the 

 

23

 In 2003, then Deputy Attorney General James Comey, who was the Acting Attorney 

General after the recusal of then Attorney General John Ashcroft, appointed a U.S. Attorney as special 

counsel in a letter citing 28 U.S.C. §§ 509, 510, 515, which describe the delegation authority of the 

Attorney General’s office. See United States v. Scooter Libby, 429 F.Supp. 27, 40 (D.D.C. 2006). 

This method of appointing a special counsel did not rely on Department regulations, eliminating 

restrictions on who may be appointed special counsel and removing guidance setting the Attorney 

General’s supervisory role over the office. See 28 C.F.R. §§ 600.2, 600.7.
26

additional areas of investigation.24 28 C.F.R. §§ 600.3-600.4. Day to day, the 

special counsel is not subject to Department supervision, but the Attorney General 

maintains the ability to review and overrule special counsel decisions in certain 

circumstances. 28 C.F.R. § 600.7.

VI. Criminal Statutes Relevant to the Midyear Investigation

Four statutes governing the handling and retention of classified information 

are relevant to the Midyear investigation: 18 U.S.C. §§ 793(d), 793(e), 793(f), and 

1924.25 Section 793(f)(1), which prohibits the grossly negligent removal of 

“national defense information,” became a central focus of the investigation and of 

subsequent prosecutive decisions. In addition to the mishandling and retention 

statutes, prosecutors also considered whether former Secretary Clinton or others 

violated 18 U.S.C. § 2071, a criminal statute prohibiting the willful concealment, 

removal, or destruction of federal records, in connection with the deletion of emails. 

We discuss the Department’s analysis of these statutes in Chapter Seven.

A. Mishandling and Retention of Classified Information

1. 18 U.S.C. §§ 793(d) and (e)

Sections 793(d) and (e) are felony statutes that apply to the willful 

mishandling and retention of classified information. Section 793(d) governs the 

mishandling of classified documents or information by individuals who are 

authorized to possess it — that is, who have the appropriate security clearance and 

require access to the specific classified information to perform or assist in a lawful 

and authorized governmental function (“need to know”).26 Section 793(d) 

provides:

Whoever, lawfully having possession of, access to, control over, or 

being entrusted with any document, writing, code book, signal book, 

sketch, photograph, photographic negative, blueprint, plan, map, 

model, instrument, appliance, or note relating to the national defense, 

or information relating to the national defense which information the 

possessor has reason to believe could be used to the injury of the 

United States or to the advantage of any foreign nation, willfully 

communicates, delivers, transmits or causes to be communicated, 

delivered, or transmitted or attempts to communicate, deliver, 

transmit or cause to be communicated, delivered or transmitted the 

same to any person not entitled to receive it, or willfully retains the 

 

24

 A special counsel’s jurisdiction also covers “federal crimes committed in the course of, and 

with the intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of 

justice, destruction of evidence, and intimidation of witnesses.” 28 C.F.R. § 600.4.

25

 Under the USAM, the Department’s National Security Division (NSD) must expressly 

approve any prosecution involving these statutory provisions. See USAM 9-90.020.

26

 See Exec. Order 13526 §§ 4.1(a)(1)-(3), 6.1(dd) (Dec. 29, 2009); see also United States

v. Truong Dinh Hung, 629 F.2d 908, 919 n.10 (4th Cir. 1980).
27

same and fails to deliver it on demand to the officer or employee of 

the United States entitled to receive it...[is subject to a criminal fine or 

imprisonment].

Thus, to prove a violation of Section 793(d), the government must establish the 

following:

 The individual lawfully had possession of documents or “information 

relating to the national defense;”

 If information, he or she had reason to believe that the information 

could be used to the injury of the United States or to the advantage of 

a foreign nation; and

 The individual willfully communicated, delivered, or transmitted the 

document or information to a person not entitled to receive it, or 

willfully retained the document or information and failed to deliver it to 

the officer or employee of the United States entitled to receive it.

Section 793(e) addresses the possession and transmission of classified 

information by persons who are not authorized to possess it, either because they 

lacked the requisite security clearance and need to know, or because they exceeded 

the scope of their authorization by removing classified materials from a secure 

facility.27 Apart from this distinction, Sections 793(d) and 793(e) are substantially 

identical.

Information Relating to the National Defense

Both 793(d) and 793(e) apply to individuals who possess documents or 

“information relating to the national defense.” This term is not defined in the 

statute. Courts have not limited this phrase to any specific subject matter, but the 

Fourth Circuit has held that the government must establish first that the 

information is “closely held by the government,” and second, that its “disclosure 

would be potentially damaging to the United States or useful to an enemy of the 

United States.” United States v. Rosen, 445 F. Supp. 2d 602, 618, 620-21 (E.D. 

Va. 2006) (Rosen I) (citing Gorin v. United States, 312 U.S. 19 (1941)); United 

States v. Morison, 844 F.2d 1057, 1073 (4th Cir. 1988); United States v. Truong, 

629 F.2d 908, 918-19 (4th Cir. 1980); United States v. Heine, 151 F.2d 813, 817 

(2d Cir. 1945).

The classification level of information may be “highly probative of whether 

the information at issue is ‘information relating to the national defense’ and 

whether the person to whom they disclosed the information was ‘entitled to receive’

 

27

 See, e.g., United States v. Hitselberger, 991 F. Supp. 2d 101, 104 (D.D.C. 2013) (Navy 

linguist who printed and removed Secret documents indicted under 793(e)); United States v. Chattin, 

33 M.J. 802, 803 (1991) (Navy seaman who stuffed classified document down his pants and walked 

out of a secure facility charged under 793(e)).
28

[it].”28 However, classification level does not conclusively establish that a 

document or information is “information relating to the national defense.” In United

States v. Rosen, 599 F. Supp. 2d 690, 694-95 (E.D. Va. 2009) (Rosen II), the court 

stated that the term “information relating to the national defense” is not 

synonymous with classified information. While the classification level of information 

may serve as evidence that the government intended that it be closely held, the 

defendant can rebut the conclusion by showing that the government in fact failed to 

hold it closely. The court also stated that the classification level could not be 

introduced to show that unauthorized disclosure of the information might potentially 

damage the United States or aid an enemy of the United States.29

Willfulness

Sections 793(d) and (e) both require that the prohibited act be done 

“willfully.” Courts have interpreted “willfully” to mean an act done “intentionally 

and purposely and with the intent to do something the law forbids, that is, with the 

bad purpose to disobey or to disregard the law.”30

In Rosen I, the court held that to prove that the defendants “willfully” 

committed the conduct prohibited under Sections 793(d) and (e), the government 

is required to prove beyond a reasonable doubt:

[T]hat the defendants knew the information was NDI [information 

relating to the national defense], i.e., that the information was closely 

held by the United States and that disclosure of this information might 

potentially harm the United States, and that the persons to whom the 

defendants communicated the information were not entitled under the 

classification regulations to receive the information. Further the 

government must prove beyond a reasonable doubt that the 

defendants communicated the information they had received from 

their government sources with “a bad purpose either to disobey or to 

disregard the law.” It follows, therefore, that if the defendants, or 

 

28

 Rosen I, 445 F. Supp. 2d at 623; see also Hitselberger, 991 F. Supp. 2d at 106 (document 

marked “Secret” was “information relating to the national defense” because the classification level 

indicated that it would cause serious damage to the security of the United States if lost, and 

defendant’s training placed him on notice that the government considers information in classified 

documents important to national security); United States v. Kiriakou, 2012 WL 3263854, at *6 (E.D. 

Va. 2012) (unreported decision) (rejecting defendant’s argument that 793(d) is unconstitutionally 

vague because courts have relied on the classified status of information to determine whether it is 

closely held by the government and harmful to the United States); United States v. Kim, 808 F. Supp. 

2d 44, 53 (D.D.C. 2011) (“Defendant’s vagueness challenge is particularly unpersuasive in light of the 

fact that he is charged with disclosing the contents of an intelligence report...which was marked TOP 

SECRET/SENSITIVE COMPARTMENTED INFORMATION....”).

29

 Several weeks before trial was scheduled to begin, prosecutors moved to dismiss the 

indictment based on the “unexpectedly higher evidentiary threshold” required to prevail at trial. See 

Motion to Dismiss, United States v. Rosen, Crim. No. 1:05CR225 (E.D. Va. filed May 1, 2009).

30

 Bryan v. United States, 524 U.S. 184, 190 (1998) (cited in Hitselberger, 991 F. Supp. 2d at 

107-08); see also Morison, 844 F.2d at 1071; United States v. Truong, 629 F.2d 908, 918-19 (4th Cir. 

1980).
29

either of them, were truly unaware that the information they are 

alleged to have received and disclosed was classified, or if they were 

truly ignorant of the classification scheme governing who is entitled to 

receive the information, they cannot be held to have violated the 

statute.31

Additional Burden of Proof for Disclosures of Intangible Information

Courts have held that Sections 793(d) and (e) contain a “heightened” or 

“additional” mens rea requirement where the transmission of intangible information 

(as contrasted with the retention or transmission of classified documents) is 

involved.32 In addition to showing that an individual acted willfully, the government 

must prove beyond a reasonable doubt that he or she possessed “reason to believe 

that the information could be used to the injury of the United States or to the 

advantage of a foreign nation.”33

Vagueness Challenges

The term “information relating to the national defense” in Sections 793(d) 

and (e) repeatedly has been challenged as unconstitutionally vague. Courts have 

rejected such challenges because the statute requires the government to prove that 

an individual “willfully” committed the prohibited conduct, a requirement that 

“eliminat[es] any genuine risk of holding a person ‘criminally responsible for 

conduct which he could not reasonably understand to be proscribed.’”

34

2. 18 U.S.C. § 793(f)

Section 793(f)(1), known as the gross negligence provision, became a central 

focus in the controversy over the decision not to recommend prosecution of former 

Secretary Clinton or her senior aides, and former Director Comey’s public statement 

on July 5, 2016. Below we discuss the statutory requirements under Section 

793(f), the Midyear prosecutors’ interpretation of Section 793(f)(1), and previous 

cases in which prosecution was declined under the gross negligence provision.

a. Statutory Requirements

Section 793(f) provides as follows:

 

31

 Rosen I, 445 F. Supp. 2d at 625 (internal citation omitted).

32

 See Hitselberger, 991 F. Supp. 2d at 105; Drake, 818 F. Supp. 2d 909, 916-17 (D. Md.); 

see also United States v. Leung, No. 03-CR-434 (C.D. Cal. Jul. 14, 2003).

33

 See Rosen I, 445 F. Supp. 2d at 643; see also Memorandum Opinion, United States v. 

Sterling, No. 1:10-CR-00485-LHB (filed Jun. 28, 2011) (government asserted that it must prove that 

the defendant acted willfully and had reason to believe the information would harm the United States 

where he is alleged to have disclosed classified information).

34

 Id. at 625; Morison, 844 F.2d at 1073; Truong, 629 F.2d at 918-19 (4th Cir. 1980); see 

also Gorin v. United States, 312 U.S. 19 (1941) (holding that information “connected with” or “relating 

to” the national defense used in the predecessor to a related Espionage Act statute was not 

unconstitutionally vague because the statute included a scienter requirement).
30

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...[is 

subject to a criminal fine or imprisonment].

Section 793(f)(1) addresses the removal, delivery, loss, theft, abstraction, or 

destruction of any document or “information relating to the national defense” 

through gross negligence, while Section 793(f)(2) penalizes the failure to report the 

removal, loss, theft, abstraction, or destruction of any document or “information 

relating to the national defense,” if an individual has knowledge that it has been 

removed from its proper place of custody.

Section 793(f), like sections 793(d) and (e), requires that the information in 

question be “information relating to the national defense.” In United States v. 

Dedeyan, 584 F.2d 36, 39 (4th Cir. 1978), the Fourth Circuit upheld jury 

instructions in a Section 793(f)(2) case that required the government to prove that 

“disclosure of information in the document would be potentially damaging to the 

national defense, or that information in the document disclosed might be useful to 

an enemy of the United States.” 

b. Prosecutors’ Interpretation of the “Gross 

Negligence” Provision in Section 793(f)(1)

Section 793(f)(1) does not define what constitutes “gross negligence,” nor 

have any federal court decisions interpreted this specific provision of the statute. 

However, the prosecutors analyzed the legislative history of Section 793(f)(1) and 

identified statements made during the 1917 congressional debate indicating that 

the state of mind required for a violation of Section 793(f)(1) is “so gross as to 

almost suggest deliberate intention,” criminally reckless, or “something that falls 

just a little short of being willful.” The prosecutors cited a statement by 

Congressman Andrew Volstead during the 1917 debate about the predecessor to 

Section 793(f)(1):

I want to call attention to the fact that the information that is covered 

by this section may be, and probably would be, of the very highest 

importance to the Government.... It is not an unusual provision at all. 

It occurs in a great many criminal statutes. Men are convicted for 

gross negligence, but it has to be so gross as almost to suggest 

deliberate intention before a jury will convict. For instance, a person is 

killed by a man running an automobile recklessly on a crowded street. 

He may, and under the laws of most States would be, adjudged guilty 
31

of manslaughter, and can be sent to State prison.... We have, as I 

have already stated, a number of statutes of that kind. This provision 

is not revolutionary. It is the ordinary practice to apply such statutes 

to cases where lack of care occasions the death or serious injury of 

persons. This section should be, and probably would be, applied only 

in those cases where something of real consequence ought to be 

guarded with extreme care and caution.35

Given the absence of a definition of “gross negligence” in Section 793(f), the 

prosecutors researched state manslaughter statutes in effect at the time of the 

1917 congressional debate, and determined that gross negligence was interpreted 

in that context to require wantonness or recklessness that was equivalent to 

criminal intent. However, the prosecutors also identified contemporaneous state 

court decisions interpreting other criminal statutes using “gross negligence” to 

require proof that ranged from something more than civil negligence to willful, 

intentional conduct.

The Midyear prosecutors did not find any court cases addressing the state of 

mind required for a violation of Section 793(f)(1). However, the prosecutors 

analyzed United States v. Dedeyan, 584 F.2d 36, 39 (4th Cir. 1978), a Fourth 

Circuit decision interpreting Section 793(f)(2). This case involved a civilian 

employee who completed a military vulnerability analysis and marked it “Secret,” 

then took a copy of it home to proofread. While at home, his cousin secretly 

photographed part of the analysis with a camera provided by the Soviet Union. 

When the defendant later learned that his cousin had taken these photos, he 

accepted $1,000 as a “payment for remaining silent” rather than reporting that the 

information had been compromised. Upholding the statute against a challenge that 

it was unconstitutionally vague, the court held that Section 793(f)(2) requires the 

government to prove that the defendant knew that the document had been illegally 

abstracted, and that this knowledge requirement was sufficient to save the statute 

from vagueness.

In addition, the Midyear prosecutors reviewed previous prosecutions under 

Section 793(f)(1) in federal or military courts and concluded that these cases 

involved either a defendant who knowingly removed classified information from a 

secure facility, or inadvertently removed classified information from a secure facility 

and, upon learning of its removal, failed to report its “loss, theft, abstraction, or 

destruction.”36 The prosecutors concluded that based on case law and the 

 

35

 65 Cong. Rec. H1762-63 (daily ed. May 3, 1917).

36

 See Indictment, United States v. Smith, No. 03-CR-429 (C.D. Cal filed Feb. 24, 2004); see 

also United States v. Courpalais, No. ACM 35571, 2005 WL 486145 (A.F. Ct. Crim. App. Feb. 10, 

2005) (defendant removed four classified photographs and took them home); United States v. Roller, 

37 M.J. 1093 (1993) (defendant inadvertently placed two classified documents in his gym bag and 

took them home, and left the documents in his garage when he later discovered them); United States

v. Chattin, 33 M.J. 802 (1991) (defendant stuffed classified documents down his pants and took them 

home); United States v. Gaffney, 17 M.J. 565 (1983) (defendant was supposed to destroy classified 

material but instead took it home and put it in a neighborhood dumpster); United States v. Gonzalez, 

12 M.J. 747 (1981) (defendant intermingled two classified messages with personal mail he was 
32

Department’s prior interpretation of the statute, charging a violation of Section 

793(f) likely required evidence that the individuals who sent emails containing 

classified information “knowingly” included the classified information or transferred 

classified information onto unclassified systems (Section 793(f)(1)), or learned that 

classified information had been transferred to unclassified systems and failed to 

report it (Section 793(f)(2)). Thus, the Midyear prosecutors interpreted the “gross 

negligence” provision of Section 793(f)(1) to require proof that an individual acted 

with knowledge that the information in question was classified.37

As noted above, sections 793(d) and (e) have survived constitutional 

vagueness challenges because of the existence of a scienter requirement in the 

form of the requirement to prove “willfulness.” Such a challenge has not yet been 

raised in a Section 793(f)(1) “gross negligence” case. The Midyear prosecutors 

stated:

[T]he government would likely face a colorable constitutional challenge 

to the statute if it prosecuted an individual for committing gross 

negligence who was both unaware he had removed classified 

information at the time of the removal and never became aware he 

had done so.... Moreover, in bringing a vagueness challenge, defense 

counsel would also likely point to the significant disagreement as to 

the meaning of “gross negligence.”

c. Previous Section 793(f)(1) Declinations

The Midyear prosecutors also reviewed at least two previous investigations 

where prosecution was declined under the gross negligence provision in Section 

793(f)(1). The Midyear prosecutors told us that these declinations informed their 

understanding of the Department’s historical approach to Section 793(f)(1). We 

discuss these previous declinations below.

Gonzales Declination Decision

One of these previous cases involved an OIG investigation into the 

mishandling of documents containing highly classified, compartmented information 

about a National Security Agency (NSA) surveillance program by former White 

House Counsel and Attorney General Alberto Gonzales. In 2004, while Gonzales 

 

carrying to a friend in Alaska, then put the message in a desk drawer in the friend’s room and forgot 

them); cf. United States v. Oxfort, 44 M.J. 337 (1996) (defendant removed classified messages from a 

Sensitive Compartmented Information Facility (SCIF) in Japan with the intention of passing them 

along to individuals who were not entitled to receive them; although the opinion states the defendant 

was charged under 793(e), prosecutors found documents referencing charges filed under Section 

793(f)(1) based on the same facts); United States v. McGuinness, 33 M.J. 781 (1991) (defendant took 

home numerous classified items from previous assignments and was charged under Section 793(e), 

but a Section 793(f)(1) conviction was set aside for statute of limitation reasons).

37

 Proof of such knowledge would also be necessary to establish a violation of Sections 793(d) 

or (e), which required proof of “willfulness.” Accordingly, as detailed below and in subsequent 

chapters, the investigative team focused significant attention on determining whether Clinton, her 

senior aides, and senders of emails that contained classified information had actual knowledge of the 

classified status of the information.
33

was the White House Counsel, he took handwritten notes memorializing a meeting 

about the legality of the NSA program. The notes included operational details 

about the program, including its compartmented codeword. Although Gonzales did 

not mark the notes as classified, he said that he used two envelopes to doublewrap the notes and may have written an abbreviation for the codeword on the inner 

envelope. On the outer envelope, Gonzales said that he wrote “AG – EYES ONLY –

TOP SECRET.” He stored these notes in a safe in the West Wing of the White House 

and said that he took them with him when he became the Attorney General in 

February 2005. Gonzales said that he did not recall where he stored the notes after 

removing them from the White House, but that he may have taken them home. 

Gonzales also stored the notes and several other documents containing TS//SCI 

classification markings in a safe in the Attorney General’s office that was not 

approved to hold such materials.

The OIG referred investigative findings to NSD for a prosecutive decision. 

According to information reviewed by the OIG, on August 19, 2008, NSD analyzed 

Gonzales’ handling of the notes under the gross negligence provision in section 

793(f)(1). NSD concluded that prosecutors likely could show that the documents 

were removed from their proper place of custody, but that the question was 

whether that removal constituted “gross negligence.” After discussing the 

legislative history of Section 793(f)(1), NSD stated that the government likely 

would have to prove that Gonzales’ conduct was “criminally reckless” to establish 

that he acted with gross negligence under Section 793(f)(1). NSD concluded that 

Gonzales’ inability to recall precisely where he stored the notes detracted from 

prosecutors’ ability to “show a state of mind approaching ‘deliberate intention’ to 

remove classified documents from a secure location.”

AUSA Declination Decision

The Midyear prosecutors also reviewed another 2008 case in which 

prosecution was declined under Section 793(f)(1). This case involved an AUSA who 

sent numerous boxes of documents to his personal residence in the United States 

following an overseas tour as a legal attaché. According to the prosecutors’ 

analysis, the boxes contained a large number of documents that were classified at 

the Secret and Confidential levels. Many of these documents were organized 

haphazardly or were improperly marked. The AUSA testified that he did not 

purposely ship classified documents to his house, but acknowledged that it was 

highly likely that the documents he shipped included some classified materials.

Interpreting section 793(f)(1), NSD stated that prosecutors likely would be 

required to prove that the AUSA’s conduct was “criminally reckless.” NSD identified 

factors suggesting that the AUSA’s conduct did not rise to the level of gross 

negligence, including that he testified that he did not purposely ship classified 

documents to his house, and thus he did not deliberately intend to remove the 

classified documents from a secure location. In addition, the documents were not 

separated into classified and unclassified categories, and they did not contain 

proper classification markings in that the first few pages of certain documents were 

not marked but later pages in the same document contained classification 
34

markings. Based on these and other factors, NSD concluded that prosecution was 

not warranted.

3. 18 U.S.C. § 1924

Section 1924 is a misdemeanor statute that prohibits the “knowing” removal 

of documents or materials containing classified information without authority and 

with the “intent to retain” such documents or materials at an unauthorized location. 

To establish a violation of this statute, the government must show that an 

individual knowingly removed classified materials without authority and intended to 

store these materials at an unauthorized location. To remove “without authority” 

means that the classified materials were removed from the controlling agency’s 

premises without permission.38 Although no reported cases interpret this provision, 

the Midyear prosecutors concluded that Section 1924 requires the government to 

show beyond a reasonable doubt that the defendant had knowledge that the 

location where he or she intended to store classified material was an “unauthorized” 

or “unlawful” place to retain it, citing the legislative history, the Petraeus case we 

describe below, and other previous prosecutions under this provision.

High profile cases considered by the Midyear prosecutors and by FBI 

leadership involving plea agreements under Section 1924 include former Central 

Intelligence Agency (CIA) Director David Petraeus, former National Security Advisor 

Samuel “Sandy” Berger, and former CIA Director John Deutch. In each of these 

cases, the defendants knew the information at issue was classified or took actions 

reflecting knowledge that their handling or storage of it was improper.

Petraeus, a retired U.S. Army General, served as the Commander of the 

International Security Assistance Force in Afghanistan from July 2010 to July 2011, 

and as the Director of the CIA from September 2011 to November 2012. While in 

Afghanistan, Petraeus kept notes in black notebooks that included information 

about the identities of covert officers, war strategy, intelligence capabilities and 

mechanisms, diplomatic discussions, quotes and deliberative discussions from highlevel National Security Council meetings, and discussions with the President. 

Petraeus retained these notebooks when he returned from Afghanistan and later 

shared them with his biographer, Paula Broadwell, admitting to her in a recorded 

conversation that the notebooks were “highly classified” and contained “code word 

stuff.” He also stored them in an unlocked desk drawer in his home office. During 

a subsequent investigation into his mishandling and retention of classified 

information, Petraeus falsely told the FBI that he never provided or facilitated the 

provision of classified information to Broadwell. In March 2015, Petraeus pled 

guilty to one count under 18 U.S.C. § 1924, and was sentenced to 2 years of 

probation, a $25 special assessment, and a $100,000 fine.39

 

38

 See Exec. Order 13526, § 4.1(d).

39

 See Plea Agreement and Factual Basis, United States v. Petraeus, Crim. No. 3:15-CR-47 

(W.D.N.C. filed Mar. 3, 2015); Information, Petraeus, 2015 WL 1884065 (W.D.N.C. filed Mar. 3, 2015) 

(charging Petraeus with knowingly removing classified documents “without authority and with the 
35

Sandy Berger, the National Security Advisor under former President Bill 

Clinton, visited the National Archives and Records Administration to review 

documents for production to the 9/11 Commission. During his visits, Berger 

concealed and removed documents by folding the documents in his clothes, walking 

out of the National Archives building, and placing them under a nearby construction 

trailer for later retrieval.40 Berger removed a total of five copies of classified 

documents, stored them in his office, and later destroyed three of them by cutting 

them into small pieces and discarding them. All of these documents were marked 

classified. Berger also created and removed handwritten notes of classified 

material that he had reviewed, and was aware that he removed these notes from 

the National Archives without authorization. Berger pled guilty to a criminal 

information charging one count of 18 U.S.C. § 1924.41 He was sentenced to 2 

years of probation, a $56,905.52 fine, a $25 special assessment, and 100 hours of 

community service, and was precluded from accessing classified information for 5 

years.

Former CIA Director John Deutch was investigated for using unclassified, 

Internet-connected computer systems to create and process classified documents 

and storing classified memory cards in his personal residence. During an 

investigation by the CIA Inspector General (CIA IG), investigators recovered files 

from a computer at Deutch’s residence that were labeled as unclassified but 

contained words indicating that the information was “Secret” or “Top Secret 

Codeword,” or was otherwise highly sensitive. For example, recovered documents 

included reports on covert operations, communications intelligence, memoranda to 

then President Bill Clinton, and classified CIA budget information. The CIA IG 

report states that Deutch told investigators that he “fell into the habit” of using the 

unclassified system “in an inappropriate fashion,” and admitted that he had 

intentionally created highly sensitive documents on unclassified computers. In 

addition, witnesses testified that Deutch was considered to be an “expert” or “fairly 

advanced” computer user. Following a criminal investigation, Deutch agreed to 

plead guilty to one count under 18 U.S.C. § 1924, but was pardoned by President 

Clinton on January 19, 2001, before the plea was consummated.

Examples of conduct prosecuted under Section 1924 include a former 

government employee who stored boxes of marked classified documents in his 

personal residence; a contractor who downloaded classified information from a 

secure network to a thumb drive, transferred the information to an unclassified 

computer, and shared it with others; and a government employee who concealed 

and removed highly classified documents from a Sensitive Compartmented 

 

intent to retain such documents and materials at unauthorized locations, aware that these locations 

were unauthorized for the storage and retention of such classified documents”).

40

 See National Archives, Notable Thefts from the National Archives, at

https://www.archives.gov/research/recover/notable-thefts.html (accessed Mar. 1, 2018).

41

 See Factual Basis for Plea, United States v. Berger, Crim. No. 1:05-MJ-00175-DAR (D.D.C. 

filed Apr. 1, 2005).
36

Information Facility (SCIF) where he worked and stored the documents in his 

vehicle and house.

B. 18 U.S.C. § 2071(a)

Section 2071(a) is a felony statute criminalizing the concealment, removal, 

or mutilation of government records filed in any public office. To establish a 

violation of this provision, the government must prove the following beyond a 

reasonable doubt:

 An individual concealed, removed, or destroyed a record, or attempted 

to do so, or took and carried away a record with the intent to do so:

 The record was filed or deposited in a public office of the United 

States; and

 The individual acted willfully and unlawfully.

The purpose of this statute is to prohibit conduct that deprives the 

government of the use of its documents, such as by removing and altering or 

destroying them.42 The Midyear prosecutors concluded that every prosecution 

under Section 2071 has involved the removal or destruction of documents that had 

already been filed or deposited in a public office of the United States (i.e., physical 

removal of a document). In addition, to fulfill the requirement that the individual 

acted “willfully and unlawfully,” Section 2071 requires the government to show that 

he or she acted intentionally, with knowledge that he or she was breaching the 

statute.43

 

42

 See United States v. Hitselberger, 991 F. Supp. 2d 108, 124 (D.D.C. 2014) (See United 

States v. Rosner, 352 F.Supp. 915, 919-20 (S.D.N.Y. 1972); United States v. North, 716 F.Supp. 644, 

647 (D.D.C. 1989).

43

 See United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir. 1969).
37

CHAPTER THREE:

OVERVIEW OF THE MIDYEAR INVESTIGATION

In this chapter, we provide an overview of the Midyear investigation. More 

specifically, we describe the referral and opening of the investigation, the staffing of 

the investigation by the Department and the FBI, and the investigative strategy.

I. Referral and Opening of the Investigation

A. Background

1. Clinton’s Use of Private Email Servers

Hillary Clinton served as Secretary of State from January 21, 2009, until 

February 1, 2013. During that time, she used private email servers hosting the 

@clintonemail.com domain to conduct official State Department business.44 

According to FBI documents, former Secretary Clinton and her husband, former 

President Bill Clinton, had a private email server in their house in Chappaqua, N.Y.,

beginning in approximately 2008 (before Clinton’s tenure as Secretary of State) for 

use by former President Clinton’s staff. Former Secretary Clinton told the FBI that,

in or around January 2009, she “directed aides...to create the clintonemail.com 

account,” and that this was done “as a matter of convenience.”

According to the FBI letterhead memorandum (LHM) summarizing the 

Midyear investigation, Clinton used her clintonemail.com account and personal 

mobile devices linked to that account for both personal and official business 

throughout her tenure as Secretary of State. The LHM states that Clinton “decided 

to use a personal device to avoid carrying multiple devices.” Clinton never 

personally used an official State Department email account or State

Department-issued handheld device during her tenure, although there were official 

State Department email accounts from which emails were sent on her behalf.

2. Production of Emails from the Private Email Servers to 

the State Department and Subsequent Deletion of Emails 

by Clinton’s Staff

On September 11 and 12, 2012, terrorists attacked the U.S. Temporary 

Mission Facility and a Central Intelligence Agency (CIA) Annex in Benghazi, Libya, 

killing four Americans.45 On May 8, 2014, the U.S. House Select Committee on 

Benghazi (House Benghazi Committee) was established to investigate the Benghazi 

attack and, thereafter, sought documents from the State Department as part of its 

 

44

 As described in Chapter Five, the FBI discovered three servers that for different periods 

stored work-related emails sent or received by Clinton during her tenure as Secretary of State.

45

 See U.S. Senate Select Committee on Intelligence, Review of the Terrorist Attacks on U.S. 

Facilities in Benghazi, Libya, September 11-12, 2012, 113th Cong, 2d sess., 2014, S. Rept. 113-134, 

https://www.intelligence.senate.gov/sites/default/files/publications/113134.pdf (accessed May 7, 

2018).
38

investigation. In the summer of 2014, State Department officials contacted Cheryl 

Mills, who had served as former Secretary Clinton’s Chief of Staff and Counselor, 

concerning the State Department’s inability to locate Clinton’s and other former 

Secretaries’ emails to respond to Congressional requests. Mills later told the FBI 

that she suggested that the State Department officials search State Department 

systems for Clinton’s clintonemail.com email address. In addition, Mills told the FBI 

that State Department officials requested that she produce former Secretary 

Clinton’s emails and advised her that it was Clinton’s or Mills’s “obligation to filter 

out personal emails from what was provided to State.”

Former Secretary Clinton asked Mills and Clinton’s personal attorney, David 

Kendall, to oversee the process of providing her emails to the State Department.

In late summer 2014, Mills contacted Paul Combetta, an employee of the company 

that administered Clinton’s private server at the time, and requested that he 

transfer copies of Clinton’s emails onto Mills’s laptop and a laptop belonging to 

Heather Samuelson, a lawyer who had served in the State Department as Secretary 

Clinton’s White House Liaison. Mills, Samuelson, and Kendall then developed a 

methodology for Samuelson to “cull” former Secretary Clinton’s work-related emails

from her personal emails, to produce her work-related emails to the State 

Department.

In October and November 2014, the State Department sent letters to four

former Secretaries of State, including Clinton, requesting that they “make available 

copies of any Federal records in their possession, such as emails sent or received 

on a personal email account while serving as Secretary of State.”46 In December 

2014, former Secretary Clinton produced to the State Department “from her 

personal email account approximately 55,000 hard-copy pages, representing 

approximately 30,000 emails that she believed related to official business.”47 After 

receiving these documents, the State Department, in addition to responding to the 

House Benghazi Committee’s document request, reviewed Clinton’s emails for 

potential public release in response to Freedom of Information Act (FOIA) requests.

As described in Chapter Five, Mills, Samuelson, and Combetta told the FBI 

that in late 2014 or early 2015 Mills and Samuelson asked Combetta to remove 

former Secretary Clinton’s emails from their laptops. Combetta then used the 

commercial software “BleachBit” to permanently remove or wipe former Secretary 

Clinton’s emails from Mills’s and Samuelson’s laptops.48 Mills told the FBI that at 

some point between November 2014 and January 2015, Clinton decided she no 

longer wished to retain on her server emails that were older than 60 days and Mills 

 

46

 See U.S. Department of State Office of the Inspector General (State IG), Office of the 

Secretary: Evaluation of Email Records Management and Cybersecurity Requirements, ESP-16-03 

(May 2016), https://oig.state.gov/system/files/esp-16-03.pdf (accessed May 7, 2018), 3.

47

 See State IG, Office of the Secretary, 4.

48

 According to documents we reviewed, BleachBit is a “freely available software that 

advertises the ability to ‘shred’ files. ‘Shredding’ is designed to prevent recovery of a file by 

overwriting the content.”
39

instructed Combetta to change Clinton’s email retention policy accordingly. 

Combetta, however, failed to do so until late March 2015.

On March 3, 2015, the House Benghazi Committee sent preservation orders 

requiring former Secretary Clinton to preserve emails on her servers.49 As 

described in more detail in Chapter Five, Combetta told the FBI that later in March 

2015 he realized that he had neglected to make the change to former Secretary 

Clinton’s email retention policy earlier that year, had an “oh shit” moment, and, 

without consulting Mills, used BleachBit to permanently remove Clinton’s emails 

from her server. These included emails that had been transferred from a prior 

server. According to FBI documents, former Secretary Clinton’s attorneys advised 

Combetta about the congressional preservation order before he made the deletions.

As a result of Combetta’s actions, 31,830 emails that former Secretary Clinton’s 

attorneys had deemed personal in nature were deleted from three locations on 

which they had previously been stored—Mills’s and Samuelson’s laptops and the 

Clinton server.

B. State Department Inspector General and IC IG Review of 

Clinton’s Emails and Subsequent 811 Referral

On March 12, 2015, three Members of Congress requested that the State 

Department Inspector General (State IG) conduct a review regarding State 

Department employees’ use of personal email for official purposes. The Members of 

Congress requested that the State IG coordinate with the Office of the Intelligence 

Community Inspector General (IC IG) to determine whether classified information 

was transmitted or received by State Department employees over personal 

systems. Following this request, the IC IG reviewed 296 of the 30,490 emails that 

former Secretary Clinton’s attorneys had provided to the State Department and 

determined that at least two of these emails contained classified information. The 

296 emails, including the two determined to contain classified information, had 

already been publicly released by State Department FOIA officials.

In a June 24, 2015 letter, Kendall told the State IG and the IC IG that a copy 

of the 30,490 emails provided by former Secretary Clinton to the State Department 

was stored on a thumb drive in his law office and that her personal server was in 

the custody of the company “Platte River Networks” (“PRN”). Based on this 

information, the IC IG concluded that “the thumb drive and personal server contain 

classified information and are not currently in the Government’s possession.”

On July 6, 2015, the IC IG made a referral to the FBI pursuant to Section 

811(c) of the Intelligence Authorization Act of Fiscal Year 1995 (811 referral). This 

provision requires Executive Branch departments and agencies to advise the FBI 

“immediately of any information, regardless of its origin, which indicates that 

 

49

 See U.S. House of Representatives, Select Committee on the Events Surrounding the 2012 

Terrorist Attack in Benghazi, Final Report of the Select Committee on the Events Surrounding the 

2012 Terrorist Attack in Benghazi, 114th Cong., 2d sess., 2016, H. Rept. 114-848, 

https://www.congress.gov/congressional-report/114th-congress/house-report/848/1 (accessed May 7, 

2018).
40

classified information is being, or may have been, disclosed in an unauthorized 

manner to a foreign power or an agent of a foreign power,” and is typically used to 

refer to the FBI a loss or unauthorized disclosure of classified information. The IC

IG referred the matter to the FBI “for any action you deem appropriate.”

C. FBI’s Decision to Open a Criminal Investigation

On July 10, 2015, the FBI Counterintelligence Division opened a criminal 

investigation in response to the 811 referral from the IC IG. Although only a small 

percentage of 811 referrals result in criminal investigations, witnesses told the OIG

that a criminal investigation was necessary to determine the extent of classified 

information on former Secretary Clinton’s private server, who was responsible for 

introducing the information into an unclassified system, and why it was placed 

there. The FBI gave the investigation the code name “Midyear Exam,” choosing it 

from a list of randomly generated names.

The FBI predicated the opening of the investigation on the possible 

compromise of highly sensitive classified secure compartmented information (SCI). 

One of the Midyear case agents told us that the Midyear investigative team was 

focused at the outset on the “potential unauthorized storage of classified 

information on an unauthorized system and then where it might have gotten [sic]

from there.” A Department prosecutor assigned to the investigation similarly 

described the scope of the investigation as “related to the email systems used by 

Secretary Clinton, and whether on her private email server there are individuals 

who improperly retained or transmitted classified information.”

The FBI designated the Midyear investigation as a Sensitive Investigative 

Matter (SIM). According to the DIOG, a SIM includes “an investigative matter 

involving the activities of a domestic public official or domestic political candidate 

(involving corruption or a threat to the national security)” as well as “any other 

matter which, in the judgment of the official authorizing an Assessment, should be 

brought to the attention of FBI [Headquarters] and other DOJ officials.” FBI 

witnesses told us that the SIM designation is typically given to investigations 

involving sensitive categories of persons such as attorneys, judges, clergy, 

journalists, and politicians, and that that SIM investigations are overseen more 

closely by FBI management and the FBI Office of General Counsel than other 

investigations.

The Midyear investigation was opened with an “Unknown Subject(s) 

(UNSUB),” and at no time during the investigation was any individual identified by 

the FBI as a subject or target of the investigation, including former Secretary 

Clinton. FBI witnesses told us that the “UNSUB” designation is common and means

that the FBI has not identified a specific target or subject at the outset of an

investigation. According to FBI witnesses, this allowed the FBI to expand the focus 

of the investigation based on the evidence without being “locked into a particular 

subject.” With respect to the Midyear investigation, witnesses told the OIG that the 

FBI did not identify anyone as a subject or target during the investigation because

it was unclear how the classified material had been introduced to the server and 

who was responsible for improperly placing it there.
41

Despite the UNSUB designation, witnesses told us that a primary focus of the 

Midyear investigation was on former Secretary Clinton’s intent in setting up and 

using her private email server. An FBI OGC attorney assigned to the Midyear team

(FBI Attorney 1) told the OIG, “We certainly started looking more closely at the 

Secretary because they were her emails.” Randall Coleman, the former Assistant 

Director of the Counterintelligence Division, stated, “I don’t know [why] that was 

the case, why it was UNSUB. I’m really shocked that it would have stayed that way 

because certainly the investigation started really kind of getting more focused.”

In his OIG interview, Comey described former Secretary Clinton as the 

subject of the Midyear investigation and stated that he was unaware that the 

investigation had an UNSUB designation. Similarly, in his book, Comey referred to 

former Secretary Clinton as the subject of the Midyear investigation, stating that 

one question the investigation sought to answer was what Clinton was thinking 

“when she mishandled that classified information.”50

D. Initial Briefing for the Department

On July 23, 2015, Coleman and then Deputy Director Mark as’ met with 

Deputy Attorney General (DAG) Sally Yates and Principal Associate Deputy Attorney 

General (PADAG) Matt Axelrod to brief them on the opening of the Midyear

investigation. According to Coleman, he and Giuliano told Yates and Axelrod why 

the Midyear investigation was opened and laid out their vision of how the 

investigation would be conducted, including that the FBI planned to run the 

investigation out of headquarters.

Yates recalled being briefed by Giuliano and Coleman at the beginning of the 

Midyear investigation, but said that she did not recall having concerns about the 

information they presented at the meeting or remembering anything significant

about it. Axelrod told the OIG that Giuliano and Coleman showed them a copy of 

the 811 referral that the FBI had received, and either showed them or told them 

about some of the emails that had been identified as potentially classified. Axelrod 

stated:

That, my recollection is that the way they explained it was that review 

of the certain emails contained on the personal server that Secretary 

Clinton had been using showed that some of those emails contained 

classified information. And so that, and that they, one of the things 

that was sort of standard practice when there was classified 

information on non-classified systems was that a review needed to be 

done to sort of contain the, I think the word they use in the 

[intelligence] community is a spill.... The spill of classified information 

out into sort of [a] non-classified arena. And so that they needed to, 

this was a referral so that the Bureau could help contain the spill and 

identify if there was classified information on non-classified systems so 

that that classified information could be contained and either, you 

 

50

 JAMES COMEY, A HIGHER LOYALTY: TRUTH, LIES, AND LEADERSHIP at 162 (Amy Einhorn, ed., 1st ed. 

2018).
42

know, destroyed or returned to proper information handling 

mechanisms.

Asked whether he considered the Midyear investigation to be criminal as of the date 

of this initial briefing, Axelrod replied, “Not in my view.” According to Axelrod, “it 

was some time...before I, at least I understood that it had morphed into a criminal 

investigation.”

The prosecutors and career Department staff assigned to the Midyear 

investigation told us that they considered it a criminal investigation from early on. 

Deputy Assistant Attorney General (DAAG) George Toscas, who was the most 

senior career Department official involved in the daily supervision of the 

investigation, told us that he approached it as a criminal investigation from the 

beginning of NSD’s involvement. Prosecutors 1 and 2, both of whom were assigned 

to the investigation by late July 2015, understood that it was a criminal 

investigation from very early in the investigation. Prosecutor 1 told us, “I mean, 

pretty quickly this seemed like a, a criminal investigation.... [I]t looked, looked and 

it smelled like a criminal investigation to me.”

II. Staffing the Midyear Investigation

A. FBI Staffing

The Midyear investigation was conducted by the FBI’s Counterintelligence 

Division. For the first few weeks, the investigation was staffed by FBI Headquarters 

personnel and temporary duty assignment (TDY) FBI agents. Thereafter, FBI 

management decided to run the investigation as a “special” out of FBI

Headquarters. This meant that the investigation was staffed by counterintelligence 

agents and analysts from the FBI Washington Field Office (WFO) who were 

temporarily located to headquarters and received support from headquarters

personnel. FBI management selected WFO personnel based on WFO’s geographic 

proximity to headquarters and its experience conducting sensitive 

counterintelligence investigations. FBI witnesses told us that previous sensitive 

investigations also had been run as “specials,” and that this allowed FBI senior 

executives to exercise tighter control over the investigation.

There were approximately 15 agents, analysts, computer specialists, and 

forensic accountants assigned on a full-time basis to the Midyear team, as well as 

other FBI staff who provided periodic support. Four WFO agents served as the 

Midyear case agents and reported to a WFO Supervisory Special Agent (“SSA”). 

Several FBI witnesses described the SSA as an experienced and aggressive agent, 

and the SSA told us that he selected the “four strongest agents” from his WFO 

squad to be on the Midyear team.
43

The SSA reported to Peter Strzok, who was then an Assistant Special Agent 

in Charge (ASAC) at WFO.

51 Comey and Coleman told us that Strzok was selected 

to lead the Midyear investigative team because he was one of the most experienced 

and highly-regarded counterintelligence investigators within the FBI.

There were also several analysts on the Midyear team. Some analysts 

assigned to Midyear were on the review team, which reviewed and analyzed former 

Secretary Clinton’s emails. These analysts reported to a Supervisory Intelligence 

Analyst, who in turn reported to the Lead Analyst. FBI witnesses, including 

Coleman, told us that the Lead Analyst was highly regarded within the FBI and very 

experienced in counterintelligence investigations. Other analysts were on the 

investigative team, which assisted the agents with interview preparation and 

performed other investigative tasks. These analysts reported to the SSA and 

Strzok, in addition to reporting directly to the Lead Analyst. Several analysts were 

on both the review and investigative teams.

Until approximately the end of 2015, the Lead Analyst and Strzok both 

reported to a Section Chief in the Counterintelligence Division, who in turn reported 

to Coleman for purposes of the Midyear investigation.

52

 The remainder of the 

reporting chain was as follows: Coleman to John Giacalone, who was Executive 

Assistant Director (EAD) of the National Security Branch; Giacalone to DD Giuliano; 

and DD Giuliano to Director Comey.

During the course of the investigation, some FBI officials involved with the 

Midyear investigation retired or changed positions. In late 2015, Coleman became 

the EAD of the FBI Criminal, Cyber, Response, and Services Branch and was no 

longer involved in the Midyear investigation. At the same time, E.W. (“Bill”) 

Priestap replaced Coleman as AD of the Counterintelligence Division. EAD 

Giacalone and DD Giuliano retired from the FBI in early 2016 and were replaced by 

Michael Steinbach and Andrew McCabe, respectively.

In addition, Lisa Page, who was Special Counsel to McCabe, became involved 

in the Midyear investigation after McCabe became the Deputy Director in February 

2016. Page told the OIG that part of her function was to serve as a liaison between 

the Midyear team and McCabe. Page acknowledged that her role upset senior FBI 

officials, but told the OIG that McCabe relied on her to ensure that he had the 

information he needed to make decisions, without it being filtered through multiple 

layers of management. Several witnesses told the OIG that Page circumvented the 

official chain of command, and that Strzok communicated important Midyear case 

information to her, and thus to McCabe, without Priestap’s or Steinbach’s 

knowledge. McCabe said that he was aware of complaints about Page, and that he 

valued her ability to “spot issues” and bring them to his attention when others did 

not do so.

 

51

 Strzok was promoted to a Section Chief in the Counterintelligence Division in February 

2016, and to Deputy Assistant Director (DAD) in the fall of 2016.

52

 A Deputy Assistant Director in the Counterintelligence Division was between the Section 

Chief and Coleman in the reporting chain but had limited involvement in the Midyear investigation.
44

The FBI Office of General Counsel (OGC) assigned FBI Attorney 1, who was a 

supervisory attorney in the National Security and Cyber Law Branch (NSCLB), to 

provide legal support to the Midyear team. A second, more junior attorney (FBI 

Attorney 2) also was assigned to the Midyear team. FBI Attorney 1 reported to 

Deputy General Counsel Trisha Anderson, who in turn reported to then General 

Counsel James Baker.53

Figure 3.1 describes the FBI chain of command for the Midyear investigation. 

This figure does not include intervening supervisors who had limited involvement in 

the investigation.

 

53

 Anderson now is the Principal Deputy General Counsel.
Figure 3.1: FBI Chain of Command for the Midyear Investigation 

Special Counsel 

Lisa Page 

(February 2016-

March 20 18) 

I 

NSB EAD 

FBI Director 

James Corney 

i 

Deputy Di rector 

Andrew McCabe 

(February 2016-March 2018) 

Mark Giuliano 

(November 2013-January 

2016) 

• 

Michael Steinbach 

(February 2016-February 

2017 ) 

Office of General 

Counsel 

John Giacalone 

(July 2015-February 

2016) 

t 

Jim Baker 

.. 

NSCLB 

Chief of Staff 

Jim Rybicki 

AD Counterintelligence 

Division (CD) 

E.W. "Bill" Priestap 

(January 20 16 -Present) 

Randy Coleman 

(May 20 14 -December 

2015) 

Deputy General Counsel 

Trisha Anderson 

Agent Lead 

Pete Strzok 

f 

Supervisory 

Special Agent 

t 

Agents 

Lead Analyst 

.. 

Analysts 

45 

.. 

NSCLB 

Attorneys 

FBI Attorney 1 

FBI Attorney 2 
46

B. Department Staffing

Within the Department, the Midyear investigation was primarily handled by 

the Counterintelligence and Export Control Section (CES) of the National Security 

Division (NSD), with support from two prosecutors in the United States Attorney’s 

Office for the Eastern District of Virginia (EDVA). All of the prosecutors assigned to 

the Midyear team had significant experience handling national security 

investigations or white collar criminal cases.

The lead prosecutor (Prosecutor 1) was a supervisory attorney in CES. 

Prosecutor 1 told us that he selected the “best” nonsupervisory line attorney within 

CES (Prosecutor 2) to handle the Midyear investigation with him. The two CES 

prosecutors reported directly to the Chief of CES, David Laufman, who in turn 

reported to DAAG George Toscas. Toscas was the highest level career Department 

employee involved in the Midyear investigation, and the prosecutors and 

supervisors below him who were involved in the Midyear investigation were also 

career employees. As described in more detail below, Department officials above 

Toscas, including then Assistant Attorney General (AAG) John Carlin, Axelrod, 

Yates, and Lynch, received briefings about the Midyear investigation but were not 

involved in its day-to-day management.

In August 2015, EDVA was brought into the Midyear investigation. EDVA 

assigned two supervisory attorneys to work with the CES prosecutors: Prosecutor 3 

and Prosecutor 4. The role of the EDVA prosecutors initially was to facilitate the 

issuance of legal process, including grand jury subpoenas, search warrants, and 

2703(d) orders. However, the NSD prosecutors told the OIG that ultimately they 

consulted and worked closely with the EDVA prosecutors on many issues and 

decisions throughout the course of the Midyear investigation. Prosecutor 3 similarly 

told us that as the investigation progressed, he and Prosecutor 4 were considered 

“equal partners” with the NSD prosecutors.

EDVA senior leadership, including then U.S. Attorney Dana Boente, received 

briefings on the Midyear investigation from the EDVA prosecutors and were 

informed of significant developments, but they were not involved in investigative 

decisions. Axelrod told the OIG that he recalled that he spoke to Boente early in 

the Midyear investigation and “let[] them know that this was NSD’s investigation.” 

Axelrod stated:

[S]ometimes when you have a U.S. Attorney’s office and a Main 

Justice component, you know, things have to go up two chains 

and...that’s cumbersome.... [I]n...an investigation like this we figured 

it was easier just to have everything centralized in NSD. There’s a 

reason why NSD has the ticket on, you know, all these matters, right? 

They’re the subject matter experts[.]

Axelrod explained that NSD has primary responsibility for counterterrorism and 

counterintelligence cases not only because it has subject matter expertise in those 

areas, but also because those cases are nationwide. He stated that there are 

certain areas of law where it is important to ensure nationwide consistency in how 
47

the law is applied, because if “one district does something really different than 

another district it can have very bad...ramifications or consequences.” As noted 

previously, the USAM requires NSD to expressly approve in advance charges 

involving certain national security statutes, including those that were considered in 

this investigation.

Prosecutor 2 stated that NSD’s typical role varies from case to case, and 

depends on the resources and experience of the specific U.S. Attorney’s Office. 

This prosecutor told the OIG that NSD typically “drives” counterintelligence cases, 

but that its role “runs the gamut” from taking the lead on cases to playing a 

supporting role. Prosecutor 2 stated that EDVA has been more willing to allow NSD 

attorneys to play an active role in charged cases and is “very open to [NSD’s] 

partnership and support.”

Prosecutor 3 similarly told the OIG that EDVA’s supporting role in the Midyear 

investigation was unusual, but he attributed this to logistics. This prosecutor 

stated, “[Prosecutors 1 and 2] were right across the street from FBI 

Headquarters.... [I]t was pretty work intensive, more so for them because they 

would have to go over there at the drop of a hat for meetings. You know, we were 

always kept in the loop of what was going on. But [the] FBI kept a pretty tight hold 

of the classified documents.” Prosecutor 3 also said that running the case out of 

NSD, supervised by Toscas, allowed the Department to keep “one central location 

of control by a career person over the investigation.”

Several witnesses told us that the FBI was frustrated at the perceived slow 

pace of bringing a U.S. Attorney’s Office into the Midyear investigation. However, 

Toscas told us that it is not unusual for a U.S. Attorney’s Office not to be involved in 

the beginning of an investigation, and that it took some time to determine the 

proper venue and select the most appropriate U.S. Attorney’s Office. Prosecutor 1 

told us that although the U.S. Attorney’s Office for the District of Columbia also was 

considered, EDVA was selected in part based on the good historical working 

relationship between NSD and EDVA.

Boente told the OIG that he expressed concerns that EDVA was not the 

appropriate district given that former Secretary Clinton lived in New York. He said

that they potentially could establish venue through an email server or victim 

agency server located in EDVA, but that it would be unusual to select venue to 

prosecute a high-profile public figure on that basis. Boente said that while no one 

explained why the Department chose EDVA, he assumed that it was because “we 

move quicker and do things a lot quicker than some districts can.”

III. Role of Senior FBI and Department Leadership in the Investigation

A. FBI Leadership

The Midyear investigation was closely supervised by FBI leadership from the 

outset. Comey told the OIG that he received frequent briefings on the Midyear 

investigation:
48

And then once it got underway, either in July or maybe in August 

[2015], I told them I wanted to be briefed on it on a much more 

frequent basis then I would normally on a case because I was keen to 

make sure that they had the resources they need and that there was 

no—that I could both support them if they needed additional things 

and protect them in the event anybody outside of the investigative 

team tried to monkey with them in any way or exert any pressure on 

them or anything like that. Because I could see immediately how 

significant the matter was.... So I think they got into a rhythm of 

briefing me maybe every couple of weeks.

Comey said that briefings took place roughly every two to three weeks at the 

beginning of the investigation, and occurred on a weekly basis as the investigation 

progressed.

Comey said that the Midyear briefings typically were attended by a core team 

of senior officials:

 The Deputy Director (Giuliano, then McCabe);

 Comey’s Chief of Staff, James Rybicki;

 FBI OGC personnel including Baker, Anderson, and FBI Attorney 1;

 The EAD of the National Security Branch (Giacalone, then Steinbach);

 The AD of the Counterintelligence Division (Coleman, then Priestap);

 Deputy Director McCabe’s counsel, Lisa Page (beginning in February 

2016); and

 Strzok and the Lead Analyst.

Other FBI officials periodically attended these briefings, including then Associate 

Deputy Director (ADD) David Bowdich after his appointment in April 2016, but 

witnesses told us that briefings were carefully controlled and limited to a select 

group of senior FBI managers.

Comey said that the Midyear team typically produced a biweekly or weekly 

written summary of their progress in the investigation, and that briefings generally 

focused on what the team had completed and what needed to be done. Comey 

stated, “[T]he way it tended to break down is [the Lead Analyst] would talk about 

exploitation of media and sorting through emails and things. And Pete [Strzok]

would focus on investigative steps, interviews, things like that.” Comey told the 

OIG:

[I]t would typically be here in the [Director’s] conference room at the 

table and they would give me a progress report on where they were

and I would typically ask the questions that were rooted in my interest 

in it to begin with which is— do you have the resources you need? 

Any problems that I can help you with? I just felt the need to stay 

close to it[.]
49

As described in more detail in Chapter Six, the same officials were involved in 

discussions about whether to do a public statement announcing the closing of the 

Midyear investigation. Comey characterized these discussions as “great family 

conversations,” stating that he was a great believer in oppositional argument and 

encouraged people to bring up different points of view.

In addition to the Midyear-specific meetings, Comey and the Deputy Director

(first Giuliano, then McCabe) had daily morning and late afternoon meetings about

significant developments or issues that were impacting the FBI. The Midyear 

investigation was sometimes discussed immediately following these meetings in 

“sidebar” meetings involving a smaller group of participants due to the sensitivity of 

the investigation.54

As the result of these frequent briefings, Comey and McCabe knew about and 

were involved in significant investigative decisions. McCabe stated:

[Comey] relied on me for kind of my advice and recommendation on 

those decisions. But he was very involved in the decisions on 

Midyear.... Not decisions like what time is the interview with John 

Jones going to take place tomorrow, but...we think we should serve a 

subpoena on so-and-so for these records, and the Department of 

Justice is saying no, we want to try to work it out with a letter. And 

so...as that conflict was brewing, he would learn about it and weigh in 

on it and not necessarily decide it. But he was up-to-speed on all of 

the kind of significant things that were happening in the case.

McCabe told the OIG that although Strzok and Priestap made the day-to-day 

investigative decisions, he and Comey were informed about any problems that 

arose during the investigation, as well as any significant information that the team

discovered.

As described in more detail in Chapter Five, our review found examples 

where Comey or McCabe approved or directed specific investigation decisions. 

These included directing the Midyear agents to deliver a preamble at the first 

interview of Cheryl Mills about the need to answer questions about the process used 

to cull former Secretary Clinton’s personal and work-related emails, without 

informing the prosecutors; authorizing Baker to contact Beth Wilkinson, counsel to 

Mills and Samuelson, again without telling the prosecutors; approving the consent 

and immunity agreements used to obtain the Mills and Samuelson laptops; and not 

prohibiting Mills and Samuelson from attending the interview of former Secretary 

Clinton as her counsel.

 

54

 Other senior FBI officials involved in the Midyear investigation received additional briefings 

as needed. The Deputy Director, EAD, and AD met on a daily basis regarding significant matters 

affecting the Counterintelligence Division, and these meetings at times included significant 

developments in the Midyear investigation. McCabe said he was briefed when issues arose. In 

addition, the Lead Analyst and Strzok briefed Giacalone on the Midyear investigation on a weekly 

basis.
50

B. Department Leadership

Unlike the FBI’s senior leadership, senior Department officials played a more 

limited role in the Midyear investigation. Although Lynch, Yates, Axelrod, and 

Carlin described making a conscious decision to allow the career staff to handle the 

Midyear investigation with minimal involvement by political appointees, they also

told us that their involvement was consistent with their normal role in criminal 

investigations.

Lynch

Lynch told the OIG that she received limited briefings on the Midyear 

investigation. She explained that the Midyear investigation was not discussed at 

her morning meetings or staff meetings because it was a sensitive matter and 

involved potentially classified information. Lynch said that she had a monthly 

meeting with NSD, and that although the Midyear investigation was too sensitive to 

discuss during that meeting, afterward the meeting would “skinny down” to discuss 

sensitive cases among a smaller group of people that included Yates, Axelrod, 

Carlin, Toscas, and sometimes members of her staff. She said that the cases 

discussed among this smaller group included not only the Midyear investigation, but 

also other sensitive counterterrorism and classified cases.

Lynch said that she understood that there were political sensitivities inherent 

in the Midyear investigation, and she wanted to protect the Midyear team from

perceived pressure from Department leadership. She stated:

Because we knew that it was going to be scrutinized, we wanted to 

make sure that not only was the team supported, but they also were 

insulated from a lot of people talking about it and just discussing it in 

general throughout the office.... And so, my view was that unless you 

need me for something, you know, I don’t want to be on top of the 

team for this. They, they should work as they always work. They 

should know that [they have] whatever they need to have, whatever 

resources they need to get. But the Front Office is not, you know, 

breathing down their neck on this.

Asked whether there was ever a conscious decision by the political appointees to 

step back and allow the career employees to handle the investigation, Lynch 

replied:

Certainly it was my view, and I can’t recall having discussions about 

that. But that was how I viewed the setup, was that we wanted to 

make sure that this was always handled by the career people, and that 

essentially even though they would need input, and certainly toward 

the end of anything you’d have to make certain decisions. But not to 

have, at least certainly from...the fifth floor level where I was, not to 

have that kind of input early on. Although I typically wouldn’t have 

had input...in the inner workings of an investigation.
51

Lynch said that Toscas was the most senior career Department official involved in

making decisions about the Midyear investigation, and that she had faith and 

confidence in his ability to handle the case.

Lynch explained that she was not involved in the day-to-day investigative 

decisions about how to staff the investigation, what witnesses to interview, or any 

of the other “things that [she] used to do as a line [Assistant U.S. Attorney 

(AUSA)].” Nor did she intervene in conflicts between the prosecutors and agents. 

She told the OIG that this was not unique to the Midyear investigation but rather 

represented her standard practice, stating:

[M]y view is that...whoever is, is leading the team needs to deal with 

that initially because they’ve got to keep working with each other. 

And based on my experience as an AUSA, if you can resolve it at that 

level first, you will have a team that is, is, is more solid and can work 

together more easily. If not, then I think the, the next level 

supervisor has got to be involved in that.... [M]y view is that the 

chain of command is set up is there for that reason.

But I wouldn’t, if someone said to me the agents want to interview this 

person, and the prosecutors don’t, my first question before I got 

involved would be to say what do the supervisors think? Because if, if 

I as AG, or even as U.S. Attorney immediately step in and make that 

decision, then what I’ve done is I may have solved a problem, but I’ve 

cut the knees off of every supervisor in between me and them. And, 

and that creates bigger problems down the road.

Lynch said her view was that problems or conflicts should not be elevated to the 

Attorney General unless the parties had exhausted all other remedies.

Yates and Axelrod

Yates told the OIG that although Department leadership understood the 

significance of the Midyear investigation, they agreed that it should be handled like 

any other case. She said that the role of Department leadership in the Midyear

investigation represented their normal approach to criminal investigations, stating:

[L]ook, we got the sensitivity of this matter obviously even from the 

beginning. And I remember we wanted to make certain that NSD had 

all the resources that they needed, that they were on top of it. That 

we stayed briefed on what was going on but from the very beginning it 

was important to us for this to be handled like any other case would be 

handled. That we wanted to make sure that the line prosecutors and 

lawyers who were doing this didn’t feel like they had the leadership 

office breathing down their neck because that’s going to put a layer of 

pressure on them that is not appropriate we felt like here. So it was 

important to us for NSD to be handling the day to day aspects of this. 

But at the same time we wanted to make sure that they were getting 

what they needed. And that we were staying apprised of significant 

developments in it....
52

Not only doing it the right way but making sure that we did this, that it 

had the appearance of doing it the right way too. And public 

confidence was going to be important. We knew that from the very 

beginning. And that we wanted to make sure that we had a process in 

place that was going to be the right process. And that would be for 

NSD to handle the day to day aspects of it. And so we had [that] 

conversation. You know, the DAG’s office is really sort of more the 

operational one between the two leadership offices. And so I certainly 

had conversations with the AG about how we set this up and we’re 

running it. But again, there was no real dispute with anybody about 

this. This seemed like the natural and right way to do things....

Asked whether her role in the Midyear investigation differed at all from her usual 

process, Yates replied:

Every other case is not on the radar screen of...[the] DAG, obviously. 

But this was a significant matter for the Department that was one of 

those small handful of cases that how you do it can be defining for the 

Department of Justice.... And we were very aware of that from the 

very beginning. So when I say we were handling it like any other case 

what I mean is that we wanted to ensure that the factors that went 

into a decision about how we should proceed in that matter and how, 

the kind of latitude that the line people were handling had to do it in 

that matter, that that should be done like any other case. Nobody 

should get any special treatment. Nobody should be treated more 

harshly...because of who they were. That’s what I mean it should be 

like any other case. But we weren’t stupid. I mean, we recognized 

that the profile and import of this matter was such that we needed to 

make sure that things were done correctly.

Yates explained that the DAG typically gets involved in an investigation from 

a decisionmaking standpoint if there is disagreement between one of the 

Department’s litigating components and another government agency, or between a 

Department component and a U.S. Attorney’s Office, or if there is “real uncertainty” 

about whether to take a potential investigative step. She stated, “Normally the 

DAG’s office is not running an investigation and we weren’t running this one.”

Yates told the OIG that she received more frequent updates on the Midyear 

investigation than she did on other cases, attributing this to the profile and time 

sensitivity of the investigation. Yates told the OIG that it was hard to generalize 

how frequently she received updates, but that she had regular meetings with NSD

every other week. Although the Midyear investigation was not discussed with the 

larger group present during these meetings, afterward they would “skinny down” to 

a smaller group to discuss sensitive matters, including the Midyear investigation. 

This smaller group included Carlin, Toscas, and Mary McCord, who was at the time 

the Principal DAAG in NSD. Yates said that she also participated in Lynch’s regular 

meetings with NSD, which would similarly “skinny down” at the end.
53

The NSD and EDVA prosecutors told the OIG that they were concerned at 

various points during the Midyear investigation that there was a disparity between 

the involvement of Department and FBI leadership in discussions about 

investigative steps. For example, while McCabe (the second in command at the 

FBI) attended meetings at which the Midyear agents and prosecutors debated 

whether and how to obtain the Mills and Samuelson laptops, the highest ranking 

official representing the Department’s position at those meetings was Toscas. 

Asked whether she was informed of these concerns, Yates told the OIG that she 

was not. She said that she was not aware that McCabe attended meetings with the 

Midyear prosecutors, nor did she know that Comey was closely involved in the 

investigation. Yates stated that she spoke to McCabe regularly about various 

issues, and that she thought he was “relaxed enough” with her to tell her that she 

needed to be at any meetings. Yates said that any disparity resulted from the 

unusually high level of involvement by FBI leadership, not a decreased role by 

Department leadership.

Axelrod similarly told the OIG that at the outset of the Midyear investigation, 

senior Department officials “made efforts to...set up a structure that would 

maintain the integrity of this matter.” He explained that they were aware that no 

matter how the investigation turned out, there was likely to be criticism at the end. 

As a result, he said that they considered it “extra important to make sure things 

were...done...by the book, following procedures. Making sure that when people 

criticize[d] whatever the outcome was that we’d be able to say no, this was done 

straight down the middle on the facts and on the law.”

Axelrod said that he met with Toscas at the outset of the investigation and 

explained that Toscas would be the primary supervisor over the investigation. 

Axelrod stated:

[W]e were going to have sort of a lighter touch from the leadership 

offices than we might on a sort of high profile case. In other words, 

we were there for him for whatever he needed. But we weren’t going 

to be sort of checking in day to day or week to week for updates or 

briefings. When...something significant happened...that we needed to 

know about he would let us know....

And I, when I say a lighter touch I don’t mean that folks weren’t 

engaged or paying attention. I, not at all. I just mean we wanted to 

give them the space they needed to do whatever they thought 

necessary in the investigation. So that at the end...I just wanted to 

make sure that any allegation that there was some sort of political 

interference with this investigation wouldn’t hold water.

Axelrod told the OIG that the difference between the role of Department leadership 

in the Midyear investigation and the typical high-profile investigation was “just a 

matter of degree.” He said that he and Yates relied on Toscas to bring issues to 

their attention at “skinny down” sessions following the biweekly meetings with NSD, 

but that “it wasn’t us saying okay, and what’s the latest on the email 

investigation?”
54

Carlin

Carlin told the OIG that NSD’s standard practice is for cases to be handled by 

the career staff, supervised by a DAAG. He said that at the beginning of the 

Midyear investigation, he held a meeting with McCord, Toscas, and the NSD 

prosecutors in which he emphasized the need to “go more by the book” and to 

follow the normal procedure. Carlin said that he wanted one person in the NSD 

Front Office to be in charge of the Midyear investigation, and that he chose Toscas 

based on his historical expertise with investigations involving “espionage, the 

straight-up a spy [cases], and the leak mishandling type portfolio.”

Carlin said that he preferred having one person who was clearly accountable 

and in charge. He stated:

I tend to like that as former career person...I knew what it felt like 

when you’re in one of those spots. So, in general, I prefer that type of 

structure. In this case, I knew, as well, at the end of the day, 

whatever decision was made in the case, it was going to be a highprofile controversial decision. And so...you might need to explain later 

what process do we follow at the Department. And so, I wanted to 

make that clear, internally and to our partners, that this was the 

process we were following...at the National Security Division.

And just, seeing some other cases in my career that were, they were 

high profile. They were handled in a way than was different than the 

norm. More people got involved in trying to make the day-to-day 

decisions. I didn’t think that that redounded to the benefit of the case. 

Not just for appearance purposes, but...it also just created confusion 

and frustration among the relevant teams. And kind of, 

inconsistencies in how they were staffed, sometimes, when someone 

had a great idea later, and came in over the top, and changed the way 

they were approaching the case. So, right from the beginning, I 

wanted to, to set it up, and structure...it that way. I felt pretty 

strongly about it.

Carlin said that he discussed this with Lynch and Yates and made it clear to 

them that the team had the authority to make investigative and prosecutorial 

decisions. Carlin said that he told Lynch and Yates that “like other sensitive 

matters, we would periodically update them.” According to Carlin, Lynch and Yates 

knew that this was how Carlin was handling the investigation and supported this 

structure. Carlin said that he also explicitly communicated this to the FBI, 

explaining it to both Giacalone and McCabe.

IV. Investigative Strategy

The Midyear team sought to determine whether any individuals were 

criminally liable under the laws prohibiting the mishandling of classified information, 

which are summarized in Chapter Two. To do so, the team employed an

investigative strategy that included three primary lines of inquiry: collection and 
55

examination of the emails that traversed former Secretary Clinton’s servers and 

other relevant evidence, interviews of relevant witnesses, and analysis of whether 

classified information was compromised by hostile cyber intrusions.

55

A. Collection and Examination of Emails that Traversed Clinton’s

Servers and Other Relevant Evidence

The Midyear team sought to collect and review any emails that traversed 

Clinton’s servers during her tenure as Secretary of State, as well as other evidence 

that would be helpful to understand classified information contained in those 

emails. This included a review of the 30,490 work-related emails and attachments 

to those emails that former Secretary Clinton’s attorneys had produced to the State 

Department.

The team also attempted to recover or reconstruct the remaining 31,830

emails that Clinton’s attorneys determined were personal and did not produce to 

the State Department. As described above and in Chapter Five, before the Midyear

investigation began, these emails had been deleted and “wiped” from former 

Secretary Clinton’s then current server. The Midyear team also believed that some 

work-related emails could have been deleted from Clinton’s servers before her

attorneys reviewed them for production to the State Department. 

The Midyear investigators sought to recover and review deleted emails by 

obtaining and forensically analyzing, among other things, Clinton’s servers and 

related equipment; other devices used by Clinton, such as Blackberries and cellular 

telephones; laptops and other devices that had been used to backup Clinton’s

emails from the server; and the laptops used by Clinton’s attorneys to cull her 

personal emails from her work-related emails. The team also obtained email

content or other information from the official government or private email accounts 

of certain individuals who communicated with Clinton by email, originated the 

classified email chains that were ultimately forwarded to Clinton, or transferred 

Clinton’s emails to other locations.

As described in Chapter Five, the Midyear team did not seek to obtain every 

device or the contents of every email account that it had reason to believe a 

classified email traversed. Rather, the team focused the investigation on obtaining 

Clinton’s servers and devices. Witnesses stated that, due to what they perceived to 

be systemic problems with handling classified information at the State Department, 

to expand the investigation beyond former Secretary Clinton’s server systems and 

devices would have prolonged the investigation for years. They further stated that 

the State Department was the more appropriate agency to remediate classified 

spills by its own employees.

Analysts examined both the original 30,490 emails produced by former 

Secretary Clinton to the State Department and the emails recovered through other 

 

55

 This section does not contain an exhaustive list of investigative efforts in the Midyear 

investigation, but rather is intended to be an overview of the Midyear team’s investigative strategy. 

We discuss the specific investigative steps used during the Midyear investigation in Chapter Five.
56

means to identify potentially classified information. Once the analysts identified 

information that they suspected to be classified, the team sought formal 

classification review from government agencies with equities in the information. 

The analysts also examined the emails for evidence of criminal intent. For 

example, they searched for:

 Classification markings to assess whether participants in classified 

email chains were on notice that the information contained in them 

was classified;

 Statements by former Secretary Clinton or others indicating whether 

Clinton used private servers for the purpose of evading laws regarding 

the proper handling of federal records or classified information;

 Statements by former Secretary Clinton or others indicating whether 

they knew that emails contained information that was classified—even 

if they were not clearly marked—when they sent or received them on 

unauthorized systems;

 Evidence as to whether former Secretary Clinton or others forwarded 

classified information to persons without proper clearances or without 

the need to know about it; and

 Documentation showing whether originators of classified emails had 

received classified information in properly marked documents before 

transferring the information to unclassified systems without markings.

B. Witness Interviews

The Midyear team told us that witness interviews covered several areas of 

investigative interest. First, the team interviewed individuals involved with setting 

up and administering former Secretary Clinton’s servers to understand her intent in 

using private servers and to assess what measures they used to protect the servers 

from intrusion. These witnesses also helped FBI analysts understand the server 

structures to inform subsequent analyses. Additionally, they helped FBI 

investigators identify additional sources of evidence, such as devices containing 

backups of Clinton’s emails.

Second, the Midyear team interviewed individuals who introduced, 

transmitted, or received information on unauthorized systems, including the 

originators of classified information, Clinton’s aides who forwarded the originators’

emails to her, and Clinton herself. The originators included State Department 

employees and employees of other government agencies. The team interviewed 

these witnesses to, among other things, assess: (1) whether they believed the 

information contained in the emails was classified; (2) how or from where they 

originally received the classified information (and whether based on those 

circumstances they should have known that the information contained in the emails 

was classified); and (3) why they sent the information on unclassified systems.

Third, the Midyear team interviewed individuals with knowledge of how and 

why 31,830 of former Secretary Clinton’s emails were deleted from her servers and 
57

other locations. The team sought to assess whether Clinton or her attorneys 

deleted or directed the deletion of emails for an improper purpose, such as to avoid 

FOIA or Federal Records Act (FRA) requirements.

Fourth, the Midyear team interviewed State Department employees with 

knowledge of the State Department’s policies and practices regarding federal 

records retention. The team sought to determine whether Clinton’s use of a private 

server was sanctioned by the State Department, as well as what measures the 

State Department put in place to protect Clinton’s private server from intrusion.

C. Intrusion Analysis

The FBI also conducted intrusion analyses to determine whether any 

classified information had been compromised by domestic hostile actors or foreign 

adversaries. Agents and analysts specializing in forensics examined the servers, 

devices, and other evidence to assess whether unauthorized actors had attempted 

to log into, scan, or otherwise gain access to the email accounts on the servers and, 

if so, whether their efforts had been successful. They also examined various FBI 

datasets to assess whether emails containing classified information had been 

compromised.
58

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59

CHAPTER FOUR:

DECISION TO PUBLICLY ACKNOWLEDGE THE MIDYEAR

INVESTIGATION AND REACTION TO WHITE HOUSE 

STATEMENTS ABOUT THE INVESTIGATION

In this chapter, we address the decision of the FBI and the Department to 

publicly acknowledge an investigation following the public referral from IC IG, 

including the allegation that former Lynch instructed former Director Comey to refer 

to the Midyear investigation as a “matter.” We also discuss public statements by 

former President Barack Obama about the Midyear investigation, which raised 

concerns about White House influence on the investigation.

As we describe in Chapter Six, Comey cited the events set forth in this 

chapter as two of the factors that influenced his decision to deliver a public 

statement announcing the closing of the Midyear investigation on July 5, 2016, 

without coordinating with the Department.

I. Public Acknowledgement of the Investigation

A. Statements about the Investigation in Department and FBI 

Letters to Congress in August and September 2015

Following the public referral to the FBI from the IC IG in July 2015, the 

Department and the FBI received questions from the media and Congress asking 

whether they had opened a criminal investigation of former Secretary Clinton. 

According to emails exchanged in late August 2015, there was a significant 

disagreement between ODAG and FBI officials regarding whether to acknowledge 

that a criminal investigation had been opened. FBI officials, according to the 

emails, wanted to acknowledge “open[ing] an investigation into the matter,” while 

ODAG officials approved language “neither confirm[ing] nor deny[ing] the existence 

of any ongoing investigation,” based on longstanding Department policy. FBI and 

Department letters sent to Congress on August 27 and September 22, 2015, and a 

letter sent by the FBI General Counsel to the State Department on September 22, 

2015, used the “neither confirm nor deny” language.

Contemporaneous emails show that former Director Comey disagreed with 

this approach. In an August 27, 2015 email to Deputy Director (DD) Giuliano, Chief 

of Staff James Rybicki, and FBI Office of Public Affairs (OPA) Assistant Director (AD) 

Mike Kortan, he stated, “I’m thinking it a bit silly to say we ‘can’t confirm or deny 

an investigation’ when there are public statements by former [S]ecretary Clinton 

and others about the production of materials to us. I would rather be in a place 

where we say we ‘don’t comment on our investigations.’” Rybicki told the OIG that 

Comey thought that the Department and FBI needed to say more about the 

investigation because the IC IG referral was made publicly, and refusing to 

acknowledge an investigation would “stretch...any credibility the Department has.”
60

B. September 28, 2015 Meeting between Attorney General Lynch 

and Director Comey

In late September and early October 2015, Comey and Lynch each had 

upcoming media and congressional appearances. Anticipating that they would be 

asked whether the Department and FBI had opened an investigation into former 

Secretary Clinton, Comey asked to meet with Lynch to coordinate what they would 

say. Comey told the OIG that it was the first time the two of them would be asked 

questions about the investigation publicly, and he wanted to discuss how they 

should talk about it given that there had been news coverage of the referral and “a 

lot of public discussion about that the FBI is already looking [into] this.”

The meeting was held on September 28, 2015, and lasted approximately 15 

minutes. Participants in the meeting included Lynch, Axelrod, and Toscas from the 

Department, and Comey, Rybicki, and then DD Giuliano from the FBI.

1. Comey’s Account of the Meeting

Comey told the OIG that during this meeting AG Lynch agreed they needed 

to confirm the existence of the investigation, but she said not to use the word 

“investigation,” and instead to call it a “matter.” Comey said that Lynch seemed 

slightly irritated at him when she said this, and that he took it as a direction. 

Comey stated:

And I remember saying, “Well, what should I call it?” And she said, 

“Call it a matter.” And I said, “Why would I do that?” And she said, “I 

just want you to do that and so I would very much appreciate it if you 

would not refer to it as an investigation.” And the reason that gave 

me pause is, it was during a period of time which lasted, where I knew 

from the open source that the Clinton campaign was keen not to use 

the word investigation.... [A]nd so that one concerned me and I 

remember getting a lump in my stomach and deciding at that moment 

should I fight on this or not.

Comey told the OIG that he decided not to fight this instruction from the AG, but 

that it “made [his] spider sense tingle” and caused him to “worry...that she’s 

carrying water for the [Clinton] campaign[.]” As described in Chapter Six, Comey 

told the OIG and testified before Congress that this instruction from Lynch was one 

of the factors that influenced his unilateral decision to make a public statement on 

July 5, 2016, without coordinating with the Department.56 However, Comey also 

said to us that he had no other reason to question Lynch’s motives at that time, 

stating, “[I]n fact my experience with her has always been very good and 

independent, and she always struck me as an independent-minded person[.]”

 

56

 See U.S. Senate, Select Committee on Intelligence, Open Hearing with Former FBI Director 

James Comey, 115th Cong., 1st sess., June 8, 2017, 

https://www.intelligence.senate.gov/hearings/open-hearing-former-fbi-director-james-comey# 

(accessed May 8, 2018).
61

Comey stated that one of the reasons he remembered this meeting so well 

was that Toscas made a comment after the meeting about the “Federal Bureau of 

Matters,” indicating to Comey that Toscas “had the same reaction I did to it.” He 

said that Toscas did not say explicitly that he shared Comey’s concerns about the 

meeting, but was “signaling” agreement to him through “body language and 

humor.”

Rybicki and Giuliano did not specifically recall the discussion that took place 

at the meeting, other than that AG Lynch told Comey to refer to the investigation 

as a “matter.” Giuliano stated, “I don’t remember that specific [meeting]. I do 

remember the topic. And I do remember thinking that (A) it’s ridiculous, and (B) 

quite honestly, I didn’t care what they called it.... It wasn’t going to change what 

we did.” He recalled discussions with the Midyear team after the meeting with 

Lynch, telling the OIG that “a lot of people got wrapped around the axle” about the 

issue and “thought that that was kind of getting into the politics of the 

investigation.” He also stated that Comey was “definitely troubled by it.”

However, Rybicki said that he did not recall Comey being troubled by the 

meeting or expressing concern that the instruction from Lynch was an effort to 

coordinate with the Clinton campaign. Rybicki also said that he personally did not 

come away from the meeting with the view that Lynch was biased. Rybicki did 

recall Toscas joking about the “Federal Bureau of Matters.”

2. Lynch’s Recollection of the Meeting

Lynch told the OIG that Comey expressed concern during the meeting about 

how to comply with the Department’s longstanding policy of neither confirming nor 

denying ongoing criminal investigations in the face of direct questions about the 

number of agents assigned to the case and the resources dedicated to it, because 

answering those questions implicitly would acknowledge that there was an open 

investigation. Lynch said that providing testimony about the allocation of resources 

or the way that the Department works a case is a normal practice, but that in her 

view, they were not ready to publicly confirm an investigation.

Lynch stated that her discussion with Comey was framed in terms of how 

they could testify about the resources dedicated to the investigation without 

breaking Department policy. Lynch said that Comey was seeking guidance on how 

to handle those issues, particularly given that the referral was public, and that 

detailed information about the investigation had been discussed in the press.

Lynch said that she was aware of numerous letters from Members of 

Congress requesting information about the investigation, and that her meeting with 

Comey took place around the same time as a telephone call she had with Senator 

Charles Grassley, who wanted to discuss the Department’s handling of Bryan 

Pagliano, a State Department employee who set up one of Clinton’s servers, in 
62

order to inform Congress’s decision as to whether to grant him immunity to compel 

his testimony before Congress.

57

 Lynch told the OIG:

Senator Grassley was asking me literally will I confirm that there is a 

criminal investigation of Secretary Clinton, who are the other targets, 

who are the subjects, has a grand jury been impaneled, has this young 

man [Pagliano] been given immunity, would I give him a copy of the 

immunity order, and all the things that, that Oversight typically asks 

for.

So I knew, and I certainly had the view, that we had to be clear and 

open with Oversight. You know, whether it’s me or the Director. But 

consistent with our law enforcement obligations, there are some doors 

that we do not open. And I did not think that we were ready to open 

that door on the Hill at that time.

Lynch said that her concerns about opening the door to detailed questions 

about the investigation informed her view that the Department should not confirm 

that there was an investigation. She said that she recalled stating at the meeting 

with Comey, “[T]hey don’t need us to tell them that there is an investigation. They 

need us to confirm that there is an investigation. And there is a difference.” She 

explained:

And once we confirm it publicly, either by saying yes there is an 

investigation, or by talking about it in a way that confirms it, the next 

series of questions is going to be is it criminal. And it’s all going to be 

about is the Secretary a subject or a target. And there were others 

involved as well. There are other people beyond her who may or may 

not be named, but, you know, you start having these discussions. 

When will it be over? What are you finding? All those things that in 

fact Grassley did ask.

The OIG asked Lynch if she instructed or told Comey, “I want you to call it a 

matter.” Lynch said that she did not and would not have, because that was not 

how she spoke to people. She told the OIG that she remembered saying the 

following at the meeting:

Well I, I do remember saying, you know, we typically say we have 

enough resources to handle the matter.... I don’t know if I used other 

words like the case, you know, the inquiry, or something like that. But 

I do remember saying that, and I think I may have been saying that 

because, again, I was always careful not to talk about an investigation. 

 

57

 Based on notes and Department emails, the OIG determined that Lynch’s call with Senator 

Grassley was scheduled for later that same day, September 28, 2015. According to talking points 

prepared for this call, Lynch intended to tell Senator Grassley that the Department could neither 

confirm nor deny the existence of any ongoing investigation or persons or entities under investigation, 

consistent with longstanding Department policy. The talking points stated, “This policy, which has 

been applied across Administrations, is designed to protect the integrity of our investigations and to 

avoid any appearance of political influence.”
63

I was getting questioned about the referral...and is it going to lead to 

an investigation and, you know, we have it, we acknowledge it, we’re 

going to handle it. And that’s all I can say kind of thing.

And so I know that in addition to saying...yes, everyone knows there’s 

an investigation. They don’t need us to tell them that. They need us 

to confirm it, and we don’t do that. And here’s why we don’t do that. 

I remember making those statements. And I remember saying but of 

course you’ve got to...respond. And one way to respond is just to 

say...you’ve got what you need to handle the matter.

Lynch said that she thought that there had been agreement at the meeting 

about what to say. Her takeaway was that they were going to take steps not to 

confirm that there was an official investigation open and would be careful not to do 

so in how they discussed it. Lynch stated, “[I]t wasn’t a long meeting. It was that, 

it wasn’t contentious. Nobody seemed upset. So it was more of a discussion.” She 

said that she did not recall Comey or anyone else expressing disagreement, or 

Comey asking, “Why on earth would I do that?”

Lynch said that the decision to avoid confirming an investigation was not 

made with any political motive in mind, and that she did not coordinate messaging 

with the Clinton campaign. Lynch told the OIG that she was surprised to learn from 

Comey’s later congressional testimony that he interpreted the discussion at this 

meeting as evidence of potential political bias. She stated:

I was surprised. I was disappointed, somewhat angry. And mostly 

surprised that he had never raised it either at the time or later, that if 

it was a concern—I was surprised that if he thought that it was a 

problem, he was okay also handling things in that way. I just had 

never viewed him as someone who was reluctant to raise issues or 

concerns, given that I had known him for, for some time [.]

Lynch recalled Toscas making a joke about the “Federal Bureau of Matters” 

to one of the agents who was sitting beside him, and people laughing. She said 

that she took this as a joke, as good-natured “ribbing” or “teasing,” and that the 

laughter told her that others in attendance also took it as a joke.

Axelrod told us that the discussion about whether to acknowledge an 

“investigation” was just one small part of that meeting. He said that Lynch 

suggested using the term “matter” as a way of “thread[ing] the needle” to avoid 

violating Department policy while also not appearing evasive. According to Axelrod, 

no one from the FBI raised objections during the meeting, and the tone of the 

discussion was collegial. He said that he thought that Comey and Lynch had 

reached a “mutual agreement that using the term ‘matter’ was the best way to 

thread the needle.” Axelrod told the OIG that he was surprised to hear Comey’s 

later congressional testimony that he (Comey) felt uncomfortable with the 

discussion, which Axelrod said was not consistent with his recollection of Comey’s 

reaction in the room, and did not “square with...[his] recollection of the facts.”
64

3. Toscas’s Notes and Recollection of the Meeting

Toscas took detailed notes at the September 28 meeting, which he provided 

to the OIG. Toscas said that his notes were unusually lengthy for such a brief 

meeting because AAG Carlin was out of town and he was asked to attend in Carlin’s 

place, and he wanted to be able to tell Carlin what happened.

Referencing his notes, Toscas testified to the OIG at length about what took 

place during the meeting. According to Toscas, Comey told Lynch that he planned 

to acknowledge at a House Permanent Select Committee on Intelligence (HPSCI) 

roundtable that the FBI had received the referral from the IC IG and that it was 

being properly staffed and receiving all necessary resources. Comey stated that he 

planned to say that the FBI does not comment on its investigations per 

longstanding policy, but that all of its investigations are done professionally and 

timely. Toscas said that Comey assured Lynch that he would not say that they had 

opened an investigation, but that this would be implicit in what he said, and there 

would be news reports afterwards saying that there was an investigation.

According to Toscas, Lynch replied that she preferred “to discuss it in terms 

of a matter.... [T]his is the way I do it and then it avoids this issue because we 

should neither confirm nor deny.” Toscas said that he interpreted Lynch’s 

statement as expressing her preference rather than telling Comey what he should 

do. Toscas stated he did not recall Lynch instructing Comey to call it a matter, and 

he thought he would have remembered that if it had occurred. He also said that he 

did not interpret Lynch’s comment as her “trying to shade [the investigation] into 

something it wasn’t for some particular reason.” However, he acknowledged that 

he was not the FBI Director, and that Comey may have had a different perspective.

Toscas said that after Lynch’s comment, Axelrod stated that they needed to 

coordinate what to say with a letter sent by the FBI General Counsel to the State 

Department the previous week and attached to a public filing in FOIA litigation, in 

which the FBI took “great pains to not call this an investigation, so as not to 

confirm the existence of an investigation.” According to Toscas, the Department 

and the FBI had used the same language in other letters to Congress, and Lynch 

had a call scheduled later that day with Senator Charles Grassley in which she 

planned to tell him that it would be premature to acknowledge or share information 

about any investigation.

Toscas said that Axelrod’s statement led to a back and forth between Comey 

and Axelrod, during which Comey proposed modifying the letters to Congress to 

acknowledge that the FBI had opened an investigation. Toscas said that he was not 

sure if Comey was “toying with [Axelrod] at that point because I don’t think we 

would ever reissue letters that...clearly state normal positions.” Toscas said that 

Comey then asked Axelrod directly, “Why not use the word, you know we’re trying 

to treat it like any other case and would we do that ordinarily?” In response, 

Axelrod again mentioned the need to be consistent with the letters that were sent 

the previous week.
65

Toscas told the OIG that he mentioned at the meeting that the Department 

opens only a small fraction of the referrals it receives from the intelligence 

community as criminal investigations, and that the Department may not want to 

publicly acknowledge an investigation into former Secretary Clinton because it could 

serve as precedent for other referrals. Toscas said he also made clear to the group 

that Midyear was a criminal investigation, and that the prosecutors had referred to 

it as an investigation in letters to counsel and in search warrant applications.

Toscas said that Comey concluded the meeting by agreeing to call it a 

matter, stating, “OK, I think that will work.” This statement also appeared in 

Toscas’s contemporaneous notes. Toscas told the OIG that there was no indication 

at the time that Comey was concerned about the meeting or that the meeting had 

led him to question Lynch’s impartiality.

Asked whether he made a comment to Comey about the “Federal Bureau of 

Matters,” Toscas said that he did not specifically recall doing so but may have. He 

said that, if he did, he intended it as a joke rather than as a criticism of Lynch. He 

told the OIG:

I don’t know if I ribbed [Comey] walking out. You know he’s a friend 

of mine.... In any event, maybe I said that, maybe I didn’t. It 

wouldn’t faze me if I did, because it was in line with what I was saying 

to them [about “investigation” being part of the FBI’s name]. But it 

makes it appear as though I was sort of knocking the AG [Lynch] in 

the way they reported it, which is obviously why some goofball felt 

that they should talk about that to the newspapers....

58

C. October 1, 2015 Comey Meeting with Media

In a “pen and pad” with reporters on October 1, 2015, Comey used the term 

“matter” in response to questions about whether the FBI had opened an 

investigation. According to a transcript of the appearance, Comey told reporters 

that he recently had a closed session with HPSCI and would say publicly what he 

told the committee: that the FBI had received a referral involving former Secretary 

Clinton’s use of a private email account and the possible exposure of classified 

information through that account, but that he was limited in what he could say 

because the FBI does not talk about its ongoing work. Comey stated, “I am 

following this very closely and I get briefed on it regularly.... I am confident that 

we have the resources and the personnel assigned to the matter, as we do all our 

work, so we’re able to do it as we do all our work in a professional, prompt and 

independent way.” Asked about the timeline for completing any investigation, 

Comey stated, “Again, I’m not going to talk about this particular matter.... Part of 

doing our work well is we don’t talk about it while we do it.”

 

58

 See Matt Apuzzo et al., In Trying to Avoid Politics, Comey Shaped an Election, N.Y. TIMES, 

Apr. 23, 2017, at A1 (referencing two sources who reportedly heard Toscas state, “I guess you’re the 

Federal Bureau of Matters now.”).
66

Following Comey’s appearance, various news articles reported that Comey 

had acknowledged the existence of an investigation into former Secretary Clinton’s 

use of a private email server.

59

 Comey received an email containing news clips 

summarizing several of these articles and forwarded it to Rybicki, stating, “Will 

leave it to you to tell DOJ that I never used the word investigation.” Rybicki 

replied, “Already covered. I read back your statement to them and told them this 

is exactly the type of confusion we were concerned about as we were crafting.”

II. Reaction to White House Statements about the Midyear Investigation

On Sunday, October 11, 2015, an interview of then President Barack Obama 

was aired on the CBS show 60 Minutes. During this interview, Obama characterized 

former Secretary Clinton’s use of a private email server as a “mistake,” but stated 

that it did not “pose[] a national security problem” and was “not a situation in 

which America’s national security was endangered.” Obama also stated that the 

issue had been “ginned up” because of the presidential race. Two days later, on 

October 13, 2015, Obama’s Press Secretary, Josh Earnest, was asked whether 

Obama’s comments “should be read as an attempt to steer the direction of the FBI 

investigation.” Earnest replied that Obama made his comments based on public 

information, and they were not intended to influence an independent investigation.

Former President Obama’s comments caused concern among FBI officials 

about the potential impact on the investigation. Former EAD John Giacalone told 

the OIG, “[W]e open up criminal investigations. And you have the President of the 

United States saying this is just a mistake.... That’s a problem, right?” Former AD 

Randy Coleman expressed the same concern, stating, “[The FBI had] a group of 

guys in here, professionals, that are conducting an investigation. And 

the...President of the United States just came out and said there’s no there there.” 

Coleman said that he would have expected someone in FBI or Department 

leadership to contact one of Obama’s national security officials, and “tell [him or 

her], hey knock it off.” Michael Steinbach, the former EAD for the National Security 

Branch, told the OIG that the comments generated “controversy” within the FBI. 

Steinbach stated, “[Y]ou’re prejudging the results of an investigation before they 

really even have been started.... That’s...hugely problematic for us.”

Department prosecutors also were concerned. Responding to an email from 

Laufman about Obama’s 60 Minutes interview, Toscas stated, “Saw this. And as 

[one of the prosecutors] and I discussed last week, of course it had no—and will 

never have any—effect whatsoever on our work and our independent judgment.” 

Prosecutor 4 told the OIG that Obama’s statement was the genesis of the FBI’s 

suspicions that the Department’s leadership was politically biased. This prosecutor 

stated, “I know that the FBI considered those [statements] inappropriate. And that 

it...[generated] a suspicion that there was a political bias...going on from the 

Executive Branch.”

 

59

 See, e.g., Pete Williams, FBI Director Acknowledges Agency Looking Into Clinton Emails, 

NBC NEWS, Oct. 1, 2015, http://nbcnews.to/1LmHuMM (accessed Jan. 18, 2018).
67

Asked about former President Obama’s statements, Lynch stated, “I never 

spoke to the President directly about it, because I never spoke to him about any 

case or investigation. He didn’t speak to me about it either.” She told the OIG that 

she did not think the President should have made the comment on 60 Minutes. She 

stated, “I don’t know where it came from. And I don’t know, I don’t know why he 

would have thought that either, to be honest with you. Because, to me, anyone 

looking at this case would have seen a national security component to it. So I 

don’t, I truly do not know where he got that from.”

Former President Obama’s Press Secretary, Josh Earnest, made additional 

comments about the Midyear investigation during a press conference in early 2016. 

On January 29, 2016, in response to a question about whether the White House 

thought that former Secretary Clinton would be indicted, Earnest stated:

That will be a decision that is made by the Department of Justice and 

prosecutors over there. What I know that some officials over there 

have said is that she is not a target of the investigation. So that does 

not seem to be the direction that it’s trending, but I’m certainly not 

going to weigh in on a decision or in that process in any way. That is 

a decision to be made solely by independent prosecutors. But, again, 

based on what we know from the Department of Justice, it does not 

seem to be headed in that direction.

After this press conference, Melanie Newman, the Director of the Department’s 

Office of Public Affairs (OPA), received a transcript of Earnest’s statements about 

the investigation and forwarded it to Axelrod and three other Department officials. 

Newman stated in the email to these officials, “I’ve spoken to the [White House] 

and asked that they clarify this, to make clear they have no insight into this 

investigation. And if they don’t correct it, I will. I’m waiting to hear back.” This 

email also was forwarded to Lynch.

Asked about this email, Newman said that she spoke to Earnest that day. 

Newman said that Earnest told her that he had based his comments on what he had 

read in news stories, not conversations with anyone in the Department. She said 

that no one in the White House ever reached out to her about the Midyear 

investigation, nor was she aware of White House staff reaching out to anyone else 

in the Department, noting, “They were very, very, very careful about engaging with 

us on that topic.” Axelrod similarly told the OIG that Earnest’s comments implied 

that the White House had received a briefing on the Midyear investigation, which he 

said “never happened.”

Lynch’s Chief of Staff stated that Department officials were “very upset” 

about Earnest’s statement, because “as far as we knew, no one at Department of 

Justice had spoken to anyone in the White House about it.” The Chief of Staff told 

the OIG that they were particularly concerned by Earnest’s statement that former 

Secretary Clinton was not a target. The Chief of Staff said that she spoke to 

officials in the White House Counsel’s Office to tell them that the Department did 

not know where Earnest was getting his information, and to ask them to talk to 

Earnest. The Chief of Staff did not specifically recall Lynch’s reaction to this 
68

statement, but said that she was “[p]robably very upset.... [A]nytime there was 

ever any suggestion that the White House, or that DOJ had improperly done 

something in an investigation, or discussed something of...a political nature, she 

would not be happy about it.”

Prosecutors again were concerned by these comments. On January 29, 

2016, Toscas sent the following email to Laufman, seeking to assure the team that 

the investigation would not be influenced by White House statements:

As discussed, I spoke with ODAG and they are not aware of anybody 

from DOJ sharing any such information or assessment with the White 

House, as the below statements appear to suggest. I want to reiterate 

what I’ve told you and the team throughout our work on this 

investigation—the explicit direction we received from the AG and DAG 

on multiple occasions is that they have total confidence in the team of 

prosecutors who are working on this case and they have instructed us 

to proceed with this matter as we would any other, without 

interference of any kind, and with the independence we have in all of 

our cases. They have never wavered from that and have never said or 

done anything to send or suggest a contrary message. With respect to 

the below statements that erroneously imply that the Department has 

shared information about, or an assessment of, this matter with the 

White House, we should not and will not allow such irresponsible 

statements to have any effect at all on our work. We will continue to 

thoroughly and professionally investigate this matter as we would any 

other—and, as always—and as you, John [Carlin], and I have said 

repeatedly—we will follow the facts wherever they lead. Thanks.

Toscas emailed Laufman a second time, stating, “Please feel free to share this with 

the whole team (if you haven’t already).” During his interview with the OIG, Toscas 

described Earnest’s statements as “goofy” and “ridiculous,” expressing frustration 

that he had to address comments by the White House when preparing Lynch to 

testify before Congress because of the perception of political bias that they created.

Asked about Earnest’s statements, prosecutors told the OIG that the only 

interactions they had with the White House concerning the investigation were with 

the White House Counsel’s Office to obtain a classification review of documents in a 

Special Access Program (SAP) controlled by the White House and to interview a 

National Security Council staffer. Prosecutor 1 told the OIG that he was not aware 

of contacts between Department leadership and the White House Counsel’s Office 

or White House staff. Notes taken by Laufman indicate that on January 30, 2016, 

one of the prosecutors reached out to their point of contact in the White House 

Counsel’s Office and asked about Earnest’s comments. According to these notes, 

this prosecutor was told that the content of the discussions between the White 

House Counsel’s Office and the Midyear team about the classification review and 

the interview of the staffer was limited to a small group of people in the White 

House Counsel’s Office, and that nothing that the prosecutors had discussed with 

the White House Counsel’s Office would be known to Earnest.
69

Lynch testified before the Senate Judiciary Committee on March 9, 2016. 

Asked about the investigation, Lynch stated that she had never discussed the 

investigation with former President Obama or anyone in the White House. Lynch 

stated, “[I]t’s my hope that when it comes to ongoing investigations that we all 

would stay silent. And I can assure you that neither I nor anyone from the 

Department has briefed to Mr. Earnest or anyone at the White House about this 

matter or other law enforcement matters.... I’m simply not aware of the source of 

his information.”60

Lynch told the OIG that she recalled that Newman spoke with the White 

House Communications Office after Earnest’s comments and was clear that they 

were inappropriate and needed to be corrected. Asked whether she perceived 

these comments as an effort to direct where the investigation was going or felt 

influenced by them, she said that she did not. Lynch said that she also had a 

discussion with the White House Counsel after she testified, and that during this 

discussion he acknowledged that the comments should not have happened.

However, former President Obama again made public comments about the 

Midyear investigation in an interview with FOX News Sunday on April 10, 2016. 

Obama stated that while former Secretary Clinton had been “careless” in managing 

her emails while she was Secretary of State, she would never intentionally do 

anything to endanger the security of the United States with her emails. He also 

stated that he would not interfere in the FBI’s investigation into her private email 

server. Obama stated, “I guarantee that there is no political influence in any 

investigation conducted by the Justice Department, or the F.B.I.—not just in this 

case, but in any case.”61

 

60

 U.S. Senate, Committee on the Judiciary, Oversight of the U.S. Department of Justice, 

114th Cong., 2d sess., March 9, 2016, https://www.judiciary.senate.gov/meetings/oversight-of-theus-department-of-justice.

61

 See Transcript, President Barack Obama on FOX News Sunday, Apr. 10, 2016, at 

http://www.foxnews.com/transcript/2016/04/10/exclusive-president-barack-obama-on-fox-newssunday.html (accessed Mar. 22, 2018).
70

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CHAPTER FIVE:

INVESTIGATIVE METHODS USED IN THE INVESTIGATION

The Midyear team used several types of investigative methods and made 

various strategic decisions during the course of its investigation. Some of these 

decisions have been the subject of criticism and allegations that they were based on 

improper considerations.

In this chapter, we describe the following investigative methods and 

decisions made by the Midyear team: efforts to identify relevant sources of 

physical evidence; efforts to understand and access Clinton’s servers; use of 

criminal process, including subpoenas, 2703(d) orders, and search warrants to 

obtain physical evidence; use of consent to obtain physical evidence; efforts to 

obtain evidence related to Clinton’s senior aides; use of voluntary interviews;

decisions to grant certain witnesses use immunity; strategies employed to secure 

voluntary interviews and voluntary production of evidence from Cheryl Mills and 

Heather Samuelson; and investigative decisions surrounding the voluntary 

interview of Hillary Clinton. We describe the reasons given for these decisions, 

disagreements among members of the Midyear team about them, especially 

between the FBI and the prosecutors, and the impact of these decisions on the 

investigation’s access to relevant information and the completeness of the 

investigation. We also describe an internal file review of the Midyear investigation 

conducted by the FBI’s Inspection Division (INSD) in September and October 2017

following our discovery of concerning text messages between Strzok and Page.

In addition, we discuss instant messages in which Agent 1 expressed

concerns about the quality of the Midyear investigation. We considered these 

messages as part of our analysis of whether the Midyear team conducted a 

thorough and impartial investigation.

In the analysis section of this chapter, we assess whether the evidence 

supports a conclusion that any of the investigative decisions we reviewed were 

based on improper considerations, consistent with the analytical construct 

described in Chapter One.

I. FBI’s Efforts to Identify and Review Relevant Sources of Evidence

The Midyear team began its investigation by reviewing the 30,490 emails 

that Clinton had produced to the State Department. They reviewed them to 

identify emails that appeared to contain classified information and evidence of 

intent to mishandle classified information.

62

 Witnesses told us that to search for 

evidence of intent, the analysts looked for, among other things, classification 

markings on the documents, statements indicating that email participants knew 

 

62

 The Midyear Supervisory Special Agent told us that the State Department provided these 

emails to the FBI in paper form. According to the LHM, on August 6, 2015, Clinton’s attorneys 

voluntarily provided the FBI thumb drives containing the same emails.
72

information was classified, and statements indicating that Clinton decided to use a 

private server for an improper purpose, such as to avoid FOIA or other laws. One 

analyst told us that there were at least six analysts consistently involved with 

reviewing these emails, and, at times, there were as many as fifteen or sixteen

analysts doing so. Once the team identified emails that appeared to contain 

classified information, they sent them to other agencies within the U.S. Intelligence 

Community (“USIC agencies”) with equities in them for formal classification review.

FBI agents and Department prosecutors told us that, thereafter, a large focus 

of the investigation was locating the remaining 31,830 emails that made up the 

entire 62,320 emails that Clinton’s attorneys had reportedly reviewed before 

producing her work-related emails to the State Department. Clinton’s attorneys did 

not produce those 31,830 emails to the State Department because, they stated, 

they were personal in nature; instead, the attorneys instructed Paul Combetta of 

Platte River Networks (“PRN”)—the company that managed Clinton’s server— to 

remove the emails from their own laptops and modify the server’s email retention 

period so that emails older than 60 days would not be retained. In March 2015, 

Combetta removed the emails from Clinton’s server using BleachBit after realizing 

he had failed to implement the new email retention period several months earlier.

The FBI team wanted to review these emails, if possible, to determine whether any 

were work-related or contained classified information, and to search for evidence of 

Clinton’s intent in using a private server.

FBI agents and analysts, including the Supervisory Special Agent (SSA) 

assigned to the Midyear investigation, told us that to find the missing 31,830

emails, the team attempted to identify and obtain access to any server or device—

“whether it was a BlackBerry, iPad, PC [or] phone”—Clinton used during her tenure, 

as well as devices used to back up her emails. The FBI also sought email content 

or header information from the official U.S. government and private email accounts 

of certain individuals who were known to communicate directly with Clinton by 

email or who were involved in email chains that ultimately resulted in classified 

information being forwarded to Clinton. However, as discussed in Section V.C of 

this chapter, the FBI did not seek to obtain the personal devices of State 

Department employees, besides Clinton, who sometimes used private email for 

State Department work and who used those devices to communicate with Clinton 

while she was Secretary of State.

Based on our review, the FBI sent preservation requests to the State 

Department for nearly one-thousand official State Department email accounts. One 

analyst told us that the State Department was unable to supply many of the email 

records the FBI requested due to, among other things, limitations in the State 

Department’s recordkeeping systems. However, the FBI obtained records from the 

official State Department email accounts of certain employees, including the three 

senior aides with whom Clinton had the most email contact. The FBI also made 

requests of other government agencies, including the CIA, the Defense Intelligence 

Agency (DIA), the Department of Defense (DOD), and the Executive Office of the 

President (EOP), to search their official email systems for emails to or from email

accounts on the clintonemail.com domain. In addition, as discussed in Sections III 
73

and V below, the Midyear team used compulsory process to obtain email records 

from certain private email accounts.

The FBI also requested the State-Department-issued computers and 

handheld devices used by certain employees during their State Department tenure. 

However, with the exception of a desktop computer used by Bryan Pagliano (a 

State Department employee who set up Clinton’s second server), the State 

Department told the FBI that it either did not preserve or could not locate those 

devices. 

FBI witnesses told us that both FBI agents and analysts were involved in

determining what devices and other evidence to obtain. Based on our review of the 

evidence, the FBI obtained more than 30 devices; received consent to search 

Clinton-related communications on most of these devices; and identified numerous 

work-related emails that were not part of the 30,490 emails produced by Clinton’s 

attorneys to the State Department, many of which they sent to other agencies for 

classification review. The thirty devices included two of Clinton’s servers, each of 

which consisted of multiple devices; storage devices used alongside Clinton’s 

servers; numerous devices that were used to back up Clinton’s emails during her 

tenure; some of Clinton’s handheld devices; Pagliano’s State Department desktop 

computer; several flash drives and laptop computers that contained copies of the 

30,490 emails that Clinton’s attorneys produced to the State Department; and the 

two laptops used by Clinton’s attorneys to cull her emails for production to the 

State Department. Once the FBI received consent to review a device, staff from 

the FBI’s Operational Technology Division (OTD) generally imaged the device and 

prepared the image for a filter team to remove material that was privileged or 

otherwise not subject to search pursuant to the terms of a consent agreement.

OTD then uploaded the emails and other data from the device for FBI analysts to 

review. OTD also attempted to de-duplicate emails. The analysts reviewed the 

emails recovered from each device for the same purposes as they reviewed the 

initial 30,490—to identify both suspected classified information and evidence of 

intent to mishandle classified information.

The Midyear team also sought and obtained a wide range of other 

information relevant to the investigation, such as Clinton’s cable, telephone, and 

Internet subscriber and service information; financial information for certain 

witnesses; business records pertaining to the services provided by the companies 

that supported Clinton’s servers; records related to security services protecting 

Clinton’s servers; and information from mail carriers related to the delivery of a 

laptop that at one time stored Clinton’s archived emails. Prosecutor 1 told us that 

the team sought records from at least three different companies in an effort to find 

the Blackberry emails from the beginning of Clinton’s tenure as Secretary of 

State.

63

 Analysts told us that they reviewed these materials to search for, among 

 

63

 Based on the LHM, the 30,490 emails provided by Clinton’s attorneys to the State 

Department contained no emails sent or received by Clinton during the first two months of her tenure, 

January 21, 2009, through March 18, 2009, and the FBI investigative team was unable to locate the 

BlackBerry device she used during that time. Witnesses, including former Director Comey, told us 
74

other things, evidence of mishandling classified information and additional leads for 

information. For example, one analyst stated that through records obtained from 

various phone companies, he was able to identify the 13 devices that were 

associated with two telephone numbers that Clinton used.

According to the LHM, the FBI found and reviewed “approximately 17,448 

unique work-related and personal emails from Clinton’s tenure” containing her 

email address that were not part of the original 30,490 that Clinton’s lawyers had 

produced to the State Department. Comey stated in his July 5, 2016, press 

conference that the FBI found “several thousand” work-related emails that were not 

part of the 30,490 emails. However, one analyst told us, and documentation we 

reviewed showed, that the FBI did not conduct its review in such a way that it could 

calculate the precise amount of work-related emails discovered by the FBI that had 

not been produced to the State Department. Instead, as described below, they 

focused on identifying the number of classified emails that both were and were not 

included in the 30,490.

None of the emails, including those that were found to contain classified 

information, included a header or footer with classification markings. As we discuss 

further in Chapter Seven, this absence of clear classification markings played a 

significant role in the decision by the Midyear prosecutors to recommend to 

Attorney General Lynch in July 2016 that the investigation should be closed without 

prosecution. According to the LHM, the FBI, with the assistance of other USIC 

agencies, identified “81 email chains containing approximately 193 individual emails 

that were classified from the CONFIDENTIAL to TOP SECRET levels at the time the 

emails were drafted on UNCLASSIFIED systems and sent to or from Clinton’s 

personal server.” In other words, the USIC agencies determined that these 81 

email chains, although not marked classified, contained information classified at the 

time the emails were sent and should have been so marked. Twelve of the 81 

classified email chains were not among the 30,490 that Clinton’s lawyers had 

produced to the State Department, and these were all classified at the Secret or 

Confidential levels. Seven of the 81 email chains contained information associated 

with a Special Access Program (“SAP”), which witnesses told us is considered 

particularly sensitive. The emails containing Top Secret and SAP information were 

included in the 30,490 provided to the State Department.

In June 2016, near the end of the investigation, investigators found three 

email chains, consisting of eight individual emails, that “contained at least one 

paragraph marked ‘(C),’ a marking ostensibly indicating the presence of information 

classified at the CONFIDENTIAL level.” According to a June 13, 2016 text message

exchange between Strzok and Page, the emails containing the “(C)” portion 

markings were part of the 30,490 that Clinton’s attorneys had provided to the State 

Department in 2014 but the FBI did not notice them until June 2016 after the IC IG 

discovered them. By that point in time, as discussed in Chapter Six below, Comey 

had been drafting his statement announcing the closing of the investigation. Strzok 

 

that they believed these missing emails could contain important evidence regarding Clinton’s intent in 

setting up a private email server. 
75

wrote to Page that “DoJ was Very Concerned about this.... Because they’re 

worried, holy cow, if the fbi missed this, what else was missed?” Strzok further 

wrote, “No one noticed. And while minor, it cuts against ‘I never send or received 

anything marked classified.’”

64

 According to the prosecutors, Mills, Abedin, and 

Jake Sullivan were each parties to at least one email in the chains with the (C) 

markings. However, none of them were ever asked about the emails, because the 

FBI had not discovered the markings before their interviews and did not seek to 

reinterview them.

65

Witnesses told us that although the FBI found work-related emails, including 

classified emails, that were not part of the 30,490 produced to the State 

Department by Clinton’s lawyers, they were not able to determine whether these 

emails were part of the original 62,320 reviewed by Clinton’s attorneys. This is 

because some of the emails they found through other sources could have been 

deleted from Clinton’s account or “overwritten in the ordinary course” before 

Clinton’s attorneys reviewed her emails for production to the State Department. 

Thus, they also were unable to determine how many of the 31,830 deleted emails 

were never recovered.

The FBI also conducted “intrusion analyses” on each of the devices and other 

evidence to determine whether any classified information had been compromised. 

An FBI agent assigned to the Midyear team to conduct intrusion and other forensic 

analysis (“Forensics Agent”) described the team’s efforts in this regard as 

exhaustive. He stated that these efforts included (1) examining the servers and 

others devices to identify suspicious logins or other activity, and (2) searching 

numerous datasets to determine whether foreign adversaries or known hostile 

domestic actors had accessed emails that the Midyear team had confirmed to 

contain classified information.

Comey stated the following in his July 5, 2016, press conference regarding 

possible cyber intrusion of Clinton’s email servers:

With respect to potential computer intrusion by hostile actors, we did 

not find direct evidence that Secretary Clinton's personal email 

domain, in its various configurations since 2009, was successfully 

hacked. But, given the nature of the system and of the actors 

potentially involved, we assess that we would be unlikely to see such 

direct evidence. We do assess that hostile actors gained access to the 

private commercial email accounts of people with whom Secretary 

Clinton was in regular contact from her personal account. We also 

assess that Secretary Clinton's use of a personal email domain was 

 

64

 Strzok told us that in this text message he was referring to the fact that “Secretary Clinton 

had always said [she] never received anything marked classified,” and that the new discovery of the 

emails with the (C) markings was inconsistent with that claim. The emails with the (C) markings, 

Clinton’s statements about them during her FBI interview, and the Midyear team’s assessment of her 

credibility are discussed in Section IX.C of this chapter.

65

 Sullivan was Clinton’s Deputy Chief of Staff for Policy from January 2009 to February 2011 

and Director of Policy and Planning at the State Department from February 2011 to January 2013.
76

both known by a large number of people and readily apparent. She 

also used her personal email extensively while outside the United 

States, including sending and receiving work-related emails in the 

territory of sophisticated adversaries. Given that combination of 

factors, we assess it is possible that hostile actors gained access to 

Secretary Clinton's personal email account.

The LHM stated, “FBI investigation and forensic analysis did not find evidence 

confirming that Clinton’s email server systems were compromised by cyber means.” 

However, the LHM also stated that the FBI identified one successful compromise of 

an account belonging to one of former President Clinton’s staffers on a different 

domain within the same server former Secretary Clinton used during her tenure.

The FBI was unable to identify the individual responsible for the compromise, but 

confirmed that the individual had logged in to the former staffer’s account and 

“browsed email folders and attachments.” According to evidence we reviewed, the 

FBI also confirmed compromises to email accounts belonging to certain individuals 

who communicated with Clinton by email, such as Jake Sullivan and Sidney 

Blumenthal.66

The LHM stated that the FBI was limited in its intrusion analysis due to the 

“FBI’s inability to recover all server equipment and the lack of complete server data 

for the relevant time period.” According to the LHM, the FBI also identified

vulnerabilities in Clinton’s server systems and found that there had been numerous 

unsuccessful attempts by potential malicious actors to exploit those vulnerabilities. 

Nonetheless, the FBI Forensics Agent told the OIG that, although he did not believe 

there was “any way of determining...100%” whether Clinton’s servers had been 

compromised, he felt “fairly confident that there wasn’t an intrusion.” When asked 

whether a sophisticated foreign adversary was likely to be able to cover its tracks, 

he stated, “They could. Yeah. But I, I felt as if we coordinated with the right units 

at headquarters...for those specific adversaries.... And the information that was 

returned back to me was that there was no indication of a compromise.”

II. The Midyear Team’s Efforts to Understand and Access Clinton’s 

Servers

Prosecutor 1 told us that it took the Midyear team time to understand the 

setup and sequence of the various servers Clinton used. This prosecutor stated 

that an understanding of the server setup was a necessary foundation for the 

Midyear team’s investigation. According to the LHM, the FBI discovered three 

servers that for different periods stored work-related emails sent or received by 

Clinton during her tenure as Secretary of State. Collectively, we refer to these 

three servers as the “Clinton servers.”

The first server was set up in 2008 by Justin Cooper, a former aide to former 

President Clinton, and is referred to in the LHM as the “Apple Server.” Based on 

 

66

 Clinton told the FBI that Blumenthal was a “longtime friend” who “frequently sent 

information he thought would be useful” to her as Secretary of State.
77

evidence we reviewed, the Apple Server was primarily set up for former President 

Clinton’s staff, but Secretary Clinton also used it for her work purposes from 

January 2009 until approximately March 18, 2009, about two months into her 

tenure. During this time, Clinton primarily used a personally acquired BlackBerry 

device that was connected to the Apple Server.

The LHM indicates that the second server, referred to in the LHM as the 

Pagliano Server, was used from March 2009 through June 2013. Cooper told the 

FBI that “in or around January 2009 the decision was made to move to another 

server because the Apple Server was antiquated and users were experiencing 

problems with email delivery on their Blackberry devices.” Cooper contacted Bryan 

Pagliano, an information technology specialist who worked on Hillary Clinton’s 

presidential campaign, to help him set up the Pagliano server. Numerous 

individuals had email accounts on the Pagliano Server, including former President 

Clinton, former President Clinton’s staff, Huma Abedin—who was Clinton’s Deputy 

Chief of Staff at the State Department—and Clinton herself. Clinton and Abedin 

were the only State Department employees with accounts on the

@clintonemail.com domain on the Pagliano Server.

The third server, which is referred to in the LHM as the “PRN server,” was 

active after Clinton’s tenure as Secretary of State ended, from approximately June 

2013 through October 2015. The LHM stated that in early 2013, staff for Clinton 

and former President Clinton discussed transitioning to a new vendor for email

services, “due to user limitations and reliability concerns regarding the Pagliano 

Server.” The staff chose the “Denver-based information technology firm Platte 

River Networks (PRN)” for this purpose. According to the LHM, PRN employee Paul 

Combetta migrated the email accounts from the Pagliano Server to the PRN server. 

Following the migration, the Pagliano Server was stored in a data center in New 

Jersey, although it no longer hosted email services and Microsoft Exchange was 

uninstalled from it on December 3, 2013.

According to the LHM, the FBI learned through witness interviews that the 

Apple Server, in use from 2007 to March 2009, was ultimately discarded and, thus, 

the FBI was never able to access it for review. However, based on evidence we 

reviewed, the Midyear team obtained access to certain back-up data from the Apple 

Server held on Cooper’s personal laptops through consent agreements with 

Cooper’s attorney. The Midyear team obtained both the Pagliano and PRN servers 

through consent agreements with David Kendall and Clinton’s other attorneys at 

Williams and Connolly.

The FBI’s ability to review emails on both the Pagliano and PRN servers was 

limited. With respect to the Pagliano Server, most of the emails that remained on 

the Pagliano server following the transition to the PRN server were in the 

“unallocated space” due to the removal of Microsoft Exchange in December 2013. 

FBI analysts told us that emails in the unallocated space were often fragmented and 

difficult to reconstruct. With respect to the PRN server, the FBI discovered through 

forensic analysis and witness interviews that Combetta had transferred most of 

Clinton’s archived emails from her tenure as Secretary of State to the PRN server,

but subsequently deleted and “wiped” them from the server using “BleachBit.” 
78

Based on the LHM, FD-302s, and PRN documents collected by the FBI, the transfer 

of emails to the PRN server and subsequent wiping of the PRN server occurred as 

described in the paragraphs below.

At around the time of the transition to the PRN server in the spring of 2013, 

Clinton’s former aide, Monica Hanley, created two archives of Clinton’s emails from 

the Pagliano Server, one on a thumb drive (Archive Thumb Drive) and one on a 

laptop computer (Archive Laptop).

67 In early 2014, Hanley mailed the Archive 

Laptop to Combetta to transfer Clinton’s archived emails to the PRN server. She 

further directed him to “wipe” the Archive Laptop and mail it to Clinton’s office 

assistant at the Clinton Foundation after he completed the transfer. Combetta used 

a “dummy” email account to transfer Clinton’s archived emails into a mailbox 

entitled “HRC archive” on the PRN server.

68

 Combetta told the FBI that he then, 

per Hanley’s instructions, deleted the emails from the Archive Laptop and mailed 

the Archive Laptop to Clinton’s office assistant, but did not “wipe” the laptop. Email 

records obtained by the FBI showed that Clinton’s office assistant sent emails to 

Combetta in both March and April 2014 asking when she should expect to receive 

the “wiped laptop;” however, Clinton’s office assistant told the FBI that she did not 

recall ever receiving it.

An analyst told us and FBI records show that the team sought and obtained

records from multiple mail carriers in an effort to locate the Archive Laptop. Based 

on these records, the FBI was able to confirm that the laptop was delivered to Paul 

Combetta on February 24, 2014; however, the FBI found no records showing that 

Combetta mailed the Archive Laptop to Clinton’s office assistant as requested. The 

FBI also attempted to obtain the Archive Thumb Drive from Hanley, but she stated 

she could not recall what happened to it.

According to the LHM, FD-302s from Combetta’s, Mills’s, and Samuelson’s 

interviews, and PRN documents collected by the FBI, in the summer of 2014, 

Combetta uploaded .pst files of Clinton’s archived emails to Mills’s and Samuelson’s 

laptops to enable them to review Clinton’s emails and produce her work-related 

emails to the State Department. In late 2014 or early 2015, after Clinton produced 

her work-related emails to the State Department, Mills and Samuelson requested 

that Combetta remove Clinton’s emails from their laptops, and he did so using 

BleachBit. At around the same time, Mills directed Combetta to change the email

retention policy on Clinton’s clintonemail.com account to 60 days, because Clinton 

had decided that she no longer needed access to her personal emails that were 

older than 60 days. Combetta told the FBI that he mistakenly neglected to make 

the change at the time and realized his mistake in March 2015. He stated that, 

despite the intervening issuance of a congressional preservation order on March 3, 

 

67

 According to Hanley’s FD-302, she told the FBI that the archives were created because 

Clinton “did not want to lose her old emails when she changed her email address.” She further told 

the FBI that PRN advised Clinton to change her email address after Sidney Blumenthal’s email account 

was compromised.

68

 As discussed in Section III of this chapter, the Midyear team obtained a search warrant for 

the dummy email account and recovered some of Clinton’s work-related emails from that account.
79

2015, he “had an ‘oh shit’ moment” and wiped the HRC archive mailbox from the 

PRN server using BleachBit sometime between March 25 and March 31, 2015.

Despite the use of BleachBit, the FBI was able to recover some of Clinton’s 

archived emails from both the PRN server and the laptops used by Mills and 

Samuelson to cull Clinton’s emails. The FBI also recovered some of Clinton’s 

archived emails from a search of the dummy email account that Combetta used to 

transfer Clinton’s emails from the Archive Laptop to the PRN server and, as 

discussed in Section I of this chapter, from various other sources.

III. Use of Criminal Process to Obtain Documentary and Digital Evidence

Despite the public perception that the Midyear investigation did not use a 

grand jury, and instead relied exclusively on consent, we found that agents and 

prosecutors did use grand jury subpoenas and other compulsory process to gain 

access to documentary and digital evidence. According to documents we reviewed, 

at least 56 grand jury subpoenas were issued, five court orders were obtained 

pursuant to 18 U.S.C. § 2703(d) (2703(d) orders), and three search warrants were 

granted. The Midyear team also sent numerous preservation letters to various 

entities, including Internet Service Providers, former Secretary Clinton’s attorneys, 

and U.S. government agencies. We were told that FBI agents generally worked 

directly with the EDVA prosecutors to obtain subpoenas and 2703(d) orders,

without seeking approval from the CES prosecutors, Laufman, Toscas, or any higher 

level Department officials. Toscas told us that he was the highest level Department 

official that approved search warrant affidavits, and that he provided general 

information about search warrants that were being sought in briefings to Carlin, 

Yates, and Lynch.

The FBI served 2703(d) orders on commercial email service providers, such 

as Google (Gmail) and Yahoo!, for information maintained on their servers 

associated with the private email accounts used by Huma Abedin, Paul Combetta, 

Cheryl Mills, and two other individuals.

69

 The FBI sought 2703(d) orders for these 

 

69

 According to documentation we reviewed, the first individual was a senior State 

Department official who sometimes used a private email account to communicate with Clinton. The 

FBI sought a 2703(d) order for this individual’s private email account after discovering an email sent 

from his private email account that the FBI determined was classified at the SECRET//NOFORN level. 

The abbreviation “NOFORN” means that the information may not be released to foreign governments, 

foreign nationals, foreign organizations, or non-U.S. citizens without the permission of the originator. 

According to Strzok’s and the Lead Analyst’s notes from early June 2016, the FBI received the returns 

from this 2703(d) order and determined that, as of that time, the email containing classified 

information no longer resided in this individual’s account.

According to the 2703(d) order for the second individual’s account, an email containing 

information that the FBI determined to be classified at the SECRET//NOFORN level was originated 

from his private email account and forwarded, after traversing two other private email accounts, to 

Mills’s private Gmail account. This individual was not a State Department employee and was not a 

witness in the FBI’s investigation. Rather, the 2703(d) order stated that the FBI believed this 

individual resided in Japan based on his phone number and address and that “[a] search of relevant 

databases reveal[ed] no U.S. Government security clearances” for him. According to Strzok’s and the 
80

individuals after discovering from other sources that emails containing classified 

information were sent from or received by their accounts. FBI witnesses told us 

that the purposes of obtaining the 2703(d) orders were to determine whether the 

known classified emails continued to reside in the unauthorized email accounts and 

whether they were forwarded to other unauthorized locations, thus posing risks to 

national security. If they confirmed that the known classified emails continued to 

reside in the email accounts, they would then consider seeking search warrants for 

email content within the same accounts.

Based on the 2703(d) results, the FBI was able to confirm that classified 

information continued to reside in just one of these five accounts—the account 

belonging to Combetta. Thus, on June 20, 2016, the FBI sought a search warrant 

for this account. According to the search warrant, the FBI initially sought the 

2703(d) order for Combetta’s account after observing numerous emails containing 

metadata for Combetta’s dummy email account in the original 30,490 emails 

provided to the State Department and determining that many of these emails 

contained classified information. Combetta told the FBI that he created the dummy 

email account to transfer Clinton’s archived emails from the Archive Laptop to the 

PRN Server. Based on the results of the 2703(d) order, the FBI determined that 

820 of Clinton’s emails, dated between October 25, 2010, and December 31, 2010, 

remained in the dummy email account. The Midyear team obtained a search 

warrant to view the content of these emails and search for other emails relevant to 

the investigation.

Prosecutor 2 told us that the Midyear team sought compulsory process when 

evidence could not be obtained through consent or when “the terms of the consent 

were such that additional process needed to be sought.” For example, on August 

28, 2015, the Midyear team obtained a search warrant for the Pagliano Server even 

though Clinton’s attorneys had voluntarily produced and provided consent for the 

FBI to search it. According to the search warrant application, upon conducting a 

preliminary examination of the Pagliano server, the FBI discovered that it contained 

three domains—two besides the clintonemail.com domain—and email accounts of 

numerous individuals unrelated to the FBI’s investigation, such as former President 

Clinton’s staff. The FBI further discovered that Microsoft Exchange had been 

uninstalled from the Pagliano Server in December 2013. As a result, the three 

different domains were commingled in the server’s unallocated space and the FBI 

could not segregate the accounts without “a complete forensic analysis of the 

Pagliano Server.” Because Clinton’s attorneys were only able to provide consent to 

 

Lead Analyst’s notes from early June 2016, the FBI received the returns from this 2703(d) order and, 

as of that time, the email containing classified information no longer resided in his account.

The Midyear team did not seek 2703(d) orders for information related to Clinton’s private 

email accounts. Instead, as described later in this section and in Section IV of this chapter, the team 

reviewed the contents of Clinton’s emails on the Pagliano and PRN servers through a combination of 

consent agreements and a search warrant. The team also sought records from three different 

companies in an effort to track down emails Clinton sent or received on her Blackberry account in 

early 2009, before she began using the clintonemail.com domain. However, witnesses told us that 

these companies no longer maintained Clinton’s emails on their servers.
81

search Clinton’s email accounts on the server, the FBI obtained a search warrant to 

examine the unallocated space.

IV. Use of Consent to Obtain Physical Evidence

A. Debate over the Use of Consent

Based on the evidence we reviewed, although the Midyear team used 

compulsory process on multiple occasions as described above, the prosecutors

sought to obtain digital and documentary evidence by consent whenever possible. 

Witnesses told us that this caused frustration within the FBI, which preferred 

obtaining evidence with search warrants or subpoenas. The witnesses generally 

agreed that this debate is common among prosecutors and agents and was not 

unique to Midyear. To the extent the disagreement about the use of criminal 

process was more pronounced in Midyear, witnesses stated that they believed this 

was due to Midyear being a high-profile investigation. The Lead Analyst explained 

that “everyone [was] under intense pressure,” which enhanced the “magnitude” of 

this disagreement.

Numerous Department and FBI witnesses told us that the debate over how to 

obtain evidence was mostly about efficiency—the prosecutors believed they could 

obtain evidence faster through consent and the FBI believed that criminal process 

was more efficient. The prosecutors stated that, in their view, consent is more 

efficient than process when witnesses are cooperative and, as Prosecutor 4 noted, 

when there is no concern that evidence will be destroyed to obstruct an 

investigation. Based on the evidence we reviewed, Clinton’s attorneys contacted 

Department prosecutors numerous times to express Clinton’s willingness to 

cooperate by being interviewed and providing evidence voluntarily. Prosecutor 4 

told us it was his view that the risk of destruction of evidence, in response to a 

voluntary production request, is less likely in cases where parties are represented 

by experienced attorneys, such as “firms like Williams and Connolly” (which 

represented Clinton), because the attorneys are aware of the risks associated with 

destroying evidence. Prosecutor 4 stated, “I’m not saying that they’re more 

ethical. I’m just saying they’re smarter.” The prosecutors stated that seeking 

evidence through consent also saved time by allowing the government to avoid 

motions to quash subpoenas based on privilege or lack of probable cause.

A few FBI witnesses told us that they believed the prosecutors in CES were 

generally more “risk averse” in their handling of cases than prosecutors in other 

parts of the Department. Prosecutor 1 explained that there are reasons to be 

especially cautious in the types of cases CES handles, including protecting the

sensitive and classified information involved in those cases. This prosecutor told us

that CES prosecutors must consider questions such as whether the intelligence 

community will permit the use of classified information in their cases, whether 

moving a “case forward” is worth the risk that the “use of information gathered by 

a human source could...identify sources and methods,” and whether “the criminal 

prosecution of someone [is] more valuable than the continued collection[.]”
82

Laufman and Prosecutor 4 told us that the use of criminal process tends to 

increase the risk of leaks and public disclosures. Prosecutor 4 told us that leaks 

undermine investigations and that “unfair leaks” were an “added” consideration in 

the Midyear investigation. Laufman told us that the Midyear prosecution team’s 

goal was to make sure that no stone was left unturned, while also being mindful 

that leaks “could be used by political actors in furtherance of political agendas.” 

Agent 3 told us that when he sought process from the prosecutors, they responded 

that they would try to obtain the evidence by consent because the witnesses “don’t 

want this to get in the paper.” Comey told us that he believed the prosecutors 

were more hesitant to use criminal process in the Midyear investigation than normal 

because they wanted to keep “as low a profile as possible.”

FBI team members told us that they believed they could have obtained 

evidence faster with process, especially after instances when, they believed,

Clinton’s attorneys had not been forthcoming about the existence of potential 

sources of evidence. For example, after Clinton’s attorneys voluntarily provided the 

FBI the Pagliano Server pursuant to an August 7, 2015 consent agreement, the FBI 

discovered through its own investigation that there was a successor server—the 

PRN server. According to documentation we reviewed, the prosecutors and the FBI 

were frustrated that Clinton’s attorneys had not been forthcoming about the PRN 

server, and Prosecutor 1 wrote a letter to Kendall expressing this frustration. The 

SSA told us that situations like this caused him to question whether consent was 

the best course. However, Prosecutor 1 stated that resorting to compulsory 

process for the PRN server would have been complicated, because, among other 

things, the server was “running tons of people’s email accounts on it that were 

totally separate from...the former Secretary, including people working in 

the...former President’s office.” The Midyear team ultimately secured the PRN 

server through a September 30, 2015 consent agreement with Clinton’s attorneys.

Some witnesses told us that they were concerned about certain devices that 

the FBI was never able to locate. For example, as described above in Section II of 

this chapter, the Midyear team was never able to locate the Archive Laptop and 

Archive Thumb Drive, both of which, according to Hanley and others, contained a 

complete copy of Clinton’s archived emails. In addition, according to the LHM, the 

FBI’s investigation identified a total of 13 mobile devices associated with Clinton’s 

two known telephone numbers “which potentially were used to send emails using 

Clinton’s clintonemail.com email addresses.” The Midyear team asked Clinton’s 

attorneys for these devices, but they stated they were “unable to locate” them.70 

According to the LHM and FD-302s, Cooper and Hanley told the FBI that they wiped 

or destroyed Clinton’s devices once she transitioned to new devices. One FBI 

analyst told us that he was “frustrated” by the claim by Clinton’s attorneys that 

they could not find her 13 devices. However, he stated that he “guess[ed]” the 

agency did not have probable cause to assert that the missing devices were in 

 

70

 The attorneys produced two other Blackberry devices that they stated might contain 

relevant emails, but, according to the LHM, “FBI forensic analysis found no evidence to indicate either 

of the[se] devices...were connected to one of Clinton's personal servers or contained emails from her 

personal accounts during her tenure.” The FBI also obtained three of Clinton’s iPads, one of which 

contained three emails from her tenure.
83

Clinton’s home such that a search warrant could be issued, given the testimony 

that her old devices had been destroyed before she transitioned to new devices. He 

further stated that his frustration was with Clinton and her attorneys, not the 

prosecutors.

We questioned whether the use of a subpoena or search warrant might have 

encouraged Clinton, her lawyers, Combetta, or others to search harder for the 

missing devices, or ensured that they were being honest that they could not find 

them. Prosecutor 2 told us that the prosecutors believed that Clinton’s attorneys 

were dealing with them “in good faith” and had “no reason to think that they were 

lying” about their inability to find Clinton’s mobile devices. Prosecutor 2 further 

stated that the team did not believe that Combetta still had the Archive Laptop in 

his possession, because “there would have been no reason for him to keep it.” 

Similarly, the Lead Analyst told us that he did not know of any evidence to suggest

that Clinton’s attorneys were being dishonest about the evidence they could not 

locate, and compulsory process would not have made a difference in situations 

where Clinton’s attorneys represented that they could not find a device.

Agents 1 and 2 told us that there were six laptops that Clinton’s attorneys 

had provided the FBI early in the investigation with consent to store, but not 

search, and that they would have liked to search these laptops. Agent 2 stated that 

he believed that these laptops may have been used to review Clinton’s emails 

before Clinton’s attorneys produced her work-related emails to the State 

Department. Agent 1 told us that he believed these laptops were used by Clinton’s 

Williams and Connolly attorneys to do the “QC of the 30,000 emails after they were 

culled by Mills and Samuelson.”

Our review of the relevant FD-302s and other documents revealed the 

following regarding the six laptops: On August 6, 2015, Katherine Turner, one of 

Clinton’s attorneys, voluntarily produced to the FBI three thumb drives and a laptop 

computer belonging to Williams and Connolly that contained identical copies of the 

30,490 emails Clinton’s attorneys had produced to the State Department, and 

signed a consent form for the FBI to search these devices. In addition, Turner told 

the two FBI agents that Williams and Connolly had six additional laptops containing

identical copies of the 30,490 emails, but that these laptops also contained 

unrelated privileged information. Turner agreed to voluntarily produce the 

additional six laptops to the FBI so that the FBI could secure the classified 

information contained on them, but declined to provide consent to search the 

laptops because she “wished to ensure that privileged communications on the 

laptops would remain confidential.” According to a FD-302 dated August 17, 2015, 

Turner told the FBI that one of the six laptops was in the custody of Mills’s and 

Samuelson’s attorneys at Paul, Weiss, Rifkind, Wharton, and Garrison, LLP (“Paul 

Weiss”). On August 21, 2015, FBI Attorney 1 wrote in a letter to Turner and a Paul 

Weiss attorney:

It is the FBI’s understanding that the six laptop computers may 

contain privileged materials. Therefore, the FBI will maintain the six 

laptop computers in a secure location separate from other materials

that have been provided voluntarily to the FBI in conjunction with this 
84

matter. The FBI will not access any material or information on the six 

laptops without further consultation with you or obtaining appropriate 

legal process.

Upon completion of this matter, the FBI will notify all parties and 

discuss the appropriate disposition of the material in a manner 

consistent with applicable laws and policies.

Although the Midyear team left open the possibility of obtaining process to 

search the six laptops, the team ultimately never sought a search warrant. 

Prosecutor 2 explained that the Midyear team originally believed that the six 

laptops included the laptops that Mills and Samuelson used to cull Clinton’s emails.

However, during a proffer session on March 19, 2016, Beth Wilkinson (attorney for 

Mills and Samuelson) told the prosecutors that the six laptops Clinton’s attorneys

had produced to the FBI did not include the culling laptops and, in fact, the culling 

laptops were still in Mills’s and Samuelson’s possession. Prosecutor 2 told us that, 

following the proffer, Mills and Samuelson turned the actual culling laptops over to 

Wilkinson, who agreed to disconnect the laptops from the Internet and place them 

in a safe in her office, until privilege issues could be resolved. As described in

Section VIII.D of this chapter, the Midyear team ultimately received consent to 

search the culling laptops through an agreement with Wilkinson. Agent 2 told us 

that, despite his desire to search the content of the six laptops, the FBI might not 

have had sufficient probable cause to assert that the laptops contained emails that 

the FBI did not already have in its possession. He further told us that it was 

“completely logical” that Clinton’s attorneys would not consent to the FBI’s review 

of the laptops given that the laptops contained privileged information related to the 

attorneys’ representation of other clients. FBI Attorney 1 told us that she believed, 

based on the representations of Clinton’s counsel, that the six laptops never 

contained the full 62,320 emails and that they only contained copies of the 30,490 

emails that had been produced to the State Department. She stated that, as a 

result, she did not believe that it was necessary to review the six laptops, especially 

given the privilege concerns.

There were points in the investigation when the debate about the use of 

consent versus compulsory process was particularly pronounced. Based on the 

evidence we reviewed, in or about March 2016, Page asked Strzok, on behalf of 

McCabe, to create a list of tasks that the Department had either refused to 

undertake or “asked to let them negotiate with counsel,” even if the FBI ultimately 

agreed with the outcome. Page told us that McCabe suggested the list after she 

told him that Strzok and FBI Attorney 1 were “increasingly growing concerned 

about...the little things that are being left on the cutting room floor and...the 

deference to” the line prosecutors on how best to obtain evidence. On March 24, 

2016, Strzok wrote to FBI Attorney 1 and the Lead Analyst describing the proposed 

list.

71

 In the email, Strzok provided a rough list of the items he was considering 

 

71

 In the March 24, 2016 email, Strzok stated that he had asked the SSA to work on the list. 

Strzok blind-copied Page on this email, who responded to Strzok later that day to explain that McCabe 

wanted the list to be “done quietly” and Strzok should tell the SSA to “stand down and just say you’ll 

handle it.” Page told us that McCabe wanted the list done quietly because it would not be “well-
85

including and wrote, “Problem is it’s been death by a thousand cuts.”

72

 Strzok told 

us that at the time he wrote this email, he was “aggravated by the limitations” that 

the prosecutors were placing on the FBI’s ability to obtain evidence and felt that “if 

you add up this delta over a bunch of decisions, all of a sudden it becomes 

substantive.” Strzok and Page told us that they did not believe a list was ever 

finalized.

Despite this debate, the agents, analysts, prosecutors, and supervisors on 

the Midyear team generally told us that, aside from devices that had been 

destroyed or that could not be located, they ultimately obtained and reviewed all of 

the devices necessary to complete the investigation. For example, Strzok stated 

that once he was able to “step back towards the end of the investigation,” he 

realized that “maybe we gave a little where we didn’t need to give, and maybe we 

actually got lucky here. But is there anything that we ultimately are missing to 

make kind of an authoritative, accurate conclusion? No.” McCabe stated that the 

team “drew some red lines around things that we absolutely insisted we had to do,” 

such as obtaining the laptops Mills and Samuelson used to cull Clinton’s emails, and 

that those items ultimately were attained. The SSA, who was described to us by 

several witnesses as an experienced and aggressive agent, stated that he “had a lot 

of hoops to jump through at times,” but “no matter what the obstacles were, we 

moved through them.” Similarly, Anderson told us, “At various points...as the 

investigation progressed...we were very anxious to...seek aggressively different 

materials.... [B]ut at the end of the day, I do believe everybody felt that we had 

obtained everything that we needed to obtain in order to assess criminality.”

B. Limits of Consent Agreements

The SSA told us that the terms of the consent agreements were primarily 

created through negotiations between the two line NSD prosecutors, on one side, 

and the attorneys for Clinton and other witnesses, on the other. For the most part, 

the consent agreements were limited such that the FBI was able to search only for 

emails sent or received by Clinton during her tenure as Secretary of State and for 

evidence of intrusion. These were generally the same limitations that were 

included in the subpoenas, search warrants, and 2703(d) orders obtained during 

the course of the investigation.

 

received” by the Department. Strzok stated that his understanding was that McCabe wanted to 

discuss the items in the list with Toscas during a “sidebar,” rather than in a “big, official meeting.”

72 The items in the rough list were:

1) getting process .. at the beginning (the fight about opening a case, about assigning a field 

office and a usao for process)

2) a) media (consent vs SWs for all the servers and devices and games opposing counsel 

played), There is a ton here, from everything we have vs the stuff we didnt get ~ eg, apple 

server at Chappaqua, computer at Whitehaven, plethora of ipads, lack of blackberries, b) 

scoping and negotiating of what we've been able to search for

3) email accounts (thinking Mills Gmail account)

4) interviews (v FGJ compellence) and scoping of interviews. - I think that largely applies to 

PRN and the big four+Samuelson, right? Anyone else?
86

An FBI analyst told us that limiting the search time period to Clinton’s tenure 

as Secretary was not controversial. The analyst explained, “[T]he reason it was 

scoped to the tenure is because...that is of course when she would have had access 

to the classified information.” We questioned both Department and FBI witnesses 

as to whether emails from after Clinton’s tenure could have shed light on whether 

Clinton instructed her staff to delete emails for an improper purpose. They told us 

that any relevant emails following Clinton’s tenure mostly would consist of 

communications with her attorneys regarding the sort process, and such 

communications would be protected by attorney-client privilege.

The consent agreements and search warrants also were limited such that the 

FBI could not search emails sent or received by other accountholders on Clinton’s 

servers—such as Abedin and former President Clinton and his staff—unless Clinton 

was also a party to those emails. One analyst told us that he would have liked to 

be able to look at emails to which Clinton was not a party. For example, he told us 

that he would have liked to review emails between Abedin and Cooper regarding 

what Clinton may have said about the server. We questioned the prosecutors as to 

why the consent agreements were not scoped such that they could search for any 

work-related or classified emails within Abedin’s clintonemail.com account, 

especially since FBI witnesses told us that Clinton’s server, not Clinton herself, was 

the subject of the investigation. This is addressed in Section V.D of this chapter 

below.

The consent agreements and search warrants incorporated provisions 

requiring the use of a filter team to ensure that the Midyear team did not review 

emails protected by privileges, including attorney-client, medical, and marital 

privileges. One analyst told us that the filter process was cumbersome and that 

some interpretations of the privileges were unusual. For example, because former 

President Clinton did not use email, one of his employees received former President

Clinton’s emails and then printed them for him. The privilege team considered the 

emails that Clinton sent to her husband through this employee as privileged, 

although this may not have been legally required. The Lead Analyst told us that he,

too, was often frustrated by the cumbersome filter process. However, he stated 

that he agreed with the team’s “conservative” approach to interpreting what was 

privileged, because it was important for the FBI to handle its mission and the 

materials in its possession “responsibly” and to not unnecessarily be looking “into 

the lives of the Clintons.”

There were at least two consent agreements that did not incorporate the use 

of a filter team, but instead allowed the attorney for the owner of the devices to 

delete personal information before voluntary production to the FBI. These were the 

consent agreements that the Department negotiated with Justin Cooper’s attorney

to obtain Cooper’s personal laptops that the team hoped contained, among other 

things, back-ups from the BlackBerry devices Clinton used during the first two 

months of her tenure.

73 According to the FD-302 from Cooper’s September 2, 2015 

 

73

 As noted in footnote 64 of this report, the 30,490 emails provided by Clinton’s attorneys to 

the State Department contained no emails sent or received by Clinton during the first two months of 
87

interview, Cooper’s attorney told the FBI that Cooper’s laptops contained “files 

related to the upgrade of former Secretary of State Hillary Clinton’s Blackberry,” as 

well as emails Cooper exchanged with Clinton. In a letter dated September 10, 

2015, Cooper’s attorney wrote to Prosecutor 1, “As we discussed and as the 

government has agreed, before providing Mr. Cooper’s computer hardware to the 

FBI, we will remove and securely delete Mr. Cooper’s personal and business files.”

In a letter dated September 24, 2015, Cooper’s attorney wrote to Prosecutor 1 that 

he was voluntarily providing the FBI Cooper’s Mac Book Air laptop computer and 

further wrote, “[a]s agreed, we have securely deleted from the Mac Book Air Mr. 

Cooper’s personal and business files, and we have overwritten its unallocated space 

with zeros.”

We asked some FBI and Department witnesses why they did not use a filter 

team instead of allowing Cooper to delete his personal files. FBI witnesses told us

that they were not concerned by the limitations in the consent agreements for the 

Cooper laptops, because Cooper was particularly cooperative and the materials he 

voluntarily provided to the FBI turned out to be fruitful.74 Indeed, according to the 

FD-302 from Cooper’s interview, Cooper’s attorney told the FBI about the back-ups 

on Cooper’s laptop without prompting. In addition, FBI Attorney 1 and Agent 1 told 

us that they considered Cooper’s devices to be different from other devices they 

reviewed, because there was no evidence that Cooper was the sender or recipient 

of classified information and Cooper was more of an aide to former President 

Clinton than to former Secretary Clinton. Strzok told us that the team was not 

certain that it could establish probable cause that there was classified information 

or other evidence of a crime on the Cooper laptops.

Some FBI witnesses told us, consistent with text message exchanges 

between Strzok and Page, that the FBI was concerned that the line NSD 

prosecutors were intimidated by the high-powered attorneys representing Clinton 

and her senior aides and, as a result, did not negotiate aggressively with them. 

Strzok told us that Prosecutor 1, who handled most of the negotiations with 

counsel, is “extraordinarily competent,” but he believed more senior government 

officials should have been involved with deciding “how hard [to] push counsel.” 

Nevertheless, the FBI witnesses generally told us that they were satisfied that the 

limitations of the consent agreements did not impair the investigation. Agent 2

stated regarding the limitations in consent agreements, “I think generally...we were 

able to get what we were looking for. It maybe was more complicated, timeconsuming, and cumbersome.” The Lead Analyst told us that “every single consent 

arrangement constrained what we did...to some degree.” However, he, Strzok, and 

FBI Attorney 1 all told us that they believed the team might have actually obtained 

 

her tenure, and Midyear officials believed these missing emails could contain important evidence 

regarding Clinton’s intent in setting up a private email server. 

74

 For example, one analyst told us that within the Blackberry back-ups on the Cooper laptop, 

the FBI team found an email from former Secretary of State Colin Powell to Clinton on January 23, 

2009, in which Powell warned Clinton that if it became “public” that she used a Blackberry to “do 

business,” her emails could become “official record[s] and subject to the law.” In the email, Powell 

further warned Clinton, “Be very careful. I got around it all by not saying much and not using systems 

that captured the data.”
88

more through the consent agreements in some instances than they would have 

obtained through compulsory process. Strzok explained that for some devices they 

were not certain that the team could establish sufficient probable cause to convince 

a judge to issue a search warrant or allow a search that was as broad as what was

agreed upon through a consent agreement. He provided as an example the Cooper 

laptops described above. Similarly, Prosecutor 2 told us that the Midyear team was

able to search certain items through consent agreements, despite privilege issues 

that may have caused a subpoena or search warrant to be quashed.

In addition, based on our review, we determined that Department and FBI 

members of the Midyear team worked together to determine the scope of the 

review of the evidence and, in turn, the limitations to be included in consent 

agreements and search warrants. For example, in a September 23, 2015 email

exchange among a WFO Computer Analysis and Recovery Team forensic examiner

(“CART Examiner”), Strzok, the Lead Analyst, the four line prosecutors, three FBI 

OGC attorneys, and two case agents, Prosecutor 2 wrote that she assumed the 

consent agreement for the PRN server would be scoped such that the FBI would not 

review the content of any emails in domains other than the clintonemail.com 

domain. Strzok wrote back with a more expansive approach than that suggested 

by Prosecutor 2: “I think we would ask to search the other domains for any emails 

to/from the @clintonemail.com domain in the event those emails were deleted from 

whichever clintonemail.com account and no longer available there.” The final 

consent agreement followed Strzok’s more expansive approach, allowing the FBI to 

search the entire server, including the unallocated space and domains other than 

the clintonemail.com domain, for any emails to or from Clinton.

None of the witnesses we interviewed could point to specific examples of 

anyone involved in the investigation allowing political or other improper 

considerations to impact the decisions on how best to obtain evidence.

V. Efforts to Obtain Email Content from the Private Accounts of Clinton’s 

Senior Aides

In this section, we address the Midyear team’s efforts to obtain email content 

from the accounts of the three senior aides that had the most email communication 

with Clinton—Jake Sullivan, Cheryl Mills, and Huma Abedin. Sullivan was Clinton’s 

Deputy Chief of Staff for Policy from January 2009 to February 2011 and Director of 

Policy and Planning at the State Department from February 2011 to January 2013;

Mills served as, among other things, Clinton’s Chief of Staff during Clinton’s tenure 

as Secretary; and Abedin served as Clinton’s Deputy Chief of Staff during Clinton’s 

tenure. According to the LHM, the FBI discovered through its review of emails from 

various sources that only 13 individuals had direct email contact with Clinton, and 

that Sullivan, Abedin, and Mills “accounted for 68 percent of the emails sent directly 
89

to Clinton.”75 State Department employees told the FBI that they considered 

emailing Sullivan, Mills, or Abedin the equivalent of emailing Clinton directly.

In addition to examining emails to or from these senior aides within the 

original 30,490 emails produced to the State Department, the investigators 

obtained emails from the State Department for each of their official State classified 

and unclassified email accounts. Based on a review of these emails and other 

evidence, the investigators determined that, in addition to their official State email

accounts, Sullivan and Mills used personal Gmail accounts and Abedin used a 

personal Yahoo! account and her clintonemail.com account to conduct government 

business. Sullivan, Mills, and Abedin told the FBI that they used their private email

accounts for official business occasionally, including on occasions when the official 

State email system was not functioning properly. Sullivan stated that he had the 

most difficulty using the official State system when he was traveling and on the 

weekends.

The investigators further determined that all three of these senior aides 

either sent or received classified information on their private email accounts and 

forwarded emails containing classified information to Clinton, although none of the 

emails the FBI discovered contained classification markings. The three aides 

provided the following explanations to the FBI for their conduct: they did not 

believe the information contained in their emails was classified; they tried to talk 

around classified information in situations where there was an urgent need to 

convey information and they did not have access to classified systems; some of the 

information they were discussing had already appeared in news reports; and they 

relied on the originators of the emails to properly mark them. These explanations 

were consistent with those provided to the FBI by both the originators of the emails 

containing classified information and Clinton. Based in part on these explanations, 

the prosecutors determined that no one “within the scope of the investigation,” 

including the three senior aides, “committed any criminal offenses.”

Nonetheless, the investigators considered obtaining additional information 

from or about the private email accounts of all three senior aides. Emails sent to or 

from the private email accounts were potentially relevant to: (1) further 

reconstructing the full collection of work-related emails and emails containing 

classified information that were sent to or from Clinton’s servers; (2) finding 

additional emails containing classified information that were transmitted and stored 

on unclassified systems other than the Clinton’s servers; (3) finding evidence of 

knowledge or intent on the part of Clinton, the senior aides, and possibly others 

regarding the transmission or storage of classified information on unclassified 

 

75

 FBI analysts and Prosecutor 2 told us that former President Barack Obama was one of the 

13 individuals with whom Clinton had direct contact using her clintonemail.com account. Obama, like 

other high level government officials, used a pseudonym for his username on his official government 

email account. The analysts told us that they questioned whether Obama’s email address (combined 

with salutations that revealed that the emails were being exchanged with Obama) or other information 

contained in the emails were classified and, thus, sent the emails to relevant USIC agencies for 

classification review. However, they stated that the USIC agencies determined that none of the emails 

contained classified information.
90

systems; (4) controlling the spill of classified information in unauthorized locations; 

and (5) assessing whether there had been a compromise of classified information 

by hostile actors through intrusion analysis.

The Midyear team obtained 2703(d) orders for noncontent information in 

Mills’s Gmail account and Abedin’s Yahoo! account and a search warrant for 

Sullivan’s personal Gmail account. However, the Midyear team did not obtain 

search warrants to examine the content of emails in Mills’s or Abedin’s private email

accounts and did not seek to obtain any of the senior aides’ personal devices.76

A. Section 2703(d) Orders for Non-Content Information for Mills’s 

and Abedin’s Private Email Accounts

On February 18, 2016, the FBI obtained a 2703(d) order for Abedin’s 

personal Yahoo! account. According to the government’s application for the 

2703(d) order, the FBI discovered that on October 4, 2009, an email attaching a 

Word document without classification markings was forwarded from Abedin’s 

unclassified State Department email account to her Yahoo! account. The 

application stated that the next day, “the text from this Word document, with slight 

edits and reformatted to State Department letterhead, was sent from a State 

Department employee on SIPRNet, a classified email system, to Cheryl Mills” with a 

classification marking of SECRET//NOFORN. As a basis for the 2703(d) order, the 

application stated that a review of the 2703(d) returns would “help the FBI 

determine if the aforementioned email, containing a classified Word document, still 

resides within the Subject Account maintained by Huma Abedin and whether there 

are other records connecting email accounts associated with the improper 

transmission and storage of classified information.”

Similarly, on May 31, 2016, the FBI sought and obtained a 2703(d) order for 

Mills’s personal Gmail account. According to the government’s application for the 

2703(d) order, the FBI discovered that Mills sent or received at least 911 workrelated emails to or from her Gmail account during the time she was employed at 

the State Department. The application stated that the FBI identified seven emails 

containing confirmed classified information and an additional 208 emails containing 

suspected classified information that had not yet undergone formal classification 

review. The application provided as an example one email that was determined to 

be classified at the level of SECRET//NOFORN at the time the email was sent. None 

of the emails contained classification markings.

We were told by an analyst who focused on handling legal process, and the 

notes of Strzok and the Lead Analyst from late May and early June 2016 confirmed, 

that the returns from the 2703(d) orders for Mills’s and Abedin’s accounts revealed 

that neither the confirmed classified emails nor any emails to or from Clinton 

continued to reside in Mills’s or Abedin’s personal accounts as of the date Google 

and Yahoo! searched their servers. According to Strzok’s and the Lead Analyst’s 

 

76

 The senior aides’ personal devices were potential sources of work-related emails or 

remnants of work-related emails that the senior aides had deleted and were not preserved on the 

commercial providers’ servers.
91

notes, Abedin’s email account contained less than 100 emails from Clinton’s tenure 

as Secretary of State, while Mills’s account contained numerous emails from 

Clinton’s tenure as Secretary of State. Prosecutor 2 and one FBI analyst told us 

that these results provided no basis to conclude that Mills or Abedin had deleted 

emails to or from Clinton for an improper purpose, because there are various 

factors that could contribute to the preservation of emails in a personal email 

account.77

B. Decisions Regarding Search Warrants for Private Email

Accounts

The Midyear team obtained a search warrant for Sullivan’s Gmail account, on 

September 17, 2015. According to the search warrant, in reviewing the 30,490 

emails provided by Clinton’s attorneys to the State Department, the FBI found 

Sullivan’s electronic business card, which identified him as an employee of the State 

Department and listed his private Gmail address. The search warrant stated that 

the FBI also had identified, among the 30,490 emails produced to the State 

Department, an unmarked email determined to contain information classified at the 

TOP SECRET level at the time it was forwarded by another State Department 

employee to Sullivan’s Gmail account. The search warrant further stated that the 

FBI had identified an additional 496 emails from Sullivan’s personal Gmail account 

that it suspected contained classified information, but had not yet submitted for

formal classification review. One analyst told us that unlike the emails found on 

Clinton’s servers, which often were derived from the unallocated space, emails from 

Sullivan’s Gmail account were helpful because they clearly revealed important 

metadata, such as senders, recipients, and dates.

Given the significant roles of Mills and Abedin, and the usefulness of the 

material from Sullivan’s personal account, we asked why the investigators did not 

seek search warrants for the private accounts of Mills or Abedin. We learned that 

the SSA initially drafted a search warrant affidavit for Mills’s personal Gmail 

account, but it was never filed. In an email to FBI Attorney 1 and the Lead Analyst 

dated March 25, 2016, Strzok listed “email accounts (thinking Mills Gmail account)” 

as an item that the FBI unsuccessfully sought from the prosecutors. Strzok, the 

SSA, and Agent 3 told us that Strzok advocated in favor of applying for the search 

warrant, but that the prosecutors rejected the affidavit in favor of a 2703(d) order, 

based on insufficient probable cause and privilege concerns. The SSA stated that 

he disagreed with the prosecutors’ position that there was insufficient probable 

cause for a search warrant, because there was evidence that Mills’s Gmail account 

was used for official business and contained classified information.

Nevertheless, Prosecutor 2 told us that the FBI never made a follow-up 

request for a search warrant after receiving the 2703(d) returns. As discussed 

above, according to Strzok’s and the Lead Analyst’s notes and other evidence, the 

Midyear team received the 2703(d) returns in late May and early June 2016 and 

 

77

 According to records we reviewed, the Midyear team also served preservation orders on 

Google and Yahoo! in relation to Mills’s and Abedin’s personal email accounts.
92

learned that neither the classified emails nor any emails to or from Clinton 

continued to reside in either account. Prosecutors 1 and 2 told us that, based on 

the facts developed at that point, there was likely no probable cause to seek a 

search warrant. Strzok stated about the proposed search warrant for Mills’s Gmail 

account, “I remember we did not get it, and my general recollection is, if we 

thought it was important, and...we could have gotten probable cause, we would 

have done it. I think we just couldn’t establish PC [probable cause].”

Some FBI witnesses told us that there were reasons to promptly seek a 

search warrant for Sullivan’s Gmail account, instead of beginning with a 2703(d) 

order like they did with the private email accounts belonging to Mills and Abedin. 

They stated that unlike Sullivan, Mills and Abedin had not, based on the evidence 

they had reviewed, sent or received TS-SAP emails on their personal accounts, and 

these were the most sensitive emails discovered during the investigation. One 

analyst stated that Clinton’s email exchanges with Sullivan were more substantive 

than her email exchanges with both Abedin and Mills. In addition, witnesses told 

us, consistent with the FD-302s we reviewed, that Sullivan was a more regular user 

of personal email for conducting State business, in part because he traveled 

overseas more often than the others.

Prosecutor 2 told us that Sullivan was treated differently from Mills and 

Abedin, because the information contained in the Top Secret email sent to Sullivan 

more clearly constituted classified information and NDI (“national defense 

information”) than the information contained in the emails sent or received by Mills 

and Abedin.78 Prosecutor 2 stated, “[T]here was a fundamental difference in the 

nature of information that we knew was in Jake Sullivan’s account, versus the 

information that was in Abedin’s account and Mills’s accounts.” In addition, 

Prosecutor 2 told us that the prosecutors would have had to obtain Criminal 

Division approval to obtain a search warrant for Mills’s Gmail account, given that 

she was an attorney. Prosecutor 2 told us that, while they would have sought the 

approval if they believed it was “appropriate,” this was among the factors they 

considered in “deciding what process to use.”

C. Access to Personal Devices for Clinton’s Senior Aides

Another potential means to obtain emails to or from the private accounts of 

Clinton’s senior aides would be to obtain access to their personal devices, such as 

laptops or cellular telephones, on which copies of such emails might reside. Such 

access could possibly have been obtained by consent or via search warrant.79 As 

 

78

 As described in Chapter Two, 18 U.S.C. §§ 793(d), 793(e), and 793(f) require the 

information that is alleged to be mishandled to be “information relating to the national defense.” This 

is also referred to as “national defense information” or NDI, and is not synonymous with classified 

information.

79

 As noted previously, while the government could also have issued a subpoena for any 

laptops or cellular telephones, it would not have been able to search the electronic communications 

within such a device without a search warrant. See, e.g., Trulock v. Freeh, 275 F.3d 391, 403 (4th 

Cir. 2001).
93

described in Section VIII.D of this chapter, the Midyear team obtained, through 

consent agreements with Beth Wilkinson, the laptops that Mills and Samuelson used 

to cull Clinton’s emails for production of her work-related emails to the State 

Department. However, the investigators did not seek access to the private devices 

used by Sullivan, Mills, or Abedin during Clinton’s tenure at State.80

Witnesses told us that the team’s focus was on Clinton and obtaining her 

devices, such as her servers, computers, and hand-held devices. Prosecutor 2 

stated, “[T]he scope of the investigation really related to the email systems used by 

Secretary Clinton, and whether on her private email server there are individuals 

who improperly retained or transmitted classified information.” According to one 

analyst, there were generally two types of devices that the team sought: devices 

that Clinton used and devices to which her emails were transferred.

We asked several witnesses why they did not obtain devices used by 

Sullivan, Mills, and Abedin, both as a means of searching for evidence of the 

mishandling of classified information by Clinton and her aides and to prevent a 

further compromise of classified information. Both Strzok and Anderson told us 

that, at the outset of the investigation, former Deputy Director Giuliano generally 

advised the team that the purpose of the investigation was not to follow every 

potential lead of classified information. Strzok stated that Giuliano told the team, 

“[T]his is not going to become some octopus.... The focus of the investigation [is] 

the appearance of classified information on [Clinton’s] personal emails and that 

server during the time she was Secretary of State.” Strzok further stated that the 

FBI’s “purpose and mission” was not to pursue “spilled [classified] information to 

the ends of the earth” and that the task of cleaning up classified spills by State 

Department employees was referred back to the State Department. He told us that 

the FBI’s focus was whether there was a “violation of federal law.” Prosecutors 1 

and 2 similarly told us that the Department was not conducting a spill investigation, 

and that the State Department was the better entity for that role. Prosecutor 1

stated, “At a certain point, you have to decide what’s your criminal investigation, 

and what is like a spill investigation.... [W]e could spend like a decade tracking 

emails...wherever they went.” The SSA told us that the Midyear team engaged in 

several conversations with the State Department regarding the spill of classified 

information, and the State Department officials expressed concern about the 

problem and were receptive to resolving it. Generally the witnesses told us that 

they could not remember anyone within the team arguing that more should have 

been done to obtain the senior aides’ devices.

We specifically questioned why the team did not attempt to obtain any 

personal devices used by Huma Abedin, given the team’s finding that numerous 

 

80

 FBI Attorney 1 told us that she believed the personal laptop that Mills had used to cull 

Clinton’s emails was the same personal laptop she had used during her tenure at State. As described 

in Section VIII.D of this chapter, the FBI ultimately obtained Mills’s culling laptop and the laptop did 

contain some emails from Clinton’s State Department tenure. We were unable to determine whether 

this was in fact the personal device Mills used during her tenure at State and, if so, if she also used 

other personal devices.
94

work-related and classified email exchanges between Abedin and Clinton that the 

Midyear team found through various sources were absent from the 30,490 emails 

produced to the State Department by Clinton’s lawyers. Witnesses told us that 

they believed there was a flaw in the culling process, which resulted in the 

exclusion of most of Abedin’s clintonemail.com emails from the State Department 

production.

81 We also questioned (1) the failure to obtain Abedin’s devices despite 

that, according to Abedin’s FD-302, Abedin told the FBI that she turned both her 

personal laptop and her personal Blackberry over to her attorneys to be reviewed 

for production of work-related emails to the State Department; and (2) the 

inconsistency between the decision not to seek Abedin’s devices before the July 

declination and the decision to obtain a search warrant for email on the laptop 

belonging to her husband, Anthony Weiner, in October 2016.

In response to the OIG’s questions regarding the Midyear team’s decision not

to obtain the senior aides’ devices, Prosecutor 1 told us that he did not remember 

any “meaningful discussion” before October 2016 about obtaining the senior aides’

devices, aside from the laptops used by Mills and Samuelson to cull Clinton’s emails 

for production of her work-related emails to the State Department. The SSA told us 

that in the beginning of the investigation, the Midyear team wanted to obtain every 

device that touched the server, but that over time the team realized that this would 

not be “fruitful.” He stated that OTD personnel told the team that “it was not likely 

that there would be anything on the devices” themselves. Some FBI witnesses told 

us that they asked the senior aides during their Midyear interviews about any 

personal devices they used for State Department work, and the Midyear team relied 

on their responses to determine what devices to obtain. Agent 3 told us that the 

Midyear team asked Abedin whether she backed up her clintonemail.com emails 

and she responded that her email was “cloud-based” and she did not “know how to 

back up her archives.” He stated that based on this testimony, the team assessed 

that finding helpful evidence on Abedin’s devices was unlikely.

Both Strzok and Prosecutor 2 told us that the decision not to obtain the 

senior aides’ devices was a joint decision. Prosecutors 1 and 2 and Strzok further

told us that the team did not obtain Abedin’s personal laptop and Blackberry that 

she used during her employment at the State Department, even after she told the 

FBI that she gave those devices to her attorneys, because the State Department 

provided to the FBI Abedin’s work-related emails that her attorneys produced from

those devices. Strzok stated that Abedin’s attorneys told the Midyear team that 

they erred on the side of overproducing Abedin’s emails to the State Department 

and that, unlike the sort process for Clinton’s emails by Mills and Samuelson, there 

was no reason to believe Abedin’s attorneys’ sort process was flawed. Prosecutor 2 

 

81

 According to a report prepared by one analyst, the team had found through various sources 

1,716 work-related emails between Clinton’s and Abedin’s clintonemail.com accounts that had not 

been produced to the State Department by Clinton’s lawyers, and that 90 of these emails contained 

classified information. The analyst who prepared the report told us that only approximately 32 email 

exchanges between Abedin and Clinton were included in the production, which was surprising to the 

FBI given Abedin’s prominent role on Clinton’s staff. According to the written analysis he prepared, 

the problem was likely that Clinton’s attorneys only considered Clinton’s exchanges with Abedin’s 

clintonemail.com account to be work-related if they were also sent to a .gov account or contained a 

specific work-related key term.
95

told us, consistent with notes this prosecutor took at a meeting on October 27, 

2016, that the only reason the FBI later obtained the Weiner laptop was because “it 

had ended up in our laps.” We describe this issue further in Chapters Nine, Ten, 

and Eleven.

Several witnesses told us that tracking down Clinton’s devices alone was very 

challenging. They stated that the investigation would have taken years if the team

attempted to seek every possible device that might contain Clinton’s emails or 

classified material. For example, Prosecutor 2 stated:

I think the idea was that, that this investigation had to be somewhat 

focused, otherwise it could spin off into a million different directions. 

And this investigation could take different forms for years and years 

and years to come. So, you know, the, the focus of the investigation 

was, was really the private email system.

Agent 3 told us that the team focused on Clinton’s devices because they were the 

most likely to have the full tranche of missing emails from Clinton’s servers, 

whereas the devices of any one person would only have a “fraction” of them.

Midyear team members further told us that they placed limits on their 

investigation based on practical considerations, including what they observed to be 

systemic problems with handling classified information at the State Department.

They stated that they discovered persistent practices of State Department 

employees, including both political and career employees, discussing classified 

information on both unclassified government email accounts and personal email

accounts, and that this culture predated Clinton’s tenure as Secretary of State. In 

addition, FBI Attorney 1 told us that the emails containing classified information 

that were forwarded to Clinton often originally copied numerous State Department

and other government agency employees, some of whom could have forwarded 

them to other unclassified locations besides the chain that ultimately led to 

Clinton’s server. Witnesses told us that these factors made it impractical for them 

to search every email account or device that classified emails may have traversed.

D. Review of Abedin’s Emails on the Clinton Server

Abedin was the only State Department employee, besides Clinton, with an 

account on the clintonemail.com domain on Clinton’s server. Witnesses told us and 

documents we reviewed showed that the Midyear team did not review all of 

Abedin’s clintonemail.com emails on the server; rather, they limited their searches 

to her email exchanges with Clinton. We questioned why this limitation was put in 

place, given that the purpose of the investigation was to generally assess any 

mishandling of classified information in relation to Clinton’s server.82

 

82

 As we discuss in Chapter Eleven, in October 2016, when the Midyear team was drafting the 

search warrant affidavit for the Weiner laptop, Baker questioned why the team was not seeking to 

review all of Abedin’s emails on Weiner’s laptop. He wrote, “I’m still concerned we are viewing the PC 

too narrowly. There is PC to believe that Huma used her email accounts to mishandle classified 
96

Several witnesses told us that they did not seek to review all of Abedin’s 

emails because her role was administrative in nature. While witnesses told us that 

Abedin had possibly the most contact with Clinton and sometimes forwarded or 

printed substantive work-related emails to or for Clinton, she was never an 

originator of classified materials, she did not typically use classified systems, she 

did not receive or forward the particularly sensitive information, and she did not 

comment substantively on classified information that was contained in the emails 

she forwarded. Prosecutor 1 explained that the team was not “as concerned that 

[Abedin] was taking stuff off the classified systems and dumping it down.” These 

factors also contributed to the decision not to obtain a search warrant for content 

from Abedin’s Yahoo! account.

However, during a review of the Weiner laptop in October and November 

2016, the FBI discovered unmarked classified emails that Abedin had forwarded to 

Weiner. During an FBI interview on January 6, 2017, Abedin acknowledged that 

she “occasionally” forwarded work-related emails to her husband for printing.

E. Decision Not to Seek Access to Certain Highly Classified 

Information

As detailed in the classified appendix to this report, the OIG learned late in 

our review that the FBI considered seeking access to certain highly classified 

materials that may have included information potentially relevant to the Midyear 

investigation, but ultimately did not do so.83 In late May 2016, FBI Attorney 1 

drafted a memorandum stating that review of the classified materials was 

necessary to complete the Midyear investigation and requesting permission to 

review them.

The FBI never finalized the May 2016 memorandum or received access to 

these classified materials for purposes of the Midyear investigation.

84

 FBI witnesses 

told us that this was for various reasons, including that they believed that the 

classified materials were unlikely to include information from the beginning of 

former Secretary Clinton’s tenure, and thus would not have a material impact on 

the investigation. However, other FBI witnesses including Strzok, the Lead Analyst, 

and the SSA told us that reviewing the materials would have been a logical 

investigative step.

 

information. I just don’t understand why that us [sic] not enough to look at all her emails.” Baker 

told us that he believed the team had probable cause to look at all of Abedin’s clintonemail.com and 

Yahoo! emails, based on the evidence that classified information had traversed both private email 

accounts.

83

 The OIG also has not reviewed the highly classified information.

84 As we describe in the classified appendix, the FBI sent a memorandum to the Department 

on June 1, 2018, requesting permission to review these classified materials for foreign intelligence 

purposes unrelated to the Midyear investigation.
97

The classified appendix describes in more detail the highly classified 

information, its potential relevance to the Midyear investigation, and the FBI’s 

reasons for not seeking access to it.

VI. Voluntary Interviews

According to documents we reviewed, the Midyear team conducted 72 

witness interviews. The witnesses included individuals involved with setting up and 

administering Clinton’s private servers, State Department employees, and other 

individuals with suspected knowledge of Clinton’s email servers, the transmission of 

classified information on the servers, or her intent. Based on our review, we 

determined that all witnesses were interviewed voluntarily or pursuant to immunity 

agreements and, consistent with the FBI’s normal procedures, none of the 

witnesses were placed under oath or recorded.85 No witnesses testified before the 

grand jury.

The FBI and Department witnesses we interviewed told us that the Midyear

team, including agents, analysts, the SSA, Strzok, the Lead Analyst, and line 

prosecutors worked together to decide whom to interview and the sequencing of 

witness interviews, without seeking approval from higher level Department or FBI 

officials. Agent 1 stated that the initial strategizing on whom to interview generally 

occurred at the level of the SSA and below. The SSA and most of the case agents 

told us that they did not recall any significant disputes over whom to interview and 

that they were never told by higher level managers, including Strzok, or 

Department employees, including the prosecutors, not to interview particular 

witnesses that they believed were essential to the investigation. Similarly, the 

prosecutors told us that their chain of command did not seek to influence the 

team’s decisions on whom to interview. Toscas told us that the prosecutors made

him aware of upcoming important interviews and he briefed that information up the 

chain, but he and higher level Department officials were not involved in deciding 

whom to interview.

FBI witnesses told us that the agents and analysts worked together to 

determine what questions to ask to witnesses, and that the analysts prepared 

packets of documents to use as exhibits. The SSA and the case agents told us that 

their supervisors were involved in strategy sessions before interviews and in editing 

and suggesting potential questions, but did not dictate the process and never 

forbade them from asking particular questions. They also told us that for more 

significant witnesses, the line prosecutors reviewed their interview outlines and 

suggested eliminating questions based on privilege, relevance, or a scope that had 

been agreed upon with the witness’s counsel. The SSA stated that the prosecutors’

review of the questions did not cause “friction” and that the process was “fairly 

seamless.” The prosecutors told us that higher level Department officials were not 

involved in deciding what questions to ask witnesses.

 

85 See DIOG § 18.5.6 (recording of noncustodial interviews is optional; no requirement that 

witnesses be placed under oath during voluntary interviews). 
98

Witnesses told us and the FD-302s indicated that the case agents led the 

interviews, and prosecutors and supervisors only attended when witnesses were 

represented by counsel or particularly significant. According to documents we 

reviewed, Strzok attended the interviews of five key witnesses—Abedin, Mills, 

Samuelson, Sullivan, and Clinton. He stated that he only attended these interviews

because Laufman insisted on attending them, and he believed that as Laufman’s 

counterpart at the FBI he should attend them as well. Laufman told us that he 

attended the interviews that he believed were “potentially the most consequential,” 

because of the “enormous implications” and “potential consequences” of the 

Midyear investigation and to ensure that no one involved in the investigation went

“off in a direction that wasn’t consistent with a purely independent, investigative, 

impartial approach.” He further told us that he wanted to be involved in key 

interviews in order to make his own assessment of the witnesses’ credibility and 

gain a full picture of the investigation, so that he could make an informed judgment 

at the end of the investigation as to whether to accept the FBI’s and prosecutors’ 

recommendations. Prosecutor 1 told us that the Midyear agents were “very, very 

diligent and most of them were very good interpersonally,” and that the

prosecutors only interjected occasionally during interviews.

We were told that the decision to conduct voluntary interviews rather than 

subpoenaing witnesses before the grand jury was not controversial or unusual. FBI 

agents and prosecutors told us that their usual practice is to interview witnesses 

voluntarily and only resort to grand jury if witnesses are uncooperative or not 

credible. They further told us that the Midyear witnesses were mostly cooperative 

and credible and that using the grand jury would have been complicated given the 

sensitive, classified information involved. Prosecutors 1 and 2 and Agent 1 told us 

that not calling any witnesses before the grand jury was common in mishandling

investigations, because doing so would typically require grand jurors to learn about 

classified information. Before introducing classified information to the grand jury, 

prosecutors must obtain approval from the USIC agency that was responsible for 

classifying the information.86 Prosecutor 1 explained that although “[y]ou can put 

classified information in front of the grand jury[,] [y]ou really would like to avoid 

that because you're basically exposing people that aren't going to be cleared to the 

information.” Agent 1 stated that he had specialized in investigations concerning

the loss of classified information since approximately 2008 and during that time he 

had only been involved in one or two investigations where witnesses were 

subpoenaed to testify before the grand jury. Agent 4 told us that voluntary 

interviews are better than the grand jury for “rapport-building” and obtaining 

information.

Prosecutor 1 told us that the prosecutors were prepared to issue grand jury 

subpoenas for any witnesses that refused to voluntarily submit to interviews, for 

situations where they believed witnesses were untruthful, or for situations where 

witnesses provided statements that would be helpful in a later prosecution and the 

team wanted to “lock them in.” While all witnesses ultimately submitted to 

voluntary interviews, the team issued a grand jury subpoena for Paul Combetta. As 

 

86

 See USAM 9-90.230.
99

discussed in Section VII.B of this chapter, ultimately the Midyear team decided that 

it was unnecessary to question Combetta before the grand jury.

VII. Use Immunity Agreements

The Department entered into letter use or “Queen for a Day” immunity 

agreements with three witnesses in the Midyear investigation: Bryan Pagliano, Paul 

Combetta, and John Bentel. These immunity agreements and the specific reasons 

for them are described in Sections A through C below. The Department also 

entered into two act-of-production immunity agreements in relation to the personal 

laptops used by Cheryl Mills and Heather Samuelson to cull Clinton’s emails. These 

are discussed in Section VIII.D.3 of this Chapter. The Department did not enter 

into any transactional immunity agreements.

The prosecutors told us that, in deciding whether to grant use immunity to a 

witness, they considered whether the witness had criminal “exposure” (i.e., 

whether there were crimes for which the witness could be prosecuted), the 

witness’s degree of culpability, the value of the witness’s expected testimony,

whether there were other sources of the same information, and whether the grant 

of immunity would help or hinder the investigation. Numerous Department and FBI 

witnesses told us that they did not oppose the immunity agreements. Some 

witnesses stated that there was nothing unusual or troubling about the nature or 

quantity of immunity agreements used in the Midyear investigation, especially since 

so many witnesses were represented by counsel. Witnesses also told us that the 

immunity agreements were approved within the Department through the level of 

DAAG Toscas, and that higher level Department and FBI officials were not involved 

in negotiating or approving the immunity agreements. Yates told us that she was 

briefed about immunity agreements, but, since she was not made aware of any 

disagreements related to them, she did not consider overruling them. Lynch told 

us that she generally was not briefed or otherwise involved in immunity issues.87

A. Pagliano

As previously noted, Bryan Pagliano was an information technology specialist 

who worked on Hillary Clinton’s presidential campaign and later set up the Pagliano 

server, which was the second of the Clinton Servers. The Midyear team entered 

into two immunity agreements with Pagliano: a “Queen for a Day” use immunity 

agreement on December 22, 2015, and a letter use immunity agreement on 

December 28, 2015. Based on our review, the immunity was granted in response 

to a request by Pagliano’s counsel and resulted in at least two voluntary interviews 

that helped inform the FBI’s investigation.

Witnesses told us that Pagliano was a critical witness because he set up the 

server that Clinton used during her tenure. According to Prosecutor 2, Pagliano 

 

87

 As described in Chapter Four, Lynch told us that she received a memorandum regarding 

congressional immunity issues for Pagliano, but only because Senator Charles Grassley had requested 

a phone call with her regarding Pagliano.
100

was “uniquely positioned” to describe to the FBI the “setup” and “mechanics” of 

Clinton’s server, as well as to answer questions regarding possible cyber intrusion.

On August 10, 2015, Pagliano’s counsel emailed an FBI agent that he was “not 

prepared to have Mr. Pagliano participate in an interview with the FBI- particularly 

in the absence of any explanation as to the focus or scope of your prospective 

questions.” According to an August 27, 2015 email among the prosecutors, Strzok, 

the Lead Analyst, and the SSA, Pagliano’s attorney had spoken with Prosecutor 1 

and was “insistent on immunity for his client even though it was explained to him 

that Pagliano is a witness and not a target.” Prosecutor 3 wrote to the Midyear

team, in response to the request of Pagliano’s lawyer, “We’re probably going to see 

this a lot with any witness who is facing having to be interviewed or testify on the 

Hill. We should all sit down and prioritize witnesses to be interviewed and decide 

who it’s safe to immunize.”

According to documents we reviewed, on or about September 4, 2015, 

Pagliano’s attorneys told the Senate Judiciary Committee and the Senate 

Committee on Homeland Security and Governmental Affairs that he would exercise 

his Fifth Amendment rights in response to any questions by the Committees about 

his role in setting up Clinton’s private email server. The next day, the Washington 

Post reported that the Clintons personally paid Pagliano to support Clinton’s private 

email server while he was employed at the State Department.88 According to 

emails we reviewed, within days of these allegations the Midyear team took steps 

to obtain financial information related to Pagliano from several sources. In 

addition, the Midyear prosecutors contacted the Criminal Division’s Public Integrity 

Section (PIN) to consider whether Pagliano should be prosecuted under 18 U.S.C. § 

209 for receiving outside compensation for government work or for improperly 

failing to report outside income on financial disclosure paperwork. On or about 

September 9, 2015, Pagliano pleaded his Fifth Amendment right against selfincrimination in response to questions about the set-up of Clinton’s email server 

before the House Benghazi Committee.

On December 11, 2015, Prosecutor 2 wrote an email to the other line 

prosecutors notifying them that PIN had declined charges against Pagliano. Then

PIN Chief Ray Hulser told us that PIN declined charges because the PIN prosecutors 

determined that (1) Pagliano’s outside compensation was for work for the Clintons 

(primarily former President Clinton), not for State Department work;89 and (2) 

Pagliano reported his compensation from the Clintons on federal financial disclosure 

reports before he was told by the State Department that this was not necessary. 

Hulser further told us that PIN’s decision to decline charges against Pagliano was 

 

88

 Rosalind S. Helderman and Carol D. Leonnig, Clintons Personally Paid State Department 

Staffer to Maintain Server, WASH. POST, Sept. 5, 2015.

89

 According to the FD-302 of Pagliano’s subsequent interview pursuant to the immunity 

agreement, Pagliano told the FBI that at the time he built the Pagliano server he did not know Clinton 

would be Secretary of State or would have an account on the server. Rather, he told the FBI that he 

“believed the email server he was building would be used for private email exchange with Bill Clinton 

aides.”
101

not influenced by the Midyear team’s desire to interview Pagliano and that PIN was 

never pressured by anyone within the FBI or the Department to decline charges.

Prosecutor 1 told us that around the same time as PIN’s declination, the 

team received a proffer from Pagliano’s attorney, through which the team

confirmed that Pagliano had important information to provide. Thus, on December 

22, 2015, the Department entered into a “Queen for a Day” proffer letter with 

Pagliano. The “Queen for a Day” letter provided that Pagliano would “answer all 

questions completely and truthfully, and...provide all information, documents, and 

records” within his custody or control, related to the substance of his interview. In 

exchange, the Department agreed that any statements made during his proffer 

would not be admitted during the government’s case-in-chief or at sentencing 

during any future prosecution of Pagliano. The Department would, though, be able 

to “make derivative use of, and pursue any leads suggested by” Pagliano; use his 

statements for appropriate cross examination and rebuttal; and prosecute Pagliano 

for statements or information that were “false, misleading, or designed to obstruct 

justice.” The prosecutors told us that they wanted to ensure that Pagliano was a 

credible witness and that his statements would be consistent with his attorney’s

proffer before offering him the broader letter use immunity.

Two FBI case agents interviewed Pagliano for the proffer on December 22, 

2015, in the presence of all four prosecutors, the CART examiner, and Pagliano’s 

attorneys. Among other things, Pagliano described the set-up of the Pagliano 

server and related equipment, as well as the transition to the PRN server, to help 

inform later OTD analysis of those devices. In addition, Pagliano told the FBI about 

a late 2009 or early 2010 conversation with Mills in which he conveyed a concern 

raised by a State Department Information Technology Specialist that Clinton’s use 

of a private email server could violate federal records retention laws. Pagliano told 

the FBI that Mills responded that former Secretaries of State, including Colin Powell,

had done the same thing. The FBI relied on this testimony in subsequent 

interviews, including a later interview of Mills.90

The prosecutors and Agent 1 told us that they met afterwards and everyone 

agreed that Pagliano was credible and helpful. Prosecutor 1 told us that “everyone 

assessed that [Pagliano] was scared but truthful,” and that Pagliano might have 

been even more nervous and less forthcoming had he been required to testify in 

the grand jury, outside the presence of his attorney. They also agreed that there 

were some follow-up questions that would need to be asked. Thus, on December 

28, 2015, the Department offered Pagliano “use immunity coextensive with that 

granted under 18 U.S.C. § 6001” in exchange for future truthful court testimony, 

grand jury testimony, or voluntary interviews related to the Midyear matter, 

pursuant to a letter use immunity agreement. The letter provided that the 

government would not use any information directly or indirectly derived from 

Pagliano’s truthful statements or testimony against him in a future prosecution, 

 

90

 Mills told the FBI that she did not recall the conversation with Pagliano.
102

“except a prosecution for perjury, giving a false statement, or any other offense 

that may be prosecuted consistent with 18 U.S.C. § 6001.”

According to a FD-302 and contemporaneous agent notes, the Midyear team 

interviewed Pagliano again on June 21, 2016, and he answered questions to clarify 

answers provided during the proffer. For example, Pagliano told the FBI that he 

decided not to “implement Transport Layer Security (TLS) between the Clinton

email server and State server,” because at the time he “understood the Clinton

email server to be a personal email server and did not see a reason for encryption.” 

He also told the FBI about “failed log-in attempt[s]” on the Clinton email server in 

January 2011, which Pagliano described as a “brute force attack (BFA)” that was 

not “abnormal.” According to the LHM, “[T]he FBI’s review of available Internet 

Information Services (IIS) web logs showed scanning attempts from external IP 

addressees over the course of Pagliano’s administration of the server, though only

one appear[ed] to have resulted in a successful compromise of an email account on 

the server.” As described in Section I of this chapter, the one confirmed successful 

compromise was of an account belonging to one of President Clinton’s aides.

Both Department and FBI witnesses told us that no one opposed the decision 

to grant Pagliano immunity. The SSA told us that the FBI did not consider him a 

subject or someone they would prosecute in connection with Midyear, the FBI 

believed his testimony was very important, and providing immunity was an 

effective way to secure his testimony. Prosecutor 4 told us that the way Pagliano 

was handled was “standard operating procedure.” In addition, witnesses told us 

that Pagliano pleading the Fifth Amendment and refusing to testify before Congress 

gave the Department no choice but to offer Pagliano immunity.

B. Combetta

As previously noted, Paul Combetta was the employee of PRN who migrated 

the email accounts from the Pagliano server to the PRN server in 2013, transferred 

Clinton’s archived emails to the PRN server in 2014, and later wiped emails from 

the PRN server in March of 2015. The Department entered into a letter use 

immunity agreement with Combetta on May 3, 2016. Midyear team members told 

us that Combetta was an important witness for several reasons, including his 

involvement with the culling process and the deletion of emails and his interactions 

with several people that worked for Clinton. Several Midyear team members stated

that after conducting two voluntary interviews of Combetta, they believed that 

Combetta had not been forthcoming about, among other things, his role in deleting 

emails from the PRN server following the issuance of a Congressional preservation 

order. The witnesses further stated that Combetta’s truthful testimony was 

essential for assessing criminal intent for Clinton and other individuals, because he 

would be able to tell them whether Clinton’s attorneys—Mills, Samuelson, or 

Kendall—had instructed him to delete emails.

Combetta was first interviewed on September 17, 2015, by two case agents, 

in the presence of Prosecutor 2 and Combetta’s counsel. The interview was 

voluntary and there was no immunity agreement. According to the FD-302 and 

contemporaneous agent notes, Combetta provided information regarding the set-up 
103

of the PRN server, the roles of other PRN employees in the management of the PRN 

server, his role in transferring emails from the Archive Laptop to the PRN server, 

and his role in creating .pst files of Clinton’s archived emails to be transferred to 

the laptops used by Mills and Samuelson to cull Clinton’s emails (“culling laptops”). 

However, he denied that PRN “deleted or purged” Clinton’s emails from the PRN 

server or from back-ups of the server and stated that Clinton’s staff never 

requested that PRN do so.

On February 18, 2016, the same two agents interviewed Combetta again, 

this time in the presence of the CART examiner, the Forensics Agent, Prosecutor 2, 

and Combetta’s counsel. Once again, the interview was voluntary and there was no 

immunity agreement. According to the FD-302 and contemporaneous agent notes,

Combetta continued to deny deleting the HRC Archive Mailbox from the server and 

stated that “he believed the HRC Archive mailbox should still be on the Server in 

the possession of the FBI,” despite documentation showing that the mailbox was no 

longer on the server as of January 7, 2015. Combetta stated that only he and one 

other administrator had the ability to delete a mailbox from the server. When the 

agents showed him documentation indicating that an administrator had manually 

deleted backup files and used BleachBit on March 31, 2015, he stated that he did 

not recall deleting backup files, he did not recall anyone asking him to delete 

backup files, any PRN employee had the ability to delete backup files, he believed 

he used BleachBit “for the removal of .pst files related to the various exports of 

Clinton’s email” to Mills’s and Samuelson’s laptops, and he used BleachBit for this 

purpose “of his own accord based on his normal practices as an engineer.” He 

further stated that he did not recall a March 9, 2015 email in which Mills reminded 

him of his obligation to preserve emails pursuant to a preservation order. The FD302 and contemporaneous notes indicate that the agents attempted to ask 

Combetta about documents related to a conference call with Kendall and Mills on 

March 25, 2015, just before the deletions and use of BleachBit, but his attorney 

advised him not to answer based on the Fifth Amendment.

During the February 18, 2016 interview, the agents also showed Combetta 

an email dated December 11, 2014, in which he wrote to a PRN colleague, “I am 

stuck on the phone with CESC [Clinton’s staff] again.... Its [sic] all part of the 

Hilary [sic] coverup [sic] operation  I’ll have to tell you about it at the party.” 

Combetta told the agents that the reference to the “Hilary [sic] coverup [sic] 

operation” was “probably due to the recently requested change to a 60 day email 

retention policy and the comment was a joke.”91 Department and FBI witnesses 

told us that Combetta’s explanation for this email seemed credible to them, given 

 

91

 According to the FD-302, contemporaneous notes, and exhibits, the agents also asked 

Combetta about a July 24, 2014 email to Pagliano regarding using a “text expression editor.” 

Combetta told the agents that Mills was concerned that Clinton’s then current email address would be 

“disclosed publicly” when her archived emails were provided to the State IG, because “when a user 

changes his or her email address, Outlook updates the old email address with the new email address.” 

We found that this might explain later media reports that Combetta posted on Reddit on or about July 

24, 2014, “I may be facing a very interesting situation where I need to strip out a VIP’s (VERY VIP) 

email address from a bunch of archived email....” See, e.g., Caitlin Dewey, Hillary Clinton’s IT Guy 

Asked Reddit for Help Altering Emails, A Twitter Sleuth Claims, WASH. POST, Sept. 20, 2016.
104

his personality and the way the email was written, and they did not discuss 

interviewing Combetta’s colleague regarding the email.

The SSA told us that he believed Combetta should have been charged with 

false statements for lying multiple times; however, the SSA also stated that he was 

ultimately satisfied that Combetta’s later immunized testimony was truthful and 

that he was “fine” with the immunity agreement. Prosecutor 2, Agent 2, and the 

Forensics Agent indicated that, while they believed that Combetta had not been 

forthcoming during the first two interviews, they were not certain that they had 

sufficient evidence to charge him with obstruction or false statements. According to 

documents we reviewed, the forensic evidence showed that Clinton’s emails had 

been deleted and wiped from the server, but did not definitively link Combetta with 

those actions. Agent 2 explained that the team “felt pretty strongly that maybe he 

had deleted information off of Secretary Clinton’s server,” but that interpreting 

computer forensics and precisely what they mean can be “kind of messy.” 

Similarly, the Forensics Agent stated that, based on the forensic evidence alone, it 

was “very difficult” to be certain that Combetta conducted the deletions; however, 

based on the Midyear team’s assessments of the credibility of Combetta and the 

other administrator, the team was more “focused on” Combetta. Prosecutor 2 told 

us that using the forensic evidence in combination with witness testimony, the team 

“probably could have established” that Combetta conducted the deletions; however,

Prosecutor 2 stated that there was insufficient evidence, after the first two 

interviews, to prove that Combetta understood his obligation to preserve Clinton’s 

emails and deliberately violated the Congressional preservation order.

In addition, members of the Midyear team told us, consistent with their

contemporaneous emails, that they believed Combetta’s failure to be forthcoming 

during the first two interviews was largely due to a lack of sophistication and poor 

legal representation, rather than an intent to hide truth. For example, Prosecutor 2 

wrote in an email on March 29, 2016, to the other line prosecutors, “It’s really hard 

to tell whether Paul [Combetta] is trying to hide something, or we are simply 

experiencing the effects of really bad (no) attorney prep and/or an attorney that 

has counseled him to say ‘I don’t remember’ if he doesn’t have a specific 

recollection of taking a specific action on a specific date.” Prosecutor 2 expressed 

the same sentiments during OIG interviews. Agent 2 stated, “We just felt like we 

weren’t getting the whole story or maybe he was holding back a little.” Prosecutor 

1 stated, “[W]e didn't assess his exposure to be terribly significant.” However, 

Prosecutor 1 also stated:

There were certainly discussions about whether he had, had [18 U.S.C. 

§] 1001 exposure [for making false statements].... He was clearly not 

being forthright with us.... And I think, my, my guess is if we couldn't 

have gotten him to come in and, and he was messing around with us 

on the immunity, we probably would have had to charge him. But, I 

think we were more interested in understanding what had happened....

And the most expedient way to, to do that, I think we assessed, was 

just to, to immunize him and keep moving.
105

Both prosecutors and agents also told us that Combetta was not someone 

the government was interested in prosecuting given his role in the case. Agent 1

told us that the absence of evidence that Combetta knew anything about the 

content of the emails on Clinton’s server minimized the FBI’s interest in prosecuting 

him. Prosecutor 4 stated:

I was concerned that we would end up with obstruction cases against 

some poor schmuck on the down, that, that had a crappy attorney 

who didn’t really, you know, if I was his attorney, he wouldn’t have 

gone in and been, you know, hiding the ball in the first place. And so 

at the end of the day, I was like, look, let’s immunize him. We’ve got 

to get from Point A to Point B. Point B is to make a prosecution 

decision about Hillary Clinton and her senior staff well before the 

election if possible. And this guy with his dumb attorney doing some 

half-assed obstruction did not interest me. So I was totally in favor of 

giving him immunity.

Prosecutor 2 told us that Combetta’s counsel was “concerned” that the Midyear 

team would “want to charge somebody...to show we had done something” and “go 

after some low-level person like Combetta to make a point.” Prosecutor 2 stated, 

“that was never our intention” and “it was in our interest to...make him and his 

counsel feel comfortable enough that they were going to give us the facts that we 

needed to figure out what happened in this case.”

In the March 29, 2016 email exchange, the four line prosecutors weighed two 

approaches to dealing with Combetta: (1) offering letter use immunity and only 

issuing a grand jury subpoena if Combetta did not comply or was untruthful during 

an immunized interview; versus (2) issuing a grand jury subpoena first and 

withdrawing the subpoena if Combetta was cooperative and truthful during a 

voluntary, immunized interview the morning before a scheduled grand jury 

appearance. In support of the second approach, Prosecutor 4 sent an email stating 

that it was “common for witnesses to play games early in high profile investigations 

as they try to figure out the lay of the land” and noting that a grand jury subpoena 

was a “powerful” tool in this situation.

On April 8, 2016, the Department subpoenaed Combetta to appear before 

the grand jury on May 3, 2016. Along with the subpoena, Prosecutor 3 wrote an 

email to Combetta’s attorney that the FBI intended to “continue its interview of 

[Combetta] and go over any relevant documents with him” on May 3 and that “[i]n 

the event he needs to appear before the GJ, that would likely occur” the following 

morning. The prosecutors and agents explained to us that the plan was to 

interview Combetta on May 3, and place him in the grand jury on May 4 if they 

assessed that he was still uncooperative or untruthful.

On the evening of May 2, Prosecutor 3 wrote to the other prosecutors that 

that they would need to discuss whether to put Combetta in the grand jury on May 

4. He further wrote, “Regardless as to how he answers the questions, I could see 

the FBI advocating that we put him in the GJ.” Prosecutor 4 responded, “I would 
106

prefer that we not put him in the GJ without a clear articulable reason for doing so, 

but we can discuss.” Prosecutor 4 told the OIG:

Generally, I think people overestimate the value of the grand jury to 

get people that are lying to tell the truth. My experience, I’ve had the 

best luck with working with defense counsel or having very aggressive 

interviews with them personally, one-on-one, which I would typically 

not want to do in the grand jury. You know, if I’m going to beat 

somebody up to get them to tell the truth, I don’t want 23 grand 

jurors sitting around while I’m yelling at somebody.

The prosecutors told us that Combetta’s attorney had informed them in 

advance of the May 3 meeting that Combetta would plead the Fifth Amendment in 

the grand jury. They further told us they believed they had no real choice but to 

grant Combetta immunity.

92 They stated that they did not consider charging 

Combetta with a crime and then seeking his cooperation against other witnesses, 

because they did not believe he had significant criminal exposure. In addition, 

Prosecutor 1 explained that if the Department had dropped or lowered charges 

against Combetta in exchange for his cooperation, a defense attorney would have 

used the cooperation agreement to impeach Combetta’s credibility at a subsequent 

trial.

Accordingly, on May 3, 2016, the Department entered into a standard letter 

use immunity agreement with Combetta. The terms of this agreement were 

identical to the terms incorporated into the Pagliano letter use immunity 

agreement. Specifically, in exchange for Combetta providing truthful information 

during FBI interviews as well as truthful testimony during any grand jury or court 

appearances, the Department agreed that it would not use his statement or 

testimony, or any information derived from it, during a subsequent criminal 

prosecution, “except for a prosecution for perjury, giving a false statement, or any 

other offense that may be prosecuted consistent with 18 U.S.C. § 6002.”

93

 Both 

the prosecutors and the FBI agents involved with Combetta’s interview told us that 

the decision to grant Combetta use immunity was not controversial and that 

everyone agreed that it was the most effective way to obtain the information they 

needed from him.

During a speech at an FBI conference for Special Agents in Charge in October 

2016, Comey indicated that he agreed with the decision to enter into a use 

immunity agreement with Combetta in order to obtain potentially valuable 

information concerning any role that Clinton played in the deletion of emails from 

 

92

 The Midyear team did not first conduct a Queen for a Day proffer with Combetta, as they 

did with Pagliano. Prosecutors typically enter Queen for a Day immunity agreements before offering 

letter use immunity, because Queen for a Day agreements allow the government to assess the 

usefulness and reliability of the witness’s expected testimony before agreeing not to use leads 

obtained from the testimony to develop evidence against the witness.

93

 This language meant that Combetta could be prosecuted for lying during his May 3 

immunized interview. However, the government could not use Combetta’s statements on May 3 to 

prosecute him for lying in the past, including during the previous two Midyear interviews.
107

her server. Responding to the complaint that the Midyear team “handed out 

immunity like candy,” he stated:

I hope you also notice our subject here was Hillary Clinton. We wanted 

to see[,] this very aggressive investigative team wanted to see can we 

make a case on Hillary Clinton. To make that case they worked up 

from the bottom. The guy who set up her server, the guy who 

panicked and deleted emails, he is really not our interest. Out interest 

is trying to figure out did he give us anything against her.

Combetta was interviewed subject to the terms of the immunity agreement 

on May 3, 2016, by the same two FBI case agents, this time in the presence of the 

SSA, the CART examiner, all four line prosecutors, and Combetta’s attorneys. 

According to the FD-302 and contemporaneous notes of the two agents and the 

CART Examiner, Combetta provided the FBI additional detail regarding his removal 

of emails from the culling laptops, stating that Mills had requested that he “securely 

delete the .pst files” in November or December 2014 but had not specifically 

requested that he use “deletion software.” He told the FBI that he was the one who 

recommended the use of “BleachBit” because he had used it for other clients. He 

also acknowledged removing the HRC Archive mailbox from the PRN server

between March 25, 2015, and March 31, 2015, and using BleachBit to “shred” any 

remaining copies of Clinton’s email on the server, despite his awareness of 

Congress’s preservation order and his understanding that the order meant that “he 

should not disturb Clinton’s email data on the PRN server.” According to the FD302 and contemporaneous notes, Combetta told the FBI that he had an “oh shit” 

moment upon realizing that he had failed to comply with Mills’s request in late 2014 

or early 2015 to “change the retention policy for Clinton’s and Abedin’s existing and 

ongoing mail to 60 days.” He further told the FBI that Mills had contacted him on 

or about March 8, 2015, to assess what was still on the servers, including whether 

there were any “old back up data or copies of mailboxes hanging out there on old 

equipment.” However, he stated that he did not tell Mills that he subsequently 

realized the archived emails were still on the PRN server or that he deleted them in 

late March. In addition, he stated that he “could not recall the content” of the 

March 25, 2015, call with Kendall and Mills. In sum, Combetta took responsibility

for the deletions, without implicating Clinton or her attorneys.

We interviewed seven Midyear team members who attended Combetta’s May 

3, 2016, interview, all of whom told us that they conferred immediately following 

Combetta’s interview and agreed that Combetta’s testimony finally “made sense,” 

that he had been truthful and forthcoming, and that he did not implicate anyone in 

criminal activity such that there was a need to “lock in” his testimony in the grand 

jury. Prosecutor 1 told us that Combetta’s testimony finally “squared with the 

forensic evidence,” and also corroborated the testimony of other witnesses, 

including Mills and Samuelson, that they were unaware of the March deletions by

Combetta.
108

C. Bentel

As noted previously, John Bentel worked at the State Department for 39 

years, the last four of which he served as Director of the Executive Secretariat 

Information Resource Management (S/ES-IRM), before he retired in 2012. As 

detailed below, the investigators had received evidence that Bentel had information 

relating to the State Department’s possible sanctioning of Clinton’s use of a private 

email server.

According to documentation we reviewed, the Department entered into a 

“Queen for a Day” agreement with Bentel on June 10, 2016. The terms of this 

agreement were similar to those offered to Pagliano. Prosecutor 2 told us that the 

team did not subsequently grant Bentel the broader letter use immunity granted to 

Pagliano and Combetta, nor did his counsel ask for it. The witnesses we 

interviewed told us that the decision to enter into a Queen for a Day agreement 

with Bentel was not controversial. Prosecutors 1 and 2 stated that Bentel’s 

attorney sought use immunity because he thought that Bentel was portrayed poorly 

in the State IG report. They further stated that the team granted Bentel immunity 

because he was a necessary witness, who did not, to their knowledge, face any 

criminal “exposure.” Prosecutor 2 described the Bentel interview as a “check-thebox type interview.” The SSA told us that he did not oppose immunity for Bentel, 

because the FBI had no intentions of seeking that Bentel be prosecuted.

The agents asked Bentel about allegations by two S/ES-IRM staff members 

that they had raised concerns about Clinton’s use of personal email to him during 

separate meetings. According to the State IG report, one of the staff members told 

the State IG that Bentel told the staff member that “the mission of S/ES-IRM is to 

support the Secretary” and instructed the staff member to “never speak of the 

Secretary’s personal email system again.”94 According to the FD-302 and agent 

notes, the agents showed Bentel documents that suggested that he was aware that 

Clinton had a private email server that she used for official business during their 

joint tenure. One of the agents explained that the purpose of asking Bentel about 

his knowledge of the server was to assess whether Clinton’s use of the server was 

sanctioned by the State Department. However, Bentel maintained that he was 

unaware that Clinton used personal email to conduct official business until it was 

reported in the news and denied that anyone had raised concerns about it to him.

Both agents who interviewed Bentel told us that he was uncooperative and 

the interview was unproductive; however, they attributed these problems to 

nervousness and fear of being found culpable. Agent 3 told us that he did not 

believe that immunity for Bentel was necessary and that it did not help the 

investigation because Bentel was not forthcoming during his interview. However, 

he did not believe that Bentel had any criminal exposure and therefore the 

immunity agreement did not harm the investigation.

 

94

 Department of State Office of Inspector General, Office of the Secretary: Evaluation of 

Email Records Management and Cybersecurity Requirements (May 2016), Evaluations and Special 

Projects Report ES-16-03, https://oig.state.gov/system/files/esp-16-03.pdf (accessed May 7, 2018).
109

VIII. Use of Consent and Act of Production Immunity to Obtain Mills and 

Samuelson Testimony and Laptops

In this section we examine decisions made by the FBI and the Department

regarding whether to interview Mills and Samuelson regarding the process they 

used to cull Clinton’s emails in connection with providing emails to the State 

Department in 2014, as well as whether and how to obtain and review the personal 

laptops used by Mills and Samuelson for this culling process (“culling laptops”). The 

investigators told us that access to these laptops was particularly important to 

ensure the completeness of the investigation. All 62,320 emails pulled from the 

Clinton servers were stored at one time on these laptops, so access to the laptops 

offered the possibility of reconstructing a large number of the deleted emails 

through digital forensics.95 Moreover, the deletion of emails by Mills and Samuelson 

from these laptops had become a matter of great public controversy, including 

allegations that they had been deleted for improper purposes, increasing the 

importance of attempting to recover as many of them as possible. Ultimately, both 

Mills and Samuelson submitted to voluntary interviews regarding the culling process 

and voluntarily provided the culling laptops to the FBI after receiving “act of 

production” immunity.

In the subsections below we discuss: privilege claims raised by Mills and 

Samuelson; the debate between the FBI and the Department; the events that led 

to the Department securing voluntary interviews of Mills and Samuelson; the steps 

that were taken to secure and search the culling laptops, including the decision to 

grant Mills and Samuelson “act of production” immunity and the consent 

agreements for the culling laptops; the involvement of senior Department and FBI 

officials; and a discussion of the motivations behind the Mills and Samuelson 

dispute.

A. Privilege Claims Raised by Mills and Samuelson

As noted previously, in response to a State Department request in 2014, 

Mills and Samuelson, neither of whom were still employed by the State 

Department, worked together on behalf of Clinton to produce Clinton’s State workrelated emails that were on the PRN server by crafting a process to cull what they 

believed to be Clinton’s personal emails from her work-related emails. Samuelson, 

under Mills’s supervision, reviewed the emails that had been placed on the culling 

laptops and, following completion of this culling process, Clinton produced 30,490 

work-related emails to the State Department. Thereafter, Mills and Samuelson 

asked Combetta to securely delete the .pst files from the culling laptops, which, as 

described above, he did using BleachBit. Mills and Samuelson then continued to 

use the culling laptops for work related to their legal representation of other clients.

 

95

 By comparison, personal devices used by other persons who might have sent or received 

emails to or from addresses on the Clinton servers would only contain the emails sent or received by 

that person.
110

While the Midyear team was interested in speaking with Mills and Samuelson 

about this culling process, they also were interested in interviewing Mills concerning 

her time at the State Department with Clinton, due to evidence that Mills frequently 

communicated directly with Clinton and that she received and forwarded classified 

information on both her unclassified State email and personal Gmail accounts.96 

During Clinton’s tenure as Secretary of State, Mills served as, among other things, 

Clinton’s Chief of Staff and Samuelson served as a senior advisor to Clinton and 

White House Liaison.

According to documents we reviewed, Mills and Samuelson told the FBI and 

Wilkinson told the prosecutors that Mills and Samuelson had attorney-client 

relationships with Clinton for purposes of their work culling Clinton’s emails in 2014. 

According to internal memoranda and emails, the prosecutors began asking 

Wilkinson to provide her clients for voluntary interviews regarding the culling 

process in December 2015, but Wilkinson raised objections. Specifically, Wilkinson

argued that any interview questions regarding the culling process “would require 

answers revealing privileged information,” and she suggested that the Department 

obtain the information through an attorney proffer by Wilkinson instead.97 

Prosecutor 2 told us, and contemporaneous notes show, that the prosecutors also 

asked Wilkinson to voluntarily turn over the culling laptops in March 2016, after 

Wilkinson informed them that the laptops were still in her clients’ possession.

However, Wilkinson refused to voluntarily turn over the culling laptops, arguing that 

the laptops contained privileged information related to both Clinton and Mills’s and 

Samuelson’s other clients. Wilkinson told the prosecutors that she would instead 

take possession of the culling laptops from her clients, disconnect them from the 

Internet, and secure them in a safe in her office.

B. Debate over Interviewing Mills and Samuelson Regarding the 

Culling Process and Obtaining the Culling Laptops

FBI case agents and the SSA told us, and contemporaneous emails show, 

that they believed that interviewing Mills and Samuelson regarding the culling 

process and searching the culling laptops were essential investigative steps. They 

stated that they hoped to be able to find the full 62,320 emails that were originally 

reviewed by Mills and Samuelson to determine whether any additional emails—

beyond those that Clinton’s attorneys provided to the State Department and those 

that the FBI found through other sources—contained classified information. They 

further stated that they believed the culling process might have been flawed, 

 

96

 Prosecutor 1 told us that the Midyear team did not have an investigative need to interview 

Samuelson concerning her time at State.

97 Wilkinson also represented two other witnesses, a former senior State Department official 

and Jake Sullivan. According to emails we reviewed, Wilkinson agreed to provide the former senior 

State Department official for an interview, but at first refused to provide Sullivan, although she 

acknowledged that Sullivan never had an attorney-client relationship with Clinton. On January 14, 

2016, the prosecutors prepared a memorandum requesting authorization to notify Wilkinson that the 

Department was prepared to issue a grand jury subpoena for Sullivan’s testimony, as well as 

authorization to issue the grand jury subpoena if Wilkinson continued to object. On January 18, 2016, 

Toscas emailed Laufman approving both requests. Wilkinson ultimately agreed to provide Sullivan for 

a voluntary interview, which took place on February 27, 2016.
111

because their other reconstruction efforts had revealed a significant number of work 

related emails to or from Clinton that had not been included in the State 

Department production. Strzok told us that the FBI investigators hoped that asking 

questions about the culling process and reviewing the culling laptops would help 

determine why this was the case and whether there was a nefarious purpose. For 

example, several FBI witnesses stated that they believed that asking questions 

about the culling process might help them determine why Abedin’s emails were 

underrepresented in the State IG production.

FBI witnesses told us that once Wilkinson refused to voluntarily provide her 

clients for interviews and the culling laptops, they believed it was appropriate and 

in the interest of efficiency to subpoena Mills and Samuelson before the grand jury 

and seek a search warrant to seize the culling laptops from Wilkinson’s office. The 

FBI witnesses stated that even if a judge ultimately were to quash a subpoena or 

decide that there was no probable cause to issue a search warrant, it was the FBI’s 

obligation to at least try to obtain what they believed to be critical potential sources 

of evidence.

The line prosecutors and Laufman told us, and contemporaneous emails and 

internal memoranda show, that they agreed that it would be helpful to interview 

Mills and Samuelson regarding the culling process and obtain the culling laptops. 

However, they had several concerns about using compulsory process to do so. 

First, they were concerned that at least certain questions regarding the culling 

process would seek information protected by attorney-client privilege and the 

attorney work product doctrine. Second, they were concerned that the culling 

laptops contained privileged material relating to both Clinton and Mills’s and 

Samuelson’s other clients. Third, they raised questions about establishing probable 

cause to search the culling laptops given evidence that they had been wiped of the 

emails relevant to the Midyear investigation. Fourth, based on conversations with 

Wilkinson, they believed she would file a motion to quash any search warrant or 

subpoena and that this would lead to protracted litigation that would delay the 

investigation. Finally, they stated that they were required to follow the procedures 

set forth in the Department policy for obtaining physical evidence and testimony

from an attorney regarding the attorney’s representation of a client. They stated 

that, at a minimum, 28 C.F.R. § 59.4 and USAM 9-19.220 and 9-13.420 did not 

permit them to execute a search warrant on Wilkinson’s office under these 

circumstances.

The prosecutors told the OIG that the FBI did not appreciate the complexity 

involved with obtaining the culling testimony and laptops. Prosecutor 4, whom 

several witnesses told us was known for being an experienced prosecutor with 

significant experience handling privilege issues, explained that he was frustrated 

that the FBI was “willing to litigate to the death issues that [he] thought would be 

very close calls and could delay the investigation for two years without a strong 

belief that it would actually change the results” of the investigation.
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C. Events Leading to Voluntary Interviews of Mills and Samuelson

Regarding the Culling Process

1. Attorney Proffer on March 19, 2016

On February 1, 2016, Toscas received from the NSD prosecutors their

proposed investigative steps for Mills and Samuelson. The prosecutors proposed 

pursuing a grand jury subpoena to question Mills concerning her State Department

tenure (where there were no attorney-client privilege issues), but seeking attorney 

proffers before considering grand jury subpoenas for Mills’s and Samuelson’s 

testimony about the culling process. They provided two reasons for this approach.

First, they indicated that, pursuant to the USAM, to obtain Criminal Division 

authorization for a subpoena to an attorney regarding the attorney’s representation 

of a client they must show that the information sought is not protected by a valid 

claim of privilege and that “[a]ll reasonable attempts to obtain the information from 

alternative sources shall have proved to be unsuccessful.” USAM 9-13.410(C). The 

prosecutors described how they would tailor their questions about the culling 

process to avoid seeking information protected by attorney client privilege.98 

However, they indicated that they could not represent that all reasonable attempts 

had been made to obtain the information from alternative sources without first 

attempting to obtain the information through an attorney proffer.

Second, they indicated that they were concerned that issuing subpoenas for 

testimony regarding the culling process could result in protracted litigation with an 

uncertain outcome. They indicated that, despite extensive legal research, the team 

had been unable to find clear authority indicating that a court should allow an 

attorney to be questioned about actions taken on behalf of a client, even if 

describing those actions would not implicate confidential communications between 

the client and attorney.

In February 2016, Wilkinson agreed to both an attorney proffer by Wilkinson 

regarding the culling process and a voluntary interview of Mills regarding her State 

Department tenure. On February 8, 2016, the prosecutors emailed Wilkinson a 

short list of broad topics for the attorney proffer and the proffer was scheduled for 

March 19, 2016. Separately, Mills’s interview regarding her State Department 

tenure was set for April 9, 2016.

According to Prosecutor 2’s notes of the March 19 attorney proffer, the 

proffer was attended by all four line prosecutors, Beth Wilkinson, and two other 

attorneys from Wilkinson’s firm. Mills’s and Samuelson’s attorneys told the 

prosecutors, consistent with a State IG Report described above, that Mills and 

Samuelson initiated the culling process after the State Department requested 

Clinton’s assistance reconstructing her work-related emails. The attorneys further

 

98

 Specifically, they indicated that they intended to ask Mills and Samuelson questions falling 

into three categories: “(1) receipt of emails from PRN; (2) general questions about the culling process 

that do not implicate the attorney-client privilege; and (3) handling of the emails, which have been 

confirmed to contain classified information.”
113

stated that the State Department had told Mills that “it was HRC’s responsibility to 

determine” what was personal and what was work-related, because this would be 

“too burdensome for State.” The attorneys described the manner in which Mills and 

Samuelson obtained the emails from Combetta and generally how they conducted 

their review. The attorneys told the prosecutors that Mills asked Combetta to 

remove the .pst files from Mills’s and Samuelson’s laptops after Clinton’s workrelated emails were produced to the State Department; however, the attorneys 

stated that they “never heard of BleachBit.” According to the notes, the attorneys 

confirmed that Clinton had changed her email retention policy to 60 days in early 

2015, but would not “say reason for changing policy – either [privilege] or HRC’s 

question to answer.”

2. Midyear Team Meeting on March 28, 2016

After the March 19 attorney proffer, the FBI team took the position that it 

was still essential to interview Mills and Samuelson regarding the culling process. 

On March 28, 2016, the Midyear team held a meeting to decide the best way 

forward. McCabe and Toscas were the highest level FBI and Department officials, 

respectively, at the meeting. Witnesses told the OIG and contemporaneous emails 

show that this meeting was contentious and that the FBI insisted that the team 

either interview Mills regarding the culling process during the scheduled interview 

on April 9, 2016, or inform Wilkinson before April 9 of its intent to do so at a future 

date. The FBI witnesses stated that they believed if they did not do this, Mills 

would only give the FBI one “bite at the apple”—that she would assert publicly that 

she cooperated with the FBI without an incentive to return for another interview. 

Based on a review of emails and text message exchanges, we determined 

that Page was one of the more outspoken FBI personnel at the March 28 meeting in 

favor of interviewing Mills and Samuelson about the culling process and countering 

the Department’s privilege concerns. In a March 29, 2016 email exchange, Strzok 

asked Prosecutor 4, “[H]ow are you doing? You seemed none too pleased at times 

on Monday [March 28].” Prosecutor 4 replied with an email about Page:

I am fine. I don’t like “former prosecutors” [Page] giving their 

opinions from the cheap seats. I have been known throughout my 

career by the agents I work with as the most aggressive prosecutor 

that they have ever seen. During my last five jury trials I have forced 

no fewer than a dozen lawyers to testify against their former clients. 

It is easy for FBI attorneys to second guess our opinions when they 

haven’t ever had to actually stand before a judge and defend their 

opinion.99

In response, Strzok defended Page and wrote, “Best I can tell is I think 

everyone in the room’s motives were (are) pure.” Prosecutor 4 then wrote:

 

99

 Page told us that she had been a prosecutor in the Department’s Organized Crime and 

Racketeering Section before joining the FBI.
114

I am stuck in the middle of pushing NSD along and trying to get FBI to 

be realistic. The investigation is degenerating into everyone trying to 

figure out what the congressional testimony looks like in the future. 

My job is to put criminals in jail, period.

Following the March 28 meeting, Strzok drafted an email to send to the 

prosecutors to memorialize the FBI’s understanding of the decision made at the 

meeting regarding Mills and Samuelson. The email was approved by FBI OGC, 

Steinbach, and McCabe. Strzok sent the email on March 29, 2016, to the four line 

prosecutors and copied Toscas and several FBI employees. In the email, Strzok 

wrote that the prosecutors had agreed to “inform Wilkinson of DOJ’s and FBI’s 

intention to interview Mills and Samuelson about the sort process.” In addition, 

Strzok wrote that the prosecutors had agreed to contact the Department’s 

Professional Responsibility Advisory Office (PRAO) regarding whether they could 

seek a waiver of attorney-client privilege from Clinton through Kendall.

According to emails we reviewed, the line prosecutors and Laufman agreed 

with reaching out to PRAO for advice on seeking a waiver from Kendall and did so 

on March 31, 2016. In addition, in early April, 2016, they sought guidance from 

the Criminal Division as to whether seeking the waiver was permissible under 

Department policy. On April 12, 2016, three days after the Mills interview, a 

Criminal Division official told NSD that he was “not aware of any DOJ policy that 

would prevent [CES] from seeking the waiver.”

As far as Strzok’s assertion that the prosecutors had agreed to notify 

Wilkinson that the FBI intended to interview her clients regarding the culling 

process, Prosecutors 1 and 2 indicated in an email exchange on March 30, 2016, 

that this was not correct. According to the March 30 email exchange, the 

prosecutors were concerned that certain issues had not yet been resolved, including 

obtaining necessary approvals from the Criminal Division. Also on March 30, 2016, 

Prosecutor 1 wrote to Prosecutor 2 and Laufman that he did not want to take a 

position with Wilkinson that they would be unable to “stand behind” and thus be 

accused of “dealing with her in bad faith.” Prosecutor 1 told us, “It’s not smart to 

make demands when you don’t understand what kind of leverage you have.” Thus, 

Prosecutor 2 told us, and documents showed, that before the April 9 interview the 

prosecutors told Wilkinson that the FBI “had not foreclosed” the possibility of 

interviewing her clients regarding the culling process, but not that the FBI insisted 

on doing so.

3. FBI Call to Wilkinson on April 8 About Mills and 

Samuelson Interviews Without Informing Prosecutors

On April 8, 2016, the day before the Mills interview, FBI GC Baker contacted 

Wilkinson, without notifying the line prosecutors or higher Department officials in 

advance, to convince her to consent to the FBI’s demands for the culling testimony 
115

and culling laptops.100 The prosecutors learned of Baker’s call to Wilkinson the 

following day, when Wilkinson told the prosecutors at the Mills interview she had 

been contacted by a “senior FBI official” regarding interviews of her clients.

Comey told us that he approved Baker’s call to Wilkinson and that he “must 

have known [Baker] was not going to tell DOJ.” In addition, Laufman’s notes of a 

meeting following the Mills interview indicate that McCabe was aware of the call 

beforehand. Baker told us that he reached out to Wilkinson because he believed 

the line prosecutors had not been sufficiently aggressive. Laufman stated that he 

took “great offense” to Baker’s assertion that the prosecutors had not been 

aggressive with Wilkinson, “because we were accomplishing and had accomplished 

great things through creative troubleshooting of extraordinarily sensitive issues 

with counsel to obtain the media and devices whose review was the foundation of 

this investigation.” Prosecutors 1 and 2 told us that Baker’s efforts were not 

effective, because Wilkinson continued to refuse to provide consent.

4. FBI Surprise Statement at Outset of April 9 Mills 

Interview

On April 9, 2016, Mills appeared with Wilkinson for a voluntary interview 

concerning Mills’s tenure at State. According to a FBI memorandum (“Mills 

Interview Memorandum”), shortly before the interview Strzok advised the 

prosecutors and Laufman that the agent conducting the interview would be making 

a statement at the start of the interview “concerning the scope of [the] interview, 

the FBI’s view of the importance of the email sorting process, and the expectation 

of a follow-up interview once legal issues had been resolved.” Witnesses referred

to this statement as “the preamble.”

Comey told the OIG that he approved of the preamble but did not suggest it, 

and McCabe stated that he “authorized” the preamble. McCabe told us that he 

directed the FBI team not to discuss the preamble with the prosecutors before the 

day of the interview because he was “concerned that if we raised another issue with 

DOJ, we would spend another two weeks arguing over the drafting of the preamble 

to the interview, which I just was not prepared to do.”

The prosecutors told us that they were surprised and upset because the 

preamble was inconsistent with their prior representations to Wilkinson and they 

believed it was strategically ill-advised. The Mills Interview Memorandum states 

that the prosecutors objected to the preamble but that they were told that “the 

FBI’s position was not subject to further discussion.”

According to the Mills Interview Memorandum, the interviewing agents 

delivered the preamble at the outset of the interview as planned. Witnesses told us 

 

100

 Baker told us that he had known Wilkinson for many years, and documents show that she 

had previously reached out to him in Midyear as part of a broad effort to speak with senior 

Department and FBI officials, up to and including Attorney General Lynch. Lynch and other high level 

Department officials told us that they did not speak with Wilkinson during the course of the 

investigation.
116

that Wilkinson was visibly angered by the preamble and that she and Mills stepped 

outside the interview room after the agent delivered it. The prosecutors stated that 

they convinced Wilkinson and Mills to return for the remainder of the scheduled 

interview concerning Mills’s tenure. However, according to Prosecutor 1, Mills was 

“on edge the whole time.”101

According to notes of the interview, the prosecutors told Wilkinson that they 

were “sandbagged” by the FBI and that they did not know in advance about the 

preamble. Additionally, according to the notes, Wilkinson informed the prosecutors 

of the call the previous day from a “senior FBI official.”

Prosecutors and FBI agents told us that the events surrounding the April 9 

Mills interview, including both the preamble and Baker phone call that were planned 

without Department coordination, caused significant strife and mistrust between the 

line prosecutors and the FBI. AAG Carlin told us that the prosecution team asked 

him to call McCabe and “deliver a message that this is just not an acceptable way to 

run an investigation.” Carlin told us that he delivered this message to McCabe and 

also briefed Lynch and Yates on the issues.

Witnesses told us that the strife between the prosecutors and the FBI team 

culminated in a contentious meeting chaired by McCabe a few days later. On the 

Department side, this meeting was attended by the line prosecutors, Laufman, and

Toscas. Prosecutor 2 told us that during this meeting the prosecutors explained 

that they were trying to be “careful” in their handling of complicated issues, and 

that McCabe responded that they should “be careful faster.” Laufman stated that 

McCabe’s comment “undervalued what we had been able to accomplish to date 

investigatively through negotiating consent agreements.” According to Laufman’s 

notes, McCabe agreed that Baker’s unilateral contacts with Wilkinson should not 

have happened, and Baker agreed not to have further contact with Wilkinson. With 

respect to the preamble, however, the prosecutors told us that McCabe stated that 

he would “do it again.”

5. Mills and Samuelson Agree to Voluntary Interviews 

Regarding the Culling Process

In May 2016, Wilkinson agreed to allow Mills and Samuelson to be voluntarily 

interviewed regarding the culling process, provided the questions asked during the 

interviews did not seek information that was considered “opinion work product.”102 

 

101

 During the interview, according to the FD-302, Mills told the FBI that she “did not learn 

Clinton was using a private server until after Clinton’s [State Department] tenure.” The FD-302 

further states, “Mills stated she was not even sure she knew what a server was at the time.” Abedin 

similarly told the FBI that she “did not know that Clinton had a private server until...it became public 

knowledge.” The prosecutors told us that they found it credible that Mills and Abedin did not 

understand that Clinton had a “private server,” even though Mills and Abedin knew Clinton had an 

email account on the clintonemail.com domain. They further stated that Mills’s and Abedin’s 

statements were consistent with what the prosecutors understood to be Mills’s and Abedin’s limited 

technical knowledge and abilities.

102

 Opinion work product is attorney work product that involves “mental impressions,

conclusions, opinions, or legal theories” concerning litigation and, like communications protected by 
117

The prosecutors told us that this meant that the agents could ask questions 

regarding the “mechanics” of the culling process, including how Mills and 

Samuelson obtained and reviewed the emails for production to the State 

Department. However, they told us that they could not put a particular email in 

front of Mills or Samuelson and ask why the call was made to consider it workrelated or personal. The prosecutors explained that, based upon their research and 

Prosecutor 4’s experience with privilege, they believed they would not likely be 

successful convincing a judge that such questions were permissible.

Samuelson and Mills were interviewed regarding the culling process on May 

24, 2016, and May 28, 2016, respectively, which was before the Midyear team 

obtained access to the culling laptops. Witnesses told us and contemporaneous 

documents show that the agents prepared outlines in advance of the interviews and 

the prosecutors reviewed them to ensure they were consistent with the agreed 

upon parameters. For example, based on witness testimony and the outline we 

reviewed, the prosecutors eliminated a question that asked for the “exact” search 

terms that were used during the culling process. Prosecutor 2 told us that during 

 

the attorney-client privilege, is generally protected from discovery. Strzok told us that the Midyear 

team considered whether questions regarding how Mills and Samuelson made decisions to exclude 

particular emails could have been asked based on the “crime-fraud” exception to the attorney-work 

product doctrine. In the Fourth Circuit (which includes EDVA), in order to invoke the crime-fraud 

exception, the government “must make a prima facie showing that (1) the client was engaged in or 

planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme, 

and (2) the documents containing the privileged materials bear a close relationship to the client's 

existing or future scheme to commit a crime or fraud.” In order to apply the crime-fraud exception to 

an attorney’s opinion work product, the government must also “make a prima facie showing that the 

attorney in question was aware of or a knowing participant in the criminal conduct.” In re Grand Jury 

Proceedings No. 5, 401 F.3d 247, 251-52 (4th Cir. 2005).

While we did not ask the prosecutors about the crime-fraud exception directly, it appeared, 

based on their answers to other questions, that that they did not believe that they could show that 

Mills or Samuelson were “engaged in or planning a criminal or fraudulent scheme” when they culled 

Clinton’s emails for production to the State IG. Prosecutor 2 stated that the Midyear team had not 

uncovered evidence during the course of the investigation that Mills or Samuelson had a criminal 

“motive” when they conducted the culling process. Prosecutor 2 explained, “[T]here was nothing that 

was different in the type of emails that were produced and the types of emails that were found 

elsewhere to indicate to us that there was any sort of...nefarious intent.” Similarly, Prosecutor 1 

stated that the notion that Mills or Samuelson had criminal mens rea when they conducted the sort 

process was contradicted by the fact that the production to the State Department contained numerous 

classified emails. This prosecutor stated, “[L]ots of classified stuff got turned over in FOIA, so the 

notion that they would have been deleting the classified didn't make a lot of sense to us at this point 

in the investigation, because [they] probably would have done a better job of getting rid of it.” The 

Lead Analyst told us that “he had no evidence to suggest that” there was “some sort of willful 

arrangement to...remove and otherwise sideline material that would, you know, reflect criminal 

activity.” He further stated, “We didn’t see anything else to suggest that there [are] these like willful 

criminal arrangements with attorneys.”

Prosecutor 2 told us, and contemporaneous documents show, that the Midyear team also 

considered whether there was a waiver of privilege, due to either (1) the publication of certain 

information regarding the culling process on the Clinton campaign website; or (2) Mills’s testimony 

about aspects of the culling process before the House Benghazi Committee. Prosecutor 2 stated, 

“[W]e thought we had pretty good arguments to argue waiver on fact work product but not opinion 

work product, which is kind of like...the way I differentiate it, asking about the mechanics versus 

asking about why substantive decisions were made.”
118

the interviews “there were a couple of assertions of privilege,” but overall the 

interviews went well.

One of the case agents who led Mills’s and Samuelson’s interviews told us 

that he believed the interviews regarding the culling process were not as productive 

as he would have liked, because Mills and Samuelson were “so well-rehearsed.” He 

attributed this to a number of factors, including that they were interviewed late in 

the investigation, Wilkinson was aware of the scope of the interview in advance 

from discussions with the prosecutors, and Mills was a “highly-trained professional” 

with an “excellent” attorney. He further stated that the limited scope of the 

questioning “took away some of our tools that we would have had going into that 

interview.” Other FBI witnesses, however, told us that while there was some 

debate over the scope of the interviews beforehand, the team was ultimately 

satisfied with the information that was obtained. Prosecutor 2 told us that “nobody 

ever expressed a concern following the interviews that there was something that 

we needed that we didn’t get.”

D. Steps Taken to Obtain and Search the Culling Laptops

As noted above, the investigators wanted access to the laptops primarily 

because such access promised the possibility of reconstructing the emails that had 

been deleted in the culling process. However, because Mills and Samuelson were 

both attorneys, the issue of obtaining access to the laptops implicated questions 

regarding how to protect any privileged information residing on them.

1. Internal Strategizing and Call with Clinton’s Counsel

Documents we reviewed reflected that the prosecutors spent significant time 

and effort conducting research, analyzing relevant legal, policy, and ethical issues, 

and strategizing how to best handle the issue of the culling laptops. 

Contemporaneous emails and text message exchanges we reviewed show that 

Strzok and Page challenged the prosecutors’ laptop privilege concerns and were two 

of the most outspoken proponents of using compulsory process to obtain the culling 

laptops. Page explained to the OIG why she did not agree that the emails on the 

laptops were privileged:

These are materials, these are the State Department’s records. And if 

the Secretary in the first place had actually followed normal protocol, 

every single one of these emails, whether personal or work-related

would have been in the State Department’s possession, and there 

would be no attorney-client discussions happening with respect to the 

sort of this material.

In addition, Page stated that any other privileged material on the laptops could be 

handled by the Midyear team’s already established filter team.

On May 18, 2016, Toscas, McCabe, Page, and Prosecutor 1 had a telephone 

conference with DAAG Paul O’Brien of the Department’s Criminal Division regarding 

the likelihood of Department approval for search warrants or subpoenas to obtain 

the culling laptops. O’Brien told the OIG, and Page’s and Toscas’s
119

contemporaneous notes show, that during this call McCabe advocated in favor of a 

search warrant, but O’Brien stated that a search warrant was “a nonstarter.” 

O’Brien stated that he explained to McCabe that a search warrant for Beth 

Wilkinson’s office was inconsistent with the USAM and 28 C.F.R. § 59.1. He further 

stated that he told McCabe that a judge was likely to question why the government 

was seeking a search warrant to seize the laptops from Wilkinson’s office, when a 

subpoena would suffice to obtain them (and a search warrant could be sought later 

to review their contents).

103

 O’Brien told the OIG that even with a filter team, “any 

time you issue a search warrant for an attorney’s office, you run the potential and 

the possibility that you can be inadvertently coming across protected client, 

sensitive attorney-client information.” He further told us that he believed a 

subpoena was more appropriate, because it would be less intrusive and “there was 

no thought that Beth Wilkinson was going to destroy the evidence.” According to 

Page’s notes, O’Brien stated on the call that he had never seen the Department 

seek a search warrant in similar circumstances.104

On May 23, 2016, Toscas, McCabe, Page, and Prosecutor 1 spoke with 

Kendall based on the approval previously received from the Criminal Division. 

During the call, they described to Kendall the difficulty the team was having 

obtaining the culling laptops and told him that they would not interview Clinton

before obtaining the laptops. Prosecutor 1 stated that the team assumed Kendall 

and Wilkinson were speaking with one another and that a conversation with Kendall 

might ultimately lead to Wilkinson voluntarily providing the laptops.

2. Approval to Subpoena the Culling Laptops

On May 31, 2016, after hearing nothing further from Kendall, the Midyear

team submitted applications for the approval of subpoenas for the culling laptops to 

the Criminal Division through O’Brien. The applications were signed by EDVA U.S. 

Attorney Boente. The team also prepared and submitted to O’Brien search warrant 

 

103

 O’Brien told us that even if the laptops were still in the possession of Mills and Samuelson, 

“we still would have looked to determine whether we could obtain the materials with a subpoena 

rather than doing a search warrant,” as required by the USAM.

28 C.F.R. § 59.1 and USAM 9-19.220 apply to the use of process against “distinterested third 

parties.” Pursuant to 28 C.F.R. § 59.1, “It is the responsibility of federal officers and employees 

to...protect against unnecessary intrusions. Generally, when documentary materials are held by a 

disinterested third party, a subpoena, administrative summons, or governmental request will be an 

effective alternative to the use of a search warrant and will be considerably less intrusive.” Similarly, 

USAM 9-19.220 provides, “As with other disinterested third parties, a search warrant should normally 

not be used to obtain...confidential materials” from a disinterested third party attorney.”

USAM 9-13.420 applies to searches of the premises of an attorney that is a “suspect, subject 

or target” of an investigation and provides: “In order to avoid impinging on valid attorney-client 

relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous 

and effective law enforcement when evidence is sought from an attorney actively engaged in the 

practice of law.”

104

 The policies set forth in the USAM are binding on both FBI and Department employees.
120

applications for reviewing the content of the culling laptops, to submit to a court 

once the laptops were obtained.

In a letter to Toscas dated June 3, 2016, O’Brien authorized the issuance of 

the proposed subpoenas. He further wrote that the team “had satisfied the 

requirement, pursuant to USAM 9-13.420(C), to consult the Criminal Division 

before applying for a warrant to search the laptop computers.”

105

 Toscas told us, 

and contemporaneous emails show, that he proposed applying to the court for an 

“anticipatory search warrant.” An anticipatory search warrant is one that is 

approved by the court for use once a triggering event occurs, in this case the FBI 

securing the laptops by subpoena. Toscas stated that he was in favor of the 

anticipatory search warrant because he thought it might help persuade a judge to 

side with the government when litigating a possible later motion to quash the 

subpoena. However, he said that Boente and the prosecutors in EDVA did not 

agree because anticipatory search warrants were not typically used in that fashion 

in their jurisdiction.

On June 4, 2016, Prosecutor 1 wrote to Wilkinson:

I had wanted to speak to you personally today to discuss next 

steps. Since we were unable to connect, in the interest of time, I am 

advising you that DOJ has authorized subpoenas for both laptops, 

which we intend to serve by COB Monday. It is important that we 

speak on the phone as soon as possible tomorrow.

The prosecutors had a series of phone calls with Wilkinson over the next two days, 

ultimately resulting in four letters dated June 10, 2016: two from the Department 

(one for Mills and one for Samuelson) granting Wilkinson’s clients “act of 

production” immunity in exchange for voluntarily providing the culling laptops and 

two from Wilkinson (one for Mills and one for Samuelson) granting the Department 

consent to review the culling laptops, with certain restrictions. Witnesses told us 

that McCabe and Toscas were the highest level FBI and Department officials, 

respectively, to approve these agreements.

3. Act of Production Immunity for Mills and Samuelson

The Department entered into “act of production” immunity agreements with

both Mills and Samuelson on June 10, 2016. The immunity agreements provided 

that the government would “not...use any information directly obtained from” the 

culling laptops in any prosecution of either witness “for the mishandling of classified 

information and/or the removal or destruction of records,” pursuant to “18 U.S.C. § 

793(e) and/or (f); 18 U.S.C. § 1924; and/or 18 U.S.C. § 2071.” Therefore, 

Prosecutors 1 and 2 told us it was their view that the government would have been 

free to use in any future prosecution of Mills and Samuelson leads developed as a 

result of the FBI’s review of the information on the culling laptops, as well as 

information provided by Mills and Samuelson during their voluntary interviews.

 

105

 The USAM did not require Criminal Division approval for the search warrant, just 

consultation once the request for had been approved by a U.S. Attorney (here that was Boente). 

USAM 9-13.420(C)
121

FBI and Department witnesses told us that no one within the team disagreed 

with the decision to enter into these immunity agreement with Mills and Samuelson 

in exchange for obtaining the culling laptops. We also were told by FBI and 

Department witnesses that, based on the evidence they had gathered at that point 

in the investigation, they did not expect to uncover anything on the culling laptops 

that would be incriminating to Mills or Samuelson. The prosecutors told us that 

that Mills and Samuelson had included in the State Department production 

numerous emails containing classified information, including emails containing SAP 

information which was the most sensitive material identified during the Midyear 

investigation. They also had included the emails with the (C) portion markings, 

which were the only emails containing classification markings that were discovered 

during the investigation. According to Prosecutor 2, “[T]here was nothing that was 

different in the type of emails that were produced and the types of emails that were 

found elsewhere to indicate to us that there was any sort of motive” or “nefarious 

intent.”

In addition, Prosecutor 1 stated that, even after the prosecutors had 

approval to obtain the laptops by subpoena, they believed that obtaining them 

through consent was preferable, because they expected a motion to quash and time 

lost through subsequent litigation. Similarly, FBI agents and supervisors told us

that they did not object to the immunity agreements because the protection offered 

by them was limited and allowed the team to obtain needed sources of potential 

evidence without inhibiting the investigation.

Comey explained in a speech at an FBI conference for Special Agents in 

Charge in October 2016 that there were “huge concerns” about attorney-client 

privilege and attorney work product on the culling laptops that warranted entering 

into the immunity agreements with Mills and Samuelson in order to secure them. 

He stated:

You can also imagine given that you’re experienced people the 

challenge in trying to get a lawyer to give you their laptop that you 

use for all of their legal work. Huge concerns there about attorneyclient privilege, attorney work product. We had a few options there. 

One was to serve them with a Grand Jury subpoena and then litigate 

the work product protection and the attorney-client protections for 

probably the next five years, or reach some agreement with them to 

voluntarily produce it and give them some sort of assurance as to how 

the information will be used on that laptop.... Department of Justice 

reached an agreement at the request of the lawyer for these two 

lawyers that for act of production of immunity is the way I understand 

it in my career that is you give this laptop, we will not use anything on 

the laptop against you personally in a prosecution for mishandling of 

classified information or anything else related to classified information. 

Reasonable to ask for a lawyer to ask to give us the laptops and 

enabled us to short circuit the months and months of litigation that 

would've come otherwise. I was actually surprised they agree[d] to 

give us the laptops.
122

4. Limitations in the Consents to Search the Culling Laptops

In addition to the immunity agreements, which the Department entered into 

to obtain possession of the culling laptops, the Department entered into consent 

agreements with both Mills and Samuelson in order to enable the FBI to search the 

laptops with certain limitations. The consent agreements provided that the “sole 

purposes of the search” were:

“[T]o search for any .pst files, or .ost files, or compressed files 

containing .pst or .ost files, that were created by Platte River Networks 

("PRN") after June 1, 2014 and before February 1, 2015, in response 

to requests for former Secretary Clinton’s email from her tenure as 

Secretary of State;”

“[T]o attempt to identify any emails from, or remnants of, the PRN 

Files that could potentially be present on the Device;”

“[T]o identify any emails resident on the Device sent to or received 

from” Hillary Clinton’s known email accounts, “for the period of 

January 21, 2009 through February 1, 2013;” and

“[T]o conduct a forensic analysis of the device to determine whether 

the Device was subject to intrusions or otherwise compromised.”

The consent agreements described in detail a two-phase process the FBI would use 

to search the devices for the listed purposes. In the first phase, OTD would search 

the allocated space of the devices for the .pst files created by Combetta. If the 

intact .pst files were found, OTD would not move on to the second phase. If not, 

OTD would go on to the second phase, which would entail searching both the 

allocated and unallocated space for “any emails, fragments of emails, files, or 

fragments of files” that could “clearly be identified as having been sent to or 

received by” one of Clinton’s email accounts during her tenure.

106

Witnesses told us, and contemporaneous text and instant message 

exchanges among FBI employees show, that negotiating the consent agreements 

was a difficult process and, at least at the outset, Strzok and others at the FBI 

believed that the prosecutors were giving Wilkinson too much control.

107

 However, 

 

106

 The consent agreements also each provided: “As soon as the investigation is completed, 

and to the extent consistent with all FBI policies and applicable laws, including the Federal Records 

Act, the FBI will dispose of the Device and any printed or electronic materials resulting from your 

search.” According to talking points drafted by members of the Midyear team in October 2016, the 

FBI had agreed to destroy the laptops because the laptops contained classified information and, as 

such, could not be returned to the attorneys following compliance with FOIA and Federal Records Act 

obligations. The draft talking points stated that as of October 2016 the laptops had not been 

destroyed, because the FBI was still “under a legal obligation to preserve the laptops and other 

electronic media due to numerous pending FOIA requests.” On June 11, 2018, the FBI informed the 

OIG that the FBI still had in its possession the culling laptops and all other evidence collected during 

the Midyear investigation. 

107

 FBI employees have the ability to communicate internally via Microsoft Lync instant 

messages when logged on to their FBI workstation. We discovered several Lync messages that were 

relevant to our review, and we discuss these in Section XI of this chapter and in Chapter Twelve.
123

when we interviewed Strzok, he told us that he no longer could remember what his 

specific concerns were at the time and, in the end, “we got what we needed to 

credibly come to the resolution that we did in the investigation.” He further stated 

that some of the sentiments he expressed over text message to Page about the 

prosecutors’ handling of the issue reflected only the heat of the moment and his 

opinions at the time.

Agent 1 told us that the phases outlined in the consent agreements were 

overly complicated and that he did not agree that the FBI should not have been

able to review the unallocated space if the analysts found the .pst files in phase 1. 

Contemporaneous instant messages show that the Lead Analyst, FBI Attorney 1,

and FBI Attorney 2 shared this concern. However, this concern became moot when 

OTD was unable to find the .pst files in phase 1 and ultimately went on to phase 2

and searched the unallocated space.

FBI Attorney 1 exchanged instant messages with the Lead Analyst and FBI 

Attorney 2 in which she expressed frustration during the drafting of the consent 

agreements. For example, on June 8, 2016, she wrote to the Lead Analyst, “The 

fact that Pete [Strzok] met with [Prosecutor 1] and hashed all this out and 

capitulated really pisses me off.” Also on June 8, 2016, she wrote to FBI Attorney 

2, “OMG. I’m so defeated. Why do I bother?” FBI Attorney 1 told us, in an 

interview before viewing these instant messages, that she had concerns with the 

filter process set forth in the consent agreements, which limited the filter team to 

“two attorneys, one FBI agent, and one FBI analyst, none of whom are members of 

the investigative team.” The agreements stated that OTD would provide the emails 

from its search to the filter team, which would then “review those results to identify 

and remove: (1) any privileged material; (2) any material that, upon further 

review, is determined not to be an e-mail sent to, or received by, the Relevant 

Accounts during the Relevant Period; and (3) any material that, upon further 

review, is determined not to be a work-related e-mail sent to, or received by,” 

Clinton’s relevant email account. FBI Attorney 1 stated that she opposed this 

language because it differed from the filter process that had been used for other 

devices, wherein the filter team, with the assistance of OTD, relied more heavily on 

search terms to eliminate material that was beyond the scope of review or 

privileged. She stated that her concern was that the filter process would be too 

time-consuming. However, she told us that in the end the filter team was able to 

“get it done in a timely manner” and that resolved her concerns.

In a follow up interview after viewing the instant messages, FBI Attorney 1 

told us that the June 8, 2016 instant messages were exchanged during a lengthy 

telephone conference with Prosecutors 1 and 2, Strzok, the Lead Analyst, FBI 

Attorney 2, and OTD technicians. She stated that the frustrations expressed in her 

instant messages related to her concerns about the filter process discussed during 

her first interview. She further stated that her complaints about Strzok had to do 

with him not including her in certain conversations with the prosecutors. However, 

she told us that she did not believe that Strzok was failing to represent the FBI’s 

interests in those conversations. She also reiterated that she was ultimately 

satisfied with the terms of the consent agreements. On June 28, 2016, FBI 

Attorney 1 sent an instant message to the lead filter team attorney offering to 
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provide the filter team with additional resources to review the culling laptops. The 

filter attorney responded, “Just got data from OTD and we seem to be in a good 

place with our current filter resources.”

Agent 3 told us he was concerned by the requirement in Phase 2 that the 

emails be “clearly identifiable” as having been sent to or from one of Clinton’s email 

accounts during her tenure, because sometimes the metadata in the unallocated 

space was unclear. However, he told us that he did not express this concern to the 

prosecutors at the time the consent agreements were being negotiated and that he 

was not sure that he had sufficient “technical basis” to do so. We asked 

Prosecutors 1 and 2 about this concern and they stated that the language was 

developed with input from the investigative team and OTD to ensure that they were 

able to access what they needed to access in order to adequately review the 

laptops. Prosecutor 2 stated, “We came to the conclusion that the procedures that 

were in this letter would allow us to look at the material that we thought was 

critical to look at, and yet protect the attorney-client privilege in a way we thought 

we were required to do.”

Other FBI employees told us that they would have preferred to be able to 

search for emails sent or received just before or after Clinton’s tenure, in the hope

of identifying Clinton’s intent in setting up the email server or the intent behind the 

later deletions of emails. The Lead Analyst told us that he would have liked to have 

been able to search Mills’s and Samuelson’s own emails on the culling laptops, to 

determine what instructions were provided to Samuelson regarding how to conduct 

the culling process and to see if there was any evidence regarding why later 

deletions occurred. He stated that this information would have helped the FBI 

determine whether Mills and Samuelson “willfully” did something “illegal or 

inappropriate” during the sort process or whether there were “serious flaws” in the 

process. However, he stated he had “no evidence to suggest” that Clinton or her 

attorneys had a criminal purpose in the way they conducted the sort process or in 

the deletion of emails. He further stated, “We didn’t see anything anywhere else to 

suggest that there is these like willful criminal arrangements with attorneys. Like, 

there’s nothing to suggest that that’s the case. It’s just, you know, it’s the curious 

part of the investigator in all of us that thinks about that.”

The prosecutors and some of the agents told us that the consent agreements 

were date restricted, because the primary purpose of reviewing the culling laptops 

was to find the .pst files of Clinton’s emails that were transferred by Combetta, in 

order to reconstruct, to the extent possible, the deleted emails. They further told 

us that the attorneys’ own communications following Clinton’s tenure, with either 

Clinton or other clients, would mostly consist of items protected by privilege, and 

that they had already obtained records of communications between Clinton’s 

attorneys and PRN staff from PRN.

108 Similarly, the Lead Analyst acknowledged 

that he might not have been able to view such emails even with legal process due 

to privilege and probable cause concerns. He stated, “[T]his was not a snap 

 

108

 As noted in Section V of this chapter, the Midyear team also did not seek a search warrant 

of Mills’s personal Gmail account for email exchanges following Clinton’s tenure, when she had an 

attorney-client relationship with Clinton.
125

decision. This decision was made, and this was the best and most effective way 

to...obtain this content. And there’s going to be trade-offs involved in that.”

Most of the Department and FBI witnesses we interviewed told us that they 

were ultimately satisfied with the consent agreements to search the Mills and 

Samuelson laptops and did not feel that the consent agreements unduly limited 

their investigation. In addition, some witnesses told us that in the end they

believed that the FBI obtained more through the consent agreements than it would 

have obtained through a subpoena or search warrant. For example, Prosecutor 4

stated that that he told the FBI “repeatedly in no uncertain terms that I thought 

that the probability of success on a grand jury subpoena for the laptops [because of 

a motion to quash] was, that they would get some things, but the vast majority of 

what they wanted, they would not get.” Similarly, the Lead Analyst told us that he 

eventually learned that sometimes consent allows the FBI to obtain “a broader 

swath of material.”

5. Review of the Laptops

The FBI and Department witnesses told us that they ultimately did not 

identify evidence on the Mills or Samuelson laptops that changed the outcome of 

the investigation. According to documents we reviewed, the team recovered 9,000 

emails on Mills’s laptop, which were mostly duplicates of the emails included within 

the 30,490 produced to the State Department, and they found no new classified 

emails. The team was able to recover “approximately 112 files” from Samuelson’s 

laptop, but the analysts did not believe these files contained “work-related 

material.”

E. Involvement of Senior Department and FBI Officials

Witnesses told us, and documents show, that the issues surrounding the 

culling laptops and testimony was one of the few issues in the Midyear investigation

that was briefed to high-level Department officials. The highest level Department 

official involved in substantive decisionmaking regarding the culling testimony and 

laptops, including the decision to grant immunity, was Toscas. Toscas told us that 

while he agreed with the prosecutors that there were complicated privilege 

concerns, he also agreed with the FBI that the culling laptops had to be reviewed 

and that the prosecutors had more leverage than they realized in negotiating with 

Wilkinson.

Toscas told the OIG that he briefed Lynch on the negotiations with Wilkinson 

because of the potential for litigation, and because Wilkinson had stated that she

planned to contact Department leadership. He stated that Lynch responded that 

she knew Wilkinson and was familiar with her aggressive style. He stated that 

Lynch told him, “[P]ursue whatever you want to do, she’s going to be that way. 

That is her reputation.... Tell the team to get what they need done.” Based on that

guidance, Toscas told us that he conveyed to the line prosecutors to “be civil” but 

“be just as aggressive back” to Wilkinson.
126

Lynch told us that she did not recall Toscas bringing to her attention the 

prosecutors’ difficulties negotiating with Wilkinson or conflict with the FBI. 

However, she stated that in the spring of 2016 Toscas briefed her and Yates that 

“additional laptops were found” and that “because the people who owned the 

laptops were lawyers, in addition to having had a connection with Secretary 

Clinton’s team, there were issues of privilege.” She stated that the only reason this 

issue was brought to her attention was because it “raised the possibility of 

litigation.” She further told us that the team was able to “resolve” the issues 

without litigation, but she did not “know the specifics.” In addition, Lynch stated 

that she and Wilkinson had been “prosecutors together in Brooklyn” and that, based 

on that experience, she described Wilkinson’s “aggressive” style to Toscas. Yates 

and Carlin similarly told us that they were briefed on the Mills and Samuelson 

issues, but could not remember many details. Carlin stated that at one point he 

reached out to McCabe to discuss the issues and that he “fully agreed” with the 

recommendation of the prosecutors that “trying to do an adversarial search warrant 

on a lawyer’s office” would result in the case being “tied up in litigation for a period 

of time.”

On the FBI side, Comey, McCabe, and Baker were all substantively involved 

with the debate with the prosecutors over whether and how to obtain the culling 

testimony and laptops. McCabe stated, “I was very clear about this with the 

Director, that we could not conclude this investigation in a credible way until we 

had done everything humanly possible to look at those laptops, fully realizing that it 

likely, there may not be anything on them.” He stated he also made this point 

clear to “Carlin, Toscas, and others.” Comey told the OIG that he agreed with the 

FBI team that the culling laptops were “critically important.” He stated:

I believe we could not credibly complete this investigation without 

getting access to those laptops, and that I was not going to agree to 

complete this investigation until we had access to those laptops 

because...we just couldn’t credibly say we had done all we could do, if 

we didn’t do everything possible to see, is there a forensic trace of 

emails that were deleted and can we tell whether there was 

obstructive intent.

Comey, Baker, and other FBI witnesses told us that they believed the 

prosecutors were overly cautious about obtaining the laptops, because they were 

intimidated by high-powered defense counsel like Wilkinson. Referencing the 

prosecutors’ concerns about obtaining the laptops, Comey stated:

And I remember a general concern that...there was a sense that [the 

prosecutors] didn’t want to do things that were too overt or too 

aggressive and I don’t know whether that extended to the use of a 

grand jury or not....

But there was a sense that there was a general lack of aggressiveness 

and willingness to take steps that would roil the waters. In my 

judgment honestly, was that that wasn’t politically motivated that’s 

just the normal cowardice...this is the normal fear and conservatism 
127

and the higher profile the matter, the more afraid sometimes the 

prosecutors are.

And so I didn’t attribute that to a political motive....

Lynch and Yates told us that they were unaware of any complaints that the 

prosecutors were not sufficiently aggressive, or that they were believed by the FBI 

to be intimidated by high-powered defense counsel. Lynch stated, “I don’t 

remember that being conveyed to me. You know, agents always think that 

prosecutors aren’t aggressive enough. But they don’t know the discussions and 

decisions that go behind the decisions as to...what steps you’re going to take[.]” 

She said that she would have viewed any such complaints as part of the normal 

dialogue that often occurs between prosecutors and agents unless someone had 

brought the complaints to her as a “catalogue” of specific decisions that were 

problematic.

Comey told us that he addressed the laptop issue with Yates, because he was 

concerned that higher level Department officials needed to be involved. He stated:

I think I had the sense that there’s nobody home. That the grownups 

aren’t home at Justice because they’ve, they’re stepping away from 

this. And so to be fair to myself, I think the laying over this was this 

sense that, in a way Carlin and above has abdicated responsibility for 

this.

However, despite his testimony that the prosecutors were not aggressive 

enough with Wilkinson and that higher level Department officials were not engaged, 

Comey told us that he did not discuss his concerns with the Department, ask the 

Department to assign new prosecutors, or seek the appointment of a special 

counsel.

109

 As discussed in Section II.A.2 of Chapter Six of this report, Comey told 

the OIG that he told Yates in April 2016 that the closer they got to the political 

conventions, the more likely he would be to insist that a special counsel be 

appointed. Comey said that his comment to Yates was motivated in part by his 

frustration that it was taking the Midyear prosecutors too long to obtain the Mills 

and Samuelson laptops. However, as explained in Section VII of Chapter Six, we 

did not find evidence that Comey ever seriously considered seeking the 

appointment of a special counsel. His reasons for not seeking the appointment of a 

special counsel or even seeking the assignment of new prosecutors were that he 

had the “A-team” working on the investigation on the FBI side and it was “too late 

in the game” at that point. In addition, Comey stated that he believed Yates “must 

have done something” in response to his discussion with her, “because the team 

perceived an adrenaline injection into the DOJ’s side that we had not seen before” 

and secured the culling testimony and laptops. Comey indicated to the OIG that he 

was satisfied with this result, stating, “We got access, we negotiated access to the 

 

109

 Comey also told us that he was not “troubled or struck” by the Department’s decision to 

have NSD run the investigation.
128

laptops and interviews of the lawyers, so the team got what the investigators 

thought they needed.”

F. Motivations behind the Culling Testimony and Laptop Dispute

Several FBI officials told us that they perceived that the prosecutors were

reluctant to obtain the culling laptops and testimony, but they did not believe that 

such reluctance was motivated by bias or political considerations. Comey stated, 

“There was serious concern about the reluctance to pursue the laptops...I had no 

reason to believe that was driven by an improper consideration.”

Based on the evidence we reviewed, Comey and others at the FBI were 

primarily motivated in the debate over obtaining the culling testimony and laptops 

by a desire to credibly complete the investigation and to do so sufficiently in 

advance of the election to not be perceived as political. Indeed, witnesses told us, 

and contemporaneous notes show, that by the time the Midyear team was debating 

how to handle Mills and Samuelson, the team generally agreed that the 

investigation was headed toward a declination and did not believe that it was likely 

that anything found on the culling laptops would change that outcome. For 

example, according to Laufman’s notes from May 11, 2016, Strzok told Laufman

that although he did not believe that finding something on the culling laptops that 

would change the outcome of the investigation was likely, it was nonetheless 

important to secure them from an “investigative standpoint.”

In addition, the notes of both Department and FBI employees show that 

beginning as early as May 2016, Comey conveyed to his employees a sense of 

urgency to complete the Midyear investigation. For example, Page wrote in her 

notes from a meeting on May 9, 2016, “Need to act with incredible urgency.” In 

the same notes, she included a reminder to herself to “call John [Carlin]” and ask,

“do your people know D’s urgency?” The next day, an analyst wrote in her notes:

[The Lead Analyst] and Pete

Meeting with Director

Sense of urgency

Similarly, Laufman’s May 11, 2016 notes state:

Director Comey...

- Extraordinary sense of urgency...

- As get closer to election would be more difficult to close 

- Risk of perception that won’t be credible, be seen as partisan...

FBI desires to wrap up in weeks, not months.

Moreover, as described in Chapter Six, Comey shared with Baker, McCabe, Rybicki, 

Priestap, Strzok, the Lead Analyst, and Page his first draft of a public statement 

recommending that no charges be pressed against Clinton in early May 2016, 

before the Midyear team interviewed Mills and Samuelson or obtained the culling 

laptops.
129

As described above, Strzok and Page were two of the strongest advocates of 

obtaining the culling testimony and laptops by compulsory process. On May 4, 

2016, a few weeks before Mills and Samuelson were voluntarily interviewed

regarding the culling process and a little over a month before the FBI obtained the 

culling laptops, Strzok and Page exchanged the following text messages. The 

sender of each message is identified after the timestamp.

8:40 p.m., Page: “And holy shit Cruz just dropped out of the race. 

It’s going to be a Clinton Trump race. Unbelievable.”

8:41 p.m., Strzok: “What?!?!??”

8:41 p.m., Page: “You heard that right my friend.”

8:41 p.m., Strzok: “I saw trump won, figured it would be a bit.”

8:41 p.m., Strzok: “Now the pressure really starts to finish MYE...”

8:42 p.m., Page: “It sure does. We need to talk about follow up call 

tomorrow. We still never have.”

The same day, at 8:48 p.m., Strzok sent a similar text message to the Lead 

Analyst. However, the Lead Analyst responded, “Did he? We need to finish it well 

and promptly, but it’s more important that we do it well. A wise man once said 

that.” The Lead Analyst told us that the “wise man” referenced in his text message 

was Comey.

Both Strzok and Page told us that the May 4, 2016 text message exchange 

was not an example of them allowing their political viewpoints to impact their work 

on the Midyear investigation. Rather, they told us that Comey had expressed a 

desire complete the investigation as far in advance of the elections as possible to 

avoid impacting the political process, and the fact that the presidential race was 

down to two candidates was a milestone that enhanced that sense of urgency. 

They both told us that their desire to move quickly to finish Midyear was not 

impacted by Donald Trump, in particular, securing the nomination over the other

Republican candidates.

IX. Interview of Former Secretary Clinton

The interview of Hillary Clinton took place on Saturday, July 2, 2016. Comey 

provided a few reasons for conducting the interview on a Saturday, including to 

complete the interview as soon as possible after the team finished all other 

investigative steps, to accommodate Clinton’s schedule, and to “keep very low 

visibility.” Comey told us that he received a briefing before the interview regarding 

general parameters, including when the interview would take place and who would 

be conducting it. However, he stated that he was not involved in formulating the 

questions for the interview.

We reviewed several issues related to the Clinton interview, including: the 

decision to conduct her interview last; a debate over the number of FBI agents and 

Department employees who would attend her interview and whether there were 
130

any efforts to adjust that number for political reasons; the conduct of the interview; 

the decision to allow Mills and Samuelson to attend the interview as Clinton’s 

attorneys even though they were also witnesses in the investigation; and the 

decision to conduct a voluntary interview rather than subpoena Clinton before the 

grand jury.

A. Decision to Conduct Clinton’s Interview Last

Witnesses told us that interviewing Clinton at the end of the investigation 

was logical. Prosecutor 3 told us that generally if investigators want to determine 

whether someone “at the top” is culpable, they first want to see what “lower level 

people have to say.” Prosecutor 3 told us that none of the prosecutors or agents 

disagreed with the decision to interview Clinton last.

Witnesses told us that in the Midyear case in particular it made sense to start 

at the bottom, because lower level people generally originated the emails 

containing classified information on unclassified systems and sent them to Clinton’s 

closer aides who, in turn, forwarded them to Clinton. Prosecutor 1 explained:

[T]he natural thing to do was work your way up the chain. And I say 

chain, but I also mean email chain.... And just get to the, get to the 

end. The Secretary’s email system was obviously the sort of 

foundation of all of this and why it became an issue. So we needed to 

understand the thinking in, in setting that up. So we naturally wanted 

to do her last. Also, doing interviews in that order in my experience 

allows you not to have to come back in serial fashion to the higherlevel people who it’s harder to get time with them.

Toscas stated that the team wanted to ask the lower level employees who 

originated the emails that turned out to be classified why they wrote the emails on 

unclassified systems, before asking the same questions of Clinton’s aides and 

Clinton herself. Comey told us that one of the strategies behind interviewing 

Clinton last was that the interviewing agents would know enough information from 

other witnesses that they could test Clinton’s credibility by asking her questions to 

which they already knew the answers.

B. Number of People Attending (“Loaded for Bear” Text Message)

Witnesses told us that there were disagreements within the Midyear team 

regarding who should attend the interviews of certain key players in the 

investigation. They stated that Laufman insisted on attending certain interviews, 

including Clinton’s interview, although he normally did not attend interviews. The 

FBI took the position that if Laufman would be at an interview, Strzok, who was 

roughly his counterpart at the FBI, should also be at the same interview.

Strzok and Page told us, and contemporaneous emails and notes show, that 

they and other members of the Midyear team, including the line prosecutors, were

concerned about the number of people attending Clinton’s interview and Laufman’s 

insistence on attending. These discussions started well before Clinton’s July 2 
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interview.110 On February 24, 2016, Strzok emailed Priestap that Laufman had 

called him earlier stating that he “felt strongly about DoJ bringing four attorneys 

([Laufman] + 3), and that he was going to raise it up his chain.” Strzok further 

wrote that he told Laufman that raising the issue up the chain would be “necessary 

because the DD had indicated the group should be 2-2,” meaning two agents and 

two prosecutors. Strzok forwarded this email to Page and another employee, who 

was also an advisor to McCabe, two minutes later. Strzok told us, and the email

chain that followed shows, that Strzok agreed with McCabe that two agents and two 

prosecutors would be ideal, but he was amenable to three agents and three 

prosecutors as a compromise. However, both McCabe and Strzok were opposed to 

allowing four prosecutors to attend the interview.

Later that evening, Strzok and Page exchanged several text messages about 

the dilemma over how many people should attend Clinton’s interview. Based on a 

review of this exchange, Strzok was concerned that if only two agents and two 

prosecutors attended the interview and Laufman insisted on being one of the 

prosecutors, it would be difficult for Strzok to decide whether to send two case

agents or himself and one case agent. The following text messages were part of 

this exchange. The sender of each message is identified after the timestamp.

10:32 p.m., Page: “Do you or Bill [Priestap] fundamentally believe 

that 3 and 3 is the RIGHT thing for the case? If the answer is no, then 

you call [McCabe’s advisor] back and say we’re good as is. You have 

never wavered from saying 2 and 2 is best. I don’t get what the 

hesitation is now.”

10:52 p.m., Page: “One more thing: she might be our next 

president. The last thing you need us going in there loaded for bear. 

You think she’s going to remember or care that it was more doj than 

fbi?”

10:56 p.m., Strzok: “Agreed.”

Page sent a similar text message to an advisor to McCabe a few minutes 

after her text message to Strzok, and later to McCabe himself. With McCabe’s 

advisor, she had the following exchange.

10:56 p.m., Page: “Hey, if you have one opportunity to discuss 

further with andy, please convey the following: She might be our next 

president. The last thing we need is us going in there loaded for bear, 

when it is not operationally necessary. You think she’s going to 

remember or care that it was more doj than fbi? This is as much about 

reputational protection as anything.”

11:00 p.m., Advisor: “I’ll catch him before the morning brief to give 

him this nugget.... 

 

110

 Both FBI and Department witnesses, including Comey, told us that the Midyear team had 

originally planned to interview Clinton much earlier, but the interview was delayed because other 

tasks took longer than expected to complete.
132

The next morning, on February 25, 2016, this exchange continued as follows.

4:10 a.m., Page: “Hey I’ll just text andy this morning with my 

thought.”

4:11 a.m., Advisor: “Sounds good.”

The text message to McCabe was on February 25, 2016, at 7:41 a.m.:

Page: “Hey, you’ve surely already considered this, but in my view our 

best reason to hold the line at 2 and 2 is: She might be our next 

president. The last thing we need is us going in there loaded for bear, 

when it is not operationally necessary. You think she’s going to 

remember or care that it was more doj than fbi? This is as much 

about reputational protection as anything.”

The next text message exchange between McCabe and Page was in the evening on

February 25, 2016:

9:16 p.m., Page: “Hey I’m sorry. It’s just wildly aggravating how 

much churn has gone on this. Have a good night.”

9:50 p.m., McCabe: “Agree. Strongly.”

Page told us that the term “loaded for bear” in her mind meant “a ton of 

people,” such that the FBI was “trying to intimidate.” She stated that the message 

she was trying to send in her text message was not that Clinton should be treated 

differently, but that she should be handled the same as any other witness the FBI 

interviews. She further stated that as a former prosecutor her “personal 

preference” would be to not have too many people in an interview, because 

“[t]hat’s just sort of not conducive to both rapport-building and also just...what it 

looks like...just pure optics.” In addition, she told us that she believed the 

additional interviewers were “unnecessary” and “if there is no value to be added, 

then we should do things the way we always do things, which is with a smaller, 

more discrete footprint.” She further told us that, while “it’s irrelevant whether or 

not [Clinton]...would or would not become president...if she did become president, 

I don’t want her left with a feeling that...the FBI marched in with an army of 50 in 

order to interview me.” In other words, Page stated that her concern had to do 

with the “reputational risk” to the FBI.

McCabe’s advisor told us that he was not substantively involved in the 

Midyear investigation but, as an advisor to McCabe, he was sometimes present 

when Midyear was discussed at meetings and copied on emails in which Midyear

was discussed. He stated that he believed that he was involved in the late 

February conversations regarding how many Midyear team members should attend 

Clinton’s interview, because he was filling in for Page at one point during the 

conversations. McCabe’s advisor told us that he did not recall the above text 

message exchange with Page, likely because he was not substantively involved with 

the issues and was distracted at the time he received it. McCabe’s advisor stated

that he “did not know that the fact that [Clinton] might be our next President might 

be one of those motivating factors in Pete’s or in Lisa’s mind in determining the size 
133

of the interview team.” After reviewing the text message exchange during his OIG 

interview he stated:

My reaction to that is that that should not be a consideration in, in 

determining the right investigative step to take in the investigation, in 

determining the size of the team, the interview team. That...should 

have no bearing on it. What’s right for the case is right for the case, 

and that’s how we should make our decisions.

However, Strzok told us that he did not take Page’s comment to mean that 

“we need to treat her differently because she’s the next president.” He further told 

us, “I am certain I made no decision based on anything [Clinton] might be or 

become.” Strzok stated that strategically, to obtain “the best answer” it is “always 

ideal” to conduct an interview with “two agents and the subject.” He went on:

“Now, if they want counsel, fine. If you have a DOJ attorney, fine. But ideally...my 

experience is the smaller the setting, the more effective the interview.” Strzok told 

us that the only relevance of her being the next president was that “you don’t want 

the president thinking you’re a bunch of clowns.”

Similarly, McCabe stated that the “typical” way to run an interview is with 

two agents and one attorney, and “one of the reasons for doing that is to kind of 

keep the interviewees...defenses a little bit lower and not make people so 

concerned.” He stated that he understood Page to be saying in her text message 

that she would not want the future president to think the FBI was “a bunch 

of...brutes.” In addition, McCabe told us that when he wrote that he “agree[d]

strongly” with Page, he was agreeing that it was “ridiculous that we're still talking 

about who is going to what interview from which side,” not that the team should 

not go into Clinton’s interview too aggressively.

Several other FBI and Department witnesses we interviewed corroborated 

Page’s, Strzok’s, and McCabe’s testimony that typically the FBI limits the number of 

interviewers in an interview for strategic investigative purposes, and that Laufman’s 

insistence on attending certain interviews caused frustration within the FBI. For 

example, Agent 2 stated, “when the room gets too big...it's hard as the interviewer 

to try to build that connection with the person you're interviewing...to get a good 

interview.” AAG Carlin told us that disputes regarding which prosecutors and 

agents will attend an interview are common. He further told us that “to do an 

effective interview you don’t want to have 50 people in the room.” As noted in 

Section VI of this chapter, Laufman told us that he attended the interviews of 

Clinton and other key witnesses to ensure that those interviews were handled 

properly and to ensure that he had a complete picture of the investigation before 

accepting the FBI’s and the prosecutors’ recommendations. 

Ultimately, Clinton’s interview was attended by Agents 1 and 2, Strzok, 

Laufman, and all four line prosecutors. McCabe stated that the number of people 

that ultimately attended Clinton’s interview shows that investigative steps were not 

influenced by a desire to go easy on Clinton. In addition, multiple witnesses told us 

that they never heard anyone discussing the need to go easy on Clinton in light of 

her candidacy for president and that any such discussions would have been 
134

inappropriate. Carlin stated that such discussions would have been “thoroughly 

unacceptable and no one on our team would have done that.”

C. Conduct of Clinton’s Interview

Both agents and prosecutors told us that by the time of Clinton’s interview 

they did not believe criminal charges were likely because they had conducted all 

other investigative steps and, absent a confession from Clinton, they had concluded

that there was insufficient evidence of intent. Comey told us that by early May 

2016 (when he circulated a first draft of a public statement recommending that the 

Midyear investigation be closed without prosecution), the team had not “found 

anything that seemed to the team or to me as a case that DOJ would prosecute” 

and he had a “reasonable confidence read at this point that barring something else, 

this looks like it’s on a path” toward declination. However, he stated that if Clinton 

had “lied to us in a way that we thought we could prove, that would have changed 

everything.” Prosecutor 1 stated that there were important topics the team wanted 

to cover with Clinton, including whether she was aware that classified information 

was present in her emails, her understanding of the highly classified SAP material 

contained in some of her emails, why she used a private email account on a private 

server, and security measures she took when emailing overseas.

Agents 1 and 2 were the case agents that conducted Clinton’s interview, in 

the presence of all four prosecutors, Laufman, Strzok, and Clinton’s attorneys. 

Witnesses told us that Agent 2 focused on questioning Clinton regarding her 

involvement in emails that the FBI determined to contain classified information, 

while Agent 1 questioned her regarding her server and the production of emails to 

the State Department by her attorneys.

As discussed in Chapter Twelve, we identified instant messages from Agent 1 

that raised concerns about potential bias. This included an instant message 

exchange on November 8, 2016 (Election Day), between Agent 1 and Agent 5 (who 

were in a relationship at the time and are now married), in which Agent 1 

messaged, “You should know;.... that I’m.... with her.”111 (Punctuation in original). 

Additionally, we observed instant messages in which Agent 1 expressed concerns 

about the quality of the Midyear investigation, as described in Section XI of this 

chapter. Two of the instant message exchanges we identified occurred close in 

time to the Clinton interview.

On June 28, 2016, four days before the Clinton interview, Agent 1 sent an 

instant message complaining about the numerous people involved in preparing for 

the Clinton interview. Agent 1 messaged, “...very aggravating making this flow 

with 20+ voices for disparate information anyway. We have nothing – shouldn’t 

[sic] even be interviewing. Today, someone said we really need to call out that she 

had two phones when her excuse not to have a state bb [State Department 

Blackberry] in the first place was because she didnt [sic] want to carry two 

phones.” Agent 1 sent a series of messages that continued, “My god.... I’m 

 

111

 “I’m with her” was one of the Clinton campaign slogans.
135

actually starting to have embarrassment sprinkled on my disappointment.... Ever 

been forced to do something you adamantly opposed.”

We asked Agent 1 about this instant message exchange. He told us that 

when he wrote “20+ voices” he was referring to the number of FBI and Department 

employees involved in the Clinton interview preparation. He stated that Agent 2 

and he were “working together well,” and they “just kept saying to each other when 

are we going to actually have time to prepare for this other than prepare everyone 

else for it?” He stated that the frustration expressed in the instant message 

exchange was related to his sense that Midyear was not the “normal” case where 

the FBI “culminate[s]” with an interview of a subject who introduced classified 

information onto an unclassified system, unlike Clinton who mostly received 

classified material from others. We asked Agent 1 if he thought that the Clinton 

interview was unnecessary. Agent 1 told us he thought the interview was 

necessary and stated:

I think we needed to get statements from the Secretary about what 

she knew this information to be, she was the Secretary of State, so if 

you thought this was classified, why did you not, if you had an 

impression it was classified, why did you not stop it, or why did you 

not say to the people that were underneath you that you should 

handle this better? What did you know about where it was? How do 

you understand a server to, to work, and do you know that a copy 

resides there? Those types of things, to include a couple that we 

found. I don't, I don't want to make it sound like there was no reason 

to interview her. That, including, including a couple of emails we 

found where there were portion markings, what we thought to be 

portion markings inside of the email. And she had made statements 

before that...there were no emails that were marked classified.

Agent 1 told us that he did not know what he meant by “forced to do something 

you adamantly opposed.” Agent 1 stated that this may have been a reference to 

not being able to prevent Mills and Samuelson from attending the Clinton interview.

On July 6, 2016, four days after Clinton’s interview, Agent 1 sent an instant 

message in which he stated that he was “done interviewing the President,” referring 

to Clinton. We asked Agent 1 if he thought of Clinton as the next president while 

conducting the Midyear investigation. Agent 1 stated, “I think my impression going 

into the election in that personal realm is that all of the polls were favoring Hillary 

Clinton.” We asked Agent 1 if he treated Clinton differently because of this 

assumption. Agent 1 stated, “Absolutely not. I think the message they said that 

our leadership told us and our actions were to find whatever was there and 

whatever, whatever that means is what it means.”

We interviewed all eight of the FBI and Department officials that attended 

Clinton’s interview, and none of the witnesses we interviewed expressed concerns 

about the way the case agents handled the interview. Prosecutor 1 told us that 

Prosecutors 1 and 2 and the case agents did “most of the talking during the 

interview,” which was “led by the agents.” Prosecutor 1 further told us that 
136

generally “agents would lead [the interviews], and attorneys would interject as 

needed, and we’d pause after different, as we transitioned to make sure things 

were covered.” In addition, Prosecutor 1 stated that, “The agents had a good 

rapport with [Clinton].” Prosecutor 1 further stated, generally, that the agents did 

a “good job” in interviews and that he did not have concerns about the agents not 

“pushing hard enough.”

Based on a review of the FD-302 and contemporaneous notes from Clinton’s 

interview, Clinton told the Midyear team that she chose to use a personal 

Blackberry connected to her personal email account for official communications for

convenience, and she denied using personal email or a personal server to avoid 

FOIA or Federal Records Act requirements. Clinton further told the FBI that during 

her tenure she received classified information through secure briefings, secure calls, 

classified hard documents, and classified faxes, and she “did not recall receiving 

any emails she thought should not be on an unclassified system.” According to the 

FD-302, Clinton stated that she was aware that her email was supported by a 

private server, but she did not know the details of the different server systems she 

used. The FD-302 indicated that the interviewers showed Clinton numerous 

unmarked emails she had received containing information that was determined to 

have been classified. Clinton responded with respect to each email that she did not 

believe the information contained in the email was classified or that she relied on 

the State Department employees who worked for her to use their judgment in 

determining whether information was classified and appropriate to send on 

unclassified systems. Agent 1 told us that the interviewers asked “probing 

questions” with respect to each of Clinton’s responses. Prosecutor 1 told us, and 

our review of other FD-302s showed, that Clinton’s responses to these questions 

were consistent with the testimony of other witnesses on the email chains, 

including Clinton’s senior aides who forwarded classified information to her.

The FD-302 and contemporaneous notes indicate that the interviewers asked 

Clinton about her understanding of her record keeping obligations, the culling 

process that was used to provide her work-related emails to the State Department, 

and the deletion of emails from her server. According to the FD-302, Clinton told 

the FBI, among other things, that she did not recall being asked to turn over her 

email records upon her departure from State and that she believed her workrelated emails were “captured by her practice of sending them to state.gov email

addresses of her staff.” She stated that, upon receiving a request from the State 

Department in 2014, she “expected” her attorneys to turn over any emails that 

were “work-related or arguably work-related,” but she did not otherwise participate 

in developing the culling process. Agent 1 told us, consistent with the FD-302, that 

he pressed her on her lack of involvement in the State Department production, by 

showing her a work-related email that was not produced as part of the 30,490. 

Clinton responded that she agreed that the email was work-related and did not 

know why it was not included in the State Department production. Clinton told the 

FBI that in December 2014, after the production of her work-related emails to the 

State Department, her staff asked her what she wanted to do with her personal 

emails and she responded that she “did not need them anymore.” The FD-302 

states that “Clinton never deleted, nor did she instruct anyone to delete, her email 
137

to avoid complying with Federal Records Act, FOIA, or State or FBI requests for 

information” and that she “trusted her legal team” would comply with the March 3, 

2015 Congressional preservation request.

In addition, the interviewers asked Clinton about an email that contained a 

parenthetical with a “(C)” at the beginning. According to the prosecutors, Clinton 

received three email chains during her State Department tenure that contained at 

least one paragraph that began with a ‘(C),’ a classification marking used to denote 

information classified at the Confidential level. The prosecutors stated that these 

were the only emails containing classification markings that the FBI identified 

during its investigation, the emails did not contain any markings other than the one 

or two paragraphs in each email beginning with a “(C),” and as of July 6, 2016, the 

State Department had not responded to the FBI’s request for a determination as to 

as to whether the information in these three emails was classified at the time the 

emails were sent. The prosecutors further stated that the State Department had 

determined through the FOIA process that only one of the three emails contained 

information that was classified as of July 6, 2016, and that this email was classified 

at the Confidential level. According to the FD-302 from Clinton’s interview, Clinton 

told the FBI that she did not know what the “(C)” meant and “speculated it was a 

reference to paragraphs ranked in alphabetical order.” The FD-302 indicates that 

the FBI had added a classification marking of “Confidential” to the top of the 

document and that, upon noticing this marking, Clinton asked if the “(C)” meant 

Confidential. Clinton told the interviewers that she did not agree that the 

information contained in the email was classified, because it described information 

that was already in the press. Witnesses told us, and contemporaneous emails 

show, that the FBI and Department officials who attended Clinton’s interview found 

that her claim that she did not understand the significance of the “(C)” marking

strained credulity. Agent 1 stated, “I filed that in the bucket of hard to impossible 

to believe.” Agent 1 further stated that he and the other interviewers asked Clinton 

about her understanding of the “(C)” markings four or five times, but she did not 

change her answer. He told us, “I also don’t know at that point in the interview 

what else we could have done besides all the different ways that we asked it.”

Comey told us that one of the purposes of interviewing Clinton was to see if 

she would be truthful. However, he stated that the agents that conducted the 

interview found her credible and were surprised at how “technically illiterate” she 

was. While Comey did not specifically comment on the team’s reactions to Clinton’s 

testimony regarding the “(C)” portion markings, he stated, “By her demeanor, she 

was credible and open and all that kind of stuff, but—so I can’t sit here and tell you 

I believed her. I can only tell you, in no particular could we prove that she was 

being untruthful to us.” The prosecutors similarly indicated that the team did not 

believe it could prove that Clinton had been dishonest during her interview or that 

she knew that the document with the “(C)” marking was classified. The 

prosecutors stated that the “(C)” markings were somewhat ambiguous given their 

placement in the email chains and the fact that the classification marking 

‘Confidential’ was not spelled out anywhere in the email, let alone in a readily 

apparent manner. They further stated that Clinton’s statement regarding her 

knowledge of the “(C)” marking was not one that could be affirmatively disproved.
138

D. Decision to Allow Mills and Samuelson to Attend Clinton 

Interview

According to the FD-302 for Clinton’s interview, Mills and Samuelson 

attended the interview as Clinton’s counsel, in addition to Clinton’s three attorneys 

from the Williams and Connolly law firm. Numerous FBI and Department witnesses 

told us that they were opposed to Mills and Samuelson attending Clinton’s 

interview, because Mills and Samuelson were also witnesses in the investigation. 

They stated that they were concerned both that Mills and Samuelson could 

influence Clinton’s testimony and that their presence would be bad from an “optics” 

standpoint.

Prosecutor 1 told us that the prosecutors first learned that Mills and 

Samuelson planned to attend Clinton’s interview less than a week before the 

interview took place. Witnesses told us that the prosecutors contacted Kendall to 

discuss their concerns about Mills and Samuelson attending, but that Kendall 

“pushed back.” Several Midyear team members stated, and contemporaneous 

notes show, that after the call with Kendall the Midyear team conferred more than 

once and that everyone agreed that, although they were not comfortable with the 

situation, they could not prevent Clinton from bringing her counsel of choice to a 

voluntary interview. Laufman stated, “We gave careful thought to whether we had 

any grounds to bar admission to Mills and Samuelson from the interview of 

Secretary Clinton. And we determined we did not have a legal or bar rule-slashethics based premise to do so.” Several witnesses also told us that they were more 

concerned with the “optics” of Mills and Samuelson attending than them influencing 

Clinton’s testimony, because they were confident that Clinton had already been well 

prepared by her attorneys and had probably conferred with Mills and Samuelson in 

advance of the interview in any event (which the investigators could not prevent).

Based on the evidence we reviewed, the issue of Mills’s and Samuelson’s 

attendance was raised up the chain within the FBI through former Director Comey

and within NSD through Toscas. According to FBI Attorney 1, the issue was 

discussed at a meeting she attended that included Comey, McCabe, Baker, Rybicki, 

Deputy General Counsel Anderson, EAD Steinbach, AD Priestap, Strzok, Page, and 

the Lead Analyst. FBI Attorney 1 stated that the lawyers in the meeting, including 

Comey, all agreed that there was no legal basis to exclude Mills and Samuelson 

from the interview. Comey told us that he could not remember the specifics of his 

conversations regarding Mills and Samuelson attending the Clinton interview; 

however, he stated that he believed “it was a fairly brief discussion because our 

judgment was it’s an essential interview, we’ve washed them out. We’ve looked at 

their conduct pretty carefully and so those two things together, so we don’t really 

have a basis for excluding...either of them from the interview.”

Lynch and Yates both told us they did not recall being briefed on Mills and 

Samuelson attending Clinton’s interview. Carlin told us, “I don’t remember [Mills’s 

and Samuelson’s attendance] being a major issue so I’m assuming they worked 

that out without, I kind of more was just briefed that that was occurring rather than 

that there was some dispute over it.”
139

The prosecutors told us that the team put a plan in place to prevent Mills or 

Samuelson from influencing Clinton’s testimony: if Mills or Samuelson “actively 

involved themselves in the interview” they would address the issue further at that 

time, possibly through a “side bar” with Kendall. The prosecutors and agents that 

attended the interview all told us that ultimately Mills and Samuelson did not 

interfere or object, engage in side-bars with Clinton, or speak substantively during 

the interview. Rather, Prosecutor 1 told us that Clinton’s Williams and Connolly 

attorneys did the “actual...lawyering, such that there was any there.”

Prosecutor 1 stated that they did not consult PRAO regarding the ethical 

implications of Mills’s and Samuelson’s attendance. We asked the prosecutors

whether they spoke to Wilkinson about their concerns or suggested to Wilkinson 

that her clients’ attendance could violate their own ethical duties, given that at the 

time of the culling testimony and laptop dispute Wilkinson had indicated that her 

client’s interests were different from Clinton’s in the Midyear investigation.

112

 They 

told us they had not done so, and Laufman stated he did not recall considering 

those ethical concerns. However, Laufman and FBI Attorney 1 both told us that if 

there was such a conflict, Clinton could waive it. In addition, Prosecutor 1 stated

that the team did not question at the time of the Clinton interview whether Mills 

and Samuelson in fact had ongoing attorney-client relationships with Clinton, 

because the prosecutors had already concluded there were ongoing attorney-client 

relationships when they sought subpoenas for the culling laptops.113

E. Consideration of Subpoenaing Clinton before the Grand Jury

We asked several witnesses whether they considered subpoenaing Clinton 

before the grand jury in order to avoid Mills’s and Samuelson’s presence at the 

interview. We also asked whether they considered simply refusing to interview 

Clinton if she insisted on having Mills and Samuelson present, given the pressure on 

Clinton to cooperate with the investigation—in other words, whether the Midyear

team underestimated its strategic position against Clinton’s attorneys.

Some witnesses told us that use of the grand jury was the only way to legally 

prevent Mills and Samuelson from attending, but that the team did not seriously 

consider that option. Prosecutor 4 stated:

 

112

 In the March 31, 2016 PRAO request seeking advice on whether the prosecutors could 

seek a waiver of attorney-client privilege from Kendall, Laufman wrote that Wilkinson had represented 

that her clients’ interests “may differ from, or conflict with” Clinton’s interests.

113

 As part of the application for the subpoenas for the laptops, the prosecutors had to answer 

whether Mills and Samuelson had ongoing attorney client relationships with Clinton and whether the 

subpoenas would have any potential adverse effects on those relationships. The prosecutors wrote in 

the applications that Wilkinson had represented that Mills and Samuelson continued to have attorneyclient relationships with Clinton, but that “the nature and scope of that representation is unclear given 

that the former Secretary has separate counsel (David Kendall) representing her during this 

investigation.” They further wrote, “Even if [Mills and Samuelson are] representing Clinton in 

conjunction with this matter, it is highly unlikely that issuance of the subpoena would result in Mills 

being disqualified from representing the former Secretary.”
140

I thought Mills being present was idiotic. And I believe that 

[Prosecutor 1] and I talked about it. And I said, well, look, we cannot 

exclude her as a legal matter unless we are willing to threaten to 

throw Hillary in the grand jury, at which point I’m fairly confident that 

they will fold. And [Prosecutor 1] and I discussed it. And I don't know 

if he ever raised that possibility. But it was obvious to me that nobody 

was willing to, to threaten, to threaten Hillary in the grand jury.

However, Prosecutor 4 stated that his concern about Mills and Samuelson 

attending Clinton’s interview was “from an optics standpoint” and that “from my 

vantage point, the cost-benefit analysis of trying to go through and get somebody 

to authorize me to threaten to throw Hillary in the grand jury was not worth getting 

the, the interview done at that point.” Prosecutor 3 told us that if the Midyear team 

insisted that Mills and Samuelson not attend, Clinton likely would have relented 

because of her desire to say publicly that she cooperated with the investigation. 

Other FBI and Department witnesses we interviewed told us that they simply did 

not consider these options.

The SSA told us that it would have been anomalous to subpoena Clinton 

before the grand jury given that no other witnesses had testified before the grand 

jury and Clinton, like the other witnesses, was cooperating. Strzok told us that the 

team decided against subpoenaing Clinton to testify before the grand jury because

“the expectation of the information we would get from her in either setting was not 

substantively different,” given that she had “extraordinary counsel” preparing her. 

Toscas told us that if Clinton had been required to testify before the grand 

jury, members of the FBI team would not have been able to participate in the 

interview. In addition, Laufman, Prosecutor 1, and FBI Attorney 1 told us that 

admitting classified information before the grand jury would have involved an

uncertain and lengthy process of obtaining approvals from the various government 

agencies that owned the classified information. Prosecutor 1 stated that, even if 

the approvals could be obtained, it is better to avoid sharing classified information 

with the grand jury, if possible. 

Laufman stated that subpoenaing Clinton to testify before the grand jury 

would have been “a grossly disproportionate course of action in relation to what we 

were dealing with and [out of] step with how we had previously been conducting 

the investigation throughout its course.” He further stated, “[W]e did not think this 

was worth blowing up the investigation, and, and creating what almost certainly 

would have become a matter of public knowledge that we had suddenly issued a 

grand jury subpoena to the Secretary at this stage of the national electoral 

process.” He explained that throughout the investigation the team was attempting 

to avoid “extrinsic information” from the investigation being publicly disclosed and 

used for political purposes, and this was no exception.

Witnesses told us that at the point of Clinton’s interview, they had conducted 

all other investigative steps and knew that there was insufficient evidence to 

prosecute Clinton unless she incriminated herself. Laufman told us that because 

the prosecutors did not believe a subsequent trial was likely, they were not 
141

concerned that Mills’s or Samuelson’s later testimony would be influenced by being 

privy to Clinton’s interview. Prosecutor 4 told us that if he had the investigation to 

do over again, the one thing he would have done differently was “insist that Mills 

not attend the Hillary interview.” However, he also stated that at that point he 

agreed with the rest of the team that there was no prosecutable case and the main 

reason to have put her in the grand jury was to avoid subjecting the investigation 

to criticism.114

Comey told us that he did not remember discussing with anyone the 

possibility of subpoenaing Clinton before the grand jury. However, he stated:

At that point, I really didn’t think there was a there there, and the 

question was, is she going to lie to us? She’d be as likely to lie to us 

in a grand jury or in an interview. And I just suppose in the grand jury 

is you’ve got the transcript, but we’ve got a bunch of agents taking 

notes, so I don’t think it would’ve mattered much to me at that point.

X. FBI Inspection Division Internal File Review of the Midyear 

Investigation

In September and October 2017, the FBI assigned three SSAs (File Review 

SSAs) from the Boston Field Office to the FBI’s Inspection Division (INSD) to 

conduct a special review of the Midyear investigation (File Review).

115 Baker told us 

that he proposed the File Review after being informed of the OIG’s discovery of text 

messages between Strzok and Page expressing political views. He stated that once 

he learned of the text messages, he suggested to EAD Carl Ghattas and possibly 

other senior FBI officials that a review team be brought in to “look at the case and 

all the decisions that were made in a quiet way.” Baker further stated that the 

purposes of the File Review were to “make sure that [Strzok, Page,] or others did 

not make decisions in the case based on improper political considerations, including 

failing to taken actions they should have,” and to “make sure that, from a 

management perspective, if other steps needed to be taken, we should find that 

out quickly and take those steps, including reopening the investigation.” He told us 

that they decided that the File Review team would not interview witnesses, because 

they did not want to interfere with the ongoing OIG review. Baker stated that 

Ghattas took the lead on the review.

Two of the SSAs who conducted the File Review had experience in the FBI’s 

Criminal Investigative Division (CID) while the third SSA had experience in the 

FBI’s Counterintelligence Division (CD). The File Review SSAs told us that Ghattas

requested that they do the File Review, and that they met with Ghattas in FBI 

 

114

 Prosecutor 4 stated that once he realized there was no prosecutable case, he had two 

goals in the investigation: “One was to conduct the investigation quickly to get it resolved before the 

election, as soon before the election as possible. And the second was to do it in a way that would 

engender public trust to the maximum extent possible.”

115

 Due to fact that the OIG’s review was ongoing at the time, the FBI sought and obtained 

permission from the OIG to conduct the File Review. 
142

Headquarters at the start of their review. They stated that they were instructed not 

to discuss their review with other FBI employees. The File Review SSAs also told us 

that they were not told about the text messages between Strzok and Page before 

the start of the review. Baker told us he was unaware that the File Review SSAs 

were not told about the text messages before the start of the File Review. 

File Review SSAs 2 and 3 told us that they understood the purpose of the 

review to be to assess what the Midyear investigators appeared to have done well, 

what investigative steps were missed, and what lessons could be learned from the 

investigation. File Review SSA 2 stated that the File Review was not intended to be 

a reinvestigation. The File Review SSAs told us that their review was limited, by 

design, to the official FBI Midyear file. They did not interview any witnesses nor did 

they review any documents that were not included in the official file, such as 

handwritten notes taken by Midyear team members during meetings, emails or text 

messages sent or received by Midyear team members, or materials maintained by 

the prosecutors or others Department officials. They also did not review SAP 

material. File Review SSA 2 told us that the team did not “intend [for the file 

review] necessarily to be a...final...judgment or indictment on the FBI or on WFO or 

the case agents. It was more just...here are our observations, and here are some 

questions...should anyone else...take a look at this...take this into consideration. 

That's kind of all we intended by it.”

The File Review SSAs told us, consistent with their File Review Report, that 

they conducted their review over the course of six days, between September 5 and 

September 8, 2017, and between October 3 and 4, 2017; however, the first day 

was mostly spent meeting with Ghattas and locating the records to review. They 

stated that thereafter they spent approximately 12 hours per day reviewing records 

in the official file, discussing items they came across that caused them concern, and 

recording information in spreadsheets. File Review SSAs 2 and 3 told us that each 

File Review SSA focused on a different portion of the file, and none of them 

individually reviewed the entire file. During the course of their review, in addition 

to reviewing and discussing the records, the File Review SSAs completed a first 

draft of the File Review Report, which File Review SSA 1 finalized with minor edits

thereafter. The File Review SSAs told us that they all approved the final File Review 

Report.

Under the heading “FBI Investigative Actions,” the File Review Report stated:

The [File] Review Team’s analysis of the MIDYEAR EXAM investigation 

did not find substantial or significant areas of investigative oversight 

based on the stated goals of the investigation. In contrast, [the File 

Review Team] assessed [that] the [Midyear] investigative team 

conducted a thorough investigation within the constraints imposed by 

DOJ. Appropriate witnesses were interviewed, records preserved, 

information and computer devices obtained, and necessary business 

records were subpoenaed to meet the goals of the investigation. FBI 

resources such as [Computer Analysis and Recovery Team (CART) 

personnel], Intelligence personnel, communication analysis, and Cyber 

Agents were skillfully and successfully utilized to review and fully 
143

exploit substantial amounts of data in support of the investigation.... 

The efforts of the case Agents and case team should be commended.

Nonetheless, the File Review Report also contained criticisms of the Midyear 

investigation. Generally, the File Review Report assessed that it would have been 

better to run the Midyear investigation as a traditional criminal investigation out of 

a Criminal Investigative Division (CID) field office, rather than as a 

counterintelligence investigation out of CD. The File Review SSAs expressed 

concern that treating the investigation as a CD investigation with NSD oversight 

resulted in more limited use of compulsory process such as grand jury subpoenas 

and search warrants. However, the File Review SSAs told the OIG that they were 

not aware of any precedent for handling a counterintelligence investigation out of 

CID. File Review SSA 2 stated that counterintelligence investigations “are always 

run out of the Counterintelligence Division.”

116

 

The File Review SSAs identified specific concerns with the Midyear 

investigation, although we found that many of these concerns were the result of the 

fact that the File Review SSAs had incomplete information. For example, the File 

Review Report states, “No immunity in exchange for testimony was observed in the 

investigation,” and “[o]ne instance of a proffer letter was observed,” referring to 

the limited use immunity agreement between the Department and John Bentel. 

The File Review SSAs told us that they were unaware that the Midyear prosecutors 

also entered into letter use immunity agreements with Combetta and Pagliano.

117

The File Review SSAs told us, consistent with the File Review Report, that 

they believed the Midyear agents relied too heavily on outlines during interviews 

and did not ask sufficient follow-up questions. However, they stated that they 

based this assessment only on their review of the FD-302s. The Midyear SSA and 

Agent 1 told us that the CD Division does not draft FD-302s in such a way that a 

reader would know what follow-up questions were asked of witnesses; instead, the 

FD-302s generally set forth each witness’s ultimate statements in response to 

series of questions.

In addition, the File Review SSAs told us that they considered the DIOG, but 

did not consider any Department policies, such as the USAM, regarding guidelines 

for obtaining evidence relevant to the Midyear investigation. For example, they 

 

116

 The File Review Report also described a concern that the Midyear Team was “directly 

supervised by CD-4 personnel [in FBIHQ] as opposed to an SSA and ASAC as found during field office 

investigations.” In fact, at the time the Midyear investigation began, Strzok was an ASAC in the FBI’s 

Washington Field Office (WFO) and the Midyear SSA was an SSA in WFO. 

117

 Additionally, the File Review Report expressed a concern regarding the timing of the 

Pagliano declination letter, but we found that this concern was based on incomplete information. The 

report stated, “It was unclear to the [file] review team the need for such an expedited prosecution 

declination.” However, the File Review SSAs told us they were unaware that the declination 

concerned only Pagliano’s compensation from the Clintons (for which PIN ultimately determined he 

faced no criminal exposure), and not the mishandling of classified information or destruction of federal 

records.
144

stated they did not consult the USAM provisions regarding obtaining evidence from 

attorneys concerning their representation of clients.

Based on these findings, the report concluded:

INSD assessed the FBI Midyear Exam investigation successfully 

determined classified information was improperly stored and 

transmitted on Clinton’s email server, and classified information was 

compromised by unauthorized individuals, to include foreign 

government’s or intelligence services, via cyber intrusion or other 

means [referring to compromises of email accounts associated with 

certain individuals who communicated with Clinton’s server, such as 

Blumenthal]. However, the structure of the investigation and 

prosecution team, as prescribed in the CD PG, and treatment of the 

investigation as a traditional espionage matter rather than a criminal 

investigation significantly hindered the ability of the investigative team 

to obtain full, accurate and timely information.

XI. Instant Messages Relating to the Conduct of the Midyear 

Investigation

FBI employees have the ability to communicate internally via Microsoft Lync 

instant messages when logged on to their FBI workstation. As part of our review, 

the OIG identified contemporaneous instant messages in which Agent 1 expressed 

concerns about the quality of the Midyear investigation. These messages were sent 

to numerous FBI employees, including an agent assigned to the Midyear filter team

(Agent 5). Agent 1 and Agent 5, who are now married, were in a relationship for 

the entirety of the Midyear investigation. We identified additional instant messages 

sent by Agent 1 and Agent 5 that raised concerns about potential bias. We discuss 

these messages and others in Chapter Twelve.

The Midyear filter team was responsible for conducting an initial review of 

evidence obtained during the investigation and ensuring that nothing that was 

either beyond the scope of the FBI’s authority to review or protected by a valid 

privilege was provided to the investigative team. We found that Agent 1 and Agent 

5 exchanged numerous instant messages about the Midyear investigation. 

However, we identified no instances where Agent 5 provided Midyear-related 

information to Agent 1 that should have been withheld from the investigative team. 

Agent 1 and Agent 5 told us that their Midyear supervisors were aware of their 

relationship by the end of 2015 at the latest and it was never identified as a 

concern.

We asked Agent 1 generally about his use of instant messaging on his FBI 

workstation. Agent 1 told us that he believed that instant messages were not 

retained by the FBI and therefore used less caution with those communications 

than he would have with other types of communications, such as email or text 

messages. Agent 1 also repeatedly emphasized that the instant messages served 

as a type of emotional release for him. Agent 1 stated:
145

I took that [instant messaging] as an informal, akin to a conversation 

almost, almost, you know, water cooler style. I think in there.... 

There is personal and emotional communications between my then

girlfriend, now wife. There is some jocularity there. There is, you 

know, I think, I think some outlet, stress outlet....

You know, guys, I just, I think this was primarily used as a personal 

conversation venting mode for me. I’m embarrassed for it. I don’t 

think that it affected my actions.

Agent 1 told us that the nature of his workspace also contributed to his use of 

instant messaging. Agent 1 explained that for the Midyear investigation he was 

relocated to FBI Headquarters and placed inside a SCIF with others on the Midyear 

team. Due to this, he was effectively unable to use his personal electronic devices 

at work and was also in a small space with his coworkers and supervisors, thereby 

preventing phone communication. Agent 1 emphasized that these were not 

excuses for the substance of his instant messages, but explanations for why he 

used them as an outlet for “stress relief” about frustrations he encountered at work.

Agent 1 described his instant messages with Agent 5 as personal communications 

with his significant other that they used for mutual support and complaints. 

Similarly, Agent 1 stated his instant messages with FBI personnel not assigned to 

the Midyear investigations were typically communications with friends. He also 

noted that many of these communications were initiated by FBI personnel seeking 

information on the Midyear investigation. Agent 5 echoed many of Agent 1’s 

explanations, stating that she considered instant messaging to be a private channel 

to communicate with Agent 1. Agent 5 told us that Agent 1 was her outlet at work 

for “emotional outbursts” and “relief of stress.”

Agent 1 sent instant messages in the initial months of the Midyear 

investigation commenting on the investigation. Some of these messages are listed 

below, along with the date sent and the recipient.

September 2, 2015, to Agent 5: “Have a really bad feeling about 

this...this case...situation.... No control and horrible decisions and 

chaos on the most meaningless thing I’ve ever done with people acting 

like fucking 9/11.”

September 25, 2015, to an FBI employee: “...I dont care about it. I 

think its continued waste of resources and time and focus....”

October 26, 2015, to Agent 5: “Its just so obvious how pointless this 

exercise is. And everyone is so into it....”

We asked Agent 1 about these messages. Agent 1 told us that prior to Midyear he 

had worked on other high-profile cases and part of the sentiment he expressed in 

these messages was a reluctance to be involved in another high-profile 

investigation. Agent 1 stated that he knew from prior experience that decisions in 

such investigation were typically made at higher levels. Agent 1 described the 

comment about the investigation being “meaningless” as “a little exaggerated” and 

explained that “maybe the intense scrutiny didn’t seem commensurate to what we 
146

had to do.” Agent 1 explained, “The FBI absolutely needs to investigate why 

classified information is in a place where it should not be. I just, it would, this is 

more probably an emotional comment on how scrutinized and how focused and how 

continued, there’s a continued focus on it to this day.”

Agent 1 also sent numerous messages that referenced “political”

considerations in the context of the Midyear investigation. We list examples of 

these messages below with the date sent and the content of the message along 

with context where necessary. Unless otherwise identified, the recipients of the 

messages are FBI employees not involved in the Midyear investigation.

January 15, 2016: Responding to a question of when the investigation 

would be finished, Agent 1 stated, “[M]y guess is March. Doesnt 

matter what we have, political winds will want to beat the Primarys.”

January 28, 2016: “...The case is the same is all of them. Alot of 

work and bullshit for a political exercise.”

February 1, 2016: “...Its primary season – so we’re being dictated to 

now....”

February 1, 2016: “This is the biggest political shit show of them all. 

No substance. Up at dawn – pride swallowing seige. No headset and 

hermetically sealed in SIOC.”

February 2, 2016: Responding to a question about how the 

investigation was going, “Going well.... Busy, and sometimes I feel for 

naught (political exercise), but I feel good....”

May 6, 2016, to Agent 5: “pretty bad news today...someone has 

breathed some political urgency into this.... Everyday DD brief and 

once a week D brief from now on.”

We asked Agent 1 about these messages. Agent 1 stated that he hoped these 

messages “would just directly reflect upon me and not anybody else that worked 

the case.” He explained that these messages simply reflect the fact that he wanted 

to work on something besides Midyear. We asked Agent 1 whether these messages 

indicated that the Midyear investigation was simply an exercise in “going through 

the motions.” Agent 1 responded, “No. I think this investigation needed to be 

worked.” He later continued, “I think if classified information is found in a place 

that it shouldn’t be, there should be an investigation.” Agent 1 added that he felt 

the scrutiny and attention that Midyear received was not “commensurate” with the 

nature of the violation the team was investigating. As to the messages about 

timing, Agent 1 told us that at some point in the investigation the “pace” increased 

and, although the team was never given a “finish by” date, there was “a sense that

things were picking up.”

On February 9, 2016, Agent 5 sent Agent 1 an instant message complaining 

about a meeting the filter team had with a Department attorney and the frustrating 

review task she was assigned. Agent 1 responded:
147

Yeah, I hear you. You guys have a shitty task, in a shitty 

environment. To look for something conjured in a place where you 

cant find it, for a case that doesnt matter and is predestined. All you 

ask for is acknowledgment of that and clear guidance. But no. DOJ 

comes in there every once in awhile and takes a wishy-washy, 

political, cowardice stance. Salt meets wound. That is the 

environment love. Can’t sugar coat it. Now, what? What can you do? 

What can you control? Work hard, do the best you can, and try to 

keep others motivated.

After reading this message during his OIG interview, Agent 1 stated:

I have no information that it was a pre-determined outcome by 

anyone. I had, I had no statement from anyone that I can tell you 

that I worked with that said this is where we’re going.... I think even 

the leadership that stopped by in the, in the, in our space always said 

that as well. Whatever you find, you know, is what it is. You know, 

just, just find what it was, and, you know, don’t worry about anything 

else, the outside noise.

All I can tell you is this is probably, I mean, it’s a little overwhelming 

to see all [these messages] at once, as probably somebody who was, 

who wanted to do something else, I think.

Agent 1 stated that he could not recall anything specific to add to this exchange.

In another exchange on February 4, 2016, Agent 1 and an FBI employee who 

was not assigned to the Midyear investigation discussed Agent 1’s interview with a 

witness who assisted the Clintons at their Chappaqua residence. Part of this 

exchange follows.

FBI Employee: “boom...how did the [witness] go”

Agent 1: “Awesome. Lied his ass off. Went from never inside the scif 

[sensitive compartmented information facility] at res, to looked in 

when it was being constructed, to removed the trash twice, to 

troubleshot the secure fax with HRC a couple times, to everytime there 

was a secure fax i did it with HRC. Ridic,”

FBI Employee: “would be funny if he was the only guy charged n this 

deal”

Agent 1: “I know. For 1001. Even if he said the truth and didnt have 

a clearance when handling the secure fax – aint noone gonna do shit”

We asked Agent 1 about the implication in this message that no one would be 

charged irrespective of what the team found. Agent 1 stated:

Yeah, I, I don’t think I can say there’s a specific person that I worked 

with in this case that wouldn’t charge him for that. I think it’s a 

general complaint of, you know, of FBI agents that are kind of, kind of 
148

being emotional and, and complaining that no one is going to do 

something about, about something.... But there’s nothing specific that 

I, that I can tell you.

Agent 1 told us he did not recall any discussion about whether this witness should 

be charged with a crime. 

In a January 19, 2016 message to Agent 4, Agent 1 stated, “What we want 

to do and what we’re going to be allowed to do are two different things.” Agent 1 

told us that he did not remember this exchange and did not know what he was 

referring to in this message. However, he stated that he appears “to be venting a 

little bit” to Agent 4.

XII. Analysis of Investigative Decisions

In this part, we provide our analysis of whether the investigative decisions 

taken in connection with the Midyear investigation that we reviewed were based on 

improper considerations, including political bias. As described in the Analytical 

Construct set forth in Chapter One of this report, we selected for examination 

particular case decisions that were the subject of public or internal controversy. For 

each decision, we analyzed whether there was evidence of improper considerations 

or evidence that the justifications offered for the decision were a pretext for 

improper, but unstated, considerations. If a choice made by the investigative team 

was among two or more reasonable alternatives, we did not find that it was 

improper even if we believed an alternative decision would have been more 

effective. Thus, a determination by the OIG that a decision was not unreasonable 

does not mean that the OIG has endorsed the decision or concluded that the 

decision was the most effective among the options considered. We took this 

analytical approach because our role as an OIG is not to second-guess valid 

discretionary judgments made during the course of an investigation, and this 

approach is consistent with the OIG’s handling of such questions in past reviews. 

In undertaking this analysis, our task was made significantly more difficult 

because of the text messages we discovered between Strzok and Page, given the 

critical roles they played in most of the decisions made by the FBI; the instant 

messages of Agent 1, who was one of four Midyear case agents; and the instant 

messages of FBI Attorney 2, who was one of the FBI attorneys assigned to the 

investigation.

118

 That these employees used an FBI system or device to express 

political views about individuals affected by ongoing investigations for which they 

were responsible was particularly disappointing in comparison to their colleagues on 

the Midyear investigative team who, based on the emails, notes, memoranda, and 

 

118

 As we describe in this chapter and in Chapter Twelve, many of those messages reflected 

hostility toward then candidate Trump and statements of support for candidate Clinton, and some of 

them mixed political commentary with discussions regarding the Midyear investigation.
149

other materials we reviewed, conducted themselves with professionalism during a 

difficult and high-pressure investigation.119

We were cognizant of and considered these messages in reaching the 

conclusions regarding the specific investigative decisions discussed below. In 

particular, we were concerned about text messages exchanged by Strzok and Page 

that potentially indicated or created the appearance that investigative decisions 

were impacted by bias or improper considerations. As we describe in Chapter 

Twelve, most of the text messages raising such questions pertained to the Russia 

investigation. Nonetheless, the implication in certain Russia-related text messages 

that Strzok might be willing to take official action to impact presidential candidate 

Trump’s electoral prospects—for example, the August 8, 2016 text exchange in 

which Page asked Strzok “[Trump’s] not ever going to become president, right? 

Right?!” and Strzok replied “No. No he won’t. We’ll stop it”—caused us to question 

the earlier Midyear investigative decisions in which he was involved, and whether 

he took specific actions in the Midyear investigation based on his political views.120 

As we describe in this chapter, we found that Strzok was not the sole 

decisionmaker for any of the specific investigative decisions examined in this 

chapter. We further found evidence that in some instances Strzok and Page

advocated for more aggressive investigative measures than did others on the 

Midyear team, such as the use of grand jury subpoenas and search warrants to 

obtain evidence.

There were clearly tensions and disagreements in a number of important 

areas between Midyear agents and prosecutors. However, we did not find 

documentary or testimonial evidence that improper considerations, including 

political bias, directly affected the specific investigative decisions discussed below, 

or that the justifications offered for these decisions were pretextual. We recognize 

that these text and instant messages cast a cloud over the FBI’s handling of the

Midyear investigation and the investigation’s credibility. But our review did not find 

documentary or testimonial evidence that these political views directly affected the 

specific investigative decisions that we reviewed in this chapter. The broader 

impact of these text and instant messages, including on such matters as the public 

perception of the FBI and the Midyear investigation, are discussed in Chapter 

Twelve.

 

119

 As discussed in Section X of this chapter, FBI INSD conducted a File Review of the Midyear 

investigation. We found that the File Review’s ability to assess the Midyear investigation was limited 

based on the narrow scope of the review and the limited information available to them. We also found 

that, as a result of the limited information available to the File Review SSAs, a number of the factual 

statements in the File Review report were inaccurate. Accordingly, the assessments and 

recommendations of the File Review did not significantly influence the analysis of the OIG, which had 

a far more developed record, including extensive interviews, as discussed in our report.

120

 As we describe in Chapter Nine, these text messages also caused us to assess Strzok’s 

decision in October 2016 to prioritize the Russia investigation over following up on the Midyear-related 

investigative lead discovered on the Weiner laptop. We concluded that we did not have confidence 

that this decision by Strzok was free from bias.
150

A. Preference for Consent Rather than Compulsory Process to 

Obtain Evidence

At the outset we note that, contrary to public perception, the Midyear team 

used compulsory process in the Midyear investigation. This included grand jury 

subpoenas, search warrants, and 2703(d) orders. Nonetheless, the Midyear 

prosecutors told us that they obtained evidence through consent whenever 

possible. We found no evidence that the use of consent to obtain evidence in the 

Midyear investigation was based on improper considerations. The decisions 

regarding how to obtain particular pieces of evidence were primarily made by the 

career prosecutors, for whom we identified no evidence of political or other bias,

and we found that the reasons they provided for those decisions were not 

unreasonable.

The FBI investigators, attorneys, and supervisors involved with the Midyear 

investigation—including individuals for whom we identified electronic messages

expressing political opinions—advocated for greater use of compulsory process and 

for more aggressive investigative methods, including the use of search warrants. 

However, the prosecutors told us that they often chose consent over compulsory 

process or court orders based on the following considerations: (1) avoiding delay 

that could result from motions to quash subpoenas or search warrants; (2) 

complying with Department policies; (3) protecting classified and other sensitive 

information; (4) avoiding media leaks and public disclosures that could harm the 

investigation; (5) the perceived obstacles to establishing probable cause; and (6) 

the risk of improperly accessing privileged information. We found these 

explanations to be supported by Department and FBI policy and practice, and that 

the disputes between the agents and the prosecutors about how aggressively to 

pursue certain evidence were good faith disagreements.

It was not unreasonable for Department prosecutors to consider the delay 

that could result from motions to quash subpoenas and search warrants. Both 

Department and FBI witnesses told us that they hoped to complete the 

investigation well in advance of the election, if possible, to avoid influencing the 

political process. Indeed, Comey pressed in early May for the prompt completion of 

the investigation. However, in seeking to avoid delay, prosecutors were required to

balance the need for timely completion of an investigation against the need to 

ensure a thorough and complete investigation. We did not identify bias or improper 

considerations affecting that judgment call by the prosecutors.

Both Department and FBI policies generally support the use of consent 

agreements to obtain evidence. The USAM advises prosecutors to consider 

alternatives to grand jury subpoenas when practicable, such as obtaining testimony 

and other evidence by consent, in light of the requirement that the government 

maintain the secrecy of any testimony or evidence accessed through the grand 

jury. USAM 9-11.254(1). Had the prosecutors not used consent agreements to 

obtain most of the evidence in the Midyear investigation, the FBI likely would not 

have been able to be as transparent as it was in response to FOIA and 

Congressional requests following the conclusion of the investigation.
151

The Attorney General’s Guidelines for Domestic Operations (AGG-Dom) and 

the FBI’s Domestic Investigations and Operations Guide (DIOG) require the FBI, 

when choosing among two or more operationally sound and effective methods for 

obtaining evidence or intelligence, to strongly consider using the one that is “least 

intrusive” with respect to “such factors as the effect on the privacy and civil liberties 

of individuals and potential damage to reputation.” AGG-Dom § I.C.2; DIOG 

§§ 4.1.1, 4.4, 5.3, 18.2. The DIOG specifically identifies search warrants as a 

method that is “very intrusive.” DIOG § 4.4.3 The DIOG’s guidance regarding 

choosing the least intrusive method is emphasized in relation to Sensitive 

Investigative Matters (SIMs), such as the Midyear investigation. The DIOG states, 

“In the context of a SIM, particular care should be taken when considering whether 

the planned course of action is the least intrusive method if reasonable based upon 

the circumstances of the investigation.” DIOG § 10.1.3. Assessing which 

investigative options to use, and whether various options are operationally sound 

and effective, are judgment calls. Accordingly, the Midyear team’s use of consent 

agreements, after their evaluation of the circumstances, was an approach to 

gathering evidence that complied with Department policies. Likewise, had the 

prosecutors and agents agreed to pursue a more aggressive course after evaluating 

the circumstances and determining that it would have been a more effective 

method, it also would have been a rational approach to gathering evidence.

Under FBI policy, it also was appropriate for the Midyear team to consider 

how the use of compulsory process or more intrusive evidence collection methods 

might result in the public disclosure of information about the investigation—

particularly public disclosure that had the potential to negatively impact the 

investigation. The DIOG states that in deciding the least intrusive method 

necessary for effectively obtaining information, the FBI should consider the “risk of 

public exposure” and the potential that public exposure will be used to an 

individual’s “detriment and/or embarrassment.” DIOG §§ 4.4.3(E), 5.3. Witnesses 

told us that there is a need to be particularly cautious with respect to the use of 

process in national security cases, due to the risk of classified information being 

leaked.

It was, of course, proper for the prosecutors to consider whether they could 

demonstrate probable cause before using criminal process. The Fourth Amendment 

protects individuals from unlawful searches and seizures of their property, and 

courts have held that individuals have privacy interests in their electronic 

communications. See Ross, 456 U.S. at 822-23; Riley, 134 S. Ct. at 2485; Trulock, 

275 F.3d at 403. Generally, the government must obtain a search warrant before 

searching data contained in an individual’s electronic storage devices, such as 

computers and cellular telephones. Id.; Riley, 134 S. Ct. at 2485. To obtain such a 

search warrant, the government must make a showing of facts under oath 

demonstrating probable cause to believe that a device to be searched contains 

evidence of a crime. See Fed. R. Crim. P. 41. Both Department and FBI witnesses 

told us that, in some circumstances, they were not certain they could make such a 

showing.

It was also proper for the prosecutors to consider privilege issues. By law, 

prosecutors cannot use compulsory process to override privileges, such as 
152

attorney-client or marital privilege. G.J. Manual § 5.1 (quoting Branzburg, 

408 U.S. at 688); G.J. Manual §§ 5.6, 5.26. While a filter team may be used to cull 

privileged material from seized evidence before an investigative team reviews that 

evidence, there are also Department policies that apply to seizing evidence that 

may contain privileged information. For example, under USAM 9-13.410, 

prosecutors can only issue a subpoena to an attorney for information or evidence 

related to the representation of clients if the prosecutors first obtain approval from 

the AAG or DAAG of the Criminal Division. The AAG or DAAG will only provide such 

approval if the prosecutors make reasonable efforts to first obtain the evidence 

through alternative sources, including consent, unless such efforts would 

compromise the investigation. USAM 9-13.410. Similarly, the DIOG provides that, 

“It is less intrusive to obtain information from existing government sources...or 

from publicly-available data in commercial data bases, than to obtain the same 

information from a third party (usually through legal process) that has a 

confidential relationship with the subject.” DIOG § 4.4.3(D).

We questioned why the Midyear team did not serve subpoenas on or seek to 

obtain search warrants related to the last known persons to possess devices that 

the team was never able to locate. These included Combetta for the missing 

Archive Laptop and Clinton or her attorneys for Clinton’s handheld devices. Both 

FBI and Department witnesses told us that they believed Combetta and Clinton’s 

attorneys were being truthful that they could not locate these devices and therefore 

subpoenas would not have made a difference in these situations. This was a 

judgment call made by the prosecutors and agents, and we did not identify 

evidence that it was infected by bias or improper considerations.

We also found no evidence that the particular limitations contained in the 

consent agreements were based on improper considerations or bias. For example,

the prosecutors told us that the scope of consent was often limited to the time 

period of Clinton’s tenure as Secretary of State, because that is when she had 

access to classified information. Although email communications among Clinton, 

her attorneys, and PRN staff following Clinton’s tenure may have been relevant to 

Clinton’s production of work-related emails to the State Department and the 

subsequent deletions of emails her attorneys deemed personal, the prosecutors told 

us that (1) most of these communications would have been protected by attorneyclient privilege; and (2) the FBI obtained communications between Clinton’s staff, 

including her attorneys, and PRN staff from PRN. In determining that these and 

other limitations in the consent agreements were not unreasonable, we considered 

the Department and FBI policies cited above.

B. Decisions Not to Obtain or Seek to Review Certain Evidence

The Midyear team did not obtain or review some evidence that we found 

might have been useful to the investigation. The team’s reasons for not doing so 

appear to have been based on limitations they imposed on the scope of their

investigation, the desire to complete the investigation well before the election, and 

their belief that the foregone evidence was likely of limited value. Those reasons 

were, in part, in tension with Comey’s reaction and response in October 2016 to the 

discovery of emails between Clinton and Abedin on the Weiner laptop. However, 
153

we found no evidence that the decisions not to obtain this evidence were based on 

improper considerations or bias. We concluded that these were judgment calls 

made by the prosecutors and agents.

We asked members of the Midyear team why they did not seek to obtain the 

personal devices that Clinton’s senior aides used during their tenure at the State 

Department, given that these devices were both (1) potential sources of Clinton’s 

work-related or classified emails; and (2) unauthorized locations where classified 

emails were potentially being stored. In addition, we inquired about the decision 

not to obtain Huma Abedin’s personal devices given (1) that she stated during her 

interview that she had given them to her attorneys for production of her workrelated emails to the State Department; and (2) the decision to seek a search 

warrant in October 2016 in order to search the Weiner laptop. Witnesses also told 

us they believed there was a flaw in the culling process that resulted in the 

exclusion of most of Abedin’s clintonemail.com emails from the State Department 

production.

We found that the FBI team and the prosecutors decided together to 

generally limit the devices they sought to those that either belonged to Clinton or 

were used to back-up or cull Clinton’s emails. The team provided, among others, 

the following reasons for placing this limitation on the scope of the investigation: 

(1) the culture of mishandling classified information at the State Department which 

made the quantity of potential sources of evidence particularly vast; (2) the belief 

that Clinton’s own devices and the laptops used to cull her emails were the most 

likely places to find the complete collection of her emails from her tenure as 

Secretary of State; and (3) the belief that the State Department was the better 

entity to conduct a “spill investigation.” With respect to the first rationale, we note 

that it fails to acknowledge that the team was not required to take an all-or-nothing 

approach. For example, a middle ground existed where those devices belonging to 

Clinton’s three top aides—which the team determined accounted for approximately 

68 percent of Clinton’s email exchanges—would have been reviewed, but devices 

belonging to other State Department employees would not.

Regarding Abedin’s devices, witnesses told us that Abedin played largely an 

administrative role on Clinton’s staff and, as such, they did not believe her emails 

were likely to be significant to the investigation. Yet, as referenced above, this 

view was in tension with Comey’s approach in late October 2016, discussed in detail 

in Chapters Nine and Ten. Comey described the discovery on the Weiner laptop in 

October as being the potentially “golden emails” based on what we concluded was 

very little information about the possible contents of the emails—a stark contrast to 

the Midyear team’s assessment that the potential emails on Abedin’s devices, 

including exchanges with Clinton, were unlikely to be significant. The team

distinguished their approach with the Weiner laptop based mostly on the fact that it 

happened to be in the government’s possession.

We recognize that reasonable minds differ on investigative approaches. We 

concluded that, in deciding not to seek the devices of Clinton’s top aides, the 

Midyear team members weighed what they believed to be the limited evidentiary 

value of the senior aides’ devices against their concerns about how pursuing them 
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would add time to and increase the scope of the investigation. Ultimately, 

Department prosecutors have discretion with respect to “when, whom, how and 

even whether to prosecute for apparent violations of federal criminal law,” provided 

that discretion is exercised without reliance on improper considerations, such as 

political bias or concerns for personal gain, and otherwise consistent with their oath 

of office and Department policy. See USAM 9-27.110 (comment) (citing U.S. 

Const. Art. II § 3; United States v. LaBonte, 520 U.S. 751, 762 (1997); Nader v.

Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974); Oyler v. Boles, 368 U.S. 448 

(1962); United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 

2016); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v.

Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965)); 5 U.S.C. § 3331 (oath of office). We 

did not find evidence that the decisions not to obtain the senior aides’ devices were 

based on improper considerations, nor did we find that the reasons provided were a 

pretext for improper considerations. We also did not find that the decisions 

regarding the scoping of the investigation were inconsistent with any Department 

polices. Accordingly, these were judgment calls that were within the discretion of 

the Midyear agents and prosecutors to make.

In addition, as we describe in the classified appendix to this report, the OIG 

learned near the end of our review that the FBI had considered obtaining 

permission from the Department to review certain classified materials that may 

have included information potentially relevant to the Midyear investigation. 

Although the Midyear team drafted a memorandum to the Deputy Attorney General 

in late May 2016 stating that review of the highly classified materials was necessary 

to complete the investigation and requesting permission to access them, the FBI 

never sent this request to the Department. FBI witnesses told us that they did not 

seek access to these classified materials for various reasons, including that they 

believed this information would not materially impact the conclusion. The classified 

appendix describes in more detail the highly classified information, its potential 

relevance to the Midyear investigation, the FBI’s reasons for not seeking access to 

it, and our analysis. 

C. Voluntary Interviews

The Midyear investigation did not use the grand jury for the purpose of 

collecting testimony from witnesses. FBI and Department witnesses told us that 

through voluntary interviews they were able to establish better rapport with 

witnesses and avoid risks associated with exposing grand jurors to classified 

information. We found no evidence that the use of voluntary interviews instead of 

grand jury testimony was based on improper considerations or influenced by bias. 

Rather, we concluded that these were judgment calls made by the prosecutors and 

agents.

As with the use of consent to obtain documentary and physical evidence, the 

use of voluntary interviews instead of grand jury testimony was consistent with the 

DIOG’s preference for the “least intrusive” method. In addition, due to grand jury 

secrecy the use of voluntary interviews contributed to the FBI’s ability to be 

transparent in response to FOIA requests and Congressional inquiries. The 

preference for voluntary interviews also was consistent with Department policy 
155

regarding the use of classified information before the grand jury. Before classified 

information can be utilized before the grand jury, the USAM requires prosecutors to 

seek approval from the agency responsible for classifying the information. USAM 9-

90.230. Witnesses told us that this can be a lengthy process. In addition, the 

USAM cautions that questioning grand jury witnesses regarding classified 

information poses a risk that the witness will disclose more classified information 

than expected or permitted. Id. Even if the Midyear team could have obtained the 

necessary approvals to use classified information in the grand jury, the prosecutors 

told us that there are concerns with exposing grand jurors to classified 

information—the more individuals that are exposed to classified information, the 

greater the risk of compromise.

The Midyear prosecutors told us they kept open the possibility of 

subpoenaing witnesses before the grand jury, especially witnesses like Paul 

Combetta, whose testimony would not likely require the disclosure of classified 

information. The Midyear team subpoenaed Combetta to appear before the grand 

jury. However, Department prosecutors and FBI agents ultimately decided that 

questioning him before the grand jury was unnecessary because (1) they perceived 

him to be credible during his third interview; and (2) he did not implicate anyone 

else in criminal conduct such that it would have been helpful to “lock in” his 

testimony for a future trial. We did not find evidence that this decision was 

motivated by an improper consideration.

D. Use Immunity Agreements

Prosecutors have wide latitude in deciding to whom to give immunity, and 

the Department entered into “letter use” or “Queen for a Day” immunity 

agreements with three witnesses in the Midyear investigation: Pagliano, Combetta, 

and Bentel. We found no evidence that the decisions to enter into these immunity 

agreements were based on improper considerations. The factors that the Midyear 

prosecutors told us they considered in deciding to grant immunity were consistent 

with the factors Department policy required them to consider, including:

 “The value of the person’s testimony or information to the 

investigation or prosecution;”

 “The person’s relative culpability in connection with the offense or 

offenses being investigated or prosecuted;” and

 “The possibility of successfully prosecuting the person prior to 

compelling his or her testimony.”

See USAM 9-23.210.

With respect to Pagliano, the prosecutors told us that they entered into a 

letter use immunity agreement because they believed the information he could 

provide regarding the set-up and maintenance of Clinton’s servers was critical to 

the Midyear investigation and they determined that he faced no criminal exposure. 

Based on a review of his FD-302s (as described in Section VII.A of this chapter) and 

the fact that PIN considered and declined criminal charges against Pagliano, we 
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found that the prosecutors’ assessments regarding Pagliano were not unreasonable

or motivated by improper considerations or bias.

With respect to Bentel, the only immunity agreement was a Queen for a Day 

proffer agreement. This agreement prevented the Department from using any 

statements made by Bentel pursuant to the agreement against him in its case-inchief in any subsequent prosecution, but did not prevent the Department from 

using leads obtained from Bentel’s statements or using Bentel’s statements to 

cross-examine him in any future prosecution. See Chapter Two, Section I.E.3. The 

prosecutors assessed that interviewing Bentel was a necessary investigative step,

and that he faced no criminal exposure. Based on our review of Bentel’s FD-302 

and the limited nature of the Queen for a Day immunity agreement, we found that 

the prosecutors’ decision to grant Bentel immunity was not unreasonable or based 

on improper considerations or bias.

With respect to Combetta, we found his actions in deleting Clinton’s emails in 

violation of a Congressional subpoena and preservation order and then lying about 

it to the FBI to be particularly serious. We asked the prosecutors why they chose 

to grant him immunity instead of charging him with obstruction of justice, in 

violation of 18 U.S.C. § 1505, or making false statements, in violation of 18 U.S.C. 

§ 1001.

Department policy provides that, when considering whether to pursue 

criminal charges against an individual:

The attorney for the government should commence or recommend 

federal prosecution if he/she believes that the person’s conduct 

constitutes a federal offense, and that the admissible evidence will 

probably be sufficient to obtain and sustain a conviction, unless (1) the 

prosecution would serve no substantial federal interest; (2) the person 

is subject to effective prosecution in another jurisdiction; or (3) there 

exists an adequate non-criminal alternative to prosecution.

USAM 9-27.220. In determining whether the prosecution would serve a federal 

interest, the Department should “weigh all relevant considerations,” including:

 “The nature and seriousness of the offense;”

 “The person’s culpability in connection with the offense;” and

 “The person’s willingness to cooperate in the investigation or 

prosecution of others.”

USAM 9-27.230.

We received mixed testimony from Department and FBI witnesses regarding 

the strength of the evidence that Combetta committed obstruction or made false 

statements following his first two interviews. The prosecutors and agents we 

interviewed indicated that, even assuming that “the admissible evidence [was] 

probably...sufficient to obtain and sustain a conviction” after Combetta’s first two 
157

interviews—an assumption the prosecutors indicated was not necessarily true—they 

believed prosecuting Combetta would not “serve a federal interest.” The reasons 

they provided to us for reaching this conclusion included: (1) relevant to the 

nature and seriousness of the offense, there was no evidence that Combetta knew 

anything about the content of the emails on Clinton’s server or that they were 

classified when he deleted them; (2) relevant to Combetta’s culpability, they 

believed Combetta’s failure to be forthcoming had been primarily due to poor 

representation rather than a motive to mislead the investigators; and (3) relevant 

to his willingness to cooperate, Combetta was willing to cooperate with immunity. 

Prosecutor 1 told us that the team would have considered pursuing charges against 

Combetta if he refused to cooperate with immunity, but that granting immunity was 

“the most expedient way” to obtain truthful information from him.

The prosecutors told us they believed granting Combetta use immunity was 

the best available option. They told us that they could not forgo Combetta’s 

testimony, because they believed his truthful testimony regarding his role and the 

roles of others in the March deletions was essential to the investigation. Moreover, 

they said they had no means other than immunity to gain his testimony, because 

he had stated that he would invoke his Fifth Amendment privilege against selfincrimination. The prosecutors told us they did not charge Combetta and then 

pursue his cooperation in exchange for a guilty plea to reduced charges or a 

sentencing reduction because of, as discussed above, concerns about the strength 

of the admissible evidence and because they did not believe criminal charges were 

in the federal interest given his willingness to cooperate with immunity. The

decision to choose a use immunity agreement over a non-prosecution agreement is 

supported by the USAM, which provides that immunity is (1) appropriate when “the 

testimony or other information that is expected to be obtained from the witness 

may be necessary to the public interest;” and (2) preferable to a nonprosecution 

agreement in exchange for cooperation because immunity “at least leave[s] open 

the possibility of prosecuting [the witness] on the basis of independently obtained 

evidence.” USAM 9-23.210; 9-27.600 (comment).

We did not find evidence that the judgments made by the prosecutors in 

entering into these immunity agreements were inconsistent with Department policy, 

or based on improper considerations or bias. Ultimately, assessing the strength of 

the evidence and applying the provisions of the U.S. Attorney’s Manual in 

determining whether to pursue federal criminal charges is a matter within the 

discretion and judgment of the prosecutors.

E. Mills and Samuelson

The issues surrounding obtaining Mills’s and Samuelson’s testimony 

regarding the culling process and searching the culling laptops consumed a 

significant amount of the Midyear team’s time and attention and caused significant 

strife between the FBI and Department prosecutors. Several members of the FBI 

Midyear team, including Comey, expressed concerns that the prosecutors had not 

been sufficiently aggressive. Ultimately, Mills and Samuelson submitted to 

voluntary interviews—albeit with limitations that prevented the investigators from 

soliciting privileged information—and the laptops were secured through consent 
158

agreements and act-of-production immunity. Both the prosecutors and the FBI told 

us that the team obtained what it needed from Mills and Samuelson to conduct a 

thorough investigation. Comey himself, during a speech at an October 2016 FBI 

conference for Special Agents in Charge, which we describe below in Chapter Eight, 

acknowledged the complex issues involved with obtaining the culling laptops from 

Mills and Samuelson. He further stated that the decision to obtain the culling 

laptops by consent was “reasonable...to short circuit the months and months of 

litigation that would've come otherwise” and that he was “actually surprised they 

agree[d] to give us the laptops.”

We noted that these decisions concerning the laptops were occurring at a 

time when Comey and the Midyear team had already concluded that there was 

likely no prosecutable case and believed it was unlikely the culling laptops would 

change the outcome of the investigation. Moreover, as we describe in Chapter Six, 

at the time of the deliberations regarding the Mills and Samuelson issues, Comey 

was motivated by a desire to “credibly” complete the investigation sufficiently in 

advance of the election to not be perceived as political. Consistent with this 

motivation, Comey told us that one of the reasons he raised the possibility of a 

Special Counsel with Yates in April 2016 was to push the Department to move more 

quickly to obtain the culling laptops. Comey also pressed the Midyear investigators 

in early May for the prompt completion of the investigation.

The Mills and Samuelson issues were somewhat complicated. Not only were

Mills and Samuelson both fact witnesses, Mills had numerous classified emails pass 

through her unclassified government and personal email addresses while working at 

the State Department under Secretary Clinton; both Mills and Samuelson acted as 

attorneys for Clinton after they departed from the State Department; and both 

were represented by their own (and the same) counsel, Beth Wilkinson, while

former Secretary Clinton was represented by separate counsel, David Kendall, in 

connection with the Midyear investigation. These different layers of conduct and

representation made obtaining evidence from Mills and Samuelson complex, 

whether the prosecutors sought to obtain the evidence by consent or compulsory 

process. In seeking evidence by consent, they had to consider whose consent was 

necessary—Wilkinsons’s on behalf of Mills and Samuelson, Kendall’s on behalf of 

Clinton, or both. They had to be cognizant of attorney-client privilege and 

attorney-work product with respect to Mills’s and Samuelson’s relationship to 

Clinton, Kendall’s relationship to Clinton, Wilkinson’s relationship to Mills and 

Samuelson, and information on the laptops related to Mills’s and Samuelson’s 

representation of other clients. They had to consider the implications of the fact 

that Wilkinson represented both Mills and Samuelson, as well as two other 

witnesses in the Midyear investigation. They also had to consider the policy 

restrictions set forth in the USAM, ethical issues, strategic issues (such as whether 

issuing criminal process might jeopardize the testimony that Mills consented to 

provide regarding her tenure at the State Department), and the concern that using 

criminal process could delay the investigation. Based on the evidence we reviewed, 

the Department prosecutors extensively considered all of these issues, analyzed the 

relevant law and policy, and ultimately made judgment calls with respect to Mills 
159

and Samuelson that were within their exercise of prosecutorial discretion and we 

found were not unreasonable.

We likewise found no evidence that bias impacted the decision to obtain 

testimony and evidence from Mills and Samuelson by consent agreement and with 

act-of-production immunity. Indeed, individuals for whom we had concerns about 

potential bias due to the content of their electronic messages advocated for the use 

of aggressive investigative measures with respect to Mills and Samuelson. For 

example, Strzok and Page both urged the Department to issue grand jury 

subpoenas for Mills’s and Samuelson’s testimony regarding the culling process and 

to seek a search warrant to seize the culling laptops from Wilkinson’s office.

The prosecutors told us that they followed the procedures set forth in 

Department policy for obtaining testimony and evidence from attorneys related to 

their representation of clients. Based on our review of the relevant Department 

policy and privilege law, we found that the prosecutors’ interpretations of the 

relevant Department policy were not unreasonable and we found no evidence that 

they were motivated by improper considerations. In accordance with 28 C.F.R. 

§ 59.4, USAM 9-19.220, and USAM 9-13.420, the prosecutors correctly determined 

that, in the absence of evidence that such efforts would compromise the 

investigation, they could not seek a search warrant to seize the culling laptops from 

Wilkinson’s office without first attempting to obtain the culling laptops through 

consent and, if that was unsuccessful, a grand jury subpoena. Under the 

circumstances, and in accordance with USAM 9-13.410, they determined that they 

could not issue a subpoena for the culling laptops without first taking several 

preliminary steps, including: (1) assessing whether the laptops were reasonably 

needed for the successful completion of the investigation, (2) attempting to first 

obtain the laptops by consent, and (3) seeking approval from the AAG or DAAG of 

the Criminal Division. Also in accordance with USAM 9-13.410, they determined 

that they could not issue subpoenas for Mills’s and Samuelson’s testimony 

regarding the culling process without first seeking their testimony by consent and 

tailoring their questions such that they did not seek information that was “protected 

by a valid claim of privilege.”

In accordance with these policies, the prosecutors conducted voluntary 

interviews with Mills and Samuelson, obtained Criminal Division approval to issue 

subpoenas for the culling laptops, and ultimately obtained the culling laptops 

through consent agreements and act-of-production immunity agreements rather 

than subpoena. They told us that, even with the approval for subpoenas, they 

believed securing the laptops through consent was preferable to avoid the 

uncertainty and delays of a potential motion to quash the subpoenas. The act-ofproduction immunity agreements prevented the Department from using information 

obtained from the laptops in a criminal prosecution against Mills or Samuelson for 

violations of 18 U.S.C. §§ 793(e) and (f) (felony mishandling of classified 

information), 18 U.S.C. § 1924 (misdemeanor mishandling of classified 

information), and 18 U.S.C. § 2071 (destruction of federal records). The immunity 

agreements did not prevent the Department from: (1) using information obtained 

from the laptops to prosecute Mills or Samuelson for other crimes, such as 

obstructing a Congressional or FBI investigation or lying to federal investigators; 
160

(2) using evidence obtained from other sources, including their voluntary 

interviews, to prosecute Mills and Samuelson for mishandling classified information, 

destroying federal records, or any other offenses; (3) using information obtained 

from the laptops to prosecute other individuals, including Clinton, for mishandling 

classified information, destroying federal records, or any other offenses; or (4) 

using leads developed as a result of the FBI’s review of the information on the 

culling laptops.

Ultimately, these decisions were judgment calls made by, and within the 

discretion of, the prosecutors, much like the decisions discussed above regarding 

use immunity agreements. We found no evidence that these decisions were the 

result of improper considerations or were influenced by bias.

F. Handling of Clinton’s Interview

By the time of Clinton’s interview on July 2, we found that the Midyear 

agents and prosecutors, along with Comey, had decided that absent a confession or 

false statements by Clinton, the investigation would be closed without charges. We 

further found that this conclusion was based on the prosecutors’ view that there 

was insufficient evidence of Clinton’s knowledge and intent to support criminal 

charges, which we discuss in detail in Chapter Seven.

We did not find evidence that decisions regarding the timing or scoping of 

Clinton’s interview were based on improper considerations or influenced by bias. In 

addition, based on our review of the FD-302 and contemporaneous notes, the 

investigators appeared to ask appropriate questions of Clinton and made use of 

documents to challenge Clinton’s testimony and assess her credibility during the 

interview.121 However, we had three primary concerns related to the Clinton 

interview: (1) text messages sent by Page to Strzok, McCabe, and another FBI 

employee that appeared to suggest that the team limit the number of attendees at

Clinton’s interview because she might be the next President and it could leave her 

upset at the FBI; (2) certain instant messages sent by Agent 1, who was one of the 

case agents that handled Clinton’s interview; and (3) the presence of Mills and 

Samuelson at Clinton’s interview, despite that they were also witnesses in the 

investigation.

With regard to the number of attendees, Page sent the following text 

message in support of fewer agents and prosecutors attending Clinton’s interview:

“[S]he might be our next president. The last thing you need us going in there 

loaded for bear. You think she’s going to remember or care that it was more doj 

 

121

 For example, based on the FD-302 from Clinton’s interview, Clinton told the interviewing 

agents that she “expected her team to provide any work-related or arguably work-related emails to 

State.” The interviewing agents then challenged this statement by showing Clinton a work-related 

email that was not produced to the State Department. Clinton acknowledged that the email was 

work-related and stated that she did not know why her team did not produce it.
161

than fbi?”122 The text messages and contemporaneous emails reflect that Page was 

particularly concerned with the Department’s request that four prosecutors attend 

the interview. Ultimately, eight people attended Clinton’s interview from the 

Department and FBI, including five prosecutors. Therefore, we concluded that 

Page’s suggestion of limiting the number of attendees to four or six did not in fact 

occur. Moreover, based on witness testimony, we found that the approach Page 

was advocating—keeping the number of interviewers down to a lower number—was 

consistent with legitimate investigative strategy.

Nevertheless, we found that Page’s statement, on its face, consisted of a 

recommendation that the Midyear team consider how Clinton would treat the FBI if 

she were to become President in deciding how to handle Clinton’s interview. 

Suggesting that investigative decisions be based on this consideration was 

inappropriate and created an appearance of bias.

We also were concerned that Agent 1 was one of the two agents who 

questioned Clinton during the interview given certain instant messages that we 

identified from Agent 1, including some that expressed support for Clinton and 

hostility toward Trump. We interviewed each of the seven other FBI and 

Department attendees at Clinton’s interview, and none of them expressed concerns 

regarding the conduct of the interview. We also did not find, based on our review 

of the interview outline prepared in advance of the interview as well as the FD-302 

and contemporaneous notes of the interview, evidence that bias or improper 

considerations influenced the conduct of the interview. We took note of the fact 

that, because the Midyear team and Comey had concluded prior to the interview 

that the evidence did not support criminal charges (absent a confession or false 

statement by Clinton during the interview), the interview had little effect on the 

outcome of the investigation. Nonetheless, as discussed above, we found Agent 1’s

messages to be troubling and in Chapter Twelve, we discuss the impact of these 

instant messages on such matters as the public perception of the handling of the 

Midyear investigation and the FBI.

Finally, we questioned why the Department and FBI allowed Mills and 

Samuelson, two percipient witnesses (one of whom, Mills, herself had classified 

information transit through her unclassified personal email account) attend Clinton’s 

interview, even if they had also both served as lawyers for Clinton after they left 

the State Department. The FBI and Department employees we interviewed all 

agreed that the attendance of Mills and Samuelson at Clinton’s interview posed 

potential evidentiary problems, was unusual, and was unhelpful from an “optics” 

perspective. Witnesses also told us that the only way they could have excluded 

Mills and Samuelson was by subpoenaing Clinton before the grand jury, but that 

the team did not seriously consider that option. If the team had issued a grand 

jury subpoena, Clinton either would have been required to testify before the grand 

jury without her attorneys in the room or she might have agreed to a voluntary 

interview outside the presence of Mills and Samuelson to avoid having to appear 

 

122

 From the context of this message in the series of text messages that day, we determined 

that the text message was focused on the number of Midyear team members attending and not on the 

nature of the questioning.
162

before the grand jury, given that a grand jury appearance would have delayed the 

investigation.

We did not find evidence that bias played a role in the decision to proceed 

with the Clinton interview with Mills and Samuelson in attendance. Rather, we 

concluded that it was largely based on four factors. First, the Midyear prosecutors 

were concerned about interviewing Clinton before the grand jury because of the 

challenges of presenting classified information before the grand jury. Second, the 

Midyear team had decided by the time of Clinton’s interview that the case was 

headed toward a declination absent a confession or false statement by Clinton.

Third, had Clinton been required to testify before the grand jury, the FBI would not 

have been able to participate in the interview. Fourth, the team planned to pause 

the interview and conduct a sidebar with Kendall if Mills or Samuelson interfered 

during the interview.

Ultimately, witnesses told us that Mills and Samuelson did not interfere, 

object, or speak substantively during the interview. Moreover, Clinton’s interview 

did not result in any change in the conclusion of the Midyear team and Comey that 

a declination decision was warranted. Accordingly, we found no persuasive 

evidence that Mills’s or Samuelson’s presence influenced Clinton’s interview, or that 

the outcome of the investigation would have been different had Clinton been 

subpoenaed before the grand jury.

Nevertheless, we found the decision to allow the Clinton interview to proceed 

in the presence of two fact witnesses, who also were serving as Clinton’s counsel, 

was inconsistent with typical investigative strategy and gave rise to accusations of 

bias and preferential treatment.

123

 Moreover, there are serious potential 

ramifications when one witness attends another witness’s interview. The Midyear 

team could have developed information during the Clinton interview that led the

team to reconsider its conclusion that the investigation was headed towards a 

declination, or led the team to believe that Clinton made a false statement during 

the interview. In either case, the presence of two fact witnesses at the interview 

could have negatively impacted subsequent FBI investigative efforts or a 

subsequent trial. We believe that it would have been useful for the Midyear team 

to have had guidance to consider in this situation. Thus, we recommend that the 

Department and the FBI consider developing guidance consider developing practice 

guidance that would assist investigators and prosecutors in identifying the general 

risks with and alternatives to permitting a witness to attend a voluntary interview of 

another witness, in particular when the witness is serving as counsel for the other 

witness.

 

123

 We recognize that, as a general matter, a witness is free to consult with counsel of the 

witness’s choice. However, the government is not required to agree to conduct an interview of a 

witness in the presence of counsel who is also a witness.
163

CHAPTER SIX: 

“ENDGAME” DISCUSSIONS AND FORMER DIRECTOR COMEY’S 

PUBLIC STATEMENT

Our review found that the Midyear team concluded beginning in early 2016 

that evidence supporting a prosecution of former Secretary Clinton or her senior 

aides was likely lacking. This conclusion was based on the fact that the Midyear 

team had not found evidence that former Secretary Clinton or her senior aides

knowingly transmitted classified information on unclassified systems because (1) 

classified information exchanged in unclassified emails was not clearly or properly 

marked, and (2) State Department staff introducing classified information into 

emails made an effort to “talk around” it. Although the Midyear team continued its

investigation, taking the investigative steps described in Chapter Five and looking 

for evidence that could change their assessment, they also began discussing what 

witnesses referred to as the “endgame” for the investigation—ways for the 

Department and FBI to credibly announce the closing of the investigation.

In this chapter, we discuss the factors that led the Midyear team to conclude 

that the investigation likely would result in a declination. We then describe the 

discussions among Comey, Rybicki, Yates, and Axelrod beginning in April 2016 

about how to announce the closing of the Midyear investigation, including Comey’s 

mention of a special counsel and Lynch’s knowledge of these discussions. We also 

describe the origins of Comey’s decision to hold a press conference without 

coordinating with or informing the Department in advance, the various drafts of his 

public statement, and the Department’s reactions to the statement after he 

delivered it on July 5, 2016. In addition, we describe the tarmac meeting between 

Lynch and former President Bill Clinton on June 27, 2016, and its impact on the 

Midyear investigation. Finally, we describe Comey’s congressional testimony about 

the reasons for his public statement.

I. Evidence that the Case Was Headed toward a Declination

As described above, both Department and FBI witnesses said that the central 

question in the Midyear investigation was whether there was evidence that former 

Secretary Clinton and her aides acted with knowledge that the information 

transmitted was classified or transmitted with criminal intent. Various witnesses 

told the OIG that the investigation focused on identifying what classified 

information transited former Secretary Clinton’s server, who introduced it, and why. 

The investigative team looked for evidence that individuals who sent emails 

containing classified information did so with knowledge that the information was 

classified—for example, took information from documents that were marked with 

classification headers and stripped off the header information—or that former 

Secretary Clinton’s private server was set up to circumvent classification 

requirements.
164

From early in the investigation, the investigative team said they knew that 

proving intent would be a challenge.124 Prosecutor 1 told the OIG:

[T]his whole case turned on mens rea [guilty state of mind].... I’ve 

run a lot of mishandling cases. The issue is usually that people are 

taking things home or they’re communicating them to someone for, to 

set up a business outside or to do something that’s like, what we don’t 

tend to prosecute criminally anyway are people who are 

communicating things for work purposes.... Usually to people who are 

already cleared. So, those are the kinds of things that when we’re 

talking about mens rea, were sort of instructive for us....

This prosecutor explained that Secretary Clinton and her staff did not display any of 

the counterintelligence indicators that prosecutors typically see in mishandling 

cases, such as unreported foreign contacts or “weird” meetings with foreigners. 

This prosecutor said that evidence of intent was lacking for other reasons as well, 

including that numerous witnesses testified that the State Department had terrible 

information technology (IT) systems and that its remote email system did not work 

when employees were traveling and sending emails in different time zones. As a 

result, the investigative team said they could not infer bad intent from the use of 

personal email accounts as they might in other cases.

Prosecutor 2 similarly stated that mishandling cases generally involve 

“people who have an intent to give classified information to others, people who 

have an intent to...take documents home and...do nefarious things with them, or 

sometimes hoarders of classified information.” This prosecutor told the OIG that, 

unlike the typical mishandling case, the State Department employees who 

introduced classified information into the unclassified system were trying to “talk 

around” it in the course of doing their jobs. This prosecutor stated, “And looking in 

terms of some of the times when the classified information appeared on 

[un]classified systems in this case, we see, we see problems, you know, late at 

night, weekends, the time between Christmas and New Year’s when no one is in the 

office.”

FBI officials agreed with the prosecutors that the need to prove intent was 

problematic from the outset. In his recent book, Comey stated:

...Hillary Clinton’s case, at least as far as we knew at the start, did not 

appear to come anywhere near General Petraeus’s in the volume and 

classification level of the information mishandled. Although she 

seemed to be using an unclassified system for some classified topics, 

 

124

 The legal framework for the Midyear investigation and the basis for the decision not to 

recommend or pursue prosecution of former Secretary Clinton or her staff are described in Chapters 

Two and Seven, respectively. Even though Section 793(f)(1) does not require intent, prosecutors told 

us that the Department has interpreted the provision to require that the person accused of having 

removed or delivered classified information in violation of this provision possess knowledge that the 

information is classified. In addition, based on the legislative history of Section 793(f)(1), the 

prosecutors determined that conduct must be “so gross as to almost suggest deliberate intention,” be 

“criminally reckless,” or fall “just a little short of willful” to meet the “gross negligence” standard.
165

everyone she emailed appeared to have both the appropriate 

clearance and a legitimate need to know the information. So although 

we were not going to prejudge the result, we started the Clinton 

investigation aware that it was unlikely to be a case that career 

prosecutors at the Department of Justice would prosecute. That might 

change, of course, if we could find a smoking-gun email where 

someone in government told Secretary Clinton not to do what she was 

doing, or if we could prove she obstructed justice, or if she, like 

Petraeus, lied to us in an interview. It would all turn on what we could 

prove beyond a reasonable doubt[.]

125

As described in more detail below, Comey said that by early May 2016, when he 

wrote the first draft of his public statement, the Midyear team was aware that 

evidence of intent was lacking.

Others on the Midyear team agreed. FBI Attorney 1 stated, “I have cases 

where there [are] people with thousands of classified documents in their home and 

we don’t prosecute them.... [T]his is not something we prosecute lightly or we do 

regularly. There needs to be, usually, some either nefarious intent or some...actual 

harm that has happened because of it.” Agent 2 told the OIG:

[F]rom like my level looking at it...you were hard-pressed to find the 

intent of anyone to put classified information on that server. And 

again, sloppy security practices, for sure. Right? But, and, and 

preventable? Yes. But somebody intentionally putting classified on it, 

we just never found clear-cut evidence of somebody intending to do 

that.

As early as September 2015, FBI and Department officials realized that they 

were unlikely to find evidence of intent. Prosecutor 2 stated that within a month of

first obtaining criminal process, they had seen no evidence of intent. This 

prosecutor told the OIG that the team realized that the case likely would lead to a 

declination after they had reviewed the classified information in former Secretary 

Clinton’s emails and heard the explanations for including that information in 

unclassified emails. Prosecutor 2 said that there were a number of other 

investigative steps they needed to take to complete their due diligence, but that by 

September 2015 they knew that they would need a “game changer” to be able to 

prove intent.

Notes obtained by the OIG from a meeting between Toscas and then EAD 

John Giacalone on December 4, 2015, confirm that the lack of intent was the 

subject of ongoing discussions. According to the notes, Giacalone asked the team, 

“Still [do not] have much on the intent side, right?” The notes show that the team 

members present at the meeting agreed with him. Giacalone, who retired from the 

FBI in February 2016, said that there were “no smoking guns” showing intent when

he left.

 

125

 COMEY, supra, at 164-65.
166

Similarly, other notes show that prosecutors met with NSD supervisors on 

January 29, 2016, to discuss the lack of evidence supporting prosecution. The 

notes state:

Don’t see prosecutable case at this point.

A lot of stuff done from Ops Center [lower level State Department 

staff] —> up. HRC is receiving.

Want to insulate DOJ from criticism about how we did this work.

No daylight [between] FBI management and investigative team agents 

re: view of criminal liability.

Asked what led the team to conclude by January 2016 that there would not be a 

prosecutable case, Laufman said that there was not a fixed point in time or 

organized discussion that produced this realization. He said that every time the 

team concluded “another consequential investigative step, and no additional 

information emerged that...pointed in the direction of potential criminal liability, 

then the...foundation of facts emerged that was not likely to support a 

recommendation to charge.”

Asked whether there was a particular piece of evidence or an interview that 

led to the realization that the case would result in a declination, Prosecutor 3 stated 

that it became apparent once the team had interviewed all of former Secretary 

Clinton’s senior staff members, including Jake Sullivan and Cheryl Mills, and heard 

the same explanation for what they believed to be an innocuous transmission of 

emails containing classified information. Other witnesses described the team’s 

realization that the investigation would not result in a prosecutable case as 

“iterative” or “emerging over time” based on the cumulative lack of intent evidence

over the course of the entire investigation. In any event, various witnesses agreed 

that the team had come to the conclusion that there likely was not a prosecutable 

case by the Spring of 2016.

Baker told the OIG that he thought that the conduct of former Secretary 

Clinton and her senior aides was “appalling with respect to how they handled the 

classified information...[and] arrogant in terms of their knowledge and 

understanding of these matters.” He stated that he was concerned about former 

Secretary Clinton’s level of knowledge and intent, and thought that she should have 

recognized the sensitivity of information in the emails sent to her. Baker said that 

he “debated and argued” with Comey and the Midyear team about former Secretary 

Clinton’s criminal liability, but ultimately came to the conclusion that declining 

prosecution was the correct decision after reviewing a binder of her emails. Baker 

said that he recognized there was a lack of evidence establishing knowledge or 

criminal intent, and that based on “the volume of...communications coming at 

[Clinton] at all times, day and night, given the heavy responsibilities that a 

Secretary of State has, isn’t she entitled to rely on [the classification determinations 

by] her folks?” Baker stated that he “did not like it.... I eventually agreed with it, 

but I did not like it.”
167

Yates told the OIG that she had been getting updates regularly from Carlin 

and Toscas about where the investigation was going. In Spring 2016, Carlin or 

Toscas told her that if the investigation continued in the same direction it was 

going, they expected that the prosecutors and the agents would be recommending 

a declination. Yates told us that this assessment of the case was based on 

evidence indicating that the people transmitting classified information did not have 

a “bad purpose.” She pointed to a variety of factors, including that emails were 

sent by State Department employees to other State Department employees, and 

usually contained time-sensitive logistical information that former Secretary Clinton 

needed to receive. She said that the information was not marked classified, with 

the exception of three paragraphs that were portion marked as “Confidential,” and 

that there were even disputes within the originating agencies as to whether the 

information should be classified at all.

Yates said that Department leadership began talking internally in the Spring 

of 2016 about how to convey a declination decision because they knew that it 

would be controversial, and that they were all of the view that it needed to be clear 

that the decision was supported by both the FBI and the Department. Yates said 

that these discussions always proceeded with the “great big caveat” that former 

Secretary Clinton could lie during her interview, but that they could not wait until 

after the interview to begin preparing for a declination due, in part, to the proximity 

of the election. Discussions between the FBI and the Department about the 

“endgame” for concluding the Midyear investigation began around this same time, 

and are described in more detail below.

II. Discussions between FBI and Department Leadership about How to 

Credibly Announce a Declination (Spring 2016)

As noted above, Comey said that the Midyear team was aware from the 

outset that the investigation was unlikely to result in a prosecutable case, absent a 

“smoking-gun” email. Comey told the OIG that he realized sometime in March or 

April 2016 that the evidence obtained in the Midyear investigation likely would not 

support a prosecution. Asked what led him to that conclusion at that time, Comey 

stated:

[T]he picture that was fairly clear at that point, [was] that Hillary 

Clinton had used a private email...to conduct her State Department 

business. And in the course of conduct [of] her State Department 

business, she discussed classified topics on eight occasions TS, dozens 

of occasions SECRET, and there was no indication that we had found 

that she knew that was improper, unlawful, that someone had said 

don’t do that, that will violate 18 U.S.C. [the federal criminal code], 

but that there was no evidence of intent and it’s looking, despite the 

fact of the prominence of it, like an unusual, but in a way fairly typical 

spill and that there was no fricking way that the Department of Justice 

in a million years was going to prosecute that.
168

And because Counterintelligence Division of the FBI was involved in all 

the other spill cases and it collected for me the history of them, no 

way, there’s no way, unless we find something else in May and June or 

we get [18 U.S.C. §] 1001 [false statements] handed to us during her 

interview.

Comey said that, as he came to this realization, he became concerned that 

the Department would be unable to announce the closing of the investigation in a 

way that the public would find credible and objective. Comey said he was 

concerned that having the Department’s political leadership announce a declination 

would expose it to a “corrosive doubt about whether you did [the investigation] in a 

credible way.” He said that this concern “dominated [his] thinking...for most of 

2016, but especially from the spring on.” According to Comey, his concern was 

based on the appearance or perception created by the Department’s leadership 

declining prosecution of the presumptive Democratic nominee, because they were 

political appointees; it was not based on evidence that Lynch or Yates were 

interfering in the investigation or were politically biased.

A. Initial Discussion between Comey and Yates in April 2016

1. Options Discussed at the Meeting

Comey said that beginning in March or April 2016, he began to think of ways 

to announce a declination. Comey said that during this time he had a meeting with 

Rybicki, Yates, and Axelrod to discuss how the FBI and Department could credibly 

close the investigation. Based on Yates’s description of the circumstances of the 

meeting (described below) and FBI emails, we determined that this meeting likely 

took place on Tuesday, April 12, 2016.

According to Comey, he told Yates and Axelrod during the meeting that they 

needed to begin thinking about the how to announce the end of the investigation. 

Comey said that he told Yates, “[M]y sense of this, and I’m not done, but my sense 

of this is this is heading for a declination and how do you credibly decline this? And 

what can you say to people to support the credibility of the work that’s been done?”

Comey said that he urged Yates and Axelrod to consider the most 

transparent options available for announcing a declination. Comey told the OIG:

[M]y view was, still is, that the more information you are able to 

supply, the higher the credibility of the investigation and the 

conclusion. And that especially in a poisonous political atmosphere, 

where all kinds of nonsense is said, the more you can fill that space 

with actual facts, the more reliable, believable, credible the conclusion 

is.

He stated, “People are still going to disagree. They are still going to fight, but at 

least there will be facts in the public square that show...[we] did this in a good way, 

thought about it in a good way and here is our reasoning as to why we think there 

is no there there.”
169

Comey told the OIG that they did not discuss or consider specific options, but 

that he simply said to Yates, “[Y]ou need to get smart people working on what are 

the range of possibilities...what is possible under the law, I remember mentioning 

the Privacy Act, what is possible and what are the vehicles for transparency, what 

are the outer boundaries.... I think I just teed up the issue and said, hope you will 

get smart people thinking about this.” Asked whether he was ever involved in 

discussions about a joint appearance with Attorney General Lynch, Comey said that 

he did not recall any discussions about that option.

Yates recalled this discussion with Comey differently. Yates said that she had 

a regular monthly meeting with Comey, and that the day before one of these 

meetings, Axelrod received a call from Rybicki suggesting that they meet to discuss 

how to conclude the case. She did not recall precisely when this meeting took 

place or what had happened in the investigation leading up to it, but she described 

the investigation at that time as “wrapping up.”

Yates said that the meeting took place in her office. She said that they

talked about the investigation and agreed that public confidence in its resolution

was important. She said that everyone was of the same view that there was not a 

criminal case based on the evidence to date, and that it was not going to be 

sufficient to announce the conclusion by saying, “We looked at it...case closed.” 

She said that the four of them agreed that people needed to have confidence that 

there had been a thorough look at the facts, and that a declination was the right 

decision.

Yates told the OIG that any discussion about how to announce a declination 

always proceeded with “great big caveat on it” that former Secretary Clinton could 

lie during her interview. Yates stated, “This is if things continue to go that way. 

Because you don’t want to be like planning the declination that you don’t really 

know is a declination yet. Because I mean, if she lied for example. There’s about, 

that could change things entirely if she wasn’t truthful in the interview.”

According to Yates, one of the options they considered was a written 

memorandum released to the public, which would give some level of facts about 

the investigation. Yates stated that they all agreed that if they released a written 

memorandum, they also would need to hold a press conference to allow them to 

“look the [American] people in the eye” and say that there was not a criminal case, 

rather than “hiding behind a behind a [press] release or a writing that...would not 

be sufficient to convey the earnestness of that decision.” She said that no one 

committed to a decision at this meeting, but rather they were “thinking out loud.”

We asked Axelrod about these discussions between Yates and Comey. He 

said they focused on whether the FBI would be part of any announcement at the 

conclusion of the investigation. Axelrod said that they discussed preparing a 

letterhead memorandum (LHM) that could at least be provided to Congress, along 

with some form of a public announcement.

Axelrod said that one of the options they discussed was a joint 

announcement involving Lynch and Comey. Axelrod told the OIG that “the view 
170

from the Department was it would be important for the Bureau to be part of that.” 

He stated, “[Comey] hadn’t committed to it but was...comfortable with it being 

some sort of joint thing.” Asked why he thought it was important to have Comey 

participate in an announcement, Axelrod said that it was important for the 

Department and the FBI to display a “unified front...having both organizations 

together saying the truth, which was this was done by the book and this was the 

result.”

Axelrod said that they never discussed the idea of Comey being the one to 

announce a declination because it was never raised, but that he was “not sure that 

would have been rejected out of hand.” He stated, “[T]here would have been some 

advantages to that having been coordinated and planned that way. And some 

disadvantages, too.... [T]he thing...that I knew that the Department felt strongly 

about was that Bureau had to be part of that [announcement].”

Rybicki said that he did not recall any specific discussions, stating, “I just 

remember all ideas sort of being, you know, people talking about, you know, press 

conferences and, and, and ways of closing and things like that. I don’t remember 

specific conversations.”

2. Comey Mentions a Special Counsel at April Meeting with 

Yates

Comey’s Testimony

Comey told the OIG that during the April meeting with Yates and Axelrod, he 

told Yates that the closer they got to the political conventions, the more likely he 

would be to insist that a special counsel be appointed, because there was no way 

the Department could credibly finish the investigation once former Secretary Clinton 

was the Democratic Party nominee. Comey said that his comment to Yates was 

motivated in part by his frustration that it was taking the Midyear prosecutors too 

long to obtain the Mills and Samuelson laptops (discussed above in Chapter Five). 

He said that he emphasized to Yates that the team needed to obtain the laptops to 

be able to finish the investigation. According to Comey, Yates reacted to his 

comment about the possible need for a special counsel with concern, and that he 

responded, “[L]ook I’m not saying we have to do it, but the deeper we get into this 

summer, the more likely it’s going to be that I’ll feel that way. And I was saying it 

in part to get them to just move—to move, to get us this thing [the laptops].”

As part of this discussion, Comey said he recounted his experience when he 

was the DAG appointing then U.S. Attorney Patrick Fitzgerald as the special counsel

to investigate the leak of the name of a covert CIA operative, Valerie Plame.126 He 

said he explained to Yates that the investigation focused in part on whether Karl 

 

126

 Comey served as the DAG from December 9, 2003, to August 15, 2005, under President 

George W. Bush. On July 14, 2003, the Washington Post published Plame’s name, sourced to 

unidentified senior administration officials. On December 30, 2003, then Attorney General Ashcroft 

recused himself from the investigation. Comey became the Acting Attorney General for purposes of 

the investigation and appointed Fitzgerald to oversee it.
171

Rove, then President George W. Bush’s senior political advisor, had leaked the 

information, and that he (Comey) was concerned about the appearance of a conflict 

of interest between Rove and then Attorney General John Ashcroft because Rove 

had managed one of Ashcroft’s Senate campaigns. He told the OIG that he 

mentioned this to Yates because he saw similarities between the Plame leak case 

and the Midyear investigation: namely, that in the Plame case there was no basis 

to prosecute Rove, and he did not think the Bush Administration could have 

announced a declination in a way that assured the public the investigation was 

done objectively.

Comey said that his comment to Yates about appointing a special counsel

also was motivated by concerns about the appearance of political bias in the 

Department. He said that these concerns were based on the overall political 

environment—given then President Obama’s comments about the investigation, he 

did not think the Department leadership could credibly complete the investigation 

without charges.

127

Comey said that he also was concerned about an issue specific to Lynch. As 

discussed in more detail in the classified appendix to this report, Comey told the 

OIG that the FBI had obtained highly classified information in March 2016 that 

included allegations of partisan bias or attempts to impede the Midyear 

investigation by Lynch. Numerous witnesses we interviewed—including Comey—

said that the FBI assessed that these allegations were not credible based on various 

factors, including that some of the information was objectively false. For example, 

the information also suggested that Comey was attempting to influence the 

investigation by extending it to help Republicans win the election, which witnesses 

said the FBI knew was not true. By mid-June 2016, the FBI had obtained no 

information corroborating the Lynch-related allegations.

When asked about this information, Comey stated that he knew it was not 

credible on its face because it was not consistent with his personal experience with 

Lynch. Comey stated, “I saw no, I’ll say this again, I saw no reality of Loretta 

Lynch interfering in this investigation.” However, Comey said that he became

concerned that the information about Lynch would taint the public’s perception of 

the Midyear investigation if it leaked, particularly after DCLeaks and Guccifer 2.0 

began releasing hacked emails in mid-June 2016.

Despite these concerns, Comey told the OIG that it did not occur to him to 

request a special counsel in late 2015, after Lynch’s instruction to use the term 

“matter” or former President Obama’s public comments about the investigation 

(discussed in Chapter Four), because Comey was satisfied with the nature and the 

quality of the investigation being conducted by the FBI. Comey emphasized that 

 

127

 As discussed in Chapter Four, former President Obama made comments about the 

investigation in October 2015 and April 2016, while White House Press Secretary Josh Earnest made 

statements in January 2016 suggesting that the Midyear investigation was not headed toward an 

indictment.
172

the FBI had its “A team” working on the investigation, and that he was closely 

involved to ensure that the team was protected from political or other influence.

As we describe in more detail in the classified appendix, Yates and Axelrod 

told us that the FBI mentioned this information to them sometime in the Spring of 

2016 and provided a defensive briefing on it on July 12, 2016.

128

 Yates said that 

the FBI told her that the information was not deemed credible and did not show her 

the relevant documents. After being shown the documents in her OIG interview, 

Yates expressed frustration and said that, had she been informed that the FBI had 

concerns about the information, she would have engaged Comey in discussions 

about the impact on the Midyear investigation. The FBI also did not provide Lynch 

with a defensive briefing about the information until August 2016, more than a 

month after investigative activity in Midyear was concluded, and she also was told 

that the information was not credible. Lynch said that until Comey’s public 

testimony in 2017, she was never told that the information played a role in his 

unilateral decision to make a public statement about the Midyear investigation or 

concerns about whether a special counsel was necessary.

However, Comey said that he became increasingly concerned and began 

thinking about the possible need for a special counsel when he realized in March or 

April 2016 that the case likely would result in a declination, and that the declination 

might not happen until after the political conventions. He explained that the 

Department’s leadership could not credibly announce a declination around or after 

the nominating convention, because “the confluence of a decision on a case and a 

key political event” would cause “grievous” damage to the Department’s and the 

FBI’s reputation.129

Yates’s and Axelrod’s Testimony

Yates told us that she recalled Comey raising the possibility of a special 

counsel at the April meeting. She told the OIG that Comey commented that they 

may need a special counsel to announce the closing of the Midyear investigation if 

the investigation ran past the convention and former Secretary Clinton was formally 

the Democratic Party’s nominee.130 According to Yates, Comey added that there 

was no reason to request a special counsel because the investigation would be 

 

128

 A defensive briefing is intended to warn government officials of specific security concerns 

or risks. As we describe in the classified appendix to this report, the Department discussed this 

information with career Department officials in March 2016, and later provided defensive briefings to 

Yates and Lynch on July 12, 2016 and August 10, 2016, respectively.

129

 In Section VI.C below, we describe Comey’s testimony before the Senate Select 

Committee on Intelligence on June 8, 2017. During that testimony, Comey was asked whether Lynch 

had an appearance of a conflict of interest in the Midyear investigation. Comey replied, “I think that’s 

fair. I didn’t believe she could credibly decline that investigation—at least, not without grievous 

damage to the Department of Justice and to the FBI.”

130

 The Democratic National Convention was held from July 25 to 28, 2016. Clinton was 

formally nominated to be the Democratic Party’s Presidential nominee on July 26, and accepted the 

nomination on July 28, 2016. However, she secured a majority of delegates and became the 

presumptive nominee several weeks earlier, on June 6, 2016.
173

completed before the convention. She said that she did not interpret Comey’s 

comment as a line drawn in the sand, but more of a “musing.”

Yates characterized Comey’s suggestion as a “weird thing” that he raised 

“out of the blue,” and said that she did not understand why the convention was a 

bright line for him. She stated, “Because if you were concerned about an 

appearance that [Clinton is] the Democratic nominee and you have a Democratic 

Attorney General, well, you got that before the convention. You’ve kind of had that 

for quite some time now.” Yates said that she may have mentioned to Comey that 

Clinton had been the presumptive Democratic Party nominee for some time and 

that using the convention as a dividing line seemed “really artificial.”

Yates also said that she was taken aback by Comey’s comments, because the 

investigation had been going on for some time and he had never mentioned the 

need for a special counsel. She said that his concern was based on the perception 

created by a Democratic-appointed Attorney General announcing that the 

Democratic Party’s Presidential nominee would not be prosecuted. Yates said that 

she understood that this was “all for appearance reasons.” She stated, “Jim 

[Comey] never, ever, raised any concern about Attorney General Lynch having any 

kind of actual conflict or even an appearance of a conflict before we got to the 

tarmac. Never, ever. Nor did anyone else at the FBI ever raise any concern about 

that that I’m aware of.”

Asked whether Comey at any time raised concerns about the involvement of 

Lynch in either the investigation or the announcement, Yates stated:

No...I mean, this is where, and when I am so emphatic about that it’s 

because I read articles and testimony later that frankly, shocked me. 

Because I thought, this was not the only discussion that I had with 

former Director Comey about how we would roll it out. And I 

thought...I read and I have no way of knowing if this is true, but I 

think Director Comey’s testimony indicated that he had been thinking 

for quite some time that he felt like he needed to go in alone in 

making the announcement. And not only did I never hear that, I’m 

not aware of anybody, I mean, maybe somebody else at DOJ had 

heard that and it never made its way to me. But I’m not aware of 

anybody else at DOJ hearing that.

In fact, that’s just the opposite of what our discussions were. I would 

have thought when...we’re talking about a joint press conference, et 

cetera, that if he harbored either (A), any reservations about whether 

Attorney General Lynch had a conflict or appeared to have a conflict he 

would have said something. I don’t know how you have a discussion 

about that and have those feelings and not say anything about it. And 

then (B), if he was actually planning on doing it on his own I don’t 

know how he didn’t tell me that.

Yates said that she would have expected Comey to discuss any concerns he had 

about Lynch or the Department with her, and said that Comey had not been shy or 
174

hesitant to give his opinion in discussions with her. However, she said that Comey 

“kept FBI’s information very tight,” and that she “sometimes...felt like [she] had to 

pry information out of him.”

Axelrod gave a similar account of Comey’s mention of a special counsel. He 

said that Comey was concerned with the dates of the national political conventions, 

particularly the Democratic National Convention, because he thought that it would 

not be tenable for the Department’s leadership to continue to oversee the 

investigation or announce a declination once former Secretary Clinton was the

Democratic Party’s nominee. Axelrod said that he perceived Comey’s concern as 

“purely calendar-driven.” He told the OIG that he did not know if Comey 

appreciated the way that the appointment of a special counsel would be perceived 

by the outside world, or whether it was “some sort of gambit to sort of say hey, if 

you guys don’t pick up the pace, right, this is going to get really ugly.” Axelrod said 

that at the time he interpreted the suggestion as Comey thinking through how to 

“navigate this in such a way that it gets accepted by, again, not by everyone but at 

least by some chunk of the public, the reasonable center, as having been done on 

the level.”

Rybicki told the OIG that he did not recall any discussions between Comey 

and Yates about the need to appoint a special counsel.

3. Lynch’s Knowledge of the April Meeting

Asked about her knowledge of the meeting between Yates and Comey, Lynch 

said that Yates told her that she met with Comey, and that Comey indicated that he 

was not sure there was a “there there” with respect to the Midyear investigation. 

According to Lynch, Yates said that Comey mentioned that he should be the one to 

make any announcement about the resolution of the case, because this would be 

best for the independence of the Department. Lynch said that Yates and she both 

thought that any discussion about an announcement was “very premature.”

Lynch said that she did not think about the option to have Comey make any 

eventual announcement in terms of a “decision tree” because it was so premature.

She stated that she was not aware of any other options that Comey and Yates 

discussed, but that she did not see a basis for the Department to “have the 

investigative arm announce a prosecutive decision.” Asked whether there was 

anything about the case that in her view would warrant deviating from the standard 

practice of having prosecutors announcing a prosecutorial decision, Lynch 

responded that there was not.

Lynch told the OIG that she understood from Yates that Comey wanted to 

complete the investigation before the political conventions. However, she said she 

did not recall being told that Comey had mentioned the possibility of requesting a 

special counsel if the investigation continued beyond that point. She said that, 

other than letters from Members of Congress requesting a special counsel to handle 
175

the investigation, no one ever mentioned that a special counsel might be necessary 

or might be requested if the investigation took too long.

131

Lynch said that she had looked at the special counsel regulation at one point 

because that is “a decision that the AG has to make,” but had not taken steps to 

have anyone look into it or research it. She said that she was convinced that the 

team handling the investigation could come to a conclusion. She stated, “I was 

convinced that if, for example, they thought that someone should be charged, they 

were not going to hesitate to recommend that.”

As we discuss in Section IV.B below, Lynch received an ethics opinion 

following the tarmac meeting with former President Bill Clinton on June 27, 2016, 

that she was not required to recuse herself from the Midyear investigation. She 

decided not to voluntarily recuse herself for a variety of reasons, including that she 

did not have a personal relationship with either former President Clinton or former 

Secretary Clinton.

B. Subsequent Discussions Between Comey and Yates

Yates said that sometime after her initial meeting with Comey, she received 

a phone call from him in which he said that he had been talking to “his people,” and 

they had decided that the FBI would not make a recommendation at all. Yates said 

that Comey told her that the FBI instead would “just give DOJ the facts and DOJ 

would make the decision and [the FBI] wouldn’t make a recommendation.” 

According to Yates, Comey described this as the way the FBI and the Department

“normally do it.”

Yates said that she asked Comey what he was talking about, because the FBI 

always makes recommendations about charging decisions. According to Yates, she 

recalled saying the following to Comey:

Jim, I thought we had talked about it the last meeting.... That we 

were all going to hold hands and jump off the bridge together. 

Because that’s kind of how I viewed this was that this was going to be 

a tough thing here. That a lot of people were not going to like our 

decision but that’s our job. And that we were going to, you know, we 

were all going to stand there together. We were going to announce it 

together.

Yates said that Comey was non-committal after she made this statement.

 

131

 On October 28, 2015, 44 Members of the House of Representatives sent a letter to Lynch 

requesting the appointment of a special counsel in the Midyear investigation, citing former President 

Obama’s comments about the investigation on 60 Minutes as evidence that he had prejudged the 

investigation. The letter stated that a special counsel was warranted to ensure that the investigation 

was conducted free of undue bias from the White House. In addition, Senator Charles Grassley sent a 

letter to former Director Comey on May 17, 2016, asking various questions, including whether Comey 

believed that a special counsel was necessary.
176

Yates said that she remembered sitting at her desk after this call and 

thinking, “What?” She said that she spoke to Axelrod and Carlin after hanging up 

the phone, saying, “Holy cow. I mean, what is this business of now they’re not 

even going to make a recommendation?”

Yates said that when she thought back to every major announcement she 

had done throughout her career, the lead investigative agency was always involved. 

She said that by that point it was “really clear that from the line agents all the way 

up they were all of the view that this shouldn’t be a criminal prosecution.” She said 

that given that agents and prosecutors agreed there was no basis to prosecute 

former Secretary Clinton, it was important to present a unified view of the 

investigation.

Comey told the OIG that he did not recall discussions about the end of the 

investigation with the Department other than his initial April meeting with Yates and 

Axelrod, and he did not recall any discussions with them about a joint DirectorAttorney General announcement. Rybicki also said he did not recall any discussions

about the end of the investigation.

Axelrod said he recalled that the FBI “went back and forth on whether...they 

wanted to be, whether they were willing or the Director was going to be willing to

be part of...sort of some sort of joint roll out.” Lynch also told the OIG that she 

recalled Yates mentioning that at some point that she had had another discussion 

with Comey, and that Comey was no longer sure that he should be the person 

making the announcement.

Yates said that after this call with Comey, there were other discussions with 

him where they were “back on track” and “all holding hands and jumping off the 

bridge together.” Yates said she did not recall whether these subsequent 

discussions took place face-to-face or on the phone, or whether anyone else from 

the FBI was there. She said that they never made a final decision about how they 

would announce the declination, but that it was likely to be with a press conference 

where they laid out the facts supporting a conclusion that there was not a crime to 

be prosecuted. Yates said she had anticipated that Lynch would speak, but that 

they had not determined whether there would be other speakers. She said that 

they also planned to release a written document.

Yates told the OIG that she did not recall identifying a target date for making 

the announcement, but that they understood it would be a “matter of days” after 

the interview of former Secretary Clinton on Saturday, July 2, 2016. Yates stated,

“And we were trying to be careful not to plan this too much, again, because we 

hadn’t made the final decision yet. This is where we thought it was going to go but 

you don’t know until that interview is concluded.” Axelrod also told us that plans 

for an announcement were not “solidified because we weren’t quite at the end.”
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C. Other Discussions within the FBI and Department

1. Discussions between McCabe and Carlin

Axelrod said that the discussions between Yates and Comey about the 

conclusion of the case were not the only ones that took place between the 

Department and the FBI. He said that during the Spring of 2016, Toscas, Carlin, 

Rybicki, and McCabe also were involved in discussions about how to credibly 

conclude and announce the conclusion of the investigation.

We asked various witnesses about these discussions but were unable to 

develop a precise timeline for them or a specific recollection of what was discussed. 

Carlin told the OIG that he may have talked about how to credibly announce a 

declination with McCabe “once or twice.” He said that they discussed the 

“incredible scrutiny” that the case would receive and the need to memorialize in 

writing any disagreements between the team. He said they also discussed the need 

for a written description recounting the steps that were taken in the investigation. 

Carlin stated:

And then what made this a little unusual for me anyway was that it 

came over as an IG, an 811 referral matter. And so one thing we had 

discussed was doing some closeout [summary of] facts to the IG.... If 

there were no criminal charges that doesn’t mean there’s not more to 

be done for the IG and lessons that they can learn from what we did in 

terms of the steps that they apparently felt they couldn’t take...for 

things that were outside Government servers. And so I’d always 

thought at the end that some version of just the facts, not our thinking 

as to whether or not you bring a criminal charge, should go back to 

the IG in a closeout form. So then they could continue with whatever 

they were going to do, either administratively because there may be 

bad practices, or the set. Substantively it was clear to me from the 

investigation that there could be improvements made in terms of how 

the State Department was giving guidance and handling potentially 

classified information.

Carlin said that he did not know if Comey ever approved the idea of a referral back 

to IC IG, “But at the Deputy [McCabe] level I thought there was some agreement 

by a meeting of the minds that that was the likely way we were going to proceed.” 

He said that he did not want to overstate it or give the impression that everyone 

had “signed off on” the idea, but that when he “raised that as a potential course it 

seemed like people thought that was reasonable.” Carlin said that he did not recall 

discussing a joint press appearance by Lynch and Comey.

McCabe told the OIG that he recalled talking to Carlin about how to credibly 

conclude the investigation during lunch together in May or June 2016. McCabe said 

that neither of them had a “very well-formed idea” about what the end of the 

investigation looked like at that point, but that Carlin felt strongly that Comey 

should have a “very active and prominent role” in any public announcement. 
178

McCabe said that they discussed various options, including a written memorandum 

or a joint press conference.

Asked about his involvement in discussions with the FBI about how to 

announce the conclusion of the case, Toscas said that he did not have a specific 

recollection of any such discussions. He stated:

I very much wanted the Bureau [to be] part of the discussion and I 

know that there was some discussion of making sure that—or to try to 

have a joint AG/FBI Director statement, whether in front of cameras or 

an issued written statement, and I remember thinking, and I may 

have even talked to our team you know specifically about this, like we 

want—like we want the FBI Director talking about this, right. We want 

there to be—the American public to know that DOJ and FBI are 

together on this and that we've run it down and we've concluded the 

investigation.

Toscas also said that he thought that Department leadership separately was 

involved in discussions with the FBI about how to announce a declination, and that 

he vaguely recalled a discussion the week before the interview of former Secretary 

Clinton about what a joint appearance or statement would look like.

2. Discussions among Prosecutors and NSD Supervisors

On March 30, 2016, Prosecutor 1 sent an email to Prosecutor 2 stating, 

“Read the Ruth Marcus column in the [Washington] Post if you haven’t yet.”132 The 

column referenced in the email discussed the public skepticism that would result 

from a decision not to indict former Secretary Clinton and recommended that the 

Department consider releasing a detailed investigative summary. It included a 

hyperlink to a public report released by the Department in 2010 that summarized 

the investigation into the 2001 anthrax letter attacks. The column also highlighted 

the need for a credible government official to provide the public with information 

about the investigation, noting, “Senior Justice officials will be mistrusted whatever 

they say, but what about FBI Director James B. Comey, who served in the Justice 

Department under George W. Bush?” Apparently after reading this column, 

Prosecutor 2 replied, “It is not dissimilar from some of the thoughts running 

through my head in the middle of the night...or what I tried expressing at that 

disastrous meeting we called with Toscas a couple months ago.”

Prosecutor 2 told the OIG that they had a meeting with Toscas in or around 

February 2016 focused on what the end of the investigation should look like. 

According to Prosecutor 2, Toscas said at this meeting that the prosecutors would 

provide their legal analysis and conclusions to Carlin, through Toscas, and that 

there was some “vague idea” that Comey or McCabe would release a statement. 

This prosecutor told the OIG that the Department’s involvement in any FBI 

statement was uncertain, and it was unclear at that point whether the statement 

would be written or oral. This prosecutor described this meeting as “contentious,” 

 

132

 See Ruth Marcus, What If Clinton Isn’t Indicted?, WASH. POST, Mar. 30, 2016, A17.
179

and said that NSD supervisors seemed to wonder what the line prosecutors wanted 

from them. This prosecutor said they brought up the issue of how to announce the 

end of the investigation because they were searching for assurances from their 

management that high-level Department officials would be involved. Prosecutor 2 

stated:

[I]f the statement is made, who is making that statement? Is it 

Comey? Will DOJ be standing by his side? If DOJ is standing by his 

side, is that going to be the Attorney General, or is that going to be 

[Prosecutor 1] and [Prosecutor 2]? Because [Prosecutor 1] and 

[Prosecutor 2] are driving this investigation for DOJ.

Prosecutor 1 did not recall when the meeting with Toscas took place, but 

estimated that it was sometime in early 2016. Prosecutor 1 stated that the plan 

discussed at that meeting was for them to finalize their legal analysis and 

conclusions and provide it to the NSD chain of command. Prosecutor 1 said that he 

also expected that there would be a public announcement of some sort given the 

high-profile nature of the investigation. As described in Section II.C.4 below, 

Prosecutor 1 said that as the investigation moved toward completion, he 

understood that Comey likely would be the official publicly announcing a 

declination.

Prosecutors 3 and 4 said that the team thought that the FBI would be 

involved in announcing the conclusion of the investigation, but they did not know 

what the plans were. Prosecutor 3 stated, “We speculated...that it would be some 

FBI report, like maybe a classified report of findings, and then a public 

report...because it was a high-profile investigation.... And no one really knew 

what, what the FBI was going to do.” Prosecutor 4 told the OIG that he did not 

care how announcing a declination was handled, other than he wanted Comey to 

participate in it. This prosecutor stated:

And from my vantage point, I didn’t care other than the fact that I 

wanted Comey up there on a podium. I didn’t care whether the AG 

was sitting next to, standing next to him or not. But I wanted Comey 

to make the announcement that, that the investigation was closed and 

that in FBI’s viewpoint that there was not a prosecutable case....

Because Comey was a Republican, or [had] a Republican background. 

He’d been a Republican-appointed U.S. Attorney. He had been a 

Republican-appointed DAG. I know Comey from his EDVA days. I 

think, thought he was widely respected on both sides of the aisle, 

before this case especially. And I thought that he had the gravitas, 

that no matter what he did, it was going to be questioned, but that it 

would be, that there would be an air of legitimacy to what I thought 

was a legitimate investigation if he made the announcement, and 

especially after the tarmac meeting.

This prosecutor told the OIG that Laufman had tried on several occasions to 

raise the issue of planning for a joint announcement at meetings with the FBI, and 
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that Strzok was “always really squirrely about that.” He said that Strzok would say 

that they should wait to see how everything worked out, or that the decision was 

“above [his] pay grade.”

3. Additional Special Counsel Discussions

FBI Attorney 1 told us that the FBI Midyear team discussed whether they 

needed a special counsel at the beginning of the investigation in 2015. She said 

that at that time they had a legal intern research the statute, which expired and 

was replaced by regulations requiring appointment by the Attorney General.133 She 

said that the discussion among the FBI Midyear team was, “[D]o we need one? 

When would we need one? How does this work sort of questions.... Was it 

necessary? And I, and I think we kind of thought we could handle this without the 

special counsel.”

FBI Attorney 1 stated that the idea of a special counsel came up again at 

various points during the investigation, but that “[t]here was not any really 

significant discussion about it.” She said that the team thought that they could 

complete the investigation, and they saw no signs of a conflict of interest on the 

part of the NSD lawyers.

Discussions about requesting a special counsel resurfaced within the Midyear 

team in mid-March 2016, following the discovery of the highly classified 

information, and occurred at various points through at least mid-May 2016. Text 

messages between Page and Strzok on March 18, 2016, indicate that the two of 

them discussed requesting a special counsel to oversee the investigation:

7:31 a.m., Strzok: “Thought of the perfect person D[irector Comey] 

can bounce this off of.”

7:31 a.m., Page: “Who?”

7:37 a.m., Strzok: “Pat [Fitzgerald]. You gotta give me credit if we 

go with him. And delay briefing him on until I can get back and do it. 

Late next week or later.”

7:38 a.m., Page: “We talked about him last night, not for this, but 

how great he is. He’s in private practice though, right? Suppose you 

could still bring him back. And yes, I’ll hold.”

7:57 a.m., Strzok: “Yes, he’s at Skadden in Chicago. I haven’t talked 

to him for a year or two. Don’t forget that D[AG] Comey appointed 

 

133

 As discussed in Chapter Two, Department regulations at 28 C.F.R. § 600.1 provide that 

the Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney 

General, will appoint a Special Counsel when he or she determines that criminal investigation of a 

person or matter is warranted and (a) that investigation or prosecution of that person or matter by a 

United States Attorney’s Office or litigating Division of the Department of Justice would present a 

conflict of interest for the Department or other extraordinary circumstances; and (b) that under the 

circumstances, it would be in the public interest to appoint an outside Special Counsel to assume 

responsibility for the matter.
181

him as special counsel in the Plame matter, and that he was there for 

Comey’s investiture.”

7:58 a.m., Strzok: “I could work with him again. And damn we’d get 

sh*t DONE.”

7:58 a.m., Page: “I know. Like I said, we discussed boss and him 

yesterday.”

Based on the date of this exchange, Page told the OIG that the discovery of 

classified information relating to Lynch likely prompted her discussion with Strzok, 

but that she did not recall the idea of appointing Fitzgerald to be the special counsel 

for the Midyear investigation being discussed with FBI leadership. After reviewing a 

draft of the report, Page stated that she and Strzok had discussed consulting 

Fitzgerald about the classified information relating to Lynch, not about serving as a 

special counsel. Strzok said that he did not recall what led to this discussion, but 

he speculated that it may have been motivated by concerns about the information 

discussed in the classified appendix to this report. Strzok told the OIG that 

discussions about a special counsel reflected a genuine concern about the 

Department’s ability to credibly close the investigation, denying that the idea was 

intended to get the Department to move more quickly on the Mills and Samuelson 

laptops.

Although witnesses denied that there was a specific deadline for completing 

the Midyear investigation, witnesses told us that Comey and other senior FBI 

officials strongly encouraged the team to finish the investigation as quickly as 

possible to avoid impacting the 2016 election. Notes reviewed by the OIG reflect 

that Comey increasingly was concerned by the timetable for completing the 

investigation as the debate about obtaining the laptops continued into May 2016. 

According to these notes, on May 9, 2016, Comey met with the FBI’s Midyear team 

and told them that there “will come a point when DOJ can’t credibly close this, and 

will need a special prosecutor.” On May 11, 2016, other notes indicate that Comey 

told agents and prosecutors at a Midyear briefing that there was an “extraordinary 

sense of urgency” to complete the investigation, and that there was the risk that a 

declination would be perceived as partisan the closer they got to the election.

The next day, May 12, 2016, Strzok raised the possibility of a special counsel

during a meeting with Laufman. Notes indicate that there was a lengthy discussion 

about Comey’s timetable for completing the investigation and the need to obtain 

the Mills and Samuelson laptops, and that Strzok mentioned the possibility of 

requesting a special counsel if they got closer to the election. Laufman said that he 

viewed Strzok’s comment as a “veiled threat” to make it clear that the FBI was 

dissatisfied with how NSD was handling the laptop issue and would proceed how it 

wanted. Laufman said he did not recall other instances where anyone from the FBI 

mentioned the possibility of requesting a special counsel.

4. NSD Notes Reflecting Plans for an Announcement

As the team progressed toward the end of the investigation, information 

obtained by the OIG indicates that prosecutors and NSD supervisors were aware 
182

that Comey was planning to participate in an announcement. On May 16, 2016, 

Priestap sent an email to Toscas stating:

I wanted you to be aware that Director Comey would like to see a list 

of all cases charged in the last 20 years where the gravam[e]n of the 

charge was mishandling classified information. He requested the 

information in chart form with: (1) case name, (2) a short summary 

for context (3) charges brought, and (4) charge of conviction.

Toscas forwarded the email to Laufman, who replied, “What is the meaning 

of this request? Have no problem sharing data we have amassed, but am 

concerned that it signifies an expectation by Bureau to play a larger role in DOJ 

charging decision than usual.” Toscas replied, “We will all continue to work 

together with the Bu[reau] on all aspects of this, including with respect to any such 

decisions, so we should plan for and expect that our usual close collaboration with 

the Bureau will continue all the way through to the conclusion, including any such 

decisions.”

Toscas also asked Laufman to call him. Notes memorializing a telephone call 

that day indicate that Toscas told Laufman, “Bureau may simply close this.... Don’t 

think this is an insane request. Thinks Comey wants to see cases because he wants 

to be able to say why outcome not [out] of line. Everyone knows where we are 

going to end up.”

NSD prosecutors prepared a chart of cases indicted since 2000 under various 

provisions prohibiting the mishandling and improper retention of classified 

information. Toscas emailed McCabe and Rybicki about the chart on May 23, 2016, 

and hand-delivered a copy to them at his routine morning meeting. The email sent 

by Toscas included the following caveats distinguishing the charged cases from the 

Midyear investigation:

While it is not noted specifically in the chart, the vast majority of the 

listed cases involved documents or electronic files with classification 

markings on them. The few examples of charged cases where no 

markings were present involved photographs taken by the defendant 

(e.g., a case involving photos inside sensitive areas of a nuclear 

submarine) or handwritten notes where there were clear indications of 

knowledge of the sensitive nature of the materials (e.g., a case in 

which there was a recording of the defendant speaking about the 

classified nature of information in his hand-written notebooks).

The “charging/plea information” column should make it clear, but the 

mishandling noted in the chart often occurred in conjunction with other 

criminal activity, including espionage, export control violations, and 

false statements, among others.

The chart did not include any examples of cases charged under Section 793(f).

Asked whether he thought Comey’s request signaled a plan for greater 

involvement by the FBI, Laufman told the OIG that he viewed it as part of Comey’s 
183

desire to make as knowledgeable a decision as possible about whether to charge 

Secretary Clinton or her senior aides. He stated, “And that’s a conversation 

prosecutors always have with the agent, right?... So, I didn’t have any problem 

arming him with the legal precedents that we thought informed our judgment, 

which we expected to be somewhat controversial, especially on the gross 

negligence statute.”

Notes reviewed by the OIG indicate that Laufman had, or was told about by 

Toscas, discussions with the FBI regarding plans to announce a declination as the 

interview of former Secretary Clinton approached. In early June, the FBI and NSD 

began working jointly on an LHM outlining the facts developed in the investigation. 

The prosecutors began developing the legal framework for their analysis around the 

same time, but did not finalize any charging recommendations until after the 

interview.

On June 19, 2016, Laufman had a telephone conversation with Strzok about 

Comey’s plans to make a statement about the investigation. Laufman’s notes from 

this conversation listed the following topics for discussion:

(1) July 2 -----> Director’s statement.

 Q: How many days later?

 Q: Content?

 E.g., is he planning on saying anything about DOJ’s conclusions?

(2) Do you foresee any investigative activity after July 2?

The notes do not indicate what Strzok’s responses were about Comey’s plans for a 

statement. However, according to the notes, Strzok told Laufman that Comey 

wanted the investigation to be completed as soon as feasible, and thought it could 

be “largely done” other than classification reviews that were “unlikely to change 

[our] view” by July 2.

Laufman’s notes from a telephone call with Toscas on June 24, 2016 indicate 

that the two of them discussed plans for a coordinated statement with Comey. The 

notes state:

“Good news/bad news”

Sounds like greater sense of “ownership” than expected – coming to 

realization that better if Dir[ector] is person who announces it; and 

seems like Dir[ector] will be up front explaining thoroughness, 

conclusion, not proceeding with any case. Voice of joint investigation.

But don’t know what form this will take.

Bureau’s exploitation of computers: by July 2 completed ---> goal.

Soon after interview, all will be put into motion.

Director will be champing at bit to make announcement....

Want team to sit down w[ith] DAG and AG, before Dir[ector] speaks.
184

On June 27, 2016, Laufman provided this information to Prosecutor 1 and another 

NSD supervisor. Laufman’s notes from this date state, “Director will want to wrap 

up and make announcement quickly after interview.... Will be withering pressure 

after interview...expect to be very little that occurs at interview pertinent to mens 

rea determinations.” These notes discuss the need to complete the joint LHM and 

the prosecutors’ legal analysis and conclusions as quickly as possible.

Other notes obtained by the OIG indicate that prosecutors expected an 

announcement by Comey by Friday, July 8, 2016. On June 30, 2016, Laufman was 

told by another NSD supervisor, “Expect that FBI wants to announce by next 

Friday.... Wed or Thurs: briefing for DOJ leadership.” On July 1, 2016, Laufman 

received a telephone call from Toscas stating that Toscas had spoken to McCabe 

and was told they were “still on track for Friday and FBI statement that day.” 

Laufman met with Prosecutors 1 and 2 later that day and told them, “No change in 

known timetable for next week ---> Friday, July 8 announcement by Bureau. 

Details not known yet. Expect briefing of DAG + AG before (Thursday?)” The notes 

indicate that the team proposed staying at the FBI after the Clinton interview to 

“hash out differences” and finalize the closing LHM.

Asked whether these notes reflected advance knowledge by NSD supervisors 

and prosecutors about former Director Comey’s plans for a public statement, 

Laufman said they did not. He told the OIG that discussions about how to 

announce the closing of the case intensified as the interview of former Secretary 

Clinton approached. He said that they understood that Comey was going to make 

some kind of a statement, but that anything he was going to say would be closely 

coordinated with the Department. He said he had no knowledge of and was not 

privy to discussions about plans for a joint statement by Comey and Lynch. Asked 

what he thought would happen as of July 1, 2016, he stated:

I expected that we would complete the Clinton interview. The Bureau 

would complete its LHM. We would complete our [legal analysis]. 

Discussions would take place within DOJ, between DOJ and the 

Bureau, there would be a closely-coordinated endgame, like there is in 

the disposition of many matters in the Department where a bunch of 

people stand up...in front of a bunch of flags and carefully 

orchestrated, well thought through set of statements about a 

matter.... And we were going to be briefing the AG and the DAG 

before that.

Laufman also recalled Toscas telling him on several occasions that there was value 

in having Comey out front on the investigation, given the accusations by “political 

actors” that the Department could not be trusted to conduct a fair and balanced or 

complete investigation.

Strzok told the OIG that he participated in discussions with prosecutors about 

how to announce the closing of the investigation, including some discussions with 

Toscas. Strzok said they discussed whether there would be a press conference, 

who would participate in a press conference, and what level of detail any statement 

would provide, but he characterized these discussions as “preliminary.” Anderson 
185

similarly told the OIG, “So, I think at some point, DOJ began pressing us to start 

talking about the end game. But we, within the Bureau, were already pretty far 

along in terms of our own thinking about what we thought the end game should be, 

such that we didn’t really engage that meaningfully with DOJ on the issue at the 

line level.”

However, notes indicate that FBI agents, lawyers, and senior officials were 

aware that the Department expected to make a joint announcement with the FBI at 

the end of the investigation. According to FBI Attorney 1’s notes from a Midyear 

update meeting with Comey on June 27, 2016, the FBI discussed this expectation, 

stating, “Laufman saying pros memo + joint statement one week after HRC 

interview.” Page’s notes from the June 27 meeting indicate that FBI leadership told 

the Midyear team what to say to NSD about an announcement: “[Clinton] 

Interview Sat[urday]; LHM Tues[day], and our leadership will be talking to yours, & 

what you expect a final announcement will look like.”

The next day, June 28, 2016, Laufman’s notes reflect that an attorney in 

NSD’s Front Office asked him to call Strzok and find out when the FBI planned to 

close the investigation. The notes read, “If not w/in short order after July 2 – if not 

by next week – Why not?! What’s the plan...?” The notes indicate that Laufman 

spoke to Strzok, and Strzok told him that the FBI would finalize the LHM by the 

following Tuesday. The notes indicate that Laufman asked what Comey’s goal was 

for announcing the closing of the investigation, and Strzok told Laufman he was not 

sure how soon it would be. That same day, Strzok and Page exchanged the 

following text messages:

12:43 p.m., Strzok: "God I am getting GRILLED by Laufman right 

now.”

12:46 p.m., Page: “You’ve got your answer to give him....”

12:52 p.m., Strzok: “I do...Still going....”

III. Drafting of Former Director Comey’s Public Statement

A. Original Draft Statement

Former Director Comey told the OIG that after his initial meeting with Yates 

and Axelrod in April 2016, he began thinking about the “outer boundaries” for 

announcing the conclusion of the investigation. He explained that a one-line press 

release by the Department stating that the case was closed was one outer 

boundary, and an FBI-only press conference providing a detailed statement about 

the investigation was the other. Comey said that the team from Strzok and the 

Lead Analyst on up discussed every option in between these two “outer 

boundaries.” Comey told the OIG that he considered what options would be best 

calculated to minimize the reputational damage to the Department that might result 

from a declination decision given the partisan political environment in the country 

at that time.
186

Comey said that the possibility of the FBI doing a statement separate from 

the Department occurred to him around that time. He stated:

I mean to my mind it was a crazy idea, but we were in a [500]-year 

flood, as you all have now investigated enough and lived enough to 

know, that this is a circumstance that has never happened before. 

We’re criminally investigating one of the candidates for president of 

the United States.... [P]resident [Obama’]s comments obviously 

weighed on me as well. You’ve got the President who has already said 

there’s no there there.... And so all of that creates a situation where 

how do we get out of this without grievous damage to the institution?

Comey told us that, in addition to preserving the credibility and integrity of the 

Department and the FBI, his concern was protecting “a sense of justice more 

broadly in the country—that things are fair not fixed, and they’re done 

independently.”

McCabe told the OIG that he recalled that Comey first mentioned the idea of 

doing an independent statement as “an aside, at either the beginning or the end of 

a meeting that we had...in his conference room.” McCabe said that Baker and 

Rybicki also were present, and that the group had been discussing where the 

investigation was going and what the end would look like “if we end up with 

nothing.” He said that Comey asked them, “[W]hat do you think about the 

prospect of just like me doing something solo?” McCabe stated:

And I remember when he said it kind of looking at Rybicki. And the 

both of us are just kind of like, oh my God, you know? And I, I mean 

honestly I, I, at first blush I was like, whew, wow, that’s, that could go 

really wrong.... Because for, you know, for the obvious reason. It’s 

just so not what we do. And we thought...that would be a huge break 

with...protocol...and everything else.

McCabe said that he may have told Comey that he was concerned that an 

independent statement would be a “complete departure” from Department protocol 

and could set a “potentially dangerous precedent” for the FBI. McCabe said that 

Comey was “very aware” that there were many reasons he should not do a

statement on his own, and that “conventional wisdom might mitigate against it.” 

He said that in late April and early May 2016, Comey was “not anywhere close to 

having decided to do it that way.”

Comey told the OIG that he sat down one weekend and typed out a draft 

statement. He told the OIG that he did so from memory, explaining that it helps 

him to write when he is struggling with an idea. Comey described the draft 

statement as a “straw person,” and told the OIG that he did this with the intention 

of giving the draft to the team and asking, “What do you think?”

On May 2, 2016, Comey sent an email to McCabe, Baker, and Rybicki 

including the text of the draft “straw person.” He stated at the beginning of the 

email:
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I’ve been trying to imagine what it would look like if I decided to do an 

FBI only press event to close out our work and hand the matter to 

DOJ. To help shape our discussions of whether that, or something 

different, makes sense, I have spent some time crafting what I would 

say, which follows. In my imagination, I don’t see me taking any 

questions. Here is what it might look like.

Comey sent a four-page draft statement outlining what the Midyear team did and 

found by email, which we have provided as Attachment C to this report. The May 2 

draft was substantially similar to Comey’s final version, but with several notable 

exceptions. In particular, the May 2 draft statement used the statutory language 

from Section 793(f)(1), describing former Secretary Clinton’s handling of classified 

information as “grossly negligent.” It also concluded that there was evidence of 

potential violations of this provision and the misdemeanor removal statute, Section

1924. The draft stated:

There is evidence to support a conclusion that Secretary Clinton, and 

others, used the private email server in a manner that was grossly 

negligent with respect to the handling of classified information.... 

There is evidence to support a conclusion that any reasonable person 

in Secretary Clinton’s position, or in the position of those government 

employees with whom she was corresponding about these matters, 

should have known that an unclassified system was no place for such 

an email conversation. Although we did not find clear evidence that 

Secretary Clinton or her colleagues intended to violate laws governing 

the handling of classified information, there is evidence that they were 

extremely careless in their handling of very sensitive, highly classified 

information.

Similarly, the sheer volume of information that was properly classified 

as Secret at the time it was discussed on email (that is, excluding the 

“up classified” emails) supports an inference that the participants were 

grossly negligent in their handling of that information....

Finally, with respect to our recommendation to the Department of 

Justice. In our system, the prosecutors make the decisions about 

whether charges are appropriate based on evidence the FBI has helped 

collect. Although we don’t normally make public our recommendations 

to the prosecutors, we frequently make recommendations and engage 

in productive conversations with prosecutors about what resolution 

may be appropriate, given the evidence. In this case, given the 

importance of the matter, I think unusual transparency is in order.

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. At the 

outset, we are not aware of a case where anyone has been charged 

solely based on the gross negligence prohibition in the statute. All 

charged cases of which we are aware have involved the accusation 
188

that a government employee intentionally mishandled classified 

information. In looking back at our investigations in similar 

circumstances, we cannot find a case that would support bringing 

criminal charges on these facts. All the cases prosecuted involved 

some combination of: (1) clearly intentional misconduct; (2) vast 

quantities of materials exposed in such a way as to support an 

inference of intentional misconduct; (3) indications of disloyalty to the 

United States; or (4) efforts to obstruct justice. We see none of that 

here.

As described in more detail below, the language characterizing former Secretary 

Clinton’s conduct as “grossly negligent,” the inference of gross negligence from the 

volume of classified email, and the reference to the misdemeanor mishandling 

statute were omitted from the final version delivered by Comey on July 5, 2016.

We asked Comey about the date of this initial draft and whether it indicated

that he had predecided the outcome of the investigation even before the interview 

of former Secretary Clinton. Comey stated:

[I]f you were in my position after nine months you’re incompetent if 

you don’t know where this is going. Now the notion that I committed 

perjury by saying the decision wasn’t made by then. The decision was 

not made by then. But it was a high probability...this was going to 

end in a certain way that would be really, really hard, which is the 

declination, so we better get to work thinking about that. Now if we 

find something else, great, or if...Hillary Clinton either gives us 

[18 U.S.C. §] 1001 [false statements] during the interview or the team 

says you know what, we’ve got to dig into some more stuff because 

she might have lied to us, wants to pursue additional investigative 

steps, you either recommend the 1001 or you say you know what, 

we’ve got more work to do here.... But in May, unless those things 

happen, I can see where this is headed and we’ve got to start to think 

carefully because you cannot be thinking about this on the weekend 

before the case ends. That’s my reaction.

Comey also told the OIG that when he wrote the May 2 draft, he thought the 

investigation would be completed by June. As described in more detail below, 

Comey said he did not recall that his original draft used the term “gross 

negligence,” and did not recall discussions about that issue.

On May 6, 2016, Comey emailed Rybicki and McCabe, stating, “Think maybe 

you should share my straw person announcement with Priestap, [Strzok], and [the 

Lead Analyst]. Close hold to the three of them but might be good to get them 

thinking.” That afternoon, McCabe forwarded the draft statement to Priestap, 

Strzok, and the Lead Analyst, as well as Page. In the email, McCabe stated:

The Director composed the below straw man in an effort to compose 

what a “final” statement might look like in the context of a press 

conference. This was really more of an exercise for him to get his 
189

thoughts on the matter in order, and not any kind of decision about 

venue, strategy, product, etc.

The Director asked me to share this with you four, but not any further. 

The only additional people who have seen this draft are Jim Rybicki 

and Jim Baker. Please do not disseminate or discuss any further. 

(Emphasis in original).

McCabe’s email noted that Comey might want to discuss the draft at the update 

meeting the following Monday, May 9, 2016. Strzok replied, “Understood and will 

do.” McCabe then replied to Comey, “Spoke to Bill [Priestap] and passed the email 

on the red side to Bill, Pete and [the Lead Analyst]. Also took the liberty of 

including Lisa [Page] – I hope that was ok.”

On May 6, 2016, shortly after receiving the draft, Priestap sent McCabe his

initial comments. Priestap stated, “The piece is superb,” and made several 

suggestions for minor changes. Priestap also noted that the draft contained 

information indicating that former Secretary Clinton did not comply with federal 

record requirements, suggesting that Comey have someone study the impact such 

a statement could have on administrative inquiries related to federal record 

obligations. McCabe sent these comments to Comey the following week.

On May 16, 2016, Rybicki sent the original draft to a larger group of people 

that included Anderson, FBI Attorney 1, and Bowdich, stating, “Please send me any 

comments on this statement so we may roll into a master doc for discussion with 

the Director at a future date.” The draft statement also was discussed at a meeting 

that day that was attended by Comey, Rybicki, Bowdich, Steinbach, Priestap, 

Strzok, the Lead Analyst, Baker, Anderson, FBI Attorney 1, and Page. According to 

notes from this meeting, one of the items discussed was, “Do we agree w[ith] gross 

negligence assessment??”

Later that same day, the Lead Analyst provided comments to Strzok for 

incorporation into a “team response.” The Lead Analyst characterized his 

comments as technical corrections, including one in which he recommended 

highlighting that some of the emails were found to contain classified information 

when sent, not just after the fact. The Lead Analyst stated, “All of this to 

emphasize that it is not true that this is all a matter of classification after-the-fact 

and that the people sending these emails should have known better.”

Strzok included these comments and added his and Page’s to an email that 

he sent to Rybicki, McCabe, and Priestap on behalf of the team on May 17, 2016. 

This email provided “overarching observations” about the draft, stating that they 

would provide additional comments and fact checking as Comey narrowed down 

what he wanted to say. Among the specific recommendations provided were 

suggestions that the statement include the number of emails containing information 

that was determined to be classified at the time they were sent to “more directly 

counter the continuous characterization by Hillary Clinton describing the emails 

involved in this investigation as having been classified after the fact.”
190

The May 17 comments also noted the need to distinguish between prior highprofile mishandling prosecutions and the Midyear investigation. Strzok stated:

We’d draw the distinction in noting that we have no evidence classified 

information was ever shared with an unauthorized party, i.e., 

notwithstanding the server set up, we have not seen classified 

information shared with a member of the media, an agent of a foreign 

power, a lover, etc. Additionally, it’s important to note that had these 

same emails been sent on a state.gov system rather than a private 

one, it’s not clear that the FBI would currently have an open 

investigation.

The May 17 email also commented on language in the initial draft that it was 

“reasonably likely that hostile actors gained access to Secretary Clinton’s private 

email account.” Strzok stated:

It is more accurate to say we know foreign actors obtained access to 

some of her emails (including at least one Secret one) via 

compromises of the private email accounts of some of her staffers. 

It’s also accurate to say that a sophisticated foreign actor would likely 

have known about her private email domain, and would be competent 

enough not to leave a trace if they gained access. But we have seen 

no direct evidence they did.

Finally, the May 17 comments listed “whether her conduct rises to the legal 

definition of gross negligence” as a topic for further discussion.

Responding to Strzok’s email, Priestap provided additional comments on the 

draft the following day, May 18, 2016. Priestap suggested that the statement

should more fully describe the FBI’s role in recommending or not recommending 

that charges be brought in criminal cases, and why Comey was recommending that 

charges not be brought against former Secretary Clinton, stating:

I believe it’s equally important for the Director to more fully explain 

why the FBI can, in good faith, recommend to DOJ that they not 

charge someone who has committed a crime (as defined by the letter 

of the law). It’s important the Director explain our recommendation 

from the FBI perspective and not from the DOJ/prosecutorial 

perspective. The FBI is recommending that charges not be brought in 

this instance, not only because “no reasonable prosecutor would bring 

such a case,” but because the FBI believes it’s the right thing to do 

based on.... (Emphasis and ellipses in original).

Priestap also suggested that Comey had the option of not making a charging 

recommendation at all, but that this would undermine the FBI’s position with the 

Department in future cases. He suggested that Comey could emphasize privately 

to the Department that it should take the FBI’s charging recommendations 

seriously, stating, “DOJ can’t just stand with us when it’s easy for them to do so.” 

Priestap’s comments also stated, “While I was initially wary of having the Director 
191

provide an investigative update, I’m beginning to warm to the idea...if we don’t 

soon shape the narrative with the facts, the narrative will be shaped by others, 

potentially harming the FBI.”

According to a meeting log prepared by FBI OGC, on May 24, 2016, Comey 

met with Page, Strzok, Baker, Anderson, FBI Attorney 1, and others to discuss the 

statement. Page’s notes from the meeting indicate that the group discussed adding 

language highlighting how well the Midyear investigation was done and that there 

had been no political interference. The notes also state that they planned to “have 

another conversation about the strategy at all [sic].”

B. The Decision to Omit “Gross Negligence”

Comey again met with Rybicki, Bowdich, Steinbach, Priestap, Strzok, the 

Lead Analyst, Baker, Anderson, FBI Attorney 1, and Page to discuss the statement 

on May 31, 2016. Notes from this meeting indicate that the discussion included

“Lisa [Page]/[FBI Attorney 1] legal thinking.” According to Page, she raised

concerns about the use of “grossly negligent” in the draft statement at one of the 

meetings with Comey (likely the May 31 meeting) before making edits to the 

statement. Page told us:

I believe that I raised with [Comey] the concern...with the use of gross 

negligence in particular because I was concerned that it would be 

confusing if we used a...term that has a legal definition...if we say 

she’s grossly negligent, that despite the fact that we, we and the 

Department had a good reason to not charge her with gross 

negligence, given the fact that they thought it was unconstitutionally 

vague, and it had never been done, and, you know, sort of all of the 

concomitant defenses that would also follow from, from her conduct, 

that it would just be overly confusing.

Page further stated, “If the purpose of this is sort of clarity, and the purpose 

of this is to sort of try to explain to the American populace what happened and 

what we think about it, that to use a term that had an actual legal definition would 

be confusing.” She said that the team discussed the need to find some other way 

to characterize former Secretary Clinton’s conduct.

FBI Attorney 1 told the OIG that she remembered sitting down with Rybicki, 

Strzok, the Lead Analyst, and Page to discuss the language of the statute and 

whether to use “grossly negligent” wording in the draft statement. Based on a 

meeting log prepared by FBI OGC, we determined that this meeting took place on 

June 6, 2016. Rybicki said that he did not recall the substance of discussions about 

removing “grossly negligent” from the draft, but that there was “a lot of discussion”

among the FBI OGC lawyers about the statute.” He said he primarily input changes 

made by others and described his role in revising the statement as “scribe detail.”

After this meeting, Strzok, the Lead Analyst, Page, and FBI Attorney 1 met to 

edit the statement. Page told the OIG that the four of them edited the document 
192

together at Strzok’s computer. Metadata from a version of the statement indicates 

that Strzok modified the draft on June 6, 2016.

134

The next day, June 7, 2016, Strzok emailed an electronic copy of the revised 

draft to Page, and Page sent it to Rybicki, stating in the email, “Our thoughts, for 

the Director’s consideration.” The revised draft attached to Page’s email was

entitled “MYE thoughts 06-07-16” and included a number of changes from Comey’s 

original draft. Among the changes in the revised draft was the removal of the 

conclusion that there was evidence that former Secretary Clinton and her staff were 

“grossly negligent” in their handling of classified information. Instead, the June 7 

draft moved language from the end of the same paragraph in Comey’s original 

version to the beginning of that paragraph, stating:

Although we did not find evidence that Secretary Clinton or her 

colleagues intended to violate laws governing the handling of classified 

information, there is evidence that they were extremely careless in 

their handling of very sensitive, highly classified information.... There 

is evidence to support a conclusion that any reasonable person in 

Secretary Clinton’s position, or in the position of those government 

employees with whom she was corresponding about these matters, 

should have known that an unclassified system was no place for such 

an email conversation.

Page told us that FBI Attorney 1 was the one who moved “extremely careless” to 

the beginning of the paragraph. FBI Attorney 1 agreed that she likely was the one 

who suggested this edit given that she had the most familiarity with the statute. 

This change was included in the final version of the statement.

The draft also removed a reference to evidence of potential violations of the 

misdemeanor mishandling statute.

135

 The draft instead concluded that there was 

evidence of potential violations of statutes regarding the handling of classified 

information, and used the language from Comey’s original draft that no reasonable 

prosecutor would bring such a case.

The June 7 draft included two other significant changes. It removed the 

statement that the sheer volume of information classified as Secret supported an 

inference of gross negligence, replacing it with a statement that the Secret 

information they discovered was “especially concerning because all of these emails 

 

134

 Separately, on June 6, 2016, Priestap sent an email to McCabe and other providing input 

on the draft statement. In this email, he stated, “In my opinion, due to the election, this matter 

warrants the Director providing the American public an update. Ideally, this update would be provided 

as many weeks in advance of the National Conventions as is possible.” When asked about this email, 

Priestap told the OIG that in his view the investigation had been politicized, and that former Secretary 

Clinton engendered strong feelings of support or dislike in some. He explained that he viewed it as 

the FBI’s obligation to “let people know what was and was not found.”

135

 As set forth in Chapter Two, 18 U.S.C. § 1924 prohibits the knowing removal of 

documents or materials containing classified information without authority and with the intent to 

retain such documents or materials at an unauthorized location.
193

were housed on servers not supported by full-time staff.” The draft also stated that 

it was “possible,” rather than “reasonably likely,” that hostile actors gained access 

to former Secretary Clinton’s server.136

Comey told the OIG that he did not recall that his initial draft used “grossly 

negligent,” and did not specifically recall what discussions led to this change. He 

said that the group that met to discuss the drafts of his statement—which included 

Rybicki, Bowdich, Steinbach, Priestap, Strzok, the Lead Analyst, Baker, Anderson, 

FBI Attorney 1, and Page—struggled to figure out what term to use to describe 

former Secretary Clinton’s conduct, because “it was more than your ordinary 

somebody left a document in a unprotected place or had a single conversation.” 

According to Comey, they tried to capture the sense that her use of the private 

server was “really sloppy, but it doesn’t rise to the level of prosecution.” He 

speculated during his OIG interview that the team advised him that it was unwise 

to track the statutory language because the “grossly negligent” conduct required by 

Section 793(f) is something just short of willful or reckless.

Comey told the OIG that nothing the FBI learned between May 2 and July 5

changed their view of whether former Secretary Clinton’s conduct met the definition 

of “gross negligence.” Comey said that it was his understanding based on the 

statute’s legislative history that Congress intended for there to be some level of 

willfulness present even to prove a “gross negligence” violation. When asked 

whether he believed at any time in the process that former Secretary Clinton was 

grossly negligent within the meaning of Section 793(f), Comey said, “No.” Comey 

explained:

There was no evidence to establish anything close to willfulness which 

I take as a conscious disregard of a non-legal duty and that the closest 

to there to me was, it’s just really sloppy. A reasonable person in her 

position should have known, but what I understood 793(f) to be about 

is something closer to actual knowledge, but I think that it was this is 

obviously wildly distorted, but I think that’s what we were grappling 

with....

I’m trying to find a way to credibly describe what we think she did and 

our sense was, frankly mere negligence didn’t get it because it was not 

just ordinary sloppiness, it was sloppiness across a multiyear period 

and so there was, I had in my head some sense that to be credible, we 

have to capture that and what words do we use to capture it—and 

 

136

 As described in Chapter Five, the LHM summarizing the Midyear investigation stated, “FBI 

investigation and forensic analysis did not find evidence confirming that Clinton’s email server systems 

were compromised by cyber means.” The LHM noted that the FBI identified one successful 

compromise of an account belonging to one of former President Clinton’s staffers on a different 

domain within the same server that former Secretary Clinton used during her tenure, as well as 

compromises to email accounts belonging to certain people who communicated with Clinton by email, 

such as Jake Sullivan and Sidney Blumenthal. The FBI Forensics Agent who conducted the intrusion 

analysis told the OIG that, although he did not believe there was “any way of determining...100%” 

whether Clinton’s servers had been compromised, he felt “fairly confident that there wasn’t an 

intrusion.”
194

that’s where we found the formulation extremely careless. Now if I 

had to do it over again, I might have tried to find another term 

because this, we sort of walked into this entire side show about 793(f), 

but I haven’t thought of another term since then.

Comey said that he thought that the June 7 edits “track[ed] [his] formulation” by

moving the “extremely careless” language from the end of the paragraph in his 

original draft to the beginning.

After reviewing a draft of the report, Anderson told the OIG that she raised 

concerns about the use of the phrase “extremely careless” to describe former 

Secretary Clinton’s conduct, as being unnecessary to the statement and also likely 

to raise questions as to why the conduct did not constitute gross negligence. 

Anderson said that she recalled that others voiced the same concern, but that she 

did not recall precisely who raised this issue or what was said. She said that she 

recalled that Comey felt strongly that former Secretary Clinton’s behavior was 

“extremely careless,” and thought that this was the most accurate phrase to 

describe Clinton’s conduct notwithstanding concerns about criticizing her uncharged 

conduct or the potential for confusion.

C. Comey’s Edits to the Statement

On June 10, 2016, Rybicki emailed a revised draft of the statement to 

Comey. Two days later, on June 12, 2016, Comey emailed additional revisions to 

Rybicki. Comey stated in his email, “Here is my near final [draft]. Please have the 

team review it. I have saved as PDF so the team reads it fresh and not as a trackchange.”

Comey’s June 12 draft incorporated the “extremely careless” language from 

the previous revisions:

Although we did not find clear evidence that Secretary Clinton or her 

colleagues intended to violate laws governing the handling of classified 

information, there is evidence that they were extremely careless in 

their handling of very sensitive, highly classified information.

For example, seven email chains concern matters that were classified 

at the Top Secret/Special Access Program level when they were sent 

and received. These chains involved Secretary Clinton both sending 

emails about those matters and receiving emails from others about the 

same matters. There is evidence to support a conclusion that any 

reasonable person in Secretary Clinton’s position, or in the position of 

those government employees with whom she was corresponding about 

these matters, should have known that an unclassified system was no 

place for that conversation. In addition to this highly sensitive 

information, we also found information that was properly classified as 

Secret by the U.S. Intelligence Community at the time it was discussed 

on email (that is, excluding the later “upclassified” emails).
195

Comey’s June 12 draft added new language that stated, “Separately, it is 

important to point out that even if information is not marked ‘classified’ in an email, 

participants who know or should know that the subject matter is classified are still 

obligated to protect it.” This language was included in a revised form in the final 

statement delivered by Comey.

The revisions by Comey and Rybicki included new language about the factors 

that a “reasonable prosecutor” would consider in declining to prosecute a case. 

Comey’s June 12 draft stated:

Although there is evidence of potential violations of the statutes 

regarding the handling of classified information, our judgment is that 

no reasonable prosecutor would bring such a case. Prosecutors 

necessarily weigh a number of factors before bringing charges. There 

are obvious considerations, like the strength of the evidence, 

especially about intent. Responsible decisions also consider the 

context of a person’s actions, and how similar situations have been 

handled in the past.

In looking back at our investigations into mishandling or removal of 

classified information, we cannot find a case that would support 

bringing criminal charges on these facts. All the cases prosecuted 

involved some combination of: clearly intentional and willful 

mishandling of classified information; or vast quantities of materials 

exposed in such a way as to support an inference of intentional 

misconduct; or indications of disloyalty to the United States; or efforts 

to obstruct justice. We do not see those things here.

To be clear, this is not to suggest that in similar circumstances, a 

person who engaged in this activity would face no consequences. To 

the contrary, those individuals are often subject to security or 

administrative sanctions. But that is not what we are deciding now.

Following these revisions, discussions about the draft statement continued. 

Meetings took place on June 13, 14, and 15 to discuss various issues related to the 

draft. Documents provide little information about the substance of these meetings, 

and witnesses did not have a specific recollection of them.

Comey and Rybicki also continued to refine the draft statement, exchanging 

revised versions on June 25, 26, and 30, and July 1, 2, and 4. Two significant 

changes appeared in the statement during this time period.

A June 25 draft added a sentence to a paragraph that summarized the 

factors that led the FBI to conclude that it was possible that hostile actors accessed

former Secretary Clinton’s private server. This new sentence stated, “She also 

used her personal email extensively while outside the United States, including from 

the territory of sophisticated adversaries. That use included an email exchange 

with the President while Secretary Clinton was on [sic] the territory of such an 

adversary.” On June 30, Rybicki circulated another version that changed the 

second sentence to remove the reference to the President, replacing it with
196

“another senior government official.”137 The final version of the statement omitted 

this reference altogether and instead read, “She also used her personal email 

extensively while outside the United States, including sending and receiving workrelated emails in the territory of sophisticated adversaries.” FBI emails indicate 

that the decision to remove this sentence was based on concerns about litigation 

risk under the Privacy Act.

In addition, on the morning of June 30, Comey added the following 

paragraph to the statement introduction:

This will be an unusual statement in at least a couple ways. First, I 

am going to include more detail than I ordinarily would, because I 

think the American people deserve those details in a case of intense 

public interest. Second, I have not coordinated or reviewed this 

statement in any way with the Department of Justice or any other part 

of the government. They do not know what I am about to say.

This paragraph was included in the final version of the statement that Comey 

publicly delivered on July 5, 2016. While we did not ask Comey if he added this 

paragraph in response to the tarmac meeting between Lynch and former President 

Clinton, as described below in Section IV.D, Comey told us that this meeting 

“tipped the scales” in terms of his decision to deliver his statement “separate and 

apart” from the Department.

138

 

137

 After reviewing a draft of this report, Rybicki explained that, although he circulated the 

new version of the draft statement, he did not suggest or make this specific edit.

138

 Text messages between Page and Strzok on July 1, 2016, the day Lynch announced she 

would accept the recommendations of career prosecutors and agents, speculated that the tarmac 

meeting was the reason for inserting the “no coordination” language:

5:34 p.m., Strzok: “Holy cow...nyt breaking Apuzzo, Lync[h] will accept whatever rec D and 

career prosecutors make. No political appointee input.”

5:41 p.m., Strzok: “Lynch. Timing not great, but whatever. Wonder if that’s why the no 

coordination language added[.]”

7:29 p.m., Strzok: “Timing looks like hell. Will appear choreographed. All major news 

networks literally leading with ‘AG to accept FBI D’s recommendation.’”

7:30 p.m., Page: “Yeah, that is awful timing. Nothing we can do about it.”

7:31 p.m., Strzok: “What I meant was, did DOJ tell us yesterday they were doing this, so D 

added that language[?]”

7:31 p.m., Strzok: “Yep. I told Bill the same thing. Delaying just makes it worse.”

7:35 p.m., Page: “And yes. I think we had some warning of it. I know they sent some 

statement to rybicki, bc he called andy.”

7:35 p.m., Page: “And yeah, it’s a real profile in courag[e], since she knows no charges will 

be brought.”
197

D. FBI Analysis of Legal and Policy Issues Implicated by the Draft 

Statement

Comey told the OIG that he included criticism of former Secretary Clinton’s 

uncharged conduct because “unusual transparency...was necessary for an 

unprecedented situation,” and that such transparency “was the best chance we had 

of having the American people have confidence that the justice system works[.]” 

He said that that he asked Baker and FBI OGC to “scrub” his draft statement and 

“think about it through all possible policy, legal lenses.” He said that his 

recollection was that “the only [issue] they thought that was worthy of discussion 

was the Privacy Act, and they had their Privacy Act czar d[o] a memo for me laying 

out how—why they thought it was fine under the Privacy Act.”139 Comey said that 

Baker’s advice to him was that “there w[ere] no policy or legal issues created by 

you doing this.” Baker told the OIG that he and other FBI OGC attorneys did see 

numerous legal and policy issues associated with the statement, but that they could 

not find a clear legal prohibition that would have prevented Comey from issuing the 

statement. 

Comey cited as precedent for his statement the press conference he gave in 

June 2004, when he was the Deputy Attorney General, summarizing the evidence 

against José Padilla, a U.S. citizen who had been designated as an enemy 

combatant due to his support for al Qaeda.

140

 He stated:

I mean it wasn’t a case, but I actually remember when I was DAG 

providing extraordinary transparency to the public around José Padilla 

which was a subject of great concern and controversy at the time and 

I remember commissioning the drafting of a very transparent 

statement about everything we knew about him and then pushing to 

get it declassified, get it reviewed for Privacy Act compliance which we 

 

139

 The Privacy Act of 1974, 5 U.S.C. § 552a, prohibits an agency from disclosing a record 

about an individual to a person, or to another government agency, from a “system of records” absent 

the written consent of the individual, unless the disclosure is pursuant to a statutory exception. A 

system of records is a group of records under the control of an agency from which information is 

retrieved by the name of the individual or some other personal identifier assigned to the individual. 

Relevant information about an individual may be disclosed without consent under 12 statutory 

exceptions set forth in the Privacy Act, including one permitting “routine use” by the agency. See 5 

U.S.C. § 552a(b)(3). One of the “routine uses” adopted by the FBI permits disclosure to “members of 

the general public in furtherance of a legitimate law enforcement or public safety function as 

determined by the FBI,” for example, “to provide notification of arrests...or to keep the public 

appropriately informed of other law enforcement or FBI matters or other matters of legitimate public 

interest where disclosure could not reasonably be expected to constitute an unwarranted invasion of 

personal privacy.” This includes the disclosure of information under 28 C.F.R. § 50.2, which governs 

the release of information about criminal and civil proceedings by Department personnel (including the 

FBI).

140

 See Transcript, Press Conference of James Comey, CNN, June 1, 2004, 

http://www.cnn.com/2004/LAW/06/01/comey.padilla.transcript (accessed May 1, 2018). Padilla was 

initially arrested on a material witness warrant in May 2002 but was then declared an enemy 

combatant by President Bush in June 2002 and transferred to military custody. Padilla was 

subsequently prosecuted by the Department in the civilian court system and in August 2007 a federal 

jury found him guilty of conspiring to commit murder and fund terrorism.
198

also did here and then getting that out, so I remembered that pretty 

well.

Comey also cited the Department’s letter to Congress summarizing the results of 

the criminal investigation into Internal Revenue Service (IRS) officials, including 

Lois Lerner.141 Comey said that the Lerner letter, which criticized IRS officials for 

“mismanagement, poor judgment, and institutional inertia” that did not amount to 

criminal conduct, supported his decision to criticize former Secretary Clinton’s 

handling of classified information even in the absence of sufficient evidence to 

establish her criminal liability.142

Witnesses told us that the Privacy Act concerns stemmed largely from 

Comey’s criticism of former Secretary Clinton’s conduct in his draft statement, but 

that they believed including such criticism served a legitimate law enforcement 

function (and thus was permitted). According to FBI Attorney 1, the high public 

interest in the case, the particular individual involved, and the need to deter others 

provided justifications for including the information:

So it wasn’t just that we weren’t prosecuting her, but you didn’t want 

to leave the impression with...the rest of the community that she’s 

getting away with something or...that this is okay to do this. And so I 

think there was that, that balance. And that’s why I don’t think I 

thought so hard about the, the fact that we were talking about 

uncharged conduct of her. I was thinking more in terms of well we 

need to kind of balance this so that people understand that we’re not 

 

141

 On October 23, 2015, the Department’s Office of Legislative Affairs (OLA) sent a letter to

Congress summarizing the results of a criminal investigation conducted by the Criminal and Civil 

Rights Divisions, in conjunction with the FBI and the Treasury Inspector General for Tax 

Administration, into whether any IRS official targeted tax-exempt organizations for scrutiny based on 

their ideological views. The letter stated that the investigation uncovered “substantial evidence of 

mismanagement, poor judgment, and institutional inertia,” but “no evidence that any IRS official acted 

based on political, discriminatory, corrupt, or other inappropriate motives that would support a 

criminal prosecution.” Regarding Lois Lerner, the former Director of the IRS Exempt Organizations 

Division, the letter stated that the investigation had focused on her criminal culpability given her 

oversight role and emails discovered in which she “expressed her personal political views and, in one 

case, hostility toward conservative radio personalities.” The letter concluded that Lerner “exercised 

poor judgment in using her IRS email account to exchange personal messages that reflected her 

political views,” but that prosecutors could not “show that these messages related to her official duties 

and actions[.]” Peter Kadzik, Assistant Attorney General, U.S. Department of Justice, letter to The 

Honorable Bob Goodlatte and John Conyers, Jr., October 23, 2015, at

http://online.wsj.com/public/resources/documents/IRS1023.pdf.

142

 Comey told the OIG that “a friend of [his who] is a law professor” had a law student 

compile a chart showing cases in which the Department made a public statement announcing the 

closing of an investigation. The chart was created in January 2017, and included 31 cases since 

February 2010 in which such statements were made by Department leadership or a U.S. Attorney’s 

Office. Although the chart noted one case in which an FBI agent spoke at a press conference with the 

U.S. Attorney, every case listed in the chart involved a public statement coordinated with or made by 

the prosecutors. The OIG determined that the “law professor” referenced by Comey was Dan 

Richman, a professor at Columbia Law School who was also a special government employee (SGE) for 

the FBI from June 2015 to February 2017.
199

giving her a clean bill of health, you know, and that people can do this 

kind of activity.

Anderson told the OIG that she expressed concerns about criticizing uncharged 

conduct during discussions with Comey in June 2016. She said that the decision to 

include such criticism “was a signal that...we weren’t just letting her off the hook....

[O]ur conclusions were going to be viewed as less assailable...at the end of the day 

if this kind of content was included.”

Baker told the OIG that “there were multiple audiences” for the criticism of 

former Secretary Clinton in Comey’s statement. He recounted hearing that FBI 

employees not involved in the Midyear investigation hated former Secretary Clinton 

and had made comments such as, “[Y]ou guys are finally going to get that bitch,” 

and, “[W]e’re rooting for you.” Baker stated, “And if we’re not going to get her on 

these facts and circumstances, then we’d better explain that now.” Related to this 

idea, notes taken by Strzok at a May 12, 2016 meeting involving the Midyear team 

state, “Messaging thoughts: Workforce Qs: (1) If I did this, I’d be prosecuted; (2) 

Petraeus, Berger, etc. were charged; (3) Overwhelming conservative outlook.”

FBI Attorney 1 told the OIG that she also considered whether the July 5

statement would violate the Department’s Election Year Sensitivities Policy. As 

described in Chapter Two, that policy requires approval from the Public Integrity 

Section of the Criminal Division before filing charges or taking overt investigative 

steps near the time of a primary or general election. However, the policy applies 

only to election crimes cases. FBI Attorney 1 told us, “Someone mentioned [the 

policy] at that time. And I looked into it, and...it’s not specific to this kind of case. 

And that’s kind of the problem, I think, with the policy.”

Baker told the OIG that the FBI took into account and complied with the 

requirement that Department personnel obtain the approval of the Attorney General

or the Deputy Attorney General for the public release of certain information.

143

 

Baker said that Comey’s call to Lynch and Yates on the morning of his July 5 press 

conference (described below) telling them that he planned to hold a press 

conference later that morning, and their failure to instruct him not to do so, 

constituted “permission” under Department regulations. Baker said that this was so 

even though Comey called Lynch and Yates only after calling the press and he had 

refused to tell Lynch and Yates what he planned to say. When pressed by the OIG 

about this interpretation of the regulation, Baker acknowledged that it was 

“aggressive.” In comments to the draft report, Baker further explained that 

because Comey did call Yates and Lynch on July 5: 

They could have demanded to know what he was going to say, and/or 

could have told him not to do it without a full discussion with them. 

They did not. One is the AG, the other the DAG. They had an 

 

143

 Under 28 C.F.R. § 50.2(b)(9), the permission of the Attorney General or the Deputy 

Attorney General is required “if a representative of the Department believes that in the interest of the 

fair administration of justice and the law enforcement process information beyond these guidelines 

should be released.”
200

opportunity to say “no” or “stop” to the FBI Director. For whatever 

reasons, they did not. That is on them.

E. Concerns about a Public Statement

Numerous witnesses told the OIG that, while they did not recall any 

significant disagreement within the FBI about whether Comey should do a public

statement, there was concern about whether he should do one on his own, without 

advance notification to or coordination with the Department. McCabe’s initial 

reaction to the idea was that it would breach Department protocol and create

“dangerous precedent” for the FBI, among “a million other possible things” that 

could go wrong. However, McCabe told the OIG, “[U]ltimately I was convinced 

that, that he was doing what he thought was right and that what was right for the 

case.”

Baker told the OIG that he raised similar concerns in various one-on-one 

discussions with Comey over an extended time period. Baker said he did so 

because he “viewed it as my obligation to push back aggressively with respect to 

whatever [Comey] said if I thought it was wrong,” to make sure that all legal, 

policy, and ethical issues were fully evaluated, and to “think about how others 

would think about things” from different perspectives and at different times. Baker 

said that he and Comey discussed a range of options for announcing a declination 

and thought through the benefits and drawbacks of each, “tr[ying] to find some 

door other than the doors that led to hell.”

Comey also sought input from his former FBI Chief of Staff, Chuck 

Rosenberg, who at the time was the Acting Administrator of the Drug Enforcement 

Administration. Comey told the OIG that in May and June 2016 he spoke to 

Rosenberg and “sounded him out” about the possibility of doing an FBI-only 

press announcement to close the investigation. According to Comey, Rosenberg 

was concerned that doing a statement would be unprecedented, expose Comey to 

“extraordinary fire,” and create an irreparable breach with the Department. Comey 

said that Rosenberg thought that doing the statement was a “close call, but on 

balance, it’s the right call.”

Rosenberg told the OIG that he spoke to Comey three times about the draft 

statement. He said that Comey first reached out to him in late April or early May 

2016, before there was a draft statement and well before the tarmac meeting 

between Lynch and former President Clinton. Rosenberg said that Comey was 

seeking guidance on whether he should make a public statement to announce the 

FBI was closing the Midyear investigation, or should do a referral to the 

Department. Rosenberg described Comey as “wrestling” with the decision and 

trying to figure out the right thing to do.

Rosenberg said that Comey showed him a hard copy of the May 2 draft

statement, and told him that he planned to do the statement on his own, without 

coordinating with the Department. Rosenberg said that Comey thought he could 

more credibly announce a declination without the Department because of the 

“politics” of having an Attorney General appointed by a Democratic President close 
201

an investigation into the Democratic presidential nominee without charges. Asked 

whether Comey discussed concerns about Lynch based on her instruction to him to 

call the investigation a “matter” or classified issues reflecting potential bias by her, 

Rosenberg said that he did not recall Comey mentioning those to him.

Rosenberg said that he had two competing reactions to the statement. He 

said that on one hand, it was “outside the norm” and inconsistent with the 

Department’s practice, and that had the FBI publicly announced a recommendation 

when he was a U.S. Attorney instead of giving it to him privately, he would not 

have been happy. On the other hand, he thought that Comey was a “compelling 

and credible public servant,” and he said he understood why Comey thought he

could “do this and do it well.” Rosenberg said that he did not tell Comey that it was 

a good or bad idea, but instead raised questions about what other options were 

available and the potential ramifications of an FBI Director giving a public 

declination. Rosenberg said that he recalled telling Comey it was a “52-48 call,” 

but that he went back and forth on whether the “52” weighed in favor of or against 

doing the statement.

F. Comey’s Decision Not to Inform the Department

As described above, documents and testimony indicate that Comey planned 

to do the statement independently without advance notice to the Department even 

before the tarmac meeting between Lynch and former President Bill Clinton. 

Comey acknowledged that he made a conscious decision not to tell Department 

leadership about his plans to independently announce a declination because he was 

concerned that they would instruct him not to do it, and that he made this decision 

when he first conceived of the idea to do the statement. He stated:

The, come May, and I’m trying to figure out how the endgame should 

work, to preserve the option that I ended up concluding was best 

suited to protect the institutions, I couldn’t tell them that I was 

considering that. Because if I told them that one of the—in my mind I 

drew this spectrum—at one end of the spectrum is I’m going to 

announce separate from you what the FBI thinks about this and very 

practical about it they, I remember thinking this, if I surface that with 

them, they might well say, I order you not to do that and then I would 

abide that, I wouldn’t do that.

And so I remember saying to the Midyear team when I circulated in 

May my first draft I said what would the most, one end of the 

spectrum, what would that option look like? I said keep this close 

hold, I mean you can have conversations with the Department of 

Justice about the endgame, but don’t tell them I’m considering this 

because then that option is going from us. Because if I were the DAG, 

maybe they wouldn’t have, but what I was thinking was, if I’m the 

DAG I say, just to be clear, I order you not to make any statements on 

this case without coordinating it with us. And so to be honest, I would 

lose that option.
202

Asked whether he owed it to Department leadership to inform them of what he was 

thinking so that they could make a decision on behalf of the Department, Comey 

stated, “In a normal circumstance, sure.” He explained that the Midyear 

investigation was not a normal circumstance:

[T]o my mind, the peril to the Department, including the FBI, was so 

extraordinary, the potential for damage to the institution, that I 

needed to preserve that option.... And so look I, everything about this 

is unprecedented and God willing no Director will ever face this 

circumstance, but I thought that to protect the institution I care about 

so much, I have to preserve that option. Of course, in a normal 

circumstance it’s the right of the Attorney General and Deputy 

Attorney General to make those decisions and the FBI Director should 

tell them, but this was not the normal circumstance.

Comey told the OIG that he did not credibly think that Lynch and Yates were going 

to stop him when he informed them about his plans on the morning of his press 

conference, and that he wrestled with whether to tell them at all.

IV. June 27, 2016 Tarmac Meeting and Aftermath

A. Meeting between Lynch and Former President Clinton

1. How the Meeting Came About

On June 27, 2016, Lynch flew to Phoenix as the first stop in a week-long

community policing tour.

144

 Traveling with her were her husband, her Deputy Chief 

of Staff, a senior counselor to the AG (Senior Counselor), a supervisor in the 

Department’s Office of Public Affairs (OPA Supervisor), and another Department 

official. Lynch told the OIG that her plane landed several hours late, and they 

arrived in Phoenix around 7 p.m. local time. According to Department witnesses, 

Lynch’s staff left the plane first and boarded the staff van. Lynch remained on the 

plane with her husband and the head of her security detail, and waited to get off 

the plane until her motorcade was ready. The OPA Supervisor explained that this 

practice is standard FBI protocol and is intended to leave the Attorney General “out 

in the open for the least amount of time.”

Approximately 20 to 30 yards from Lynch’s plane was a private plane with 

former President Bill Clinton on it. Former President Clinton had been in Phoenix 

for several campaign events, including a roundtable discussion with Latino leaders

and a campaign fundraiser, and his plane was preparing to depart. Former 

President Clinton said that he did not know in advance that Lynch was in Phoenix 

and was not aware that her plane was close to his until his staff told him. Asked 

 

144

 The Attorney General is required to travel on government aircraft for communications and 

security reasons, and used FBI and Department aircraft to do so.
203

about news reports that he purposely delayed his takeoff to speak to Lynch, former 

President Clinton stated:

It’s absolutely not true. I literally didn’t know she was there until 

somebody told me she was there. And we looked out the window and 

it was really close and all of her staff was unloading, so I thought she’s 

about to get off and I’ll just go shake hands with her when she gets 

off. I don’t want her to think I’m afraid to shake hands with her 

because she’s the Attorney General.

He said that he discussed with his Chief of Staff whether he should say hello to 

Lynch, and that they debated whether he should do it because of “all the hoopla” in 

the campaign. He stated, “I just wanted to say hello to her and I thought it would 

look really crazy if we were living in [a] world [where] I couldn’t shake hands with 

the Attorney General you know when she was right there.”

Former President Clinton said that he did not consider that meeting with 

Lynch might impact the investigation into his wife’s use of a private email server. 

He stated, “Well what I didn’t want to do is to look like I was having some big 

huddle-up session with her you know.... [B]ecause it was a paranoid time, but...I 

knew what I believed to be the truth of that whole thing. It was after all my server 

and the FBI knew it was there and the Secret Service approved it coming in and 

she just used what was mine.” As a result, he said that he never thought the 

investigation “amounted to much frankly so I didn’t probably take it as seriously as 

maybe I might have in this unusual period[.]”

Former President Clinton said that he recalled walking toward Lynch’s plane

with his Chief of Staff, and that Lynch and her staff were “getting off the airplane.” 

He said that he greeted Lynch, who was on the plane, and Lynch stated, “[L]ook it’s 

a 100 degrees out there, come up and we’ll talk about our grandkids.”

The Senior Counselor told the OIG that she was waiting in the van with the 

three other Department employees on the trip, and she saw two people walking 

toward Lynch’s plane. She said that as the two people went up the stairs to the 

plane, she realized that one of them was former President Clinton. The Senior 

Counselor said that she saw the head of Lynch’s security detail turn away the 

second person at the door and allow former President Clinton to board the plane. 

Other witnesses recalled that former President Clinton had additional staff members 

with him, and that these people did not board the plane.

The Deputy Chief of Staff said that she had “zero knowledge” that former 

President Clinton was there before she saw him approach the plane. She stated, 

“And if I had knowledge, I would not have been in that van. I would’ve...stayed on 

the plane and got everybody off.... No heads up or anything.” The Senior 

Counselor said she asked everyone in the van if they knew that former President 

Clinton was going to be there, and they all said no. The OPA Supervisor said that 

he later learned that former President Clinton’s Secret Service detail had contacted 

Lynch’s FBI security detail and let them know that the former President wanted to 

meet with Lynch. Although Lynch’s staff was supposed to receive notice of such 
204

requests, witnesses told us that they were not informed of the request from former 

President Clinton.

145

Lynch said that she was on the plane with her husband and the head of her 

security detail, and that they were preparing to leave when she learned that former 

President Clinton had asked to speak to her. She stated:

[W]e were walking toward the front door, and then...the head of my 

detail stopped and spoke to someone outside the plane, turned around 

and said former President Clinton is here, and he wants to say hello to 

you. And I think my initial reaction was the profound statement, 

what? Something like that. And he repeated that. And he spoke 

again to someone outside the plane. And we were, we were about to 

walk off the plane. We were going to go down the stairs and get into 

the motorcade and go on, and...the head of my detail said...can he 

come on and say hello to you? And I said, yes, he can come on the 

plane and say hello. And he was literally there. So I don’t know if he 

was talking to President Clinton or somebody else. I don’t know who 

was on the steps.

Lynch said that former President Clinton boarded the plane in a matter of seconds, 

suggesting that he was in the stairwell near the door to the plane. Lynch said that 

she was very surprised that he wanted to meet with her because they did not have 

a social relationship, and she was also surprised to see him “right there in the 

doorway so quickly.”

Lynch said that she had “never really had a conversation” with former 

President Clinton before this meeting, or with former Secretary Clinton at any time. 

She said that “years ago” when she was the U.S. Attorney for the Eastern District of 

New York, she saw former Secretary Clinton at a 9/11 event and said hello.146 She 

said that she also saw both of them at the funeral for former Vice President Joe 

Biden’s son, Beau Biden, which was held on June 6, 2015. She said that she 

recalled that during that conversation former President Clinton congratulated her on 

the FIFA corruption case. Lynch told the OIG that she did not have a social 

 

145

 On July 2, 2016, the head of Lynch’s security detail sent an email to another agent in the 

FBI Security Division, stating, “I will explain the details later, but you know, we [are] not the final 

word as to who comes in or out of the AG’s space. Her staff dropped the ball in a big way, and we 

were the easy scapegoats! I’m pretty pissed about the way things went down and how they were 

handled afterwards, needless to say I will be making some changes as to how much interaction we will 

have with this staff going forward.” The OIG considered but decided not to interview the head of 

Lynch’s FBI security detail because of concerns that requiring a member of the Attorney General’s 

security detail to testify about what he observed in the course of conducting his official duties could 

impair the protective relationship and because the security concerns raised by the head of the security 

detail in his email were not a focus of this review. Further, we believed it was unlikely that the head 

of the security detail would have been in a position to be able to overhear the conversation between 

Lynch and former President Clinton.

146 Lynch was nominated by former President Clinton to be the U.S. Attorney for the Eastern 

District of New York, and served from June 2, 1999 to May 2, 2001. Lynch served in the same 

position from May 8, 2010 to April 27, 2015.
205

relationship or socialize with either former President Clinton or former Secretary 

Clinton.

However, Lynch said that public officials often stopped her to say hello when 

she traveled, and that as a result she was not initially concerned when former 

President Clinton wanted to say hello. For example, Lynch told us that Ohio 

Governor John Kasich, who was a candidate in the 2016 Republican presidential 

primary, stopped her one time to say hello in an airport, and they had a 10-minute 

conversation even though they had never met before. The OPA Supervisor told the 

OIG, “It wouldn’t be uncommon for [Lynch] to...match courtesy with courtesy 

regardless of [whether the person was] Republican, Democrat, whatever.”

2. Discussion between Former President Clinton and Lynch

During our review, we found no contemporaneous evidence, such as notes, 

documenting the substance of the discussion between Lynch and former President 

Clinton. The only documentary evidence we identified that summarized the 

meeting were “talking points” created by Lynch’s staff after the meeting became a 

subject of controversy, as discussed in Section IV.B.

Former President Clinton and Lynch denied that they discussed the Midyear 

investigation, the upcoming interview of former Secretary Clinton, any other 

Department investigation, or plans for Lynch to serve in some capacity in a Hillary 

Clinton administration. We summarize below what they told us about their

discussion.

Former President Clinton’s Testimony

Former President Clinton told us that he congratulated Lynch on being named 

Attorney General and mentioned several things that she had done that he thought 

were good policy, such as continuing with criminal justice reforms that were

implemented by former Attorney General Eric Holder. He said that they then talked 

about their grandchildren, his recent visit to see former Attorney General Janet 

Reno, and his golf game.

We asked former President Clinton if he had discussed Brexit or West Virginia 

coal policy with Lynch. He said he did not recall Brexit coming up, but 

acknowledged that he probably did discuss it with her because he was very worried 

that it would disrupt the Irish peace process.

147

 When asked whether his comments

included the potential implications of the Brexit vote and the rise of populism for

the U.S. election, he stated that he did not remember discussing that, but that one 

of his “automatic responses” during the campaign was to describe how the press 

had underestimated the reaction to globalization and the resulting identity crisis, 

and how Brexit was simply a manifestation of that. As a result, he said he could 

not rule out that he said something similar to Lynch. Former President Clinton also 

said that he did not recall mentioning West Virginia coal policy to Lynch, but that he 

 

147

 On June 23, 2016, voters in the United Kingdom approved a referendum to leave the 

European Union, a decision known as Brexit.
206

would not be shocked if he had done so because he thought a lot about it, and he 

frequently talked about the issue.

Former President Clinton said he did not recall telling Lynch that she was 

doing a great job, but told us he probably did so because “the Justice 

Department...when President Obama was there, I thought they did a lot of good 

things that needed doing, especially in criminal justice.” However, he denied that 

his comments were motivated by an intent to influence the investigation. He told 

us that he did not recall telling Lynch that she was his favorite cabinet member, 

and he did not think it was likely that he would have made such a comment. He 

stated, “I like her, but I’m very close to Tom Vilsack and was very close to a couple 

of the others, so I couldn’t have said that, but I do like her a lot.”

Former President Clinton said he only mentioned former Secretary Clinton 

once during the discussion, and that concerned how happy she was to be a 

grandmother. He said he told Lynch:

[T]hat she was a happy grandmother and an ardent one and that we 

were very lucky because our daughter and her husband and our 

grandchildren live in New York, so they are about an hour from us in a 

decent traffic day. And I told her that before the campaign was 

underway Hillary and I tried to see our grandkids every week and in 

the best weeks, she would see them once when she was down there. 

Then I would see them once and then we’d see them once together 

and I was down, and I remember talking about every now and then we 

got them up in Chappaqua where we live and it was quite bracing 

trying to keep up with them and how much fun it was and that’s really 

what we talked about.

I do remember saying that grandparents typically say it’s better than 

being a parent because it’s all the fun and none of the responsibilities, 

and I told Chelsea once after [her daughter] was born that she would 

never hear me say that, that I still thought being her father was the 

best gig I ever had.

When asked whether they discussed former Secretary Clinton’s upcoming interview 

with the FBI, Clinton replied, “Absolutely not.... [I]t wouldn’t have been 

appropriate for me to talk to her about any of that and I didn’t.” He said that they 

also did not discuss the Midyear investigation, the Clinton Foundation matter, any 

other Department investigation, the Benghazi hearings held by Congress, or then

FBI Director Comey.

We asked former President Clinton whether he discussed the possibility of 

Lynch serving as Attorney General or in another position in a future Hillary Clinton 

administration, or a possible judicial nomination. He stated:

No. Not even with anybody else. Not with Hillary. Not with 

anybody.... We didn’t discuss that because...I’m very superstitious. I 

never discuss anything like that. I want everybody to focus on the 
207

matter at hand and I thought the environment was much more volatile 

than a lot of people did.

Former President Clinton also said that he was a little surprised by the criticism 

after his tarmac meeting with Lynch. He stated:

[T]he mainstream media wasn’t as bad on that as they were on a lot 

of things, I thought, I think the ones that were criticizing me, I 

thought you know, I don’t know whether I’m more offended that they 

think I’m crooked or that they think I’m stupid. I’ve got an idea, I’ll do 

all these things they accuse me of doing in broad daylight in an airport 

in Phoenix when the whole world can see it in front of an Air Force One 

crew and I believe one of her security guards. It was an interesting 

proposition, but no we did not.

Lynch’s Testimony

As described above, Lynch said the head of her security detail told her that 

former President Clinton wanted to speak to her, and she said that he could come 

on the plane and say hello. Lynch told the OIG that she thought that she and 

former President Clinton would briefly exchange greetings, and then she would get 

off the plane. She described what happened after he boarded the plane:

Well first we’re...standing in the...the cabin of the plane because, 

again, he’s saying he wanted to say hello. I introduce him to my 

husband. We were standing up, because I thought we were going to 

stand up, say hello, and then keep walking. There were two members 

of the flight crew in the back section of the plane. So, President 

Clinton shook hands with the head of my detail, with my husband, with 

me. He went back and spoke to the two members of the flight crew, 

and he stayed back there for a few minutes, like five minutes maybe, 

because he spoke individually to each of them for a few minutes.... 

And they were very excited, you know.... [H]e was very gracious to 

them.

Lynch said that former President Clinton then returned to the front of the plane 

where she and her husband were standing and began talking to her husband. She 

said they had a brief discussion about Lynch’s trip to Phoenix, Clinton’s new 

grandchild, and various family issues including how to deal with sibling rivalry. She 

said they were still standing during this discussion, but that former President 

Clinton sat down after a few minutes:

At some point, after two or three minutes, President Clinton turned 

around. I had my tote bags on the bench seat of the plane, because I 

had put them there when he came on board. I had been holding 

them. I put them down. He picked up my tote bags and moved them, 

and then he sat down. So he sat down, and my husband and I were 

still standing in front of him having the discussion. And...he sort of sat 

heavily, and...I didn’t know...how he felt, so I can’t say one way or the 
208

other. But he sat down and started talking about, you know, the 

grandkids and how they introduced them to each other. And so, and 

ultimately, because this went on for a little but, my husband and I sat 

down also, and, you know, had that discussion about his family and 

the kids[.]

She said that after this, the discussion continued, with former President Clinton 

doing most of the talking. She stated:

Well, after he was sharing with us his story about how...they 

introduced the two grandchildren to each other, which involved a 

toy...and that was green, and just, again, the family issues, he said 

what brings you to Phoenix. And I said I’m here on a police tour, and 

I’m doing a lot about the law enforcement community relations. And I 

said, you know, how did you find Phoenix? And he mentioned that he 

had been there for several meetings, he had played golf. I made a 

reference to the heat, because it was still incredibly hot while we 

landed, which was why we were still on the plane.

And he made a comment about playing golf, and you can manage the 

heat. Just, he was talking a lot about the golfing issue was well, but 

nothing of substance about that. And he asked about my travels, and 

I said that I had been recently traveling to China. I had to come back 

for the Pulse Nightclub [shooting]. I had been to Alaska and met with 

Native youth. I then said...you know, that was an issue of great 

importance to [former Attorney General Janet] Reno. Have you talked 

with her lately and do you know about her health? And he said, yes, 

I’ve seen her. I visited her along with Donna Shalala, I visited her, 

and he told me when. And I said because she’s not doing well. We 

talked about that for a few minutes.

And I remember at that point saying, well, you know, thank you very 

much kind of thing, and he sort of continued chatting and, and said, 

and made a comment about his travels he was headed on. And I said, 

well, we’ve got to get going to the hotel. And I said I’m sure you’ve 

got somewhere to, to go. And he said yes. And I forget where he told 

me he was going. He was flying somewhere, but...I’ve forgotten 

where. He said I’m going to wherever I’m off to. And then he made 

some comment about West Virginia. And I do not know if he was 

headed to West Virginia. I just don’t know...if that was the reference 

to it. And he made a...comment about West Virginia and coal issues 

and how their problems really stem from policies that were set forth in 

1932. And he talked about those policies for a while. And, and I said, 

okay, well.

According to Lynch, Clinton discussed West Virginia coal policy as an historical 

issue, not in connection with the campaign. She said that he discussed Brexit in a 

similar context, talking about the cultural issues that led to the decision and 

whether “people in the UK viewed themselves as citizens of the world or the 

country or whatever.”
209

In response to specific questions asked by the OIG, Lynch said that she and 

former President Clinton did not discuss the Midyear investigation or any other 

Department investigation, James Comey, Donald Trump, or the upcoming 

Presidential election. She said that they also did not discuss possible positions for 

her in a future Hillary Clinton administration, a potential nomination to the Supreme 

Court, or her future plans after President Obama left office.

Lynch said that Clinton told her that she was “doing a great job as a cabinet 

member or...words to that effect.” She said that she thought that he was flattering 

her and “would have said that to every cabinet member at that time. No, I, I 

viewed it as...him being jovial, honestly, and being genial.”

Lynch estimated that she talked to former President Clinton for 

approximately 20 minutes before a member of her staff came back onto the plane, 

as we describe below. She said that she became increasingly concerned as the 

meeting “went on and on.” Lynch said that when she thought about it later that 

evening and discussed it with her staff about in the context of the case, she 

concluded “that it was just too long a conversation to have had. It...went beyond 

hi, how are you, shake hands, move on sort of thing. It went beyond the 

discussions I’ve had with other people in public life, even in political life, it went 

beyond that [in terms of length].”

3. Intervention by Lynch’s Staff

While former President Clinton was on the plane, Lynch’s staff were waiting 

in the staff van. The Deputy Chief of Staff said that they quickly realized that the 

meeting was problematic, because Clinton was not just the former President but 

was also the husband of someone who was under investigation. The Deputy Chief 

of Staff said that she felt “shocked,” and that they all “just felt 

completely...blindsided.” The Senior Counselor said that they immediately were 

aware that the meeting was ill-advised and that the “optics were not great.”

The OPA Supervisor said that he waited approximately 5 minutes, and then 

he left the van. He said he went over to one of the other agents on Lynch’s 

security detail, who was waiting in the vehicle that was going to carry Lynch. The 

OPA Supervisor said that he asked the agent what was going on, whether there had 

been any notice that former President Clinton wanted to say hello, and how long he 

was supposed to be on the plane. The OPA Supervisor said that the agent did not 

know. According to the OPA Supervisor, he asked the agent to tell the head of 

Lynch’s security detail that Lynch needed to end the meeting. The OPA Supervisor 

stated, “And I don’t know that [the head of Lynch’s security detail] thought it was 

appropriate to [ask her to] wrap it up because I guess that’s his boss too.”

The OPA Supervisor said that there was a photographer outside, and he 

recalled telling the photographer that Lynch would not be taking pictures. The OPA 

Supervisor said that he remembered telling the photographer that he (the 

photographer) needed to go back in his car. The OPA Supervisor stated, “I’m going 

back in my car. Like, no one is hanging out. I like President Clinton, too. I’m not 
210

hanging out for a photo.” The OPA Supervisor said that he then got back in the 

staff van.148

By this time, former President Clinton had been on the plane for 

approximately 10 to 15 minutes. The Deputy Chief of Staff said that they were

discussing the need for someone to go back on the plane when the Senior 

Counselor, who led the Phoenix portion of the trip and therefore was seated in the 

front of the van closest to the door, told the group that she was going to go and 

jumped out of the van. The Deputy Chief of Staff said, “And then [the Senior 

Counselor] was just running upstairs. And so, that’s how—that’s when we 

decided...to do something.” The Senior Counselor described her thinking at the 

time: “And I don’t know what’s going on up there, but I should at least go up to 

intervene or help her if she needs help.... I think...it was part uncertainty and part 

kind of like this is a bad idea.”

The Senior Counselor said that when she tried to go back on the plane, she

was stopped by the head of Lynch’s security detail, who was at the door of the 

plane. The Senior Counselor said that she told him that Lynch’s meeting with 

former President Clinton was not a good idea, and that she needed to get back on 

the plane, but he still would not let her on. The Senior Counselor said that she then 

asked him to convey to Lynch that she was advising that the meeting was a bad 

idea. According to the Senior Counselor, he told her, “All right, why don’t you tell 

her yourself,” and finally allowed her to board.

The Senior Counselor said that when she got on the plane, she saw Lynch, 

Lynch’s husband, and former President Clinton sitting down and “chatting...in a 

casual way.” The Senior Counselor said that she walked up to the three of them 

and stood there hoping that her presence would break up the meeting. She said 

that Lynch saw her and introduced her to former President Clinton, and she shook 

his hand. The Senior Counselor said that she hoped this would get everyone 

moving, but then former President Clinton sat back down. The Senior Counselor 

stated, “So then...I kind of didn’t know what to do because...it was a little bit 

unusual to be in a room with...a former president and say...you need to leave.... 

So...I think I stared at them for a little bit longer, and then went back to where [the 

head of Lynch’s security detail] was standing.” The Senior Counselor said that she 

considered whether she should go get someone else or go back over to Lynch and 

tell her, “Look, ma’am, we have to go.” She said she then went and stood in front 

of the group again.

The Senior Counselor said that her presence prompted Lynch to tell former 

President Clinton that the reason she (the Senior Counselor) was standing there 

was that she was too polite to tell Lynch that they had to go. The Senior Counselor 

said that Lynch told former President Clinton, “And we do have to go. You 

know...we have a pretty busy schedule.” The Senior Counselor said that she could 

not recall what Lynch and former President Clinton were discussing, but that her 

 

148

 We asked Lynch about news reports that her security detail did not allow photos to be 

taken of the meeting. Lynch said that she did not recall any such discussions, but that it was her 

standard practice not to take photos with anyone involved in a campaign around an election.
211

impression was that Lynch was “uncomfortable and wanted the meeting to be 

done.”

Lynch said that after the Senior Counselor got back on the plane, former 

President Clinton commented, “Oh, she’s mad at me, because I’d been on the plane 

too long. And she’s come to get you.” Lynch said that she replied to him, “[W]ell, 

we do have to go. And then he kept talking about something else.” She said that 

he kept talking for “a good 5 minutes” after the Senior Counselor got back on the 

plane. Lynch said that she finally stood up and said, “[Y]ou know, it was very nice 

of you to come. Thank you so much. And just...thank you again for stopping by.” 

She said that they said goodbye several times, and her husband shook former 

President Clinton’s hand again. Former President Clinton then left the plane.

The Senior Counselor said she went to talk to Lynch after former President 

Clinton left. She stated, “And I kind of looked at her and...I think I 

said...something like that was not great, or...something like that. And she’s like, 

yeah.” She described Lynch as “look[ing] kind of...gray and, you know, not 

pleased.” The Senior Counselor said that after they left the plane, she got into the 

staff van, Lynch got into her vehicle, and they went to the hotel. She said that they 

did not talk to Lynch about what happened until the next day.

The Deputy Chief of Staff told the OIG that they did not attempt to get 

information from the head of Lynch’s security detail about the conversation that 

took place on the plane. She explained:

And my only conversation with [the head of Lynch’s security detail] 

was a rare, fairly admonishing one...just saying, this is not okay, this 

shouldn’t be the protocol; you didn’t contact me; you could’ve radioed 

your FBI guy in the van to say, send someone up. So...my 

conversation was not a very pleasant one by the time I talked to [the 

head of Lynch’s security detail]. So I didn’t ask questions like, oh, 

what did you hear. I was just like, we need to figure this out, and this 

never needs to happen again.

The Deputy Chief of Staff said that the security protocol was changed almost 

immediately as the result of what happened. Under the revised protocol, the senior 

counselor (i.e., the staff member in charge of the trip) was required to remain on 

the plane with Lynch and the head of her security detail, and to escort her at other 

times.

B. Responding to Media Questions about the Tarmac Meeting

Melanie Newman, the Director of OPA, said that the OPA Supervisor called 

her from the van and “sounded the alarm,” telling her that he just saw former 

President Clinton board Lynch’s plane. According to Newman, she asked the OPA 

Supervisor a number of questions, including why former President Clinton was there 

and whether he had a press pool with them, which he could not answer. Newman 

said that she asked the OPA Supervisor to get out of the van and figure out what 

was going on. Newman said that she was not just concerned that there was a 
212

press event going on that they did not know about, but that the potential 

implications for the investigation were obvious to everyone “except apparently the 

FBI agents on the Attorney General’s detail.”

Newman said that the OPA Supervisor called her back approximately 30 

minutes later, after the Senior Counselor had returned to the van. According to 

Newman, the OPA Supervisor told her that there was no press pool, but that former 

President Clinton had his own photographer there. Newman said that the OPA 

Supervisor told her that former President Clinton had asked Lynch’s FBI detail if he 

could go on Lynch’s plane, and no one had communicated this to her staff. 

Newman stated, “No one talks to the AG without staff saying they can talk to the 

AG. But they didn’t do this because he’s a former President.”149 

Newman said she spoke to Lynch and the staff traveling with her by phone 

the next day, June 28, 2016. According to Newman, during this call Lynch 

described how the meeting with former President Clinton happened, what they 

discussed, and how she had tried to end the discussion. Newman characterized 

Lynch as “devastated” about the tarmac meeting. She stated:

[Lynch] doesn’t take mistakes lightly, and she felt like she had 

made...an incredible...mistake in judgment by saying yes instead of 

no, that he could come on the plane. But also, she’s like the most 

polite, Southern person alive. I, I don’t know in what circumstances 

she would have said no, or what would have happened if she had said 

no.... I would have much preferred a story that the Attorney General 

turned a former President of the United States away on the tarmac, 

but...she doesn’t make mistakes, and she was not pleased with herself 

for making this kind of high-stakes mistake.

Newman said that they discussed the best way to respond to any press questions 

about the meeting. She said that Lynch had a press conference scheduled in 

Phoenix, so she (Newman) wanted to have talking points prepared in case someone 

asked about the meeting with former President Clinton.

At approximately 1:15 p.m. EDT, Newman received an email from an ABC 

News reporter asking about the meeting between Lynch and former President 

Clinton, based on information from its Phoenix affiliate. Newman said that this 

inquiry confirmed that the meeting would come up at Lynch’s press conference, and 

she sped up the process to develop talking points. Newman forwarded the inquiry

to the OPA Supervisor and Lynch’s Acting Chief of Staff stating, “We need to talk.”

The Acting Chief of Staff arranged a conference call, and added Matt Axelrod, 

the Deputy Chief of Staff, and the Senior Counselor to the list of invitees. However, 

the OPA Supervisor and the Senior Counselor were waiting for an event in Phoenix

to begin and could not join the call. Following the call, Newman emailed a short 

 

149

 After reviewing draft of the OIG’s report, Newman clarified that “typically” no one talks to 

the AG without staff approval, and that she “assumed” that this typical practice was not followed 

because Clinton was a former president. 
213

draft statement to the Senior Counselor and the Deputy Chief of Staff, copying 

Axelrod, the Acting Chief of Staff, the OPA Supervisor, and Peter Kadzik, the AAG 

for the Office of Legislative Affairs (OLA). A number of additional emails and phone 

calls followed as the draft statement was expanded and edited to include talking 

points about the topics Lynch and former President Clinton discussed. Newman 

then emailed the statement to Lynch and her staff.

During Lynch’s Phoenix press conference, a local reporter asked Lynch about 

her meeting with former President Clinton and whether Benghazi was discussed. 

She answered the question based on the talking points and draft statement:

No. Actually, while I was landing at the airport, I did see President 

Clinton at the Phoenix airport as I was leaving, and he spoke to myself 

and my husband on the plane. Our conversation was a great deal 

about his grandchildren. It was primarily social and about our travels. 

He mentioned the golf he played in Phoenix, and he mentioned travels 

he’d had in West Virginia. We talked about former Attorney General 

Janet Reno, for example, whom we both know, but there was no 

discussion of any matter pending before the Department or any matter 

pending before any other body. There was no discussion of Benghazi, 

no discussion of the State Department emails, by way of example. I 

would say the current news of the day was the Brexit decision, and 

what that might mean. And again, the Department’s not involved in 

that or implicated in that.

Lynch did not receive any follow up questions from either the reporter who asked 

the question or from the other reporters in attendance.

Based on the lack of follow up questions, Newman decided not to release a 

statement about Lynch’s meeting with former President Clinton. However, by the 

following afternoon, several media organizations had begun picking up coverage of 

the meeting.

On June 29, 2016, Newman emailed Lynch’s statement at her Phoenix press 

conference and the Department’s talking points to two officials in the FBI’s Office of 

Public Affairs (OPA), stating, “I want to flag a story that is gaining some traction 

tonight...about a casual, unscheduled meeting between former [P]resident Bill 

Clinton and the AG.” The FBI OPA officials forwarded the talking points to McCabe, 

Rybicki, and Comey. We discuss the impact of the tarmac meeting on Comey’s 

decision not to tell the Department about his decision to do a public statement in 

Section IV.E below.
214

C. Discussions about Possible Recusal

1. Departmental Ethics Opinion

Lynch told the OIG that she began discussing whether she needed to recuse

herself from the Midyear investigation on June 28, 2016, the morning after the 

tarmac incident. Lynch said that she called her Acting Chief of Staff, who was back 

in Washington, D.C., and asked her to contact the Departmental Ethics Office to 

find out if the ethics regulations required recusal. Lynch said (and the Acting Chief 

of Staff confirmed) that she obtained an oral ethics opinion that there was no legal 

requirement to recuse herself.

Janice Rodgers, the former Director of the Departmental Ethics Office, said 

that she remembered receiving a call from someone on Lynch’s staff, although she 

did not remember who it was. Rodgers said that she spoke to Lynch’s staff 

member over the phone, and after hearing what happened, concluded that the 

ethics regulations did not require recusal. Rodgers explained her understanding of

the facts:

[T]he fact that the subject’s spouse had, I don’t know what the right 

word is. You know, sort of created, engineered a, you know, contact 

with the AG, which was apparently, you know, completely nonsubstantive, and in my view. And also in circumstances that made it 

very difficult for the AG to decline or avoid contact.

Rodgers said that the question was “more of...a capital-P political issue...meaning 

people were going to make hay of it,” and that Department leadership would have 

to weigh the amount of heat they were willing to take versus the importance of 

Lynch’s participation in the matter. She stated, “There was nothing about that that 

required recusal.... [W]hether the AG chose to recuse based on sort of the

more...global considerations was...out of my bailiwick.”

2. Discussions about Voluntary Recusal

Lynch said that she then considered whether she should recuse voluntarily 

based on appearance concerns—i.e., concerns that the meeting created the 

appearance that former President Clinton was influencing the Midyear investigation 

through her, or that she was influencing it by having a connection to him. Lynch 

said she wanted to be able to make a statement about her plans for remaining 

involved in the Midyear investigation during an interview with a Washington Post

reporter at the Aspen Ideas Festival, which was scheduled for the last day of her 

trip, July 1, 2016.

Lynch said she held a number of calls that involved Yates, Axelrod, Newman, 

the Acting Chief of Staff, and other Department officials, and that these calls likely 

took place on the Wednesday or Thursday of that week. She said she also 

discussed the issue with the staff members who were traveling with her. Lynch 

said that she did not recall anyone expressing the view that she should recuse
215

herself; she said that her staff raised issues and concerns for discussion, but no one 

presented her with a conclusion that she should recuse.

Discussions Involving Yates, Axelrod, and Other Department Officials

Yates told the OIG that the group participating in these calls quickly 

dismissed the idea of recusal because they knew that the Department was going to 

announce what they expected to be a declination “in a matter of days.” She stated:

And the fear [was] that this is going to look really artificial...if you’ve 

spent over a year with [Lynch] at the helm of this investigating it, and 

then this tarmac thing happens and she recuses.... That’s going to 

look really artificial then if all of a sudden somebody else is announcing 

it and we’re saying oh, there’s no problem with the tarmac because 

she’s recused. When really that decision had been all but made...while 

she was AG.

Axelrod expressed a similar opinion, and stated that other factors weighed against 

recusal as well. In particular, he said that he understood that Lynch had not 

discussed anything improper with former President Clinton, and for her to recuse 

would have made it look like she had. He said he also thought that the people 

calling for her recusal would not be satisfied by it:

I thought that for folks who had already, again, for...political reasons 

been calling for a special counsel I wasn’t sure that a recusal...would 

be sufficient. That it would end there with...the AG stepping aside and 

the DAG taking over. I thought calls would increase for Department 

leadership to step out altogether. Which again, I didn’t think was good 

for the integrity of the investigation. And that was my goal was to 

protect the integrity of the investigation.

Axelrod told the OIG that he did not specifically recall having a discussion with 

Rybicki or McCabe about the tarmac incident, but said that he was “sure [he] did 

have conversations.... [T]his would be a big thing not to have a conversation 

about[.]” Rybicki told us that Axelrod called him early in the week to tell him that 

the tarmac meeting had happened. McCabe said that he also spoke to Axelrod a 

day or two after the tarmac meeting, and that Axelrod told him that Lynch likely 

would not recuse herself from the Midyear investigation.

Toscas said he was on vacation the week of the tarmac meeting, and Axelrod 

contacted him by phone to tell him about it. Toscas said that he contacted 

Laufman, and that both he and Laufman thought that recusal was unwise. Toscas 

stated, “I thought that a recusal would make it look like, oh this person who is 

doing inappropriate things has been overseeing this thing for a long time now, so 

that means the whole thing is tainted by it.... [T]hat would actually probably be 

more harmful to our investigation and the appearance to the public of our 

investigation.”
216

Lynch’s Decision Not to Recuse

Lynch said that she decided not to recuse herself from the Midyear 

investigation. In making this decision, Lynch said she considered whether her 

meeting with former President Clinton would cause people not to have faith in the 

judgment or decisions of the Department. She said she weighed this against the 

concern that stepping aside would create a misimpression that she and former 

President Clinton had discussed inappropriate topics, or that her role in the case 

somehow was greater than it was.

She explained that other considerations informed her decision:

And I, and I also had the view that, you know, when you create a 

situation, as I felt I did by sitting down with, with the President, it’s, 

yes, it can be almost a relief in some ways to say, you know what? 

I’m going to recuse myself and get out of it and not take, not take the 

hits. And then you’re just asking someone else to step up and endure 

all the hits the Department will take for the case for the result, 

whatever it is.

And, you know, I thought about it from that, that angle as well. 

You’re just asking someone else to step up and do your job for you. 

And if I did not think it rose to the level of recusal, then I did not want 

to do something out of a desire to protect myself sort of personally 

from embarrassment also because that’s not the way to make 

somebody else take on that responsibility.

Lynch said that she took into account that NSD did not think recusal was 

necessary. She said she conveyed her regrets to the Midyear prosecutors for 

putting them in the position of having people outside the Department look at their 

work and think that it would be influenced by anything improper.

Planning for the Aspen Interview

Axelrod told the OIG that the “game plan” that emerged from these 

discussions was for Lynch to explain publicly how the Midyear investigation had 

been handled all along:

 It was handled by career agents and prosecutors;

 The career agents and prosecutors had been the ones doing the work 

for more than a year;

 When the career agents and prosecutors finished their work, they 

would make a recommendation to Department leadership; and

 When Lynch received that recommendation, she fully expected to 

accept it, but she ultimately was the decider.

Axelrod said it was “definitely not the game plan” for Lynch to convey that she 

would accept the recommendation of the career staff no matter what they brought 

her, or that she would take herself out of the decisionmaking process but not 
217

formally recuse herself. However, he acknowledged that the different ways she 

described this process in her interview with the Washington Post reporter 

(discussed below) led to some confusion.

Carlin spoke at the Aspen Ideas Festival before Lynch arrived and said he 

was scheduled to return to Washington, D.C., with her. Carlin said that he met 

with Lynch, her husband, and her staff in person before her interview with the 

Washington Post reporter, and Carlin conveyed to her that NSD was not making a 

request that she recuse herself. Carlin said they also discussed what Lynch planned 

to say in her interview. Like Axelrod, Carlin told us that Lynch intended to provide 

more insight than she normally would into the investigative process, not to 

communicate that something had changed because of the tarmac incident.

Melanie Newman told the OIG that she made it known that she disagreed 

with this approach from a messaging perspective. Newman said that she thought

recusal was appropriate because public statements and actions “need to be 

clear-cut.” Newman stated:

[W]e tried to have it both ways.... [W]e said that she would accept 

the recommendation of the senior career prosecutors and investigators 

on the case. Well, usually that is what the Attorney General does 

anyway. That means literally nothing....

This is the Attorney General, I mean, I’m not aware of, there may be 

disputes [in other cases] between the [FBI and the prosecutors] that 

the Attorney General is sort of the deciding vote. But generally 

speaking, in charging decisions, the Attorney General accepts the 

recommendation of those people who know the evidence most 

intimately. I think in the rare instance that there are disagreements, 

the Attorney General may, may accept the recommendation of one 

over the other, for example. But that’s, that’s sort of what they do.

Newman said that Lynch was doing the same thing that she usually does, except 

that “she was saying before the conclusion of the investigation that this was how 

she was going to handle it. That was the difference.”

D. Lynch’s July 1 Aspen Institute Statement

During the interview with the Washington Post reporter, Lynch acknowledged 

that her meeting with former President Clinton raised questions about her role in 

the Midyear investigation. Addressing how that investigation would be resolved, 

Lynch stated:

But I think the issue is, again, what is my role in how that matter is 

going to be resolved? And so let me be clear on how that is going to 

be resolved. I’ve gotten that question a lot also over time and we 

usually don’t go into those deliberations, but I do think it’s important 

that people see what that process is like.
218

As I have always indicated, the matter is being handled by career 

agents and investigators with the Department of Justice. They’ve had 

it since the beginning. They are independent.... It predates my

tenure as Attorney General. It is the same team and they are acting 

independently. They follow the law, they follow the facts. That team 

will make findings. That is to say they will come up with a chronology 

of what happened, the factual scenario. They will make 

recommendations as to how to resolve what those facts lead to. 

Those—the recommendations will be reviewed by career supervisors in 

the Department of Justice and in the FBI and by the FBI Director. And 

then, as is the common process, they present it to me and I fully 

expect to accept their recommendations.

Lynch then responded to a question about a news article that morning 

reporting that she planned to recuse herself from the Midyear investigation. She 

stated, “Well, a recusal would mean that I wouldn’t even be briefed on what the 

findings were or what the actions going forward would be. And while I don’t have a 

role in those findings and coming up with those findings or making those 

recommendations as to how to go forward, I’ll be briefed on it and I will be 

accepting their recommendations.”

As the discussion continued, Lynch responded to additional questions about 

her continued role in Midyear. Asked about a news report that she had made the 

decision in April 2016 to accept the recommendations of the career staff, Lynch 

replied:

Yes, I had already determined that that would be the process.... And 

as I’ve said on occasions as to why we don’t talk about ongoing 

investigations in terms of what’s being discussed and who’s being 

interviewed, is to preserve the integrity of that investigation. We also 

typically don’t talk about the process by which we make decisions, and 

I have provided that response too.

But in this situation, you know, because I did have that meeting, it has 

raised concerns, I feel, and I feel that while I can certainly say this 

matter’s going to be handled like any other, as it has always been, it’s 

going to be resolved like any other, as it was always going to be. I 

think people need the information about exactly how that resolution 

will come about in order to know what that means and really accept 

that and have faith in the ultimate decision of the Department of 

Justice.

Lynch’s comments about the status of her continuing involvement in the 

Midyear investigation created considerable confusion. After her appearance, 

various new articles reported that she had decided to defer to the recommendations 
219

of the FBI or had effected a “non-recusal recusal.”

150

 Lynch said she participated in 

a follow-up interview with the Washington Post reporter during which she 

attempted to clarify her statement. The resulting article quoted her as follows:

I can certainly say this matter is going to be handled like any other as 

it has always been. It’s going to be resolved like any other, as it was 

always going to be.... I’ve always said that this matter will be handled 

by the career people who are independent. They live from 

administration to administration. Their role is to follow the facts and 

follow the law and make a determination as to what happened and 

what those next steps should be.... This team is dedicated and 

professional. So I can’t imagine a circumstance in which I would not 

be accepting their recommendations.151

Lynch told us that her role in oversight of the Midyear investigation did not 

change. She stated:

[A]s I said to, to the reporter at the time, that the team is going to 

continue and, and do what they needed to do in terms of interviews, 

forensics, all the investigative steps that they would take that were not 

influenced by me. They would look at all the facts, all the evidence, 

and come up with a recommendation that was going to be vetted 

through supervisors on both sides of the house, the legal side of the 

house, the investigative side of the house, and they would make a 

recommendation to me.

Lynch continued:

[T]hey are going to present me with a recommendation, that I expect 

to accept, which I always expected that I would accept given the 

people involved in the process, then there is really no need for me to 

step aside from this because I’m, I’m listening to their 

recommendation. I’m doing what I’m supposed to do in terms of 

discharging my duties in running the Department, in, in managing the 

Department in what is an important case and a sensitive case. And, 

and essentially, there won’t be a change.

E. Impact of the Tarmac Meeting on Comey’s Decision to Make a 

Public Statement

As described above, Comey began drafting a public statement announcing 

the conclusion of the Midyear investigation in early May 2016, well before the

tarmac meeting, and told the OIG that he planned not to inform the Department. 

Comey told us that he had struggled with the decision, and that “in a way the 

 

150

 See, e.g., Mark Landler et al., Loretta Lynch to Accept F.B.I. Recommendations in Clinton 

Email Inquiry, N.Y. TIMES, Jul. 1, 2016; Joel B. Pollak, Loretta Lynch’s Non-Recusal Recusal, BREITBART, 

Jul. 1, 2016.

151

 Jonathan Capehart, This Is What Loretta Lynch is Thinking Now, WASH. POST, Jul. 5, 2016.
220

tarmac thing made it easy for me” and “tipped the scales” towards making his mind 

up to go forward with an independent announcement. He stated, “I think I was 

nearly there. That I have to do this separate and apart.... And so I would say I 

was 90 percent there, like highly likely going to do it anyway, and [the tarmac 

meeting] capped it.”

Comey said that Lynch’s decision not to recuse herself and to defer to his 

recommendation impacted his decision. He stated:

[I]f you believe the nature, the circumstance, 500-year flood, if you 

believe that it’s officially unusual that you can’t participate 

meaningfully in one of the most important investigations in here, in 

your organization, then I think your obligation is to find another way to 

discharge leadership responsibilities. Either appoint someone within 

the organization to be in charge of the case to make sure there is 

leadership to engage across the street with us, not to be this neither 

fish nor fowl, I’m still the Attorney General and really in an odd way, 

what she said explicitly was sort of the culture of the case before the 

tarmac thing [in that she was not closely involved in the investigation], 

which was I’m the Attorney General and that’s not really my thing and 

then she made it explicit by saying, I’m still the Attorney General, but 

I’m going to accept what Jim Comey and the prosecutors say.

Comey also stated:

Had Loretta said, I’m stepping out of this [after the tarmac meeting]. 

I’m making Sally Yates the acting Attorney General and had I gone 

and sat down with Sally and heard her vision for it, maybe we would 

have ended up in a different place. I don’t know. It’s possible we’d 

end up in the same place, but it’s hard to relive different, imaginary 

lives.

As described in more detail in Chapter Eight, on October 13, 2016, Comey 

gave a speech at the SAC Conference in which he spoke at length about the

Midyear investigation. Comey stated the following regarding the tarmac meeting in 

explaining his decision to deliver a unilateral public statement:

At the end of [the investigation], [the team’s] view of it was there isn’t 

anything that anybody could prosecute. My view was the same. 

Everybody between me and the people who worked this case felt the 

same way about it. It was not a prosecutable case.... The decision 

there was not a prosecutable case here was not a hard one. The hard 

one, as I’ve told you, was how do we communicate about it. I decided 

to do something unprecedented that I was very nervous about at the 

time, and I’ve asked myself a thousand times since was it the right 

decision. I still believe it was.

Here was the thinking. Especially after the Attorney General met with 

former President Clinton on that airplane the week before we 

[interviewed] Hillary Clinton.... The hard part in the wake of the 
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Attorney General’s meeting was what would happen to the FBI if we 

did the normal thing? The normal thing would be send over an LHM 

even if we didn’t write it. Go talk to them. Tell them what we think, 

tell them whether we think there’s something here or whether we 

think a declination makes sense, but all of that would be done 

privately.

What I said to myself at the time, we talked about it as a leadership 

team a lot and all believed that this was the right course, try to 

imagine what will happen to the FBI if we do the normal thing. Then 

what will happen to us is the Department of Justice will screw around 

it for Lord knows how long, issue probably a one sentence declination, 

and then the world will catch on fire, and then the cry in the public will 

be where on the earth is the FBI, how could the FBI be part of some 

corrupt political bargain like this, there’s no transparency whatsoever, 

where is the FBI, where is the FBI. Then, after a period of many 

weeks where a corrosive doubt about us leaks into the public’s square, 

then I’d have to testify in exactly the way I did before. Our view of it 

would be dragged out in that way, in a way I think would’ve hugely 

damaging to us, and frankly, to the Justice Department more broadly 

and for the sense of justice in the country more broadly.

V. July 5, 2016 Press Conference

A. Notifications to Department Leadership

On July 1, 2016, Comey emailed Rybicki a script containing what he planned 

to say to Lynch and Yates on the morning of July 5. Entitled “What I will say 

Tuesday on phone,” the script stated:

I wanted to let you know that I am doing a press conference this 

morning announcing the completion of our Midyear investigation and 

referral of the matter to DOJ. I’m not going to tell you anything about 

what I will say, for reasons I hope you understand. I think it is very 

important that I not have coordinated my statement outside the FBI. 

I’m not going to take questions at the press conference. When it is 

over, my staff will be available to work with your team.

Rybicki told the OIG that Comey wanted to be “very careful” about what he said on 

the phone to avoid substantive discussion before the actual press conference, and 

that was why he wrote out what he planned to say. Rybicki said that Comey did 

not deliver this script verbatim during his calls to Lynch and Yates, but that it was 

close to what he actually said.

Comey and Rybicki also developed a timeline for notifying the media, the 

Department, and Congress about the press conference. After notifying the press 

pool and sending out a media advisory by 8:00 a.m., Comey planned to call Yates 

at 8:30 a.m. and Lynch at 8:35 a.m. After those calls took place, McCabe, Rybicki, 
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and, Strzok were assigned to call Toscas, Axelrod, and Laufman, respectively, 

beginning at 8:30 a.m. The timeline is set forth below in Figure 4.1.

Figure 6.1: FBI Timeline for Notifications on July 5, 2016

Emails indicate that the Department first learned about Comey’s press 

conference as the result of the media notifications on the morning of July 5, not 

from Comey or Rybicki. At 8:08 a.m., Melanie Newman sent an email to Lynch’s 

Acting Chief of Staff, Axelrod, and Lynch’s Deputy Chief of Staff entitled “FBI 

presser at 11 a.m.” This email stated, “Just heard that the Director is having a 

press briefing today at 11 a.m. I have not heard anything but have asked for 

guidance.” Axelrod replied at 8:15 a.m., “I’ll call Rybicki.” At 8:16 a.m., 

apparently after talking to the FBI Office of Public Affairs (OPA), Newman stated, 

“[The FBI OPA Section Chief] says the Director has called the DAG.” Axelrod 

replied at 8:18 a.m., “Nope.” At 8:31 a.m., Axelrod replied again and stated, “They 

just spoke. He’s going to call the AG too.”
223

Newman emailed Axelrod and Lynch’s Acting Chief of Staff with additional 

information at 8:33 and 8:43 a.m. She stated in the first email, “For the record, 

these notifications [to Lynch and Yates] are happening AFTER they notified press. I 

learned from a reporter that they were requesting pool coverage—which means 

they want live TV.” In the second email she stated, “They are also doing an off the 

record call this morning.”

Newman told the OIG that in the weeks leading up to July 5, she had been 

“clamoring” for information from Axelrod about the conclusion of the investigation

so that she could get some sense of the timeline. She said she had been “hearing 

from reporters that [the investigation] was, it was coming to an end and the FBI 

was likely to announce something.” She said that Axelrod assured her that the FBI 

would not announce a conclusion without the Department, that they were not at the 

point where they were ready to announce anything, and that he would tell her 

when they were. Newman told the OIG that she did not doubt that Axelrod 

“believed this to be true.”

Newman said that on the morning of July 5, after she found out from a 

reporter that the FBI would hold a press conference that day, she called the FBI 

OPA Section Chief to inquire about it and was told, “I can’t tell you what this is 

about...but I’m sure you can guess.” According to Newman, the Department’s OPA

had longstanding problems getting information from FBI OPA, but this was 

“unprecedented” and “absolutely ridiculous.”

1. Call to Yates

Comey said that when he spoke with Yates, he told her he was about to 

make a public press statement about the email investigation, including that the FBI 

had finished it and was sending it to the Department with its recommendation. 

Comey told the OIG that Yates did not say anything except “thanks for letting me 

know.” According to contemporaneous emails, both Yates and Axelrod were 

notified by the FBI by 8:28 a.m.

Yates told us that she remembered Comey saying that he was going to hold

a press conference that morning. She said that she did not recall if Comey said

that it would be about the Clinton investigation, but that she knew it would be. She 

stated, “And I remember thinking sort of, what the heck is this? And hanging up 

immediately and calling Matt [Axelrod] to find out more of what he knew, because 

if there’s ever anybody who’s going to know what’s going on it’s going to be Matt.” 

She said that Comey’s tone during the call was “very emphatic, I’m not going to tell 

you what it is,” and that made her determined to find some other way to find out 

what Comey planned to say.

Yates said that she and Axelrod assumed that Comey would deliver a very 

brief statement that the FBI had concluded the Clinton investigation and had 

reached a determination, and possibly would state what the FBI’s recommendation 

to the Department was going to be. She said that based on her knowledge of the 

investigation, they expected that if Comey announced a recommendation it would 

be a declination. She stated, “But [we] certainly didn’t expect what then 
224

happened.” She said that she viewed Comey’s decision to do a press statement 

without coordinating with the Department as problematic, particularly the failure to 

coordinate on the content of the statement. We discuss Yates’s reaction to the 

content of Comey’s statement in more detail below.

Axelrod said that he was surprised that Comey had chosen to do an 

independent press statement. He said he thought that the statement should have 

been “coordinated and planned and discussed” with the Department. However, at 

the time, he did not view the fact that Comey was the one delivering the declination

as the primary problem. He stated:

I think it’s important to think about Comey’s press conference in two 

ways. One was the decision to do it. And then two was...what he 

said. I just, one was the decision to do it at all. And on the decision 

to do it at all, I mean, we’re surprised. We were like completely taken 

aback. But you know, again, we had already wanted the FBI to at 

least be, even before the tarmac, be part of the public face of this.... 

Comey was...about to be the entire public face of it. You know, there 

were some upsides and downsides to that. But you know, it wasn’t all 

bad.

As described in more detail below, Axelrod thought that the content of Comey’s 

statement was misleading, and that the way Comey executed the press conference 

hurt the perception of the integrity of the investigation in a significant way.

Axelrod said that he and Yates did not discuss ordering Comey not to make 

the statement. Axelrod stated, “I don’t recall that being discussed. Because I don’t 

think that would have been tenable, right. The press was already coming. 

And...ordering the Director not to do something can be very fraught. And so I don’t 

recall that being a discussion.”

2. Call to Lynch

At 8:24 a.m., Lynch’s Acting Chief of Staff, after being told by Newman about 

the notice of the FBI press conference, sent an email to Axelrod, asking, “[P]lease 

call my cell when you are done with Rybicki.” At 8:39 a.m., the Acting Chief of 

Staff sent the following email to Lynch: “AG: [Y]ou are about to receive a call from 

the director. Please give me a call on my cell, and I can fill you in as to what it’s 

about. Alternatively I will be in the office in about 5 to 10 minutes and will stop 

by.”

Comey said that he called Lynch that morning and told her that he was going

to make a public press statement about the email investigation, and that the FBI 

had completed the investigation and was sending it to the Department with its

recommendation. Comey stated that Lynch asked him, “Can you tell me what your 

recommendation is going to be?” He said that he replied, “I can’t and I hope 

someday you’ll understand why, but I can’t answer any of your questions—I can’t 

answer any questions. I’m not going to tell you what I’m going to say.” Rybicki 
225

told us that Comey called from his (Rybicki’s) office because of the “snafus” with 

connecting the calls and provided us with a similar account of what Comey said.

Lynch told the OIG that she was in her office when Comey called her. She 

said that he told her he was going to make a public statement “very soon,” and that

it would be about the email investigation. She described this call as follows:

And I said, when are you proposing to do this? And he said, very 

soon, within a few moments. I don’t recall if he said 10:00, but 

certainly it was a short time period. And then he said, and I am not 

going to discuss the contents with you because I think it’s best if we 

say, if we, if we are able to say that we did not coordinate the 

statement. Then I said something, I had another question.... I don’t 

recall whether I said, what is it about? I just don’t recall my other 

question. And he said, it’s about, it’s going to be about the email 

investigation.

Lynch said that he gave her no further indication about the substance of his 

statement. She said that Comey told her he was not going to go over the 

statement with her so they both could say that it was not coordinated. Asked 

whether this language raised a red flag indicating that she should find out more or 

tell him to stop, Lynch said it did not because it did not occur to her that Comey 

would talk about the end of the investigation or the FBI’s recommendation. She 

stated, “And certainly I did not, at that time...on that day, even though [I] knew 

that they had interviewed the Secretary, I don’t think I had a view that [the 

investigation] was done at that point.”

Lynch told the OIG that, had she known what Comey was going to do, she 

would have told him to stop. She said she also would have asked him, “Why would

you want to do this?” She stated, “Ultimately, announcing the end of a matter, 

whether it’s going to be...how will we resolve it, would not be something that I 

would ever think that the, that the investigative side would do, which is why that 

was not what I thought he was going to do.”

3. Notifications to NSD

At 8:28 a.m., McCabe and Strzok received notice that Axelrod and Yates had 

been notified, which served as the “green light” for them to contact Toscas and 

Laufman, respectively. At 8:33 a.m., McCabe sent an email to Toscas, stating:

The Director just informed the DAG that at 1100 this morning he has 

convened a press conference to announce the completion of our 

investigation and the referral to DOJ. He will not tell her what he is 

going to say. It is important that he not coordinate his statement in 

any way. He will not take questions at the conference. His next call is 

to the AG.

I wanted you to hear this from me. I understand that this will be 

troubling to the team and I very much regret that. I want to talk to 
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you after the [Principals Committee] and am happy to bring my folks 

over to DOJ this afternoon to discuss next steps.

McCabe said that he called Toscas, but Toscas was traveling, so he instead sent 

Toscas an email. At 8:53 a.m., Toscas sent an email to Carlin, Laufman, and Mary 

McCord, stating:

I’m on hold to talk to the DD now. I received a message from him a 

few minutes ago saying that this morning the Director informed the 

DAG that he will have a press conference at 11am today to announce 

the completion of the FBI’s investigation and the referral to DOJ. He 

will not take questions at the conference, but he is not coordinating his 

statement with us. I’ll call when I get off the phone.

According to Laufman’s notes, Toscas then held a conference call with McCord, 

Laufman, and Prosecutors 1 and 2. According to these notes, Toscas told the group 

that he had spoken with McCabe and learned that Comey planned to hold a press 

conference at 11:00 a.m. to announce the conclusion of the investigation and the 

FBI’s recommendation to the Department. The notes stated, “Director has told AG 

+ DAG. McCabe refused to convey substance. Director doesn’t want statement to 

appear coordinated with DOJ.”

Laufman’s notes also stated that, even though McCabe said that he would 

not share the content of Comey’s planned statement, McCabe told Toscas that 

Comey planned to talk for 10 to 15 minutes and would say what the FBI had done, 

what the FBI had found, and what the FBI’s recommendation to the Attorney 

General and the Department would be. Finally, the notes indicate that Toscas 

spoke to Carlin, and Carlin “said not to discuss w/ OAG or ODAG in advance.”

Other notes obtained by the OIG indicate that Laufman separately spoke to 

Strzok at 8:35 a.m. that morning. According to these notes, Strzok called Laufman 

and said that he was “told to call [him] and say” that Comey would hold a press 

conference at 11:00 a.m. that morning. These notes indicate that Laufman asked, 

“What exactly will he say,” and that Strzok replied, “Midyear.” The notes also 

indicate that the “7th floor has told AG/DAG.”

B. Reactions to the Statement

Comey held his press conference at 11:00 a.m. on July 5, 2016. He 

delivered the final version of his statement verbatim (provided as Attachment D to 

this report) and did not take any questions. In this section we describe reactions to 

his statement within the Department.

1. Department and NSD Leadership

Lynch told the OIG that she watched Comey’s statement on the television in 

her office. She described her thoughts as she watched Comey speak:

[D]iscussing findings in something that was technically not closed was, 

I was a little stunned, actually.... I had no way to stop him at that 
227

point, I mean, short of, you know, dashing across the street and 

unplugging something....

But, so, as he went further into the analysis of not only what they 

found but what they recommended, I just thought this was, this was 

done to protect the image of the FBI because of the perception that 

somehow the FBI was not going to be allowed to have their views 

known or their views expressed or their views respected within the 

process. Because that had, that in fact had been, for those of us who 

were inside the Department at the time, and I don’t know how the FBI 

was taking it at the time, but certainly if you looked at criticism aimed 

at the Department, people said, oh yeah, you know, the AG was 

appointed by Bill Clinton to be U.S. Attorney.

But that was never the real, the real stated concern. It was that there 

was going to be, you know, these strong investigators who wanted to 

bring charges who would be somehow silenced or stepped on by the 

legal side of the house, whether it was the political side or the career 

side, they never really made much of a differentiation. Easy to attach 

it to the political side if you’re talking to the AG. But that was really 

something that was, that was thrown around a lot in, in debate outside 

of the Department.

So I viewed it as him trying to make his recommendation clear so that, 

and from, and when he made the recommendation clear and said this 

is our recommendation, I remember wondering does the, does the 

team know that this is happening, you know, that the literal 

investigative team, both sides of it? Did George [Toscas] know this 

was going to happen? Who knew that this was going to occur? And 

why didn’t we know in advance?... Meaning the fifth floor, myself, the 

DAG. Why weren’t we informed in advance of this? So those are my 

thoughts during the, during, watching of the, of that particular press 

conference.

Lynch said that she thought that the strongest public concern about the Midyear 

investigation was not that she as the Attorney General was going to “kill it,” but 

that the investigative side would want to charge somebody, and the legal side 

would say no for political reasons. She said that she viewed Comey’s public

statement as “basically saying...look...we’re independent. We...aren’t influenced by 

anybody. And now...no one is also silencing us.” Lynch stated that she did not 

ascribe malicious intent to Comey, but that she thought that his statement was a 

“huge mistake.”

Lynch told the OIG that she did not think that the FBI’s recommendation 

should have been made public “because we don’t make those things public. That’s 

part of the discussion that we [agents and prosecutors] have. That’s part of, you 

know, we can talk about it. We can argue about it. We can go back and forth 

about it.”
228

Yates told the OIG that she had concerns about the substance of Comey’s 

statement as she watched the press conference. She stated:

And while I can’t point to specific facts in Jim [Comey]’s description, 

you know, narrative description there that I would say were 

inaccurate, I also remember at the time thinking the facts as those are 

being laid out with much more censure than the facts as I understood 

them to be and how I had been briefed on this matter. Sort of by way 

of example, I don’t recall Jim going through and explaining that there 

were no classification markings on the vast, vast, vast majority. We 

got three email chains with a, you know, the small C [indicating that 

the information was Confidential]. Not the Top Secret or anything on 

there. That it was all to people within the State Department....

That were really, to me gave the most accurate picture of what the 

facts actually were there. And so I was stunned A, at the level of 

detail that he went into. B, that he then made judgments and said 

things like extremely careless and should have known that this 

material was. And every, anyone should know you shouldn’t have it 

on a private server. That he gave the impression that, you know, the 

private server could have been hacked. We don’t really know for 

sure.... That, you know, I thought wasn’t really a balanced description 

of what the facts were here.

And so, you know, there are a number of things that are concerning 

about that. One, that he sort of put that slant on it, that it was done 

without any consultation with folks at Main Justice. That it impugned 

someone we weren’t charging. We don’t trash people we’re not 

charging. And we don’t get to just make value or moral judgments 

about their conduct. And there were things in there that I thought 

were unnecessary from a factual, those, they were opinion as opposed 

to laying out, even if he were going to do this, what was a fair, 

evenhanded recitation of what the facts were. And I thought that was 

way out of order.

Asked what her reaction was when she looked back on the statement, Yates said 

that she was “even more stunned.” She stated:

At the time all of this is happening it’s such a swirl. You know, the 

tarmac happens and trying to figure out what to happen. I mean, all 

of this is happening so quickly and in such a charged environment it’s 

hard to fully, for it all to fully sink in like it does when you look at it 

then in the calm of day in, you know, in retrospect on that. And look, 

it was a difficult situation with the tarmac. But that’s not something I 

think that was appropriate for the FBI Director to unilaterally then 

decide how he was going to handle that. I think that was a factor that 

we should consider in how we were going to publicly convey the 

results of the investigation. And certainly if he had views about how 

that ought to happen I think he should speak up and should convey 

those views. But to make the unilateral decision to do it is one thing. 
229

And then to put out that level of detail without coordinating that with 

DOJ or, you know, DOJ agreeing with that, and then for it to be with a 

slant that I didn’t think was accurate—and I’m not saying he did that 

intentionally. I don’t know. I certainly wouldn’t accuse anybody of 

that. But the way it was conveyed I didn’t think gave the most 

accurate description. And then, as I said, impugning someone that we 

weren’t charging with sort of personal judgments....

Yates said that she did agree with Comey’s statement that no reasonable 

prosecutor would bring a case based on the facts developed in the investigation, 

but that she did not think that it was “the place of the FBI Director to be out telling 

the public what a prosecutor would do there.”

Axelrod stated that he and Yates watched the press conference in her office. 

He said that he was “pretty confident” in what Comey was going to conclude based 

on what they had been led to believe about the investigation and did not fully 

process the content of the statement while Comey was delivering it. He said that 

he reacted more negatively to the statement after attending the briefing by 

prosecutors the next day:

I didn’t know all the facts because we were giving George [Toscas] the 

space to tell us what we thought we needed to know. We were not in 

the weeds. And the next day when we got the briefing o[n] some of 

the stuff in the weeds there were important facts that the NSD guys 

briefed the AG on that were absent from Comey’s statement. And so 

that was when I started to have a much more strongly negative 

reaction to what Comey had said.

Asked what facts were missing that he thought were important, Axelrod identified 

the following:

A couple. One, that according to the NSD guys and what I recall from 

their briefing is that if you look at the spectrum of cases that the 

Department has brought in the past historically in this area the 

Department has never brought a case where the classified information 

was shared between people who work for the Government. It was 

always someone sharing classified information with someone outside 

of the Government. That’s a pretty important fact. That if you are 

laying out your reasons or reasons for recommending declining 

prosecution that’s a, you know, to me a pretty important one. The 

other one I recall was that the NSD guys said that most of the emails 

were, I think whether it was all or most, the majority of the emails 

that turned out to be classified had been sent late at night or on the 

weekends. Which, you know, to me means it’s people sort of trying 

to, you know, were not at their desks, right, where they have access 

to classified systems trying to talk about, you know, talk around or 

talk about issues. So I thought that was a really important fact. And 

again, just when you’re talking about intent, right, that’s an important 

thing that bears on intent.
230

Axelrod contrasted Comey’s statement with the briefing by the prosecutors the 

following day, which he characterized as a “much more complete picture.” He 

stated, “[W]hen [the prosecutors] were done talking the reaction was like oh, this is 

clearly a declination. When Comey was done talking, as I think you saw from the 

public reaction,...it was much more of a mixed bag.”

Axelrod told the OIG that the way the press conference was executed hurt 

the perception of the integrity of the investigation in a significant way. He stated:

Because if the goal, to do what he did the goal would need to be, and I 

would imagine his goal was that by the time he’s done talking that 

even if people don’t agree with the outcome they can see why, you 

know, understand his thinking and see like why he got to the place he 

got. And that it would sort of be like a closing argument or something, 

right. It would be, right, here’s the rationale and I’ve [seen] the facts 

and here’s why I’m coming out the way I’m coming out. And people 

again, on the, and for the partisans and people with political agendas, 

they’re not going to be convinced. But that reasonable center would 

say like okay, yeah, we get it.

That was not the reaction to the statement. Which I think just by its 

own terms means the execution failed. Because it raised a lot of 

questions. It, just it wasn’t, it was much more of a, like I said, the 

difference in tone and emphasis between what he said and then what 

we heard in the AG’s office the next morning was striking—to me. And 

I think if he had, you know, if the folks who gave the briefing the next 

[day] were the ones who, I mean, obviously not but that those words 

had been said at the press conference I think it would have been 

received quite differently.

Toscas told the OIG that his initial reaction to Comey’s statement was, 

“[H]oly cow, like they [Axelrod and the FBI] were talking about doing a joint 

appearance or statement of some sort and he’s just doing it all on his own.” Toscas 

said that he had concerns about Comey’s statement, both the substance of it and 

the fact that it deviated from Department practice. He stated:

We don’t say we’re closing something, but let me tell you some bad 

stuff that we saw along the way, but it doesn’t rise to the level of 

bringing a case. We just don’t do it.... I don’t know whether you can 

point back to a document some place, but after doing this for almost 

24 years, somehow it’s ingrained in me and it appears to be ingrained 

in everyone around me and everyone who does this whether they’re 

new or veterans, it’s just something you don’t do, you do not.

It’s the same reason why, if you, for example, and we have these 

discussions in some cases, if you go get a search warrant and it’s 

under seal and in the search warrant you’re seeing Tom—there’s 

probable cause that Tom committed, fill in the blank, whatever 

horrible crime you want or a lesser crime. You go do your search. 

There’s no case. There’s no prosecution. It never comes. You know it 
231

never leads to a prosecutable case. You don’t unseal that warrant and 

tell the public, hey, there’s probable cause that Tom is, you know 

engages in child pornography or we suspect him of a bank robbery, 

you just don’t do it.

And so it’s the same type of principle. When you decide you’re not 

proceeding, you say nothing more. I get that in some instances 

there’s going to be a lot of public knowledge of the facts. A shooting, 

for example, where the public has seen what happened, so they 

already know of actual conduct whether it’s criminal or not is different, 

so you could say, we’re not bringing a charge, but still comment on 

what everyone has seen.

But that’s not what this was and people could have tried to guess or 

you know surmise what the actual exchanges were in some instances 

or what the particular parts of the classified information were, but I 

just didn’t see it as something that—it did not square with the way we 

would ordinarily operate.

Toscas said that Comey’s decision to do the statement seemed “beyond strange” 

and “incredibly dangerous” considering the ongoing campaign and the proximity to

the election.

Asked whether “extremely careless” was too similar to “gross negligence,”

Toscas said that it was. Toscas said that once Comey was getting “grilled 

about...gross negligence,” it must have become obvious that they chose words that 

were so similar to the statutory language that they “created friction in being able to 

explain [his] ultimate decision.” He told the OIG that he did not know how Comey’s 

lawyers missed this issue, and that the statement would have benefitted from legal 

review by the prosecutors.

Toscas did not have a problem with Comey’s statement that no “reasonable 

prosecutor” would bring a case. He stated:

[T]hat didn’t bother me at all. This is a man who was the Deputy 

Attorney General of our country. He ran this Department. He was a 

lifelong prosecutor. I had no problem with that. I know other people 

do because they say, oh he’s usurping authority and things like that, 

but I think he is a—he is perfectly qualified, and regardless of his 

position, even in private practice or as a citizen, a private citizen, he 

could say that and I think it has credibility.

However, Toscas expressed concerns about the downstream effects of Comey’s 

deviation from Department practice in making a public statement in July, which he 

said then impacted Comey’s decisions in October. We discuss those concerns in 

Chapter Ten.
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2. Prosecutors

As described above, Prosecutors 1 and 2 learned about Comey’s plan to hold 

a press conference as the result of McCabe’s call to Toscas and Strzok’s call to 

Laufman. Strzok also spoke directly to Prosecutor 1 that morning. Prosecutor 1 

said that he was “extremely angry” on the phone and pressed Strzok to tell him 

what Comey planned to say, but that Strzok flatly refused and said that he was not 

allowed to tell him. Following this call, Prosecutor 1 contacted Prosecutors 3 and 4 

and informed them that Comey planned to hold a press conference that morning.

The prosecutors had varying reactions to the substance of Comey’s 

statement. Prosecutor 4 told the OIG that he was surprised at how strong Comey’s 

“no reasonable prosecutor” language was and by the inclusion of negative 

commentary about former Secretary Clinton’s conduct, but that he did not recall 

hearing anything factually inaccurate in the statement.

Prosecutors 1, 2, and 3 identified substantive concerns with Comey’s 

statement. Prosecutor 1 highlighted Comey’s negative comments about former 

Secretary Clinton, characterizing them as “declining to prosecute someone and then 

sort of dirtying them up with facts that you develop along the way.” Prosecutor 1 

also said that the use of “extremely careless” to describe her conduct “begs 

questions about gross negligence” that could have been avoided if the statement 

were more carefully crafted. Prosecutor 2 thought that the statement was “totally 

unfair on many levels,” particularly the discussion of uncharged conduct, and that 

the characterization of the evidence in the statement was “very skewed.”

Prosecutors 3 and 4 said they had concerns about Comey’s use of “extremely 

careless” to describe former Secretary Clinton’s conduct in the statement. On July 

6, 2016, Prosecutor 3 sent the following email to Prosecutors 1, 2, and 4:

It’s unfortunate that Comey didn’t differentiate the standard of proof 

between 793(f) and the other statutes. He glossed over all with 

mention of the absence of intent and made no mention of the 

necessity of proving knowledge of classified [information] with regard 

to 793(f) and why that proof was deficient. By using the phrase 

“extremely careless” he lit up the talking heads last night, many of 

whom opined that such verbiage warranted a gross negligence charge 

and that Comey was giving Clinton an unwarranted pass. Even the socalled legal experts didn’t seem to understand the elements of that 

statute and why it did not apply to the facts.

In his OIG interview, Prosecutor 3 said that he thought that Comey’s remarks had a 

good assessment of the investigation, but that he should have better articulated the 

gross negligence provision “because that seemed to draw a lot of fire from the 

public.” Prosecutor 3 said that Comey’s statement did not explain well enough that

under the gross negligence provision “you have to know...you’re being careless with 

what is in fact classified information.”
233

On August 2, 2016, Laufman sent an email to FBI Attorney 1 in connection 

with draft FBI responses to Congressional inquiries that had been made to Comey, 

and copied Toscas and the NSD prosecutors and supervisors on the email. Laufman 

stated the following about Comey’s July 5 statement:

We appreciate the Bureau sending us its draft response to the inquiries 

Director Comey received from Congress. We assume you have already 

considered and rejected simply responding to the letters (which were 

sent before the Director’s congressional testimony) by referring the 

Committees to the Director’s lengthy [congressional] testimony. As 

the Director has publicly stated, the Bureau did not coordinate the 

Director’s public statements about this case (many of which are 

repeated in the Bureau’s draft response) with the Justice Department,

and we therefore did not have an opportunity to express our views 

about those statements in advance. As I’m sure you understand, 

some of the Director’s statements went beyond the types of 

statements that we, as prosecutors, would typically make in a case 

where no charges were brought (e.g., characterizing uncharged 

conduct of individuals within the scope of the investigation). While we 

understand and respect the Director’s reasons for departing from 

normal practice in this one instance, we, of course, have not departed 

from our practice of refraining from making such statements—and we 

do not want to be perceived as concurring in or adopting such 

statements.

VI. Congressional Testimony Explaining the July 5 Statement

A. July 7, 2016

Two days after his statement, on July 7, 2016, Comey testified for several 

hours before the House Committee on Oversight and Government Reform

(HOGR).

152

 During this hearing, Comey was asked numerous questions about the 

basis for the decision to recommend declining prosecution of former Secretary 

Clinton and whether there was evidence that former Secretary Clinton violated any 

criminal statutes, including the gross negligence provision in 18 U.S.C. § 793(f). 

He also was asked about the specific language used in his statement. In response 

to a question about the meaning of “extremely careless,” Comey stated, “I intended 

it as a common sense term.... Somebody who is—should know better, someone 

who is demonstrating a lack of care that strikes me as—there’s ordinary accidents, 

and then there’s just real sloppiness. So I kind of think of that as real sloppiness.”

Representative John Mica noted the proximity of the tarmac incident on June 

27, Lynch’s announcement that she would “defer to the FBI” on July 1, Comey’s 

 

152

 See U.S. House of Representatives, Committee on Oversight and Government Reform, 

Oversight of the State Department, 114th Cong., 2d sess., July 7, 2016, 

https://oversight.house.gov/wp-content/uploads/2016/07/7-7-2016-Oversight-of-the-StateDepartment.pdf (accessed May 8, 2018).
234

statement on the morning of July 5, and former Secretary Clinton’s campaign 

appearance with then President Obama on the afternoon of July 5. In response to a 

series of questions about the circumstances of his statement, Comey responded, 

“Look me in the eye and listen to what I’m about to say. I did not coordinate [my 

statement] with anyone. The White House, the Department of Justice, nobody 

outside the FBI family had any idea what I was about to say. I say that under oath. 

I stand by that. There was no coordination.” Comey also testified that there was 

no interference in or attempt to influence the investigation by then President 

Obama, the Clinton campaign, or former Secretary Clinton herself.

Comey also was asked questions about his reasons for doing an independent

press conference. In response to a question about whether the system was

“rigged,” Comey stated:

I get a 10-year term to ensure that I stay outside of politics, but in a 

way that it’s easy. I lead an organization that is resolutely apolitical. 

We are tough aggressive people. If we can make a case, we’ll make a 

case. We do not care what the person’s stripes are or what their bank 

account looks like.

And I worry very much when people doubt that. It’s the reason I did 

the press conference 2 days ago. I care about the FBI’s reputation, I 

care about the Justice Department. I care about the whole system 

deeply. And so I decided I’m going to do something no Director’s ever 

done before. I’m not going to tell the Attorney General or anybody 

else what I’m going to say, or even that I’m going to say it. They did 

not know, nor did the media know, until I walked out what I was going 

to talk about.

And then I offered extraordinary transparency, which I’m sure 

confused and bugged a lot of people.

Responding to another question about his statement, Comey stated:

[E]verything I did would have been done privately in the normal 

course. We have great conversations between the FBI and

prosecutors. We make recommendations. We argue back and forth. 

What I decided to do was offer transparency to the American people 

about the “whys” of that, what I was going to do because I thought it 

was very, very important for their confidence in the system of justice. 

And within that their confidence in the FBI.

And I was very concerned that if I didn’t show that transparency, that 

in that lack of transparency people would say, “Gee. What is going on 

here? Something—you know, something seems squirrely here?” So I 

said I would do something unprecedented because I think it is 

unprecedented situation.

Now, the next Director who is criminally investigating one of the two 

candidates for President may find him or herself bound by my 
235

precedent. Okay. So if that happens in the next 100 years they’ll 

have to deal with what I did. So I decided it was worth doing.

B. September 28, 2016

Comey also testified in an oversight hearing before the House Judiciary 

Committee on September 28, 2016, several weeks after the FBI released various 

materials from the Midyear investigation to Congress and in response to Freedom of 

Information Act (FOIA) requests.153 During this hearing, Comey answered 

questions about the conduct of the Midyear investigation, including questions about 

the reliance on voluntary production of information, the destruction of devices used 

by former Secretary Clinton, decisions to grant immunity to witnesses, and the 

interpretation of the gross negligence provision.

Comey was asked again about the independence of the investigation. 

Representative Steve King asked about the interview of former Secretary Clinton

and whether “Loretta Lynch had her people in there?” Comey responded, “There 

was no advice to me from the Attorney General or any of the lawyers working for 

her. My team formulated a recommendation that was communicated to me. And

the FBI reached its conclusion as to what to do uncoordinated from the Department 

of Justice.” Asked whether he was responsible for the decision to decline 

prosecution, Comey said that the decision to decline was made in the Department, 

but acknowledged that there was “virtually zero chance” that the Department would 

make a different decision once Comey had made his recommendation public. He 

stated, “But part of my decision was based on my prediction that there was no way 

the Department of Justice would prosecute on these facts in any event.”

Importantly, at the September 28 hearing, Comey was asked, “Would you 

reopen the Clinton investigation if you discovered new information that was both 

relevant and substantial?” Comey answered, “It is hard for me to answer in the 

abstract. We would certainly look at any new and substantial information.... What 

we can say is...if people have new and substantial information, we would like to see 

it so we can make an evaluation.”

C. June 8, 2017

On June 8, 2017, following his firing as FBI Director, Comey testified about 

Russian interference in the 2016 presidential election before the Senate Select 

Committee on Intelligence (SSCI).154 In an exchange with Committee Chairman 

Senator Richard Burr, Comey was asked about the Midyear investigation, including 

whether his decision to publicly report the results of the investigation was 

 

153

 See U.S. House of Representatives, Committee on the Judiciary, Oversight of the Federal 

Bureau of Investigation, 114th Cong., 2d sess., September 28, 2016, https://judiciary.house.gov/wpcontent/uploads/2016/09/114-91_22125.pdf (accessed May 8, 2018).

154

 See U.S. Senate, Select Committee on Intelligence, Open Hearing with Former FBI 

Director James Comey, 115th Cong., 1st sess., June 8, 2017, 

https://www.intelligence.senate.gov/hearings/open-hearing-former-fbi-director-james-comey# 

(accessed May 8, 2018).
236

influenced by the tarmac meeting between former Attorney General Lynch and 

former President Clinton. Comey replied, “Yes. In—in an ultimately conclusive way. 

That was the thing that capped it for me that I had to do something separately to 

protect the credibility of the investigation, which meant both the FBI and the Justice 

Department.”

Senator Burr then asked whether there were other things that contributed to 

Comey’s decision that he could describe in an open session. Comey stated:

There were other things that contributed to that. One significant item 

I can’t, I know the committee’s been briefed on. There’s been some 

public accounts of it, which are nonsense, but I understand the 

committee’s been briefed on the classified facts.

Probably the only other consideration that I guess I can talk about in 

an open setting is at one point the Attorney General had directed me 

not to call it an “investigation,” but instead to call it a “matter,” which 

confused me and concerned me. But that was one of the bricks in the 

load that led me to conclude I have to step away from the Department 

if we’re to close this case credibly.

The classified facts indicating potential bias by the former Attorney General 

referenced in Comey’s testimony are discussed in the classified appendix to this 

report. As described in more detail in that appendix, Comey had concerns about 

Lynch’s ability to credibly announce the closure of the investigation, in part because 

of classified information learned by the FBI in March 2016 regarding alleged 

attempts to influence the Midyear investigation by Lynch, as well efforts by Comey 

to extend the investigation to impact the election. Although the FBI did not find 

these allegations credible, did not investigate the allegations, and did not inform 

Lynch about the information until August 2016, Comey was concerned that, if the 

allegations became known, it could affect the public’s perception of Lynch’s 

involvement in the investigation.

Comey was asked to provide additional details about Lynch’s instruction to 

call the Midyear investigation a “matter” by Senator James Lankford. Comey

stated:

Well, it concerned me because we were at the point where we had 

refused to confirm the existence, as we typically do, of an investigation 

for months, and it was getting to a place where that looked silly, 

because the campaigns were talking about interacting with the FBI in 

the course of our work.

The Clinton campaign at the time was using all kind of euphemisms—

security review, matters, things like that—for what was going on. We 

were getting to a place where the Attorney General and I were both 

going to have to testify and talk publicly about [it]. And I wanted to 

know, was she going to authorize us to confirm we had an 

investigation?
237

And she said, “Yes,” but don’t call it that, call it a “matter.” And I said, 

why would I do that? And she said, just call it a “matter.”

And, again, you look back in hindsight, you think should I have 

resisted harder? I just said, all right, it isn’t worth—this isn’t a hill 

worth dying on and so I just said, okay, the press is going to 

completely ignore it. And that’s what happened. When I said, we 

have opened a matter, they all reported the FBI has an investigation 

open.

And so that concerned me because that language tracked the way the 

campaign was talking about FBI’s work and that’s concerning.155

In response to a follow up question about this testimony, Comey stated:

And again, I don’t know whether it was intentional or not, but it gave 

the impression that the Attorney General was looking to align the way 

we talked about our work with the way a political campaign was 

describing the same activity, which was inaccurate. We had a criminal 

investigation open with, as I said before, the Federal Bureau of 

Investigation. We had an investigation open at the time, and so that 

gave me a queasy feeling.

Comey also had an extended exchange with Senator John Cornyn about 

whether Lynch had an appearance of a conflict of interest requiring appointment of 

a special counsel.

SENATOR CORNYN: But it seems to me that you clearly believe that 

Loretta Lynch, the Attorney General, had an appearance of a conflict of 

interest on the Clinton email investigation. Is that correct?

COMEY: I think that’s fair. I didn’t believe she could credibly decline 

that investigation, at least not without grievous damage to the 

Department of Justice and to the FBI.

SENATOR CORNYN: And, under Department of Justice and FBI norms, 

wouldn’t it have been appropriate for the Attorney General, or, if she 

had recused herself—which she did not do—for the Deputy Attorney 

General to appoint a special counsel? That’s essentially what’s 

happened now with Director Mueller. Would that have been an 

appropriate step in the Clinton email investigation in your opinion?

COMEY: Certainly a possible step, yes, sir.

 

155

 In an interview on September 8, 2015, former Secretary Clinton described the FBI’s 

investigation as a “security investigation.... It’s not, as has been confirmed, a criminal investigation.” 

Interview with Hillary Clinton, ABC News (Sept. 8, 2015), https://abcnews.go.com/Politics/fulltranscript-abcs-david-muir-interviews-hillary-clinton/story?id=33607656 (accessed June 1, 2018). 

Her campaign also referred to it as a “security review.” See Eugene Kiely, More Spin on Clinton 

Emails, FactCheck.org (Sept. 8, 2015), https://www.factcheck.org/2015/09/more-spin-on-clintonemails (accessed June 2, 2018). 
238

SENATOR CORNYN: And were you aware that Ms. Lynch had been 

requested numerous times to appoint a special counsel and had 

refused?

COMEY: Yes, from—I think Congress had, members of Congress had 

repeatedly asked. Yes, sir.

SENATOR CORNYN: Yours truly did on multiple occasions. And that 

heightened your concerns about the appearance of a conflict of 

interest with the Department of Justice, which caused you to make 

what you have described as an incredibly painful decision to basically 

take the matter up yourself and led to that July press conference.

COMEY: Yes, sir. After President Clinton, former President Clinton,

met on the plane with the Attorney General, I considered whether I

should call for the appointment of a special counsel and had decided

that that would be an unfair thing to do, because I knew there was no

case there. We had investigated it very, very thoroughly.

I know this is a subject of passionate disagreement, but I knew there 

was no case there. And calling for the appointment of a special 

counsel would be brutally unfair because it would send the message, 

aha, there’s something here. That was my judgment. Again, lots of 

people have different views of it. But that’s how I thought about it.

SENATOR CORNYN: Well, if the special counsel had been appointed, 

they could’ve made that determination that there was nothing there 

and declined to pursue it, right?

COMEY: Sure, but it would’ve been many months later or a year later.

VII. Analysis

We found no evidence that Comey’s public statement announcing the FBI’s 

decision to close the investigation was the result of bias or an effort to influence the 

election. Instead, the documentary and testimonial evidence reviewed by the OIG 

reflected that Comey’s decision was the result of his consideration of the evidence 

that the FBI had collected during the course of the investigation and his 

understanding of the proof required to pursue a prosecution under the relevant 

statutes. Nevertheless, we concluded that Comey’s unilateral announcement was 

inconsistent with Department policy, usurped the authority of Attorney General, and 

did not accurately describe the legal position of the Department prosecutors.

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 on June 27, 2016, 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. Finally, we found that Lynch, having decided not to recuse 
239

herself, retained authority over both the final prosecution decision and the 

Department’s management of the Midyear investigation, including whether to

respond to Comey’s call to her on the morning of July 5 by instructing him to share 

his statement with her. 

A. Comey’s Decision to Make a Unilateral Announcement

Beginning in early 2016, and certainly by late April 2016, the Midyear team 

reached a general consensus that the evidence would not support a prosecution, 

absent major unexpected developments in the form of newly discovered emails or 

testimony. This assessment was based on a lack of evidence showing that former 

Secretary Clinton, her senior aides, or other State Department officials knew that 

they were emailing unmarked classified information or intended to introduce 

classified information onto an unclassified system. Witnesses told us that, at the 

time, they understood the emails in question were sent by State Department 

employees to other State Department employees in the course of doing their jobs, 

and that both the senders and recipients had the appropriate clearances and the 

need to know the information. As described in Chapter Two, the prosecutors 

determined based on their legal research and review of past Department practice 

that evidence of knowledge or intent was necessary to charge any individual with 

violations of 18 U.S.C. §§ 793(d), 793(e), or 793(f)(1).

Comey understood and agreed with this assessment. He told us that, as he 

realized that the case likely would not result in charges, he became concerned that 

senior Department officials were unable to announce a declination in a way that the 

public would find credible and objective. Comey said that these concerns were 

based on the public perception created by an Attorney General appointed by a 

Democratic President announcing that the Democratic Presidential candidate would 

not be prosecuted, not on any actions by or concerns specific to Lynch or Yates; 

however, as discussed below, Comey also pointed to public comments made by 

then President Obama and his White House Press Secretary about the Midyear 

investigation, concerns that classified information referencing Lynch would be 

publicly released and would impact her credibility, Lynch’s alleged admonition to 

him early on to refer to the FBI’s investigation as a “matter,” and Lynch’s meeting 

with former President Clinton as contributing to his concerns about her.

In April 2016, Comey initiated discussions with Yates and Axelrod about how 

to credibly announce the conclusion of the investigation based on the likelihood that 

the case would result in a declination. During this discussion, Comey stated that he 

was likely to request the appointment of a special counsel “the deeper we get into 

summer” without concluding the investigation. Comey told the OIG that his

reference to a special counsel was intended to induce the Department to move 

more quickly to obtain the Mills and Samuelson laptops. We did not find evidence 

that Comey at any time seriously considered requesting a special counsel.

Lynch told us that she was aware that Yates met with Comey, and that 

Comey indicated that he was not sure there was a “there there”—i.e., it was not a 

prosecutable case. Lynch also was receiving periodic briefings about the Midyear 

investigation, and said that she thought that any discussions about announcing a 
240

declination were “very premature” at that time because there were remaining

investigative steps to be taken. Lynch told us that she did not know that Comey 

mentioned requesting a special counsel during his discussion with Yates, and that 

no one in the Department or the FBI ever suggested to her that a special counsel 

was needed.

Discussions about a strategy for announcing a declination also took place

within the FBI. Comey told the OIG that he considered every option for announcing 

a declination, from a one-line press release issued by the Department to an FBIonly press conference providing a detailed statement about the investigation. 

Comey said that foremost in his mind was the need to minimize the “reputational 

damage” to the Department and the FBI that would result from a declination, and 

to preserve the credibility and integrity of the institution.

In late April 2016, Comey raised the possibility of “doing something solo” in a 

meeting with Baker, McCabe, and Rybicki. He also began drafting a public 

statement that contemplated that he would act alone in announcing the declination, 

sending a first draft of this statement to Baker, McCabe, and Rybicki on May 2, 

2016. Witnesses told us that Comey had not yet made a firm decision to deliver a 

public statement when he sent this draft, but that he wanted to discuss it as one 

possible option for announcing a declination.

According to various witnesses we interviewed, Comey and other senior FBI 

officials knew that delivering a separate public statement held substantial risk. 

McCabe said that he expressed concerns that such a statement would represent a 

“complete departure” from Department protocol and could set a “potentially 

dangerous precedent” for the FBI. Rosenberg said that in discussions with Comey, 

he raised the possibility that doing a separate statement would create an 

irreparable breach with the Department. Comey said that he knew it was a “crazy 

idea, but we were in a [500]-year flood.”

Comey discussed the draft public statement in meetings with members of the 

Midyear team and with senior FBI officials at various times in May and June 2016. 

These discussions included whether to do a separate statement at all, in addition to 

the specific language revisions discussed in Section III.B and C above. Comey said 

that by June 27, 2016, the date of Lynch’s tarmac meeting with former President 

Clinton, he was “90 percent there, like highly likely” in terms of deciding to deliver

the statement.

Despite this, Comey and other senior FBI officials continued to engage their

Department counterparts in discussions about how to credibly announce a 

declination. These discussions occurred at various levels: between Comey and 

Yates; between McCabe and Carlin; and between Strzok and Laufman. At no time 

did anyone from the FBI inform anyone from the Department that Comey was even 

considering making a statement on his own, let alone that he had already drafted 

such a statement. Department witnesses at all levels told us that they believed 

that shortly after the interview of former Secretary Clinton was completed, the 

Department and the FBI would work together to deliver some sort of coordinated 

statement, and that Comey would be involved. Yates told the OIG that her 
241

understanding was that they would be “all holding hands and jumping off the bridge 

together.”

Comey said that from the time he first conceived of making a separate 

statement, he intended to deliver it without coordinating with the Department. He 

told the OIG that he made a conscious decision not to tell Department leadership 

about his plans to “go it alone” because he was concerned that they would instruct 

him not to do it. Comey admitted that he concealed his intentions from the 

Department until the morning of his press conference, and instructed his staff to do

the same, to make it impracticable for Department leadership to prevent him from 

delivering his statement.

We found that it was extraordinary and insubordinate for Comey to conceal 

his intentions from his superiors, the Attorney General and Deputy Attorney 

General, for the admitted purpose of preventing them from telling him not to make 

the statement, and to instruct his subordinates in the FBI to do the same. Comey 

waited until the morning of his press conference to inform Lynch and Yates of his 

plans to hold one without them, and did so only after first notifying the press. As a 

result, Lynch’s office learned about Comey’s plans via press inquiries rather than 

from Comey. Moreover, when Comey spoke with Lynch he did not tell her what he 

intended to say in his statement.

Factors Cited by Comey as Influencing His Decision

Comey cited several factors that he said influenced his decision to make a 

statement on his own and without coordinating with the Department. In addition to 

public comments made by former President Obama and his White House Press 

Secretary about the Midyear investigation, Comey cited four things that he said 

caused him to be concerned that Lynch could not credibly participate in announcing 

a declination: her alleged instruction to call the Midyear investigation a “matter” in 

a meeting held on September 28, 2015, which Comey said “made [his] spider 

sense tingle” and caused him to “worry...that she’s carrying water for the [Clinton] 

campaign”; concerns that highly classified information referencing Lynch would be 

publicly released and would impact her credibility; the tarmac meeting between 

Lynch and former President Bill Clinton; and the fact that Lynch was appointed by a 

President that was the same political party as former Secretary Clinton.

We found none of these reasons persuasive, either standing alone or 

considered together, as a basis for deviating from well-established Department 

policies and acting unilaterally in a way intentionally designed to avoid supervision 

by Department leadership over his actions.

Lynch’s Reference to the Investigation as a “Matter.” We found that 

the discussion between Lynch and Comey on September 28, 2015, was not 

generally viewed as a particularly significant event, other than by Comey. As 

described in Chapter Four, Department and FBI officials present at this meeting did 

not interpret Lynch’s reference in the way Comey did, and contemporaneous notes 

indicate that the discussion at the meeting was focused on the need to track 

language in recent letters to Congress and the State Department. Lynch told us 
242

that her intent in suggesting that Comey refer to Midyear as a “matter” was to 

allow them to answer questions about staffing and resources while also complying 

with longstanding Department policy to refrain from confirming ongoing criminal 

investigations, not to downplay the significance of the investigation. Other 

Department witnesses present at this meeting interpreted Lynch’s comment as a 

suggestion, not an instruction from Lynch. We found no evidence that this phrasing 

was intended to “track” the language used by the Clinton campaign or was an 

attempt to influence the investigation. Remarkably, Comey never told Lynch or 

Yates that this (or any other) incident raised questions about Lynch’s impartiality in 

his mind, or that such concerns might influence his actions in handling the case.

Concerns about Future Leaks of Classified Information. As described 

in the classified appendix to this report, Comey told the OIG that he became 

concerned in mid-June 2016 that classified information suggesting that Lynch was 

exerting influence on the Midyear investigation would be publicly released, and that 

this would impact her ability to credibly announce a declination. However, by midJune Comey was already very far along in his plans to make a unilateral statement. 

Moreover, witnesses told us that the FBI determined based on various factors that 

the allegations that Lynch had interfered with the investigation were not credible, 

describing the information as “objectively false.”

Comey told the OIG that he never saw any actions by Lynch to interfere with 

the investigation, stating, “I’ll say this again, I saw no reality of Loretta Lynch 

interfering in this investigation.” Rather, Comey said he was concerned that leaks 

of this non-credible information about Lynch would undermine her credibility. The 

FBI did not inform Lynch about the allegation in the highly classified information 

until August 2016, more than a month after Comey’s announcement, and then 

(according to Lynch) did so in a way that highlighted the FBI’s assessment that the 

information lacked credibility.156 At no time did Comey alert Lynch or Yates that the 

information raised concerns about Lynch’s ability to participate credibly in the 

Midyear investigation or in any declination announcement. At no time did Comey 

consult with Lynch or Yates about how to deal with this false information to protect 

the credibility of the declination decision.

Finally, the OIG found that the same classified information also included an 

allegation, equally lacking in credibility, that Comey planned to delay the Midyear 

investigation to aid Republicans. Comey did not inform Lynch or Yates of this fact, 

let alone discuss with them whether this information might be leaked or whether, if 

it was, it might undermine his credibility as a spokesman.

Lynch’s Tarmac Meeting with Former President Clinton. Comey told us 

that by the time the tarmac incident occurred on June 27, 2016, he was already “90 

percent there” in terms of the decision to make a public statement, but that the 

tarmac meeting “tipped the scales” towards making his mind up to go forward with 

an independent announcement on the Midyear investigation. While Comey’s 

 

156

 As described in the classified appendix to this report, the FBI notified senior career 

Department officials about this information in March 2016, but did not convey that it raised concerns 

about Lynch’s ability to credibly participate in announcing a declination in the Midyear investigation.
243

concerns about the impact of the meeting were legitimate, and warranted his 

informing Lynch of his concerns and providing her with any views he had on how it 

should be addressed, ultimately the decision whether Lynch should voluntarily

recuse herself was Lynch’s to make, not Comey’s.

In his October 2016 SAC Conference speech, Comey emphasized the damage 

to the FBI that would result if he “did the normal thing” in the wake of the tarmac 

meeting. He stated that he was concerned that if the FBI made a private 

recommendation to Lynch, “the Department of Justice will screw around it for Lord 

knows how long, issue probably a one sentence declination, and then the world will 

catch on fire[.]” However, the stated concerns are inconsistent with what Comey 

had already discussed with the Department about the “endgame” of the 

investigation. Comey knew that the Department was well aware of his view that 

the Midyear investigation needed to be completed promptly. Comey had previously 

discussed with Yates the prospect of requesting a special counsel if the

investigation continued past the nominating conventions, and Yates told us that she 

and Comey had made plans to “hold hands and jump off the bridge together” in 

announcing a declination. Moreover, notes from discussions of the Midyear team 

that occurred shortly before the Clinton interview on July 2 reflected that the 

prosecutors understood that Comey wanted to make the announcement by July 8 

and therefore there would be “withering pressure” to complete the LHM and 

memorialize the Midyear prosecutors’ conclusions immediately after the Clinton 

interview. There simply was no basis for Comey to believe that the Department 

would take weeks to act on the FBI’s recommendation on such a consequential 

matter.

Moreover, Comey never raised his concerns about the tarmac meeting with 

Yates or requested that Lynch recuse herself. Instead, Comey viewed the tarmac 

meeting as a justification for proceeding with his existing plan to act alone. Comey 

admitted that had Lynch recused herself he might have reconsidered his decision to 

make a separate announcement, stating, “Had Loretta said, I’m stepping out of 

this. I’m making Sally Yates the Acting Attorney General and had I gone and sat 

down with Sally and heard her vision for it, maybe we would have ended up in a 

different place.” While Comey indicated that he did not speak with Yates because 

Lynch had already made her announcement on July 1, we found that he still could 

and should have done so.

Lynch was Appointed by a Democratic President. Comey cited a 

general concern that Lynch was appointed by a President who was from the same 

political party as former Secretary Clinton. Yet that fact existed at the beginning of 

the Midyear investigation. At no time did Comey inform either Lynch or Yates that 

he viewed Lynch as having a “conflict of interest,” or that he thought she should be 

recused from the investigation on the basis of party affiliation, or for any other 

reason. While Comey did mention the prospect of a special counsel in his April 

2016 meeting with Yates, he did so seemingly as a bargaining chip to get the 

Department to move more quickly on the Mills and Samuelson laptops, and we 

found no evidence that he seriously pursued this option.
244

We found it troubling that Comey would have formed views about Lynch’s 

inability to participate in or credibly decline prosecution of the Midyear 

investigation, yet never once raised them with Lynch or Yates. If Comey genuinely 

believed that Lynch could not credibly participate in the Midyear investigation or 

announce a declination, he should have raised these concerns with Yates or Lynch 

and requested that Lynch recuse herself. If he believed that neither Lynch nor 

Yates could credibly make a prosecutive decision, he should have discussed this 

with them at the beginning of the investigation and requested appointment of a 

special counsel. He did not.

Impact of Comey’s Decision to Make a Unilateral Statement

Comey’s decision to depart from longstanding Department practice and 

publicly announce the FBI’s declination recommendation without coordinating with 

the Department was an unjustified usurpation of authority.157 Although Comey was 

aware that the Midyear prosecutors and Department leadership viewed the case as 

a likely declination, Comey made the decision to announce the conclusion of the 

investigation before prosecutors had a chance to render their own formal 

prosecutorial decision. Comey’s views on what a “reasonable prosecutor” would 

do—while informed by the prosecutors’ views on the likely outcome of the case and 

the Department’s research on past mishandling cases—were nonetheless made 

without consulting the Department in advance. Although Comey stated in his press 

conference that “the prosecutors make the decisions about whether charges are 

appropriate based on evidence the FBI has helped collect,” by making this public 

announcement about the FBI’s charging recommendation, and by stating his view 

that “no reasonable prosecutor” would bring charges, he effectively made the 

decision for the prosecutors because it would thereafter have been virtually 

impossible for them to make any other decision.

Even if Comey had every reason to believe that Lynch and Yates agreed with 

him, speaking unilaterally and publicly for the Department about a decision to 

decline prosecution is not a function granted to the Director. The authority to make 

such a statement had not been delegated to him by his superiors, the Attorney 

General and the Deputy Attorney General. Comey acknowledged this, but argued 

that “the potential for damage to the institution” outweighed the need to follow 

Department practice, stating, “[I]n a normal circumstance it’s the right of the 

 

157

 After reviewing a draft of the report, counsel for Comey stated that even before Lynch’s 

July 1 statement that she would accept the recommendation of the career staff, the decision about 

whether to prosecute former Secretary Clinton was publicly framed as belonging to him, and 

Department leadership did not correct this impression. See, e.g., Massimo Calabresi, Inside the FBI 

Investigation of Hillary Clinton’s Email, TIME, Mar. 31, 2016 (noting that Lynch testified in February 

2016 that she was waiting for a charging recommendation from Comey, and that some Republicans 

were referring to the investigation as the “Comey primary”). As a result, counsel said that Comey did 

not “usurp” the Attorney General’s authority, but rather had the role of the Attorney General given to 

him by Department leadership. However, waiting for a charging recommendation from the FBI 

Director is substantially different than making a public announcement without any prior consultation 

with or approval from the Attorney General. Indeed, there would have been no need for Comey to 

have affirmatively concealed his plans for a public statement from Lynch if he believed Lynch had 

effectively ceded authority over the prosecution decision to him.
245

Attorney General and Deputy Attorney General to make those decisions and the FBI 

Director should tell them, but this was not the normal circumstance.”

In our criminal justice system, the investigative and prosecutive functions are 

intentionally kept separate as a check on the government’s power to bring criminal 

charges. While Comey’s statement acknowledged those differing roles and 

responsibilities, his actions violated those separate authorities by arrogating to 

himself and the FBI the ability to make judgments about whether a case of the 

highest political consequence should be charged, and he did so by intentionally 

seeking to prevent Department leadership from being able to stop him based on 

concerns that he never even gave them an opportunity to consider. In making a 

statement announcing the conclusion of the Midyear investigation and opining on 

what the only possible prosecutorial decision could be, Comey made it virtually 

impossible for any prosecutor to make any other recommendation. He thereby 

effectively operated as not only the FBI Director, but also as the Attorney General. 

It is the Attorney General who is accountable to the public and to Congress for 

prosecutorial decisions made by the Department, not the head of the investigating 

law enforcement agency. Comey took that accountability away from Lynch and 

placed it on himself when he decided to deliver a unilateral statement.

Additionally, Comey’s decision to make an announcement without consulting 

or obtaining approval from Department leadership violated the Department’s media 

policy and also may have violated regulations regarding the public release of 

information. See 28 C.F.R. § 50.2(b)(9). Although Baker told the OIG that 

Comey’s call to Lynch and Yates on the morning of his press conference constituted 

approval for purposes of this regulation, Comey’s testimony that he concealed his 

plans from Lynch until the morning of July 5, only contacted her after the FBI had 

notified the press in order to make it impossible for her to stop him, and told Lynch 

when they did speak that he was not going to tell her what he intended to say in 

his statement, does not constitute consulting with or obtaining approval from 

Department leadership. In light of these events, we recommend that the 

Department consider making explicit in the USAM what we thought was obvious in 

light of Department policy and protocol—that an investigating agency cannot 

publicly announce its recommended charging decision in a criminal investigation 

prior to consulting with the Attorney General, Deputy Attorney General, U.S. 

Attorney, or his or her designee, and cannot proceed to publicly announce that 

decision prior to obtaining a final prosecution decision from one of these officials.158

B. Content of Comey’s Unilateral Announcement

We identified two significant substantive concerns with the content of 

Comey’s July 5 statement. First, Comey included criticism of former Secretary 

Clinton’s uncharged conduct, including calling her “extremely careless,” thereby 

violating longstanding Department practice to avoid what others described as 

“trash[ing] people we’re not charging.” Second, having improperly decided to 

comment on what were prosecutorial decisions, Comey proceeded to inadequately

 

158

 Such a policy would necessarily need to include exceptions for certain situations where the 

law required or permitted disclosure.
246

and incompletely explain how the Department’s prosecutors applied the relevant 

statutory provisions and why they believed the evidence was insufficient to support 

a prosecution. For example, Comey described former Secretary Clinton’s handling 

of classified information as “extremely careless” but then asserted that such 

conduct did not amount to “gross negligence” under the relevant statute. In so 

doing, Comey failed to explain that, since at least 2008, it had been the 

Department’s position that, before bringing a “gross negligence” case, prosecutors 

had to be able to prove that a defendant knew at the time that the information was 

gathered, transmitted, or lost that it was in fact classified information. As 

delivered, Comey’s statement led to greater public confusion and second guessing, 

not greater public clarity.

Many of the problems with the statement resulted from Comey’s failure to 

coordinate with Department officials. By deciding not to consult with the Midyear 

prosecutors about their assessment of the Department’s historical approach to and 

interpretation of the “gross negligence” statute or their assessment of the evidence 

under the applicable legal standard, Comey lost the opportunity to hear the views 

of the career prosecutors responsible for prosecuting violations of the mishandling 

statutes. Based on our interviews, these prosecutors would likely have warned him 

about the substantive questions presented by his statement. In addition, 

Department witnesses told the OIG that the presentation of the case by the Midyear 

prosecutors at the briefing of the Attorney General on July 6, 2016, which is 

described in Chapter Six, differed significantly from Comey’s statement, leading 

these witnesses to conclude that the presentation of the facts in Comey’s statement 

was “very skewed” or delivered with a “slant.”

Description of Uncharged Conduct

It is not unprecedented for the Department to announce the completion of an 

investigation without a prosecution. In fact, it happens frequently in high profile 

matters, including in many federal civil rights investigations. Such an 

announcement may serve several legitimate purposes, including allowing the public 

to know that the Department thoroughly investigated the matter and lifting the 

cloud over an individual known to have been under investigation. In limited 

instances, the Department has included criticism of individuals not charged with a 

crime. Comey cited as precedent for his July 5 public statement the June 2004 

press conference by then DAG Comey summarizing the evidence against Jose 

Padilla, who was designated as an enemy combatant, and the Department’s 

October 2015 letter to Congress summarizing the results of the criminal 

investigation into IRS officials, which did not result in criminal charges. However, in 

both of those instances, the Department was responsible for issuing the statement, 

not the FBI Director.

Moreover, Comey’s announcement was unusual in that it concentrated in 

substantial part on criticizing former Secretary Clinton’s uncharged conduct. This 

was contrary to longstanding Department practice and protocol. Witnesses told us 

that criticizing individuals for conduct that does not warrant prosecution is 

something that the Department simply does not do. For example, Toscas stated,

“We don’t say we’re closing something, but let me tell you some bad stuff that we 
247

saw along the way, but it doesn’t rise to the level of bringing a case. We just don’t 

do it.” Prosecutor 1 characterized the negative comments about former Secretary 

Clinton as “declining to prosecute someone and then sort of dirtying them up with 

facts that you develop along the way.”

Department witnesses did not identify a specific regulation or USAM provision 

that required Comey to refrain from commenting on uncharged conduct, and we 

found none. Rather, witnesses described this as a practice that is “ingrained” in 

every Department prosecutor. This principle underlies other Department policies 

and practices that do not directly apply in these circumstances, but that are 

nonetheless salient. USAM 9-27.760 requires prosecutors to remain sensitive to 

the privacy and reputation interests of uncharged third parties—for example, by not 

identifying or causing a defendant to identify a third-party wrongdoer by name or 

description in public plea and sentencing proceedings, without the express approval 

of the U.S. Attorney and the appropriate Assistant Attorney General prior to the 

hearing absent exigent circumstances. USAM 9-27.760 states, “In other less 

predictable contexts, federal prosecutors should strive to avoid unnecessary public 

references to wrongdoing by uncharged third-parties.”

Similarly, when a case is closed without charges being filed, the Department 

does not seek to unseal a search warrant for the purpose of revealing to the public 

that there was probable cause that someone engaged in criminal activity. In 

addition, where the Department has concluded that an uncharged individual was a

participant in a criminal conspiracy, the Department’s rules specifically prohibit 

prosecutors from naming the uncharged co-conspirator in an indictment or 

including sufficient detail in public filings that would allow the co-conspirator to be 

identified. See, e.g., USAM 9-11.130. The common principle underlying these 

policies is that neither the FBI nor Department prosecutors are permitted to 

insinuate or allege that an individual who has not been charged with a crime is 

nevertheless guilty of some wrongdoing. We see no reason why an unindicted coconspirator should be afforded greater protection than a person who has been 

investigated and found not to be criminally liable. We therefore recommend that 

the Department and the FBI consider adopting a policy addressing the 

appropriateness of Department employees discussing uncharged conduct in public 

statements.

Several witnesses acknowledged that one major purpose of including 

negative comments about former Secretary Clinton was to send the message that 

the FBI was not condoning her conduct: essentially, to protect the FBI from 

criticism that it failed to recognize the seriousness of her conduct and was “letting 

her off the hook.” We recognize that this investigation was subject to scrutiny not 

typical of the average criminal case, but that does not provide a basis for violating 

well-established Department norms and, essentially, “trashing” the subject of an 

investigation with uncharged misconduct that Comey, every agent, and every 

prosecutor agreed did not warrant prosecution. Such norms exist for important 

reasons and none of the justifications provided by witnesses for why such criticism 

was warranted in the Midyear investigation—including expressing disapproval of 

former Secretary Clinton’s conduct to the FBI workforce, “counter[ing]” statements

made on the campaign trail that the emails in question were classified after the 
248

fact, or informing the American people about the facts of the investigation—

provided legitimate reasons to depart from normal and appropriate Department 

practice.

Substantive Issues with the Statement

Department witnesses told the OIG that they considered Comey’s statement 

to be both factually and legally incomplete. These witnesses said that critical facts 

supporting the decision to decline prosecution were not included in Comey’s 

statement. Axelrod told the OIG that Comey’s most notable omission was the

failure to explain that the Department has never prosecuted mishandling violations 

“where the classified information was shared between people who work for the 

Government.... That’s a pretty important fact.” Axelrod and other Department

witnesses also noted that Comey did not include information explaining that “the 

majority of the emails that turned out to be classified had been sent late at night or 

on the weekends,” suggesting that State Department employees sending the emails 

tried to “talk around” classified information in the course of doing their jobs. 

Department witnesses described the characterization of the evidence in Comey’s 

statement as “very skewed” or unintentionally “slant[ed].”

Comey also included in his statement a comment that although the FBI did 

not find direct evidence that former Secretary Clinton’s private email account was 

hacked, the FBI assessed that it was “possible” that hostile actors gained access to 

former Secretary Clinton’s personal email account based on various factors. He 

added that the FBI assessed it would be unlikely to see such direct evidence given 

the nature of the system and the actors potentially involved in hostile intrusions, 

and that former Secretary Clinton had used her personal email in the territory of 

foreign adversaries. The statement thus insinuated that hostile foreign actors may 

have in fact gained access to former Secretary Clinton’s private email account, 

based almost entirely on speculation and without any evidence from the Midyear 

investigation to support his claim. As described in Chapter Five, the FBI Midyear 

Forensics Agent told the OIG that, although he did not believe there was “any way 

of determining...100%” whether Clinton’s servers had been compromised, he felt 

“fairly confident that there wasn’t an intrusion.” The LHM summarizing the Midyear 

investigation similarly stated, “FBI investigation and forensic analysis did not find 

evidence confirming that Clinton’s email server systems were compromised by 

cyber means.”

In addition, Comey’s statement failed to describe accurately what the

Midyear prosecutors deemed was essential to make out a violation of the “gross 

negligence” statute. As described in Chapters Two and Seven, the Midyear 

prosecutors took into account the legislative history of the statute, previous military 

prosecutions and indictments brought under it, and the Department’s historical 

interpretation of the provision in declinations dating to at least 2008. Based on this 

authority, the Midyear prosecutors determined that a violation of Section 793(f)(1) 

requires (1) a state of mind that is “just a little short of being willful,” “criminally 

reckless,” or “so gross as to almost suggest deliberate intention,” and (2) evidence 

that the individuals who sent emails containing classified information did so 

“knowingly.” With respect to former Secretary Clinton, the Midyear prosecutors 
249

determined that in the absence of evidence showing that she knew that emails she 

received contained classified information, such as through obvious classification

markings, Department practice and precedent required that they decline 

prosecution.

Comey told the OIG that he understood Section 793(f)(1) to require 

“something closer to actual knowledge.” Yet nowhere in his statement did Comey

say that the FBI concluded that former Secretary Clinton lacked knowledge that the 

information in question was classified, and that prosecutors determined that 

evidence of such knowledge was needed to bring charges under the “gross 

negligence” statute. On July 6, 2016, Prosecutor 3 sent an email to the other 

Midyear prosecutors highlighting this problem. He stated:

It’s unfortunate that Comey didn’t differentiate the standard of proof 

between 793(f) and the other statutes. He glossed over all with 

mention of the absence of intent and made no mention of the 

necessity of proving knowledge of classified [information] with regard 

to 793(f) and why that proof was deficient. By using the phrase 

“extremely careless” he lit up the talking heads last night, many of 

whom opined that such verbiage warranted a gross negligence charge 

and that Comey was giving Clinton an unwarranted pass. Even the socalled legal experts didn’t seem to understand the elements of that 

statute and why it did not apply to the facts.

By describing former Secretary Clinton’s conduct as “extremely careless” while 

failing to explain what the Midyear team concluded was the lack of proof for the 

other requirements of Section 793(f)(1), Comey created confusion about the FBI’s 

assessment of her culpability and the reasons for recommending that prosecution 

be declined. The focus on former Secretary Clinton’s “extremely careless” handling 

of classified information foreseeably and predictably led the public to question why 

former Secretary Clinton was not being charged with “gross negligence.”

The issue for the Midyear prosecutors was never whether former Secretary 

Clinton’s conduct was “extremely careless,” but whether her conduct met the 

requirements for charging a violation of Section 793(f)—i.e., whether there was 

sufficient evidence to establish that she knowingly included classified information on 

her unclassified private email server, or learned that classified information was 

transferred to her unclassified server and failed to report it. The prosecutors 

concluded that there was not. As described in Chapter Seven below, the 

prosecutors found no evidence that former Secretary Clinton believed or was aware 

that the emails contained classified information, or had concerns about the 

information included in unclassified emails sent to her.

C. Lynch’s Decision Not to Recuse after the Tarmac Meeting

After the tarmac meeting with former President Clinton, Lynch obtained an 

opinion from the Departmental Ethics Office that she was not legally required to 

recuse herself from the Midyear investigation. Although the opinion was not 

memorialized in writing, former OAG staff and former officials in the Departmental 
250

Ethics Office confirmed that Lynch obtained this opinion, and that the conclusion 

was that recusal was not required. Lynch was entitled to rely on that ethics opinion 

in the face of subsequent questions about her involvement in the Midyear 

investigation.

Lynch told the OIG that she considered voluntarily recusing herself. 

However, she thought that doing so would create the impression that something 

inappropriate had occurred during her conversation with former President Clinton. 

Lynch said that she felt a responsibility to remain involved in the Midyear 

investigation, because if she decided to recuse herself, she would be “asking 

someone else to step up and endure all the hits the Department will take for the 

case for the result, whatever it is.”

Lynch said that she applied her usual process in the Midyear investigation, 

and that her role did not change after the tarmac meeting. Lynch told the OIG that 

the only thing that differed was that she decided to speak publicly about how the 

Department’s process typically works. However, Lynch’s July 1, 2016 statements at 

the Aspen Institute were confusing and created the impression that, while she 

would not formally recuse from the investigation, she also would not remain in a 

deciding role in the investigation (by stating “I will be accepting their 

recommendations”). In an effort to address the confusion, Lynch sought to clarify 

her remarks by providing the reporter with another formulation of her intentions,

stating, “I can’t imagine a circumstance in which I would not be accepting their 

recommendations.” However, these statements continued to make it appear that 

Lynch would cede her decisionmaking authority to the career staff and the FBI 

Director in a way that was akin to some type of recusal.

In our view, Lynch should have either made it unambiguously clear that she 

did not believe there was a basis for recusal and that she was going to remain the 

final decisionmaker (thereby making her accountable for the final decision, not 

Comey), or recused herself and allowed Yates to serve as Acting Attorney General,

or sought a special counsel appointment. Instead, Lynch took none of these 

actions, leaving it ambiguous to the public as to what her role would be. 

Ultimately, that left the public with the perception that the FBI Director, and not the 

Attorney General, was accountable for the declination decision.

D. Lynch’s Response to Comey’s Notification

As described above, Comey concealed his plans to make a public statement

from senior Department officials, and instructed his subordinates to do the same. 

He did not inform Lynch and Yates of his plans to hold a press conference until the 

morning of July 5, 2016. Comey intentionally left Department leadership a short 

time to respond to his information, admitting that he did this to avoid having them 

tell him not to do it.

Comey notified Lynch and Yates of his plans only after first contacting the 

press. He did not tell Lynch what he planned to say when she asked. According to 

Lynch, Comey told her he would not go over his statement with her so they both 

could say that it was not coordinated. Department officials understandably had 
251

concerns about directing Comey to cancel the press conference after he had already 

announced his plans to hold one.

Lynch said while Comey told her that his statement would be about the 

Midyear investigation, it did not occur to her that Comey would announce the end 

of the investigation or the FBI’s recommendation. She explained that while she 

knew that former Secretary Clinton had been interviewed, she was not aware that 

the investigation was considered complete. Lynch told the OIG that if she had 

known what Comey was planning to do, she would have told him to stop. However,

Lynch said that she trusted him based on her long relationship with Comey and his 

comment to her that it would be better if they could both say that they did not 

coordinate his statement. Lynch told the OIG that she thought this was a 

reasonable decision, and that it was the right decision under the circumstances

because the Comey she knew followed the rules. She said that once Comey started 

speaking and she realized what he was doing, she had “no way to stop him at that 

point, I mean, short of, you know, dashing across the street and unplugging 

something.”

Nonetheless, we found that Lynch retained authority over both the final 

prosecutive decision and the Department’s management of the Midyear 

investigation. This included the authority to insist that Comey share his statement 

with her and allow the Department to review and comment on it. Although we 

recognize that Comey made it impracticable for her to tell him not to make any

statement given the FBI had already notified the press, there was time still 

available for her to review his proposed statement and to instruct him to make 

changes to it. Even if Lynch did not think that Comey was going to announce that 

the FBI was closing its Midyear investigation, Comey told her the statement was 

going to be about the Midyear investigation, a case over which she retained the 

authority and responsibility as the Attorney General. As such, we believe she 

should have instructed Comey to tell her what he intended to say beforehand, and 

should have discussed it with Comey.
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CHAPTER SEVEN:

THE DEPARTMENT’S DECISION NOT TO PROSECUTE

After former Director Comey’s statement on July 5, 2016, the Midyear 

prosecutors finalized their analysis and conclusions under the relevant statutes, 

recommending that prosecution of former Secretary Clinton and others be declined. 

They then provided their conclusions to NSD supervisors.

On the afternoon of July 6, 2016, former AG Lynch held a briefing attended 

by Comey, McCabe, and other senior Department and FBI officials. The Midyear 

prosecutors briefed Lynch on the relevant evidence, the applicable statutes, and the 

basis for their recommendations. Following the briefing, the Department issued a 

brief statement announcing that Lynch had accepted the recommendation of the 

career prosecutors and agents who worked on the Midyear investigation.

In this chapter we discuss the prosecutors’ conclusions and the July 6 

briefing, focusing on issues that have been subject to public criticism. Consistent 

with the role of the OIG and our statement that we will not substitute the OIG’s 

judgment for the judgments made by the Department or the FBI regarding the 

substantive merits of investigative or prosecutive decisions, we reviewed whether 

there was evidence that the Department’s decision to decline prosecution was 

based on improper considerations or bias. As with our review of investigative 

decisions, our role was not to determine whether a prosecution should or should not 

have been brought but rather whether the Department’s explanations for its 

declination decision were not unreasonable and whether there was evidence that 

the justifications offered for the decision were a pretext for improper, but unstated, 

considerations.

I. The Declination Recommendation

As described above, prosecutors and NSD supervisors began to realize that 

the investigation could lead to a declination in early 2016. As the investigation 

continued into the Spring of 2016, the prosecutors began to consider how to 

summarize the investigation and memorialize their legal conclusions to provide to 

their supervisors and to Department leadership. The prosecutors told the OIG that 

they wanted to wait until the end of the investigation before making a charging 

recommendation.

The prosecutors planned to complete their legal analysis after former 

Secretary Clinton was interviewed on July 2, 2016. Following Comey’s 

announcement on July 5, 2016, they realized they had a much shorter time period 

to do so and worked until almost midnight on July 5 to finish their legal analysis. 

They completed this process the following afternoon and provided their analysis and 

conclusions to Toscas.
254

The prosecutors’ legal analysis referenced an FBI letterhead memorandum 

(LHM) summarizing the Midyear investigation.

159

 In their analysis, the Midyear 

prosecutors categorized the witnesses that had been interviewed in the 

investigation into four categories:

 Originators of classified information (i.e., individuals who introduced 

classified information into unclassified emails, including State 

Department Bureau of Public Affairs employees, an individual who 

regularly interfaced with State Department employees, State 

Department Operations Center employees, and other State 

Department employees responsible for conveying information to their 

superiors);

 U.S. government employees who had involvement with a specific Top 

Secret//Special Access Program (“TS//SAP”);

 Senior aides to former Secretary Clinton, including Huma Abedin, 

Cheryl Mills, and Jake Sullivan; and

 Former Secretary Clinton herself.

The prosecutors referred to the first three categories of witnesses—the Originators, 

the officials involved with the TS//SAP, and former Secretary Clinton’s senior 

aides—collectively as the “senders.”

The prosecutors analyzed the conduct of former Secretary Clinton and the 

“senders” under five statutes:

 18 U.S.C. §§ 793(d) and 793(e) (willful mishandling of documents or 

information relating to the national defense);

 18 U.S.C. § 793(f) (removal, loss, theft, abstraction, or destruction of 

documents or information relating to the national defense through 

gross negligence, or failure to report such removal, loss, theft, 

abstraction, or destruction);

 18 U.S.C. § 1924 (unauthorized removal and retention of classified 

documents or material by government employees); and

 18 U.S.C. § 2071 (concealment, removal, or mutilation of government 

records).

The requirements of these statutes are described in more detail in Chapter Three.

As summarized below, the Midyear prosecutors concluded that there was not 

a basis to prosecute former Secretary Clinton, her senior aides, or others under any 

of these statutes. The prosecutors cited the following factual conclusions from the 

investigation as critical to its recommendation not to prosecute:

 

159

 A redacted version of the LHM is publicly available on the FBI’s website. See FBI Records: 

The Vault, Hillary R. Clinton, Part 1, https://vault.fbi.gov/hillary-r.-clinton (accessed March 6, 2018).
255

 None of the emails contained clear classification markings as required 

under Executive Order 13526 and its predecessor. Only three email 

chains contained any classification markings of any kind. These email 

chains had one or two paragraphs that were marked “(C)” for 

“Confidential” but contained none of the other required markings, such 

as classification headers.

 There was no evidence that the senders or former Secretary Clinton 

believed or were aware at the time that the emails contained classified 

information. In the absence of clear classification markings, the 

prosecutors determined that it would be difficult to dispute the 

sincerity of these witnesses’ stated beliefs that the material was not 

classified.

 The senders and former Secretary Clinton relied on the judgment of 

employees experienced in protecting sensitive information to properly 

handle classified information.

 The emails in question were sent to other government officials in 

furtherance of the senders’ official duties. There was no evidence that 

the senders or former Secretary Clinton intended that classified 

information be sent to unauthorized recipients, or that they 

intentionally sought to store classified information on unauthorized 

systems.

 There was no evidence that former Secretary Clinton had any 

contemporaneous concerns about the classified status of the 

information that was conveyed on her unclassified systems, nor any 

evidence that any individual ever contemporaneously conveyed such 

concerns to her.

 Although some witnesses expressed concern or surprise when they 

saw some of the classified content in unclassified emails, the 

prosecutors concluded that the investigation did not reveal evidence 

that any U.S. government employees involved in the SAP willfully 

communicated the information to a person not entitled to receive it, or 

willfully retained the same.

 The senders used unclassified emails because of “operational tempo,” 

that is, the need to get information quickly to senior State Department 

officials at times when the recipients lacked access to classified 

systems. To accomplish this, senders often refrained from using 

specific classified facts or terms in emails and worded emails carefully 

in an attempt to avoid transmitting classified information.

 There was no evidence that Clinton set up her servers or private email 

account with the intent of communicating or retaining classified 

information, or that she had knowledge that classified information 

would be communicated or retained on it.

In addition to these facts as described by the prosecutors, various witnesses told us 

that one reason it was difficult to establish intent was that the mishandling of 
256

classified information was a persistent practice at the State Department. These

practices made it difficult for the Midyear team to conclude that particular 

individuals had the necessary criminal intent to mishandle classified materials. 

According to Prosecutor 4, “[T]he problem was the State Department was so 

screwed up in the way they treated classified information that if you wanted to 

prosecute Hillary Clinton, you would have had to prosecute 150 State Department 

people.”

Based on facts evincing a lack of intent to communicate classified information 

on unclassified systems, the prosecutors concluded that there was no basis to 

recommend prosecution of former Secretary Clinton or the senders of classified 

information under Sections 793(d) or (e).

In addition, as described in Chapter Two, prosecutors reviewed the legislative 

history of the gross negligence provision in Section 793(f)(1) and court decisions 

impacting the interpretation of it. The prosecutors noted that the congressional 

debate at the time the predecessor to Section 793(f)(1) was passed indicated that 

conduct charged under the provision must be “so gross as to almost suggest 

deliberate intention,” criminally reckless, or “something that falls just a little short 

of being willful.” The prosecutors also reviewed military and federal court cases 

and previous prosecutions under Section 793(f)(1), and concluded that they

involved either a defendant who knowingly removed classified information from a 

secure facility, or inadvertently removed classified information from a secure facility 

and, upon learning this, failed to report its “loss, theft, abstraction, or destruction.” 

In addition, based on a review of constitutional vagueness challenges of Sections 

793(d) and (e), the Midyear prosecutors observed that “the government would very 

likely face a colorable constitutional challenge to the statute if it prosecuted an 

individual for gross negligence who was both unaware he had removed classified 

information at the time of the removal and never became aware he had done so.”

The prosecutors concluded that based on case law and the Department’s 

prior interpretation of the statute, charging a violation of Section 793(f) likely 

required evidence that the individuals who sent emails containing classified 

information “knowingly” included the classified information or transferred classified 

information onto unclassified systems (Section 793(f)(1)), or learned that classified 

information had been transferred to unclassified systems and failed to report it 

(Section 793(f)(2)).

Applying this interpretation, the prosecutors concluded that there was no 

evidence that the senders of emails knew that classified information had been

improperly transferred to an unclassified system, or that former Secretary Clinton 

acted in a grossly negligent manner with respect to receiving emails determined to 

contain classified information. According to information reviewed by the OIG, the 

prosecutors also considered whether the decision to conduct official business using 

a personal server could itself constitute gross negligence, but concluded that 

there was no evidence that former Secretary Clinton ever considered the possibility 

that classified information would be present in unclassified emails or on her private 

email server.
257

Distinguishing military prosecutions for “grossly negligent” mishandling, the 

prosecutors also noted that there was no evidence that classified emails were 

provided to or discovered by people who were unauthorized to receive them. The 

prosecutors stated, “[A]ll of the emails containing information subsequently 

determined to be classified were sent for work purposes and were delivered to 

State Department or other U.S. government officials.”

Regarding Section 1924, the prosecutors stated that the statute requires 

proof that an individual knew of the removal of classified information and intended

to retain that information in an unauthorized location, and that such proof was 

lacking. The prosecutors cited the absence of classification markings on the emails 

sent by the senders, with the exception of the three emails forwarded to Clinton 

containing paragraph markings denoting Confidential information, as well as the 

lack of evidence that the senders knowingly took classified information and sent it 

in unmarked emails over unclassified systems. The prosecutors similarly concluded 

that former Secretary Clinton did not recognize or have reason to believe that the 

information sent to her contained classified information. Prosecutors cited Clinton’s 

reliance on the judgment of senior aides and other State Department staff, their 

attempts to talk around sensitive information in unclassified emails, and her 

testimony that she did not have reason to question their use of unclassified systems 

to send that information. The prosecutors concluded that the evidence was 

insufficient to charge former Secretary Clinton under Section 1924.

The prosecutors also concluded that there was insufficient evidence to 

support prosecution under 18 U.S.C. § 2071, which prohibits the willful 

concealment, removal, or destruction of federal records. They concluded that there 

was insufficient evidence to establish beyond a reasonable doubt that former 

Secretary Clinton or her senior aides intended to conceal records, citing testimony 

that these witnesses expected that any emails sent to a state.gov address would be 

preserved. The prosecutors acknowledged that this testimony was undercut by 

former Secretary Clinton’s admission that she sometimes communicated with her 

senior aides using their personal email accounts, as well as an email she received 

from former Secretary of State Colin Powell at the beginning of her tenure outlining 

his use of personal email. However, the prosecutors noted that Section 2071 had 

“never been used to prosecute individuals for attempting to avoid Federal Records 

Act requirements by failing to ensure that government records are filed 

appropriately.”

Finally, the prosecutors evaluated whether Mills and Samuelson intentionally 

deleted emails during the culling process used to separate former Secretary 

Clinton’s “personal” and “work-related” emails for production to the State 

Department. They concluded that there was no evidence that emails intentionally 

were deleted by former Secretary Clinton’s lawyers to conceal the presence of 

classified information on former Secretary Clinton’s server, particularly because

some of the emails produced as “work-related” later were determined to contain 

highly classified, compartmented information.
258

II. The Attorney General Briefing

A briefing for Lynch and Yates on the prosecutors’ recommendation was held 

in the Attorney General’s Conference Room at 4 p.m. on July 6, 2016. According to 

the prosecutors, they learned about the briefing after they completed their legal 

analysis, and had only a short time to prepare. Prosecutors 1 and 2 said they 

quickly divided the topics and prepared bullet points for the presentation based on 

their legal analysis.

Attending the briefing were Lynch, Yates, Axelrod, and David Margolis, at the 

time the most senior career official in ODAG, as well as several OAG and ODAG staff 

members. Toscas and Laufman were present from NSD, while Carlin participated 

by phone. Present from the FBI were Comey, McCabe, Rybicki, Baker, FBI Attorney 

1, and Strzok. All four prosecutors attended the briefing.

Toscas told the OIG that he gave a brief introduction at the meeting. Toscas 

prepared handwritten talking points that he used as a guide for his comments at 

the meeting, but he said that these did not end up being his “precise script.”

Toscas said that he “frontloaded” his comments with an acknowledgement that 

Lynch had stated publicly that she planned to accept the recommendation of the 

career staff, and that the prosecutors and the FBI were in agreement that no 

charges should be filed. According to Toscas’s handwritten talking points, he 

stated, “[A]t the conclusion of the meeting you will have the unanimous 

recommendation of the FBI [and] DOJ team that this investigation should be closed 

[and] that charges should not be brought against anybody within the scope of the 

investigation in this matter.”

The notes indicate that Toscas then praised the team and handed the briefing 

over to Laufman to introduce the prosecutors. Following their introduction, 

Prosecutors 1 and 2 walked through the various legal statutes and the facts 

developed in the investigation. Prosecutor 2 handled sections 793(d) and (e), while 

Prosecutor 1 handled discussion of the other statutes, including the gross 

negligence provision.

Lynch described the briefing as “very, very thorough.” She said that it lasted 

about an hour-and-a-half, and included a “very specific, very dense” briefing of the 

case. Lynch told the OIG that the prosecutors showed her various documents, 

including some of the emails that were determined to contain classified information. 

She said that she asked questions about access to the classified emails and who 

saw them, as well as numerous questions that related to the issue of intent. Lynch 

described the prosecutors as “very responsive” to her questions.

Lynch told the OIG that the meeting included a briefing on key interviews, 

including the interview of former Secretary Clinton. Lynch said that the prosecutors 

provided a synopsis of her interview, her reaction when shown documents, and 

their opinions about what she said. Lynch said that she asked whether any of the 

witnesses, including former Secretary Clinton, had engaged in obstruction of 

justice, committed perjury, or made false statements, and she was told that they 

had not.
259

Prosecutor 1 told the OIG that the discussion with Lynch about Secretary 

Clinton’s interview included whether Clinton was credible when she testified that (C) 

paragraph markings in an email could mean subparagraphs (A), (B), and (C), 

rather than that the paragraph contained information classified at the “Confidential” 

level. Prosecutor 1 stated that he told Lynch that Clinton’s testimony “strained 

credulity a little bit because, well, if anyone knows Confidential, the State 

Department is the entity that uses Confidential information a lot.” He said that 

they discussed with Lynch that their reaction to this explanation was skeptical, but 

that they also did not know what “people at the very highest levels” understood 

about classification markings.

Prosecutor 4 said that he recalled Yates also asking whether former 

Secretary Clinton was truthful in her interview, and that they all responded that she 

was. He said that this answer caused him some “consternation” but that he did not 

disagree.

160

 Asked to explain this statement, Prosecutor 4 told the OIG that he did 

not think that former Secretary Clinton lied in a provable way, but that her 

responses to questions about paragraph markings for information designated as 

“Confidential” and her statement that the private server was set up for convenience 

were questionable. Prosecutor 4 stated, “My view was and still remains that the 

private email server was set up to avoid FOIA.... [I]f you look at Colin Powell’s 

email, he pretty much was trying to avoid FOIA too.”

Various witnesses told the OIG that the briefing included legal discussion of

the gross negligence provision, and that prosecutors fielded questions from Comey 

and Baker about the provision. Prosecutor 2 stated:

I think their attorneys hadn’t really gotten him up to speed on the 

prior use of 793(f), and how it hadn’t been used, and the 

Department’s views on the statute. So I think it was kind of an 

opportunity for him and his team to figure out how Comey was going 

to explain the decision [to Congress] under 793(f). And following the 

briefing, questions from his team came our way, specifically about 

793(f).

Prosecutor 1 similarly told the OIG that Comey was “very interested” in section 

793(f), and that “a lot of notebooks came out from the Bureau” when Prosecutor 1

 

160

 On July 8, 2016, following Comey’s congressional testimony about the Midyear 

investigation described in Chapter Six, Prosecutor 3 emailed Strzok and Prosecutors 1, 2, and 4 and 

stated the following:

[O]ne thing that was apparent just from the highlights of the Committee hearings that 

I saw last night was the fact that the Director’s statements about the number and 

levels of classified doc[ument]s found are being used by the Hill and others to claim 

that [Clinton] was lying when she has said in the past that she never sent or received 

classified info[rmation]. What undercuts the ability to prove intent in support of a 

false statement charge is that when [Clinton] made these statements she didn’t have 

the benefit of later findings by those who did the classification reviews and of course 

there weren’t the classification markings on the emails to put her on notice, and give 

us the ability to prove, that she was lying. This never seemed to get discussed or 

emphasized in the clips I saw last night.
260

began to talk about the provision. Prosecutor 1 stated that his briefing about 

section 793(f) included “[w]hat kind of factors we considered..., what gross 

negligence meant in the criminal context, what it meant in the statute, [and] how it 

had been applied in the [Uniform Code of Military Justice].”

Witnesses told the OIG that they did not discuss Comey’s statement at the 

briefing. However, Yates said that she recalled thinking that “you’d kind of wonder 

if it’s the same case” when she heard the facts as laid out by the prosecutors at the 

briefing and compared them to Comey’s statement. She said that she recalled 

discussing with Axelrod, Lynch, and Carlin after the briefing whether the briefing 

impacted what Comey’s thinking was about the case and how those facts were cast 

in his statement.

Witnesses said that at the end of the discussion, Lynch went around the 

room and asked for people’s opinions to see if anyone objected to declining 

prosecution. According to several witnesses, Margolis responded that he did not 

see a prosecutable case, and that if the Department prosecuted former Secretary 

Clinton, it would be because she was a high-profile public official. Toscas, Baker,

and Comey said that Margolis described this as “celebrity hunting.” Lynch said that 

she recalled that Margolis then said, “[W]e at the Department don’t do that.... We 

will bring cases when they should be brought. We don’t when they shouldn’t be 

brought.”

Lynch told the OIG that after everyone had the opportunity to provide his or 

her opinion, she expressed her appreciation to the team and asked Comey and 

Strzok to convey her appreciation to the agents who had worked on the case. She 

said that she then told the group that she accepted the recommendation to decline 

prosecution, and that the Department would issue a statement reflecting the 

decision shortly. Lynch said that about half of the group stayed behind to talk 

about how to announce the declination, and that Toscas drafted a short statement. 

That afternoon, the Department released the following statement:

Late this afternoon, I met with the FBI Director James Comey and 

career prosecutors and agents who conducted the investigation of 

Secretary Hillary Clinton’s use of a personal email system during her 

time as Secretary of State. I received and accepted their unanimous 

recommendation that the thorough, year-long investigation be closed

and that no charges be brought against any individuals within the 

scope of the investigation.

III. Analysis

We analyzed the Department’s decision to decline to prosecute former 

Secretary Clinton or anyone else according to the same analytical standard that we 

applied to other decisions made during the investigation. We sought to determine 

whether the declination decision was based on improper considerations, including 

political bias. We both looked for direct evidence of improper considerations and 

analyzed the justifications offered for the decision to determine whether they were 
261

a pretext for improper, but unstated, considerations. We did not substitute the 

OIG’s judgment for the judgments made by the Department.

We found that the prosecutors’ decision was based on their assessment of 

the facts, the law, and past Department practice in cases involving these statutes. 

We did not identify evidence of bias or improper considerations. Our analysis 

focuses substantially on 18 U.S.C. § 793(f)(1), the “gross negligence” statute that 

has been the focus of much criticism of the Department’s decision. However, we 

first address the declination decision with respect to the other statutes that the 

Department considered.

We begin with 18 U.S.C. §§ 793(d) and (e), which prohibit the “willful” 

mishandling or retention of classified information. As detailed in Chapter Two, 

Courts have interpreted “willfully” to mean an act done “intentionally and purposely 

and with the intent to do something the law forbids, that is, with the bad purpose to 

disobey or to disregard the law.” All of the prosecutors and agents we asked told 

us that they could not prove that Clinton had actual knowledge that the emails in 

question were classified or that Clinton used private servers and a private email 

account with the purpose or intent of receiving classified information on them. 

None of the emails Clinton received were properly marked to inform her of the 

classified status of the information.161 Additionally, investigators found evidence of 

a conscious effort to avoid sending classified information by writing around the 

most sensitive material. The investigators did not find any emails in which the 

sender communicated information to someone not authorized to receive it. In brief, 

we found no evidence that the decision not to prosecute Clinton under these 

statutory provisions was tainted by bias or other improper considerations.

We reached a similar conclusion with respect to 18 U.S.C. § 1924, which, as 

described in Chapter Two, prohibits the “knowing” removal of classified information 

with “intent to retain” it in an unauthorized location. In determining that a Section 

1924 prosecution was not viable, the prosecutors pointed to the same absence of 

evidence that Clinton had actual knowledge that any of the emails were classified or 

that she used private servers and a private email account with the purpose or 

intent of receiving classified information on them. The prosecutors distinguished 

the Petraeus case brought under this section (discussed in Chapter Two) on the 

basis that this case involved clear evidence that the defendant knew the 

information at issue was classified and took actions reflecting knowledge that his

handling or storage of it was improper. This was precisely the evidence that the 

investigators told us was conspicuously absent in the Midyear case. We found no 

basis to conclude that the decision not to pursue a Section 1924 case was tainted 

by bias or other improper considerations.

The Department also determined that prosecution under 18 U.S.C. § 2071 

was not viable. Section 2071 prohibits the concealment, removal, or destruction of 

a record filed in a public office. The prosecutors concluded that, as to emails on the 

 

161

 As noted above, even the handful of emails in which some paragraphs were marked “(C)” 

did not bear the required classification headers or footers, and Clinton testified that she did not 

recognize these paragraph markings as denoting classified information.
262

Clinton servers that were sent to or from government email accounts, because they 

also existed on government systems there was no evidence that Clinton or anyone 

else took any actions to conceal, remove, or destroy them from the government 

systems on which they resided. As to the work-related emails that were not sent to 

or from any government system, the prosecutors concluded that such emails were 

never “filed within a public office.” The prosecutors also noted that every 

prosecution under Section 2071 involved the removal or destruction of documents 

that had already been filed or deposited in a public office. Additionally, the 

prosecutors found no evidence that the laptop “culling” process involved the 

intentional destruction of government records in an effort to conceal them in 

violation of Section 2071. We did not identify any evidence to suggest that these 

determinations were based on bias or other improper considerations.

The statute that required the most complex analysis by the prosecutors was 

18 U.S.C. § 793(f)(1), which criminalizes the removal, delivery, loss, theft, 

abstraction, or destruction of national defense information through “gross 

negligence.” Due in part to Comey’s July 5 statement criticizing Clinton for being 

“extremely careless,” which many observers equated with being “grossly 

negligent,” this provision became the focus of much of the questioning of the 

declination decision. As detailed above, the prosecutors identified statements in 

the legislative history of Section 793(f)(1) that they found indicated that the state 

of mind required for a violation of that section is “so gross as to almost suggest 

deliberate intention,” criminally reckless, or “something that falls just short of being 

willful.” In addition, based on a review of constitutional vagueness challenges of 

Sections 793(d) and (e), the Midyear prosecutors stated that “the government 

would very likely face a colorable constitutional challenge to the statute if it 

prosecuted an individual for gross negligence who was both unaware he had 

removed classified information at the time of the removal and never became aware 

he had done so.” Based on all of these circumstances, and a review of the small 

number of prior civilian and military cases under Section 793(f), the prosecutors 

interpreted the “gross negligence” provision of Section 793(f)(1) to require proof 

that an individual acted with knowledge that the information in question was 

classified. The investigators and prosecutors told us that proof of such knowledge 

was lacking.

We found that the prosecutors’ interpretation of the requirements of Section 

793(f)(1) was consistent with prior Department declination decisions that the 

prosecutors considered and that we reviewed. As noted in Chapter Two, in 2008 

the Department declined to prosecute former Attorney General Gonzales based on 

an interpretation that would have required them to prove that his state of mind was 

“criminally reckless,” or that he had “a state of mind approaching ‘deliberate 

intention’ to remove classified documents from a secure location.” The same year, 

the Department declined prosecution of an AUSA for mishandling classified 

information because of its inability to prove that he was “criminally reckless.” 

Prosecutors told the OIG that they reviewed these declination decisions to see how 

the Department had construed Section 793(f)(1) in the past. These prior cases 

demonstrate that the interpretation of the gross negligence requirement of Section 
263

793(f)(1) used as a basis to decline prosecution of former Secretary Clinton was 

consistent with interpretations applied in prior cases under different leadership.

We found no evidence that the conclusions by Department prosecutors were

affected by bias or other improper considerations; rather, we concluded that they

were based on the prosecutors’ assessment of the facts, the law, and past 

Department practice. In reaching this conclusion, we recognize that much of the 

questioning of the Department’s prosecutorial decision in this case has focused on 

whether the Department too narrowly interpreted the “gross negligence” provision 

of Section 793(f)(1) and should have pursued a prosecution because the FBI found 

Clinton to be “extremely careless.” That, however, is a legal and policy judgment 

involving core prosecutorial discretion for the Department to make.
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CHAPTER EIGHT:

OCTOBER EFFORTS BY FBI LEADERSHIP TO RESPOND TO 

CRITICISM OF THE MIDYEAR INVESTIGATION

During October 2016, we found that FBI leadership devoted significant time 

and attention responding to both internal and external interest in, and criticism of,

the Midyear investigation.162 This included remarks by Comey about the Midyear 

investigation at the FBI’s SAC Conference, the development of Midyear talking 

points for all FBI SACs, a Midyear briefing for the Society of Former Special Agents 

of the FBI, and continued monitoring of media discussion of the Midyear 

investigation.

As described in Chapter Nine, these events occurred immediately after FBI 

Headquarters and the FBI Midyear team were made aware of the potential 

significance of the Weiner laptop by the FBI’s New York Field Office (NYO) on

September 28 and 29. And as we further describe in Chapter Nine, at the same 

time that FBI leadership was taking the steps we describe in this chapter to defend

its handling of the Midyear investigation as thorough and complete, it was taking no 

action in response to the notification by NYO regarding the Weiner laptop.

I. SAC Conference (October 11 to 14)

The FBI held its annual SAC Conference in San Diego, California, from 

October 11 through October 14. The SAC Conference was immediately followed by 

the International Association of Chiefs of Police (IACP) Conference from October 15 

through October 18. Almost the entire FBI executive workforce attends the SAC 

Conference and top leadership frequently stays for the IACP Conference as well. 

Comey and McCabe attended both of the conferences in San Diego.

On October 12, Comey spoke to the SAC Conference about a variety of 

topics. This speech included lengthy remarks about the Midyear investigation. In 

part, he stated:

I do want to hit Hillary Clinton’s emails which I never tire of talking 

about, as you know. Because I want to make sure that you are 

equipped especially to answer questions and comments from our 

formers who are out trapped in a Fox News bubble and are hearing all 

kinds of nonsense. I want to make sure you have the information you 

need to bat some of that stuff down....

At the end of [the investigation], [the team’s] view of it was there 

really isn’t anything here that anybody would prosecute. My view was 

the same. Everybody between me and the people who worked this 

case felt the same way about it. It was not a cliffhanger. What 

 

162

 For example, during the presidential debate on Sunday, October 9, 2016, and at a 

campaign rally two days later, then candidate Trump, among other things, criticized the outcome of 

the investigation of Clinton.
266

sometimes confuses our workforces, and I have gotten emails from 

some employees about this, who said if I did what Hillary Clinton did 

I’d be in huge trouble. My response is you bet your ass you’d be in 

huge trouble. If you used a personal email, Gmail or if you [had] the 

capabilities to set up your own email domain, if you used an 

unclassified personal email system to do our business in the course of 

doing our business even though you were communicating with people 

with clearances and doing work you discussed classified matters in 

that, in those communications, TS/SCI, special access programs, you 

would be in huge trouble in the FBI....

...Of that I am highly confident. I’m also highly confident, in fact, 

certain you would not be criminally prosecuted for that conduct....

...What I’m getting from the left is savage attacks for violating policy 

and law by talking publicly about somebody who wasn’t indicted, by 

revealing facts that you should’ve been prescribed from revealing by 

decades of tradition. All of that’s nonsense just as this is nonsense. It 

is a uniquely difficult time. I expect after the election, which is coming 

up I’m told, we will have probably more conversations about this....

We asked Comey in general about the SAC Conference and whether he 

recalled receiving criticism about the Midyear investigation while at the conference. 

Comey said he did not recall specific criticism, but noted that “given how prevalent 

the criticism was, I would have expected it to be talked about.”

II. Midyear Talking Points Distributed to FBI Field Offices (October 21)

On October 17, Page sent an email to Baker and Anderson entitled “MYE TPs 

(LCP).”163 Strzok, the Lead Analyst, FBI Attorney 1, and FBI Attorney 2 were cc’d 

on the email. The email stated:

Last week, Jim Rybicki and Mike Kortan reached out to a couple of us 

to ask that we put together some detailed MYE information related to 

the topics SACs most frequently get asked about. I’m not 100% 

certain about the uses these talking points will be used to, (I think the 

current thinking is that they would be provided to SACs to use with 

formers, in Citizen’s Academies, etc.), but attached is a very quick 

attempt at answering the specific questions requested by Jim and 

Mike. Could you both please take a look, and edit at will? Thanks.

The Midyear talking points were ultimately distributed to FBI SACs on October 21.

The talking points, which included a section on frequently asked questions, 

were nine pages and largely tracked Comey’s July 5 statement and his July 7 

testimony before Congress. At the top of the first page of the talking points was a 

 

163

 After reviewing a draft of the report, Page asked the OIG to clarify that she did not draft 

the talking points, but was the conduit through which they were distributed.
267

note to FBI executives, the first sentence of which stated, “The purpose of these 

talking points is to provide FBI executive management with a factual basis by which 

to inform discussions with employees or interested parties in the community.”

Comey described the talking points as “part of an effort to make sure that 

the workforce, given the prominence of the issue, understood why we had done 

what we did.” Comey described this commitment to transparency as part of his 

management philosophy. When asked if he was concerned with essentially 

deputizing 56 different spokesmen for the Midyear investigation, Comey stated, 

“No, in fact I think it cuts the other way. They’re all going to be talking about it 

anyway in lunchrooms, in town halls and sidebars, and so it makes sense to me to 

equip people who are going to be talking about it anyway with the actual facts and 

our actual perspective on it.”

McCabe described the talking points as part of a broad effort “to keep the 

SACs particularly more well-informed about all the major issues” the FBI was 

dealing with. McCabe said that the SACs were being asked about Midyear 

frequently and this was an effort to “give them some information to work off of.” 

McCabe also noted that the SACs requested this information from headquarters. 

When asked why the FBI did not just refer the SACs or anyone else to Comey’s July 

5 statement, McCabe stated that he believed the FBI did send Comey’s statement 

to the field, but “maybe that didn’t answer the mail.”

Rybicki told us he agreed with the assessments given by Comey and McCabe 

and that SACs were contacting FBI Headquarters stating “that they weren’t getting 

enough information from headquarters” about the Midyear investigation. Rybicki 

described the Midyear talking points as an effort by headquarters to arm SACs with 

information they could use to respond to questions they received.

Priestap attributed the revival of Midyear talking points in mid-October to the 

“churn” and the fact that “the issue [of Midyear] just didn’t go away.” Strzok 

agreed with this assessment, stating:

[B]ecause SACs were still getting an extraordinary number of 

questions because it had become a campaign issue and that was still 

being batted around by the Hill and by then candidate Trump. And 

SACs were getting questions. The thought was, you know, give them 

enough information so they can at least accurately answer some of 

those questions rather than just saying, you know, I don’t know, or 

here is what I’ve read.

III. Midyear Briefing for Retired FBI Special Agents (October 21)

On October 7, the President of the Society of Former Special Agents of the 

FBI (the “Society”) sent an email to Bowdich entitled “Controversy over the 

Director/Clinton Email Situation.” The Society’s President stated, in part:

I continue to hear negative comments about the Bureau’s handling of 

the Clinton email controversy from former agents. This is after a 
268

period where things seemed to quiet and comments mellowed. The 

renewed negative comments appeared to be timed with the release of 

additional emails in the Clinton situation and with the Director’s recent 

congressional testimony.

I would like to offer a strategy which would possibly lower the rhetoric 

on this issue. My sense is there are probably 10-15 hard core issues 

that are at the heart of former agents’ discontent. I know what those 

issues are based on the many emails and phone calls I’ve received.

My proposal is to have a small group of Society people meet with the 

Director and discuss those issues and formulate thorough in-depth 

answers, to be published in the Grapevine, or to be directly emailed to 

our members....

Bowdich replied that he would be “happy to discuss this weekend.” Bowdich told us

he recalled the Society wanting a sit-down with Comey, which Bowdich considered 

a bad idea, and we did not find evidence that the meeting with Comey occurred 

prior to the election.

However, on October 21, Strzok briefed a group of retired FBI personnel on 

the Midyear investigation during a conference call. This call was organized by 

Kortan, and Page also dialed into the call, although she did not speak. Strzok told 

us that the call was the idea of “the seventh floor,” meaning top leadership at FBI 

Headquarters, and added, “Rybicki might have been the one whose idea it was.” 

According to Strzok:

[O]ur Office of Public Affairs got a bunch of the former folks, like John 

Giacalone and other former EADs and Deputies and the head of the 

Society of Special Agents, to essentially say, okay, please sit down 

with them. And kind of walk through the investigation. And give a 

very fact-based pattern of, despite the huge turn of everything you’re 

hearing and the allegations and people saying you gave immunity out 

like candy, and you didn’t even issue subpoenas. Sit down to the 

extent you can and walk through, from the beginning to the end, what 

we did investigatively.... [S]it there and say...you know, we, we did a 

thorough job. This is what we did. This is what our mandate was. 

This is how we went about doing it. You know, here are, there are a 

lot of falsehoods and exaggerations being thrown around. This is the 

truth. And again, not giving out classified information, not giving the 

6(e) information out. But to the extent that any of these folks, 

whether they are getting asked by CNN, whether they’re appearing in 

front of a congressional committee, whether they are going to a 

Citizens Academy, that they have the facts.

We asked Page about this call and she told us:

[W]e got a ton of criticism from the formers about the, why we let her 

off the hook, and why she should have been prosecuted, and why if 

she had, if they had done this, they would have prosecuted, all those 
269

sort of criticism that you have surely heard. And so Steinbach and 

Kortan, Mike Kortan, came up with the idea of well why don’t we put 

Pete on, you know, kind of agent-to-agent to sort of, because we need 

to get the formers to stop sort of criticizing the, the case. And get 

them to understand actually the facts and why the facts led to not 

having a prosecution.

Page described her role on the call as “trying to like give advice along the way to 

sort of help them explain.”

Comey told us that he is not sure he knew about Strzok’s call beforehand, 

but “it rings true to me.” We asked him if it was normal to have the agent who 

oversaw an investigation directly brief the retired agents on that case. Comey 

stated, “No...there’s nothing normal at all about this, but it seemed a reasonable 

thing to do given the stakes which was the credibility of the organization.”

Steinbach described a separate speech he gave to the Washington, D.C., 

chapter of the Society of Former Special Agents of the FBI in October 2016. A news 

article from October 31, 2016, reported on Steinbach’s remarks and his comments 

on the Midyear investigation. Steinbach told us that his “intention” in giving the 

remarks was “to kind of level set that from one investigator to another former 

investigator. Say, hey look, you know, here is why we did it.”

IV. FBI Office of Public Affairs Research Project (October 14 to 31)

On October 14, Rybicki and Kortan assigned an FBI Office of Public Affairs 

(OPA) Public Affairs Advisor a “research project.” The Public Affairs Advisor’s initial 

email to Kortan and Rybicki on October 14 stated, “Per Mike [Kortan]’s suggestion, 

I’ll compile a list of stories from the past 24 hours that I’ve found that revolve 

around the recent email story from Fox.”164 Rybicki responded that evening, 

“Thanks.... This is very helpful. I think the idea is that you would also track all 

email investigation stories each day and then we can figure out which ones are so 

inaccurate that we need to respond in some way.” Consistent with this assignment, 

from October 14 and continuing through the end of October, we identified a series 

of almost daily emails from the Public Affairs Advisor to Kortan and Rybicki 

highlighting critical media coverage of the Clinton email server investigation. The 

emails typically included links to and summaries of the articles cited.

We identified October 13 notes from FBI Attorney 1 entitled “MYE—Fox article 

w/Rybicki + Kortan.” The notes included the following entry:

● Special projects person—fact check news of the day

 

164

 Based on the content of emails and the timing, we believe “the recent email story from 

Fox” refers to an October 13, 2016 article on Fox News entitled, “FBI, DOJ roiled by Comey, Lynch 

decision to let Clinton slide by on emails, says insider.” See Malia Zimmerman and Adam Housley, 

FBI, DOJ Roiled by Comey, Lynch Decision to Let Clinton Slide by on Emails, Says Insider, FOX NEWS, 

Oct. 13, 2016.
270

to SACs

and maybe bkgd to reporters? √ OPA

or maybe reach out to people who wrote article

FBI Attorney 1 told us she did not remember this meeting and “had no idea” what 

the “special projects person” notation signified.

An October 22 email from the Public Affairs Advisor to Kortan and Rybicki

provided some insight into his assignment. He stated, “I’ve done several searches 

on the topic we discussed today and yesterday, and I’m not seeing anything falling 

under the themes that we discussed (destruction of materials, dissention [sic], etc.) 

that is creeping into the main stream.”

We asked Rybicki about the Public Affairs Advisor’s assignment and showed 

him examples of the emails cited above. Rybicki did not recall giving the Public 

Affairs Advisor “any directive to look at specific outlets or anything like that.” 

Rybicki did recall that “the Director had [the Public Affairs Advisor] tracking stories

I think from back in, you know, early July, maybe even prior to that about the 

[Midyear] investigation.” Similarly, Kortan told us, “I think the Director or the 

Director’s Office actually asked him during some period of time there just to keep 

track of the reporting on everything to see how it was, how things were being 

reported.”

The Public Affairs Advisor said he recalled very little about this research 

assignment “other than...if there was an article that had c[o]me out, and they said 

can you see if, find the other stories that, that were like this or had this similar 

narrative, and if it was being picked up.” He told us that he “can’t imagine 

[Rybicki] would ask me to track all email investigation stories. As there were a 

mountain, a flood of them.” When we pointed out the specific guidance about 

“destruction of materials” and “dissention” in the October 22 email, the Public 

Affairs Adviser said that he assumed the destruction guidance related to an 

inaccurate story about the destruction of Clinton’s server and he was unsure what 

the “dissention” guidance meant. Kortan told us that he thought the “dissention” 

reference referred to stories about “all kind of conflict within the [Midyear] team 

about...the conclusion of the [Midyear] investigation.”

The Public Affairs Advisor said he was not sure why he was given this 

assignment in mid-October, but recalled more coverage of the Midyear investigation 

“popped up” at this time. The Public Affairs Advisor also could not recall if he was 

given similar research assignments during other time periods.

We asked Comey about the Public Affairs Advisor and the assignment. 

Comey told us that he first met the Public Affairs Advisor when Comey worked in 

EDVA. Comey stated that he recruited the Public Affairs Advisor to SDNY after he 

became the U.S. Attorney there. The Public Affairs Advisor then followed Comey to 

the Department when Comey was appointed DAG and later to the FBI after Comey 

became Director. We pointed out to Comey that almost all of the media coverage

identified by the Public Affairs Advisor in the October time period was negative 
271

coverage of the FBI’s handling of Midyear and asked if that was a particular focus of 

the FBI’s efforts at the time. Comey stated that “knowing what critics are saying is 

very, very important.” Comey added that this sometimes permitted the FBI to push

back on inaccurate reporting.

We asked Comey more generally about the FBI’s role in the run up to the 

election. Specifically, we cited several of the above examples—correcting

inaccuracies in the media, issuing talking points to SACs, briefing former agents—

and we asked Comey why the FBI was essentially inserting itself into the back and 

forth dialogue of two political campaigns. Comey replied:

It’s not our role, but it’s our role to be believed by the American 

people. And you’ve heard me say this before, when we rise and say, I 

found this under the car seat or I heard this statement or I seized this 

document in the bureau drawer...we have to be believed. And so my 

worry was, actually I had a great sense of relief after the July 5th 

thing, like that’s over and now what I need to worry about is making 

sure that I did what I did in July as we talked about a million times 

because I thought it was best calculated to preserve the institutions, 

now I need to do my absolute best to make sure that the poison that 

follows doesn’t continue to undercut the credibility of the institution in 

American life. And so I could have just pulled back, but if I pulled 

back without any push back, a doubt about the FBI’s political 

independence first would be pushed in from the right and then it would 

be pushed in from the left and then I’d be left after the election trying 

to un-ring a bell and a lot of what I was trying to avoid to start with 

would have crept in and then the FBI would have been, oh they’re 

those people with the Clintons or fix-it, we need to, so I was with the 

Clintons, then I was with the Trumps, and if—and so it’s not, the 

reason I disagree with your characterization, it’s not pushing our way 

into a political campaign, all this is flowing out from the campaigns and 

lots of other[s] through the media at the FBI and its reputation with 

the American people; I have to worry about that in my view.

V. FOIA and Congressional Requests in October

Throughout the month of October, the FBI responded to various Freedom of 

Information Act (FOIA) and congressional requests for information about the 

Midyear investigation. McCabe told us, “[T]he fact is, we were meeting about 

Midyear-related things constantly, like during [the October] time period. FOIA 

requests, Congressional requests.” For example, McCabe, Rybicki, Anderson, 

Strzok, Page, FBI Attorney 1, Baker, and Priestap were invited to a meeting entitled 

“Mtg. w/DD RE Decision Points” at 2:30 p.m. on September 29. Contemporaneous 

notes from the meeting showed that this meeting involved a discussion of 

congressional requests for materials from the Midyear investigation. In another 

example, McCabe sent an email to Comey on October 17 to summarize the events 

of the day. Rybicki and Bowdich were copied on the email. The email stated, in 

part, “Lots of OPA action on the Midyear investigation email front with eh [sic] 
272

release of the 302s. Nothing unexpected, will likely drive some additional 

committee requests....”
273

CHAPTER NINE:

DISCOVERY OF CLINTON EMAILS ON THE

WEINER LAPTOP AND REACTIVATION OF THE MIDYEAR 

INVESTIGATION

In this chapter, we discuss the discovery of Clinton emails on the Weiner 

laptop and the eventual reactivation of the Midyear investigation. Section I details 

the discovery of these emails by the FBI’s New York Field Office (NYO) and Section 

II discusses the numerous notifications of this fact to FBI Headquarters in late 

September and early October. Section III describes the initial response by FBI 

Headquarters and Midyear personnel to this discovery. Section IV discusses NYO’s 

processing of the Weiner laptop. Section V details the ensuing inaction by FBI 

Headquarters and Midyear personnel, and the explanations we received from FBI 

leadership and Midyear personnel for this inactivity. In Section VI, we discuss the 

Weiner case agent’s concerns about this inactivity and, in Section VII, we describe 

the actions taken by the U.S. Attorney’s Office for the Southern District of New York 

(SDNY) as a result of these concerns. In Section VIII, we discuss the response by 

the Department and FBI to SDNY’s notification about the Weiner laptop. Section IX 

examines the reengagement on this issue by FBI Headquarters and Midyear 

personnel. Section X describes the events that led to the decision to seek a search 

warrant for the Weiner laptop. We provide our analysis in Section XI.

I. Discovery of Emails by the FBI’s New York Field Office

A. Seizure of Weiner Laptop and Devices

In September 2016, the FBI and the U.S. Attorney’s Office for the Southern 

District of New York (SDNY) began investigating former Congressman Anthony 

Weiner for his online relationship with a minor. The FBI’s New York Field Office 

(NYO) was in charge of the investigation. A federal search warrant was obtained on 

September 26, 2016, for Weiner’s iPhone, iPad, and laptop computer. The FBI 

obtained these devices the same day. The search warrant authorized the 

government to search for evidence relating to the following crimes: transmitting 

obscene material to a minor, sexual exploitation of children, and activities related to 

child pornography.

B. Emails and BlackBerry PIN Message Viewed by Case Agent

The case agent assigned to the Weiner investigation was certified as a Digital 

Extraction Technician and, as such, had the training and skills to extract digital 

evidence from electronic devices. The case agent told the OIG that he began 

processing Weiner’s devices upon receipt on September 26. The case agent stated

that he noticed “within hours” that there were “over 300,000 emails on the laptop.”

The case agent told us that on either the evening of September 26 or the 

morning of September 27, he noticed the software program on his workstation was 
274

having trouble processing the data on the laptop.165 The case agent stated that he 

went into the email folder on the laptop to see why the processing was “hung up.” 

He explained that, because the laptop was still processing, he was only able to view 

the emails that were immediately visible in the window on his computer screen. 

The case agent told us that the first item he clicked on was “either an email 

between Hillary and Huma [Abedin] or a BlackBerry PIN message.” The case agent 

stated that, in the window of items visible to him, he saw a “couple” of emails 

between Clinton and Abedin and at least one BlackBerry PIN message between 

Clinton and Abedin. The case agent told us that the BlackBerry PIN message in 

particular caught his attention because his “general understanding” was that those 

messages reside on a “BlackBerry proprietary-like backbone” and would not “leave 

much of a trace because it doesn’t go through any external servers other than a 

BlackBerry server.” When asked specifically how he identified this BlackBerry PIN 

message as being between Clinton and Abedin, the case agent stated that “it was 

obvious” from the domains, which were “something like HR15@BBM-dotsomething, and HAbedin@BBM-dot.” With respect to the emails he observed, the 

case agent said he recalled seeing emails associated with “about seven domains,” 

such as yahoo.com, state.gov, clintonfoundation.org, clintonemail, and 

hillaryclinton.com.

The case agent told us that he asked another agent to take a quick look at 

his computer to “make sure, am I, am I seeing what I think I’m seeing?” The other 

agent told the OIG that he “vividly” recalled what he described as the “oh-shit

moment” when the case agent said that Hillary Clinton’s emails were on the laptop. 

The other agent stated that, while he did not view the content, he believed that he 

did see the domain portion of the emails and remembered thinking at the time that 

it was the same domain that had been associated with Clinton in news coverage. 

The other agent told the OIG that he and the case agent agreed that this

information needed “to get reported up the chain” immediately.

C. Reporting of Clinton-Related Emails to FBI NYO Supervisors

The case agent told us that, after speaking with the other agent, he 

immediately told his Supervisory Special Agent (SSA) what he had observed, 

including that he had seen “private BlackBerry messages, private messages 

between Hillary and Huma to which Anthony Weiner was not a party.” The NYO 

SSA corroborated this account, stating that the case agent came into his office on 

September 27 and told him “he had discovered emails that could be tied to Hillary 

 

165

 No electronic record exists of the case agent’s initial review of the Weiner laptop. The 

case agent told us that at some point in mid-October 2016 the NYO ASAC instructed the case agent to 

wipe his work station. The case agent explained that the ASAC was concerned about the presence of 

potentially classified information on the case agent’s work station, which was not authorized to 

process classified information. The case agent told us that he followed the ASAC’s instructions, but 

that this request concerned him because the audit trail of his initial processing of the laptop would no 

longer be available. The case agent clarified that none of the evidence on the Weiner laptop was 

impacted by this, explaining that the FBI retained the Weiner laptop and only the image that had been 

copied onto his work station was deleted. The ASAC recalled that the case agent “worked through the 

security department to address the concern” of classified information on an unclassified system. He 

told us that he did not recall how the issue was resolved.
275

Clinton.” The SSA told us that he specifically recalled the case agent mentioning 

domain names associated with Hillary Clinton, the Clinton Foundation, and possibly 

Clinton for President. The SSA also recalled the case agent telling him “early on” 

that there were “hundreds of thousands” of emails. The case agent and SSA told 

us that because the search warrant for the laptop was limited to child exploitation

offenses, they agreed during this meeting that the emails were not covered under 

the search warrant and the case agent should not review those emails. The SSA

and the case agent met with their Assistant Special Agent in Charge (ASAC) to 

make him aware of the emails. The ASAC told us that the SSA and case agent 

initially briefed him on September 28. The ASAC stated they reported that the 

laptop was still processing, but there were approximately 141,000 emails of interest 

at that moment. The ASAC further stated that the case agent and SSA identified 

seven different domains of interest. The ASAC’s notes from the morning of 

September 28 corroborated this account. The notes included references to

“imaging, processing 1⁄2 way through,” “141k emails,” and seven domains, which 

were @clinton.com/gov, @state.gov, @clintonemail.com, @AW.com, 

@clintonfoundation.org, @presidentclinton.com, and @hillaryclinton.com.

The ASAC told us that he immediately instructed the case agent and SSA to 

stay focused on the Weiner investigation and to “stay completely out of” the Clinton 

email case. The SSA and case agent stated that the ASAC told them to stop 

reviewing the emails pending further guidance from FBI Headquarters. The ASAC 

told us that he briefed the information that he received from the SSA and case 

agent to his immediate supervisor, the Acting SAC (A/SAC), that day. The A/SAC 

confirmed this account, stating that he was “told there were emails here related to 

Hillary Clinton and others.”

According to both the A/SAC and NYO Assistant Director in Charge (ADIC) 

William Sweeney, the A/SAC relayed this information to Sweeney on September 28 

immediately after the FBI’s weekly 3:00 p.m. secure video teleconference (SVTC) 

for SACs, which is a SVTC held by the Director or, in his absence, the Deputy 

Director or another FBI senior executive. The weekly SAC SVTC is followed by 

another SVTC for FBI Assistant Directors (AD). Sweeney explained:

Between those two SVTCs, so there’s a pause so all the other offices 

bail out, and then they basically reset. Between that pause I think is 

the first time I hear about Clinton domain names on this thing. And 

that comes from [the A/SAC].... And so he tells me about this laptop. 

I don’t know if he described [it as] a laptop, but I think he did. Hey, 

and there’s a whole bunch of Clinton email domain names. I don’t 

know if he described it as domain names, but, and I wrote them on an 

index card—which I can’t find for the life of me right now. But it was 

like Clinton.com, state-dot—like, it was clearly it was her stuff. And 

that they had about 141,000.

The A/SAC told us that he and Sweeney both had concerns about not exceeding the 

scope of the Weiner search warrant. The A/SAC’s notes from that meeting stated, 

“400 PM—Spoke w/Sweeney. Do not do anything with the emails [illegible] move 

forward with other agents.”
276

D. Reporting of Clinton-Related Emails to SDNY

On September 27, the case agent also began advising the two SDNY

Assistant United States Attorneys (AUSA) assigned to the Weiner case about what 

he was finding on the Weiner laptop. Many of the case agent’s communications 

with SDNY were captured in a timeline created by the two AUSAs detailing key 

events in the Weiner investigation in September and October 2016. This timeline 

was created in late October and AUSA 2 told us that she and AUSA 1 created the 

timeline because they thought that “at some point somebody is going to want to 

know sort of what was happening when, and [it’s] better to piece this together 

now.” That timeline showed, and the prosecutors confirmed during interviews, that 

the case agent first told the prosecutors about the presence of Abedin’s emails on 

the Weiner laptop on September 27. Similar communication was also occurring 

between higher levels of NYO and SDNY. On September 27 at 3:30 p.m., the 

A/SAC and SDNY Deputy U.S. Attorney Joon Kim spoke by telephone. The A/SAC’s 

notes stated, “Spoke with Joon Kim who advised we need to be very careful looking 

at that server because it is apparently a shared computer with Huma. SDNY will 

provide protocol and guidance.” Similarly, Kim emailed prosecutors and 

supervisors at SDNY after the call, “I just got a call from [the A/SAC] about what to 

do with his computer in light of the facts that there are lots of emails, etc. including 

what appear to be [Abedin’s]. We need to come up with a clear protocol.”

The AUSAs provided written guidance to the case agent about how to handle 

review of the laptop. In a September 28 email to the case agent and the SSA, 

AUSA 1 advised that the case agent should review “only evidence of crimes related 

to the sexual exploitation of children, enticement, and obscenity” and instructed the 

case agent “that all emails and other communications between Anthony Weiner and 

Huma Abedin (even if there are other parties to the communication) should be 

sequestered and not reviewed at this time.” The case agent agreed and responded 

that the “[o]nly emails I will review are those to/from Weiner accounts to which 

[Huma Abedin] is not party.”

Later in the day on September 28, the AUSA-created timeline noted:

[The case agent] informed AUSAs that the header info previously 

described seen in plain view search revealed numerous emails 

between Abedin and HRC (on which Weiner was not a party) using 

potentially sensitive email addresses, which indicated that Abedin had 

used the laptop. [The case agent] said that his chain of command was 

aware of the information. AUSAs informed supervisors of these facts. 

Later that day, SDNY USAO and FBI NY leadership discussed situation 

and agreed that Rule 41 prevented any search in this case beyond 

scope of warrant, and that any emails outside that scope should be 

segregated and not reviewed in this case. Same day, FBI NY ASAC [] 

asked AUSA to forward him the guidance for conducting the search 

that the AUSA had sent to [the case agent] because FBI counsel was 

interested in issuing guidance for review and seeing what we had 

already said on this point.
277

This timeline entry was consistent with testimony by the case agent and AUSAs 

during their interviews with the OIG.

II. Reporting of Clinton-Related Emails to FBI Headquarters

A. AD Secure Video Teleconference on September 28

As noted above, ADIC Sweeney and the A/SAC both told us that, just before 

the start of the weekly AD SVTC on September 28, the A/SAC briefed Sweeney 

about the discovery of emails on the Weiner laptop that were potentially relevant to 

the Clinton email investigation. The AD SVTC typically includes the FBI Director, 

the Deputy Director (DD), the Associate Deputy Director (ADD), the General 

Counsel, all Executive Assistant Directors (EAD), all ADs, and the ADICs of the New 

York, Los Angeles, and Washington Field Offices. However, on September 28, 

Comey testified in front of the House Judiciary Committee until approximately 1 

p.m. Comey and others told us that Comey was not present for the SVTC, and the 

SVTC was also not included on his calendar for September 28. Instead, the SVTC 

was chaired by then DD McCabe, which McCabe told us would be the typical 

practice in the absence of the Director. McCabe’s calendar for September 28 

included time for the weekly SVTC at 3 p.m. The FBI was unable to provide the 

OIG with a roster of attendees for the September 28 SVTC. However, based upon 

the leadership structure of the FBI at the time, there would have been 

approximately 39 FBI executives on the SVTC, including the DD, the ADD, 6 EADs, 

28 ADs, and 3 ADICs. Any executive on leave or travel would have typically been 

replaced by a subordinate.

Sweeney stated that, during the September 28 AD SVTC, he reported that 

NYO agents involved in the Weiner investigation had discovered 141,000 emails on 

Weiner’s laptop that were potentially relevant to the Clinton email investigation. 

Paul Abbate, then the ADIC for the Washington Field Office, recalled Sweeney 

stating that NYO had discovered “a large volume of emails that might be relevant to 

the Clinton email matter” on a computer in the Weiner investigation. Abbate told 

us that he believed Sweeney also provided specific numbers and added that 

Sweeney “very much emphasized the significance of what he thought they had 

there.” Abbate described the moment as like “dropping a bomb in the middle of the 

meeting” and stated that “everybody realized the significance of this, like, potential 

trove of information.”

Sweeney told the OIG that McCabe responded to his briefing by stating, 

“Hey, I’m going to Quantico. I’ll call you en route.” Abbate also recalled someone, 

possibly McCabe, telling Sweeney that they would “talk offline afterwards.” 

McCabe’s Outlook calendar for September 28 showed that he was scheduled to be 

at Quantico at 6:00 p.m. that evening.

McCabe told us that he did not remember Sweeney briefing the Weiner 

laptop issue on a SVTC, although he said it was possible that Sweeney had done so. 

McCabe explained that the reports by the ADICs on the SVTC are usually “like 10 

seconds.” We showed McCabe his notes from September 28, which contained the 
278

following entry: “NY - ... Weiner – atty took data off cloud – 2007 emails.” McCabe 

told us the notes did not refresh his recollection but agreed that they “would be a 

pretty good indication” that he was made aware of the issue.

Other witnesses also provided recollections of this briefing. 

Counterintelligence Division AD Priestap (one of the 39 FBI executives who 

regularly participated in the weekly AD SVTC) told us he vaguely recalled Sweeney 

mentioning the discovery of emails on the Weiner laptop that were potentially 

relevant to the Midyear investigation in a forum similar to the AD SVTC. The 

Human Resources Division AD told us that he recalled Sweeney mentioning “emails 

relevant to the Clinton investigation” that had been discovered on a laptop 

associated with Anthony Weiner. He added, “I remember Bill saying like hey, we 

think there’s some stuff on here you guys may not have seen.”

Comey, who was not present for the SVTC, stated that he was unaware that 

Sweeney had reported the discovery of Clinton emails on the Weiner laptop during 

the September 28 AD SVTC. When asked if this was information he would have 

expected to have been told, he stated, “Yeah, I would think so,” adding that he was 

surprised that he had not been informed.

B. McCabe Post-SVTC Phone Call and Meeting on September 28

1. Phone Call with Sweeney

Sweeney told us that he had not heard back from McCabe after the 

September 28 SVTC, so he called McCabe on his drive home that evening. Phone 

records show two calls from Sweeney to McCabe on September 28. The first 

occurred at 4:51 p.m. and lasted for 9 minutes and 50 seconds, and the second

occurred at 5:03 p.m. and lasted for 56 seconds. In addition, Sweeney’s Outlook 

calendar for that day contained the following entry at 5:00 p.m.: “Telcal w/DD re: 

Weiner invest & Garner.” Sweeney stated that NYO personnel had continued 

processing the laptop in the time since the initial notification on the AD SVTC and 

he had been informed there were now 347,000 emails on the laptop. Sweeney told 

us that he informed McCabe that there were now 347,000 emails.

McCabe, who told us that his earliest recollection of learning about the 

Weiner laptop was in a telephone call with Sweeney in late September or early 

October, recalled Sweeney informing him that NYO had seized a laptop from 

Anthony Weiner “and they thought there would be Clinton stuff in it.” When asked 

what Sweeney specifically told him, McCabe stated, “I just remember him saying 

we think, you know, like, we’ve got this laptop and we opened it up, and it looks 

like there’s stuff on there from Clinton, and, you know. Oh, my gosh, what do we 

do kind of thing.” McCabe also recalled that Sweeney made “very clear” that “it 

was a large volume” of emails. McCabe stated that he understood “large volume” 

to mean “like many thousands of emails.” McCabe recalled telling Sweeney that 

Counterintelligence Division personnel and NYO personnel should connect “[t]o 

figure out, like, what do we have or what do we do with this?”
279

McCabe stated that shortly after this call he contacted Priestap and said, 

“[Y]ou need to get somebody up to New York right away to take a look at what they 

have because it might be Clinton emails.” Priestap told us that he did not recall

either this conversation or McCabe telling him to send a team to New York to 

examine the Weiner laptop. As described below, Priestap’s emails on the evening 

of September 28 reflect that he spoke with Sweeney and then instructed Strzok to 

have someone from his team contact NYO regarding the information.

2. Meeting with Strzok and Priestap

Our review of Strzok’s text messages revealed that McCabe discussed the 

Weiner laptop with Strzok and Priestap on September 28. Later that same day,

Strzok and Page discussed the meeting in a series of text messages. Their

exchange is quoted below. The sender of each text message is identified after the 

timestamp.

7:25 p.m., Strzok: “Got called up to Andy’s earlier...hundreds of 

thousands of emails turned over by Weiner’s atty to sdny, includes a 

ton of material from spouse. Sending team up tomorrow to 

review...this will never end....”

7:27 p.m., Page: “Turned over to them why?”

7:28 p.m., Strzok: “Apparently one of his recent texting partners may 

not have been 18...don’t have the details yet”

7:29 p.m., Page: “Yes, reported 15 in the news.”

7:31 p.m., Strzok: “And funny. Bill [Priestap] and I were waiting 

outside his door. He was down with the director....”

7:51 p.m., Strzok: “So I kinda want to go up to NY tomorrw [sic], 

coordinate this, take a leisurely Acela back Friday....”

Strzok stated that he was sure that “got called up to Andy’s” referred to 

McCabe’s office, but he had no recollection of that meeting. Strzok could not recall 

who first told him about the Weiner laptop, only recalling that someone told him 

that some “Clinton-type emails” had been discovered in New York. Strzok’s notes 

from September 28 stated, “NY invest Weiner sexting 15 y’o. Weiner atty produces 

copy of everything Weiner has on iCloud to SDNY. Significant email from Huma 

[NFI – their email vs. her independent email]? Relevance to MYE, Clinton 

Foundation? MYE go review.” Strzok stated that he initially planned to send a 

team to New York to review the emails, but that a conference call with NYO was 

scheduled instead. (This conference call, which occurred on September 29, is 

discussed below.)

Strzok told us that he did not consider the new information all that 

noteworthy because “throughout the summer [we had] retired Foreign Service 

officers...any number of people coming and saying, hey, I’ve got, you know, a 

handful of emails related to, you know, the Secretary or Cheryl Mills or something. 

And so we would run if they, we thought they had potential merit. We would track 

them down.” Strzok conceded that this lead was more credible since it came from 
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an FBI field office and involved information obtained from Abedin’s husband. He 

added, though, “[T]here is no inkling, there is not a shadow of the, you know, 

what’s going to unfold a month later.”

Page said she believed the September 28 text message from Strzok was the 

first time she heard about the emails on the Weiner laptop and told us that she 

knew little information about it. Page explained that she was “not really that 

involved” in “most of the October stuff.” Page stated her lack of involvement was 

due in part to the FBI’s Russia investigation. Page explained that the many of the 

supervisors on the Midyear team were also assigned to the Russia investigation and 

they were “super-occupied” with the Russia investigation during October. Page 

stated that most of her information about the Weiner laptop came from either 

Strzok or FBI Attorney 1.

We showed McCabe these text messages and he said he did not recall talking 

to Strzok about the Weiner laptop on September 28. McCabe also did not recall 

Sweeney describing the quantity of emails numerically, other than to say there 

were a “large volume.” When asked about Strzok’s text message that he was 

“sending [a] team up tomorrow to review,” McCabe noted that the text message 

would be consistent with what McCabe told Priestap. McCabe told us that the issue 

of the Weiner laptop “kind of falls off my radar” at this point, but when he 

reengaged with the team at a later point (he could not recall the amount of time 

that had elapsed), he discovered, “that [the team] did go up, but there [was] a 

problem, a legal, you know, an access problem because what they want to look for 

[was] not covered within the warrant, and yada, yada, yada.” McCabe could not 

recall who told him this information about the trip to New York, but speculated it 

was Priestap.

C. Comey and McCabe Communications After AD SVTC on 

September 28

Phone records show two phone calls between McCabe and Comey on the 

evening of September 28. The first call was from McCabe to Comey at 7:34 p.m. 

for 1 minute and 31 seconds. The second call was from Comey to McCabe at 8:36 

p.m. for 8 minutes and 13 seconds. McCabe told us he could not recall the content 

of either phone call. When asked specifically if they discussed the issue of the 

Clinton emails on the Weiner laptop, McCabe said he did not recall and noted that 

he would talk with Comey at the end of the day on an almost daily basis. 

Additionally, as noted above, Strzok’s text message on September 28 reflected

that, while Strzok was waiting outside McCabe’s office to meet with him regarding 

the Weiner laptop emails, McCabe “was down with the director.” McCabe told us 

that he did not recall that and noted that the text message did not “seem 

consistent” with McCabe’s calendar, which showed that he was at Quantico the 

evening of September 28.

McCabe said he recalled talking to Comey about the Weiner laptop issue 

“right around the time [McCabe] found out about it.” McCabe described it as a “flyby,” where the Weiner laptop was “like one in a list of things that we discussed.” 

McCabe continued, “[A]nd it would have been like, hey, Bill Sweeney called. This is 
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what he has. I’m going to have [the Counterintelligence Division] take a look at it. 

I’ll let you know.” McCabe stated that he would have told Comey about the 

importance of sending a team up the next day in order “to get eyes on this thing 

and figure out what we have.” McCabe did not recall Comey “weighing in on it at 

all.” Given the scrutiny of the Clinton email server investigation, we asked McCabe 

why he believed Comey did not have a stronger reaction to this information and 

whether this was considered a “big deal.” McCabe responded:

Well, it was a big deal to me. I can’t tell you what he was thinking 

when I told him about it. But I, I represented to him that we were 

taking steps to figure out what we had and would come back with 

some sort of an assessment as to what we need to do. So, I mean, 

there’s, I’m not sure that there’s anything else that he would have said 

to do.

Comey told the OIG that he recalled first learning of the presence of the 

additional emails on the Weiner laptop at some point in early October 2016,

although Comey said it was possible this could have occurred in late September. 

Comey explained:

I was aware sometime in the first week or two of October that there 

was a laptop that a criminal squad had seized from Anthony Weiner in 

New York and someone said to me that—and I’m thinking it might 

have been Andrew McCabe, but someone said to me kind of in 

passing, they’re trying to figure out whether it has any connection to 

the Midyear investigation. And the reason that’s so vague in my head 

is I think—I never imagined that there might be something on a guy 

named Anthony Weiner’s computer that might connect to the Hillary 

Clinton email investigation, so I kind of just put it out of my mind.

Comey described himself as having a “reasonably good memory” and speculated, 

“[T]he reason I didn’t index it is, it was a passing thing that almost seemed like he 

might be kidding, and so I don’t think I indexed it hard. And I think it was the 

beginning of October and then I think it disappears from my memory. And then I 

remember for certain when Andy emails me, I think it’s the 27th [of October] 

saying, the Midyear team needs to meet with you urgently or right away or 

something.”

We asked Comey to explain why this initial information about the Weiner 

laptop did not “index” with him given that Abedin was closely connected to Clinton. 

Comey stated, “I don’t know that I knew that [Weiner] was married to Huma 

Abedin at the time.” Comey told us that even if he had had known that Abedin was 

married to Weiner “it wouldn’t have been [at the] top of [my] mind.” Comey also 

stated that the manner in which he was informed of this information affected his 

reaction. Comey told us that he was “quite confident” that he was not told this 

information in a “sit down” briefing in his office. Instead, Comey thought it most 

likely that McCabe was “passing the office” and said, “hey Boss, I just want you to 

know that the criminal squad in New York has got Anthony Weiner[‘s] laptop and I 

think it may have some connect to Midyear.” Comey said he knew that “if it’s 
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important, Andy [McCabe] will make sure that I focus on it.” Comey said that it 

“could be” that whoever told him about the Weiner laptop “understated the 

significance of the information.” He said, “The notion that I knew something 

important was on that laptop and did what—concealed or hid it or something?—is 

crazy.”

We asked Comey if McCabe told him that Sweeney had called McCabe about 

the emails on the Weiner laptop. Comey responded, “No.” We also showed Comey 

the Strzok text messages and asked him if he recalled being briefed in person by 

McCabe on September 28. Comey said he did not recall that occurring. Comey 

stated that he would have expected to be briefed if NYO had discovered a large 

volume of Hillary Clinton’s emails. However, if NYO had only discovered a large 

volume of Abedin’s emails, he was not sure that information would be briefed to 

him since there would not necessarily be a connection to Midyear. He 

acknowledged, however, that it “would be significant” if the laptop contained 

Abedin’s emails on a clintonemail.com domain.

We asked Comey, “[I]f [McCabe] had been told on September 28th that 

there were...at one point 141,000 and at another 347,000 emails related to the 

Clinton investigation and didn’t tell you, would you be concerned by that?” Comey 

responded, “Sure, I’d want to know why, what the thinking was.” Since Comey told 

us he did not recall being told this information, we asked for his reaction. Comey 

stated:

I’m mystified. First of all doubting, worried that I’m crazy is my first 

instinct, but I don’t think I’m crazy. You said and I think I would 

remember if I were being told, so the question is, why wouldn’t you 

tell me. I always try and keep an open mind and maybe some 

explanation and one I can’t see, but I’d want to know, why, what’s the 

thinking. Why didn’t the, given the Director is closely associated with 

this, why, what’s the reasoning. Maybe there is one I can’t see, but I 

certainly would want to ask.

As detailed in the next section, Sweeney told us he also called EAD Coleman, 

EAD Steinbach, and AD Priestap on September 28 regarding the Weiner laptop 

emails. We asked Comey if any of those officials or anyone else informed him at 

this time (late September) of Sweeney’s report that Midyear-related information 

had been discovered on the Weiner laptop. Comey responded, “Unless I’m having 

a stroke, no. I don’t remember any of that.” We also asked Comey if he would 

have expected someone on his leadership team other than McCabe to bring this to 

his attention. Comey stated that he would “not necessarily” have expected this if 

“they were assuming that the Deputy Director is briefing the Director.” He 

described the FBI as “a big chain of command place.”

D. Sweeney Calls Other FBI Executives on September 28

In addition to the phone call with McCabe detailed above, Sweeney told us 

that on September 28 he also called Criminal EAD Randy Coleman, National 

Security Branch EAD Mike Steinbach, and Counterintelligence AD Bill Priestap with 
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updates on the Weiner laptop. Sweeney stated that he told all three essentially the 

same thing that he told McCabe, that NYO had continued processing the laptop and 

the number of emails was now at 347,000.

1. Criminal EAD Coleman

Sweeney’s phone records show several calls with EAD Coleman during the 

afternoon of September 28. Coleman said Sweeney told him that NYO had 

reviewed a computer belonging to Anthony Weiner and had found thousands of 

“emails that pertain to Clinton...[during] her time as the Secretary of State and to 

Huma that were connected with the Midyear investigation.” Coleman stated that he 

told Sweeney to make sure “to let management and headquarters know” about this 

development.

Coleman drafted a “Memorandum for Record” on November 7, 2016, 

documenting his involvement in the discovery of Clinton emails on the Weiner 

laptop. Coleman’s memorandum stated, in part:

On 09/28/2016, EAD Randall Coleman received for [sic] call from AD 

Bill Sweeney indicating team of Agents investigating Anthony Weiner 

sexting case had discovered emails relevant to Clinton email 

investigation. AD Sweeney advised team had halted further review 

and would be requesting guidance from FBIHQ. EAD Coleman agreed 

and advised he would notify FBI General Counsel James Baker and DD 

Andrew McCabe. The call was concluded. On 09/28/2016, 

immediately after call with AD Sweeney, Coleman telephonically 

contacted DD McCabe at his office number to advise him of the 

circumstance described by AD Sweeney. DD McCabe advised he had 

already been made aware of matter.

Coleman told us that he called McCabe immediately because he “considered this 

important.” Coleman stated that McCabe’s secretary answered his call and he told 

the secretary to get McCabe on the phone because Coleman “need[ed] to talk to 

him.” Coleman described his conversation with McCabe as “very short.” Coleman 

stated, “I said, hey listen, I just got called by Sweeney. Here is what he told me. 

And I think Andy is like, yeah, I already know. I got it.” After his conversation with 

McCabe, Coleman told us, “[T]here was no doubt in my mind when we finished that 

conversation that [McCabe] understood the, the gravity of what the find was.”

McCabe told us he did not recall receiving a phone call from Coleman. He 

told us Coleman’s memorandum did not refresh his memory, but that he had no 

reason to doubt Coleman’s account.

2. National Security EAD Steinbach

Steinbach stated that he believed the discovery of Midyear-related material 

on the Weiner laptop was first discussed at a meeting that he was unable to attend. 

Steinbach recalled receiving a phone call from Sweeney “just to give me a heads up 

saying, hey, you weren’t here but just FYI we may have found something.” 
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Steinbach told us this conversation may have occurred in late September. 

Steinbach said he could not recall specifics and stated that he did not think NYO

“knew exactly what they had” at the time, but added that he received “some 

indication that there may be some Clinton domain emails.”

3. Counterintelligence AD Priestap

On September 28, at 7:04 p.m., Priestap sent an email to Strzok, with the 

Lead Analyst and the NYO A/SAC copied, that stated, “I spoke to Sweeney. Our 

agent and analyst should call [the NYO A/SAC].... Sweeney said [the A/SAC] will 

get them access to what they need.” At 9:26 p.m. on September 28, Sweeney sent 

the following email to Priestap, “Bill, The NYO POC for the sensitive email issue is 

A/SAC [] (cc’d). He can coordinate for your team. Have a quiet night. – Bill.”

Priestap told us he could not recall if he heard about the discovery of 

Midyear-related material on the Weiner laptop during the September 28 AD SVTC. 

However, Priestap stated that he thought Sweeney “mentioned something to that 

effect in one of those” forums. Priestap told us that believed that he first learned of 

this issue in a phone call with Sweeney. Priestap described what information he 

was provided, stating:

When I first was told about it, if I’m recalling correctly, it was 

something to the effect of it’s Anthony Weiner’s laptop or computer....

His wife’s emails are on it. And his wife has email communication with 

the former Secretary, or probably then Secretary. And that the time 

frame overlaps with some of the time frame we were interested in. In 

other words, it was explained like this is in...the Midyear lane. I don’t 

remember getting into any volume then, although...one of my first 

questions, if not the first question is, I would ask is what’s the volume.

Priestap told us that he “would have certainly talked” to his immediate 

supervisor, EAD Steinbach, about this information because “the bottom line is this 

was explosive.” Priestap stated that he did not recall talking to McCabe directly, 

although he stated that he may have if Steinbach was out of the office that day. 

Priestap stated that either he or Steinbach would have advised McCabe of 

“something of this magnitude” very quickly. Priestap described the information he 

received from Sweeney about the Weiner laptop as “hot information” and stated, 

“[I]t’s the type of thing where I don’t need an appointment. I walk upstairs and 

just, I make sure they know that before they go home.”

III. Initial Response of FBI Headquarters to Discovery of Midyear-Related 

Information on the Weiner Laptop

A. Phone Call between Sweeney and Priestap on September 29

On September 29 at 6:09 a.m., Sweeney sent the following email to 

Priestap, “Can you give me a call on the ride in? Not clear under what authorities 

we have. Thx.” Sweeney told us that he conveyed to Priestap in the phone call 

that NYO did not have the legal authority to look at the Midyear-related material on 
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the Weiner laptop. Priestap told us he could not recall this specific conversation, 

but noted that it would be standard practice to examine what legal authority was 

needed. At 8:12 a.m., the A/SAC forwarded to Sweeney the 7:04 p.m. email from 

Priestap the night before. The A/SAC stated, “FYI There is no way that they can 

just look at the emails. I even went over the guidance from SDNY. Not happening 

unless they have some authority I am in the dark on. Let me known [sic] if you 

want to discuss.”

At 9:02 a.m. on September 29, Sweeney forwarded Priestap the September 

28 email from SDNY AUSA 1 (detailed above) advising the Weiner case agent on 

the limited scope of the Weiner search warrant and instructing him not to review 

any communication to which Abedin was a party. Priestap forwarded the email to 

FBI Attorney 1 and commented, “Per our conversation.” Priestap described FBI 

Attorney 1 as someone he typically relies on when legal issues arise. FBI Attorney

1 confirmed that Priestap told her about the issue with the Weiner laptop and asked 

her “to follow up on it.” We asked FBI Attorney 1 what she understood this to 

mean. FBI Attorney 1 told us that she believed there was a question of whether 

the Midyear team should go to New York and review the Weiner laptop. FBI 

Attorney 1 continued, “And, you know, we had over the course of the investigation, 

we would have various means of people saying, we have all of Clinton’s emails. 

And so this was just to follow up on that. This obviously is more, a more solid lead 

than some of the other things we had, but it was just to find out really what were 

the details of this. Should we send a team up there.”

B. Conference Call between NYO and Midyear Personnel on 

September 29

Early on September 29, the Midyear SSA called the NYO A/SAC supervising 

the Weiner investigation and, according to the A/SAC, informed the A/SAC that he 

was the supervisor of the Clinton email server investigation. The A/SAC and SSA 

both told us that they had a brief discussion about what NYO had found on the 

Weiner laptop. The A/SAC stated, “I’m sure I told him exactly what I’d been 

representing to others, that, look, there are a lot of emails. You may want to get a 

search warrant. We can’t, we’re not looking at anything. That’s the normal stuff I 

would have said.” The SSA stated that the A/SAC told him, “[W]e’ve got some 

Clinton emails here, explained what it was. And they weren’t sure what to do with 

it in that it was outside the scope of what they were working on.” The SSA stated 

that the A/SAC explained that NYO wanted to notify FBI Headquarters about what 

they had found and were also seeking “guidance on how to deal with this.”

The A/SAC and SSA scheduled a conference call, also known as a Lync call,

between NYO and Midyear personnel at 11:30 a.m. that morning. Nine people 

participated in this conference call. This included the NYO A/SAC, ASAC, and SSA 

supervising the Weiner investigation; a NYO SSA assigned to public corruption 

matters; and five members of the FBI Midyear team: the SSA, FBI Attorney 1, 

Agent 2, and two analysts. FBI Attorney 1 told us that she participated in the call 

at the request of Priestap. The Midyear SSA told us that he gave Strzok a “heads 

up” that the SSA was going to have a conference call with NYO about the Weiner

laptop.
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1. Testimony and Contemporaneous Notes from Call 

Participants

We interviewed all nine participants to the September 29 call and reviewed 

the contemporaneous notes taken by eight of them (one participant, the NYO SSA 

on the Weiner investigation, took no notes).

The NYO participants told us that they provided the Midyear team with an 

overview of what they had found on the Weiner laptop. This included the fact that 

the laptop contained “hundreds of thousands” of emails potentially relevant to the 

Midyear investigation. Both the ASAC and public corruption SSA recalled the 

number 141,000 being provided. Each of the NYO participants said that the 

connection to both Hillary Clinton and the Clinton email server investigation was 

made clear on the call. The ASAC and public corruption SSA told us that NYO 

reported that there were emails addresses that appeared to be “directly tied” to 

Abedin and Clinton. NYO personnel stated that they informed the Midyear team 

that the laptop was “still downloading.” The public corruption SSA’s notes from the 

call also included the notation “2007 present,” which he explained was the timeline 

for “the span of information that they had seen to date on the laptop.” Each of the 

NYO participants told us that the limited nature of Weiner search warrant was 

discussed. The ASAC stated, “I know that we said to them that the warrant didn’t 

authorize us to look at these particular emails.” He continued, “And [the Midyear 

personnel] understood that. There was no pushback from them on that.” NYO 

personnel told us that they were given no tasks to complete after the call. The 

ASAC explained, “I had the feeling like the ball is down in somebody else’s court. 

Because...we were done.”

The Midyear SSA stated that he “knew right off the bat” that NYO had emails 

from Clinton’s server and that they “appeared to be government in nature.” As for 

volume, the Midyear SSA recalled that “it wasn’t a one-off” and NYO had seen 

either “hundreds or thousands” of emails. Either way, the SSA described it as a 

“significant number.” The Midyear SSA also told us that “content-wise” NYO “had 

only seen a couple” of emails because “they couldn’t review content.” He said he 

understood that NYO had seen more of Abedin’s emails, but they had seen Clinton 

emails as well, including emails from the @clintonemail.com domain. The Midyear 

SSA told us that he asked NYO personnel why they thought these were Clinton’s 

emails and NYO responded, “Well, because they’re her initials”, indicating that they 

had seen something beyond the domain name. The Midyear SSA stated that 

Midyear personnel were informed that the Weiner search warrant had a very limited 

scope. He stated that Midyear personnel knew that they “were going to need to get 

a warrant to review this.” We asked the Midyear SSA if NYO had mentioned seeing

BlackBerry domain emails on the Weiner laptop. The SSA responded, “Yeah.... 

[T]hey had looked from the forensic side, that they had determined that it 

appeared to be like an entire” file. The Midyear SSA described the conclusion of the 

call as follows:

Well, from my standpoint, I said we were going to, we were going to 

address whether we had enough for a warrant. And that we would run 

this up the chain on our side. And...they agreed especially that they 
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would go back to SDNY and see what the exact parameters of what 

they could and couldn’t do, because they were not going to cross a line 

that would compromise their case.

Agent 2, Analyst 1, and Analyst 2 told us that NYO reported a large volume 

of emails on the laptop and noted that they were still processing the laptop. Notes 

for each of these three referenced “350k items,” with Agent 2’s notes also stating, 

“350k items in messages tab.” All three told us that NYO reported the presence of 

emails related to Clinton. Analyst 1 stated that NYO reported that they had seen 

metadata showing “what they were characterizing as like [Hillary Clinton’s] email 

addresses.” Analyst 1 stated that the Midyear team was trying to determine if 

these were Clinton’s or were from the clintonemail.com domain. Analyst 2 stated 

that she had only a vague recollection of the call, but told us that she recalled that 

NYO had seen a large volume of emails between Clinton and Abedin. Agent 2

stated that NYO reported seeing emails from the clintonemail.com domain. Analyst 

1’s notes referenced the following domains: state.gov, clinton.com, 

hillary@clinton.com, clintonfoundation, and clintonemail.com. Analyst 2’s notes 

included a reference to “2007 dates on PC.” Each of the three also said that NYO 

emphasized the limited nature of the Weiner search warrant and the fact that the 

Midyear team was “going to need to get a warrant to review this.” Agent 2’s notes 

included the following references: “SDNY advised to avoid emails” and “not looked 

@ any content.” Analyst 2’s notes included the following references: “SDNY—said 

put them aside” and “Huma has not waived marrital [sic] priv.” Analyst 2 described 

the limited nature of the Weiner search warrant as an “overarching theme” of the 

call.

FBI Attorney 1 provided a slightly different account of the call. She stated 

that NYO said on the call that it was still processing the evidence and they were not 

sure “whether or not it had anything to do with” Midyear. FBI Attorney 1 

explained:

We didn’t know if it was the right timeframe. So, you know, Huma we 

knew, Huma had...worked for [Clinton] for a long time. So we weren’t 

sure of exactly, one, what, how much of the information on this was 

Huma’s versus Weiner’s. Because we thought it was his laptop. And 

then, two, whether it would have been relevant to the right timeframe. 

We were looking for Clinton’s emails, not Huma’s emails. We also 

knew Huma had a clintonemail address, so she could have been using 

that for her own personal activities, so we just didn’t know the full 

extent of what was on there.

When asked about volume, FBI Attorney 1 told us that she “knew that it was a 

large amount of data” and FBI Attorney 1’s notes from the call referenced “over 

350k items.” However, FBI Attorney 1 added:

We always got things that said the data was larger than, it always 

ended up getting narrowed down after we got more, got it processed 

more. It doesn’t change for me though, even though the 350k that’s 

what we think. Like, there was also all the talk about it hadn’t been 
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fully processed. So, to me, that number was just sort of a preliminary 

number.

FBI Attorney 1 stated that NYO said it had seen either Clinton’s emails or emails 

from the clintonemail.com domain. FBI Attorney 1 told us that NYO relayed that 

“SDNY was very concerned about staying within the scope of their warrant.” FBI 

Attorney 1 stated that the Midyear team told NYO, “well when you get further 

clarity about what this laptop is, get back to us and let us know, and we’ll try to 

figure out what to do from there.” She told us that Midyear personnel specifically 

requested that NYO look for emails related to the clintonemail.com domain. When 

asked whether NYO was supposed to create an inventory or list for Midyear, FBI 

Attorney 1 stated that she “thought we talked about [the Weiner case agent] not 

being able to do that. Because of the instructions. I mean, because of how the 

warrant was drafted.” FBI Attorney 1’s notes were entitled “NYO Lync – MYE 

Emails” and included references to “image – not complete b/c so large,” “SDNY told 

them to avoid emails,” “over 350k items – including emails + IMs different 

addresses including state.gov Clinton.com,” “not sure if they saw 

clintonemail.com,” “WFO interest - @clintonemail.com @state.gov,” and “2009-

2013 time frame / early next week.”

2. Post-Call NYO Communications

Shortly after the call concluded, at 11:52 a.m., the NYO ASAC forwarded to

the Midyear SSA and FBI Attorney 1 the September 28 email from AUSA 1 to the 

Weiner case agent (detailed above) outlining the limited scope of the Weiner search 

warrant and providing instructions for the case agent’s search of the laptop. The 

ASAC told us that he forwarded this email to make sure “they understood the 

directives that we had from [SDNY] in terms of limitations and really kind of under 

what circumstances we would be able to look at anything that was attached to an 

email.” Witnesses in NYO and SDNY told us that the case agent was told not to 

affirmatively search the emails for information unrelated to the Weiner child 

exploitation investigation. At 12:42 p.m. on September 29, the A/SAC informed

Sweeney by email: “Just had the lync call with HQ/WFO. They were misinformed 

about the accessibility. All good for now. We can discuss further if you like.”

The NYO A/SAC and ASAC told us they did not recall any tasking of NYO

related to the material on the Weiner laptop that was potentially relevant to the 

Midyear investigation. The A/SAC told us, “I fully expected [the Midyear team] to 

reach back out to ask me for certain things, and, and for assistance of some sort. I 

know that’s what I’d do.” The NYO A/SAC, ASAC, and SSA told us they had no 

further contact with FBI Headquarters about the Clinton email issue until late 

October. The SSA told us that he felt like NYO had done its job reporting the 

information to FBI Headquarters and he “assumed they were doing something.”

3. Post-Call Midyear Team and FBI Headquarters Response

We asked members of the Midyear team what steps were taken immediately 

after the September 29 call. FBI Attorney 1 recalled discussing the September 29 

call with both Strzok and Deputy General Counsel Trisha Anderson. FBI Attorney 1 
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stated that it was clear the Midyear team would need “additional process or 

consent” to be able to do anything with the laptop. Despite this, FBI Attorney 1 

stated that she did not reach out to the AUSAs at SDNY at this time. FBI Attorney 

1 explained, “[A]fter the SVTC, I thought, well I’m not sure we’re that far along, 

and I think I get what, where New York is. And so I didn’t feel the need to reach 

out to SDNY at that time.” We asked FBI Attorney 1 whether NYO was supposed to 

follow up with the Midyear team or the Midyear team was supposed to follow up 

with NYO after the call. FBI Attorney 1 stated, “I don’t have an answer to that. I 

don’t think it was very clear. I would have expected New York to follow up because 

they were the one that had to process the computer....” We asked FBI Attorney 1

what she expected NYO to do as a result the call. FBI Attorney 1 stated:

I would have expected that the computer would have been processed, 

New York would have been continuing their investigation, and to the 

extent that they saw more things that could have helped us—that 

would have been relevant to our case—they would have reached back 

out and told us like they did on [October] 26th or whatever that date 

was, on that Wednesday.... It just took three weeks to do that.

Strzok told us that either the Midyear SSA or FBI Attorney 1 briefed him on 

the call. In a 12:26 p.m. email to Strzok on September 29, the Midyear SSA 

stated, “No travel planned for tomorrow. [FBI Attorney 1] will brief you at 1 pm.” 

FBI Attorney 1 told us she recalled this discussion with Strzok. She stated:

...Bill [Priestap] was wondering if we were going to send a team to 

New York, to go with them and review this material with them. And 

based on the call, I didn’t think it was the right time yet. Obviously 

that’s not my decision as counsel, but I did explain to Pete, like, we 

didn’t know the volume. We didn’t know if it was related to our 

material. The search warrant was about Weiner’s activities, so there 

would be limited utility in sending a team to New York at this point.

Strzok’s notes from September 29 stated, “NY: SW – Saw some 

@clintonemail.com, @state.gov.” Strzok did not recall being briefed in any detail, 

but stated that he was told about the limited scope of the Weiner search warrant. 

Strzok told us his takeaway was:

[T]hat there is material there.... [T]he upshot of what I recall is, you 

know, we need to, we need to kind of go down this route. It isn’t a 

crank lead. It is something that we need to look into. There is work 

they’ve got to do. We’re not there yet, but it isn’t something we can 

just say, ah, let, there’s nothing relevant there.

Strzok said the next step was for NYO to process the laptop and for NYO to look for 

the type of data on the laptop that the Midyear team would need. Strzok 

continued:

[A]nd...when you’re done with that, you know, call us back and let us 

know. And again...there is no sense of this is going to be huge and 
290

horrible and the election is a month away, and God, are we going to 

say something, do we need to say something to Congress? This is 

just, oh, good lead and, you know, we’ll get to the end of the year, 

next year. We’ll get to it as they process through it.

Anderson told us she vaguely recalled a “preliminary conversation” with FBI 

Attorney 1 on this issue. At 10:27 a.m. on September 29, FBI Attorney 1 sent a 

message to Anderson on the FBI’s Lync system that stated, “Sorry I missed the 

10:15. I was meeting with [Priestap] about a new development in MYE. I believe 

he also reached out to you, but you were in a meeting. I can bring you up to speed 

when you have a minute.” Anderson said she recalled a “very skeletal” overview of 

the facts, including that some Abedin materials may have been found on a laptop 

obtained in an investigation of Weiner. Anderson said that she was informed that it 

was unclear what was on the laptop at this point and NYO was going “to try to 

figure out as much as they could” consistent with the terms of their search warrant. 

When asked if FBI Attorney 1 would have been responsible for following up with 

NYO after the call, Anderson stated, “[I]t wouldn’t have been [FBI Attorney 1’s] job 

to call New York and say, hey, where are you guys on this? You know, as a lawyer, 

that’s not what she would have been doing.” Anderson said she thought it would 

have been the job of “the Midyear investigative team” to reach out to NYO to find

out “where things stood.” Anderson did not recall hearing about the Weiner laptop 

issue again until approximately October 27.

Priestap’s notes from September 29 contained the following entry: “Baker

Voluntarily provided emails from 2007 on (347,000 emails) – state.gov, -

foundation.gov.” Priestap explained that the “Baker” notation meant that either 

Priestap received this information from FBI GC Baker or Priestap felt that he needed 

to tell Baker this information. As noted below, Baker recalled first learning about 

the Weiner laptop issue from EAD Coleman on October 3. Priestap provided the 

following interpretation of his notes, “[M]y guess, I’m not positive, is that this was 

an indication, you know, we thought the time frame was roughly 2007 on, there 

were roughly this many emails [347,000], and that it included both” State 

Department and Clinton Foundation business. Priestap told us that he met with the 

Lead Analyst, Strzok, and FBI Attorney 1 on a nearly daily basis during this period 

and the information in his notes may have been provided by one of those 

individuals.

McCabe told us he could not recall if he learned about the September 29 call

before or after it occurred.

166

 He stated that the call was the Midyear team’s way

“of following through with my direction to them to kind of get their hands around 

this thing and let us know what do we have.” We asked McCabe if anyone informed 

him of the limited scope of the Weiner search warrant at this time and he stated 

that he did not recall being told that until later. McCabe stated if he had been told 

 

166

 As noted in Chapter Eight, McCabe held a meeting on the afternoon of September 29 

entitled “Mtg. w/DD RE Decision Points” that Rybicki, Anderson, Strzok, Page, FBI Attorney 1, Baker, 

and Priestap were invited to attend. Contemporaneous notes from the meeting reflected a discussion 

of congressional requests for materials from the Midyear investigation. The notes did not reference 

the NYO call.
291

about the limited scope of NYO’s search warrant on September 29, “I would have 

said well what do we have to do to get another warrant if that’s the route we need 

to take.”

C. McCabe Call to NSD Leadership on October 3

NSD Principal Deputy Assistant Attorney General (DAAG) Mary McCord told 

us that on or about October 3, she received a phone call from McCabe. McCord 

stated that this was the first time she learned that there was a potential issue 

relating to emails in an iCloud account used by Abedin and Weiner. We found no 

evidence of any other contact between the FBI Midyear team and the Midyear 

prosecutors regarding any material obtained from Weiner until October 21, as 

discussed below.

McCord described their conversation as follows:

[W]hat he says to me is that there’s this criminal case. New York is 

investigating Anthony Weiner. And his counsel...provided a copy of 

the content of his iCloud account. It includes a substantial number of 

emails from his wife’s email account. And Andy [McCabe] said he was 

sending a Midyear agent up to look at what it is. You know, hopefully 

it’s all duplicates and we don’t have to, you know, worry about, about 

it. And at the time, he was, he was saying to me you may want to 

touch base with [SDNY U.S. Attorney] Preet [Bharara] to make sure 

he’s not like charging ahead like doing some sort of process, like, that 

would bump up against the work of Midyear.

According to McCord, she and McCabe thought that these emails were likely 

duplicates given the “thorough scrub of everything” during Midyear. McCord told us 

that she did not think this was “a major thing,” but agreed that they should “make 

sure that there’s nothing new there.”

McCord’s notes from the call stated, “Andy McCabe. NY CRM investigating 

Anthony Weiner, his counsel provided copy of content of his i-cloud account –

includes substantial # of emails from wife’s email account. Andy sending mid-year 

agent up to look at what it is. Hopefully all duplicates. May want to touch base 

w/Preet to make sure doesn’t charge ahead. Consent?” McCord stated that the 

“Consent?” entry was a thought about whether consent would have been “good 

enough” to allow a forensic review to determine if these were duplicate emails. 

After the conversation, McCord stated, “And then, honestly, I get busy with things. 

I don’t really think much about this again until, and I did not call Preet. I just 

decided it wasn’t” warranted at that time. McCord stated that she did not hear 

about the issue again until McCabe called a second time later in October. As we 

discuss below, we believe this call occurred on October 25.

McCabe only vaguely recalled a conversation with McCord. He told us that he 

believed that he contacted McCord, but he thought that the conversation occurred 

later in October.
292

NSD DAAG Toscas recalled being informed of McCabe’s call to NSD in early 

October and stated that he thought it related to emails in an iCloud account used by 

Weiner and Abedin. Toscas did not remember the exact timing of the call and 

thought that McCabe called NSD AAG John Carlin instead of McCord. Nevertheless, 

the information provided by Toscas was similar to McCord’s testimony. Toscas 

stated that he did not hear about this issue again until he received a phone call 

from SDNY Deputy U.S. Attorney Kim on October 21. We discuss that call below.

We also asked NSD AAG Carlin about an early October call between either 

McCabe and himself or McCabe and McCord related to the Weiner investigation. 

Carlin, who had announced on September 27, 2016, that he would resign as AAG 

effective October 15, 2016, told us he did not recall a conversation between 

McCabe and himself or McCabe and McCord.

D. FBI Headquarters Discussions on October 3 and 4

1. EAD Coleman October 3 Meeting with Baker and Bowdich

As noted previously, Coleman drafted a “Memorandum for Record” on 

November 7, 2016, documenting his involvement in the discovery of emails on the 

Weiner laptop that were potentially relevant to the Midyear investigation. The

memorandum contained an entry for October 3 that stated, “On or about 

10/03/2016, EAD Coleman verbally advised OGC Baker and Associate Deputy 

Director David Bowdich of the matter described by AD Sweeney in a ‘sidebar’

meeting after normal DD [Deputy Director] daily update meeting. OGC Baker 

advised he was not aware of the matter and would need to look into it further.” 

Coleman told us that he believed McCabe was out of the office on October 3 and 

ADD Bowdich was leading the daily update meeting. McCabe was scheduled to 

travel to New York on October 3 to attend a symposium the following day.

167

 

Coleman told us that after a meeting on October 3, he informed Bowdich and Baker

about the information he had received from Sweeney concerning the laptop.

Bowdich told us that he did not “specifically remember” this discussion with 

Coleman, but had no reason to doubt the memorandum’s accuracy.

We showed Baker the Coleman memorandum and Baker stated that 

Coleman’s account “sounds about right.” We asked Baker what he was told about 

the Weiner laptop. Baker stated:

Pretty basic, but along the lines of we have this laptop in this other, 

unrelated case. And somehow they figured out that there were some 

additional emails on there that were outside the scope of the warrant, 

if I recall correctly, that they were working on, and that they needed 

to do more work to get access to them, and they would be...working 

on it to try to get access to it.

 

167

 In McCabe’s absence, Bowdich as ADD would run the daily update meeting.
293

Coleman’s memorandum stated that Baker planned to look into the issue further. 

We asked Baker about that and he stated he did not recall specifics, but he believed 

he asked “somebody on the Midyear team” about the issue.

In the Coleman memorandum’s next and final paragraph, which is undated,

it stated, “It was determined by DD McCabe and EAD Steinbach that any follow on 

investigative activity concerning the emails located on Anthony Weiner’s laptop 

would be reviewed by the MIDYEAR investigative team.” Coleman said he did not 

recall why this entry was undated and was unsure at what point this occurred. He 

told us that he shared an office with Steinbach and that this could have been a 

dialogue between himself and Steinbach at some point later in October.

2. Email from Bowdich to Comey on October 3

On October 3, at 7:42 p.m., Bowdich sent an email to Comey and McCabe 

briefing them on items of interest from that day. Rybicki was cc’d on the email, 

which was entitled “Daily Report.” After highlighting three unrelated items, 

Bowdich stated, “I asked Randy Coleman to stay behind tomorrow to quickly brief 

you on the Weiner matter which is growing more complicated, but it can wait until 

then.” Bowdich told the OIG that he did not remember what was “growing more 

complicated” with the Weiner matter. Bowdich noted that when dealing with issues 

of this type he typically “would have pushed that up to Andy, and/or the Director, 

and Baker would have been right in the middle of it.”

Comey told us he did not recall this email and also did not recall what was 

“growing more complicated” in the Weiner matter. Comey stated that he was “only 

dimly” aware of the Weiner child exploitation investigation at this point in time.

We also asked Rybicki about this email. Rybicki stated that he did not know 

what was meant by “the Weiner matter which is growing more complicated.” 

Rybicki told us that he first recalled hearing about the issue of Clinton emails on the 

Weiner laptop on October “26th into the 27th.” When asked if this email made 

Rybicki think that he and Comey were aware of the Weiner laptop issue earlier than 

he recalled, Rybicki responded, “I don’t think so.... I remember on the 27th right 

when I heard about it thinking this is [unintelligible]. That would, that’s my first 

recollection as well of hearing anything about it.”

3. Meeting between Comey and Coleman on October 4

Comey’s Outlook calendar for October 4 contains an entry for “Morning 

Briefs” from 8:15 a.m. to 9:00 a.m. that is immediately followed by an entry for 

“Meeting w/EAD Coleman” from 9:00 a.m. to 9:30 a.m. Coleman told us that he 

could not recall this briefing with Comey. Coleman stated that staying behind to 

brief Comey would be consistent with normal practice, but added that he did not 

recall this specific instance. Coleman told us that it would be unusual to have a 

one-on-one meeting with Comey and told us someone else would typically be 

present at these briefings, such as the DD or ADD. While not remembering this 

meeting, Coleman speculated that this may have been a one-on-one meeting with 

Comey to discuss Coleman’s upcoming retirement from the FBI in December 2016.
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Coleman told us that he kept regularly took notes in a journal. Coleman’s 

notes from October 4 contained the following entry:

(1) Anthony Wiener [sic]

(2) [Unrelated]

(3) Wiener [sic] – texting 15 yo – Sexually Explicit

9/26 – Federal SW – IPhone/IPAD/Laptop

Initial analysis of laptop – thousands emails

Hillary Clinton & Foundation

Crime Against Children

We asked Coleman about these notes and he told us that, given their placement in 

his notebook, the notes would most likely represent information he was briefed on 

first thing in the morning by his subordinates in the Criminal Investigative Division. 

Coleman stated that he may have passed this information to other FBI executives 

after the morning briefing with the Director, but he could not remember if that 

occurred here.

Comey told us that he did not recall the briefing by Coleman reflected in his 

calendar. We asked Comey if this briefing could have been the time in early 

October that he recalled being told about the connection between Midyear and the 

Weiner investigation. Comey stated:

It’s possible, possible this is what is knocking around in the back of my 

head, but I really, see I know the frailty of memory from having done 

a lot of this work, at least in my memory it’s much more of an informal 

than a meeting about it, but it’s possible.

We showed Coleman’s notes from October 4 to Comey. Comey did not recall being 

briefed on the information contained in the notes. When asked about Coleman, 

Comey said he “thought very highly of him” and described him as a “straight 

shooter.”

We asked Comey if this information was something that he likely would have 

“put out of his mind” after being informed of it in early October. Comey responded, 

“I don’t think so unless, unless the way it was passed to me was with some, you 

don’t need to do anything. We’re doing, we’re running it down or something. 

Something that pushed it down on my priority list.”

When asked if he recalled this meeting between Coleman and Comey, Rybicki 

stated that he did not. Bowdich told us that it is possible that he would have been 

at this meeting between Comey and Coleman, but he had no recollection of it. 

McCabe continued to be on travel and was not in Washington, D.C., on October 4.
295

IV. NYO Completes Processing of Weiner Laptop Around October 4

As noted previously, the Weiner case agent told us that he noticed on 

September 26 or 27 that the software program that he was using on the Weiner 

laptop was having trouble processing the data on it. The case agent told us that he 

reached out to a CART examiner for assistance and the CART examiner decided to 

process the laptop on the CART examiner’s workstation. CART logs show that the 

CART examiner received the laptop on September 29 and imaged, or made an 

exact copy of, the laptop the same day. The CART examiner told us that he began 

using FBI software programs to analyze and categorize the contents of the laptop 

the next day and that was completed by around October 4. In total, there were 

approximately 675,000 emails on the laptop.

The CART examiner told us once the processing was completed he conducted 

a spot check of the results to ensure everything had processed completely. The 

CART examiner stated that the first file he clicked on was an image of a document 

marked “Sensitive But Unclassified” with the initials “HRC” written on it in a blue 

felt-tipped marker. The CART examiner stated that he immediately ceased his 

examination and reported this to the case agent and the CART supervisor. The 

case agent recalled the CART examiner showing him this document and told us that 

he commented, “We can’t be looking at this.”

V. FBI Headquarters Inaction and Explanations for the Delay

After October 4, we found no evidence that anyone associated with the 

Midyear investigation, including the entire leadership team at FBI Headquarters, 

took any action on the Weiner laptop issue until the week of October 24, and then 

did so only after SDNY raised concerns about the lack of action. In this section, we 

detail the explanations given to us by FBI Headquarters and Midyear personnel 

about the reasons for this inaction.

When we asked McCabe about this period from late September until late 

October and the lack of activity on the Weiner laptop, he stated:

During that period in between, you know, I expected that we were 

making progress on it. I probably met with some combination of the 

Midyear team every day of that month. Near to every single day on a 

whole kind of range of Midyear-related issues. And I would have 

expected that if they were having problems with that issue and not 

making progress on something that I had put on, on their radar as an 

important thing, that that would have come to my attention. And it 

didn’t. So I don’t, I can’t sit here and tell you with perfect clarity why 

it didn’t, whether they thought they had it under control but they 

didn’t, or it was being ignored and not given the attention it, it 

needed, but it, it didn’t come to me during that time.

McCabe stated that he was “absolutely” disappointed that the team had not found 

out more information about what was on the Weiner laptop during this period. 
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McCabe added, “So to find out that we didn’t know the answers to any of those 

questions at the end of October was very concerning to me.”

FBI Headquarters and Midyear personnel provided multiple explanations for 

the apparent inactivity on the Weiner laptop during this period. Explanations 

included claims of delay by NYO in processing the Weiner laptop, a lack of specific 

information about what had been discovered on the laptop, a focus on the Russia 

investigation, the fact that the Weiner laptop was not considered a priority during 

this period, and legal impediments to reviewing the materials on the laptop. We 

discuss each of these explanations below, recognizing that these explanations are 

interrelated and not mutually exclusive.

A. Delays in Processing the Weiner Laptop

Numerous witnesses cited delays in processing the Weiner laptop by NYO 

personnel as a primary reason for the apparent inaction by FBI Headquarters and 

Midyear personnel. Strzok told us that, after the September 29 call, he understood 

that NYO was going to continue processing the laptop and then when they were

“done with that, you know, call us back and let us know.” FBI Attorney 1 also 

stated that the Midyear team was waiting on NYO to finish processing the laptop. 

When asked why it would take so long, FBI Attorney 1 stated that this “is not that 

long of a period of time for the Bureau to take to get something done.” Rybicki told 

us that he learned after the fact that NYO had “technical issues” with the laptop, 

but he did not know “why it took a month.” Comey recalled being told after the 

fact of a “technical delay” or “something about a glitch with getting a mirror image

of the Weiner laptop,” which ultimately “had to be sent to the Operational 

Technology Division.”

Page stated that NYO was “having trouble” processing the Weiner laptop and 

“that gap represents the time that New York is getting a workable image of the 

Weiner laptop because it is so large.” She noted that there was “no particular 

urgency” on this issue, however. Page explained, “[N]ot to say it’s not an 

important case, but it’s not, there’s no specific reason why like all hands on deck 

need to be helping New York CART sort of get this thing loaded or whatever else.” 

Later in the interview, Page again reiterated that NYO did not really know what they 

had “until they finally sort of have it up and imaged, and start doing their...forensic 

review.” She continued:

And the reality is, emails had been found lots of other places that 

ultimately weren’t worth pursuing lots of other times. And so, until we 

understand that, that the volume of emails is not simply the volume 

with respect to Weiner, but that it represents Huma emails as well, 

you know, my understanding is, like, it’s just not super-significant yet.

B. Prioritization of Weiner Laptop and Russia Investigation

Priestap told us that the Weiner laptop was not his top priority at this time 

due to his involvement in the Russia investigation. Priestap explained:
297

[I]f you’re wondering, you know, hey, this is a really big deal, and why 

aren’t you asking about it every, every minute of every day type thing, 

whatever, it was the, we went from this thing to the Russia thing. And 

the Russia thing took them as much as my time as this thing before. 

And I don’t want to say distracted, but yeah. My focus wasn’t on 

Midyear anymore, even with this new, yes, we’ve got to review it. 

Yes, it may contain evidence we didn’t know, but I’d be shocked if it’s 

evidence that’s going to change the outcome of the case because, 

again...aside from this, did we see enough information previously in 

which I felt confident that we had gotten to the bottom of the, of the 

issue? I did. And so, again, I would have been shocked if it was 

information that, and so the bottom line is, as important as this was, it 

was, some ways it was water under the bridge. The issue of the day 

was what’s, what’s going to be done to possibly interfere with the 

election.

In written comments provided to the OIG after reviewing the draft report, 

Priestap further explained:

With respect to the criticism that the FBI should have placed a higher 

priority on obtaining legal authority to access and review the 

potentially relevant emails on [the Weiner] laptop, I maintain that we 

made the correct judgments. In this regard, our work on [Midyear] 

was extensive and included the review of tens of thousands of emails, 

(over 7 million email fragments), and interviews of more than 70 

individuals. We amassed and analyzed an enormous volume of 

information, reaching the recommendation in July 2016 that no 

prosecution be initiated. I sincerely doubted that the emails identified 

on [the Weiner] laptop were likely to alter our informed view of the 

matter, and therefore did not prioritize the follow-on work over higher 

priority matters.

Regarding these higher priority matters, Priestap stated that in late September 

2016 Comey had tasked the Counterintelligence Division with a multifaceted effort 

to protect the 2016 election from foreign interference. This tasking included the 

implementation of “a national supply chain risk management effort to identify 

vulnerabilities in voting infrastructure,” engaging state election officials about 

potential threats, the investigation of “whether foreign adversaries were attempting 

to interfere with or improperly influence the” 2016 election, and the investigation of 

certain U.S. persons’ contacts with foreign adversaries. Priestap told the OIG that, 

as the AD of the Counterintelligence Division, he was in charge of all of these 

efforts. Priestap stated:

In sum, I do not believe that the Bureau made a conscious decision to 

specifically assign a lower priority to the review of [the Weiner] laptop, 

but rather—given the other extremely significant matters being 

handled by the Counterintelligence Division and the time typically 

associated with obtaining legal authority and processing data—it was 

not viewed as a mission critical activity. My team was prepared to 
298

pursue this matter in the normal course, recognizing that it might not 

be completed until after the presidential election.168

Strzok echoed this notion that the Weiner laptop was not initially his highest

priority. He stated:

This is just, you know a lead that likely is going to result in some 

investigation, maybe some data we’re going to have to review, you 

know, January, February 2017, whenever it gets done. In my 

experience, it is not unusual at all for processing to crap out and have 

to get restarted, or to have problems with certain types of media.... 

This isn’t a, a ticking terrorist bomb. This is a, you know, again, 

despite the high-profile nature of the client, a, and a very serious case, 

something where it goes in the queue and gets prioritized and they’re 

going through it. So, if you were to ask me, you know, were there 

alarm bells going off in my head on October 15th that we haven’t 

heard back? No, absolutely not. I didn’t expect, it would not have 

surprised me to have heard back in early-November or to have heard 

back in early-December.

Strzok explained that he had no crystal ball that could have foreseen the events 

that ultimately occurred in late October and he thought it “a misplaced assumption 

and belief that there should have been some sense of urgency after September 

29th, and we should have reprioritized everything we were doing to go after this. 

We did not know what was there.” Strzok also cited his assignment to the Russia

investigation as an explanation for why the Weiner laptop was not seen as his top 

priority. He stated:

We were consumed by these ever-increasing allegations of [Russian] 

contacts and coordination and trying to get operations up, and 

following people.... Doing a lot of stuff that was extraordinarily 

consuming and concerning. So this pops up, and it’s like...another 

thing to worry about. And it’s important, and we need to do it. Okay, 

get it handled. Come back to us, and then back to this, you know, is 

the government of Russia trying to get somebody elected here in the 

United States?”

Likewise, Page stated that she and other members of the Midyear team were 

“super-focused” on the Russia investigation at this point.

We also asked Comey whether the fact that key members of the Midyear 

team, including Strzok, were also assigned to the Russia investigation contributed 

to the delay in reviewing the Weiner laptop. Comey told us that he remembered 

 

168

 Priestap further explained his thought process at the time, noting that he considered the 

Weiner laptop to be an important issue when first informed about it on September 28 and made sure 

it received his immediate attention. However, Priestap told us that once he was informed of potential 

legal and technical issues regarding the laptop, he believed from past experience that those issues 

would take time to resolve and therefore expected no immediate update.
299

being told that the team assigned to the Russia investigation was “overwhelmed.” 

Comey continued:

It was Russia, Russia, Russia all the time.... Well not just Russia, 

Russia, Russia. [It was also] Midyear Congress, Midyear Congress –

because they had, somebody had to review the documents that were 

going up to Congress and there was a constant demand for documents 

and briefings on Midyear and Russia at the same time.

We asked Comey if, in retrospect, the team should have been bigger. Comey 

responded, “Yeah maybe, yeah.... I think that’s a reasonable question to ask and 

I’m sure in hindsight I needed another Strzok and maybe I needed two teams, and 

you always have in the Bureau, the challenge is the talent is not necessarily that 

deep when it comes to counterintelligence matters, people who can work this stuff.”

C. Lack of Specific Information

We were also told that FBI Headquarters and Midyear personnel were waiting 

on NYO to provide more specific information about what was on the Weiner laptop. 

FBI Attorney 1 explained:

And you also have to remember too, like, throughout this whole 

investigation, we would randomly occasionally get someone that said, 

oh, I know where all the emails are. So...this was more certain than 

that. But it wasn’t, it wasn’t like, oh, I think we have the smoking gun 

on this laptop. We better hurry up and make sure we get it processed. 

It was like let’s see what the process turns out to be. There may not 

be that much, you know, it may just be duplicative of what we already 

have.

When asked if she was receiving updates during this period, FBI Attorney 1 stated 

that she was not and did not know if anyone else was getting updates either. FBI 

Attorney 1’s supervisor, Anderson, also told us that her understanding was that 

NYO was processing the materials and trying to figure out what they had during this 

time period.

Strzok discussed this issue of a lack of information as well, stating that only 

when NYO reported “the scope and content” of what was on the laptop did it 

become a significant development. Specifically, Strzok cited the facts that the 

Weiner laptop contained “a variety of backups from Huma’s devices,” it contained 

information she forwarded to Weiner, and, most importantly, had BlackBerry 

backups from “the missing three months.”169

 

169

 As noted in Chapter Five, the 30,490 emails provided by Clinton’s attorneys contained no 

emails sent or received by Clinton during the first two months of her tenure, January 21, 2009, 

through March 18, 2009, and the FBI investigative team was unable to locate the BlackBerry device 

she used during that time, although they were able to obtain some of the BlackBerry emails from 

other sources. Witnesses, including former Director Comey, told us that they believed these missing 

emails could contain important evidence regarding Clinton’s intent in setting up a private email server.
300

The Midyear SSA told us that he believed NYO was able to provide more 

information on the volume of emails on the laptop later in October. When asked if 

there was any additional information provided beyond volume, the Midyear SSA 

stated that there may have been “something more specific too” that he could not 

recall at the time of our interview. The Midyear SSA told us:

I remember walking away the first time thinking that...we probably 

had enough [probable cause to get a search warrant to review the 

emails]. But I understood why that discussion wanted to be made, is 

that, you know, well let’s see what happens.... [T]hat lag in time was 

as a result of allowing [the Weiner] investigation to proceed. And then 

they contacted us when they felt that they had a lot more information 

that needed to be addressed by, by our team. And then we proceeded 

with moving forward.

The Midyear SSA stated that he did not seek an update from NYO in this period 

because it was “an [FBI] OGC [and] SDNY type thing.”

D. Questions About Legal Authority

Another reason cited by McCabe, Baker, and Priestap for the inactivity during 

this period was the need to resolve questions about the legal authority. Priestap 

explained:

[W]hat is our legal basis by which we can conduct the review? And 

again...it’s not the first time, and...I run into this all the, all the time 

with trying to cross the T’s, dot the I’s on the legal end before we take 

activity. Now, again, why it took so long, should it have took so long? 

I don’t know. But I saw it as a, let’s, we don’t have, I don’t have 

knowledge that we have the legal authority to say go.

Baker stated that he thought the Midyear team was “struggling with trying to figure 

out” a way to access the material on the Weiner laptop since “it was beyond the 

scope of the original search warrant.” Baker told us he thought that the FBI and

SDNY “were continuing to work on” overcoming these “legal complications.”

FBI Attorney 1 did not share this view. She told us that “it had already been 

concluded” on the September 29 call that the Midyear team would not be able to 

use the Weiner search warrant to review the laptop and, instead, the Midyear team 

“would need additional process or consent if we needed to do anything.” The 

Midyear SSA agreed with this assessment, stating that there was a “consensus” on 

the September 29 call that the only way they would be able to review the Clinton 

emails on the Weiner laptop was with a new warrant.

E. Strzok Timeline

We asked Strzok about a document he subsequently created entitled “Weiner 

timeline” and included in an email he sent to Page on November 3, 2016. The 

document contained the following entries for the period from September 26 through 

October 21:
301

09/26/2016 – NYO obtains [search warrant] for Weiner laptop

09/28/2016 – ADIC NY notes potential MYE-related material following 

weekly SAC SVTC

09/29/2016 – Conference call between NYO and MYE team

– NYO notes processing is crashing system and not 

complete, but during troubleshooting observes material 

potentially related to MYE (clintonemail.com and 

state.gov domains) seen during course of review

– No numbers/volume available

– Discussion about ability to search for material 

determines such activity would be outside scope of 

warrant

– Request to NYO to gather basic facts (numbers, 

domains, etc) based on their review

Approx. 10/19/2016 – NYO completes carving

– NYO observes [Sensitive But Unclassified] 

attachment

10/21/2016 – 6:00 PM DOJ/NSD advised MYE leadership that SDNY 

informed them of MYE-related media on Weiner media

We asked Strzok why he created this timeline on November 3, which was 

days after Comey sent his letter to Congress informing it that the FBI had 

discovered additional emails. Strzok stated:

Because I think the, the question was, okay, here we are. We’re 

having to reopen and it’s right in the middle of, you know, the last 

week of the election. You know, potentially we would need to do this. 

And that people are going to come afterwards and say either you 

delayed to help Hillary, you delayed to help Trump, whatever it was. 

Let’s, while it is fresh or as fresh as possible, let’s kind of document 

out. And I, you know, again, I don’t know if the political hue and cry 

had already begun of, you know, conspiracy. But I think the sense 

was, okay, let’s kind of write down and while it’s still sort of fresh, 

yeah.

Strzok told us he could not remember if he was directed to put together the 

timeline. He stated that he sent the timeline to Page for “her and Baker” and FBI 

executive leadership “consumption.”

As for the contents of the timeline, we asked Strzok about the September 29 

entry of “[n]o numbers/volume available” and how that squared with his September 

28 text message to Page that stated there were “hundreds of thousands of emails” 

on the laptop. Strzok replied:

Because this is specific to the Huma Midyear stuff. I think when they 

gave that volume, and I don’t know what, again, I wasn’t there, my 
302

read of that text is that New York said they had in total hundreds of 

thousands of emails, Anthony’s, Huma’s, who-knows-who. But that 

the sum total were hundreds of thousands. And within that, there was 

more than the de minimis amount of Huma stuff. And that is a result 

of the conference call, they were able to say we don’t know how many 

we have.

We also asked Strzok about the October 19 entry and why he wrote that it was 

approximately October 19 when NYO had completed “carving” the laptop.170 As 

noted in Section 9.IV above, processing of the Weiner laptop was, in fact, 

completed by NYO around October 4 and the Sensitive But Unclassified attachment 

was observed by NYO around the same time. Strzok stated, “It was roughly that 

time table. And I don’t know how I arrived at the 19th, if there was a notation that 

clearly indicated that on or prior to that date, something had come in.”

We asked Strzok to respond to the accusation that this inaction on the 

Weiner laptop was a politically motivated attempt to bury information that could 

negatively impact the chances of Hillary Clinton in the election. Strzok responded:

No, I’d say quite the opposite.... I think every act was taken with an 

objective reason to say, okay, here is why we did it, and why it was 

prioritized the way it was.... [The Midyear SSA] and [FBI Attorney 1] 

were the ones engaging with New York. You had agents and AUSAs up 

in New York who were involved in pursuing it, that ultimately, you 

know, we sat there, and we decided when we found out what was 

there that we needed to get the case and reopen the case. And if you 

want to pitch in the conspiracy perspective, everything we pushed to 

do, the Clinton side is going to say, what you did absolutely killed my 

chances at the election. So, you know, pick it. Which is your 

conspiracy?... [I]t angers me because there is not, if there were bias, 

and there is not bias, if there were bias...it didn’t result in actions 

which would be indicative of bias.

VI. Concerns of Weiner Case Agent and Conversation with SDNY AUSAs 

on October 19

As early as October 3, the case agent assigned to the Weiner investigation 

expressed concern that no action appeared to be occurring with regard to the 

Clinton emails discovered on the Weiner laptop. He began documenting these 

concerns in contemporaneous emails and also discussed his concerns with his 

supervisor and the SDNY AUSAs assigned to the Weiner investigation. In an 

October 3 email, the case agent stated that a “significant number” of the emails on 

the Weiner laptop “appeared to be between Huma Abedin and Hillary Clinton (the 

latter who appears to have used a number of different email addresses).” The case 

agent also noted in that email that he was “obviously” unable to “review any emails 

 

170

 “Data carving” is typically the last phase of processing an electronic device and involves 

recovering files and data that have been either deleted or no longer contain complete metadata.
303

to which Anthony Weiner is not a party (such as emails between Ms. Abedin and 

Mrs. Clinton).” The October 3 email was serialized and inserted into the Weiner 

case file in Sentinel, the FBI’s case management system, on October 5.

The case agent told the OIG that no one had contacted him about the laptop 

and, as the case agent, “the only person who has the authority to release that 

laptop’s image is me.” The case agent explained his growing concern by stating:

The crickets I was hearing was really making me uncomfortable 

because something was going to come crashing down.... And my 

understanding, which is uninformed because...I didn’t work the Hillary 

Clinton matter. My understanding at the time was I am telling you 

people I have private Hillary Clinton emails, number one, and 

BlackBerry messages, number two. I’m telling you that we have 

potentially 10 times the volume that Director Comey said we had on 

the record. Why isn’t anybody here? Like, if I’m the supervisor of any 

CI squad in Seattle and I hear about this, I’m getting on with 

headquarters and saying, hey, some agent working child porn here 

may have [Hillary Clinton] emails. Get your ass on the phone, call 

[the case agent], and get a copy of that drive, because that’s how you 

should be. And that nobody reached out to me within, like, that night, 

I still to this day I don’t understand what the hell went wrong.

The case agent told us that he scheduled a meeting on October 19 with the 

two SDNY AUSAs assigned to the Weiner investigation because he felt like he had 

nowhere else to turn. He described AUSA 1, the lead prosecutor, as a friend. He 

added, “I felt like if I went there and [AUSA 1] got the attention of Preet Bharara, 

maybe they’d kick some of these lazy FBI folks in the butt and get them moving.” 

The case agent stated that he told the AUSAs in detail about the emails he had 

seen between Clinton and Abedin. He continued:

And I told her, I’m a little scared here. I don’t know what to do 

because I’m not political. Like I don’t care who wins this election, but 

this is going to make us look really, really horrible. And it could ruin 

this case, too. And...I said the thing that also bothers me is that 

Comey’s testimony is inaccurate. And as a big admirer of the guy, and 

I think he’s a straight shooter, I wanted to, I felt like he needed to 

know, like, we got this. And I didn’t know if he did.

The AUSAs both told us that the case agent appeared to be very stressed and 

worried that somehow he would be blamed in the end if no action was taken. AUSA 

1 stated that the case agent worried that the information relating to the Clinton 

emails had not been provided to the right people and AUSA 2 observed that the 

case agent “was getting, for lack of a better word, paranoid that, like, somebody 

was not acting appropriately, somebody was trying to bury this.”
304

VII. SDNY Response to Weiner Case Agent Concerns

A. SDNY Internal Discussions on October 20

On October 20, 2016, the AUSAs met with their supervisors at SDNY and 

informed them of their conversation with the Weiner case agent. The AUSAs stated 

that they told their supervisors the substantive information reported by the case 

agent, the case agent’s concerns that no one at the FBI had expressed interest in 

this information, and their concern that the case agent was stressed out and might 

act out in some way.

SDNY Deputy U.S. Attorney Joon Kim said that after being briefed on this 

issue and discussing it with U.S. Attorney Preet Bharara and other supervisors in 

the office, SDNY leadership made the decision to call the Office of the Deputy 

Attorney General (ODAG) about this information. As Kim told us, “I remember our 

discussing it and saying, look, it’s not really our business. And, but maybe to be 

safe we should reach out and call.”

Bharara also recalled being briefed on the case agent’s concerns and being 

told that the discovery of the Clinton emails had been “reported up the chain of 

command at the FBI.” He stated that SDNY recognized that they had no 

involvement in the Clinton email server case and “wanted to stay in our lane.” 

Nevertheless, given the concerns and “agitation” of the case agent, Bharara said 

that he and the SDNY leadership team decided to contact ODAG in case “something 

had fallen through the cracks.”

B. SDNY Calls to ODAG and NSD on October 21

The following day, October 21, Kim reached out to ODAG about this issue. 

Kim told us that he was unsure about whom to call because SDNY did not know 

which office had handled the Clinton email server investigation. Kim called the 

Associate Deputy Attorney General (ADAG) who was SDNY’s primary point of 

contact in ODAG. Kim stated that the ADAG told him to contact DAAG George 

Toscas in NSD. The ADAG told us that she vaguely recalled a conversation where 

she put Kim and Toscas in touch with each other to discuss an issue arising out of 

the Weiner case. The ADAG stated that PADAG Axelrod “wanted me to make sure 

that SDNY and George from NSD connected directly so that whatever it was that 

SDNY was doing would be coordinated with whatever it was NSD was doing.” The 

ADAG told us that Axelrod “check[ed] in with me a number of times” to ensure Kim 

and Toscas had connected. At 7:08 p.m. that evening, the ADAG emailed Axelrod, 

“One last FYI—I also spoke with George [Toscas] earlier to give heads up and then 

to Joon [Kim]. They have since connected and will take it from there.” Axelrod

recalled that SDNY contacted the ADAG about the presence of Clinton emails on the 

Weiner laptop. Axelrod told us that this call “set off alarm bells” and he wanted to 

make sure the information was immediately provided to Toscas and NSD.171

 

171

 Axelrod also recalled hearing about the Weiner laptop issue at some point prior to this call. 

He told us that he thought SDNY had called the ADAG at an earlier point to inform ODAG that some of 
305

Kim did not recall the specifics of his conversation with Toscas, but stated 

that he generally gave Toscas an overview of the Weiner investigation and told him 

he wanted to make sure those connected with the Clinton email server investigation 

were aware of the information the case agent had found. Toscas told us the 

information provided by Kim was much more substantive than the prior information 

that NSD had received from McCabe on October 3. Toscas described his call with 

Kim as “the first time that I actually got information like something you could 

actually think through and analyze.” Toscas’s notes from the call stated:

10/21/16, 3:50 p.m.: Anthony Weiner. N.C. 15 yr-old  asked her to 

send video/photos. Got his laptop/phone etc. + got SW for child 

exploitation  FBI following normal protocol (to/from images). 

Although its his laptop, his wife apparently used it. 100K’s of her 

emails some to/from HRC.

Told [NSD Prosecutor 1] to tell Pete [Strzok] + DHL [Laufman] 10/21 

4:05 p.m.

According to Toscas, his notes represent in essence the entirety of the information 

he received from Kim. In our interview, Toscas specifically commented on the fact 

that he was told by Kim that there were hundreds of thousands of Abedin’s emails 

on this laptop, some of which were to and from Clinton. Toscas stated that he 

immediately called NSD Prosecutor 1 and told him to contact Strzok and Laufman. 

Toscas explained that he meant Prosecutor 1 should tell them “that there’s this 

issue and we’re going to be getting together to talk...and get more information on 

it.”

At 4:04 p.m. on October 21, Kim emailed the SDNY prosecutors and 

leadership to inform them that he had just spoken with Toscas. AUSA 2 then called 

the Weiner case agent to let him know that SDNY had raised this issue with Main 

Justice. The case agent emailed AUSA 2 that evening, “Thanks for the call. I feel 

much better about it. Not to sound sappy, but I appreciate you guys understanding 

how uneasy I felt about the situation.” The case agent also emailed his SSA and 

another agent at 5:51 p.m.:

Just got a call from SDNY. [The AUSAs] understood my concerns 

yesterday about the nature of the stuff I have on Weiner computer (ie, 

that I will be scapegoated if it comes out that the FBI had this stuff). 

They appreciated that I was in a tight spot and spoke to their chain of 

command who agreed.

So they called down to DOJ, who will apparently now make a decision 

on what to do. This is a good thing according to SDNY because it 

means we (FBI C20) went above and beyond to make known that the 

material was of potential concern. It is out of my hands now so now I 

know I did the right thing by speaking up.

 

Abedin’s emails had been found on Weiner’s laptop. Axelrod stated that this information “didn’t 

trigger any alarm bells.”
306

SDNY probably will talk to crim management at NYO to inform them 

that DOJ is aware and handling. I feel much better about this now. 

But I wanted you to have a heads up in case [the ASAC] called you.

At 4:41 p.m. that same day, Kim called the A/SAC to inform him of the call 

to ODAG. The A/SAC’s notes stated, “Joon Kim – Weiner – looking at the computer 

– ton of emails related to Huma that we are not looking at. SDNY reached out to 

DOJ and advised there are a lot of emails between Huma and Hillary and others but 

that we are doing nothing and have no basis to do that.” The A/SAC told us that he 

was “glad” that Kim had made the call, explaining that “I’ve been an agent for 21 

years, so I knew that this was something I would try to get probable cause for.”

C. SDNY Memo on October 21

On October 21, the SDNY Chief Counsel began drafting a memorandum 

summarizing SDNY’s involvement with the issue of the Clinton emails on the Weiner 

laptop. Bharara told us that he instructed the Chief Counsel to write the 

memorandum in order to “put down, precisely, and with a hundred percent 

accuracy, you know, what we did, what the timeline was, and why we did what we 

did.” Bharara told us that he decided to take this step because “things seemed 

unusual to” him and he anticipated that SDNY would be asked questions about this 

in the future. Kim provided a similar explanation for the memorandum, stating that 

SDNY leadership “concluded at this point that we should have something in the 

document, either email or memo, that laid out the chronology as, to make sure that 

if people did ask that, you know, we had it, we had it down on paper.”

The memorandum was dated October 21, 2016, and the Chief Counsel

emailed the memorandum to the relevant SDNY personnel on October 24. We have 

excerpted the portions most relevant to our review below:

...[The Weiner search warrant] did not provide authority to search for 

evidence of any other crimes [beyond the child exploitation offenses 

detailed above]. We advised the [Weiner] agents of the proper scope 

of the search warrant and they understood the scope.

...[The case agent’s] search of emails stored on the computer 

apparently recovered in excess of 700,000 emails. In order to stay 

within the scope authorized by the warrant, [the case agent] sorted 

the emails recovered by sender. In performing that sort, we 

understand that header information for all of the emails was visible, 

and he noticed a very large number of emails that appear to be 

between Huma Abedin and Hillary Clinton. [The case agent] believes 

that, although Weiner’s counsel provided the computer to us, the 

computer was used by both Anthony Weiner and Huma Abedin.

We understand that the FBI agents in our case will not be reviewing 

the contents of the Abedin-Clinton emails because it would not be 

appropriate to do so under the search warrant issued in support of our 

child exploitation investigation. The agents, however, have reported 
307

the existence of the emails up their chain of command at FBI to enable 

other agents to take any action that is appropriate for their cases.

Because we understand that another component of DOJ may be 

conducting an investigation related to Hillary Clinton’s emails, we have 

advised ODAG and George Toscas at NSD, who we’re told is the most 

senior career prosecutor involved in investigations of Hillary Clinton 

and the Clinton Foundation, of the existence of the emails so that they 

can take any steps that may be appropriate in their investigation, 

including, if proper, making an application for the content of 

potentially hundreds of thousands of emails that are outside the scope 

of the warrant in our case, which authorized a search only for evidence 

of child exploitation crimes.172

VIII. DOJ and FBI Response to SDNY Notification

As mentioned above, Toscas called Prosecutor 1 on October 21, after his 

phone call with Kim, and told Prosecutor 1 to notify Strzok and Laufman about the 

issue. Laufman stated that he could not recall the date he first heard about the 

Weiner laptop, but told us that he recalled Prosecutor 1 coming into his office and 

telling him that he had gotten a call from SDNY. Laufman said Prosecutor 1 stated 

that the prosecutors on the Weiner case told him that material on Weiner’s laptop 

“appeared on its face potentially to relate to the Clinton investigation.”

As discussed previously, until Prosecutor 1 called Strzok on October 21 to see 

if he was aware of the Weiner laptop issue, no one from the FBI had spoken with 

anyone from the Midyear prosecution team to inform them about the issue. The 

only contact that occurred prior to that regarding the laptop was the call previously 

described from McCabe to McCord on October 3.

A. Prosecutor 1-Strzok Call on October 21

At 5:41 p.m. on October 21, Prosecutor 1 sent an email to Strzok entitled 

“Call.” The email stated, “Pete, George Toscas called me and wanted me to pass 

along some information to you as soon as I could. Let me know if you have a 

couple of minutes to talk. I left a message on your cell. I am about to head out 

and can be reached on my cell. Thanks.”

Strzok and Page exchanged the following text messages on the evening of 

October 21. The sender of each text message is identified after the timestamp.

6:49 p.m., Strzok: “Also, work-wise, [Prosecutor 1] called b/c Toscas 

now aware NY has hrc-huma emails via weiner invest. Told he [sic]

we knew. Wanted to know our thoughts on getting it. George 

 

172

 After reviewing a draft of the report, Toscas asked that the OIG clarify that he was not 

involved in the investigation of the Clinton Foundation.
308

[Toscas] wanted to ensure info got to Andy [McCabe]. I told Bill

[Priestap].”

6:55 p.m., Page: “I’m sure Andy is aware, but whatever.”

Strzok told us he had a conversation at some point with either Toscas or Prosecutor 

1, and thought that the conversation with Prosecutor 1 referenced in the text

message was likely that conversation. Strzok told us that he had not talked about 

the Weiner laptop issue with Prosecutor 1 previously and he believed this was his 

first discussion with the Midyear prosecutors about the Weiner laptop. Strzok 

stated that Prosecutor 1 asked if Strzok was aware of “the potential Huma stuff up

in the Weiner laptop in New York.” Strzok said that when he responded 

affirmatively, Prosecutor 1 asked, “And, you know, what are you doing about it, 

and, you know, kind of what do we need to do, and kind of the path forward on it.” 

Page told us that she did not remember any of the specifics about this text 

message.

Prosecutor 1 stated that Toscas told him “the basic facts” about the Weiner 

laptop and told Prosecutor 1 to call Strzok. Prosecutor 1 stated that he did not 

“recall getting much detail” from Toscas. Prosecutor 1 told us that the October 21 

phone call from Toscas was the first time he was informed of the potential presence 

of Midyear material on the Weiner laptop.

B. FBI Leadership Knowledge of SDNY Notification on October 21

We asked other FBI officials about the call by SDNY to ODAG. McCabe, 

Priestap, and Rybicki told us that they were unaware of the call. McCabe also said 

he did not recall any discussion with Page about the Weiner laptop at this time. We 

asked McCabe if he we was aware of the fact that the Weiner case agent had 

expressed concern that nothing was happening with the Clinton emails discovered 

on the Weiner laptop. McCabe stated that he was not aware of that and told us he 

found it “disturbing.”

Comey did not recall being briefed about either the SDNY call to ODAG or 

NSD contacting the FBI about the Weiner laptop issue. Comey told us, though, that 

the fact of these communications is not something that would necessarily need to 

be briefed to the Director. We asked Comey—looking only at the Strzok-Page text 

messages excerpted above—if he found it concerning that McCabe, Priestap, 

Strzok, Page, Toscas, and Prosecutor 1 were all apparently aware of the presence 

of “hrc-huma emails” on the Weiner laptop by October 21 and no one bothered to 

inform him. Comey replied:

[T]he fact that who these people are doesn’t matter, but if there’s 

something that I found hugely significant on the 27th, if I was in a 

position to know that before then, then I should have been informed 

earlier. And like I said, honest to God I can’t remember being 

informed before that.
309

C. Toscas Asks McCabe About Weiner Laptop on October 24173

McCabe told the OIG about a passing interaction with Toscas after a morning 

Attorney General briefing that he had “towards the end of October.” McCabe 

stated:

I wouldn’t even characterize it as a discussion, but a comment, I think, 

that I think that George Toscas mentioned to me on the tail end of a 

morning AG brief, like hey, whatever, whatever happened to that thing 

with the laptop in New York or whatever. And I remember thinking, 

like, I got to, oh, I don’t know. Let me find out. I’ve got to follow up 

on that.

McCabe also stated:

I think he thought, like...you should ask about this. You should take a 

look at this thing. Like, or what, what are you guys thinking you want 

to do with this kind of thing was, was how he asked about it. And so 

he was clearly bringing it to my attention because he wanted to make 

sure that I was tracking it, and weighing in on it.

McCabe stated that this interaction with Toscas caused him to follow up with 

the team on the Weiner laptop issue and also to call Mary McCord at NSD. McCabe 

stated that all of this occurred “right around the same time” and “maybe even the 

same day.” He stated that “this all is what compels me to talk to the Director and 

to tell him that we need to have a meeting about this.” We discuss McCabe’s call to 

McCord and his conversation with Comey in more detail below.

McCabe noted during our interview that briefings for the Attorney General 

were typically held three times a week on Mondays, Wednesdays, and Fridays. 

McCabe’s calendar contained entries for an “AG/OGA Brief” at 9.a.m. on both 

Monday, October 24 and Wednesday, October 26. As noted above, Kim’s call to 

Toscas occurred in the afternoon of Friday, October 21, and therefore after the 

usual time for the morning AG briefing. Also, as noted below, McCabe spoke to 

McCord on Tuesday, October 25. Based on this timing and McCabe’s testimony that 

he spoke with Toscas prior to calling McCord, we believe the conversation with 

Toscas occurred on Monday, October 24.174

Toscas described this interaction as “just a passing comment at the end of 

our [Attorney General] briefing.” Toscas stated that either he or someone else 

 

173

 The day before, Sunday, October 23, the Wall Street Journal published online its story 

about McCabe’s wife and her prior run for elective office in Virginia in 2015, including donations to her 

campaign by entities connected to then Governor McAuliffe. The story raised questions about 

McCabe’s participation in Clinton-related investigations, which we discuss in detail in Chapter Thirteen.

174

 According to both Comey and McCabe’s Outlook calendars, they met at 9:30 a.m. on 

Monday, October 24 for a “Weekly Update.” Rybicki was also scheduled to attend this meeting. Their 

calendars showed that this meeting occurred immediately after the Monday morning briefing for the 

Attorney General where we believe Toscas and McCabe spoke. Neither Comey nor McCabe said that 

they recalled any discussion of the Weiner laptop at this 9:30 a.m. meeting.
310

asked McCabe, “[H]ey, what’s happening...what’s the next step with respect to 

these, you know, what we learned about the stuff on the laptop.” According to 

Toscas, McCabe stated that “the [Midyear] team was going to be either sent or had 

been sent or tasked with doing that.”

Page also told us about this interaction between McCabe and Toscas. She 

said that Toscas’s comment prompted McCabe to ask, “[H]ey, where are we on the 

Weiner stuff?” Page described this a catalyst for the Midyear team to reengage on 

the issue of the Weiner laptop.

Strzok’s contemporaneous notes from October 25 included a reference to this 

conversation between Toscas and McCabe on October 24. The notes stated, 

“Toscas saw Andy: What’s the Bureau doing? DD spoke w/Mary McCord.” 

(Emphasis in original). We asked Strzok about these notes. Strzok stated:

[M]y recollection is that on this date, or whenever it was, at some 

point, Toscas runs into the Deputy and says, hey, there are, and I 

think this might have been, I heard there are potentially emails having 

to do with Clinton on the case up in New York. What are you guys 

doing? And then, so, and I don’t know if the, if the Deputy then spoke 

to Mary [McCord] about it or not. But in any event, Toscas prompting 

Andy, then caused Andy to ask Bill [Priestap], hey, what’s going on? 

Where are we with regard to that process? What are we, what do we 

need to do to look at it? Are you engaged, essentially? And get an 

update. And so Bill then brings that back down and relays that to me.

McCabe described himself as “concerned” when the Weiner laptop came to 

his attention again and said that he asked the team to explain why he had not been 

updated. McCabe stated:

Ultimately, when I got the feedback on the status, what I was told was 

that when the team went up the first time because of their legal 

limitations they, they really weren’t able to dig into the thing, to make 

an assessment of what was there. And so therefore they couldn’t 

recommend to us what we should do with it. And so that some, they 

had to go back to the district, either get a new search warrant or 

modify the previous search warrant, and that’s essentially what had 

taken place over the intervening time.

McCabe said he would have expected the team to report this information to him 

directly rather than getting asked about it by Department personnel. We asked 

McCabe who was responsible for following up on the Weiner laptop. McCabe told us 

his understanding was that Strzok “was actually doing it” and Priestap would have 

had an oversight role. In fact, as discussed previously, nobody on the FBI Midyear 

team had taken any steps to follow up on the laptop, including steps to obtain legal 

authority to review its contents, after they learned about it in late September.
311

D. Call between McCabe, Sweeney, and NYO Criminal SAC on 

October 24

NYO ADIC Sweeney’s Outlook calendar contained the following entry for 

October 24: “7:30 pm-7:45 pm Telcal w/DD and [the incoming NYO Criminal 

SAC].” At the time of the call, the SAC was transitioning from an FBI job in 

Washington, D.C. to the Criminal SAC job in NYO. Although not reflected in his 

calendar entry, Sweeney told us he was “pretty sure” that during this call he 

mentioned to McCabe that SDNY had called Main Justice about the Weiner matter. 

Sweeney stated that he did not recall McCabe’s response to this information.

The SAC told us that Sweeney called him at some point during the week of 

October 24 while McCabe was giving him a ride home. The SAC told us that he 

almost immediately put Sweeney on speaker phone and the three discussed several 

topics. The SAC continued, “I don’t remember specifics. But I do remember 

talking about, it did come up regarding the Weiner laptop.” The SAC stated that he 

also believed that it “wasn’t a first impression,” meaning it did not seem like the 

first time Sweeney and McCabe had discussed the Weiner laptop.

McCabe told us that he had no recollection of this phone call.

IX. Reengagement of FBI Headquarters and the Midyear Team on the 

Weiner Laptop

Beginning on October 25, both McCabe and the FBI Midyear team took a 

renewed interest in the issue of the Weiner laptop. We discuss this renewed 

interest below, including conversations by McCabe with both the Department and 

Comey about the laptop, and reengagement by the Midyear team.

A. McCabe Phone Call with McCord on October 25

McCabe and McCord both told us that they discussed the Weiner laptop in a 

phone call in late October, though neither could recall the specific date. McCord 

provided contemporaneous notes from the call, but they were undated. Page also 

provided notes that referenced this call and her notes suggest the conversation 

occurred on October 25. Given the timeline of other events, we believe October 25 

is the date on which this conversation occurred.

McCabe stated that he wanted to update McCord on the status of the Weiner 

laptop and tell her that “we have a problem here that we need to deal with.” 

McCabe said he thought that he would have asked McCord about “scope of the 

warrant issues,” although he told us he did not remember many details about the 

conversation.

Page’s contemporaneous notes from October 25 included McCord’s name and 

phone number, and stated: “Anthony Weiner — ADIC NY – where are we on this? 

□ Not sure we can legally look at the material — Mary McCord needs to will find out 

where it is, status of the request.”
312

McCord stated that McCabe told her that NYO had found “many hundreds of 

thousands of emails from Huma Abedin to Secretary Clinton” on the laptop. 

According to McCord, McCabe stated that the Midyear team had planned to review, 

but SDNY told them to hold off while they examined the legality of doing that under 

the Weiner search warrant. McCord’s notes from the phone call included entries 

that stated, “mid-year team to try to determine if duplicative or new” and “Spoke to 

Sweeney last night.” McCord told us that the entry about Sweeney referred to a 

conversation McCabe stated that he had with Sweeney the prior night. 

McCord told us that she spoke with Toscas after the call with McCabe. 

According to McCord, Toscas stated that “SDNY had not shopped a search warrant 

on the laptop” and that the Midyear team was “getting together tomorrow to decide 

whether they want to search it and if they have probable cause to get a warrant.” 

Toscas told us that he did not recall a conversation between McCabe and McCord, 

but added that “it seems like something that would be in the ordinary course of 

what happened and would not stand out to me.” We also showed McCord’s notes to 

Toscas. Toscas commented that he did not know what the word “shopped” could 

mean in this context.

B. Comey, McCabe, and Sweeney Discuss the Weiner Laptop on 

October 25

On October 25 from 2:30 p.m. to 4:30 p.m., numerous FBI executives 

participated in one of Director Comey’s Quarterly Strategy Review sessions. 

According to Sweeney, who participated in the session by phone, at the conclusion 

of the discussions, McCabe asked him to stay on the line. Sweeney told us that 

only he, McCabe, and Comey remained.175

Sweeney’s notes from the October 25 discussion stated:

4:15 to 4:30 p.m. – SVTC – Short discussion w/D/DD/ADD following 

main SVTC re: [Clinton Foundation] matter. Follow-up following 

Strategy Briefing. Brief update re: Weiner investigation; overt legal 

process and ability to get fed SW for computer. DD – need to move 

forward and request action consistent with DOJ guidelines/election.

Sweeney described the discussion:

And then when the room clears, [McCabe] starts talking about the 

Weiner laptop.... [I]t goes into an explanation of who Weiner is, Huma 

Abedin’s husband. She’s the chief of staff. This is how these emails 

would likely be there. And that gets into a conversation about 

authority, like we can’t look at this stuff, and we’re not doing.

According to Sweeney, the conversation then turned to the NYO Clinton Foundation 

investigation.

 

175

 Sweeney told us that he did not recall Bowdich participating in this discussion despite the 

“ADD” notation in his calendar. Bowdich likewise told us he did not recall this discussion.
313

Sweeney stated that he did not remember McCabe going into detail about 

what had been discovered. For example, Sweeney said that he did not recall

McCabe providing the total number of emails on the laptop, although Sweeney 

stated McCabe may have mentioned that a large volume of emails had been 

discovered. According to Sweeney, McCabe stated that the Midyear team was 

“going to look at” the laptop and “get a search warrant.” We asked Sweeney about 

Comey’s reaction to the discussion of the Weiner laptop. Sweeney described 

Comey as “just absorbing the information.”

That evening, according to Sweeney’s notes, he made calls to the NYO

A/SAC, incoming NYO Criminal SAC, the Criminal Investigative Division AD, and 

Rybicki. The notes also included an entry for a follow-up call to McCabe. Each of 

these entries noted a discussion related to Sweeney’s earlier call with Comey and 

McCabe and the Clinton Foundation investigation. The entries for the calls with 

Rybicki and the Criminal Investigative Division AD also mentioned the Weiner 

investigation.

McCabe told us that he did not recall the discussion with Comey and 

Sweeney about the Weiner laptop and Clinton Foundation investigation. With 

regard to the Weiner laptop discussion, McCabe stated, “[T]he only conversation I 

recollect with the Director, it probably took place on the 26th, was telling him you 

need to have a meeting on this tomorrow. And as I said before, I remember that 

as being a one-on-one in his office.” Comey said that he did not recall the 

discussion with McCabe and Sweeney about the Weiner laptop and Clinton 

Foundation.

C. Midyear Team Emails on October 25

Strzok and FBI Attorney 1 exchanged the followings emails on October 25. 

The subject line of the email was “Weiner Material” and the sender of each email is 

identified after the timestamp.

2:55 p.m., Strzok: “Sorry to bother you, DoJ called [McCabe] looking 

for status of our potential review of the huma-hrc emails. Where/with 

who is that decision now? What would we need to do to get a 

decision? Thanks, Pete”.

3:31 p.m., FBI Attorney 1: “Is this the NY search warrant issue? We 

were waiting for NYO to get back to us about the volume of Huma 

related emails on the devices.”

3:35 p.m., Strzok: “Yes. I thought they said thousands? But I have 

no idea who I heard that from. Who at NYO is supposed to tell us?”

3:38 p.m., FBI Attorney 1: “I’miss [sic] not sure. [The Midyear SSA]

was working with the NYO SSA. Thousands? I hadn’t heard any 

numbers.”

3:45 p.m., Strzok: “OK I’ll ask [the Midyear SSA]”.
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This exchange is immediately followed by an email exchange between Strzok, FBI 

Attorney 1, and the Midyear SSA entitled “Weiner emails.” Again, the sender of 

each email is identified after the timestamp.

3:47 p.m., Strzok: “[H]ave you gotten an idea how many Huma-HRC 

emails are in the Weiner stuff? Has popped up on people’s radars 

again”.

4:34 p.m., Midyear SSA: “NY did not have an estimate of the number 

of emails during our lync call on 9/29/2016. I have not heard back 

from NY but can contact [the A/SAC] or ASAC...if needed for an 

update. [FBI Attorney 1] – do you know the status of the SW and 

whether we can review the emails?”

4:58 p.m., FBI Attorney 1: “They never did send me the actual SW, 

but based on they’re [sic] representations, we won’t be able to review 

the emails without additional process or consent.”

5:00 p.m., Strzok: “Yes please contact NY for #s. Thanks”.

We asked Strzok, FBI Attorney 1, and the SSA about this exchange. We told 

Strzok that this exchange suggested that nothing had happened since the 

September 29 call. Strzok replied, “That’s right. That’s my assumption I believe. 

Yep.” FBI Attorney 1 stated that Strzok’s email was the first time she recalled 

hearing about the Weiner laptop issue since September 29. The Midyear SSA 

agreed that this was probably his first contact about the issue since September 29.

We asked Strzok whether any action would have occurred without the 

Department notification to McCabe. Strzok stated:

Probably not. I mean, at some point, yes. At some point, there would 

have been a, God, what happened to that follow-up.... [T]his caused 

that to happen. There certainly would have been action. Whether that 

was the 25th or November 8th, or whenever, I’m not sure when that 

would have occurred.

However, Strzok emphasized that, at this point, there “was no indication on 

anybody’s radar that this was going to result in a notification to Congress.” 

Instead, Strzok stated that this was something the Midyear team would have to 

pursue, but he did not think it had any relevance to the election.

The Midyear SSA told us that the reason this was “coming on people’s radar 

again” was because NYO “was saying, hey, once again, we’ve got this stuff. What 

do you want us to do with it?” The Midyear SSA stated that he reached out to NYO

after receiving this email. He recalled that “New York was somewhat frustrated.”

X. Events Leading to the Decision to Seek a Search Warrant

In this section, we discuss the meetings, discussions, and emails that 

preceded the October 27 briefing where Comey authorized the Midyear team to 

seek a search warrant for the Weiner laptop.
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A. Midyear-NYO-SDNY Call on October 26

At 2:30 p.m. on October 26, Midyear FBI personnel, Midyear prosecutors, 

NYO, and SDNY participated in a conference call about the Weiner laptop. The 

highest ranking participants for each group on the call were Strzok, Toscas, the 

NYO A/SAC, and Kim.

The NYO A/SAC, ASAC, SSA, and Weiner case agent all participated in the 

call. This was the first time that the Weiner case agent had spoken directly with

anyone associated with the Midyear investigation. The case agent told us that he 

felt he was asked questions about information that he had already reported up the 

chain of command in September. He stated:

They were asking questions that I had already repeatedly answered in 

other calls. In other words, people were asking what domains are you 

seeing? How many emails are you seeing? What do you think you’re 

seeing? Who are they to, who are they from? What are the domains? 

Oh, we have that domain? What years? Like, questions that we, I had 

been asked and either had answered preliminarily, and then we 

became uncomfortable legally searching for those answers. But these 

were things that were known to me and had been made known above 

me for weeks.

The Weiner case agent stated that “the only thing that was new” was that others on 

the call asked him to speculate on what he had seen. According to the case agent, 

he stated, “Based on the number of emails, we could have every email that Huma 

and Hillary ever sent each other. It’s possible, given the pure volume, it’s 

possible.”

The NYO SSA described the call as “just basically discussions and information 

about...potentially what...was there, which we still didn’t know because we hadn’t 

looked at anything.” The A/SAC thought the call was “matter-of-fact” and said it 

was the first time they were questioned by an NSD lawyer. According to the 

A/SAC’s notes, NYO briefed that there were 675,000 emails on the laptop spanning 

a time period from 2006 to 2016, and stated that there “appears to be blackberry 

messages” on the laptop.

The FBI’s Midyear team told us that they learned important new information 

on the call.176 Strzok described it as “the triggering event” and FBI Attorney 1 

stated that this was the “call where it was crystallized to me what was on the 

laptop.” Strzok, FBI Attorney 1, and the Lead Analyst each cited two important 

pieces of information provided by NYO on the call.177 First, the presence of a large 

 

176

 Except for the September 29 call with NYO, the Midyear case agents and analysts had 

limited knowledge of and involvement with the Weiner laptop until after Comey’s October 28 letter to 

Congress. Our references to the “FBI Midyear team” in this Chapter generally refer to the leadership 

of the team, including Strzok, the Midyear SSA, and FBI Attorney 1.

177

 In comments provided to the OIG after reviewing a draft of this report, the Lead Analyst 

stated that he believed the October 26 call “was the first time [he] had ever personally heard the 

details related to the” Weiner laptop.
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volume of emails on the Weiner laptop, particularly the potential for a large number 

of @clintonemail.com emails. Second, the indication that the “missing emails,” 

meaning emails from Clinton’s first three months as Secretary of State, could be 

present on the laptop. Strzok explained that this was the most important factor 

and he did not believe that the Midyear team knew about the potential presence of 

the BlackBerry data earlier. Strzok added, “We need[ed] to try and get this 

because this is, potentially would alter, would change our understanding of the 

investigative conclusions that we arrived at in July.”

We asked Strzok what he was specifically told about the BlackBerry backups 

and if he thought these might be Blackberry backups for Clinton. Strzok stated:

[I]t wasn’t Clinton’s backups. It was the sense that it was Huma’s 

backups, and that Huma was frequently used, my recollection, as kind 

of a proxy for the, for Secretary Clinton. So if people wanted to get 

something to Clinton, they’d email it to Huma and say please print for 

the Secretary. And she would, she was a gatekeeper in that way. 

And, you know, would print it out and then take it to the Secretary.

I don’t, my recollection is that we certainly saw the domain. And that, 

the domain, because I think it was, and again, I’m, if I’m wrong 

forgive me. Att.Blackberry.net I think was that domain they used for 

the first three months, and we saw that on there. I don’t know if we 

had the granularity of detail to say Huma’s account on that domain in 

that time frame. I don’t know if we had that granularity. But I do 

know we had, I think, that domain in the span, coupling with the kind 

of overall volume that we thought there was a reasonable likelihood 

that, that it would be in there.

When asked how this information differed from the information presented on 

the September 29 call, Strzok, who did not participate in the September 29 call,

stated that his understanding from the Midyear SSA and FBI Attorney 1, who were 

on that call, was that NYO did not have “the numbers” or “the volume of domains.” 

Strzok said that he also thought that NYO had only provided preliminary data on 

the September call and “they weren’t quite sure what they had yet.” Strzok added 

that he knew NYO “couldn’t review it because it was outside the scope of their 

warrant.”

FBI Attorney 1 told us, “I don’t...even think they discussed any of that stuff

[on the September 29 call]. They certainly said there was some clintonemail.com, 

but again, like I said, that we were finding, people had clintonemail.com emails all 

over the place. There was nothing with this sort of certainty that this is what was 

on there.” The Midyear SSA stated that NYO provided “numbers” on this call, which 

he believed had not been provided previously.

Page told us that as a result of the conference call “we now understand that 

the Huma emails are of a volume that it could be meaningful and that there could 

be meaningfully new evidence that we have not previously seen in other materials 

we had reviewed.” She added that the “volume of emails” coupled with the 
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presence of a “BlackBerry backup” were the two most important new facts that 

came out of this call. Page’s notes from the call were entitled “Good news, in a bad 

news way (MYE).” She explained this heading by stating:

[M]y good news in a bad news way is a reflection of like, well, more 

evidence is always good news. It might either change our decision or 

outcome or further substantiate the outcome we reached. In a bad 

news way because, like, I cannot believe we are, we are here. We are 

doing this again on October 26th. Like, oh, my goodness.

FBI Attorney 1 told us that the decision to obtain a search warrant was made 

either on the call or shortly after it. FBI Attorney 1 noted that Toscas was on the 

call and “seemed to be on board” with the idea that the Midyear team needed to 

get the Weiner laptop. FBI Attorney 1 added that she was “surprised” that the 

Department left the call “talking about getting a search warrant.” She explained 

that she was surprised because it “definitely was...more aggressive than they had 

been before,” but thought this may have been due to “the time pressure.”

Prosecutor 2 told us that this call was when she first learned about the 

Weiner laptop. Prosecutor 2 stated that the prosecutors asked numerous questions 

to NYO and SDNY personnel “to try to figure out what they knew about the emails 

and, and about the devices, so we knew what the scope of like what we could look 

at.” Toscas stated that the information he learned in late October about the Weiner 

laptop, including information provided on this call, was markedly different than 

what he had been told McCabe had informed NSD about in early October. Toscas 

described the information provided earlier in October as “totally off base” and he 

told us that he attributed this discrepancy to a “garble,” or miscommunication.

B. Briefing of McCabe on October 26

Page told us that the team briefed McCabe about the information from the 

conference call on the evening of October 26. Page stated that McCabe indicated 

that “we’re going to need to reopen. This, this is significant. Or we’re going to 

need to at least seek a search warrant to sort of look at this material.” Page 

stated, “We informed the Deputy Director, and he says, yeah, we’ve got to get this 

in front of the Director tomorrow. And so that gets scheduled for the next 

day...[to] tell him what we found and what the team thinks, which is certainly we 

need to go get a warrant for this information.” On the morning of October 27, at 

6:10 a.m., Baker sent Page an email entitled “Follow up” and asked her if she had 

talked to McCabe yet and whether “[McCabe] talked to [Comey]?” Page replied at 

6:19 a.m., stating, “Yes I did talk to Andy, but he did not connect with [Comey]. 

Andy sent him an email this morning asking that he get a briefing from the MYE 

team.” We describe McCabe’s email and the events of October 27 below.

Strzok said that he thought that he and possibly the Lead Analyst and FBI 

Attorney 1 briefed McCabe after the conference call. Strzok stated that he 

explained the scope of what NYO possessed, why that was important, and why the 

Midyear team thought they should review the material. FBI Attorney 1 said that 
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she recalled briefing “the executives” about what they had learned on the 

conference call and the need to “look into this” using process.

Priestap told us that he did not recall this briefing with McCabe, but stated 

that he would normally be present for such a briefing. Priestap stated, “Very rarely 

would my team be there if I wasn’t there.”

McCabe told us that he could not recall who informed him of the substance of 

the conference call with SDNY and NYO, but stated it would have been some 

combination of Strzok, Priestap, the Lead Analyst, Page, and FBI Attorney 1. When 

asked what he was told, McCabe stated:

The only thing I remember is like we had at that point confirmed that, 

yes, there is no doubt what appears to be relevant email for us on this 

laptop. So the question then becomes like do we go full-bore into 

another round of exploitation along the lines of what we had already 

done in Midyear? How do we handle this thing? And then the 

implications of like notification and, and everything that they ended up 

struggling with the next day.

McCabe said that he did not recall any mention of seeing domains or emails 

associated with a BlackBerry device. We asked McCabe what was relayed that was 

not known in late September. McCabe replied:

I think they had looked a little bit deeper than just the tos and froms 

and could actually say, like, you know, I seem to remember in the kind 

of legally restricted view it was just kind of a snapshot having looking, 

you know, at stuff and then determined they couldn’t look further. 

That’s how they had a sense of what was there. Now, at this point, we 

had done some sort of more extensive review to say, okay, yeah, it’s 

like this number between these people, that sort of thing.

McCabe stated that he could not remember who had conducted this “more 

extensive review” and “was surprised” to learn that no one from the Midyear team 

reviewed the laptop until October 30. McCabe told us that he assumed someone on 

the Midyear team had reviewed the laptop “[b]ecause that’s what I initially asked 

for.” We asked McCabe if the fact that no one from Midyear had reviewed the 

laptop was an important fact that the team should have been brought to his 

attention. McCabe stated:

I know that I asked them to go up there and look at it. And they had 

a...SVTC with the team I think the following day. I think at some point 

I learned that they had a SVTC early on in this. In this process rather 

than traveling up there. But I certainly expected that our folks would 

be in New York looking at what we had on that laptop.

We asked McCabe why this issue was coming back to the forefront on 

October 26 instead of sometime earlier. McCabe stated that it was “[b]ecause I 

started asking questions about it probably.” We also asked McCabe what would 

have occurred if SDNY had not contacted ODAG and Toscas had not mentioned the 
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Weiner laptop to McCabe after the morning briefing. McCabe said he could not 

speculate on what would have happened if the facts were different, but stated that 

“it certainly is a good thing that George Toscas brought it to my attention.” 

McCabe added, “Is it something that I should have been getting briefed upon as the 

month went on? Absolutely.” McCabe told us that he had no idea why the topic of 

the Weiner laptop “wasn’t making its way into the agenda for those regular 

meetings and interactions with [Page], [Strzok], Steinbach, the Director.”

We also asked Baker why the Weiner laptop issue reemerged at this time. 

Baker stated:

[M]y understanding, it was simply that senior managers thought that 

they had delegated this to the right people and that the issue was 

being worked. And that they would come back with a proposal about 

what to do, and that we took the, took our collective eyes off the ball, 

didn’t pay attention to it, and when it came back and we were 

informed that it was not resolved, then it became a crisis. That’s the 

best I can reconstruct for you.

C. McCabe Recollection of Discussion with Comey on October 26

McCabe told us that he remembered mentioning the issue of the Weiner 

laptop to Comey twice. The first, as we described previously, McCabe stated was 

shortly after he learned of the laptop in late September. The second time McCabe 

stated was toward “the end of October”—McCabe estimated it was on October 26—

when he sat down with Comey “one-on-one” in Comey’s office. McCabe stated:

I told him we need to have a meeting on this because now we have 

some, you know, some clarity on, on what’s in this laptop. I 

specifically remember telling him, this is about that laptop we 

discussed a couple of weeks ago. I don’t know if he remembered it.

McCabe stated that he did not remember Comey asking him about the Weiner 

laptop during the period between the two meetings. McCabe told us that he 

believed that second meeting with Comey “was truly the second time that we 

discussed it.”

We asked McCabe to describe Comey’s reaction to this second conversation 

about the Weiner laptop. McCabe stated:

The best of my recollection it was just kind of an acknowledgement 

that, like, this was a very complicated issue that had a lot of 

problematic, you know, kind of downstream, there are all kinds of 

decision and issues that were related to this. It would be complicated 

and, and we need to figure it out.

McCabe said that he did not recall Comey mentioning the issue of congressional 

notification during this conversation.
320

As mentioned earlier, Comey told us that he dimly recalled being informed 

about the Weiner laptop in the “beginning of October.” Comey stated that he did 

not remember hearing of the Weiner laptop again until McCabe emailed him on the 

morning of October 27.

D. McCabe Email to Comey on October 27

On October 27, at 5:20 a.m., McCabe sent an email to Comey entitled “MYR.” 

Rybicki, Bowdich, and Page were cc’d on the email. It stated, “Boss, The MYR team 

has come across some additional actions they believe they need to take. I think we 

should probably gather today to discuss implications if you have any space on your 

calendar. I am happy to join by phone. Will push to Lisa and Jim to coordinate if 

you are good.” At 7:13 a.m., Comey responded, “Copy.”

McCabe told us that he felt the situation was “absolutely urgent” and that is 

why he proposed an October 27 meeting with Comey even though McCabe knew he 

would be out of town that day. When asked why it was urgent, McCabe stated that 

the situation was urgent because “it’s been sitting around for three weeks,” “it’s 

important,” and “it’s getting closer to” the election. We questioned McCabe about 

the tone of the email, pointing out that phrases such as “we should probably gather 

today” and “if you have any space on your calendar” did not suggest urgency. 

McCabe disagreed, stating, “I mean, by me saying I think we should probably 

gather today, that’s me saying this can’t wait until tomorrow.” McCabe told us that 

he assumed his second conversation with Comey, which he estimated was on 

October 26, “predated this email” and the email was simply the notification to 

Comey to set up the meeting.

We also asked Comey about the tone of McCabe’s email and whether the 

phrasing suggested a lack of urgency. Comey replied:

No, I didn’t take it that way since he’s emailing me at 5:20 a.m. I 

mean I took this, and the reason I remember it that way is, you don’t 

send the Director a dawn email about it would be nice to get together 

to talk about how we’re going to celebrate Arbor Day. I mean this is, 

the Midyear team has come across some additional actions they 

believe they need to take. And so I took it as, I believe what it 

intended is, we need to speak to you.

We asked Comey if knew what this email was about when he received it. He 

stated:

I don’t think so. I don’t remember—when I got this, I don’t 

remember, because my recollection is as I told you, is walking into the 

conference room with this grin on my face because they’re all sitting in 

the same seats and sitting down and saying something like the band is 

back together, what’s going on? And seeing these sort of dark faces, 

so I don’t—at least to my recollection, this is the first time that this

dawn email from Andy is we need to speak to you because the Midyear 

team has some additional actions they need to take and it didn’t, I 
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don’t remember this resonating context, resonating from this like, 

okay, let’s do it.

Comey also told us that he did not initially recall that he had been previously 

notified about the Weiner laptop. He explained:

October 27th, Andy...sent me an email early in the morning saying 

that the Midyear Team needs to meet with you today. And I 

responded, of course. And I actually don’t—I’ve thought about it 

since, I remember now, but I didn’t focus on it at the time. I was 

aware sometime in the first week or two of October that there was a 

laptop that a criminal squad had seized from Anthony Weiner in New 

York and someone said to me...kind of in passing, they’re trying to 

figure out whether it has any connection to the Midyear 

investigation.... And it’s funny, when I was first reminded, I didn’t 

even remember—by my staff saying, remember this is the laptop they 

mentioned to you. And I said, I don’t remember being told about a 

laptop, but it definitely was sometime in early October.

E. Midyear Team Communications Preceding Comey Briefing on 

October 27

On October 27, at 6:49 a.m., Page sent an email entitled “MYE” to Bowdich, 

Rybicki, Baker, Anderson, FBI Attorney 1, Strzok, the Lead Analyst, Priestap, 

McCabe, and Comey’s administrative assistant. The email stated, “Team, The 

Deputy has asked that we convene today to inform the Director about what we 

know regarding the laptop in NY. Time is TBD, but I just wanted to alert you all 

now.”

Strzok sent an email to the Lead Analyst a few minutes later about the 

briefing, stating, “I’ve got this. Will grab you and run down brief. Promise to make 

at least one sponsorship plug for William and Mary and one gratuitous yuck yuck 

joke about de-duping or getting the band back together.” We asked Strzok about 

the tone of the email and his state of mind at the time. Strzok stated that it was a 

“here we go again” moment, meaning that he was thinking that “we’ve got to get 

the team back together and make sure all the systems are set up and figure out 

how we’re going to get CART to do it.” Strzok added that he was not thinking 

about a letter to Congress at this point. Strzok told us that the first time the issue 

of congressional notification came up is during the briefing with Comey.

At 6:55 a.m., Strzok sent an email to the Midyear SSA and FBI Attorney 1 

asking “Would you please find out when NY got the [Weiner] laptop?” and to 

provide “a rough date [for] when you initially talked to them about their warrant.” 

FBI Attorney 1 responded:

[The Midyear SSA] and I had a conference call with NYO on Sept 29. I 

believe they got the devices several days prior to that, but I’m sure 

[the Midyear SSA] can find the exact date. At the time of the call, due 

to the volume, the system doing the imaging had just crashed so they 

thought it would take into the next week to find out any specifics 
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about the volume or email domains. We also discussed the fact that 

we received this via SW, not consent, so we really couldn’t look at the 

other emails without additional process or consent. But we wanted to 

find out more about what was on the device before deciding what to 

do next....

F. Comey Briefing on October 27

At 10:00 a.m. on October 27, the Midyear team briefed Comey on what NYO 

had discovered on the Weiner laptop. The following individuals were present for the 

briefing: Comey, Rybicki, Bowdich, Baker, Steinbach, Priestap, Strzok, Anderson, 

Page, FBI Attorney 1, and the Lead Analyst. McCabe was out of the office on 

October 27, but phoned in at the start of the briefing. However, shortly after 

phoning in, Comey asked McCabe to “drop off” the call, stating, “I don’t need you 

on this call.” Comey told us that he asked McCabe to leave the call because of the 

Wall Street Journal article on October 23 about then Governor McAuliffe’s 

contributions to McCabe’s wife’s campaign in 2015. (The circumstances leading up 

to Comey’s decision to exclude McCabe from this call and ultimately to McCabe’s 

recusal are discussed in detail in Chapter Thirteen of this report.) Comey told us 

that from that point forward McCabe had no involvement in the Midyear 

investigation. Page also left the meeting once Comey asked McCabe to “drop off” 

the call.

Comey stated that he was told during the briefing:

[T]hat the criminal squad had gotten this laptop from—through a 

search warrant in New York. They had obtained it in some odd way 

from like Anthony Weiner’s lawyers or something, but it came from 

Anthony Weiner who had been married to Huma Abedin for a number 

of years. And that the criminal squad had a search warrant, the scope 

of which they obviously were going to abide carefully, but that they 

had alerted—sometime in the previous couple of weeks, they had 

alerted the Midyear team that from the metadata they could see, there 

may be materials that the Midyear team would want to look at. And 

then they told me they had engaged in some sort of process where 

they got—I don’t know what it was, but somehow technically they got 

the stuff transferred down here and figured out how they could—what 

they could look at properly without a warrant and had been able to 

look at an image of that computer and what they saw led them to 

believe that they needed to go get a search warrant.

And I said, well tell me what you see. And they said, we see evidence 

of many, many, many, thousands and thousands of emails from the 

period of Secretary Clinton’s tenure as Secretary of State that—I 

forget how they said it, but basically that involved the Clinton email 

address domain. And they said that’s one. Two, we see 

Verizon.Blackberry.net email metadata. We don’t know what the 

content is, from the period of time when Secretary Clinton was using a 

Blackberry, Verizon.Blackberry.net account at the beginning of her 
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tenure as Secretary of State. And I remember them telling me this 

specifically, we think this may be the missing three months of emails. 

And as we talked about earlier, the reason that would be so important 

is that could be germane to an evaluation of her intent which is a 

central part of our investigation. They said we think we may have 

found the missing emails. We see thousands and thousands of others 

and so we’re highly confident that there are Secretary Clinton emails 

on there. Logic tells us that there will be classified emails on there 

because even if it’s a dup[licate] of what she had elsewhere, those 

classified emails would be there and we think it may be the missing 

emails and so we have—we feel compelled to go get a search warrant.

Comey reiterated that “the volume of emails” and the presence of the BlackBerry 

emails were “two highly significant facts” and that the presence of the BlackBerry 

emails in particular “weighed very heavily on me.”

Comey told us that the decision to authorize the Midyear team to seek a 

search warrant for the Weiner laptop “was an easy decision” and that there was no 

controversy over this decision. He noted that the Department agreed with the 

decision to seek the search warrant. Comey stated that “the harder decision [was] 

going to be what obligation do we have in the wake of that.” We describe these

discussions, which led to the October 28 letter to Congress, in more detail in 

Chapter Ten.

Others present for the briefing provided a similar account. Priestap told us 

that he recalled Comey asking if the Midyear team needed to review the Weiner 

laptop to be satisfied that they have “turned over the necessary stones” and “be 

comfortable with the decision we made.” Priestap continued:

And I remember telling him, yes. We don’t know with certainty what’s 

in there. It could be information that we’ve not seen, you know, thus 

far, and so yes...in effect it’s dereliction of duty to not, you know this 

thing is out here to pass it over. So yes, we’ve got to, we have to do 

it.

Strzok stated that Comey agreed “fairly quickly” with the team’s suggestion to seek 

a search warrant. Strzok continued, “And then it very quickly turns to a, okay, so 

do we need to tell Congress? And that, I think, in my mind, my recollection the 

first time that kind of comes up....”

Anderson told us that Comey asked Strzok and the Lead Analyst:

[I]f we ignore this pool of material, you know, can we still stand 

behind the assertion that we’ve done everything that, that, that we 

should have done? And the answer that, you know, that Pete and [the 

Lead Analyst] gave...these are not quotes or anything like that. But 

this is sort of like generally the sense, was that, no, we have to pursue 

this material, because, you know, we, we would do it in any other 

case. And it is, you know, a pool of evidence that hypothetically, now 

understandably it’s very speculative, but there is that possibility that it 
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could change our outcome, because of that, you know, that possibility 

that it could contain something about intent. 

Strzok also cited the missing emails, stating that if data from “that first three 

months” was present on the laptop it could be “substantively different from what 

we have recovered” to date.

Priestap provided a different perspective on the potential impact of the 

material on the Weiner laptop. He told us that he thought the review of the Weiner 

laptop was necessary even though he “would have been shocked” if they found 

anything on the laptop that changed the outcome of the Midyear investigation. 

Priestap explained:

I felt that we had reviewed so much stuff that even if this was all stuff 

we hadn’t reviewed, the chances that it was going to be some smoking 

gun in this subset of communications that didn’t come up in all of this 

other stuff, again, would have been, would have shocked me. Could it 

have been possible? Absolutely. That’s why we had to review it. But 

again, we had just done so much work and learned and seen so much 

else that to think there is going to be a sliver of, you know, 

information on nefarious activity that we weren’t seeing other places, 

I, I just doubt it.

XI. Analysis

A. Failure of the FBI to Take Earlier Action on the Weiner Laptop

In this section we analyze the failure of the FBI to take any significant action 

to obtain access to the contents of the Weiner laptop for purposes of the Midyear 

investigation between late September, when NYO communicated the essential facts 

about the laptop to the Midyear team, and late October, when the FBI finally 

obtained a search warrant and began the accelerated process of analyzing the 

laptop’s contents. As detailed below, we found most of the explanations offered for 

this delay to be unconvincing. Faster action could and should have been taken to 

review the laptop’s emails.

By no later than September 29, the FBI had learned virtually every fact that 

was cited by the FBI in late October as justification for obtaining the search warrant

for the Weiner laptop, including that the laptop contained:

 Over 340,000 emails, some of which were from domains associated 

with Clinton, including state.gov, clintonfoundation.org, 

clintonemail.com, and hillaryclinton.com;

 Numerous emails between Hillary Clinton and Huma Abedin;

 An unknown number of BlackBerry communications on the laptop, 

including one or more messages between Abedin and Clinton, 
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indicating the possibility that the laptop contained communications 

from the early months of Clinton’s tenure;178 and

 Emails dated beginning in 2007 and covering the entire period of 

Clinton’s tenure as Secretary of State.

Much if not all of this information was communicated to FBI Headquarters 

and to the FBI Midyear team before the end of September. NYO ADIC Sweeney 

described facts about the laptop to senior headquarters personnel on a September 

28 video teleconference. Testimony and documents show that Sweeney also 

briefed McCabe, Coleman, Steinbach, and Priestap individually on September 28. 

Of equal significance, NYO briefed the FBI Midyear team about the Weiner laptop in 

another conference call on September 29, including providing information that NYO 

lacked legal authority to review emails between Abedin and former Secretary 

Clinton under the existing search warrant. Witness interviews and 

contemporaneous notes show that most or all of the above information was known 

to the FBI Midyear team by late September.

The explanations given to the OIG for the FBI’s failure to take immediate 

action on the Weiner laptop fell into four general categories:

1. The FBI Midyear team was waiting for additional information about the 

contents of the laptop from NYO, which was not provided until late October.

2. The FBI Midyear team could not review the emails without additional legal 

authority, such as consent or a new search warrant.

3. The FBI Midyear team and senior FBI officials did not believe that the 

information on the laptop was likely to be significant.

4. Key members of the FBI Midyear team had been reassigned to the 

investigation of Russian interference in the U.S. election, which was a higher 

priority.

We examine each of these explanations in turn below.

The FBI Midyear Team was awaiting further information from NYO: 

Several members of the Midyear team offered this explanation, which we found 

unpersuasive. To begin with, all participants in the September 29 conference call 

knew that no one in the FBI could examine the contents of the emails of interest to 

the Midyear investigation without first obtaining either consent or a new search 

warrant, because the scope of the existing search warrant issued in the Anthony 

Weiner investigation was strictly limited. In addition, Sweeney informed Priestap of 

this fact on September 29. Although NYO was still processing the laptop as of 

 

178

 Although Comey identified this fact as critical to his assessment of the potential 

significance of the emails on the Weiner laptop, the information was not included in the October 30 

search warrant application for the Weiner laptop.
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September 29, the completion of this task would not eliminate the need to obtain 

proper search authority. It was up to the Midyear team and the NSD prosecutors to 

obtain authority to review the emails, not NYO or SDNY. Yet the FBI Midyear team 

took no action to inform the prosecutors about the laptop or to obtain authority to 

search it.179

Even if the FBI Midyear team somehow misapprehended the intentions and 

ability of NYO to provide more information about the emails, no one from the 

Midyear team followed up when NYO provided no update in the weeks following the 

September 29 call. Had the Midyear team inquired, they would have learned that 

NYO completed processing the laptop by around October 4, but was taking no 

further actions to review any information, including emails, unrelated to the Weiner 

child exploitation investigation—a fact that had previously been briefed to the FBI 

Midyear team.

The FBI Midyear Team needed legal authority to review the emails: 

This explanation for the absence of action, which was given by several witnesses, is 

illogical. As described above, the lack of legal authority to search the laptop related 

to the investigative interests of the FBI Midyear team, not to those of the NYO 

Weiner team. Thus, the factual information necessary to establish probable cause 

to obtain a search warrant for the information that the Midyear team was seeking 

resided with the FBI Midyear team, not the NYO Weiner investigation team. 

Moreover, this lack of authority to review emails between Abedin and former 

Secretary Clinton was known to the FBI Midyear team by September 29. If 

anything, this explanation should have served as a rationale for the FBI Midyear 

team to take affirmative steps to obtain a new search warrant that provided them 

with authority to review the emails between Abedin and Clinton on the Weiner 

laptop. Instead, the FBI Midyear team took no action at all to solve this problem. 

Indeed, they did not even tell the Midyear prosecutors, who would have to be 

involved in any search warrant application process (as they were in late October),

about the NYO discovery on the laptop.

The FBI Midyear Team did not believe the laptop evidence was likely 

to be significant: Strzok described his view of the Weiner laptop in late 

September as simply “a lead that likely is going to result in some investigation.” 

Strzok stated that the suggestion that the matter should have been treated with 

more urgency was “misplaced” because “[w]e did not know what was there.” He 

stated the team would have reviewed the emails at some point, perhaps in January 

or February 2017. Page also told us that the emails were not yet considered 

significant at that time because “emails had been found lots of other places that 

ultimately weren’t worth pursuing lots of other times.” Priestap similarly stated 

 

179

 We found that McCabe called NSD Principal DAAG McCord on October 3 and flagged the 

issue of emails in an iCloud account shared by Abedin and Weiner. However, McCord told us, and her 

contemporaneous notes indicated, that McCabe provided minimal information about this issue, and did 

not mention the potential presence of emails between Abedin and Clinton on Weiner’s laptop. We 

identified no other FBI Headquarters or Midyear personnel communications with the Department about 

the Weiner investigation—and no communications about the presence of Midyear-related emails on 

the Weiner laptop—until October 21.
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that he did not expect any new information discovered on the laptop to “change the 

outcome of the case” because the team had seen enough information previously to 

make him “confident we had gotten to the bottom of the...issue.” While the FBI 

ultimately concluded, after obtaining a search warrant and reviewing the ClintonAbedin emails, that the Weiner laptop contained no significant new evidence, 

Comey had a very different view of its potential importance after being briefed on it 

on October 27.

The view that the Weiner laptop was unlikely to contain significant evidence

arguably accorded with the FBI’s investigative strategy in this matter, although this 

approach was inconsistent with what witnesses told us was a “leave no stone 

unturned” approach to the investigation. As detailed in Chapter Five, the FBI 

Midyear team had decided to obtain or exploit only those personal devices directly 

associated with Clinton or the servers hosting clintonemail.com. The FBI sought no 

personal devices used by any other individual to conduct State Department work, 

including Mills, Abedin, and Sullivan. This included a decision not to seek the 

devices and culled work-related emails in the possession of Abedin’s attorney. 

Witnesses told us that the team’s focus was on Clinton’s conduct as opposed to the 

conduct of others, including Clinton’s senior aides, and the team assessed that 

Clinton’s devices and the laptops used to cull her emails were the most likely places

to find the complete collection of emails from her tenure or evidence of Clinton’s 

intent. In addition, witnesses told us that the Midyear team deemed Abedin’s 

emails to be less likely to contain classified information given her role and the 

nature of her communications with Clinton.

We found the belief that the Weiner laptop was unlikely to contain significant 

evidence to be an insufficient justification for neglecting to take action on the 

Weiner laptop immediately after September 29. Unlike the personal devices that 

the FBI had previously decided not to attempt to acquire, the Weiner laptop was 

already in the FBI’s custody and known to contain potentially relevant emails. Even 

those FBI officials who told us they did not expect to find new evidence agreed that 

it was a logical investigative step to seek to obtain a search warrant so that they 

could review the contents of the potentially relevant emails. In addition, and as we 

note below, the FBI developed little additional information about what was on the 

Weiner laptop between September 29 and October 27. However, Comey’s reaction 

to the information he was presented on October 27—which was substantially similar 

to what FBI Midyear and Headquarters personnel knew on September 29—suggests 

that the Weiner laptop should have been viewed as a more significant discovery. 

We hasten to add that not every witness described the Weiner laptop as

being unlikely to contain significant evidence. In particular, McCabe said he 

thought that the discovery of the emails on the Weiner laptop was a “big deal” and 

that he understood that the FBI Midyear team was proceeding with obtaining 

authority to review the laptop contents during the period immediately after 

September 29. Yet McCabe took no action for weeks to obtain a progress report or 

otherwise ensure completion of the analysis and when he did finally do so it was in 

response to Toscas mentioning the laptop issue to him on October 24. McCabe also 

did not convey a much-needed sense of urgency about this matter to Comey. 

Instead, he told us he gave Comey a “fly-by” briefing about the discovery shortly 
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after hearing about it on September 28. Comey told us he vaguely recalled hearing 

about the Weiner laptop around this time, but did not recall learning at that time 

any of the details that later caused him to announce the reactivation of the 

investigation on October 28. As the Deputy Director who was overseeing the 

Midyear investigation and who had been briefed by NYO on September 28 on the 

Weiner laptop discovery, McCabe should have demanded a progress report from the 

Midyear team and should have provided a full briefing to Comey well before October 

27.180

The Russia investigation was a higher priority: On July 31, 2016, just 

weeks after the conclusion of the Midyear investigation, the FBI opened its 

investigation of Russian interference in the ongoing presidential election. Strzok 

and several others from the Midyear investigation were assigned to the Russia 

investigation, which we were told was extremely active during this September and 

October time period.

181

 Several witnesses, including Priestap, Strzok, and Page, 

 

180

 After reviewing a draft of the report, McCabe’s counsel submitted a written response 

stating that McCabe shared all of the information he knew about the Weiner laptop with Comey soon 

after he first learned about it, and that any claim that McCabe “failed to fully inform Director Comey of 

what he initially knew about the Weiner laptop is inaccurate.” 

The submission also asserts that “[t]he OIG places inordinate weight on Mr. McCabe’s 

apparent reference during his OIG interview to a ‘fly by’ briefing of Director Comey in late September 

or early October.” However, as noted above, our primary concern was with McCabe’s failure to take 

any action in the weeks prior to October 24, and then doing so only in response to Toscas mentioning 

the laptop issue to him on October 24. 

McCabe also asserts in his written response that the “importance of exploring this collection of 

emails [on the Weiner laptop] was not immediately obvious” because the FBI had learned about 

various collections of allegedly relevant emails throughout the Midyear investigation, most of which 

turned out to be duplicative of previously examined emails or of marginal significance—a statement 

that we note is at odds with his description of the emails to us during his testimony as a “big deal.” 

McCabe stated that it was “unfair and misleading” to place the blame squarely on him for failing to 

follow up on the Weiner laptop with sufficient urgency, “even though many people in both FBI 

Headquarters and the New York Office were responsible for pushing the matter forward and failed to 

do so." McCabe described the delays in reviewing the Weiner laptop as a “failure with many fathers, 

including many other FBI executives, and not a shortcoming attributable to Mr. McCabe alone.” 

McCabe added, “And, while the OIG holds Mr. McCabe responsible for failing to demand progress 

reports, it is undeniable that Director Comey could have asked for updates based on what he had been 

told by Mr. McCabe, and he did not.... The OIG’s exercise of hindsight that leads it to place blame on 

Mr. McCabe—and only Mr. McCabe—for the failure to more promptly ‘demand a progress 

report,’...ignores the other FBI managers and executives who dropped the ball.”

181

 We were surprised to learn that FBI leadership decided to assign many of the key 

members of the Midyear team, immediately after determining that no charges should be brought 

against then candidate Clinton, to the Russia investigation, which touched upon the campaign of then 

candidate Trump. This is particularly so given the questions being raised by candidate Trump and his 

supporters regarding the declination decision in the Midyear investigation. While we recognize that 

staffing decisions are for management to make, we question the judgment of assigning agents who 

had just determined that one candidate running in an election should not be prosecuted to an 

investigation that relates to the campaign of the other candidate in the election. The appearance 

problems created by such a staffing decision were exacerbated here due to the text messages 

expressing political opinions that we discuss later in this report. Surely, the FBI’s Counterintelligence 

Division had talented agents who were not involved in the Midyear investigation who could have fully 

staffed the Russia investigation. Such a decision also would have eliminated the excuse we were 
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stated that the Russia investigation was a higher priority in October than reviewing 

the Weiner laptop. Priestap, in particular, provided convincing justifications for the 

prioritization decisions he made in light of his management responsibilities, 

including that Comey had tasked him with overseeing the FBI’s multifaceted efforts 

to protect the 2016 election from foreign interference.

Nevertheless, from an institutional perspective, we found this explanation 

unpersuasive and concerning. Strzok and the other Midyear personnel reassigned 

to the Russia investigation were not the only agents in the FBI. Had the FBI 

considered the Weiner laptop significant, additional personnel could have been 

assigned to handle it. Moreover, not all of the Midyear personnel were assigned to 

Russia. This was a staffing choice, not an excuse for inaction.

This is even more evident when contrasted with the attention that the FBI 

gave to other activities in connection with the Midyear investigation during the 

same period. As detailed in Chapter Eight, these activities included the preparation 

of Comey’s speech at the FBI’s SAC Conference on October 12—a speech designed 

to help equip SACs to “bat down” misinformation about the July 5 declination 

decision; the preparation and distribution of detailed talking points to FBI SACs in 

mid-October in order, again, “to equip people who are going to be talking about it 

anyway with the actual facts and [the FBI’s] actual perspective on [the 

declination]”; and a briefing for retired FBI agents conducted on October 21 for the 

purpose of describing the investigative decisions made during Midyear so as to arm 

former employees with facts so that they, too, might counter “falsehoods and 

exaggerations.” Some of these discretionary activities required significant efforts 

by members of the Midyear team. Moreover, some of the claims made in those 

talking points and presentations concerning the thoroughness of the investigation 

were at odds with the approach that these Midyear team members were taking with 

regard to the Weiner laptop.

In assessing the decision to prioritize the Russia investigation over following 

up on the Midyear-related investigative lead discovered on the Weiner laptop, we 

considered the text messages that Strzok exchanged with Page expressing hostility 

for then candidate Trump and preference for a Clinton victory. We were particularly 

concerned about text messages sent by Strzok and Page that potentially indicated 

or created the appearance that investigative decisions they made were impacted by 

bias or improper considerations. Most of the text messages raising such questions 

pertained to the Russia investigation, and the implication in some of these text 

messages, particularly Strzok’s August 8 text message (“we’ll stop” candidate 

Trump from being elected), was that Strzok might be willing to take official action 

to impact a presidential candidate’s electoral prospects. Under these 

circumstances, we did not have confidence that Strzok’s decision to prioritize the 

Russia investigation over following up on the Midyear-related investigative lead 

discovered on the Weiner laptop was free from bias.

 

given here about the Russia investigation impacting the ability of agents to address the Weiner laptop 

issue.
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We searched for evidence that the Weiner laptop was deliberately placed on 

the back-burner by others in the FBI to protect Clinton, but found no evidence in 

emails, text messages, instant messages, or documents that suggested an 

improper purpose. We also took note of the fact that numerous other FBI 

executives—including the approximately 39 who participated in the September 28 

SVTC—were briefed on the potential existence of Midyear-related emails on the 

Weiner laptop. We also noted that the Russia investigation was under the 

supervision of Priestap—for whom we found no evidence of bias and who himself 

was aware of the Weiner laptop issue by September 29. However, we also did not 

identify a consistent or persuasive explanation for the FBI’s failure to act for almost 

a month after learning of potential Midyear-related emails on the Weiner laptop.

In sum, we concluded that the explanations given for the failure of the FBI to 

take action on the Weiner laptop between September 29 and the end of October 

were unpersuasive. The FBI had all the information it needed on September 29 to 

obtain the search warrant that it did not seek until more than a month later. The 

FBI’s neglect had potentially far-reaching consequences. Comey told the OIG that, 

had he known about the laptop in the beginning of October and thought the email 

review could have been completed before the election, it may have affected his 

decision to notify Congress. Comey told the OIG, “I don’t know [if] it would have 

put us in a different place, but I would have wanted to have the opportunity.”

B. Decision to Seek Search Warrant on October 27

Several FBI witnesses told us that the reason the FBI decided to seek a 

search warrant on October 27 was because the Midyear team learned important 

new information about the contents of the Weiner laptop at around that time. We 

concluded, however, that this decision resulted not from the discovery of dramatic 

new information about the Weiner laptop, but rather as a result of inquiries from 

the Weiner case agent and prosecutors from the U.S. Attorney’s Office for SDNY on 

October 21.

We begin by noting that every fact that would ultimately be included in the

October 30 search warrant that the Midyear team obtained to review the Weiner 

laptop was known to the FBI in late September. As we discuss in Chapter Eleven, 

the October 30 search warrant included limited factual information about what the 

Weiner case agent had seen during his review of the laptop. The search warrant 

stated that the FBI had “information indicating that there are thousands of Abedin’s 

emails on the [Weiner laptop] – including emails, during and around Abedin’s

tenure at the State Department, from Abedin’s @clintonemail.com account as well 

as a Yahoo! Account appearing to belong to Abedin.” As detailed above, these facts 

were not only known to FBI NYO, but had been communicated to FBI Headquarters 

and FBI Midyear personnel on multiple occasions in late September.

Moreover, the information known to the Midyear team on October 27 when it 

briefed Comey about the laptop was substantially similar to the information that 

NYO had made known to FBI leadership and the FBI Midyear team on September 

28 and 29. This information is summarized in the bullet points in the prior section. 

There was a conference call on October 26 between NYO and the FBI Midyear team 
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which involved some participants who had not participated in the September 29 

conference call, including Strzok and the Weiner case agent. However, apart from 

an update on the total number of emails on the laptop, we found no evidence the 

October 26 call involved the communication of significantly more specific 

information about the nature of the messages on the laptop.

Witnesses, including Comey, cited two pieces of information from the October 

26 call that they described as new and of particular importance in triggering the 

decision to reactivate the investigation. The first involved the total volume of 

emails on the Weiner laptop. Contemporaneous notes show that during the 

September 29 call NYO reported that there were approximately 350,000 emails on 

the Weiner laptop, that these included emails between Huma Abedin and former 

Secretary Clinton using various Clinton-related domain names, and that the laptop 

was still being processed. On the October 26 call, NYO reported approximately 

675,000 emails were on the laptop. We found that the increased volume of emails 

on the Weiner laptop—from 350,000 to 675,000—to have little or no significance in 

the absence of additional information about the content or metadata of the emails.

The second piece of new information cited by witnesses was the presence of 

BlackBerry backups on the laptop. However, this information was not new. One of 

the first messages the Weiner case agent saw on the laptop in late September was 

a BlackBerry message between Clinton and Abedin. And the Midyear SSA told us 

that the presence of BlackBerry information on the laptop was mentioned during 

the September 29 call between Midyear and NYO personnel.

While Comey and other witnesses gave much significance to the BlackBerry 

data (the former describing them as the “golden emails”), very little specific 

information was known about those messages as of October 27. No specific 

information had been developed or provided regarding the volume or date range of 

the BlackBerry data. We found no evidence that NYO provided any more specific 

information about the BlackBerry data in late October than they had previously 

provided in late September. Indeed, this seems even more apparent given the fact 

that NYO was legally prohibited under the scope of the Weiner search warrant from 

reviewing any information unrelated to their child exploitation investigation.

We found that what changed between September 29 and October 27 that 

finally prompted the FBI to take action was not new information about what was on 

the Weiner laptop but rather the inquiries from the SDNY prosecutors and then 

from the Department. The only thing of significance that had changed was the 

calendar and the fact that people outside of the FBI were inquiring about the status 

of the Weiner laptop.
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CHAPTER TEN: 

THE DECISION TO NOTIFY CONGRESS ON OCTOBER 28

In this Chapter we address Comey’s decision to send a letter to Congress on 

October 28, 2016, about the emails discovered on the Weiner laptop. Comey made 

the decision to send the letter on October 27, following the briefing he received 

from the Midyear team that morning.

In Section I of this Chapter, we address various factors that Comey and 

others in the FBI said they considered with respect to the decision to make the 

disclosure. In Section II we compare the decision to notify Congress about the 

Midyear investigation with the way in which the Russia and Clinton Foundation 

investigations were handled. In Section III we discuss certain internal FBI

messages about the decision that we discovered in the course of our review. In

Section IV we address the process by which the FBI announced Comey’s decision to 

the Department and how Department leadership reacted to his decision. In Section 

V we discuss how the October 28 letter was drafted, edited, and finalized. In

Section VI we provide our analysis of Comey’s decision.

I. Factors Considered as Part of Comey’s Decision to Notify Congress

The question of whether to notify Congress of the Midyear team’s discovery 

of emails on the Weiner laptop was first raised during the briefing to Comey on the 

morning of October 27. FBI personnel involved in the decision told us that over the 

next 24 hours, numerous discussions occurred about whether to notify Congress of 

this development. Below we address the various factors relevant to this decision 

that Comey and others in the FBI told us they considered.

A. Belief That Failure to Disclose Would Be an Act of Concealment

Two broad categories of longstanding Department and FBI policies, norms, 

and practices were potentially relevant to the decision to announce the reactivation 

of Midyear. First, the Department and the FBI regularly decline to comment 

publicly or to Congress regarding ongoing criminal investigative activity. Comey 

endorsed this principle in general, stating, “I believe very strongly that our rule 

should be, we don’t comment on pending investigations.”

Second, the Department has a longstanding practice of avoiding actions that 

could impact an imminent election, which Comey described as a “very important 

norm.” Comey stated:

I said to [the team] here’s the way I think about it. I’ve lived my 

entire career in the Department of Justice under the norm, the 

principle, that we, if at all possible, avoid taking any action in the run 

up to an election, avoid taking any action that could have some 

impact, even if unknown, on an election whether that’s a dogcatcher 

election or president of the United States....
334

Comey told us that the circumstances surrounding the discovery of emails on 

the Weiner laptop did not permit him to conform to these policies and norms, and 

that, in particular, remaining silent did not appear to be an option. Comey 

explained:

I couldn’t see a door—I said to the people inside the organization—I 

can’t see a door labeled, no action here. I can only see two doors and 

both were actions. One is speak, the other is conceal. Because having 

testified about this multiple, multiple times, like working backwards in 

September, July and having spoken about it on July 5th, and told 

Congress, the American people, a material fact which is, this is done 

and there is no there there. To now restart and not just in a marginal 

way, in a way where we may have found the missing emails, that to 

not speak about that would be, in my view, an affirmative act of 

concealment. And so I said okay, those are the doors. One says 

speak, the other says conceal. Let’s see what’s behind the speak door. 

It’s really bad. We’re 11 days from a presidential election. Given the 

norm I’ve long operated under, that’s really bad. That will bring such 

a storm. Okay, close that one, really bad. Open the second one. 

Catastrophic. And again this is something reasonable people can 

disagree about, but my view was to conceal at that point given all I 

had said would be catastrophic. Not just to the Bureau, but beyond 

the Bureau and that as between catastrophic and really bad, that’s 

actually not that hard a choice. I’ll take really bad over catastrophic 

any day. And so I said to the team, welcome to the world of really 

bad.

Comey testified before the Senate Judiciary Committee on May 3, 2017, and 

spoke at length about the Midyear investigation. When talking about the October 

28 letter, Comey testified:

[W]hen the Anthony Weiner thing landed on me on October 27 and 

there was a huge—this is what people forget—new step to be taken, 

we may be finding the golden missing emails that would change this 

case. If I were not to speak about that, it would be a disastrous, 

catastrophic concealment.

B. Perceived Obligation to Update Congress

Comey told us that he felt he had an obligation to update Congress that the 

FBI was seeking a search warrant for the Weiner laptop in the Midyear investigation

because the email discovery was potentially very significant and that made Comey’s

prior testimony no longer true. Comey stated:

I don’t think the obligation was rooted in my having promised to come 

back to them if I learned new evidence. I have read some of that in 

the open source; people saying the reason he did it is he had made a 

promise to Congress that he would supplement the record. No. I

mean maybe I did in some form, but that’s not how I thought about it. 
335

I thought my obligation to Congress is—I testified under oath for 10 

hours and said there’s no there there; we’re done.... And now that is 

materially untrue and that’s the obligation I felt.

Comey stated that his July 5 statement was “actually irrelevant” to this obligation. 

Comey told us that the Department could never have closed the Midyear 

investigation with a “no comment.” Instead, he said that, in the absence of his July 

5 statement, the Department would have had to state that it conducted a “fair, 

honest, and independent” investigation and that the investigation was now closed. 

Comey stated that once that statement was made—in whatever form it came—“the 

decision that came in October [was] inevitable because all of a sudden that’s not 

true.”

In his testimony to the Senate Judiciary Committee, Comey stated, “I’ve got 

to tell Congress that we’re restarting this, not in some frivolous way, in a hugely 

significant way.” Comey added that “everyone on my team agreed we have to tell 

Congress that we are restarting this in a hugely significant way.”

Comey added that the significance of the potential evidence on the Weiner 

laptop was a factor in assessing his obligation to notify Congress and the public. He 

stated:

Yeah, so I’m sitting there. It’s October 27th and there’s a reasonable 

likelihood that we are going to find material—one possibility—that will 

change our view of the Hillary Clinton case. Two, even if it doesn’t, 

that we know something that is materially different than what the rest 

of the world knows and has relied upon since I spoke about this.... 

The FBI is done. There is no there there and that to conceal that, in 

my view, would be—subject the FBI and the Justice Department, 

frankly more broadly...to a corrosive doubt that you had engineered a 

cover up to protect a particular political candidate. And that especially 

given your pledges of transparency, not—I don’t actually put much 

stock in the notion that I promised to get back to Congress, but that I 

had said to everybody, the credibility of the Justice enterprise is 

enhanced by maximal credibility, maximal transparency. I offer that 

transparency, and then I know something that materially changes that 

picture and I hide it, I think the results would be generations-long 

damage to the credibility of the FBI and the Justice Department. 

That’s what I think about it.

Comey told us to put aside any hindsight bias about what was actually found 

on the laptop and “sit with me on October 28th and make this decision. And where 

you have a reasonable prospect of something that is world changing with respect to 

that investigation, then decide whether you speak about it or not." Comey 

emphasized that this was “not just any investigative step, again you have reason to 

believe that there are hundreds of thousands of germane emails, including which is 

a very important fact to me, potentially the missing BlackBerry...emails from early 

in her tenure.” He continued, “[S]o this isn’t a frolic and detour, this is, it’s the 
336

reason the Department thought we had to get a search warrant, there’s potentially 

highly significant information there.”

We asked other FBI personnel about the nature of this obligation to update 

Congress. Rybicki told us that Comey felt he had an obligation “to basically 

supplement [the] record” with Congress because he had testified that the 

investigation was complete. Bowdich told us that he thought the obligation grew 

out of Comey’s July 5 press conference. Bowdich stated, “The Director felt like, 

hey, if we don’t notify them, after the July 5th notification, we could potentially be 

accused of concealing information. I remember him using that, that word.”

Steinbach described Comey’s decision and his obligation by stating:

[T]he overriding question was say nothing and get accused, worst case 

scenario, of covering up. Or be transparent and say we have 

something, we just don’t know what it is, and let that course play out. 

And I, you know, again, I, I describe the Director as a very 

transparent, communicative...person. And I want to say that that 

transparent piece probably weighed on him more than the not saying 

anything piece. And also I think his, his belief that he had somehow

made that pledge to Congress.

The Lead Analyst stated that at one of the meetings during this period,

Comey asked everyone in the room their opinion on whether the FBI had an 

obligation to notify Congress. When it was his turn, the Lead Analyst told us:

I will never forget what I told him. I said, sir, every instinct in my 

body tells me we shouldn’t do it, but I understand your argument that 

you have to make a, a factual representation, a factual correction to 

Congress to amend essentially what you told them, that otherwise, 

because I think that was really where he had coalesced or the 

discussion had, that he had made this statement to Congress, and that 

doing things like serving process is contrary to what he had told 

Congress. So he felt like he had to correct that record.

FBI Attorney 1 told us that an OGC attorney was tasked with researching 

whether Comey had a legal obligation to correct the record with Congress. FBI 

Attorney 1 stated, “I think what we decided was that he did not make a promise to 

come back to them. But that [the] implication was that the investigation was 

over.” We asked FBI Attorney 1 to explain her understanding of Comey’s 

obligation. She stated:

I think [Baker] and the Director just believed that, yes...the letter of 

what he said did not say I will come back to you. But they believed

that he had an obligation to do so under...just general standards of 

candor...that we had finished the investigation. It was not finished.... 

I just think he felt that what he had said, the impression he had left, 

because he was the one testifying, was that he would come back to 
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them. And [Baker] thought that, and [Baker] agreed with that part, 

definitely.

Baker told us that he believed that he was the person who first raised the 

issue of Comey’s obligation to update Congress. Baker stated that this obligation 

arose because Comey had “told Congress repeatedly this thing is closed” and had 

now authorized “a significant step forward in the investigation.” Baker stated that 

this obligation had nothing to do with the July 5 statement and was instead related 

to Comey’s testimony to Congress. Baker stated that even if Comey had not done 

the July 5 statement, eventually “[Comey] would have had to go to Congress, talk 

about the FBI’s investigation, talk about our conclusions. Say that we agreed or 

disagreed with the Department’s decision. And then, having done that, he would 

have been in the soup in the same way at the end of October.” Baker told the OIG 

that he believed that the perceived need to notify Congress was the overriding 

factor that drove the decisionmaking.

Anderson told us that she believed Comey needed to supplement his 

testimony to Congress because it “was such a significant issue” that “it would have

been misleading by omission.” Anderson stated that even though Comey did not 

explicitly tell Congress he would update them, it was “implied” in “his testimony 

overall.”

C. Avoiding the Perception that the FBI Concealed the New 

Information to Help Clinton Win the Election

Comey told us that he was concerned that if the FBI failed to disclose the 

new information, it could be accused of attempting to help Clinton get elected. He 

stated that “to conceal that, in my view, would be—subject the FBI and the Justice 

Department, frankly more broadly...to a corrosive doubt that you had engineered a 

cover up to protect a particular political candidate.”

Baker also expressed this concern. He stated:

[N]ot to notify Congress is...an action because it also potentially could 

have an impact on the election...so for example, [imagine] we don’t 

say anything. We push past the election, and then we announce that, 

well, by the way, we’ve authorized a search warrant, and we found all 

these emails. Let’s imagine, right? Because we don’t know what the 

facts are.

We find all these emails. You guys have probably heard this story, but 

I’ll just say it again. And it turns out that, oh, my God, there were 

more classified emails of a different type, or there’s clear evidence that 

she knew what she was doing. It kind of pushes us from the probable 

cause thing up to the beyond a reasonable doubt. And now we’re 

going to change our view about charging her.... If she’s been elected 

president of the United States, then Donald Trump would say, oh my 

God, these people knew this beforehand and didn’t say anything. This 

is a rigged system. This is, this, these people intentionally hid that 
338

until after the election so that they could get her elected and, and 

thwart me.

Steinbach also stated a similar concern. He stated:

I think weighing on everyone’s mind is if, if we get through this and a 

week after the general election we find relevant material, the Congress 

and the American public will never allow the FBI to live that down. 

You clearly hid this from the American public. And you knew you had 

something, yet you waited until after, until after she became president 

before you disclosed that you found something relevant. That was one 

course of action. The other course of action is we, we state it and get 

accused of influencing the election beforehand.

Steinbach continued:

We felt that, again, the, the Congress, the American people, would 

never be able to say FBI, you withheld this. The last thing we wanted 

to have happen was, hey, I wouldn’t have voted for her if I had known 

this. And so that was weighing on our minds. We wanted there to be 

transparency, both in November as well as in, in July. Hey, here is the 

set of facts. Here is the good and the bad. You, and again, I think 

that’s, there’s somebody, many feel that’s not your job, but I think the 

discussion items were, lay out the facts and let people decide for 

themselves. And that, and maybe not in those exact words, that was 

a theme through the course of this.

Steinbach told us he did not recall if Comey “said it in exactly these words, but, in 

the totality, that’s what he conveyed to us.” Steinbach added that Comey “wanted 

to be transparent.”

1. Protecting the Reputation of the FBI

Several witnesses articulated a concern that failing to disclose the decision to 

seek the search warrant would injure the reputation of the FBI—a concern that, as 

discussed above, was closely related to avoiding the perception that the FBI was 

hiding the information to help Clinton.

Bowdich stated, “I know [Comey] really felt hung out there with Congress, 

and he was so worried about the institution getting hurt. He didn’t, he knew it was 

a bad situation. But the institution getting hurt by thoughts of us concealing this 

information.”

FBI Attorney 1 told us that the team “certainly considered” what would 

happen if the FBI chose not to disclose this information to Congress and the 

information became known after the election. She stated that would have had “a 

much more significant impact on the reputation of the FBI” because the FBI would 

have been accused of “somehow hiding” that information from Congress. We 

pointed out to FBI Attorney 1 that the FBI’s standard practice is not to release 
339

information on investigations and asked her if not sending the letter would have 

simply been consistent with standard practice. She responded:

It would be, except we had already released information. And that’s 

what I said about, maybe I would have done something differently on 

the July 5th [statement]. We had already released all of the 

information and said this is what we’re doing. This is what we’ve 

decided. And then to then go back to the same stuff and...leave 

everybody with the impression that that’s what we’ve decided, and 

then a week later, everybody finds out that we, we had reopened this 

investigation. I think that would have been much more detrimental. 

To the FBI’s reputation and to the, the Justice Department’s 

reputation.

2. Protecting the Legitimacy of a Clinton Presidency

Comey told us that he was concerned about the perceived illegitimacy of a 

Clinton presidency that would follow from a failure to make the October 28 

disclosure. Comey stated:

I don’t remember thinking this explicitly, but I’m sure I was operating 

in an environment where she was going to be the next president, and I 

was in a position to have her be an illegitimate president the moment 

she was elected because I would have concealed a material 

development in her investigation. And the moment she took office, 

the FBI is dead, the Department of Justice is dead and she’s dead as 

president....

FBI Attorney 1 expressed similar concerns to us, but said she did not express 

them at the time. FBI Attorney 1 stated:

I also think it would have been detrimental.... I was careful not to 

discuss this. But in my mind, it was detrimental...if Secretary Clinton 

was elected president, then...it would have come out. It would have 

definitely come out that we had done the search warrant. And then, 

then it would have been an illegitimate, like it would have been 

grounds for, you know, you couldn’t have elected her. She was under 

investigation. All of those sorts of things that would have...had more 

of an impact if you didn’t say anything.

D. Concerns about the Electoral Impact of the Announcement

Comey told us that he decided at the time that he would not consider who 

would be helped or hurt by making public the reactivation of the Midyear 

investigation. Comey stated:

I will not engage in the exercise of figuring out who will be helped/who 

will be hurt, which way this will cut, who will play it, because then I’m 

starting to make judgments based on a political calculation. Instead, I 

should think about what is the right thing to do given the circumstance 
340

which we find ourselves. Where I’ve...made material representations 

and what is the best thing for the Justice institution to do given that, 

without regard to what may happen, so consciously I did not.

Comey described the debate within the FBI about the congressional 

notification as a “family conversation,” where everyone was free to state their 

opinions and concerns. Comey specifically told us of a concern expressed by 

Anderson during this conversation. Comey stated:

[O]ne important part of the family conversation about whether to send 

the October 28th letter was Jim Baker knew from his conversations 

with Trisha Anderson that one of her concerns was how should we 

think about the fact that this might hurt Hillary Clinton and help elect 

another candidate, that kind of thing, and Baker said we should raise it 

with the Director and that’s the kind of stuff he wants you to raise and 

I gather he thought she might not raise it. So at our next family 

discussion that evening, he said let me ask you a contrarian question. 

You know how do you think about this? And then I think she spoke 

herself and said, how do you think about the fact that you might be 

helping elect Donald Trump? And I said, I cannot consider that at all. 

Down that path lies the death of the FBI because if I ever start 

thinking about whose political ox will be gored by this or that, who will 

be hurt or helped, then we are done as an independent force in 

American life and so I appreciate you raising it, I cannot consider it. 

And I was very glad she raised it because it was probably a question 

that was looming in lots of people’s minds and I think my answer was 

the right answer....

Anderson stated that she did not remember exactly what she articulated in 

the discussions about the letter, but she told us that she had a conversation with 

Baker prior to the final meeting with Comey on the morning of October 28. 

Anderson stated:

I do remember saying more explicitly to Jim Baker that I was worried 

that what we were doing was going to have an impact on the election. 

Was that appropriate for the Bureau? Was that, you know, did, I was 

concerned about that for, you know, for us as a, as an institution. 

And, and at least that that was how we were going to be perceived. 

The FBI was going to be perceived as having impacted the outcome of 

the election. And, you know, and sort of tied to that...had we reached 

the threshold, you know, that it was essential that we send this letter? 

And this is where, you know my, you know, my concerns about 

materiality and sort of fairness to the former Secretary, you know, 

played in. You know, in light of the fact that we’re going to be 

perceived to be affecting the outcome of the election, is there really 

enough here to warrant us doing that?

Anderson stated that Baker first raised Anderson’s concerns to Comey during 

the October 28 morning meeting and “kind of put [Anderson] on the hot seat.” 
341

Anderson stated that she articulated her views to Comey and told him, “I’m not so 

certain that this is the right thing to do.” Anderson told us that a robust discussion 

ensued. Anderson stated that she did not recall either candidate being mentioned 

by name in this discussion and said any discussion of impact on the election 

“certainly would not have been couched in terms of” helping or hurting either 

candidate. Anderson added that “it would have been highly inappropriate for there 

to be any partisan you know, motive or interest in influencing the outcome of the 

election.” Anderson stated, “I don’t know that I walked away from the meeting 

feeling, you know, totally convinced that it was the right thing to do, but I also 

understood why the other options were worse.”

After reviewing a draft of this report, Anderson clarified her testimony to the 

OIG. Anderson added:

While I do not remember the specific words that I used, I recall very 

clearly that I did not couch my concerns in terms of the FBI's actions 

helping or hurting any particular presidential candidate. Rather, I 

asked [Comey] whether we should take into account that sending the 

letter might have an impact on the outcome of the election, or could 

be perceived as having such an impact. I stated that I had concerns 

about our actions having such an impact particularly given that it was 

unclear—and perhaps even unlikely—that the emails would be material 

to the investigation. I also recall raising a concern about it being 

unfair to the former Secretary—in a sort of due process sense—

because no matter how carefully we wrote such a letter, the 

importance of the emails would be overinflated and misunderstood. 

So, in my mind, and what I believe I argued in the meeting, was that 

we were about to do something that could have a very significant 

impact on the outside world even though what we had might not be 

material, yet people would very likely view it as such.

We asked Baker about Anderson’s concerns. Baker told us that Anderson 

came to him the morning of October 28 and stated:

I’ve thought about this overnight. I have serious reservations about 

going down this road. I’m very concerned about this, Jim. Why? 

Well, because I’m concerned that we are going to interject ourselves 

into this process. We’re going to interject ourselves into the election 

in a way that’s, that potentially or almost certainly will change the 

outcome. And I am, I, Trisha, am quite concerned about that. And 

I’m concerned about us being responsible for getting Donald Trump 

elected.

Baker stated that Anderson was worried about “putting the thumb on the scale” in a 

way that is “going to hurt one candidate and benefit another one right before the 

election.” Baker told us that he asked Anderson if she wanted to bring this up with 

Comey, but Baker stated that “she was reticent” to do so. Baker said that he 

brought the issue up with Comey during the meeting that morning in order to make 

sure Anderson’s concern was brought to Comey’s attention without attributing it to 
342

her. Baker stated that Anderson then “chimed in” and “elaborated” on her concerns 

once he raised the issue. Baker told us that Comey responded “[a]long the lines of 

like we can’t think that way. We just can’t think that way.”

FBI Attorney 1 told us that she recalled others expressing “concern about 

what impact this would have on the election.” Specifically, FBI Attorney 1 stated 

that she spoke directly with Anderson about these concerns, which they both 

shared. She said that Anderson spoke to Baker about this concern and Baker 

raised it at one of the group meetings. FBI Attorney 1 stated:

As I was going through this, I was thinking I should not be bringing 

politics into this. And so I was trying to be careful about thinking 

about this in an apolitical way and not raising the concern as who is 

going to get elected, because that actually is not something that I 

thought we should be considering as the Bureau. I brought that up 

with Trisha, because she and I, you know, we’re close and we talked 

about it. But I did not, no one, I don’t think anyone brought up the 

outcome on the election. We talked about the policy, about, you 

know, that, making announcements so close in time to the election. 

But we didn’t bring up the fact that if you do this, Trump will get 

elected sort of question, because I, I don’t know that anyone thought 

it was appropriate to bring that up.

FBI Attorney 1 told us that this issue was raised with Comey in the context of 

having an undue influence on the election, rather the potential impact of the 

decision in an electoral sense. FBI Attorney 1 stated that Comey recognized the 

concern, but Comey framed the issue in terms of “what was our obligation...to 

Congress and to the people to do the right thing.” FBI Attorney 1 reiterated that 

although the issue was discussed in terms of the proximity to the election, “we did 

not discuss, but if you say this, then Trump will get elected. Like, we did not in any 

way talk about it in those stark of terms. And so at least not in the, you know, as 

the group decision.”

We asked other participants in the discussion about Anderson’s comments. 

Rybicki stated that Anderson raised a concern that the notification to Congress 

“could help elect candidate Trump at that point.” Strzok told us that someone 

commented that the letter “might influence the ultimate outcome of the election.” 

Bowdich stated that Anderson made an argument against the letter, but he told us 

that he could not recall what that argument was.

E. Expectation that Clinton Would Be Elected President

Comey told us that “like the rest of the world [he] assumed that Hillary 

Clinton was going to be elected president.” When asked whether this had an 

impact in his decision to notify Congress, he stated:

I think none and I tried very hard to both be that and maybe 

convinced myself of that.... I’ve often asked myself, so were you 

influenced in any way by the knowledge what the polls were showing? 

Not consciously, and in fact I tried to be very conscious about saying I 
343

don’t give a rip. I don’t care. But you know if anything, I suppose like 

if it’s unconscious, I may have been consoled that it wasn’t going to 

make any difference anyway. I don’t remember thinking that 

consciously, but the environment which I was operating—well I don’t 

want to psychoanalyze myself too much more—not consciously is the 

honest answer.

When asked if his decision would have been the same if Clinton was expected to 

lose by 20 points, he stated:

[T]hat’s a reasonable question.... I think I would have said still, if you 

conceal something, maybe the matter wouldn’t have been of such 

intense interest if she was down 20 points all summer long or 

something. But a matter of intense public interest and debate that 

and people have relied upon your credible investigation and your word 

here, even if it was foreordained that she was going to lose the 

election, I think to hide that would have subjected this institution to 

justifiable withering criticism.

In a subsequent OIG interview, Comey stated: “I am sure I was influenced by the 

tacit assumption that Hillary Clinton was sure to be the next President.”

We asked Baker if anyone raised the issue of Clinton being up in the polls 

and likely to win the election no matter what the FBI did. Baker said that this issue 

“definitely came up” and “somebody said something along those lines.” Baker 

stated:

There was some discussion about if she, if we do this and she wins, 

then nobody can allege that it was a rigged system and things had 

been hidden to try to benefit her. Somebody may have said in that 

context, well, she’s ahead in the polls anyway and that’s probably 

what’s going to happen, and, and so on. So I think, yes, I think that 

aspect of it came up in that way. But it was more like, you know, if 

we do this and she gets elected, then she should be thanking us.

Baker told us that he could not remember who made this comment and added, “It 

could have been the Director, but I don’t specifically remember.”

F. Belief that Email Review Could Not Be Completed Before the 

Election

Each of the participants in the FBI discussions to seek the search warrant 

told us that no one expected the review of the Weiner laptop to be completed prior 

to the election. Comey told us that this fact—that the Midyear team did not expect 

to finish the review of the Weiner laptop prior to the election—“was a really 

important fact for me” in making the decision whether to make the October 28 

announcement.

Comey stated that he asked the Midyear team directly during these 

discussions if they could “finish the review before the election.” Comey said that 

the team told him, “There’s absolutely no way we’ll get that done before the 
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election. It will be long after the election.” When asked why he did not just assign

30,000 people to review the laptop, Comey stated:

Yeah, I could have, but I actually raised this and their answer was, the 

review has to be done by people that understand the context. If we 

bring in a class out of Quantico it doesn’t do us any good because the 

quality of the work will be such that we can’t rely on. It’s not like 

searching a field for a bullet fragment...we have to put eyes on them 

to understand this.

We asked Comey if his decision to notify Congress would have been different 

if the team told him they could finish the review prior to the election. Comey 

stated:

Maybe, yeah. If they could tell me with you know high confidence that 

this is something we can knock out in a week, maybe, yeah, maybe. 

But I do think it was an important consideration that we’re about to 

undertake something of indefinite duration and so I think—maybe—I’m

not certain that would make it differently, but I would have waited 

probably differently. If it was October 3rd and they said, we think 

there may be something here and we can knock it out in the next six 

days; I might have. Then—it’s interesting—I hadn’t thought about 

this—but then I might have been on to considering the prospect of a 

leak you know because I might have said, not going to do it, but what 

would be the effect on the Department if there’s a leak about the 

search warrant, yeah. 

Comey later added that the ultimate impact on his decision would have depended 

“upon how high a confidence read they could give to me that it’ll be finished far 

enough in advance of the election to responsibly report a result.” Comey 

reiterated:

[I]f I had known the information or even a reasonable facsimile of the 

information that I was given on the 27th, three weeks earlier, I’m 

highly confident I would have said, let’s get a search warrant and then 

we would have had a conversation about how soon can you finish and 

whether there [was] a prospect of finishing this before the election. I 

still would have had a very hard decision to make, but I would have 

been making it three weeks earlier. I don’t know whether it would 

have led to a different place—but I certainly would have wanted to 

have the option to be there and to consider whether...let’s make it up, 

three weeks’ of time, does that make me think differently about the 

choice between speak or conceal? Is there a reasonable prospect I 

could run this out and have a conclusion far enough in advance of the 

election that if it changes the FBI’s view, I could still, well you’d have 

to go through all that decision tree. But I don’t know it would have 

put us in a different place, but I would have wanted to have the 

opportunity.
345

G. Fear that the Information Would Be Leaked 

We asked the FBI personnel involved in these discussions if a fear of leaks

impacted the decision to notify Congress. Comey told us that he “didn’t make this 

decision because [he] thought it would leak otherwise.” Comey stated that he 

thought “that would be a cowardly way to make a decision.” Nevertheless, Comey 

told us, “I kind of consoled myself, this was a hard call and you’re going to get the 

crap beat out of you for it, but it would have come out anyway.” He reiterated, 

however, “I [don’t] want to leave you with the impression that I sent the letter to 

Congress because I thought it was going to leak otherwise.”

Others, however, had a different recollection. Rybicki told us that, while not 

remembering the context, he recalled the issue of leaks being raised during these 

discussions. Strzok stated that the fear of leaks played a role in the ultimate 

decision. Strzok explained that the decision to seek a search warrant for the 

Weiner laptop was known to many people beyond the Midyear team and this raised 

a concern that the information could leak. Draft talking points that were circulated 

to FBI senior management on October 31 regarding the decision to send the letter 

to Congress, which incorporated comments by Strzok, the Lead Analyst, and Page,

included the following bullet point: “It’s important to note the [sic] I notified 

Congress before moving forward with additional investigative steps in this 

investigation, because of my commitment to transparency and because I wanted 

Conrgess [sic] to hear it from me first.” (Emphasis in original). Page told us that 

her “personal belief” was that there was “a substantial and legitimate fear that 

when we went to seek the warrant in order to get access to the Weiner laptop, that 

the fact of that would leak.” Page said that this concern related to the suspicion 

that NYO personnel had been leaking negative Clinton Foundation stories. Bowdich, 

Anderson, and FBI Attorney 1 told us that they did not recall a discussion of leaks 

during the debates about notifying Congress.

Baker told us that a concern about leaks played a role in the decision to send 

the letter to Congress. Baker stated:

We were quite confident that...somebody is going to leak this fact. 

That we have all these emails. That, if we don’t put out a letter, 

somebody is going to leak it. That definitely was discussed.... [If] we 

don’t do a letter. It’s either going to be leaked before or after the 

election, and we either find something or we don’t. And either way, 

there’s going to be claims that we tried to play games with the 

election, and we tried to steer it in a certain way to help Hillary Clinton 

and hurt Donald Trump. We’re not about that. We don’t, we’re not 

making decisions on the basis of which candidate we like or don’t like. 

We’re not going to do that. And so we are just going to have to ignore 

all that and do what, again, what we think is right, consistent with our 

obligations to Congress.

Baker told us that “the discussion was somebody in New York will leak this.” Baker 

continued, “[W]hat we discussed was the possibility that if we go forward with the 

search warrant and take that step, that’s a step being taken in the Hillary Clinton 
346

investigation. And that’s what will leak.” Baker explained, “[T]he sense was that 

that this significant of a step is not going to go unnoticed. And if we don’t put 

something out, somebody will leak it. That’s just what we talked about.”

II. Comparison to Other Ongoing Investigations

In this section we address the Russia and Clinton Foundation investigations, 

both of which were ongoing in October 2016. Comey and other witnesses told us 

that these investigations were not discussed during deliberations regarding whether 

to announce to Congress the reactivation of the Midyear investigation.

A. The Differential Treatment of the Russia Investigation

On March 20, 2017, Comey testified before Congress that the FBI began an 

investigation in late July 2016 into “the Russian government’s efforts to interfere in 

the 2016 presidential election,” including “investigating the nature of any links 

between individuals associated with the Trump campaign and the Russian 

government and whether there was any coordination between the campaign and 

Russia’s efforts.”

Despite the existence of this investigation into individuals associated with the 

Trump campaign in the fall of 2016, none of the participants in the FBI’s internal 

discussions about the October 28 notification to Congress recalled any mention of 

the Russia investigation.

We asked Comey whether the existence of investigations into individuals 

affiliated with the Trump campaign impacted his consideration as to whether to 

send the October 28 notification to Congress regarding Clinton. Comey told us that 

“you’ve got to look at each case individually” and stated that comparing those 

investigations is “a calculation you shouldn’t engage in because then you’re starting 

to weigh political impacts of your work—who’s hurt by this, who’s hurt by that.” 

Comey explained:

Well I don’t think—I shouldn’t think of them in relation to each other. 

I should look at a case involving a John Smith and given our norms 

and rules around that, I don’t see and I don’t think the Department 

sees, a reason for treating those cases as exceptions the way we did 

the Hillary Clinton case. In part, among the considerations [in] the 

Hillary Clinton case, the whole world knew we were doing it, right? 

The candidate and her campaign themselves had talked about the 

review, the security inquiry. We know the government is working on 

this. The referral had been public, so all of that to my mind puts this 

in a different position. And counterintelligence investigations are very 

different—and for all reasons you can imagine, we are very, very 

careful about—because we don’t want the adversary who’s not 

necessarily the subject, but is the nation-state to know what we’re 

doing or who we may have thought of to focus on, so there it would 

take even more to be the exception to the rule as I just look at—I 
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wouldn’t look at them in relation to each other, but if I found another 

case where I and the Department thought that made sense to make 

an exception, we would.

Comey was asked during testimony before the Senate Judiciary Committee on May 

3, 2017, if it was “appropriate” for Comey to comment on the Midyear investigation 

repeatedly and “not say anything” about the investigation involving “the Trump 

campaign’s connections to” Russia. Comey replied, “I think I treated both 

investigations consistently under the same principles. People forget that we would 

not confirm the existence of the Hillary Clinton email investigation until three 

months after it began, even though it began with a public referral and the 

candidate herself talked about it.”

Whether to make the public aware of the more general issue of Russian 

interference in the U.S. presidential election also arose in the fall of 2016. On 

October 6, the Department of Homeland Security and Office of the Director of 

National Intelligence issued a joint statement about election security. This 

statement was not drafted in connection with the FBI’s Russia investigation, but 

Comey’s reaction to it is highly relevant. The statement began, “The U.S. 

Intelligence Community (USIC) is confident that the Russian Government directed 

the recent compromises of emails from US persons and institutions, including from 

US political organizations.” The statement then described the nature of these 

compromises and urged “state and local election officials to be vigilant.”

As a member of the USIC, the FBI was consulted on this statement. Comey 

told us that he decided the FBI should not be included in the statement because he 

felt that it conflicted with the longstanding Department of Justice norm “that we, if 

at all possible, avoid taking any action in the run up to an election, avoid taking any 

action that could have some impact, even if unknown, on an election.” Comey 

continued:

It was actually that norm that drove me to say the FBI should not be 

putting out a statement earlier in October about the Russian hacking, 

that I had advocated inside the U.S. government. In fact, I drafted an 

op-ed from my own name in August to call out the Russians, to say 

here’s what they are doing in our election. And our awesome 

interagency system, kicked that around, kicked that around, and then 

come October, there is then discussion about making a public 

statement about the Russians. And I said my view is...that the goal of 

a public statement is to inoculate the American people against what 

the Russians are doing. I think the inoculate goals have been by and 

large achieved because of all the press reporting on it. You had 

legislators talking about it. I said so there’s only a marginal increase 

in the inoculation by an official statement from the FBI. And given

that we are now a month from a presidential election—from an 

election, I think we can reasonably avoid that action.... And so I said, 

I don’t think the FBI should put out such a statement; it’s too late. 

That if we need to do it, we should have done it then and I said that’s 

just how I’ve long operated.
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In an October 5, 2016 email, Comey explained his position on the statement 

to Central Intelligence Agency Director John Brennan and Director of National 

Intelligence James Clapper. Comey stated, in part:

I think the window has closed on the opportunity for an official 

statement, with 4 weeks until a presidential election. I think the 

marginal incremental disruption/inoculation impact of the statement 

would be hugely outweighed by the damage to the [Intelligence 

Community’s] reputation for independence.

I could be wrong (and frequently am) but Americans already “know” 

the Russians are monkeying around on behalf of one candidate. Our 

“confirming” it (1) adds little to the public mix, (2) begs difficult 

questions about both how we know that and what we are going to do 

about it, and (3) exposes us to serious accusations of launching our 

own “October surprise.” That last bit is utterly untrue, but a reality in 

our poisonous atmosphere.

B. The Differential Treatment of the Clinton Foundation 

Investigation

In 2016, the FBI had an open investigation into the Clinton Foundation. 

Comey refused to confirm the existence of the investigation on July 7, 2016, in 

testimony before the House Oversight and Government Reform Committee because 

the investigation was not public.

In addition, numerous witnesses told us that agents involved in the Clinton 

Foundation investigation were instructed to take no overt investigative steps prior 

to the election. We asked Yates about this instruction. Yates stated, “[Y]eah, I 

think there was discussion about look, if [agents on the Clinton Foundation 

investigation] want to go do record stuff and stuff that you can do covertly, fine. 

But not overtly.... And the sort of thought being we’ll address that again at the end 

after the election was over.” Yates explained that this instruction was explicit 

because the Department does “everything [it] can to avoid having an impact on an 

election.” Yates continued:

[Y]ou have to be cognizant of the fact that the actions that we take at 

DOJ can have an unintended impact on an election. And so that you 

do everything you can to avoid that.... Like if somebody wants to 

send you a criminal referral we generally don’t initiate an investigation 

until after the election.... So it’s, you know, sort of basic DOJ practice 

that I don’t think anybody would dispute that you do everything you 

can to avoid having an impact on an election....

And the Bureau never pushed back on that concept. This actually 

came up with, in the connection with Paul Manafort. And they had an 

investigation on Manafort and I had a lengthy discussion with 

[McCabe], at least one, maybe more, about how important it was at 

that time that our investigation not be overt. And what they were, 

what the Bureau was doing with respect to Manafort because that 
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could impact Trump even though he was no longer his campaign 

manager. That unless there was something they really needed to do, 

because they were getting records and doing that kind of, unless there 

was something they needed, really needed to do overt they really 

needed to stay under the radar screen.... Because it’s not fair to 

impact [an election].

Axelrod echoed this point, stating that “DOJ’s policy, procedure, and tradition” is to 

avoid overt investigative steps in “the run up to [an] election.” Axelrod continued, 

“And [this policy] had actually been cited to the Bureau on other investigations 

during this election cycle,” including the Clinton Foundation and Manafort 

investigations.

We asked Comey about the different instructions given to the Midyear 

investigation and the Clinton Foundation investigation. Comey told us, “The 

principle is take no action if it can reasonably be avoided and there was nothing 

about the Clinton Foundation investigation that was time sensitive.” Comey 

continued:

The challenge of the discovery of the emails on the Weiner thing was, 

given the context that we had told the world, we the Justice 

Department and the FBI, that there was nothing there...to now be 

presented with all these emails that are...highly significant to that 

investigation, how is, where is the door labeled no action, that you 

either speak or you conceal. And so either one’s an action, so which 

action should we take. So it was very different, given the context, a 

very different posture than the Clinton Foundation. And my worry 

was, I have to be careful that people in New York aren’t by virtue of 

political enthusiasm, trying to take action that will generate noise that 

will have an impact on the election. No time sensitivity whatsoever to 

that....

III. Internal FBI Discussions Regarding the Decision to Notify Congress

A. McCabe, Strzok, and Page Text Messages on October 27

We reviewed text messages from Strzok, Page, and McCabe that indicated 

their disagreement with Comey’s decision to notify Congress on October 28. At 

4:03 p.m. on October 27, Page sent a text message to Strzok that stated, “Please, 

let’s figure out what it is we HAVE first. What if we can’t make out [probable 

cause]? Then we have no further investigative step.” Strzok replied, “Agreed.” At 

9:57 p.m. on October 27, McCabe sent a text message to Page that stated, in part, 

“[Baker] says his meetings were mostly about the notification and statement which 

the boss wants to send tomorrow. I do not agree with the timing but he is 

insistent.” Page responded, “Fwiw, I also wildly disagree that we need to notify 

before we even know what the plan is. If we can’t get in, then no investigative step 

has been taken. Whatever. I hope you can get some rest tonight.”
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We asked Strzok about his text message exchange with Page. Strzok stated 

that there was a “vigorous, healthy debate” within the FBI about whether the 

notification to Congress was a good idea and Strzok told us that he thought the 

concerns expressed in Page’s text message were part of that debate. Strzok told us 

that he ultimately agreed with Comey’s decision to send the letter to Congress.

Page told us that she could not remember the context of the text messages 

with Strzok. Page agreed with the content of the message and stated that she did 

not support Comey’s decision to notify Congress. Page added, “We just didn’t know 

what we had yet. It just felt premature to me.” Page also stated that there was 

“no guarantee” that the FBI would be able to make out probable cause for the 

search warrant and she felt it was “presumptuous of us to sort of say we’re 

reopening and we’re doing this before we have even a search warrant in hand.” 

However, Page told us that she was not involved in the discussions about the letter 

due to McCabe’s recusal.182

We asked McCabe about this text message exchange with Page. McCabe 

stated that Baker told him during a phone call that Comey planned to send a letter 

to Congress. McCabe told us that from his perspective—as someone who had not 

participated in the discussions about the letter—“it just seemed like we should have 

a better understanding of what we had before we made a notification.”

We also showed these text messages to Comey. Comey stated he did not 

recall discussing the issue of congressional notification with McCabe. Comey told us 

that he did not remember hearing Page express these concerns during the debate 

over the letter, adding, “I think I would remember that.”

B. Strzok Call with Midyear SSA, Agent 1, and Agent 2 on October 

28

At 5:21 a.m. on October 28, Page sent a text message to Strzok that stated, 

“Any plan to tell the case agents? You know, since so much of this has hinged on 

the credibility of ‘the team.’ 😡.” At 5:59 a.m., Strzok sent an email to the Midyear 

SSA and Agents 1 and 2, stating, “Would like to talk to the three of you on a 

conference call at 645. Sorry for late notice.”

Strzok stated that he reached out to the agents and the SSA on his own and

not at Comey’s suggestion. Strzok told us that he wanted to make sure the agents 

and the SSA knew what was happening and he wanted their input. Strzok stated:

I think it was, hey look, we went, we briefed [Comey]. Our sense is 

they want us to reopen the case, and we need to get a warrant and go 

after it. And they’re going to send a letter to Congress. What do you 

think about that? Are you, are you good? Are you, objections, are we 

horribly off-base? Are we not thinking about something?

 

182

 As discussed in Chapter Thirteen, Comey asked McCabe to drop out of the discussion 

about this topic on October 27, and Page left the discussion as well. McCabe formally recused himself 

from Clinton-related matters on November 1.
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The Midyear SSA told us that Strzok called to inform him of Comey’s decision 

to send the letter and wanted to make sure “the case agents were informed” as 

well. The Midyear SSA, Agent 1, and Agent 2 told us that they each ultimately 

agreed with the decisions to seek the search warrant and send the letter. As noted 

previously, Agent 2 was on the September 29 phone call with NYO about the 

Weiner laptop. Agent 2 told us that around this time was the first he had heard 

about the Weiner laptop since September 29.

C. Agent 1’s Instant Messages on October 28

After the letter was sent by the FBI to Congress on October 28, Agent 1 sent 

a series of instant messages to other FBI employees about the reactivation of the 

Midyear investigation.

Beginning at 1:46 p.m., Agent 1 exchanged the following messages with 

Agent 5. The sender of each message is identified after the timestamp.

1:46 p.m., Agent 5: “jesus christ... Trump: Glad FBI is fixing 

‘horrible mistake’ on clinton emails... for fuck’s sake.”

1:47 p.m., Agent 5: “the fuck’s sake part was me, the rest was 

Trump.”

1:49 p.m., Agent 1: “Not sure if Trump or the fifth floor is worse...”

1:49 p.m., Agent 5: “I’m so sick of both...”

1:50 p.m., Agent 5: “+o( TRUMP”

1:50 p.m., Agent 5: “+o( Fifth floor”

1:50 p.m., Agent 5: “+o( FBI”

1:50 p.m., Agent 5: “+o( Average American public”

We asked both Agent 1 and Agent 5 about these messages. Agent 1 and Agent 5 

both stated the reference to “fifth floor” referred to the location of the FBI WFO’s

Counterintelligence Division. Agent 1 continued, “Again, you know, I think a 

general, general theme in a lot of this is some personal comment, or, you know, 

complaining about common topics and leadership and, and venting.” Agent 5 also 

described this as general complaining to Agent 1 and also as an example of her 

being “very tired of working” these types of cases.

Agent 1 also sent two instant messages about the Weiner laptop to FBI 

employees not involved in the Midyear investigation. At 2:16 p.m., Agent 1 

messaged, “Yes. Its more email found through a separate matter. Not sure if they 

are even unique yet, but we have to make sure.” At 2:25 p.m., Agent 1 messaged, 

“emails found through separate matter. Due diligence—my best guess—probably 

uniques, maybe classified uniques, with none being any different tha[n] what we’ve 

already seen.” We asked Agent 1 about these instant messages. Agent 1 stated

that, as of October 28, any information he had about the contents of the Weiner 

laptop would have come from discussions with the Midyear SSA. Agent 1 told us he 

did not recall precisely what he meant by these messages, but that given the 
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seemingly small numbers of Abedin-Clinton emails the Midyear team had previously 

found, “I thought there was a chance that we would see more emails that we hadn’t 

seen before.” We asked Agent 1 to explain his comment about “none being any 

different [than] what we’ve already seen” and whether that indicated Agent 1 did 

not expect to find emails substantively different than what the Midyear team had 

previously reviewed. Agent 1 responded, “Maybe. That, right, right. The classified 

email was in a similar vein that we saw, similar activities and similar talking around. 

Yeah.”

IV. The FBI Informs DOJ Leadership About Comey’s Decision

Department personnel were informed of Comey’s decision to notify Congress 

around mid-day on October 27. Various discussions between FBI and Department 

personnel occurred over the next 24 hours. These discussions were at both the 

Midyear-team level and between Rybicki and Axelrod. Notably, Comey never spoke 

directly with either Lynch or Yates about the notification. We describe these 

interactions between the Department and the FBI below.

A. FBI and DOJ Midyear Team Discussions

Strzok stated that FBI personnel assigned to Midyear “had a variety of robust 

discussions with” Department personnel about the letter to Congress. One such 

discussion occurred on October 27 after Comey had decided that the FBI should 

seek to review the emails on the Weiner laptop, and that Congress should be 

notified. According to Prosecutor 2’s notes, Strzok, FBI Attorney 1 and the Midyear 

SSA from the FBI, and Toscas, Laufman, Prosecutor 1, and Prosecutor 2 from the 

Department participated in this discussion. The notes reflect that there was a 

discussion of whether the decision to review the Abedin emails on the Weiner laptop 

was inconsistent with the Midyear team’s investigative approach during the 

investigation. For example, the notes indicate that Laufman asked, “What 

distinguishes this from other devices we chose not to obtain? When think of 

[Abedin’s] email, her emails were of less probative significance.” The notes reflect 

that Strzok responded, “Volume – 500k emails – specifically domains of interest –

gap period (1st 3 months).” Strzok also stated, according to the notes, that “it is 

relevant that [the Weiner laptop] is in our possession.” Toscas agreed that 

possession of the laptop was a relevant factor, stating that if the Midyear team had 

possessed the laptop during the investigation, it “seems like we would’ve looked at 

it.” Toscas went on to state, according to the notes, “[W]ill beg the question of 

why we’re not going to ask for all these folks’ devices?” According to the notes, 

Prosecutors 1 and 2 pointed out that the investigative team did not previously seek 

to obtain devices from Clinton’s senior aides. Regarding a public announcement, 

the notes reflect that Laufman stated, “[P]ublic announcement disproportionate to 

importance of what we’re doing.” According to the notes, when Laufman asked 

whether the Department would be shown a copy of the FBI’s announcement in 

advance, Strzok responded, “I don’t know.”

We asked Department personnel involved in the Midyear investigation about 

these discussions. The Department personnel we interviewed told us they
353

disagreed with Comey’s decision to notify Congress and that they communicated 

that disagreement to the FBI. We summarize their concerns below.

Laufman stated that the entire CES team found the notification “highly 

objectionable.” Laufman told us his concerns, stating:

(A) We had a very low expectation that, that the substance of what 

this [the laptop] might include would be anything novel or 

consequential that would occasion reassessing, let alone altering the 

findings and analysis and recommendations we had already made.

(B) [T]o the extent that investigative action was necessary to review 

the data, it’s not uncommon for the Bureau to have to nail down 

something that arises at the end of an investigation. And we ordinarily 

would forgo public comment about that unless and until it’s 

appropriate to say something about the results of that activity. In 

many instances, it might not be appropriate to say anything publicly 

about it at all....

(C) This is October 28th. We’re about a, a week away from our 

presidential election. And it particularly struck us as exceptionally 

inappropriate to make a statement that unmistakably would be 

construed as the Bureau’s having reopened this investigation in that 

close a proximity to the day of the election.

We asked Laufman what he meant when he said there was a “low expectation” that 

this evidence would alter the outcome of the Midyear investigation. Laufman 

stated:

[W]e had seen through our investigation, the types of emails that 

Huma Abedin had been party to. And they were just not the kinds of 

emails that really went to the core issues that were under legal 

analysis, meaning they had to do with sort of scheduling, and...I 

mean, as important as she is in a personal, confidential assistant 

manner to the former Secretary, she wasn’t as substantively engaged 

in, in some matters that would have occasioned access to classified 

information or dealing with classified issues. So...we had seen quite a 

bit up to that point. And with respect to her, we hadn’t seen her 

engaged via email with anybody on the types of things that were 

material to our legal analysis. So, assuming that what was going to be 

reviewed from this new dataset was consistent with that, it seemed 

improbable to us that it was going to, to change anything. And of 

course as we know now, it was a giant nothing-burger.

Prosecutor 1 stated that the notification to Congress “didn’t make any 

sense.” Prosecutor 1 told us that given Abedin’s role and the evidence they had 

previously reviewed there was little “likelihood of finding anything of import in 

there.” Instead of doing a public announcement, Prosecutor 1 stated, “We should 

just investigate it and do it as quickly as we could.” We asked Prosecutor 1 about 

the potential presence of BlackBerry emails from early in Clinton’s tenure. 
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Prosecutor 1 stated that the FBI mentioned that “there could be information that 

covered that BlackBerry period from the period at the front end of the tenure,” but 

added:

I felt like a lot of the analysis was based upon what, what could be in 

there and the opportunity cost of sort of missing out on that. Of 

course, to me that’s a different analysis than making an 

announcement about it. We didn’t want to be seen to be in favor of 

forgoing the effort entirely.

Prosecutor 1 stated that the FBI seemed “very concerned about transparency with 

the public” and “had already kind of decided what they were going to do” prior to 

consulting with the Department.

Prosecutor 2 told us that the Department was “shocked” that the FBI was 

even considering notifying Congress about this development. Prosecutor 2 said 

that she did not necessarily view the Weiner laptop as a significant development in 

the Midyear investigation. Prosecutor 2 stated:

Because over the course of this investigation, we haven’t sought out 

personal devices of anybody other than Hillary Clinton. So we haven’t 

asked, for example, for like Huma’s personal laptops, her personal 

BlackBerries. We have her state.gov stuff, but that’s like, that of 

Huma’s is all we’ve searched.

So, there’s a threshold question in my mind of whether, like, this is 

even something that needs to be searched. And based on the, the 

iffyness on that threshold question, and then the likely significance of 

this device, it seems totally nuts to me that they would make an 

announcement having no idea what is on this device, having not 

looked at it. And in, and in terms of like the impact that this 

announcement could have.

And I remember being on the phone call like, how are you, asking like 

how on earth are you going to word this announcement so it’s 

accurate and doesn’t, doesn’t like, you know, open a much bigger can 

of worms than is really the significance of this recent finding. I mean 

at this point...we have no idea.... We just know that like some of 

Huma’s emails are in FBI’s custody. Like, of course Huma has other 

emails. Like, how is this a game changer?

Prosecutor 2 also told us that she believed the FBI would not listen to any of the 

arguments they put forth. She stated, “[T]here’s a defeated feeling at this point 

that like [Strzok] was given the task of like pretend to DOJ that you’re hearing 

them out. And he was going to, you know, humor us by having this conference 

call, but like that nothing we said mattered on that call.”

Recalling a discussion with Strzok in this time period, Toscas stated, “I was 

really upset and I basically said, you know this is BS. We don’t talk about our stuff 

publicly. We don’t announce things. We do things quietly.” Toscas told us that the 

justification provided by the FBI for why it needed to notify Congress was what he 
355

called “the Comey Rule,” meaning a duty to correct the record with Congress 

because Comey testified to “one thing” and circumstances have now changed. 

Toscas told us that, in his opinion, the October 28 letter demonstrates that “as soon 

as you deviate from normal practice” once—meaning the July 5 statement—“you’re 

going to have to adjust to deviations all along.” Toscas explained:

One of the things that I tell people all the time, after having been in 

the Department for almost 24 years now, is I stress to people and 

people who work at all levels, the institution has principles and there’s 

always an urge when something important or different pops up to say, 

we should do it differently or those principles or those protocols you 

know we should—we might want to deviate because this is so 

different. But the comfort that we get as people, as lawyers, as 

representatives, as employees and as an institution, the comfort we 

get from those institutional policies, protocols, has, is an unbelievable 

thing through whatever storm, you know whatever storm hits us, 

when you are within the norm of the way the institution behaves, you 

can weather any of it because you stand on the principle.

And once you deviate, even in a minor way, and you’re always going 

to want to deviate. It’s always going to be something important and 

some big deal that makes you think, oh let’s do this a little differently. 

But once you do that, you have removed yourself from the comfort of 

saying this institution has a way of doing things and then every 

decision is another ad hoc decision that may be informed by our policy 

and our protocol and principles, but it’s never going to be squarely 

within them.

McCord was Acting AAG for the National Security Division at this time and 

she told us that she thought the notification was “a bad idea.” McCord stated, “I 

believe there were conversations between [Toscas] and ODAG and the Bureau 

expressing our view that we should at least get a handle first on whether these are 

just duplicates because it could be a big nothing.”

B. Department and FBI Leadership Discussions

After deciding on October 27 that he needed to notify Congress, Comey told 

us that he instructed Rybicki to reach out to the Department about the notification. 

Comey stated that he told Rybicki, “I want you to tell DOJ that I think I need to 

inform Congress of this step. And please tell the DAG and the AG I’m happy to 

speak to them, but that’s what I’m thinking. I welcome their feedback.” Comey 

stated that he did not remember his specific directions to Rybicki, “but the 

substance would have been something like, call [Axelrod], tell him where we are 

and that I think we have an obligation to notify” Congress “that we’re taking this 

step.”

We asked Comey why he decided to seek the Department’s advice in 

October, but not in July. Comey stated:
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I’m not sure, I think given Loretta’s position, I thought the July 

decision I had to do it given where Loretta had landed and that it was 

the decision best calculated to protect the Department.... In this 

circumstance, I wasn’t positive I was right, making a very hard 

decision, I thought if they want to get involved in this, it’s not 

necessarily a bad thing. I thought it would be a very bad thing if I 

was...because Loretta might well say, don’t do that, don’t do that in 

July. Here, I guess I thought about it slightly differently. I thought it 

was a hard call and if they wanted to weigh in on it, offer their view, 

say we’ll take the decision, that maybe it was a little less courageous 

frankly than in July, I’m just thinking out loud here, maybe it was a 

product of having gotten the pain after July, but I’m not sure, I’ll think 

more about that. I’m not sure. Yeah, that’s my reaction to it.

Comey told us that he did not have any concerns about potential bias when 

consulting with Lynch on this decision. We asked Comey why that was the case 

given the concerns about Lynch that led to his July 5 statement. Comey replied, 

“Probably because I saw that reasonable people could see the framing differently 

than I, in the way I didn’t feel that way with her refusal to step out, the semirecusal, I think.”

1. Comey’s Decision Not to Engage Directly with Lynch or 

Yates

We asked Comey why he delegated communication with the Department to 

Rybicki instead of talking to Yates and Lynch directly. Comey stated:

I think because of the way, the distance they’ve been taking on the 

whole thing I wanted to offer them the opportunity to honestly to step 

away from it. That I wanted to offer them the opportunity—I didn’t 

want to jam them and I wanted to offer them the opportunity to think 

about and decide whether they wanted to be engaged on it.

Comey emphasized that the reason he had Rybicki reach out to the Department 

was because he “wanted to offer them the opportunity to take this decision.”

2. Phone Calls between Rybicki and Axelrod

Rybicki stated that he spoke with Axelrod on the afternoon of October 27. 

Rybicki told us his conversation with Axelrod was “twofold” and explained,

To let him know that the Director had decided to, the Director had 

decided to authorize the seeking of the search warrant. And there was 

no real reaction to that from [Axelrod]. I think he, I think he perhaps 

knew that was coming, or, he didn’t seem surprised in any way. And 

then two was the second part that the Director felt he had the 

obligation to supplement the record.... [Axelrod had a] very strong 

reaction. You know, you know, no, we just don’t do that. Right? We, 

you know, we don’t do that.
357

Rybicki stated that he and Axelrod had “a series of phone calls” the rest of the day. 

After the initial call to Axelrod, Rybicki told us that his understanding was that 

Axelrod was speaking for both Yates and Lynch in their subsequent calls. We asked 

Rybicki why Comey and Yates did not speak directly. Rybicki stated that he “had 

asked whether they wanted to speak to the Director, and, and [Axelrod] said no.”

Rybicki told us that he asked Axelrod to provide the FBI with any Department 

policy or guidance dealing with investigative activity near an election. Rybicki 

stated that Axelrod did not believe the congressional notification would technically 

violate Department policy, but was outside of “the normal course.” Rybicki told us 

that he explained Comey’s thinking to Axelrod, stating that Comey “felt strongly” 

and “felt he had the obligation” to notify Congress.

Axelrod stated that he received a call from Rybicki on October 27 and Rybicki 

informed him “that the Director was intending to send a letter to Congress notifying

them” of the decision to examine the Midyear-related emails on the Weiner laptop. 

Axelrod described his reaction as “surprise, concern, dismay” and stated:

I told [Rybicki] like in that initial call look, obviously I’ll have to talk to 

folks here and, you know, call you back. But I said, but I will give you 

my initial reaction which is that...[this] would be [a] very bad idea. 

Contrary to...Department policies and procedures, both about, you 

know, taking overt investigative steps so close to an election and 

talking to the Hill about, you know, investigations.... It just struck me 

as incredibly problematic.

Axelrod told us that he and Rybicki “talked it through a little bit” and Rybicki asked 

Axelrod to send him the relevant Department policies. Axelrod told us that 

contacted Ray Hulser, then Section Chief of the Department’s Public Integrity 

Section, to get information on the relevant policies.

Axelrod stated that Rybicki told him “that the Director believes he has an 

obligation to correct a misimpression that Congress has” that the Midyear 

investigation is concluded. Axelrod told us that this was “the key part” of their 

conversation. Axelrod stated that he asked Rybicki where Comey had promised to 

update Congress and Rybicki replied that it related more to the “overall tenor” of 

Comey’s testimony to Congress. Axelrod told us that he tried to convince Rybicki 

that Comey and the FBI would be better served following Department policies and 

procedures. Axelrod continued:

[Rybicki] never said look, I don’t think that’s the policy or I don’t think 

that’s the procedure or I don’t understand.... [H]e was all like yeah, I 

get all that but this is different. This is separate. The Director has 

testified. The Director believes that Congress has, now has a 

misimpression and so it’s the Director’s you know, butt on the line. 

And he needs to do this. And you know, and if he doesn’t, you know, 

the concern [is] it’s not survivable for him.
358

We asked Axelrod what he understood Rybicki to mean by the comment that 

this would not be survivable for Comey. Axelrod stated:

I understood that to mean that they thought that the heat the Director 

would get from the Hill, right, so that if this doesn’t, you know, he 

doesn’t surface it and then...afterwards when it comes out that [the]

Bureau had this information but kept it quiet that there would be calls 

for his resignation that he wouldn’t be able to survive.

Axelrod stated that Rybicki told him that the FBI was also concerned that the 

information would leak if no notification was made.

We asked Rybicki if he told Axelrod that failing to notify Congress would not 

be survivable for Comey. Rybicki told us that he did not “remember using that 

language.” Rybicki stated, “I certainly conveyed how seriously Director Comey felt 

about it. But I, I don’t recall, you know, the survivability of it. I just, sitting here I 

don’t.” We also asked Rybicki if he more generally conveyed that there would be 

“political heat and a call to resign” if Congress was not notified. Rybicki replied, 

“[N]ot that I can recall. I remember telling him the Director felt strongly. But I 

don’t remember sort of political heat, calls to resign, just that he felt strongly and 

that he, he himself felt he had the obligation.”

We asked Comey if he expressed concerns at the time about not being able 

to survive as the FBI Director if Congress discovered post-election that he had not 

notified them of this development in the Midyear investigation. As previously 

noted, Comey stated that it would cause “catastrophic damage” to the FBI, the 

Department, and to a Clinton presidency. He said that he did not remember 

expressing his concerns in terms of survivability, but added, “I’m sure I said 

something like, if I chose conceal over speak, I ought to be fired, I ought to be 

hung out, I would be run out of town because of the damage it will have brought to 

this. I’m sure I said things like that.”

We asked others in FBI leadership if they heard Comey state that failing to 

notify Congress would not be survivable. Bowdich stated he did not recall Comey 

making that comment, but did remember Comey saying:

I am going to take a huge hit on this, but it’s the right thing to do. 

And I remember him, it struck me that not only was the organization 

going to take a hit, but he even, I remember him pointing and saying I 

am going to suffer personally from this as well. But he felt it was the 

right decision to make.

Anderson stated that Comey viewed sending at the letter to Congress as the option 

that “would do the least damage to the Bureau’s long-term credibility and integrity 

as an institution.”

Baker stated, “I think [Comey] may have said like I could be impeached” or 

“something along those lines.” We asked Baker to explain the context for that 

remark. Baker stated:
359

It may have been during the meeting, one of the two meetings on the 

28th [or] 27th.... Some of the stuff that gets talked about at those 

meetings...he and I talked about separately later and kind of repeated 

it. But at some point in time, he raised, I don’t remember the context 

exactly. He raised the issue of, you know, potentially he could get 

impeached for this if he doesn’t tell them this.

Baker told us that because Comey “had testified under oath, and now that 

something different has happened, people are going to react to this big-time” if it 

was leaked or the FBI told Congress “after the election or whatever.”

3. Internal Department Discussions

Axelrod told us that he discussed the congressional notification with both 

Yates and Lynch. Yates stated that Axelrod told her that “he got a call from Rybicki 

about the Director writing a letter” to Congress. Yates stated:

[Rybicki told Axelrod] that the Director feels like he has a personal 

ethical obligation. Because he had told them that the investigation 

was closed. Because we had these new emails. And we agreed we 

should get a search warrant for the emails, by the way. I thought we 

should. We need to find out what’s on there. But that because he had 

told them that it was a closed investigation he had a personal 

obligation to tell them that it was, an ethical obligation to tell them 

that they were now reviewing these new emails.

Yates also told us that she remembered “being told that FBI doesn’t think it’s 

survivable for the Director for him not to” notify Congress. Yates stated that one of 

the reasons that the FBI “gave for why they felt like [Comey] had to go to Congress 

is that they felt confident that the New York Field Office would leak it and that it 

would come out regardless of whether he advised Congress or not.”

Lynch stated that she was told that Axelrod “had gotten a call” that the 

Weiner laptop “had potentially relevant emails on it” and Comey “felt that because 

of his prior testimony over the summer, that he had an obligation to notify 

Congress of it.” Lynch told us that it was presented to her as the FBI was notifying 

the Department that Comey felt he needed to and had an obligation to make this 

notification. Lynch stated that this obligation was described to her as “an ethical 

obligation both based on testimony, but also as a matter of ethics to notify 

Congress of new information in this investigation.” Lynch told us that she did not 

recall the FBI asking for the Department’s feedback. Lynch continued:

And then at one point, I think [Axelrod] relayed information again 

from Rybicki saying that the Director’s view was that he had to provide 

this information to Congress, that he was concerned about the 

information being leaked from the New York office in even more 

negative ways, that he was concerned about, he was very concerned 

about that. He expressed that to the FBI and Rybicki shared that. 

And that he also was concerned that if, if in fact he did not provide this 
360

information to Congress, and either it was leaked or later on we 

discussed it in some Department-approved way, that it was not 

survivable. And that was the phrase that was given to us. And both 

the DAG and I said, I think we both repeated the same, you know, 

what do you mean not survivable, one of those chorus things. And 

[Axelrod] said that was just the phrase that Rybicki had used. It was 

not survivable.... [W]e certainly took it as coming from the Director. 

It would not be survivable in his, in his view for either him or the FBI. 

I didn’t think that he was thinking of the Department at large at that 

point, so we never got, and [Axelrod] said he did, when he heard that 

he said the exact same question that anybody would have, for whom? 

But he just got it wouldn’t be survivable.

Lynch stated that Rybicki’s call started a conversation within the Department 

about the Department’s response. Lynch told us that Axelrod examined Comey’s 

prior testimony and Department personnel discussed whether or not that created 

an obligation. Lynch stated:

And my view was, look, you can, you can read it any way you want, 

but if he’s looking at it and saying it does, that’s his view. You’re not 

going to change his mind by saying here’s another interpretation of 

this particular statement. That’s not the issue. The issue is should 

this happen...should this be done regardless of, of what’s been 

testified to prior or what’s happened.

Lynch told us that her view was “let’s find out what’s on this computer before you 

start talking about it at all.” Lynch added, “Even if you view it as I need to say 

something to Congress, you don’t have anything to say” at this point.

Yates stated that the Department began “almost nonstop” discussion on how 

to respond to the FBI. Yates told us that, among the factors discussed, were the 

Department’s policies, the lack of knowledge about what was actually on the Weiner 

laptop, and the fact that the Department had not yet obtained a search warrant. 

Yates stated that the FBI did not dispute the Department’s policies. Instead, Yates 

stated, “It all kept coming back to, and it was always framed as this is a personal 

ethical obligation that Jim Comey has. Not a Department strategic decision. Not a 

Department even policy decision. But a personal ethical obligation that he has.”

4. Decision Not to Order Comey to Stand Down

Lynch described the Department’s decision-making process to us. She 

stated, “[W]e had a discussion about, well, we need to make sure that at least it’s 

conveyed that we don’t want this letter to go out. We think, we think it’s not only 

against policy but it’s harmful given the calendar, meaning the timing of the 

election.” Lynch stated that there was also “some discussion about whether either 

the DAG or I should call directly to the Director and whether or not that was a good 

idea.” Lynch told us that “the staff’s view” was a direct call from either of them 

“was not going to change anything based upon the discussions that [Axelrod] was 

having with Rybicki.” Lynch continued:
361

And ultimately what we decided to do was to, was to continue to have 

the staff discussions and have [Axelrod] convey the strong view that 

neither the DAG nor I felt this letter should go out. And that we 

thought that it was going to cause serious problems. The response we 

got back was essentially the Director heard us, took that into 

consideration. Also took into consideration whoever he was speaking 

with...at the FBI, and was going to send the letter in any event.

We asked Lynch why she did not directly order Comey to stand down and not

send the letter to Congress. Lynch told us:

I thought about it. I went back and forth on it. And we did in the 

room. We went back and forth on it. And ultimately, I did have a 

concern, and we had discussed this in the, in the small group also 

about the perception of Department leadership trying to somehow 

prevent information damaging to a candidate from coming out and 

that also being a political problem, because we also had the, we talked 

about it from the sense of, you know, you talk about reopening an 

investigation into either candidate, you know, whether we had, for 

example, said something about, you know, the, the Russian stuff at 

that point in time. We wouldn’t have done that.

[B]ut the concern of appearing to put a thumb on the scale for a 

particular candidate was something we were wrestling with. And that’s 

what I was wrestling with, was if in fact someone comes to you and 

says I have a legal, moral, and ethical obligation to do something, this 

is what I think is right, and then you say well you can’t do it because 

of this policy and don’t do it, then are you in fact then sort of doing the 

same thing only on the other side. And I will tell you, we went back 

and forth. Certainly I went back and forth in my mind over what to 

do, as to whether or not I should call him directly or have the DAG call 

him directly first, then have me call him. Either way, should there be 

a direct call to him?

We asked Lynch to respond to the criticism that she essentially abdicated her 

responsibility by not ordering Comey to stand down. Lynch responded:

I would say I was trying to get him to do the right thing. And I was 

hoping he would do the right thing. And I would say that you can 

have that criticism of me if you, if you would like. But I really felt 

that, that, frankly, when I say he didn’t need me to tell him, I don’t 

mean to say that I had no role in it at all. But this shouldn’t have 

come up. This shouldn’t have been an issue. This, this should not 

have been something that was being considered.

Lynch told us that she “went back and forth” on whether to order Comey to stand 

down, but she “thought at that point...it could lead to greater damage,” meaning 

that Comey would disobey and send the letter anyway.
362

We also asked Yates why she or Lynch did not directly order Comey to stand 

down and not send the letter to Congress. Yates stated:

I certainly discussed it with Loretta.... [W]e looked at this and 

thought, all right. It was not presented to us as, again, you know, 

[Comey’s] kind of thinking about this and he’s wanting to know what 

you guys, and I don’t mean to be sarcastic here at all. But this was 

really important how this was framed. It wasn’t a he’s seeking your 

view on this or he’s torn and wants to know.... It was framed as he 

feels obligated ethically to do this. And it was like a notification. He 

feels obligated to do it. That’s a difficult situation because, yes, either 

one of us had the authority to order him not to do it. But you got to 

play out what happens after that....

[L]et’s imagine a scenario here where we order him not to do it. We’re 

then ordering him not to do something he says he feels like he’s 

ethically obligated to do. There are a couple options. He can say...I’m 

sorry that you’re saying that but I feel ethically obligated and I’m 

going to do it anyway. So then we’re in a scenario where he notifies 

Congress. He’s been telling us it’s going to come out. Because on top 

of this I’m ethically obligated to do it paired with that was it’s going to 

leak out. It’s going to come out and if I don’t tell Congress that’s 

going to put me in a very bad position because they’re going to find 

out anyway and they’re going to find out that I didn’t tell them when I 

could have. So we’re in a scenario where he says he’s ethically 

obligated to do it.... [W]e weren’t at all convinced that he would 

follow such an order not to do it. If he didn’t follow the order and he 

did it anyway and then it comes out we were ordering him not to do it 

that’s a very bad position for the Department of Justice. Because 

we’re then telling the Director of the FBI not to do something he feels 

like he’s ethically obligated to do. And it takes a bad situation and it 

makes it even worse because then you add what would be the 

perception of a concealment on top of this that we thought would be 

even worse for DOJ.

There’s another option there which is he, we order him not to do it and 

he resigns. And then it comes out that that’s why he’s resigning. That 

seemed like a very real possibility to us, particularly against the 

backdrop of the situation with John Ashcroft in the hospital room 

where he had the resignation letter drafted. That wasn’t even an 

ethical obligation. That was something where he disagreed with them 

about the statutory authority there. So we thought it was a very real 

possibility that he could resign and then it’s, of course it’s going to 

come out. And so that then is a bad situation for DOJ because it’s got 

the concealment there as well.

So we couldn’t figure out a scenario that was not going to, again, take 

a bad situation and make it even worse when we ordered him to do it 

when it had been framed as his personal ethical obligation. And we 

looked at it from every conceivable angle.
363

Axelrod stated that he participated in discussions with both Yates and Lynch 

about how to respond to the proposed congressional notification. Axelrod told us 

that he did not remember anyone advocating that Lynch order Comey not to notify 

Congress. Axelrod stated that there were “three possible outcomes, all of which 

[were] really bad” should Lynch order Comey not to send to the letter. First, 

Axelrod told us that Comey could obey the order and that “tees up an obstruction of 

Congress investigation” of Lynch because she has forbidden Comey from correcting 

a misimpression to Congress. Second, Axelrod stated that Comey could ignore the 

order and send the letter anyway, and then “you’re in the same spot except the FBI 

Director has disobeyed a direct order from the AG so then you have to fire him.” 

Third, Comey could resign. Axelrod told us, “[N]one of those [are] good for the 

institutions. None of those [are] good for the policies and the procedures or the, 

sort of the goals of keeping DOJ and FBI out of politics. None of those good for the 

AG personally.”

5. Decision Not to Engage Directly with Comey 

We asked Lynch why she or Yates did not contact Comey directly. Lynch 

stated, “I didn’t get the impression that a private conversation was going to get me 

any more information than we were being given before.” Lynch stated that she was 

“surprised” that Comey did not contact her or Yates directly and noted that he had 

spoken directly to both of them in July. Lynch also stated that Comey “set the 

terms of” the conversation by starting it at the Rybicki-Axelrod level.

We asked Yates why she or Lynch did not contact Comey directly. Yates 

stated that the FBI decided to have Rybicki reach out to Axelrod initially and “[i]t 

was just a notification to” Axelrod. Yates continued:

So we went through the thought process of is there a viable way to 

order him not to do it and we concluded we didn’t think that there was 

without it blowing up in a much worse way than we were already in.... 

So the second step in the analysis thing is okay, if we’re not going to 

order him should Loretta get on the phone with him? Should I get on 

the phone with him and talk about it? And we went through that 

analysis as well and we came out the same place for these reasons.

Again, he’s not saying this is a strategic or policy question he has. He 

feels ethically obligated. Both of us have the authority to order him 

not to do it. So if we call him up I can’t have a conversation with him 

about this without telling him I think it’s a huge mistake for him to do 

this. The feeling was is that that would be portrayed as strong-arming 

him when you have the authority to be able to tell him not to do it and 

you have this conversation with him saying, I really don’t think you 

should do this....

Yates told us that she felt this concern about “strong-arming” was later borne out in 

Comey’s description of the meeting with Lynch in September 2015 about whether 

to call the investigation a matter or investigation. Yates continued:
364

And then you layer on top of that this. Strategically based on my 

interaction with [Comey] over all of this time I felt like our best chance 

at being able to convince him not to do this was going to be from his 

own, his discussions with his own people. That I had seen in too many 

meetings, and understand this, that if I had raised an objection to 

something FBI was doing that [Comey] understandably was very 

defensive of his agency and he would push back hard. I didn’t think 

there was any way in the world he was going to go back to his people 

and say, I just got off the phone with the AG or I just got off the 

phone with the DAG and they convinced me that I really don’t have 

this personal ethical obligation I’ve told all of you that I have. I felt 

like strategically the best way to convince him not to do it was going 

to be to convince his people that he shouldn’t do it. And he in 

discussions with them could come to that conclusion because he could 

change his mind internally. I didn’t think he would change his mind 

through a discussion with either one of us.

Yates told us that she considered Rybicki to be his “confidant” and the person that 

the Department needed to convince to change Comey’s mind in this situation.

We asked Axelrod why Lynch did not contact Comey directly. Axelrod stated 

a direct conversation on the phone could lead to “a misunderstanding” or the 

impression that Lynch “was leaning on” Comey. Axelrod specifically highlighted the 

matter/investigation meeting between Comey and Lynch in September 2015 as an 

example of such a misunderstanding. Axelrod also stated that everyone 

understood Rybicki to be “a proxy for the Director.” Axelrod added:

I thought about this a lot in the aftermath, right. And I’ve thought...if 

the reaction from [Rybicki] or the FBI had ever been oh, we didn’t 

know you guys felt that way. We didn’t know what your guys’ view 

was...then I would have both been really disappointed in myself but 

also wondered like oh, well if only, right, something got garbled 

somewhere. If only, you know, the, one of the principals had been 

able to speak directly to the Director we could have conveyed the 

message more clearly. I’ve never heard that...and I don’t think that’s 

the case. I was quite clear with [Rybicki] as to what our building’s 

view.... It was clear that was not just Matt Axelrod’s view but the 

Department’s view was that the Director should not do this.... I’m 

sure that was his takeaway. What I put is this, doing this violates our 

policies and procedures and traditions.... I said repeatedly this is, you 

know, this is not only a really bad idea but it, it’s contrary to how we 

do business. And actually, I used those exact words as well. It was 

contrary to how we do business.

6. Comey’s Reaction to the Department’s Response

Comey stated that Rybicki reported that the Department “didn’t wish to 

speak to me, but that their advice would be not to do it and that they didn’t think it 

was necessary.” Comey added that Rybicki told him that the Department 
365

“recommend[ed] against” the congressional notification and thought it was “a bad 

idea.”

We asked Comey why he asked for the Department’s feedback and then 

ignored the feedback that he received. Comey told us, “I thought the better view 

of it was that we had to. They were leaving it to me essentially and I took it, I 

knew that I was alone at that point in time, but my view was, as between these two 

options, I disagree.” Comey emphasized that neither Yates nor Lynch gave him a 

direct order. Comey continued, “I would not have sent it if they had told me not to. 

Instead I got this, we recommend against it. We don’t think it’s consistent with our 

policy. But it’s up to him was the message conveyed to me.” Comey told us that 

he felt that he gave Lynch and Yates “the chance to engage,” but “they didn’t wish 

to participate, it’s up to you, basically I took that as, it’s up to you. We don’t think 

it’s a good idea. We advise against it. I honestly thought they were taking kind of 

a cowardly way out.”183

We asked Comey if anything short of a direct order would have prevented 

the notification. He stated:

I don’t know what, I don’t know is the answer. I don’t, because I don’t 

know what argument that I haven’t thought of or that hasn’t been 

made or that we didn’t make in discussing this they would’ve made, so 

I don’t know, but, so in the absence of that, if they directed me not to 

do it, I would not have done it.

Comey stated that he also thought the October 28 congressional notification was 

consistent with Department policy. He stated, “Well Department policy is we don’t 

comment on investigations unless there’s a, you know whatever the exact language 

is, overriding public interest. In my view there was a powerful public interest in 

that division between speaking and concealing, between really bad and 

catastrophic.”

We asked Comey how Lynch or Yates could have ordered him not to send the 

letter if they understood it to be his personal or ethical obligation to Congress. 

Comey stated:

Of course they could. They could say, I mean circumstances where a 

Department lawyer thinks that they need to disclose something in a 

particular case and their supervisor says, no we don’t, we don’t do 

that, and so you have to decide then, do you believe it’s reasonable 

and consistent with the obligations of the lawyer for the United States 

or do you believe that your supervisor is doing something unethical 

and then you have to decide what to do about it.

 

183

 In his book, Comey stated that after he received the Department’s feedback, “I briefly 

toyed with the idea of communicating to them that I had decided not to tell Congress, just to see what 

they would do if I shifted the responsibility entirely to them, but decided that would be cowardly and 

stupid. Once again it became my responsibility to take the hit.” COMEY, supra, at 197.
366

V. Finalizing the FBI’s October 28, 2016 Letter to Congress

After Comey decided to notify Congress, the FBI began discussing internally 

how that notification should occur. Anderson told us that because the “animating 

rationale” behind the notification was to update Comey’s prior testimony to 

Congress, the FBI decided that “a letter to Congress was the right way to go about 

it.” The letter was transmitted on October 28.

In this section we discuss the drafting of the letter along with several key 

edits made during the drafting process. We also describe discussions with the 

Department about the letter and Comey’s email to all FBI employees.

A. October 28, 2016 Letter to Congress

At approximately 11:50 a.m. on October 28, the FBI transmitted the 

following letter to Congress, which we also provide as Attachment E:

In previous congressional testimony, I referred to the fact that the 

Federal Bureau of Investigation (FBI) had completed its investigation 

of former Secretary Clinton’s personal email server. Due to recent 

developments, I am writing to supplement my previous testimony.

In connection with an unrelated case, the FBI has learned of the 

existence of emails that appear to be pertinent to the investigation. I 

am writing to inform you that the investigative team briefed me on 

this yesterday, and I agreed that the FBI should take appropriate 

investigative steps designed to allow investigators to review these 

emails to determine whether they contain classified information, as 

well as to assess their importance to our investigation.

Although the FBI cannot yet assess whether or not this material may 

be significant, and I cannot predict how long it will take us to complete 

this additional work, I believe it is important to update your 

Committees about our efforts in light of my previous testimony.

Later that day, after the letter was made public, Clinton’s lawyer, David 

Kendall, contacted Baker to ask about the letter. According to Baker’s email to 

Comey and the Midyear team, during the call Kendall complained that Comey’s 

“letter was ‘tantalizingly ambiguous’ and made statements that were ‘inchoate and 

highly ominous’ such that what we had done was worse than transparency because 

it allows people to make whatever they want out of the letter to the prejudice of 

Secretary Clinton.” In the email, Baker stated that he told Kendall “that I could not 

respond to his requests at this time.”

B. Drafting the Letter and Key Edits

Comey described the drafting of the letter in the following terms:

Our goal was to make the disclosure to Congress accurate, fair and as 

non-misleading as humanly possible. So we spent a lot of time that 

night [of October 27] on the wordsmithing of that language to give fair 
367

notice that we were taking this action, but not to put us in a position 

where it’s wildly overinterpreted one way or the other. And so the 

next day, the next morning, I had finally approved the language.

Comey continued:

[W]e struggled with the language of it. Everyone talks about my 

vague letter. Maybe it’s vague, but it was structured with great care 

not to overstate what might be there or understate what might be 

there because—I think I said this in the letter, I haven’t looked at it in 

a while—we don’t know, but feel an obligation to say that we’re 

undertaking these new investigative steps. And I think part of the 

public misconception about it is, and I don’t know how I would have 

fixed this, is people have the sense that it was some sort of marginal 

lead, that it was a frolic and detour kind of deal. And I don’t know 

how we could have done that, but maybe we would’ve been better off 

if there was some way to convey, yeah there could be a real deal here, 

but that then would be unfair because you would be overinterpreting 

the evidence.

In his book, Comey discussed the “carefully” chosen wording of the October 28 

letter and why it contained limited content. Comey explained, “Because we didn’t 

know what we had and what we might find, any further public statement would be 

inherently limited and misleading and only add confusion and damage to the 

FBI.”184

FBI Attorney 1 told us that she and Strzok began drafts of the letter to 

Congress after leaving the initial meeting with Comey on October 27. FBI Attorney 

1 stated that she and Strzok combined their drafts and presented the joint draft to 

Baker. FBI Attorney 1 continued, “We talked to [Baker], I remember handwritten 

edits that [Baker] put in, which were wordsmithing a lot of. And then it moved to 

email so that people could circulate it.”

We identified two significant phrases in the letter that were discussed during 

the editing process. We discuss each below.

1. “Appear to be Pertinent”

The letter sent to Congress stated that “the FBI has learned of the existence 

of emails that appear to be pertinent to the investigation” and noted that “the FBI 

cannot yet assess whether or not this material may be significant”. (Emphasis 

added). FBI Attorney 1’s first draft stated that the emails “may be relevant” and 

noted that “[a]t this time, it is impossible to determine if the emails are new or 

duplicative.” Strzok’s first draft stated that the emails were “related to the FBI’s 

prior investigation” of the Clinton email server and noted that “the FBI cannot 

assess at this time the significance of this material.” Various formulations similar to 

 

184

 COMEY, supra, at 200-01.
368

these were discussed before deciding upon the language ultimately used in the 

letter.

FBI Attorney 1 told us that two competing considerations resulted in the 

language used. On the one hand, FBI Attorney 1 stated that the FBI did not want 

to undermine the probable cause needed to obtain the search warrant, “[s]o we 

couldn’t say it may be relevant when we, we needed to have probable cause to 

actually look at” the emails. On the other hand, FBI Attorney 1 stated that the FBI 

did not want to overstate what was on the Weiner laptop and the FBI wanted “to 

make it clear that even though we were getting a search warrant, that did not 

mean there was a smoking gun there.” Anderson echoed this stating, “I was 

concerned that...saying that they were relevant or were pertinent wasn’t supported 

by where we were in the process. In other words, we hadn’t put any eyes on any 

of the emails, so we really didn’t know whether what we were going to find, you 

know, was or wasn’t relevant.”

Baker stated that he found “may be pertinent” or similar formulations to be 

“too vague” and “too wishy-washy.” Indeed, Baker stated in an email, on October 

27 at 9:51 p.m., to the FBI officials involved in drafting the letter:

If everyone wants “may be pertinent” then fine. All I am saying is that 

even if they are all copies of what we already have, they are still 

pertinent because they are copies and indicate where else the material 

went and who may have had access to it. And if they only may be 

pertinent why are we bothering with them and putting out this public 

statement which we know will be a big deal.

Baker told us that because the FBI was seeking a search warrant for these emails it 

was “saying there is probable cause to believe this is evidence of a crime, therefore 

they are pertinent and we should be willing to make that statement.” Baker said 

there was some “pushback” on this suggestion as others said “we’re not 100% 

confident” that the emails are pertinent. Baker stated that he came up with the 

“appear to be pertinent” phrasing and “that seemed to thread the needle and make 

everybody happy.”

2. “Briefed Me On This Yesterday”

The letter sent to Congress also stated that “[d]ue to recent developments, I 

am writing to supplement my previous testimony” and “I am writing to inform you 

that the investigative team briefed me on this yesterday.” FBI Attorney 1’s first 

draft stated that the FBI “has recently retrieved emails” and “today, the FBI decided 

to conduct additional investigative steps.” Strzok’s first draft stated that the FBI 

“recently learned of the potential existence of emails” and “earlier today, I decided 

the FBI will take investigative action.” The joint draft submitted by FBI Attorney 1 

and Strzok to the others stated that the FBI “recently learned of the existence of 

emails” and Comey decided “earlier today” to take investigative action on these 

emails.

In providing comments and edits to the draft letter, Baker stated in an email 

on the night of October 27, “[T]he institution has known about these for a while 
369

(albeit not long) but not ‘yesterday.’ What happened today was the Director’s 

decision.” Baker recommended the letter state that “I decided yesterday.” We 

asked Baker about this recommendation. Baker stated that he could not recall the 

discussion about this change and also did not remember knowing at the time that 

Comey had been previously briefed about the Weiner laptop.

3. Discussions About Letter With the Department

The FBI did not share a copy of the draft letter with the Department, but 

rather read the proposed text of the letter to Axelrod and Toscas during a telephone 

call. We found that, during the call, Axelrod provided feedback regarding the letter, 

but we did not identify any evidence showing that the FBI accepted his proposed 

edits.

Comey told us that he recalled telling Rybicki “to share the text of the letter 

with [the Department], ask for feedback.” Comey further stated that it was his 

understanding the Department provided “a lot” of edits to the draft that were 

accepted. Comey said, “Yeah I think Matt Axelrod added real value, yeah, is my 

recollection, shaping it in a different way, shortening it at different parts.”

Rybicki told us that he discussed the proposed letter with Axelrod and Toscas 

on the telephone “and we read it to them, and they provided some feedback.”

Axelrod told us that the FBI never provided the Department with a copy of 

the proposed letter, but stated that he did discuss the contents of the letter with 

the FBI. Axelrod stated that Baker and Rybicki read portions of the letter to 

Axelrod and Toscas over the phone, and that he (Axelrod) suggested edits to the 

letter that the FBI did not accept. Axelrod stated:

So, on that phone call when they read the first sentence I said to 

them, to Rybicki and Baker is my memory of who was on the phone.... 

If that’s how you start the letter the headline is going to be case 

reopened. We all agree that’s not what we’re doing. We’re not 

reopening the case, right? Agreement voiced on the phone by FBI. 

Agreement voiced by [Toscas]. If that’s your opening sentence that’s 

going to be the headline, case reopened. And what you need to, what 

you ought to do is you’re telling us that you need to send this letter 

because the Director believes that he’s left a misimpression. But 

remember when I pointed you to the transcript what he said was if 

new information comes to light I will bring it, I will, we will take a look 

at it.

You, why don’t you reference that? Explain why you’re, what you’re 

doing. Don’t just make it seem like, you know, you’re emailing them 

out of nowhere. Say, I previously testified. I told you that if new 

information came to light we would, you know, take a look at it. Some 

new information has come to light. We’re doing exactly what I said. 

So that was one suggestion we made to them on the phone, which 

they ignored.
370

And a second suggestion we made to them on the phone was that they 

include some context about what the device was. In other words, that 

it wasn’t a Hillary Clinton device but that it was...the husband of a 

former aide or former senior aide, right? Because, and that was

important for context because...if you don’t put that context in there 

could be a notion that something was hidden from the investigators 

that only recently came to light instead of something that came in 

sideways. But they rejected that suggestion as well.

Because I think what we, our pitch to them on the call was like, you 

say you need to send this letter to avoid, to correct the misimpression 

Congress has. You got to make damn sure that by sending the letter 

you don’t just create a different misimpression. They ignored our two 

substantive suggestions. Those are the two I remember. And they 

sent the letter I think basically the way they had, and I didn’t see the 

full text beforehand but basically it was, you know, what sort of, at 

least the parts Baker had read to us on the phone it was consistent 

with, it didn’t, I don’t think they changed a word.

Toscas said that the entire discussion about the contents of the letter was 

“awkward” since the Department “oppose[d] every aspect of this.” Toscas stated, 

“But I do remember like at some point on our side feeling like...if you’re going to 

say it, there’s a way to just sort of lay it out a little bit more clearly that takes off 

some of the natural suspicions that are going to be created by less clear, less 

specific, and more ambiguous language.” Toscas told us that he did not recall if the 

FBI accepted any of the suggested edits provided by the Department.

4. Comey Email to All FBI Employees

At 3:08 p.m. on October 28, after news of the letter to Congress had been 

publicly reported, Comey sent the following message to all FBI employees:

This morning I sent a letter to Congress in connection with the 

Secretary Clinton email investigation. Yesterday, the investigative 

team briefed me on their recommendation with respect to seeking 

access to emails that have recently been found in an unrelated case. 

Because those emails appear to be pertinent to our investigation, I 

agreed that we should take appropriate steps to obtain and review 

them.

Of course, we don’t ordinarily tell Congress about ongoing 

investigations, but here I feel an obligation to do so given that I 

testified repeatedly in recent months that our investigation was 

completed. I also think it would be misleading to the American people 

were we not to supplement the record. At the same time, however, 

given that we don’t know the significance of this newly discovered 

collection of emails, I don’t want to create a misleading impression. In 

trying to strike a balance, in a brief letter and in the middle of an 

election season, there is significant risk of being misunderstood, but I 

wanted you to hear directly from me about it.
371

VI. Analysis of the Decision to Send the October 28 Letter

We found no evidence that Comey’s decision to send the October 28 letter 

was influenced by political preferences. Instead, we found that his decision was the 

result of several interrelated factors that were connected to his concern that failing 

to send the letter would harm the FBI and his ability to lead it, and his view that 

candidate Clinton was going to win the presidency and that she would be perceived 

to be an illegitimate president if the public first learned of the information after the 

election. Although Comey told us that he “didn’t make this decision because [he] 

thought it would leak otherwise,” several FBI officials, including Baker and Strzok, 

told us that the concern about leaks played a role in the decision. We concluded 

that, in considering his choices, Comey failed to give adequate consideration to 

long-established Department and FBI norms, policies, and expectations that he 

applied in other cases. Although we acknowledge that Comey faced a difficult 

situation with unattractive choices, in proceeding as he did on October 28, Comey 

made a serious error of judgment.

Much like with his July 5 announcement, Comey engaged in ad hoc 

decisionmaking based on his personal views even if it meant rejecting longstanding 

Department policy or practice. For example, we found unpersuasive Comey’s 

explanation as to why transparency was more important than Department policy 

and practice with regard to the reactivated Midyear investigation while, by contrast,

Department policy and practice was more important to follow with regard to the 

Clinton Foundation and Russia investigations.

A. Substantive Assessment of Comey’s Decision

1. FBI and Department Norms and Policies

Comey had ample guidance in longstanding Department and FBI policies and 

norms regarding making public statements about pending investigations and taking 

actions that might affect elections.

To start, the Department and the FBI consistently decline to comment 

publicly or to Congress regarding ongoing investigative activity. The “stay silent” 

principle exists to protect the privacy and reputational interests of the subjects of 

the investigation, the right to a fair trial for those subsequently accused of crimes, 

the integrity of an ongoing investigation or pending litigation, and the Department’s 

ability to effectively administer justice without political or other undue outside 

influences. Comey endorsed this principle in general, stating, “I believe very 

strongly that our rule should be, we don’t comment on pending investigations.” 

This principle is embodied in several regulations and policies set forth in Chapter 

Two, including in policies regarding communications with Congress. USAM 1-8.030; 

Eric Holder, Attorney General, U.S. Department of Justice, memorandum for Heads 

of Department Components and all U.S. Attorneys, Communications with Congress, 

August 17, 2009; Robert Raben, Assistant Attorney General, U.S. Department of 

Justice, letter to Congressman John Linder, January 1, 2000. (“Although Congress 

has a clearly legitimate interest in determining how the Department enforces 

statutes, Congressional inquiries during the pendency of a matter pose an inherent 
372

threat to the integrity of the Department’s law enforcement and litigation 

functions.”).185 This principle is also reflected in 28 C.F.R. § 50.2, which provides, 

with respect to the release of information to the news media, that “where 

information relating to the circumstances of...an investigation would be highly 

prejudicial or where the release thereof would serve no law enforcement function, 

such information should not be made public.” 28 C.F.R. § 50.2(b)(3)(iv).186 See 

also USAM 1-7.530, 9-11.130, 9-16.500, 9-27.760; FBI Media Policy Guide 3.1.

In addition, the Department and the FBI have long observed a norm against 

taking an action during the run-up to an election that could impact an election. 

Although there is no codified “60-day rule,” Comey acknowledged that he has 

consistently adhered to this “take no action” norm in the past: “I’ve lived my entire 

career in the Department of Justice under the norm, the principle, that we, if at all 

possible, avoid taking any action in the run up to an election, avoid taking any 

action that could have some impact, even if unknown, on an election whether that’s 

a dogcatcher election or President of the United States.” Given the lack of a written

policy, we recommend that the Department consider providing guidance to agents 

and prosecutors concerning the taking of overt investigative steps, indictments, 

public announcements, or other actions that could impact an election.

These policies and norms formed the fundamental backdrop for Comey’s 

decision on October 28. Because of them, Comey’s description of his choice as 

being between “two doors,” one labeled “speak” and one labeled “conceal,” was a 

false dichotomy. The two doors were actually labeled “follow policy/practice” and 

“depart from policy/practice.” His task was not to conduct an ad hoc comparison of 

case-specific outcomes and risks. Rather, the burden was on him to justify an 

extraordinary departure from these established norms, policies, and precedent.

2. Comey’s Justification for Departing

Comey’s justification for departing from established norms was that because 

he had previously told Congress and the public that the case was over, staying 

silent would be misleading. But it is hardly unique for the FBI to receive new 

information that might cause it to reactivate a previously closed or dormant 

investigation. To our knowledge, the FBI has not generally identified this 

circumstance as nullifying the stay silent principle.

Comey admitted that he had made no explicit promise to make a further 

announcement if new evidence were discovered. He stated, instead, that he had 

 

185

 Current Department policy regarding communications with Congress continues to honor 

this principle. See Jefferson B. Sessions, Attorney General, U.S. Department of Justice, Memorandum 

for All Heads of Department Components, Communications with Congress, May 2, 2018.

186

 28 C.F.R. § 50.2 is directed largely at preventing the prejudice to defendants or subjects 

from media publicity that might influence the outcome of a trial. However, it states that the 

guidelines it contains—including “stay silent”—are effective “from the time a person is the subject of a 

criminal investigation until any proceeding resulting from such an investigation has been terminated 

by trial or otherwise.” 28 C.F.R. § 50.2(b)(1). An unfair trial is obviously not the only form of 

prejudice that may arise from media disclosures, especially in an investigation that does not result in a 

trial.
373

previously offered “maximal transparency” because that “enhances the credibility of 

the Justice enterprise,” and that maintaining that transparency required him to 

update his July statement in October.

If so, the problem originated with Comey’s elevation of “maximal 

transparency” as a value overriding, for this case only, the principles of “stay silent” 

and “take no action” that the FBI has consistently applied to other cases. The 

Department and the FBI do not practice “maximal transparency” in criminal 

investigations. It is not a value reflected in the regulations, policies, or customs 

guiding FBI actions in pending criminal investigations. To the contrary, the 

guidance to agents and prosecutors is precisely the opposite—no transparency 

except in rare and exceptional circumstances due to the potential harm to both the 

investigation and to the reputation of anyone under investigation.

Comey told us that the potentially great evidentiary significance of the newly 

discovered emails would have made it particularly misleading to stay silent. But we 

found that the FBI’s basis for believing, as of October 28, that the contents of the

Weiner laptop would be significant to the Clinton email investigation was 

overestimated. Comey and others stated that they believed the Weiner laptop 

might contain the “missing three months” of Clinton’s emails from the beginning of 

her tenure when she used a BlackBerry domain, and that these “golden emails” 

would be particularly probative of intent, because they were close in time to when 

she set up her server. However, at the time of the October 28 letter, the FBI had

limited information about the BlackBerry data that was on the laptop. The case 

agent assigned to the Weiner investigation stated only that he saw at least one 

BlackBerry PIN message between Clinton and Abedin. As of October 28, no one 

with any knowledge of the Midyear investigation had viewed a single email 

message, and the Midyear team was uncertain they would even be able to establish 

sufficient probable cause to obtain a search warrant. Even the description of the 

emails in the October 28 letter is at odds with Comey’s emphasis on the importance 

of the discovery. The letter was edited to state that the emails “appear to be 

pertinent,” because several members of the team objected to the words “are 

pertinent” as an unsupportable overstatement.

Moreover, the Midyear team did not treat the BlackBerry emails as if they 

were critical to completing a thorough investigation prior to October. Rather, the 

team decided during the investigation not to obtain personal devices that Clinton’s 

senior aides used for State Department work, because, among other reasons, they 

did not believe obtaining those devices was necessary for a thorough investigation. 

Indeed, the Midyear team did not ask Abedin’s attorneys to turn over Abedin’s 

personal BlackBerry or laptop that she used during her employment at the State 

Department, even though Abedin told the FBI that she had given those devices to 

her attorneys so that they could produce her work-related emails to the State 

Department.
374

Before October 28, Comey lauded the thoroughness of the investigation and 

stated that declining prosecution was not a close call.187 If the vague and general 

information known about the laptop contents was sufficient to “create a reasonable 

likelihood...that will change our view” of the case, then it is difficult to see how the 

investigation could have been as thorough as Comey represented given the FBI’s 

decision not to obtain similar devices from Clinton’s senior aides prior to July 5.

Nor could the declination decision have been such an easy call if unseen emails to 

and from one of Clinton’s aides could have resulted in a change in the Department’s 

prosecution assessment.

In fact, as detailed in Chapter Nine, every pertinent fact that the FBI knew 

about the laptop in October was already known in late September. Yet none of the 

Midyear investigators thought these were “golden emails” then—a factor that 

contributed to the FBI’s delay in acting on the information, as discussed in Chapter 

Nine. In short, far too little was known about these emails in October 2016 to 

justify departing from Department norms, policies, and precedent.

3. Comey’s Comparison of Risks and Outcomes

Instead of referring to and being guided by longstanding Department and FBI 

policies and precedent, Comey conducted an ad hoc comparison of the risks and 

outcomes associated with each option. He described the potential consequences 

“concealing” the existence of the emails as “catastrophic” to the FBI and the 

Department, because it would subject the FBI and the Department to allegations 

that they had acted for political reasons to protect Hillary Clinton. Instead, Comey 

said he chose the option that he assessed as being just “really bad.”

Even within the flawed analytical construct that Comey set up, he did not 

assess risks evenhandedly. He assigned paramount significance to avoiding the 

reputational risk of staying silent: that he and the FBI would be unfairly accused of 

hiding the emails to protect candidate Clinton. But he appears to have placed no 

comparable value on the corresponding risk from making the public statement: 

that he and the FBI would not only be accused of violating long-standing 

Department and FBI policy and practice, but that he also would be unfairly accused 

of hyping the emails in a manner that hurt candidate Clinton. We believe that 

Comey’s unequal assessment of these risks was the product of his belief that 

Clinton was going to win the election. Comey told us, “I am sure I was influenced 

by the tacit assumption that Hillary Clinton was sure to be the next President.” This 

expectation likely led him to focus too heavily on what he perceived to be the 

consequences of not revealing the new information, namely undermining the 

legitimacy of Clinton’s presidency and harming the reputation of the FBI. Ironically, 

in his effort to avoid the FBI or himself being seen as political, Comey based his 

decision, in part, on his assessment of the likely outcome of the political process. 

 

187

 In his book, Comey stated, with respect to the July declination, that “[n]o fair-minded 

person with any experience in the counterespionage world (where ‘spills’ of classified information are 

investigated and prosecuted) could think this was a case the career prosecutors at the Department of 

Justice might pursue. There was literally zero chance of that.” COMEY, supra, at 185. 
375

In our view, assumptions about the outcome of an election should not affect how 

the FBI or the Department applies longstanding policies and norms.

We believe that Comey underestimated his own ability to address the unfair 

criticism that he feared would ensue if he stayed silent. Comey acknowledged to 

us, “I’ve lived my entire career in the Department of Justice under the norm, the 

principle, that we...avoid taking any action that could have some impact, even if 

unknown, on an election....” Thus, if Comey had chosen to have the FBI seek the 

search warrant but not send the October 28 letter, he would have had a principled 

response if he was asked about his decision: “This is the way we always do it, for 

the following good reasons.” And he could have stated, accurately and in good 

conscience, that he applied this principle evenhandedly with respect to the Clinton 

email investigation and other pending FBI investigations. The FBI never 

commented publicly on the Russia investigation until after the election, and he 

refused to comment publicly about the Clinton Foundation investigation. And, 

earlier in October 2016, Comey declined on behalf of the FBI to participate in a U.S. 

Intelligence Community statement warning about Russian interference because “it 

exposes us to accusations of launching our own ‘October surprise.’” Had he 

observed the same principle with respect to the Clinton email investigation, the 

evenhandedness of his decisions would have been apparent. Indeed, much of the 

criticism that Comey received for not revealing before the election information 

about the Russia and Clinton Foundation investigations was due to the perceived 

lack of evenhandness given the disclosure he made on October 28 in the Clinton 

email investigation.

In reaching our conclusion about the October 28 letter, we found the 

testimony of Deputy Assistant Attorney General George Toscas to be on point:

One of the things that I tell people all the time, after having been in 

the Department for almost 24 years now, is I stress to people and 

people who work at all levels, the institution has principles and there’s 

always an urge when something important or different pops up to say, 

we should do it differently or those principles or those protocols you 

know we should—we might want to deviate because this is so 

different. But the comfort that we get as people, as lawyers, as 

representatives, as employees and as an institution, the comfort we 

get from those institutional policies, protocols, has, is an unbelievable 

thing through whatever storm, you know whatever storm hits us, 

when you are within the norm of the way the institution behaves, you 

can weather any of it because you stand on the principle.

And once you deviate, even in a minor way, and you’re always going 

to want to deviate. It’s always going to be something important and 

some big deal that makes you think, oh let’s do this a little differently. 

But once you do that, you have removed yourself from the comfort of 

saying this institution has a way of doing things and then every 

decision is another ad hoc decision that may be informed by our policy 

and our protocol and principles, but it’s never going to be squarely 

within them.
376

4. Fear of Leaks

Comey denied that a fear of leaks influenced his decision to send the October 

28 letter to Congress. However, other witnesses told us that a concern about leaks 

played a role in the decision. As Baker stated, “We were quite confident that.... [I]f 

we don’t put out a letter, somebody is going to leak it. That definitely was 

discussed....” Numerous witnesses connected this concern about leaks specifically 

to NYO and told us that FBI leadership suspected that FBI personnel in NYO were 

responsible for leaks of information in other matters. Even accepting Comey’s 

assertion that leaks played no role in his decision, we found that, at a minimum, a 

fear of leaks influenced the thinking of those who were advising him.

We also note that these discussions on October 27 and 28 were occurring at 

almost the same time that FBI leadership was focused on how the Midyear 

investigation was being publicly portrayed. As detailed in Chapter Eight, the FBI 

was devoting significant time and attention in October 2016 responding to both 

public and private criticism of the Midyear investigation. That included sending 

talking points to FBI SACs on October 21 for their use in responding to such 

criticism. Comey told us that these efforts were necessary to “protect the 

credibility of the [FBI] in American life.” As a result, at the time Comey was 

deciding whether to send the October 28 letter to Congress, the FBI had just one 

week earlier empowered its officials to speak publicly about the FBI’s handling of 

the Midyear investigation. In our view, this confluence of events inevitably 

increased the risk of leaks.

B. Lack of Communication Between Comey and Department

Leadership

As we describe above, on October 27 and 28, Comey and Lynch decided not 

to speak to one another, in person or by phone, about the decision to notify 

Congress. Instead, Comey directed Rybicki to contact Axelrod, and the Department 

decided to communicate its response entirely through Axelrod. Comey explained

that he decided to ask Rybicki to contact Axelrod rather than speaking directly to

Lynch or Yates because “...I didn’t want to jam them and I wanted to offer them 

the opportunity to think about and decide whether they wanted to be engaged on 

it.”

We asked Lynch and Yates why they did not call Comey or ask to meet with 

him after Rybicki’s initial notification to Axelrod. Both Lynch and Yates told the OIG 

that they made an intentional strategic decision to handle discussions about the 

letter to Congress through Axelrod and Rybicki. Both Lynch and Yates explained 

that they were concerned that any direct discussion with Comey—particularly any 

discussion in which they told him not to send the letter—would be perceived as an 

attempt to prevent him from fulfilling his “personal ethical obligation” to notify 

Congress. Both stated that they were concerned that the fact of any such direct 

discussions would leak and would be portrayed as Department leadership 

attempting to “prevent information damaging to a candidate from coming out”

(Lynch) or “strong-arming” Comey (Yates).
377

Lynch and Yates also told the OIG that a significant factor in their decision to 

handle communications through Rybicki and Axelrod was that direct discussions 

likely would have been ineffective. Lynch said the fact that Comey did not call her 

directly indicated that he did not want a real discussion and had already made up 

his mind to send a letter, because he would call her to discuss other issues that 

were not resolved. Yates stated that, based on her experience with Comey, he was 

likely to “push back hard” against input from Lynch or her, especially if accepting 

their input meant that he had to go back to his staff and explain that he was 

reversing his decision based on their input. She told us that she believed 

strategically the best way to convince him not to send the letter was to allow him to 

come to that conclusion through discussions with his own staff, including Rybicki. 

Yates told us that she considered Rybicki to be his “confidant” and the person that 

the Department needed to convince to change Comey’s mind in this situation.

Comey’s reaction to the input he received as the result of Rybicki’s 

discussions with Axelrod suggests that these concerns were well-founded. While 

Comey stated that he “welcome[d]” the Department’s feedback, he did not take 

their feedback into account when Rybicki told him that the Department 

“recommend[ed] against” the letter and thought it was “a bad idea.” When asked 

why he essentially ignored the advice of Department leadership, Comey told us, “I 

thought the better view of it was that we had to [send the letter]. They were 

leaving it to me essentially and I took it, I knew that I was alone at that point in 

time, but my view was, as between these two options, I disagree.” Comey added 

that he felt that he gave Lynch and Yates “the chance to engage,” but “they didn’t 

wish to participate, it’s up to you, basically I took that as, it’s up to you. We don’t 

think it’s a good idea. We advise against it. I honestly thought they were taking 

kind of a cowardly way out.”

Although Comey told us that he would not have sent the October 28 letter 

had Lynch or Yates ordered him not to do it, we found no evidence that he or 

Rybicki ever conveyed this to Department leadership. Both Lynch and Yates cited 

Comey’s description of his “personal ethical obligation” to notify Congress and his 

concerns about the “survivability” of failing to do so as reasons that they believed a 

direct order would be ineffective. As described above, Axelrod told the OIG that 

they considered three possible negative outcomes should Lynch order Comey not to 

send to the letter: Comey could obey the order and Lynch would be accused of 

obstructing Congress; Comey could ignore the order and send the letter anyway, 

and Department leadership would have to fire him; and Comey could resign. 

Axelrod told us, “[N]one of those [are] good for the institutions. None of those 

[are] good for the policies and the procedures or the, sort of the goals of keeping 

DOJ and FBI out of politics. None of those [are] good for the AG personally.”

We acknowledge that Comey, Lynch, and Yates faced difficult choices in late 

October 2016. However, we found it extraordinary that Comey assessed that it was 

best that the FBI Director not speak directly with the Attorney General and Deputy 

Attorney General about how to best navigate this most important decision and 

mitigate the resulting harms, and that Comey’s decision resulted in the Attorney 

General and Deputy Attorney General concluding that it would be counterproductive 

to speak directly with the FBI Director. We believe that open and candid 
378

communication among leaders in the Department and its components is essential 

for the effective functioning of the Department.
379

CHAPTER ELEVEN:

COMPLETION OF THE INVESTIGATION

I. The October 30, 2016 Search Warrant

The FBI obtained a search warrant for the Midyear-related material on the 

Weiner laptop on October 30, 2016. The search warrant authorized the FBI to 

search for four categories of information on the laptop:

1. Data and information associated with the operation, use, 

maintenance, backup, auditing, and security functions of the Subject 

Laptop...;

2. Data and information electronically stored on the Subject Laptop 

related to communications with email accounts used by former 

Secretary of State Hillary Clinton during her tenure as Secretary of 

State;

3. Data and information on the Subject Laptop that might identify the 

person or persons who accessed classified information present on the 

Subject Laptop...; and

4. Data and information on the Subject Laptop that might identify 

activity related to a computer intrusion....

We discuss the Midyear team’s decision to seek a search warrant rather than 

using consent to review the laptop below. We also discuss the narrow factual basis 

for the search warrant that the Midyear team included in the application and 

compare the Weiner laptop with the treatment of other devices during the main 

part of the Midyear investigation.

A. Decision Not to Seek Consent from Abedin and Weiner before 

Seeking a Warrant

Prosecutor 1 told us that there was “some discussion” of getting consent 

from Weiner and Abedin to search the laptop. However, Prosecutor 1 stated that 

consent from both was needed and, at that point, the Midyear team’s 

understanding was that Weiner was inaccessible because he was at a location 

where he did not have access to electronic devices. Prosecutor 1 continued:

And...there was some concern about [Weiner’s] attorney gladly 

providing consent but wanting something from SDNY for it. And our 

horse trading on conduct that was egregious and doing something for 

purposes of our case didn’t seem to make much sense. I think the 

decision was made not to seek consent from either attorney and to get 

a warrant.

Prosecutor 1 told us that he believed both FBI and the Department agreed with the 

decision to seek a search warrant rather than consent to access the Weiner laptop.
380

Baker agreed that they did not want to try to deal with Weiner or his 

attorney, but also provided an additional explanation for not seeking consent. 

Baker stated:

I think we were concerned about that being too prolonged and 

dragged [out]. I think that reflects some of our frustration with what 

had happened previously in the investigation. We’re trying to get 

consent, and those kinds of discussions were long and drawn out. And 

we were just like, screw it, we’re not going to deal with that. We’re 

just going to get a damn search warrant. We’re just not going to, 

we’re not going to let DOJ take us down that road. We’re just going to 

get a search warrant.... [A]nd in this case, we’ve got SDNY, and we 

think they’ll be aggressive and they’ll go get it.

After reviewing a draft of this report, Toscas and other prosecutors noted that SDNY 

played no substantive role in the October 30 search warrant.

B. Factual Basis of the October 30 Search Warrant Application

The factual basis for the October 30 search warrant application, which was 

prepared by the Midyear team, contained limited information about what the NYO 

case agent had seen on the Weiner laptop and the importance of that information 

to the Midyear investigation. The entirety of the search warrant application that 

discussed what had been seen on the Weiner laptop stated:

In executing the search of the laptop computer (the Subject Laptop) 

pursuant to the search warrant issued on September 26, 2016, FBI 

agents sorted the emails on the Subject Laptop to segregate emails 

within the scope of the warrant from those outside of it. As a result, 

the FBI reviewed non-content header information for emails on the 

Subject Laptop to facilitate its search. In so doing, the FBI observed 

non-content header information indicating that thousands of emails of 

Weiner’s then wife, Huma Abedin (Abedin), resided on the Subject 

Laptop. Because Abedin’s emails were outside the scope of the 

September 26 search warrant, the FBI did not review the content of 

those emails.

...The non-content header information that FBI agents reviewed on the 

Subject Laptop indicates that the emails on the Subject Laptop include 

emails sent and/or received by Abedin at her @clintonemail.com 

account and at a Yahoo! email account appearing to belong to Abedin, 

as well as correspondence between one or both of these accounts and 

State Department email accounts during and around Abedin’s tenure 

at the State Department. The FBI’s investigation of the improper 

transmission and storage of classified information on unclassified email 

systems and servers has established that emails containing classified 

information were transmitted through multiple email accounts used by 

Abedin, including her @clintonemail.com and Yahoo! email accounts.
381

The FBI’s investigation determined that Abedin, using her various 

email accounts, typically communicated with Clinton’s 

@clintonemail.com account on a daily basis. Analysis of emails in the 

FBI’s possession revealed more than 4,000 work-related emails 

between Abedin and Clinton from 2009 to 2013.

The FBI’s investigation established that 27 email chains containing 

classified information, as determined by the relevant original 

classification authorities, have been transmitted through Abedin’s 

@clintonemail and/or Yahoo! accounts. Out of the 27 email chains, six 

email chains contained information that was classified at the Secret 

level at the time the emails were sent, and information in four of those 

email chains remains classified at that level now, while two email 

chains contain information that is currently classified at the 

Confidential level. Information in the remaining 21 email chains was 

classified at the Confidential level at the time the emails were sent, 

and of those 21 email chains, information in 16 of them remains 

classified as Confidential.

Given the information indicating that there are thousands of Abedin’s 

emails located on the Subject Laptop – including emails, during and 

around Abedin’s tenure at the State Department, from Abedin’s 

@clintonemail.com account as well as a Yahoo! account appearing to 

belong to Abedin – and the regular email correspondence between 

Abedin and Clinton, there is probable cause to believe that the Subject 

Laptop contains correspondence between Abedin and Clinton during 

their time at the State Department. Because it has been determined 

by relevant original classification authorities that many emails were 

exchanged between Abedin, using her @clintonemail.com and/or 

Yahoo! accounts, and Clinton that contain classified information, there 

is also probable cause to believe that the correspondence between 

them located on the Subject Laptop contains classified information....

Noticeably absent from the search warrant application prepared by the 

Midyear team is both any mention that the NYO agent had seen Clinton’s emails on 

the laptop and any mention of the potential presence of BlackBerry emails from 

early in Clinton’s tenure. In explaining the absence of this information, Strzok 

stated:

I think what we were trying to do was establish as tightly as we could 

the fact that we believed, because I think the basis of the probable 

cause was that there was classified information on there.... I think it 

as that narrative was not designed to tell the whole story. That 

narrative was to, designed to demonstrate to the magistrate that we 

have probable cause that there was evidence of a crime on there.

We also asked Prosecutor 1 about the factual statement of probable cause 

outlined in the search warrant. Prosecutor 1 stated:
382

[T]he [probable cause] was basically that Huma Abedin had an email 

account. That email account communicated with email accounts where 

classified information was there. Classified information made it into 

Huma’s email accounts. We believe information from those email 

accounts is on this computer belonging to her husband based upon 

whatever we could describe about what that agent saw, which we had 

to characterize very carefully, and so that what tethered it to the 

computer was basically what an agent saw doing a search warrant 

from another case. That’s the [probable cause].

We asked Prosecutor 1 if there was any discussion of putting in information relating 

to the BlackBerry emails from early in Clinton’s tenure. Prosecutor 1 stated:

I don’t think so. If it would have helped the probable cause, I would 

have put it in. I don’t think we had...strong enough basis to do that, 

or I would have put it in I’m sure. Because it, I mean we would have, 

anything that we could have put in there that was true and would have 

bolstered the probable cause, we would have put in.

We also reviewed the factual basis of the October 30 search warrant

application with the NYO case agent for the Weiner investigation. The case agent 

told us that each of the facts related to the Weiner laptop that were included in the 

search warrant application were known to him “within a day or two” of September 

26.

We asked Comey for his reaction to the statement that “[e]very fact in [the 

October 30] search warrant was known to the FBI at the highest levels—at least to 

the Deputy Director level—on September 28th.” Comey responded, “My reaction is 

it likely should have moved faster and I’d want to know, to answer this I’m asking, 

but what would their motive be to delay?”

C. Difference in Approach to Devices during Main Investigation

As noted previously, Comey’s decision on October 27 to have the FBI seek a 

search warrant for the Weiner laptop generated discussion among the Midyear team 

about how that approach differed from the approach that the Midyear team agreed 

upon and took during the investigation, namely to only seek Clinton’s personal 

electronic devices and not to seek the personal electronic devices of any of her 

aides. In addition, in drafting the search warrant application for the Weiner laptop, 

a discussion occurred regarding the scope of the requested search warrant and 

whether it should be limited to emails between Clinton and Abedin, or whether it 

should include all of Abedin’s emails.

Emails from the night of October 29 show that Baker expressed concerns 

that the draft search warrant request was too narrow. Specifically, in an email at 

9:13 p.m. to FBI Attorney 1, Strzok, and Anderson, Baker stated, “The main 

question I [sic] have right now is why we are only seeking access to emails 

between Huma and Clinton. Based on the facts set forth about Huma mishandling 

classified information on all of her accounts, it seems to me there is [probable 
383

cause] to look at all of her emails no matter who is the other party. Am I 

misreading the scope of the warrant or the strength of the [probable cause]?” 

Strzok responded to Baker’s email at 9:28 p.m., stating:

I think the primary deficiency in trying to go after Huma’s own 

communications is that Huma’s role and expertise was far more 

administrative in nature than that of the other close aides to [Clinton]. 

That is, when it came to classified information, she was primarily a 

conduit to/from others to Clinton, not a generator of such 

information/discussion on her own. Whereas Sullivan or Mills had 

substantive (and sometimes classified) discussions on their own 

absent [Clinton’s] participation, Abedin’s were largely as an 

administrative conduit to the Sec’y. Thus, it’s more challenging to 

articulate an expectation at the level of [probable cause] that we’d 

expect to find classified in her discussions not involving [Clinton]. We 

can’t exclude it, but it’s challenging. 

FBI Attorney 1 responded to Strzok’s email at 9:55 p.m., stating, “That’s right, 

Pete. Plus, we can’t say she mishandled on all of her accounts. Of the 27 classified 

emails, 26 were on her @clintonemail.com account and one was Yahoo. We also 

cannot say for certain that the 27 classified emails are on this particular device, 

which also weakens our argument generally.” In response, Baker sent an email at 

10:18 p.m., stating, “There is [probable cause] to believe that Huma used her 

email accounts to mishandle classified information. I just don’t understand why 

that [i]s not enough to look at all her emails.... Would you please discuss with 

DOJ?” Baker told us that he believed the FBI should seek the authority to review 

all of Abedin’s emails on the laptop, instead of just emails between Abedin and 

Clinton.

FBI Attorney 1 told us that she recalled Baker “wanting the search warrant to 

be broader” and in an email on October 29 FBI Attorney 1 stated that Baker’s “point 

is there could be relevant emails that are not between Huma and HRC—particularly 

regarding intent.” At 11:06 p.m. on October 29, FBI Attorney 1 sent Prosecutor 1 

and Prosecutor 2 an email informing them of Baker’s concern and adding, “I 

understand that the scope of our consensual searches has been limited to emails 

with [Clinton], but the purpose of our investigation was to look for classified 

information that transited the server, which would include Huma’s @clintonemail. I 

honestly can’t remember how we treated those when we got consent for the second 

server, and I don’t [have] the letter in front of me.” Prosecutor 1 responded at 

11:12 p.m., “[W]e did not look through all of Huma’s emails before (we searched 

for Clinton’s addresses but did not go through all of her emails). We can discuss 

but that seems like a pretty big push (we only use examples of comm[uniciation]s 

with Clinton [to] establish [probable cause] for 793 offenses).” Five minutes later, 

at 11:17 p.m., FBI Attorney 1 responded, “I honestly couldn’t remember how we 

treated Huma @clintonemail emails before given [sic]. Sounds like limiting the 

search to [Clinton] communications is consistent.”

FBI Attorney 1 told the OIG that the Department “didn’t believe that we had 

the [probable cause] to, to be broader than that.” Baker stated that someone at 
384

either the Department or SDNY “pushed back and said no, we don’t have [probable 

cause] for that.”188

We asked the prosecutors about this issue. Prosecutor 1 told us that he felt 

“we need[ed] to treat Huma like we treated her earlier on in the investigation.” 

Prosecutor 1 told us that it did not make sense to “expand the bounds” of what 

they had done before when reviewing the Weiner laptop. Prosecutor 2 also noted 

this, stating:

And then there is also the issue of like we didn’t look at everyone’s 

emails over the course of this investigation. We had Huma’s, some of 

like Huma’s clintonemail.com emails on the server. And we never got 

consent or a search warrant to look through Huma’s email on the 

server because, you know, the judgment was made that like that was 

not so significant to the investigation. So, I think from the DOJ 

perspective, we were kind of confused why this was such a significant 

development.

During this debate with FBI on October 29, Prosecutor 1 sent an email to

Toscas stating, “Worried that Baker and higher ups over there (or people in the 

chain) are going to say DOJ was standing in their way. It just seems to me that 

they are pushing the bounds here all of a sudden (when they didn’t do so before).” 

We asked Prosecutor 1 about this email. Prosecutor 1 stated that part of his 

concern was frustration at the FBI for requesting the search warrant be completed 

immediately, yet trying to suggest major changes after it was substantially 

completed. Prosecutor 1 stated that he also felt “it didn’t make a lot of sense” for 

the purpose of probable cause “to talk about hypothetical conversations that could 

have” occurred “in order to expand the bounds of what we’re trying to do with the 

search warrant.”189

II. Lynch-Comey Meeting on October 31

On Monday, October 31, Lynch requested a private conversation with Comey 

after the regularly scheduled Monday morning meeting between the Department 

and the FBI. Yates told us that she and Lynch had talked about this meeting 

beforehand and that Lynch told Yates that Lynch planned to make two points to 

Comey: (1) the October 28th letter “was a blunder,” and (2) that Comey and the 

FBI needed to process the Weiner laptop “as fast as you can.”

 

188

 As noted above, after reviewing a draft of this report, Toscas and others noted that SDNY 

played no substantive role in the October 30 search warrant.

189

 In comments provided to the OIG after reviewing a draft of this report, Baker stated that 

he “had not played a significant role, if any, in scoping the prior consent agreements or legal process 

used to obtain other emails in the investigation.” Baker continued, “Given the intense focus on the 

Weiner laptop, [Baker said he] looked more closely at this warrant application and asked what [he] 

thought were logical questions.” Ultimately, Baker stated that he “deferred to DOJ on whether there 

was probable cause to support the seizure of additional emails.”
385

We asked Comey about this meeting. Comey stated:

So the two of us went into the AG’s private office...and I went over to 

sit in a chair and she closed the door and turned around and started 

walking at me with her head down and her arms out and came up to 

me because I’m so ridiculously tall and pressed her head, her face 

against my solar plexus and wrapped her arms around me and hugged 

me and then I kind of awkwardly—I’m not a hugger because I’m a 

giraffe—and so I kind of patted the Attorney General’s back and then 

the embrace—she broke the embrace and then said, “I just wanted to 

give you a hug.”

And she went over and sat down. And then...she said, “How are you 

doing?” I said, “I’m doing okay.” I said, “Look this is really bad, but 

the alternative is worse.” And then she said, “Yeah would they feel 

better if it had leaked on November 6th?” And I just said, “Exactly 

Loretta.” Because I hadn’t made the disclosure to Congress because 

of the leaks—the prospect of leaks, but it actually consoled me 

because really you’re not that important because even if you hadn’t 

sent a letter to Congress, which was the right thing to do, it probably 

would have leaked anyway that you were going for a search warrant 

on this stuff and she obviously saw it the same way and said, “Right, 

would they feel better if it had leaked on November 6th?” I think she 

said. And I said, “Exactly.”

And then she said a nice thing, “I hope you’re holding up.” And then 

she said—so we get up and start walking to the door. She’s in front of 

me and then she turns around and says, “Try to look beat up.” And so 

then she opens the door, we walk out, her staff is all out in the hallway 

and I walk out.

And then somebody puts it out within moments that the Attorney 

General had taken me aside to give me a woodshedding or something; 

it was in the media, I think, that morning. So she and I never spoke 

about that again, but I reasonably understood that. Her saying you 

did the right thing, and even if you hadn’t sent the letter, it would 

have come out anyway and that would’ve been even worse and so 

that’s—I think that’s the end of the story.

We also asked Lynch about this meeting. Lynch told us that the reason she 

called the one-on-one meeting with Comey was primarily because she “wanted to 

talk to him about” leaks and she was concerned that Comey “didn’t want to talk 

about it in front of a larger group.” Lynch stated:

We went into a smaller room.... And I recall, we were both sitting 

down. And I recall saying we have to talk about this letter and the 

aftermath of it.... I don’t recall my exact words, but I remember 

saying, you know, I know that you were aware that I did not think you 

should do this. But, it is done now, and we have to deal with the 

aftermath of it.... And I said...this has not followed what was at least 
386

conveyed to me you thought you were going to do. And...I made the 

point that it was immediately described as the investigation was 

reopened, the full investigation was reopened.

And he said, you know, I was very clear...I was very careful not to say 

that. And I had heard over the weekend that he had been surprised or 

disappointed, or perhaps both, that the letter was being characterized 

in that way. Because that was not what he wanted to say, not what 

he intended to say. And I said, I understand that that wasn’t your 

intention, but that’s how it was taken.... I said, in many ways, it’s the 

exact opposite of what you wanted to have happen. And I said, and I 

think it’s caused a huge problem for the Department because we have 

this perception now that we are essentially trying to harm one of the 

candidates....

And I raised the possibility. I said I think you ought to think about 

sending another letter, a clarifying letter. You’ve already done this 

now. You have created a misimpression as to what is going on.... You 

need to clarify this and say that essentially you want to make it clear 

that this is not a reopening of the investigation. That should be 

conveyed in there somewhere.

And he said, how would you phrase that? And I said, you know, I 

have not put pen to paper. I have not wordsmithed this. And I said, 

and I don’t think it should come from me. It needs to come from you 

because you gave the initial letter. I said if it comes from me, then we 

are essentially talking about internal DOJ fights and disagreements 

and everything. And that’s throwing more into the public arena that 

shouldn’t be there. He said, I agree with you on that. He said I’ll 

think about that. I’ll think about that.

...[A]t some point, I said it’s clear to me that, that we’re going to have 

to do some statement at the end of the forensic analysis. It could be 

part of that. Or you could do it today. I said, but I really think you 

need to clarify this. And he said, I hear you, I hear you. Which is a 

phrase that Comey uses a lot, I hear you. And he said, I will give that 

a great deal of thought. And he said, my concern is, and again, I don’t 

recall the exact words, but he said I have a concern that it would do 

more harm than good at this point. And I said, okay, well let’s think 

about what it would look like.

The other issue I raised with him was...I said, look, I’ve known you for 

a long time. You and I have been in the Department a long time. I 

said, my view is you would never have done something like this if you 

didn’t feel tremendous pressure to do it. And I said, and I don’t 

understand that pressure. I said, but, it was conveyed to me that you 

were very concerned about leaks, specifically. And I said, I can only 

assume that you were thinking of leaks that would have been of this 

information in a much, much worse way. And he said, you’re right. 

You’re exactly right about that.
387

Now, I knew that the laptop had been handled in a case out of New 

York. And so I said, you know, we have to talk about the New York 

office...and the concern that both you and I have expressed about 

leaks in the past. And I said, do you think that this was the right way 

to deal with the issue, the concern about leaks?... He didn’t have 

much of a response. But we were having a conversation.... And I 

said, you know, I’ve talked, you and I have talked about that before.... 

[McCabe] and I have talked about them before....

And then I said, now, we’ve got to talk about the New York office in 

general. And he said yes. And I said we both work with them. We 

both know them. We both, you know, think highly of them. I said, 

but this has become a problem. And he said, and he said to me that it 

had become clear to him, he didn’t say over the course of what 

investigation or whatever, he said it’s clear to me that there is a cadre 

of senior people in New York who have a deep and visceral hatred of 

Secretary Clinton. And he said it is, it is deep. It’s, and he said, he 

said it was surprising to him or stunning to him.

You know, I didn’t get the impression he was agreeing with it at all, by 

the way. But he was saying it did exist, and it was hard to manage 

because these were agents that were very, very senior, or had even 

had timed out and were staying on, and therefore did not really feel 

under pressure from headquarters or anything to that effect. And I 

said, you know, I’m aware of that.... I said, I wasn’t aware it was to 

this level and this depth that you’re talking about, but I said I’m sad to 

say that that does not surprise me.

And he made a comment about, you know, you understand that. A lot 

of people don’t understand that. You, you get that issue. I said, I get 

that issue. I said I’m, I’m just troubled that this issue, meaning the, 

the New York agent issue and leaks, I am just troubled that this issue 

has put us where we are today with respect to this laptop.

And he said again I hear you, I hear you. I will think about that. I will 

consider what to do. He said, but he said again, I’m concerned that 

another letter right now that isn’t tied to a resolution of the forensics 

would just be pouring more, he didn’t say more fuel on the fire, but 

that was the phraseology, something like that that he used. And I 

said, all right. I said, well, let me know what you decide about 

whether to do something else or not, particularly as we go through the 

process of finding things out.

Lynch told us that she was “sure” she “asked [Comey] if he was okay” and that she 

may have hugged him because she “often did.” Lynch also stated that as they 

departed the room she joked with Comey and said “something like of course you’re 

going to look like I beat you up.” Overall, Lynch described the conversation as a 

“friendly” but “tough conversation” given the “serious and significant issues” 

involved.
388

Lynch’s Chief of Staff stated that Lynch told her about the conversation with 

Comey afterwards. Lynch’s Chief of Staff stated:

[Lynch] said the Director had expressed that he needed to send the 

letter because he was very concerned about leaks, that it was going to 

leak out anyway that they had found these emails in relation to the 

Weiner investigation. She may have told me something else, but I 

don’t remember. I remember that being the big thing that he had 

focused on.

We also reviewed McCord’s notes of a meeting she attended with Lynch on 

October 31, after Lynch’s meeting with Comey, in which the Midyear investigation 

was discussed. The notes reflect that Lynch stated the following:

...good vehicle for more clarifying stmt.

need to correct misimpressions out there

Told Director this morning [and] he wanted to think about it

—could recap where we were at end of last week [and] talk 

about process w/out details of what we’re finding

—will cont. our review [and] take approp. inv. steps

—should come from Comey to clarify what he said Friday....

III. FBI Review of Weiner Laptop Emails

Midyear agents obtained a copy of the Weiner laptop from NYO immediately 

after the search warrant was signed on October 30. The laptop was taken directly 

to Quantico where the FBI’s Operational Technology Division (OTD) began 

processing the laptop. The Lead Analyst told us that given the volume of emails on 

the laptop and the difficulty with de-duplicating the emails that “at least for the first 

few days, the scale of what we’re doing seem[ed] really, really big.” Strzok told us 

that OTD was able “to do some amazing things” to “rapidly de-duplicate” the emails 

on the laptop, which significantly lowered the number of emails that the Midyear 

team would have to individually review. Strzok stated that only after that 

technological breakthrough did he begin to think it was “possible we might wrap up 

before the election.”

FBI leadership, including Comey, was briefed on an almost daily basis during 

the review process. The Lead Analyst told us that he recalled briefing Comey on 

Friday, November 4, stating:

I told [Comey], I said...I think there’s a possibility we may be able to 

get through this before the end of the weekend. So he said if you 

think you can do it, you should try to. So that’s what we did. We 

brought in, we basically put all hands on deck for [that Saturday].
389

The Midyear team flagged all potentially work-related emails encountered during 

the review process and compared those to emails that they had previously reviewed 

in other datasets. Any work-related emails that were unique, meaning that they 

did not appear in any other dataset, were individually reviewed by the Lead 

Analyst, Strzok, and FBI Attorney 1 for evidentiary value.

Analysts on the Midyear team subsequently drafted a document summarizing 

the review of the Weiner laptop entitled, “Anthony Weiner Laptop Review for 

Communications Pertinent to Midyear Exam.” This document, dated November 15, 

2016, showed that the full image of the laptop contained approximately 1,355,980

items, or files. According to the document, FBI OTD initially extracted 

approximately 350,000 emails from the laptop and then approximately 344,000 

BlackBerry backup files.190 The FBI determined that 4 of the 13 BlackBerry backups 

“were assessed to belong to Abedin.” The remaining 9 BlackBerry backups were 

associated with Weiner. The FBI only reviewed emails to or from Clinton during the 

period in which she was Secretary of State, and not emails from Abedin to other 

parties or emails outside that period. Analyst 1 stated, “I had very strict 

instructions that all I was allowed to do within the case was look for Hillary Clinton 

emails, because that was the scope of our work.” Utilizing various searches 

targeting Clinton’s emails, the FBI reviewed in full “approximately 48,982” items on 

the Weiner laptop.

The FBI ultimately “identified 13 confirmed classified email chains, the 

content of which was duplicative of emails previously recovered during the 

investigation.” None of these emails were marked classified, but 4 of the 13 were 

classified as Secret at the time sent and 9 were classified Confidential at the time 

sent. The FBI determined that Abedin forwarded two of the confirmed classified 

emails to Weiner.191 The FBI reviewed 6,827 emails that were either to or from 

Clinton and assessed 3,077 of those emails to be “potentially work-related.” The 

FBI analysis of the review noted that “[b]ecause metadata was largely absent, the 

emails could not be completely, automatically de-duplicated or evaluated against 

prior emails recovered during the investigation” and therefore the FBI could not 

determine how many of the potentially work-related emails were duplicative of 

emails previously obtained in the Midyear investigation.

 

190

 A BlackBerry backup is a file, typically found on a personal computer, containing data from 

a BlackBerry handheld device. The BlackBerry backup can include data from the handheld device’s 

address book, calendar, browser, email, SMS and MMS messages, phone call logs and history, as well 

as pictures and other media stored on the on-board media storage. At the time the backup is created, 

the user can configure the specific items to be saved. As a result, not all of the above items may be 

found in every backup.

191

 The FBI did not determine exactly how Abedin’s emails came to reside on Weiner’s laptop. 

Analyst 2 told us that it appeared that Abedin’s personal devices had been backed up on the laptop at 

various points in time. Documents we reviewed indicated that Abedin told the FBI that she did not 

know how or why this occurred.
390

IV. Agent 1 Instant Messages from November 1

On November 1, Agent 1 and an FBI agent uninvolved in the Midyear 

investigation exchanged the following instant messages on the FBI’s computer 

network. The sender of each message is identified after the timestamp.

8:31 a.m., Uninvolved Agent: “A horrible shit sandwich. Still no 

[grand jury] I imagine. So, you find Huma lied; BFD. No one at DoJ is 

going to prosecute.”

8:33 a.m., Agent 1: “Rog – noone is going to pros[ecute] even if we 

find unique classified. [Grand jury] story was inaccurate – 50+ GJ 

subpoenas and 2703d issued,”

8:37 a.m., Agent 1: “...We only had several warrants and alot of 

consent searches on media. I would have liked to use warrants for all 

because the consent agreements had limited scope. Reasonable 

scope, but I don’t like to stand on the lawn and have the occupants 

throw out the evidence to us.”

We asked Agent 1 about these messages. Agent 1 told us that this was another 

example of a friend reaching out to him about the status of the Midyear 

investigation. Agent 1 continued:

I think that similar to what I’ve said before, I think this is me venting 

or complaining in a vein of, you know, but I have, I have nothing to 

substantiate. I don’t have a statement. I don’t have a, I don’t have 

an action that someone wouldn’t prosecute it if, if we found it.

We asked Agent 1 about his expectation at the time of what would be found on the 

Weiner laptop and how that could impact the Midyear investigation. Agent 1 

stated:

I think my feeling at the time was there was a really good chance we’d 

find emails we hadn’t seen before.... That there might not be 

something that could potentially be classified...but...would it be so 

much different than what we had already seen? I, my impression 

would probably be no.

V. Comey Letter to Congress on November 6

On the afternoon of November 3, the FBI began drafting what ultimately 

became Comey’s letter to Congress announcing that the FBI had completed its 

review of the emails to or from Clinton that were on the Weiner laptop. That work 

was completed very early on November 6. Later that same day, Comey sent his

second letter to Congress, which we provide as Attachment F. This letter stated:

I write to supplement my October 28, 2016 letter that notified you the 

FBI would be taking additional investigative steps with respect to 

former Secretary of State Clinton’s use of a personal email server. 

Since my letter, the FBI investigative team has been working around 
391

the clock to process and review a large volume of emails from a device 

obtained in connection with an unrelated criminal investigation. 

During that process, we reviewed all of the communications that were 

to or from Hillary Clinton while she was Secretary of State.

Based on our review, we have not changed our conclusions that we 

expressed in July with respect to Secretary Clinton.

I am very grateful to the professionals at the FBI for doing an 

extraordinary amount of high-quality work in a short period of time.

Comey told us that he met with the Midyear team after they had finished the 

review of the emails on the Weiner laptop and “went through what they had done, 

what they had found, and their conclusion was, it does not change our view with 

respect to Hillary Clinton.” Comey stated that there was “more work to be done 

with respect to” Abedin and Weiner to understand how the emails ended up on 

Weiner’s computer, but that the review was complete with respect to Clinton. 

Comey continued, “And then I said, okay, you know, basically convince me you’ve 

done it well.” Once convinced, Comey stated, “I said, okay now we’re done, we 

should notify Congress that we are done. And then we set to work on that.”

Comey stated that Steinbach opposed the idea of a second letter. Comey 

explained:

And [Steinbach’s] view was, I just think it’s too late that, as I recall 

it...but that we’ve created a storm and if you try to undo the storm 

now, you’ll simply feed the storm more or something—so words to that 

effect. I said, look I respect that view, but I think you’re wrong. I 

think having spoken, that led to us having to speak, having spoken we 

need to, in fairness, say that we’re done. You’ve done it well, you’ve 

been able to do it in time. So then we shared that also with DOJ, got 

feedback and then sent that letter. And again the goal there was to be 

as fair as possible while still accomplishing the goal of telling them that 

we’ve finished with respect to her.

Steinbach told us that he could not recall the specifics of the debate about the 

November 6 letter, but stated, “I think maybe the November 6th one I was thinking 

look, it’s already done. Just let it, let it go, let it die. I can’t remember.”

The Lead Analyst told us that he raised objections to the November 6 letter 

during discussions with Comey. The Lead Analyst stated:

I said I, I could understand the first statement because we were 

reopening an investigation. We were correcting the record. But I said 

I don’t agree that, that this time we have any obligation to do that 

because the investigation isn’t done. We have additional investigative 

steps that are going to happen. We’re not closed in the sense of being 

closed. We may have, we may have come to a, a position of 

understanding about what’s on this laptop. But to me, that same 
392

obligation, which is to me what drove us to make the first statement, 

does not exist now.

The Lead Analyst told us that the further investigative steps needed to complete the 

investigation included at least a “malware analysis” to examine the laptop for 

intrusion and a re-interview of Abedin. Abedin was in fact re-interviewed by the 

FBI on January 6, 2017. With regard to the malware analysis, the Lead Analyst 

explained:

[T]he way I explain this in my thinking is, again, from my 

[counterintelligence] perspective, one of the key questions you’re 

trying to answer to any of these circumstances, especially when you’ve 

been confirmed that classified information is resident on a device that 

it shouldn’t be, is did that device get compromised by anyone. That’s 

a part of the equation of was this of significant or negative impact to 

U.S. national security. If it’s simply on Weiner’s laptop and that’s 

where it ended, then that’s one thing. It’s another thing if through 

this, their actions that got on Weiner’s laptop and a foreign power 

obtained those classified, that’s a separate question. So to me that’s 

not a, that’s not an insignificant aspect of this that was still completely 

unresolved at the time.

The Lead Analyst stated, “Then ultimately, the Director looked at me, and...he 

thanked me and thanked everybody for our candor, as always. And he said, but I 

have decided we’re going to do it. And we’re going to make it, you know, the 

statement and, that’s kind of it.”

At 7:52 p.m. on November 5, Page sent a text message to Strzok that 

stated, “I don’t want to make a statement anymore.” Strzok responded at 7:58 

p.m., stating, in part, “Yeah I don’t either. We’re kind of out of the news cycle, 

let’s leave it that way.” At 8:11 a.m. on November 6, Page sent another text 

message to Strzok that stated, “I still don’t know that we should make this 

statement.” Strzok immediately responded, “I don’t either. Imsg?”

After being shown these text messages, Strzok stated that he thought the 

decision to send the November 6 letter was “easier” then the decision about the 

October 28 letter. However, Strzok stated that he was concerned that every time 

the FBI acted it “invigorate[d] the news cycle.” We also asked Strzok and Page 

about their use of iMessage, a built-in instant message service on Apple devices. 

As described in more detail in Chapter Twelve, Strzok and Page told us that they 

mostly used iMessage and personal email for personal use. However, Strzok told us 

could not exclude the possibility that he sent work-related information over 

iMessage. Similarly, Page told us that references to these other forums reflected 

“mostly personal use” as opposed to using them for work purposes. However, she 

stated that she and Strzok sometimes used these forums for work-related 

discussions due to the technical limitations of FBI-issued phones.

Unlike the October 28 letter, the FBI sent a draft copy of the November 6 

letter to the Department and the Department participated meaningfully in the 
393

drafting process. Axelrod stated that he “insisted” upon seeing the letter and he, 

along with Toscas and Associate Deputy Attorney General Scott Schools, provided 

comments and edits.
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PAGE LEFT INTENTIONALLY 

BLANK
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CHAPTER TWELVE: 

TEXT MESSAGES, INSTANT MESSAGES, USE OF PERSONAL 

EMAIL, AND ALLEGED IMPROPER DISCLOSURES OF 

NON-PUBLIC INFORMATION

This Chapter discusses text messages from FBI-issued mobile devices and 

instant messages exchanged on FBI systems that raised concerns of potential bias. 

We describe key text messages and instant messages we identified during our 

review, as well as explanations for these messages that the involved employees 

offered during their OIG interviews. We also identified instances where FBI 

employees, including Comey and Strzok, used personal email accounts to conduct

official government business. Lastly, we discuss allegations that Department and 

FBI employees improperly disclosed non-public information.

I. Text Messages and Instant Messages

During the course of our review, we requested and received text messages 

from FBI-issued mobile devices and instant messages exchanged on the FBINet and 

SCINet Lync applications for FBI personnel involved in the Midyear investigation.192 

We also requested text messages for Department personnel involved in the Midyear 

investigation, but were informed that the Department does not retain text 

messages for more than 5 to 7 days.193 The OIG previously expressed concerns in 

a 2015 report about the text message retention practices of the Department’s four 

law enforcement components, and we recommend that ODAG consider taking steps 

to improve the retention and monitoring of text messages Department-wide.194

After receiving FBI text messages and instant messages responsive to 

keywords we provided to the FBI, we identified messages for certain FBI personnel 

 

192

 FBINet is the FBI’s computer system for information classified at the Secret level, while its 

SCINet system handles Top Secret and compartmented information.

193

 After reviewing a draft of this report, the Midyear prosecutors told the OIG that they did 

not use text messages, and that the only text messages they received were from the Midyear agents 

about logistical arrangements.

194

 In March 2015, the OIG issued a report pertaining to the handling of sexual harassment 

allegations by the Department’s four law enforcement components, the FBI, the Drug Enforcement 

Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the U.S. 

Marshal’s Service (USMS). In that report, we noted that all four components had weaknesses 

detecting sexually explicit text messages and images, and that two components did not archive text 

messages sent and received by its employees. We therefore recommended that all four law 

enforcement components, in coordination with ODAG, should (1) acquire and implement technology 

and establish procedures to effectively preserve text messages and images for a reasonable period of 

time, and should make that information available to misconduct investigators and for discovery 

purposes; and (2) take concrete steps to acquire and implement technology to proactively monitor 

text message and image data for potential misconduct. See U.S. Department of Justice (DOJ) Office 

of the Inspector General (OIG), The Handling of Sexual Harassment and Misconduct Allegations by the 

Department’s Law Enforcement Components, Evaluation and Inspections Division Report 15-04 (March 

2016), https://go.usa.gov/xQGz4 (accessed May 9, 2018).
396

that raised concerns about potential bias. We then obtained all text messages and 

instant messages for those FBI personnel for the entire period of the Midyear 

investigation through July 1, 2017, to capture post-election discussions. We 

identified communications from five different FBI employees that we discuss in this 

section.

195

First, we identified text messages exchanged between DAD Peter Strzok and 

Lisa Page, Special Counsel to former Deputy Director Andrew McCabe, on their FBIissued cell phones. These text messages included political opinions about 

candidates and issues involved in the 2016 presidential election, including

statements of hostility toward then candidate Trump and statements of support for 

candidate Clinton. Several of their text messages also appeared to mix political 

opinions with discussions about the Midyear and Russia investigations, raising a 

question as to whether Strzok’s and Page’s political opinions may have affected 

investigative decisions. In addition to being involved in the Midyear and Russia 

investigations, both Page and Strzok were also briefly assigned to the investigation 

conducted by Special Counsel Robert Mueller III.

Next, we identified instant messages exchanged on FBINet involving Agent 1 

and Agent 5. As noted previously, Agent 1 was assigned to the Midyear 

investigative team and was one of the four case agents. Agent 5 was assigned to 

the Midyear filter team. We discussed in Chapter Five a number of Agent 1’s 

instant messages that expressed opinions that were critical of the conduct and 

quality of the Midyear investigation. In addition to those messages, we identified 

two instant message exchanges involving Agent 1 that appeared to combine a 

discussion of politics with a discussion of the Midyear investigation. We also 

identified instant messages between Agent 1 and Agent 5 that expressed support 

for candidate Clinton and hostility toward first candidate and then President Trump.

Finally, we identified instant messages sent on FBINet by FBI Attorney 2. 

FBI Attorney 2 was assigned to the Midyear investigation, the Russia investigation, 

and the Special Counsel investigation. We found instant messages in which FBI 

Attorney 2 discussed political issues, including three instant message exchanges 

that raised concerns of potential bias. 

In this section, we describe key text messages and instant messages we 

identified during our review, as well as explanations for these messages that the 

employees offered during their OIG interviews. 

A. Text Messages between Lisa Page and Peter Strzok

Peter Strzok is an experienced counterintelligence agent who was promoted 

to Deputy Assistant Director (DAD) of the Espionage Section in September 2016. 

 

195

 We identified other text messages and instant messages in which FBI employees involved 

in the Midyear investigation discussed political issues and candidates. This Chapter does not include a 

discussion of every political text message or instant message that we identified. Instead, we discuss 

only those messages that we found raised the most significant questions of potential bias or improper 

motivation based on their content, timing, or the individuals involved.
397

As described in the previous chapters, Strzok was assigned to the Midyear 

investigation in August 2015 and was responsible for supervising the investigation

on a daily basis. Page was named counsel to then Deputy Director Andrew McCabe 

in February 2016, and served as his liaison to the Midyear investigative team from 

February 2016 forward.

In addition to their roles in the Midyear investigation, both Page and Strzok 

were involved in the FBI investigation into the Russian government’s efforts to 

interfere in the 2016 presidential election.196 Strzok was assigned to lead the 

Russia investigation in late July 2016.

197

 Page also worked on the Russia

investigation, and told us that she served the same liaison function as she did in 

the Midyear investigation. Both Page and Strzok accepted invitations to work on 

the Special Counsel staff in 2017. Page told the OIG that she accepted a 45-day 

temporary duty assignment but returned to work in the Deputy Director’s office at 

the FBI on or around July 15, 2017. Strzok was removed from the Special 

Counsel’s investigation on approximately July 28, 2017, and returned to the FBI in 

another position, after the OIG informed the DAG and Special Counsel of the text 

messages discussed in this report on July 27, 2017.

As noted above, after finding responsive text messages between Page and 

Strzok that appeared to intermingle political comments with discussions of the 

Midyear investigation, the OIG obtained from the FBI all text messages between 

Strzok and Page from their FBI-issued phones for the entire period of the Clinton 

email server investigation as well as the period of the Russia investigation during 

which Strzok and Page worked on it. The OIG received more than 40,000 unique

text messages between Strzok and Page in response to these requests.198 The FBI 

did not provide any text messages for the period from December 15, 2016, to May 

17, 2017, because of issues with the data collection and preservation software used 

on the FBI’s Samsung S5 mobile devices. However, OIG forensic agents obtained 

the phones used by Strzok and Page, and recovered a large number of the text 

 

196

 On March 20, 2017, then Director Comey testified before Congress that the FBI began an 

investigation in late July 2016 into “the Russian government’s efforts to interfere in the 2016 

presidential election,” including “investigating the nature of any links between individuals associated 

with the Trump campaign and the Russian government and whether there was any coordination 

between the campaign and Russia’s efforts.”

197

 Supervision of the Russia investigation was briefly transitioned from Strzok to another 

Counterintelligence Division DAD in early 2017. However, AD Priestap told us that FBI leadership 

decided to keep Strzok involved in the Russia investigation and he was therefore reassigned back to it.

198

 The FBI produced 73,900 text messages between Strzok and Page from the period June 

30, 2015, to December 1, 2016; 1,368 text messages from the period December 1 to December 14, 

2016; and 2,054 text messages from the period May 18 to July 1, 2017. However, these included 

significant numbers of duplicates. We estimate that the number of unique text messages exchanged 

between Strzok and Page exceeded 40,000. The FBI pulled the majority of these text messages from 

Page’s archives, as Strzok’s text messages were not consistently preserved due to compatibility 

problems between the FBI’s text message preservation software and the Samsung S5 cell phones 

used by the FBI. Issues related to the preservation of text messages affected a large number of FBI 

employees, and OIG forensic agents determined that the failure to preserve Strzok’s text messages 

resulted from this compatibility issue, not from the actions of any FBI employee, including Strzok. 

Text message preservation resumed in May 2017, after Page received a Samsung S7 phone.
398

messages from this “gap” period. For the gap period, the OIG recovered 9,311 text 

messages from Strzok’s phone and 10,760 text messages from Page’s phone, some 

of which were duplicates or text messages exchanged with other people. Although 

the number and frequency of text messages is generally consistent with previous 

time periods, we cannot definitively say that our forensic recovery captured every 

text message exchanged between Page and Strzok during the gap period.199

The text messages between Page and Strzok covered a wide range of topics. 

For example, we identified a large number of routine work-related communications. 

Many of the text messages were of a personal nature, including discussions about 

their families, medical issues, and daily events, and reflected that Strzok and Page 

were communicating on their FBI-issued phones as part of an extramarital affair.

We found that this relationship was relevant to the frequency and candid nature of 

the text messages and their use of FBI-issued phones to communicate. Some of 

these text messages expressed political opinions about candidates and issues 

involved in the 2016 presidential election, including statements of hostility toward 

candidate Trump and statements of support for candidate Clinton. 

We identified three categories of text messages that raised concerns about 

potential bias in FBI investigations. The first were text messages of a political 

nature commenting on Trump and Clinton. We specifically highlight these text 

messages because Strzok and Page played important roles in investigations 

involving both Trump and Clinton, and the exchange of these text messages on an 

FBI-issued device potentially created an appearance of bias. The second category 

we identified were text messages that combined expressions of political sentiments 

with a discussion of the Midyear investigation, potentially indicating or creating the 

appearance that investigative decisions were impacted by bias or improper 

considerations. The third category raised similar questions with respect to the 

Russia investigation. We also include a fourth category of text messages that have 

received significant public attention. These messages are included to provide 

context and further explanation as to their meaning, and do not necessarily 

implicate potential bias in either the Midyear or Russia investigations. Examples of 

these four categories of text messages are discussed below.200 We also include 

 

199

 The OIG is preparing a separate report on its text message recovery efforts and findings.

200

 This Chapter includes the text messages we found most relevant to our review. However, 

Page and Strzok sent other text messages about candidates and issues involved in the 2016 

presidential election, unrelated to the Midyear or Russia investigations, and also sent numerous text 

messages, both positive and negative, about other public and government officials from both political 

parties. These included former Maryland Governor Martin O’Malley (“And Martin O’Malley’s a douche,” 

October 14, 2015), Congressman Paul Ryan (“And I hope Paul Ryan fails and crashes in a blaze of 

glory,” November 1, 2015), Ohio Governor John Kasich (“Poor Kasich. He's the only sensible man up 

there,” “Exactly re Kasich. And he has ZERO appeal,” March 4, 2016), former Attorney General Eric 

Holder (“Oh God, Holder! Turn [the television] off turn it off turn it off!!!!” “Yeah, I saw him yesterday 

and booed at the tv,” July 27, 2016), and others. Page and Strzok told us that these additional text 

messages were relevant because they reflected that Trump was not singled out by them for criticism 

or criticized for partisan reasons.
399

explanations provided by Page and Strzok during their OIG interviews about these 

text messages.

1. Text Messages Commenting on Trump or Clinton

In this section, we highlight examples of text messages of a political nature 

commenting on Trump and Clinton. We include explanations provided by Page and 

Strzok about their use of FBI-issued phones in general and their use of FBI-issued 

phones for political discussions. The sender of each text message is identified after 

the date.

 August 16, 2015, Strzok: “[Bernie Sanders is] an idiot like Trump. 

Figure they cancel each other out.”

201

 February 12, 2016, Page: “I’m no prude, but I’m really appalled by 

this. So you don’t have to go looking (in case you hadn’t heard), 

Trump called him the p-word. The man has no dignity or class. He 

simply cannot be president. With a Slur for Ted Cruz, Donald Trump 

Further Splits Voters http://nyti.ms/1XoICkO.”

 February 12, 2016, Strzok: “Oh, [Trump’s] abysmal. I keep hoping 

the charade will end and people will just dump him. The problem, 

then, is Rubio will likely lose to Cruz. The Republican party is in utter 

shambles. When was the last competitive ticket they offered?”

 March 3, 2016, Page: “God trump is a loathsome human.”

 March 3, 2016, Strzok: “Omg [Trump’s] an idiot.

 March 3, 2016, Page: “He’s awful.”

 March 3, 2016, Strzok: “God Hillary should win 100,000,000-0.”

 March 3, 2016, Page: “Also did you hear [Trump] make a comment 

about the size of his d*ck earlier? This man cannot be president.”

 March 12, 2016: Page forwarded an article about a “far right” 

candidate in Texas, stating, “[W]hat the f is wrong with people?” 

Strzok replied, “That Texas article is depressing as hell. But answers 

how we could end up with President trump.”

 March 16, 2016, Page: “I cannot believe Donald Trump is likely to be 

an actual, serious candidate for president.”

 June 11, 2016, Strzok: “They fully deserve to go, and demonstrate 

the absolute bigoted nonsense of Trump.”

 July 18, 2016, Page: “...Donald Trump is an enormous d*uche.”

 

201

 All text messages produced to the OIG reflected Greenwich Mean Time. As a result, some 

text messages sent late at night bore the wrong date. We have corrected times and, where 

necessary, dates in this report to reflect the Eastern Time Zone. In addition, some text messages 

used emojis and other formatting symbols, which we omitted unless they affected the meaning of the 

text message. We also excluded other intervening text messages that did not contribute to 

understanding the highlighted text messages.
400

 July 19, 2016, Page: “Trump barely spoke, but the first thing out of 

his mouth was ‘we’re going to win soooo big.’ The whole thing is like 

living in a bad dream.”

 July 21, 2016, Strzok: “Trump is a disaster. I have no idea how 

destabilizing his Presidency would be.”

 August 26, 2016, Strzok: “Just went to a southern Virginia Walmart. I 

could SMELL the Trump support....”

 September 26, 2016, Page: Page sent an article to Strzok entitled, 

“Why Donald Trump Should Not Be President,” stating, “Did you read 

this? It’s scathing. And I’m scared.”

 October 19, 2016, Strzok: “I am riled up. Trump is a fucking idiot, is 

unable to provide a coherent answer.”

 November 3, 2016, Page: “The nyt probability numbers are dropping 

every day. I’m scared for our organization.”

 November 3, 2016, Strzok: “[Jill] Stein and moron [Gary] Johnson are 

F’ing everything up, too.”

 November 7, 2016, Strzok: Referencing an article entitled “A victory 

by Mr. Trump remains possible,” Strzok stated, “OMG THIS IS 

F*CKING TERRIFYING.”

 November 13, 2016, Page: “I bought all the president’s men. Figure I 

needed to brush up on watergate.”202

Both Strzok and Page agreed to multiple voluntary interviews with the OIG

regarding, among other things, their text messages. The OIG asked Strzok and 

Page each to comment in general on the text messages. Strzok explained that the 

text messages reflected his “personal opinion talking to a friend.” He stated that 

ingrained in FBI culture was a “bright and inviolable line between what you think 

personally and belief and the conduct of your official business,” and that the 

political opinions he expressed in the text messages “never transited into the 

official realm. In any way. Not in discussions, not in acts.” Strzok acknowledged 

that “it was dumb to do that all on a government device,” but distinguished his 

private exchanges with Page from a more public forum where expressing such 

views might call into question the integrity of an FBI investigation. When 

questioned about the possibility that exchanges on his government device could be 

hacked, obtained by the media, or otherwise exposed to the public, he 

acknowledged that “I can envision a number of scenarios” where it could impact an 

investigation.

Strzok stated most people would have no idea of his partisan affiliation and 

that “[i]t was a point of pride on Midyear that we absolutely conducted that 

 

202

 Among the text messages forensically recovered by the OIG in May 2018 was another 

exchange about “All the President’s Men.” On March 14, 2017, Page texted, “Finally two pages away 

from finishing atpm. Did you know the president resigns in the end?! ” Strzok replied, “What?!?! 

God, that we should be so lucky.”
401

investigation and pursued the truth in a manner that was protected from bias or 

influence and was simply apolitical.” He further stated, “I did not either in Midyear 

or any other case act in a vacuum.... I had subordinates, I had peers, I had 

supervisors,” and that none of these people would say that he had acted in a biased 

manner in carrying out his official duties.

Page told us that these text messages reflected her personal opinions 

regarding candidate Trump’s fitness to be president and her preference for Clinton, 

but that she did not allow her political views to impact investigative steps on the 

Midyear investigation. She stated, “Because I was on the Clinton investigation, I 

actually felt extremely constrained from talking to anyone about politics at all.... 

And so, Pete being a good friend, it was in a way a, like a safe place to sort of have 

a conversation about what was...the normal sort of news of the day because...we 

both knew that we weren’t, it wasn’t impacting anything that we were doing.” She 

pointed out that many of the text messages in question were sent after the Midyear 

investigation was effectively concluded on July 5, 2016, at which point she said she 

personally felt less constrained to express an opinion. Page stated that she was 

“responsible for no single decision at all with respect to the case,” but that her role 

was rather to communicate information between FBI executive leadership and the 

investigative team. She also said she was not the sole source of information to 

executive leadership.

When asked about using her FBI-issued phone for these exchanges, Page 

told us, “[T]he predominant reason that we communicated on our work phones was 

because we were trying to keep our affair a secret from our spouses.” Page also

said, “I guess I didn’t feel like I was doing anything wrong. I’m an American. We 

have the First Amendment. I’m entitled to an opinion.... I saw it as, I still see it as 

so separate from the investigative activity we were taking in the, in Midyear that I 

didn’t, didn’t really think about it, to be honest with you.”

2. Text Messages Discussing Political Sentiments and the 

Midyear Investigation

In this section, we highlight examples of text messages that appear to 

combine expressions of political sentiments with discussion of the Midyear 

investigation. We provide background and context where possible to assist in 

understanding the text messages. We also include the explanations provided by 

Page and Strzok about these text messages.

February 24, 2016: In connection with a discussion about how many 

people from the FBI and Department should be present during a potential interview 

of former Secretary Clinton, Page stated in a February 24, 2016 text message to 

Strzok, “One more thing: she might be our next president. The last thing you need 

us going in there loaded for bear. You think she’s going to remember or care that it 

was more doj than fbi?” Strzok replied, “Agreed....” Page sent similar text

messages to McCabe and another FBI employee around the same time, adding that 

having a larger number in the room “is not operationally necessary” and that “[t]his 

is as much about reputational protection as anything.” These text messages 

occurred at almost the midpoint of the Midyear investigation, before Clinton’s 
402

interview was formally scheduled. Ultimately, Clinton was interviewed on July 2, 

2016, and there were three FBI and five Department officials in the room. Page did 

not attend the interview.

Both Page and Strzok told the OIG that these messages did not reflect that 

the FBI took into account the likelihood that former Secretary Clinton would be 

president when conducting her interview. Page told us that her text message was 

advocating that the FBI should “follow the practice we always, always follow” with 

respect to who would attend Clinton’s interview, “and not do something that might 

otherwise negatively impact [Clinton’s] thinking or her feeling about the FBI in 

general.” She stated that having fewer people present in an interview is generally 

better for building rapport and ensuring that the right people are asking the 

questions, and that by “loaded for bear” she meant having a large number of 

interviewers in the room, which might look “like we’re trying to intimidate” Clinton. 

Strzok told us he did not interpret Page’s text message to suggest that the FBI 

should treat Clinton differently “because she might be the next president,” and he 

stated that he was certain he “made no decision based on anything [Clinton] might 

be or become or have done.”

July 26, 2016: Strzok and Page exchanged a series of text messages on 

July 26, 2016, while they appeared to be watching television coverage of the 

Democratic National Convention. In the course of this exchange, Page texted, 

“Yeah, it is pretty cool. [Clinton] just has to win now. I’m not going to lie, I got a 

flash of nervousness yesterday about trump. The sandernistas have the potential 

to make a very big mistake here....” Strzok responded, “I’m not worried about 

them. I’m worried about the anarchist Assanges who will take fed information and 

disclose it to disrupt. We’ve gotta get the memo and brief and case filing done.”

Strzok told us that “the memo” he was referring to was the closing 

Letterhead Memorandum (LHM) summarizing the Clinton email server investigation. 

Strzok said he was not certain what the “brief and case filing” referred to, but 

speculated these could have related to a FOIA filing. When asked if his text

message meant that the LHM needed to be completed because he was worried 

about Trump and wanted Clinton to win, Strzok said, “No, not at all.” He described 

this exchange as a “discussion that is purely in that private, personal realm about 

beliefs and opinions that are personal opinions intermixed [with discussion of work 

tasks] because, as a work colleague, there are a lot of things going on, and they do 

get intermixed.” Strzok stated that mixing work and personal communications in 

the same text message exchange, on the same device, was “dumb” and 

acknowledged that it could create a perception issue. He again emphasized that he 

never took any investigative step designed to help or hurt Clinton or Trump.

Page told us that she was not sure what the “memo and brief and case filing” 

referred to but that it might have been a related classified issue. She stated that 

she did not read Strzok’s text message to connect the need to “get the memo and 

brief and case filing done” with his political preferences. Rather, Page stated that 

she thought that the use of “fed” in the text message may have been an erroneous 

auto-correction of an unclassified acronym of a codename and that Strzok was 
403

referring to concerns about leaks by actors like Assange (Wikileaks) “who will leak 

classified information.”

3. Text Messages Discussing Political Sentiments and the 

Russia Investigation

In this section, we highlight examples of text messages that appear to 

combine expressions of political sentiments with discussion of the Russia 

investigation. We provide background and context where possible to assist in 

understanding the text messages. We also include the explanations provided by 

Page and Strzok about these text messages.

July 31, 2016: In connection with formal opening of the FBI’s Russia 

investigation, Strzok texted Page: “And damn this feels momentous. Because this 

matters. The other one did, too, but that was to ensure we didn’t F something up. 

This matters because this MATTERS. So super glad to be on this voyage with you.”

Strzok told us the “other one” referred to in the text message was the 

Midyear investigation. He said his text message was comparing and contrasting the 

Midyear investigation with the Russia investigation, and reflected his view that “if 

there is criminal activity there [in Midyear], it is comparatively limited, versus 

allegations [in the Russia investigation] which are of the most extraordinarily, 

potentially grave conduct.” He said that his assessment of the significance of the 

Russia investigation was not affected by his personal feelings toward Trump and 

that it would be the same if another campaign were involved.

August 6, 2016: In an exchange on August 6, 2016, Page forwarded Strzok 

a news article relating to Trump’s criticism of the Khans (the Gold Star family who 

appeared at the Democratic National Convention) and stated, “Jesus. You should 

read this. And Trump should go f himself.” Strzok responded favorably to the 

article and added, “And F Trump.” Page replied, “So. This is not to take away from 

the unfairness of it all, but we are both deeply fortunate people.” She then sent 

another text message, “And maybe you’re meant to stay where you are because 

you’re meant to protect the country from that menace. To that end, read this:” and 

forwarded a David Brooks column from the New York Times about Trump “enablers” 

in the Republican Party who had not opposed Trump. Strzok responded, “Thanks. 

It’s absolutely true that we’re both very fortunate. And of course I’ll try and 

approach it that way. I just know it will be tough at times. I can protect our 

country at many levels, not sure if that helps....”

When asked to explain what she meant by “you’re meant to protect the 

country from that menace,” Page began by stating, “I was totally appalled that the 

President would insult the father of a dead service member.... And just find that 

unconscionable and disgusting and cruel.” She also stated that the “menace” was 

“the potential threat to national security that Trump or his people pose if [the] 

predication [for the Russia investigation] is true.” Strzok told us that he did not 

interpret Page’s reference to “protect the country from that menace” to refer to 

Trump. He stated, “I take menace a little differently. I take, I take the menace as, 

again, I view any foreign interference with our electoral process to be a threat, to 
404

be a violation of law.... So when I see menace, I, you know, is that Trump, is that 

Russian interference, is it the combination of the two?”

August 8, 2016: In a text message on August 8, 2016, Page stated, 

“[Trump’s] not ever going to become president, right? Right?!” Strzok responded, 

“No. No he’s not. We’ll stop it.”203 

When asked about this text message, Strzok stated that he did not 

specifically recall sending it, but that he believed that it was intended to reassure 

Page that Trump would not be elected, not to suggest that he would do something 

to impact the investigation. Strzok told the OIG that he did not take any steps to 

try to affect the outcome of the presidential election, in either the Midyear 

investigation or the Russia investigation. Strzok stated that had he—or the FBI in 

general—actually wanted to prevent Trump from being elected, they would not

have maintained the confidentiality of the investigation into alleged collusion 

between Russia and members of the Trump campaign in the months before the 

election. Page similarly stated that, although she could not speak to what Strzok 

meant by that text message, the FBI’s decision to keep the Russia investigation 

confidential before the election shows that they did not take steps to impact the 

outcome of the election.

August 15, 2016: In a text message exchange on August 15, 2016, Strzok 

told Page, “I want to believe the path you threw out for consideration in Andy’s 

office—that there’s no way he gets elected—but I’m afraid we can’t take that risk. 

It’s like an insurance policy in the unlikely event you die before you’re 40....” The 

“Andy” referred to in the text message appears to be FBI Deputy Director Andrew 

McCabe. McCabe was not a party to this text message, and we did not find

evidence that he received it.

In an interview with the OIG, McCabe was shown the text message and he 

told us that he did not know what Strzok was referring to in the message and 

recalled no such conversation. Page likewise told us she did not know what that 

text message meant, but that the team had discussions about whether the FBI 

would have the authority to continue the Russia investigation if Trump was elected. 

Page testified that she did not find a reference in her notes to a meeting in 

McCabe’s office at that time.

Strzok provided a lengthy explanation for this text message. In substance, 

Strzok told us that he did not remember the specific conversation, but that it likely 

was part of a discussion about how to handle a variety of allegations of “collusion 

between members of the Trump campaign and the government of Russia.” As part 

of this discussion, the team debated how aggressive to be and whether to use overt 

investigative methods. Given that Clinton was the “prohibitive favorite” to win, 

 

203

 Although we received Page’s August 8 text message to Strzok from the FBI as part of its 

production of text messages in 2017, Strzok’s response to Page was not among those preserved by 

the FBI’s text message preservation software, and therefore was not produced to us. The OIG’s Cyber 

Investigations Office recovered this text message, along with others, in May 2018 through forensic 

analysis of a folder found on Page’s and Strzok’s Samsung S5 devices. 
405

Strzok said that they discussed whether it made sense to compromise sensitive 

sources and methods to “bring things to some sort of precipitative conclusion and 

understanding.” Strzok said the reference in his text message to an “insurance 

policy” reflected his conclusion that the FBI should investigate the allegations 

thoroughly right away, as if Trump were going to win. Strzok stated that Clinton’s 

position in the polls did not ultimately impact the investigative decisions that were 

made in the Russia matter.

May 18, 2017: Mueller was appointed Special Counsel on May 17, 2017. 

The next day Strzok and Page exchanged text messages in a discussion of whether 

Strzok should join the Special Counsel’s investigation. Strzok wrote: “For me, and 

this case, I personally have a sense of unfinished business. I unleashed it with 

MYE. Now I need to fix it and finish it.” Later in the same exchange, Strzok, 

apparently while weighing his career options, made this comparison: “Who gives a 

f*ck, one more A[ssistant] D[irector]...[versus] [a]n investigation leading to 

impeachment?”204 Later in this exchange, Strzok stated, “you and I both know the 

odds are nothing. If I thought it was likely I’d be there no question. I hesitate in 

part because of my gut sense and concern there’s no big there there.”

Strzok acknowledged that his text messages could be read to suggest that 

Strzok held himself responsible for Trump’s victory and Clinton’s defeat because of 

the Midyear investigation and that he viewed the Russia investigation as providing 

him an opportunity to “fix” this result by working on an investigation that could 

result in the impeachment of President Trump. However, Strzok said he strongly 

disagreed with this interpretation and provided a lengthy explanation for these 

statements. Strzok said that he wanted to “finish” the Russia investigation rather 

than be reassigned midway through and lose the institutional knowledge of issues 

being investigated by the Special Counsel. He further stated that he was referring 

to Russia’s use of the Midyear investigation in its election interference efforts. 

Strzok explained, “[I]t wasn’t so much the investigation about Midyear, but then 

how it played into, how it was being portrayed in the political environment, how it 

was being leveraged by the government of Russia and all the social media 

disseminations.... [W]e then came to see all this kind of overlap and replaying of 

events with regard to the involvement of Russia, and certainly the back-and-forth 

with some elements of the Trump campaign.” When asked what he wanted “to fix,” 

Strzok identified the misperception that “Russia wasn’t involved,” given that “Russia 

did interfere with our elections.”

 

204

 Strzok expressed similar sentiments in an email to Page using his FBI UNET (unclassified) 

account. On May 22, 2017, at a time when Page was working for the Special Counsel but Strzok had 

not yet joined the Special Counsel investigation, Page forwarded Strzok a Washington Post article 

entitled, “Trump asked intelligence chiefs to push back against FBI collusion probe after Comey 

revealed its existence.” Strzok responded saying, “Yup. Assuming you/team will do it via Mueller?” 

When Page confirmed this, Strzok responded, “God I suddenly want on this. You know why.” Page 

replied that she would leave the Special Counsel investigation and “happily” return to her work at the 

FBI if Strzok really wanted to join the investigation. Strzok responded, “I’m torn. I think – know –

I’m more replaceable than you are in this. I’m the best for it, but there are others who can do OK. 

You are different and more unique. This is yours. Plus, leaving a S[pecial] C[ounsel] (having been an 

SC) resulting in an impeachment as an attorney is VERY different than leaving as an investigator....”
406

When asked to explain his comment about working on an investigation 

“leading to impeachment?” Strzok denied that he had already prejudged the Russia 

investigation. He described himself as a person:

[W]ho has had access to the information about the, all of these cases 

and all of the ins and outs of what the allegations [in the Russia 

investigation] are. And that he has both, as it matters as a public 

servant, he has a professional concern about the allegations.... And 

he is concerned on the impact of the national security of the United 

States. He finds that he has an expertise and a competence in this 

line of work, and he feels compelled and driven to pursue that and 

pursue those facts where they lay.

He stated further that his professional actions, including on the staff of the Special 

Counsel, were not affected by political bias.

We also asked Strzok about his “no big there there” message.” Strzok 

stated:

As I looked at the predicating information, as I looked at the facts as 

we understood them from...the allegations that Russia had these 

emails, and offered to members of the Trump campaign to release 

them. As we looked at the various actors, the question [was,]...was 

that part of a broad, coordinated effort, or was that simply a bunch of 

opportunists seeking to advance their own or individual 

agendas...which of that is it?

...My question [was] about whether or not this represented a large, 

coordinated conspiracy or not. And from that, as I looked at what 

would give me professional fulfillment, what I thought would be the 

best use of my skills and talents for the FBI and for the United States, 

whether to take, which path to take.

Page stated that she understood Strzok’s reference to “unfinished business” 

that he had “unleashed” and needed “to fix and finish” to be “a reflection of our 

Director having been fired,” and “the purported reason for why the Director was 

fired was his mishandling of the Midyear investigation, and the work force was, you 

know, in mutiny, and it was all about Midyear.” She disagreed with the suggestion 

that Strzok felt responsible for Clinton’s defeat in the election. She said she 

interpreted Strzok’s reference to impeachment to mean he wanted to be involved in 

the Russia investigation because it was so important “it might lead to 

impeachment,” not because “it will lead to impeachment.”205 (Emphasis added). In 

response to the OIG’s question as to whether Strzok’s text messages made it 

appear that he was biased against Trump from the beginning of the Special Counsel 

investigation, Page acknowledged that the text messages could be read that way, 

 

205

 Strzok gave a similar explanation for the email he sent to Page referencing a Special 

Counsel investigation “resulting in an impeachment.” He stated, “[W]hile it says that, I think my 

sense was very much, you know, where it could result in an impeachment. I am, again, was not, am 

not convinced or certain that it will....”
407

but stated, “[T]hat’s just not how I read it.” She stated, “He wants to finish the 

Russia investigation to do, right, this President fired the Director. This President’s 

team is being investigated for potentially colluding with the Russians in the 2016 

election. So, [he] want[s] to finish [his] involvement.”

4. Other Notable Text Messages

In this section, we briefly discuss other text message exchanges between 

Page and Strzok that have received significant public attention.

April 1, 2016: On April 1, 2016, Page sent the following text message to 

Strzok: “So look, you say we text on that phone when we talk about hillary 

because it can’t be traced, you were just venting bc you feel bad that you’re gone 

so much but it can’t be helped right now.” Page told us that this was an example of 

why she and Strzok used their work phones to conceal their affair from their 

spouses. Page stated, “[T]hat [text message] follows us communicating personally 

on our personal phones, and his wife inquiring what it is he was doing. And so my 

saying, tell her we’re talking about Hillary is not in fact because we were talking 

about Hillary, but coming up with an explanation for him to provide his wife with 

respect to why we were on that phone.”

June 30, 2016: On June 30, 2016, Strzok sent the following text message 

to Page: “...Just left Bill.... He changed President to ‘another senior government

official.’” Based on context, Strzok told us “Bill” referred to Priestap. Strzok 

stated:

My recollection is that the early Comey speech drafts included 

references to emails that Secretary Clinton had with President Obama 

and I think there was some conversation about, well do we want to be 

that specific? Is there some, out of deference to executive 

communications, do we want to do that? And I remember that 

discussion occurring. I remember the decision was made to take it 

out. I know I was not the person who did it.

Strzok told us that he saw no indication that this decision was done “to curry favor 

or to influence anything.” Page told us that she could not remember the discussion

referenced in this text message. We also discuss this change to Comey’s July 5 

statement in Chapter Six.

July 24, 2016: On July 24, 2016, before the Russia investigation was 

formally opened, Page and Strzok exchanged numerous text messages in which 

they discuss U.S. District Court Judge Rudolph “Rudy” Contreras. Judge Contreras 

is also a current member of the Foreign Intelligence Surveillance Court (FISC). 

They discuss, among other things, Strzok hosting a social gathering and inviting 

Contreras. They also discuss whether Contreras would “have to recuse himself” on 

“espionage FISA” cases given “his friend oversees them.” We asked Strzok about 

this exchange and his relationship with Contreras. Strzok stated that he considered 

Contreras a friend and explained that they met years ago when their children 

attended the same elementary school. Strzok stated that this text message 
408

exchange reflected that “it had been a while since he had seen” Contreras and he 

was telling Page that it would nice to see Contreras and find out how he was doing. 

Strzok continued:

What it was not, and I will say this in response to, again, a lot of the 

speculation I’ve seen. At no time did I ever with Judge Contreras 

think of or in actuality reach out for the purpose of discussing any case 

or trying to get any decision, provide any information, or otherwise 

influence him with regard to any investigative matter that I or others 

were involved with.

Strzok told us that Judge Contreras “knew that [Strzok] worked or may have 

worked national security matters for the FBI,” but knew nothing about the specifics 

of Strzok’s job or any of the cases he worked. Strzok stated that he never 

discussed specifics of any investigation with Judge Contreras. Strzok also told us 

that the social gathering discussed in this text message exchange never occurred.

We also asked Strzok about the recusal discussion reflected in the text 

messages. Strzok stated:

[This] came up in the context of now that he was on the FISC and that 

we did have a relationship, the question about, from an ethical 

perspective and doing the right thing from an ethical perspective, 

where the lines of either notifying the court and/or either his recusal or 

my recusal with regard to matters that might bring us in contact with 

each other on the professional side.

And so the discussion which then came up...was, whether in the 

context of being the head of the Counterespionage Section, were 

there, noticing the court or at a minimum noticing [the Department’s 

National Security Division Office of Intelligence] of that personal 

relationship to allow the court to make the appropriate decision, or, 

you know, the, the conglomeration of all of us to make the appropriate 

ethical decision of whether or not to do was the substance of this 

discussion. But all of this discussion is a consideration of doing the 

right, appropriate, ethical thing. It is the polar opposite of what is 

being suggested by some. This is, this is the flip side of that saying 

we want to make sure we’re absolutely doing the right thing. And by 

the way...Judge Contreras is thoughtful and extraordinarily 

conscientious about ethics and doing the right thing. So this is, if 

anything, and what is particularly personally aggravating to me is this 

speaks highly to him as a person, to us as the way we were thinking 

about it. And it’s being absolutely twisted in the, the complete 

opposite direction.

Strzok told us that this text message exchange was not about any particular case

and represented a more general concern of what he should do.
409

September 2, 2016: On September 2, 2016, Page and Strzok exchanged 

the following text messages. The sender of each message is identified after the 

timestamp.

09:41:30, Strzok: “Checkout my 9:30 mtg on the 7th”

09:42:40, Page: “I can tell you why you’re having that meeting.”

09:42:46, Page: “It’s not what you think.”

09:49:39, Strzok: “TPs for D?”

09:50:29, Page: “Yes, bc potus wants to know everything we are 

doing.”

09:55:21, Strzok: “I’m sure an honest answer will come out of that 

meeting....”

This text message exchange occurred during the period in which Midyear was 

effectively closed—after Comey’s July 5 announcement and prior to the discovery of 

Midyear-related emails on the Weiner laptop in late September. Strzok told us that 

these text messages referenced a request by the White House to get a 

“comprehensive idea across the U.S. Intelligence Community” about the scope of 

Russian interference activities and details of what Russia was doing. Strzok stated 

that this was “strictly limited to Russian actors” and he did not believe any 

investigations of U.S. persons were part of this request. Page stated that this 

exchange had “nothing to do with the Clinton email investigation.”

November 9, 2016: The day after the presidential election, on November 

9, 2016, Page sent the following text message to Strzok: “Are you even going to 

give out your calendars? Seems kind of depressing. Maybe it should just be the first 

meeting of the secret society.” We asked Page about this message. Page stated 

that the “calendars” referenced in this text message were “funny and snarky” 

calendars of Russian President Vladimir Putin in different poses, such as “holding a 

kitten.” Page told us that Strzok had previously purchased these calendars as “dark 

gallows humor.” Page stated that the reference to the “secret society” was also a 

“dark sort of” humor about Trump winning the election and concerns she and 

Strzok had about Trump. Page continued:

And so, we somewhat with dark humor, but also somewhat, you know, 

with real concern as, of course, our Director actually gets fired, talk 

about, like, well, when he shuts down the, when he finds out about the 

investigation and shuts down the FBI, you know, we’ll form a secret 

society so we can like continue the investigation. So that’s just, that’s 

obviously not real. I mean, that’s just us being, you know, sort of 

snarky. But that’s a, that’s a joke. I mean, a reflection of that sort of 

joke.

Strzok stated that he “took and certainly believed [this text message] to be a 

joke.” Strzok explained:
410

I had gotten a bunch of Putin 2017 calendars where he is in various, 

glorious displays of Russian patriotism for each month. And we were 

going to give it out to the, kind of the, the closer senior members of 

the [Russia investigation] team, just to, you know, hey, we made it to, 

to Election Day just as like, you know, thanks for your hard work 

because people, you know, had been truly working very hard....

To give that out and, you know, and Lisa, you know, saying, God, you 

know, and the thought was, you know, give it out like right around the 

election. And then my, my take of Lisa’s, and I think the everyman, 

commonsense take of this is that it’s like, God, you know, is that 

something you would want to, you know, want to do right now? And, 

you know, the secret society is entirely in jest.

B. Instant Messages between Agent 1 and Agent 5

Agent 1 is an experienced counterintelligence agent and was assigned to the 

Midyear investigative team from August 2015 through the conclusion of the 

investigation. Agent 1 was one of four agents responsible for the day-to-day 

activities of the Midyear investigation. Agent 1’s duties included conducting witness 

interviews and Agent 1 was one of the two agents who interviewed former 

Secretary Clinton on July 2. Agent 5 is also an experienced counterintelligence 

agent and was a member of the Midyear filter team. As a member of the filter 

team, Agent 5 was responsible for identifying privileged communications among the 

materials obtained by the FBI to ensure that they were not reviewed by the 

investigative team. Neither Agent 1 nor Agent 5 was assigned to the FBI’s Russia 

investigation or the Special Counsel investigation.

As noted previously, we identified instant messages sent by Agent 1, often to

Agent 5, that expressed opinions critical of the conduct and quality of the Midyear 

investigation. We discussed these message in Chapter Five. In addition to those 

messages, we identified two instant message exchanges that appeared to combine 

a discussion of politics with a discussion of the Midyear investigation. We also 

identified instant messages between Agent 1 and Agent 5 that expressed support 

for Clinton and hostility toward Trump. We discuss these messages in this section, 

along with explanations provided by Agent 1 and Agent 5. Because it is relevant to 

their explanations, we note that Agent 1 and Agent 5, who are now married, were 

in a personal relationship that predated their assignment to the Midyear 

investigation.

1. Instant Messages Referencing the Midyear Investigation

On July 6, 2016, the day after Comey’s Midyear declination announcement, 

Agent 1 and an FBI employee not involved with Midyear exchanged messages about 

the investigation. During the course of this discussion, Agent 1 described the prior 

weekend’s activities, which included the interview of Clinton. A portion of this
411

instant message exchange follows. The sender of each message is noted after the 

timestamp.206

15:07:41, Agent 1: “...I’m done interviewing the President – then 

type the 302. 18 hour day....”

15:13:32, FBI Employee: “you interviewed the president?”

15:17:09, Agent 1: “you know – HRC” [Hillary Rodham Clinton]

15:17:18, Agent 1: “future pres”

15:17:22, Agent 1: “Trump cant win”

15:17:31, Agent 1: “demographics dont line up”

15:17:37, Agent 1: “America has changed”

We asked Agent 1 if he thought of Clinton as the next president while conducting 

the Midyear investigation. Agent 1 stated, “I think my impression going into the 

election in that personal realm is that all of the polls were favoring Hillary Clinton.” 

We asked Agent 1 if he treated Clinton differently because of this assumption. 

Agent 1 stated, “Absolutely not. I think the message they said that our leadership 

told us and our actions were to find whatever was there and whatever, whatever

that means is what it means.”

Comey sent the first letter to Congress about the Weiner laptop discovery on 

October 28, 2016. Agent 1 and Agent 5 exchanged instant messages about the 

letter and Trump’s reaction to it later that day. The sender of each messages is 

noted after the timestamp.

13:46:48, Agent 5: “jesus christ... Trump: Glad FBI is fixing ‘horrible 

mistake’ on clinton emails... for fuck’s sake.”

13:47:27, Agent 5: “the fuck’s sake part was me, the rest was 

Trump.”

13:49:07, Agent 1: “Not sure if Trump or the fifth floor is worse...”

13:49:22, Agent 5: “I’m so sick of both...”

13:50:25, Agent 5: “+o( TRUMP”207

13:50:30, Agent 5: “+o( Fifth floor”

13:50:34, Agent 5: “+o( FBI”

13:50:44, Agent 5: “+o( Average American public”

 

206

 All instant messages produced to the OIG reflected Greenwich Mean Time. We have 

corrected times to the Eastern Time Zone as a result. In addition, some instant messages contained 

emojis, which we omitted unless they affected the meaning of the message. We also do not include 

other intervening instant messages unless they contribute to understanding the highlighted messages.

207

 The symbol used in these messages is a “sick face” emoticon. See IM Emoticons, at

http://sheet.shiar.nl/emoji (last accessed April 28, 2018).
412

We asked both Agent 1 and Agent 5 about these messages. Agent 1 and Agent 5 

both stated the reference to “fifth floor” referred to the location of the FBI WFO’s 

Counterintelligence Division. Agent 1 continued: “Again, you know, I think a 

general, general theme in a lot of this is some personal comment, or, you know, 

complaining about common topics and leadership and, and venting.” Agent 5 also 

described this as general complaining to Agent 1 and also as an example of her 

being “very tired of working” these types of cases. Agent 5 also noted that she was 

not involved in the review of the Weiner laptop.

2. Instant Messages Commenting on Trump or Clinton

On August 29, 2016, Agent 1 and Agent 5 exchanged the following instant 

messages as part of a discussion about their jobs. The sender of each message is 

noted after the timestamp.

10:39:49, Agent 1: “I find anyone who enjoys [this job] an absolute 

fucking idiot. If you dont think so, ask them one more question. Who 

are you voting for? I guarantee you it will be Donald Drumpf.”

10:40:13, Agent 5: “i forgot about drumpf...”

10:40:27, Agent 5: “that’s so sad and pathetic if they want to vote for 

him.”

10:40:43, Agent 5: “someone who can’t answer a question”

10:40:51, Agent 5: “someone who can’t be professional for even a 

second”

On September 9, 2016, Agent 1 and Agent 5 exchanged the following instant 

messages.

08:56:43, Agent 5: “i’m trying to think of a ‘would i rather’ instead of 

spending time with those people”

08:56:54, Agent 1: “stick your tongue in a fan??”

08:56:58, Agent 5: “i would rather have brunch with trump”

08:57:03, Agent 1: “ha”

08:57:15, Agent 1: “french toast with drumpf”

08:57:19, Agent 5: “i would rather have brunch with trump and a 

bunch of his supporters like the ones from ohio that are retarded”

08:57:23, Agent 5: “:)”

Agent 5 told the OIG these instant messages “referenced TV programming and 

commentary that Agent 1 and Agent 5 had recently viewed together.” Agent 5 

continued, “The reference was not a general statement about a particular part of 

the country, rather it was in jest and pertained to individuals’ inability to articulate 

any reason why they so strongly favored one candidate over another.”
413

On Election Day on November 8, 2016, Agent 1 and Agent 5 exchanged the 

following instant messages.

14:21:10, Agent 1: “You think HRC is gonna win right? You think we 

should get nails and some boards in case she doesnt”

14:21:56, Agent 5: “she better win... otherwise i’m gonna be walking 

around with both of my guns.”

14:22:05, Agent 5: “and likely quitting on the spot”

14:28:43, Agent 1: “You should know;.....”

14:28:45, Agent 1: “that”

14:28:50, Agent 1: “I’m.....” 

14:28:56, Agent 1: “with her.”

14:28:58, Agent 1: “ooooooooooooooooooo”

14:29:02, Agent 1: “show me the money”

14:29:03, Agent 5: “<:o)”

14:29:14, Agent 5: “screw you trump”

14:19:18, Agent 5: “wheeeeeeeeeeeeeeeeeeeeeeeeeee!”

14:29:32, Agent 5: “go baby, go! let’s give her Virginia”

14:30:03, Agent 1: “not to my country. You just cant get up and try 

to appeal to all the worst things in humans and fool my country....”

14:30:12, Agent 1: “Just 49% of us.....”

14:30:25, Agent 5: “let’s hope it’s 49% or less...”

14:30:31, Agent 5: “we’ll find out...”

In a December 6, 2016 exchange, Agent 5 complained to Agent 1 about 

being required to be on call on the day of the presidential inauguration. In the 

middle of expressing displeasure about this, Agent 5 sent a message to Agent 1 

that stated, “fuck trump.” On February 9, 2017, in the context of an FBI employee 

receiving a presidential award for public service, Agent 5 messaged, “...I think now 

that trump is the president, i’d refuse it. it would be an insult to even be 

considered for it.” 

We asked Agent 1 and Agent 5 about their use of instant messaging 

generally and about these messages in particular. As mentioned in Chapter Five, 

Agent 1 told us that he believed that instant messages were not retained by the FBI 

and therefore used less caution with those communications than he would have 

with other types of communications, such as email or text messages.208 Agent 5 

 

208

 Agent 1 explained the reason for his belief that the instant messages were not retained, 

stating, “So my understanding of [instant messaging] in the FBI is that it was implemented about four 

or five years ago, roughly. Because I did internal investigations, at the time I was on the espionage 
414

also made this point, stating that she considered these exchanges as a private 

“outlet” to Agent 1. Both Agent 1 and Agent 5 apologized for their use of instant 

messaging in this manner and told us that they were embarrassed.

We asked Agent 1 whether he believed these political discussions raised 

questions about the integrity or reliability of the Midyear investigation. Agent 1 

stated:

I don’t based on knowing my actions. I guess I would kind of repeat 

what I said before. Yes, I, I have personal, a personal life, private 

opinions, private views. I think what happened here is that I used 

instant message and chat like it was my home.

...I like the job of fact-finding and having it lead you where you go. I 

don’t start any day with an endgame in mind of let it, let it go to, go to 

that. That’s the way I think I act, that’s how I think I’ve acted over 

my whole career. That’s how I, that’s how I know I acted in, in this 

case.

Yeah, I think that, I understand your question because it’s an FBI 

system. I just unfortunately did not view it that way and did not use it 

that way. I used it as, as, you know, some of my worst hits here, as 

a, a way to relieve stress, as a way to be jocular, as a way to 

exaggerate, as a way to blow off steam, as a, you know, potentially 

get sympathy from, and then, you know, it was compounded by 

frustrations from other people coming to me for answers for why 

certain people got elected, and is it our fault, and, so I think there was 

a, kind of a cocktail of, of stress in this case that came out on this 

system like it was a conversation.

So I, I don’t, I don’t think so based on knowing my actions and what I 

did knowing the actions of the people around me.

We also asked Agent 1 whether his personal beliefs impacted his investigative 

actions in Midyear. Agent 1 responded:

[I]n no way do I think it, it impacted my view. I guess the best way is 

almost like a, it’s almost like you switch on your, when, when we did 

our morning meetings, it was what do we have and where do we go 

next? It, it was just like almost, you know, like there’s a, there’s the 

professional side, the do your job side, and there’s a personal side. 

And I think a lot of this falls into the personal side.

 

squad, my awareness was that it was not logged by the FBI because I tried to get those records for 

internal investigations.” Agent 5 stated the she also had requested instant messages in prior internal 

investigations and been told that they were not preserved. Agents 1 and 5 told the OIG that they 

learned in April 2017 that the FBI had retained instant messages since February 2015, as the result of 

receiving a memorandum about preservation and criminal discovery obligations stemming from the 

FBI’s instant messaging system. The FBI email distributing this memorandum advised employees that 

the FBI began preserving instant messages in February 2015 and stated, “Lync should not be used for 

substantive communications.” 
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...It was only to try to do the right thing.... That’s, that’s the only 

thing, the only thought process in my head when I was, when I was 

doing my job.

We asked Agent 5 how she would respond to someone who read these 

messages and concluded the opinions expressed in them impacted the Midyear 

investigation. Agent 5 stated:

Well, I can see someone who doesn’t know us at all saying the same, 

wondering, I guess, if [our political beliefs] could have impacted [the 

Midyear investigation]. I can tell you in no way did my political or 

what I understand of [Agent 1], no political anything is going to 

interfere with us doing our job as professionals.

I can see me going into these rants. I can see me ranting in some of 

these, and, you know, again, I think all of these are very personal, offthe-cuff...these are personal, private messages. I mean, you could 

probably even see the difference between, if you’ve seen anything in 

my [career] that I put to the file...for, you know, case-related things. 

I am very thorough, methodical, and I think through everything when 

I’m typing it. I don’t even cut corners with acronyms. I, I treat that 

extremely seriously in my [career], and even before I became an 

agent.

So I, I would tell that person that part of being a professional, part of 

the oath that I swore here to work, I...uphold it. And I upheld it at 

this point. I, I do have personal beliefs and personal opinions. You 

know, I expressed some of those. Some of them come out in 

frustration. Some of them come out in jokes. I can see us quoting 

things kind of just to make us smile, you know, make us feel better, 

you know, after sometimes tough days. And...I would say in, in no 

way has it ever or would it ever affect the way I, I handle any 

investigation, any case, any professional work that I, that I put 

forward.

C. FBI Attorney 2 Instant Messages

FBI Attorney 2 was assigned to the Midyear investigation early in 2016. FBI 

Attorney 2 was not the lead FBI attorney assigned to Midyear and he told us he

provided support to the investigation as needed. FBI Attorney 2 told us that he was 

also assigned to the investigation into Russian election interference and was the 

primary FBI attorney assigned to that investigation beginning in early 2017. FBI 

Attorney 2 told us that he was then assigned to the Special Counsel investigation 

once it began. FBI Attorney 2 left the Special Counsel’s investigation and returned 

to the FBI in late February 2018, shortly after the OIG provided the Special Counsel 

with some of the instant messages discussed in this section.

We identified instant messages on FBINet involving FBI Attorney 2 that 

discussed political issues. Most of these exchanges appeared to be jokes or 

attempts at humor, often involving Trump. We asked FBI Attorney 2 in general 
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about the use of FBI instant messaging in this manner. FBI Attorney 2 told us that, 

in general, he regretted his use of instant messaging in this manner and noted “it’s 

not something that I did routinely.” He described these messages as “commentary” 

on recent political events and not connected to decisions or activities in 

investigations. FBI Attorney 2 stated that almost all of these messages were sent 

to co-workers he “considered to be” friends and he “was talking to them in that 

capacity,” and “[n]ot in a professional capacity.” FBI Attorney 2 reiterated that 

these messages or views had “absolutely” no impact on his work on investigations. 

He stated:

I, like most people, have particular views on, on politics. I’m a bit of a 

news junkie when it comes to government. It’s one of the main 

reasons I, I joined the federal workforce is because I’ve always found 

it so fascinating and interesting.

But when it came to doing my work, I never injected this, this type of, 

of color commentary or this type of water cooler type talk into that. I, 

I maintained impartiality and just tried to work through the issues 

individually as they came through. So if they needed some assistance 

on a warrant or some assistance on, you know, potentially pursuing 

contacts with another government agency or something like that, like, 

I just, I assisted with the process more like, kind of like an XO type 

role I guess.

Among the general discussion of political issues by FBI Attorney 2, we 

identified three instant message exchanges that raised concerns of potential bias. 

The first of these exchanges was on October 28, 2016, shortly after Comey’s 

October 28 letter to Congress that effectively announced the reopening of the 

Midyear investigation. FBI Attorney 2 sent similar messages to four different FBI 

employees. The timestamps of these messages are included below. The messages 

stated:

13:44:42, to FBI Employee 1: “I mean, I never really liked the 

Republic anyway.”

13:44:52, to FBI Employee 2: “I mean, I never really liked the 

Republic anyway.”

14:01:52, to FBI Employee 3: “As I have initiated the destruction of 

the republic.... Would you be so kind as to have a coffee with me this 

afternoon?”

15:28:50, to FBI Employee 4: “I’m clinging to small pockets of 

happiness in the dark time of the Republic’s destruction”

FBI Attorney 2 described these messages as reflecting his surprise and frustration 

that the FBI “was essentially walking into a landmine in terms of injecting itself 

[into the election] at that late in the process.” FBI Attorney 2 continued:

I think that, that there is some distinguishment between my 

frustration at the way that the Bureau is operating itself in October in 
417

terms of, of wading into the process at that point.... But, I think that 

there is a distinguishment between having reservations about the way 

that we were operating and just expressing the frustration about, 

about us coming into the process. It’s like, in terms of, of, you know, 

what’s not in here too is like, you know, we, at that point we had 

investigation, the Russia investigation was ongoing as well. And that 

information was obviously kept close hold and was not released until 

March. So, you know, it, it was just kind of frustration that we weren’t 

handling both of them the same way with, with that level I guess.

FBI Attorney 2 described the “destruction” language as “hyperbolic” and “off-thecuff commentary to friends.”

The second exchange we identified occurred on November 9, 2016, the day 

after the presidential election. FBI Attorney 2 and another FBI employee who was 

not involved in the Midyear investigation exchanged the following instant messages. 

Note that the sender of the instant message is identified after the timestamp and 

intervening messages that did not contribute to the understanding of this exchange 

are not included.

09:38:14, FBI Attorney 2: “I am numb.”

09:55:35, FBI Employee: “I can’t stop crying.”

10:00:13, FBI Attorney 2: “That makes me even more sad.”

10:43:20, FBI Employee: “Like, what happened?”

10:43:37, FBI Employee: “You promised me this wouldn’t happen. 

YOU PROMISED.”

10:43:43, FBI Employee: Okay, that might have been a lie...”

10:43:46, FBI Employee: “I’m very upset.”

10:43:47, FBI Employee: “haha”

10:51:48, FBI Attorney 2: “I am so stressed about what I could have 

done differently.”

10:54:29, FBI Employee: “Don’t stress. None of that mattered.”

10:54:31, FBI Employee: “The FBI’s influence.”

10:59:36, FBI Attorney 2: “I don’t know. We broke the momentum.”

11:00:03, FBI Employee: “That is not so.”

11:02:22, FBI Employee: “All the people who were initially voting for 

her would not, and were not, swayed by any decision the FBI put out. 

Trump’s supporters are all poor to middle class, uneducated, lazy POS 

that think he will magically grant them jobs for doing nothing. They 

probably didn’t watch the debates, aren’t fully educated on his policies, 

and are stupidly wrapped up in his unmerited enthusiasm.”
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11:11:43, FBI Attorney 2: “I’m just devastated. I can’t wait until I 

can leave today and just shut off the world for the next four days.”

11:12:06, FBI Employee: “Why are you devastated?”

11:12:18, FBI Employee: “Yes, I’m not watching tv for four years.”

11:14:16, FBI Attorney 2: “I just can’t imagine the systematic 

disassembly of the progress we made over the last 8 years. ACA is 

gone. Who knows if the rhetoric about deporting people, walls, and 

crap is true. I honestly feel like there is going to be a lot more gun 

issues, too, the crazies won finally. This is the tea party on steroids. 

And the GOP is going to be lost, they have to deal with an incumbent 

in 4 years. We have to fight this again. Also Pence is stupid.”

11:14:58, FBI Employee: “Yes that’s all true.”

11:15:01, FBI Attorney 2: “And it’s just hard not to feel like the FBI 

caused some of this. It was razor thin in some states.”

11:15:09, FBI Employee: “Yes it was very thin.”

11:15:23, FBI Attorney 2: “Plus, my god damned name is all over the 

legal documents investigating his staff.”

11:15:24, FBI Employee: “But no I absolutely do not believe the FBI 

had any part.”

11:15:33, FBI Attorney 2: “So, who knows if that breaks to him what 

he is going to do.”

We asked FBI Attorney 2 about this exchange. FBI Attorney 2 stated, “I’d 

say that we’re just discussing our personal feelings on [the outcome of the election] 

between friends, yeah.” When asked about the FBI employee meant by “[y]ou 

promised me this wouldn’t happen,” FBI Attorney 2 told us that he “did not 

promise [the employee] anything,” and stated, “I think, again, it’s just kind of the 

way that [the employee] and I converse. We tend to exaggerate some statements 

back and forth to one another.” We also asked FBI Attorney 2 what he meant by “I 

am so stressed about what I could have done differently.” FBI Attorney 2 replied:

That was a, that was a reference to, again, just in terms of the way 

that we opened or how long it took us to open [in October]. You 

know, with the, with the knowledge that the information was there [on 

the Weiner laptop], why we didn’t work on it to, to gain access sooner, 

as opposed to later because it was a, a bit of a, of a gap between us 

learning of the information in New York and, and officially getting the 

case reopened again....

Just in terms of like what I could have done to, to either have 

accelerated the process or to, like how I expressed to [FBI Attorney 1] 

that I didn’t know if this was the correct way for the Bureau to be 

doing this notification, et cetera. Whether, you know, I could have 

said something differently to her that would have resonated in, or, or 
419

would have been part of the discussion. But I wasn’t anywhere near 

the, the room deciding on these factors....

It was just kind of like a discussion on how I could have either moved 

the process along more quickly or more efficiently at a, at a more, at 

an earlier time, or whatnot.

When asked if he thought earlier action on the Weiner laptop would have alleviated 

the need to send the letter to Congress, FBI Attorney 2 stated:

Well, not, not, I don’t think that that would have alleviated the need 

for the letter in the Director’s eyes. But if we would have opened a 

few weeks earlier, as opposed to at that time, two weeks before the 

election, I think it, you know, it would have given more time for the 

FBI’s actions and, and required and, and necessary investigation to, to 

occur to allow the, the public a chance to make their own decisionmaking.

FBI Attorney 2 again reiterated that his “personal political feelings or beliefs...in no 

way impacted” his work on the Midyear or Russia investigations.

The third exchange we identified was on November 22, 2016. FBI Attorney 2

sent an instant message to FBI Attorney 1 commenting on the amount of money 

the subject of an FBI investigation had been paid while working on the Trump 

campaign. FBI Attorney 1 responded, “Is it making you rethink your commitment 

to the Trump administration?” FBI Attorney 2 replied, “Hell no.” and then added, 

“Viva le resistance.” FBI Attorney 1 responded that Trump was “going to eliminate 

all of our pensions in order to pay for people like” the person discussed in the 

instant message exchange, and FBI Attorney 1 and FBI Attorney 2 then began a 

discussion of federal pension and retirement issues.

We asked both FBI Attorney 2 and FBI Attorney 1 about this exchange. FBI 

Attorney 2 stated:

So, this is in reference to an ongoing subject. And then following that, 

like I interpreted [FBI Attorney 1’s] comment to me as being, you 

know, just her and I socially and as friends discussing our particular 

political views, to which I see that as more of a joking inquiry from 

her. It’s not something along the lines of where I’m not committed to 

the U.S. Government. I obviously am and, you know, work to do my 

job very well and to continue to, to work in that capacity. It’s just the, 

the lines bled through here just in terms of, of my personal, political 

view in terms of, of what particular preference I have. But, but that 

doesn’t have any, any leaning on the way that I, I maintain myself as 

a professional in the FBI.

We asked FBI Attorney 2 if “Viva le resistance” signaled he was going to fight back 

against President Trump. FBI Attorney 2 responded:
420

That’s not what I was doing.... I just, again, like that, that’s just like 

the entire, it’s just my political view in terms of, of my preference. It 

wasn’t something along the lines of, you know, we’re taking certain 

actions in order to, you know, combat that or, or do anything like that. 

Like that, that was not the intent of that. That was more or less just 

like, you know, commentary between me and [FBI Attorney 1] in a 

personal friendship capacity where she is just making a joke, and I’m 

responding. Like, it’s not something that, that I personally believe in 

that instance.

FBI Attorney 2 acknowledged that both he and FBI Attorney 1 were assigned to the 

Russia investigation at this point in time and he “can understand the, the 

perception issues that come from” this exchange.

FBI Attorney 1 stated that she and FBI Attorney 2 were friends and often had 

discussions unrelated to work. She acknowledged that that this was “not the right 

place to make those kind of comments.” We asked FBI Attorney 1 what she meant 

by the message, “Is it making you rethink your commitment to the Trump 

administration?” She stated, “I think what I meant was are you going to leave the 

government and start working to get more money.” We also asked FBI Attorney 1 

what she understood FBI Attorney 2 to mean when he messaged, “Viva le 

resistance.” FBI Attorney 1 told us, “I think it was a joke obviously. But I think it 

was intended to say that, you know, he was committed to continuing to work for 

the Bureau, for these cases.” FBI Attorney 1 stated that nothing about this 

exchange affected her work on the Russia investigation.

D. Analysis

The conduct of the five FBI employees described in sections A, B, and C of 

this Chapter has brought discredit to themselves, sowed doubt about the FBI’s 

handling of the Midyear investigation, and impacted the reputation of the FBI. As 

described in Chapter Five, our review did not find documentary or testimonial 

evidence directly connecting the political views these employees expressed in their 

text messages and instant messages to the specific investigative decisions we 

reviewed in Chapter Five. Nonetheless, the conduct by these employees cast a 

cloud over the FBI Midyear investigation and sowed doubt the FBI’s work on, and 

its handling of, the Midyear investigation. Moreover, the damage caused by their 

actions extends far beyond the scope of the Midyear investigation and goes to the 

heart of the FBI’s reputation for neutral factfinding and political independence. 

We were deeply troubled by text messages sent by Strzok and Page that

potentially indicated or created the appearance that investigative decisions were 

impacted by bias or improper considerations. Most of the text messages raising 

such questions pertained to the Russia investigation, which was not a part of this 

review. Nonetheless, when one senior FBI official, Strzok, who was helping to lead

the Russia investigation at the time, conveys in a text message to another senior 

FBI official, Page, that “we’ll stop” candidate Trump from being elected—after other

extensive text messages between the two disparaging candidate Trump—it is not

only indicative of a biased state of mind but, even more seriously, implies a 
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willingness to take official action to impact the presidential candidate’s electoral 

prospects. This is antithetical to the core values of the FBI and the Department of 

Justice. Moreover, as we describe in Chapter Nine, in assessing Strzok’s decision to 

prioritize the Russia investigation over following up on the Midyear-related 

investigative lead discovered on the Weiner laptop in October 2016, these text 

messages led us to conclude that we did not have confidence that Strzok’s decision 

was free from bias.

Each of the five employees expressed remorse about using FBI devices and 

systems for these discussions, and each also stated that they intended these 

messages to be private conversations. Several of the employees also expressed 

the belief that their messages would not be preserved or would be exempt from 

public disclosure under FOIA. We found this reliance on the “private” nature of 

these messages to be misplaced. Because these messages were exchanged on 

government systems and devices, they were never “private.” Every Department 

employee sees a notice each time he or she logs onto the Department’s network

informing him or her that there is no reasonable expectation of privacy in 

communications exchanged on government systems.209 We recommend that the 

FBI add a similar warning banner to all of the FBI’s mobile phones and devices.

Indeed, rather than being “private” communications, these messages were at 

all times potentially subject to being reviewed by others (including the OIG) and to 

being disclosed to the public. This point seems even more obvious in light of the 

significant congressional and public interest generated by the Midyear and Russia 

investigations. The employees exchanging text messages and instant messages 

are trained law enforcement agents or attorneys, and should have known that 

these messages were potentially subject to release in response to FOIA requests, 

subject to disclosure in civil litigation, or discoverable as impeachment evidence 

even in the absence of the OIG investigation.210 We note that these messages also 

 

209

 After reviewing a draft of the report, Page told the OIG that the Samsung phones used by 

the FBI do not include any such warning banner. The OIG confirmed with the FBI that this is accurate. 

However, the notice on the FBI’s computer system applies to “all devices [or] storage media attached 

to this network or to a computer on this network,” and alerts users that they “have no reasonable 

expectation of privacy regarding any communication transmitted through or data stored on this 

information system. At any time the government may monitor, intercept, search and/or seize data 

transmitted through or data stored on this information system.” In addition, a recent Department 

training stated, “DOJ systems are not your personal systems. That means you have no reasonable 

expectation of privacy about maintaining any personal information, data, or applications on 

Department systems, networks, or devices.” Department of Justice, Office of the Chief Information 

Officer, 2018 Annual DOJ Cybersecurity Awareness Training, at 14.

210

 For example, FBI Records Management Training warns FBI employees to be careful about 

what they say in emails and text messages:

Remember, that emails and texts messages should be treated the same way as paper 

correspondence. So be aware of what you write. It may be released through FOIA, 

and be made widely available one day.

Of course, many of our records also end up in court. In civil cases, the FBI must turn 

over all relevant evidence, including emails and text messages. While all documents 

are viewed for privilege and redacted prior to release, there is no claim of privilege 

covering inappropriate or embarrassing statements. Such as, the governor is a block 
422

potentially implicate the FBI’s or prosecutors’ disclosure obligations in any 

prosecutions resulting from the investigations at issue.211

We do not question that the FBI employees who sent these messages are 

entitled to their own political views. Indeed, federal statutes and regulations 

explicitly protect the right of federal employees to “express...opinion[s] on political 

subjects and candidates” and to “exercise fully, freely, and without fear of penalty 

or reprisal, and to the extent not expressly prohibited by law, their right to 

participate or to refrain from participating in the political processes of the Nation”—

provided such expression “does not compromise his or her efficiency or integrity as 

an employee or the neutrality, efficiency, or integrity of the agency or 

instrumentality of the United States Government in which he or she is 

employed.”212 While these employees did not give up their First Amendment rights 

when they became employed by the FBI, Supreme Court decisions make clear that 

the FBI retains the authority—particularly as a law enforcement agency—to impose 

 

head. Although what we turn over in criminal cases can be more targeted, such as 

witness statements and exculpatory and impeachment evidence. Just as in civil cases, 

emails and text messages that fit into one of these categories must be turned over 

regardless whether they are embarrassing or worded inappropriately....

Even though it’s a casual medium, we can’t take a casual attitude towards email. All 

email, even a text or a PIN message, can be instantly copied, archived, filed, and 

disseminated. Just like a memo or a 302, emails reflect on the professionalism of the 

employee, and potentially the FBI as a whole. Inappropriate, offensive language, illadvised humor, off-color references, and poorly thought out remarks have no place in 

any FBI communication. And it doesn’t matter if that communication was intended as 

a record or a non-record.

211

 See USAM § 9-5.001, Policy Regarding Disclosure of Exculpatory and Impeachment 

Information; see also United States v. Johnson, 14-CR-00412-TEH, 2015 WL 2125132, at 3-4 (N.D. 

Cal. May 6, 2015) (ordering the disclosure of racist text message(s) sent or received by a police officer 

involved in maintaining a crime scene); Linetsky v. City of Solon, Case No. 1:16-CV-52, 2016 WL 

5402615 (N.D. Ohio Sept. 28, 2016) (ordering an assistant prosecutor to produce in discovery all text 

messages between the prosecutor and law enforcement personnel pertaining to the plaintiff’s prior 

criminal case); United States v. Marcus Mumford, Case No. 3:17-CR-0008-JCC, 2017 WL 652448, at 

2-3 (D. Ore. Feb. 16, 2017) (finding, during prosecution of Ammon Bundy’s attorney in connection 

with a scuffle with U.S. Deputy Marshals, that “the Marshals’ government issued cell phones are 

subject to discovery and should any texts reveal hostility towards Defendant or in any way casts doubt 

on their credibility, they must be produced.”).

212

 5 U.S.C. §§ 7321, 7323(c); 5 C.F.R. § 734.402. FBI policy similarly provides that FBI 

employees retain the right to participate in various specified political activities, as long as such activity 

is not performed in concert with a political party, partisan political group, or a candidate for partisan 

political office. The list of political activities includes the right of an FBI employee to “[e]xpress his or 

her opinion as an individual privately and publicly on political subjects and candidates,” and to 

“otherwise participate fully in public affairs, except as prohibited by other Federal law, in a manner 

which does not compromise his or her efficiency or integrity as an employee or the neutrality, 

efficiency, or integrity of the agency or instrumentality of the United States Government in which he 

or she is employed.” FBI Office of Integrity and Compliance, FBI Ethics and Integrity Program Policy 

Directive and Policy Guide, § 7.4.2 (Feb. 2, 2015). 
423

certain restrictions on its employees’ speech in the interest of providing effective 

and efficient government.213

We believe the messages discussed in this chapter—particularly the 

messages that intermix work-related discussions with political commentary—

potentially implicate provisions in the FBI’s Offense Code and Penalty Guidelines, 

which provides general categories of misconduct for which FBI employees may be 

disciplined. This includes the provisions relating to Offense Codes 1.7 

(Investigative Deficiency – Misconduct Related to Judicial Proceedings), 3.6 (Misuse 

of Government Computer(s)), 3.11 (Misuse of Government Property, Other), 5.21 

(Unprofessional Conduct – Off Duty), and 5.22 (Unprofessional Conduct – On 

Duty).214 However, we did not identify any prior FBI misconduct investigations 

under these provisions that involved a similar fact pattern or similar issues.215 

At a minimum, we found that the employees’ use of FBI systems and devices 

to send the identified messages demonstrated extremely poor judgment and a

gross lack of professionalism. This is not just because of the nature of the 

messages, but also because many of the messages commented on individuals 

(Clinton and Trump) who were inextricably connected to the Midyear and Russia 

investigations. The FBI is charged with the investigation of many important and 

sensitive matters, including some that generate intense public interest and debate. 

It is essential that the public have confidence that the work of the FBI is done 

without bias or appearance of partiality, and that those engaged in it follow the 

 

213

 The Supreme Court has held that public employees do not forfeit their right to freedom of 

speech by virtue of their public employment. See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). 

However, when a citizen enters government service, he accepts certain limitations on his First 

Amendment rights. See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). In Pickering, the Supreme 

Court recognized that a public employer has an interest in regulating the speech of its employees. 

The Court strove to “arrive at a balance between the interests of the [public employee], as a citizen, in 

commenting upon matters of public concern and the interest of the State, as an employer in 

promoting the efficiency of the public services it performs through its employees.” To strike this 

balance, the Supreme Court has set forth a two-step inquiry to determine whether a public employee’s 

speech is entitled to protection. See Lane v. Franks, 134 S.Ct. 2369, 2378 (2014). First, the court 

must determine the threshold question of whether the employee spoke as a private citizen on a 

matter of public concern. See Garcetti, 547 U.S. at 418. If not, the employee has no First Amendment 

claim. If so, the second step is to establish “whether the relevant government entity had an adequate 

justification for treating the employee differently from any other member of the general public.” Id.

214

 These messages may also implicate other Department-wide Rules, such as Department of 

Justice Information Technology Security Rules of Behavior for General Users Version 10 (January 1, 

2017).

215

 In 2012, “racy texts” exchanged between two FBI agents and an FBI informant were used 

to impeach the agents in the prosecutions of several defendants for violations of the Foreign Corrupt 

Practices Act. According to a Washington Post article about the case, which ended without 

convictions, the foreman of the jury stated that the “texts were one of many things that point[ed] to 

an absolutely amateurish operation” by the government. See Del Quentin Wilbur, Racy Texts Hurt 

Justice’s Largest Sting Operation Targeting Foreign Bribery, WASH. POST, Feb. 13, 2013. This case and 

the Washington Post article about the impact of the text messages are used in the Department’s 

training on electronic discovery as an example of what not to say in text messages. However, the OIG 

learned that the agents involved in that case were not investigated or disciplined for misconduct, and 

that their text messages were handled as a performance issue. Both agents remain employed by the 

FBI.
424

facts and law wherever they may lead and without any agenda or desired result 

other than to see that justice is done.

Although we found no documentary or testimonial evidence directly

connecting the political views these employees expressed in their text messages 

and instant messages to the specific Midyear investigative decisions we reviewed in 

Chapter Five, the messages cast a cloud over the FBI investigations to which these 

employees were assigned. Ultimately, the consequences of these actions impact 

not only the senders of these messages but also others who worked on these 

investigations and, indeed, the entire FBI.

We therefore refer this information to the FBI for its handling and 

consideration of whether the messages sent by the five employees listed above

violates the FBI’s Offense Code of Conduct.

Additionally, we recommend that the FBI (1) assess whether it has provided 

adequate training to employees about the proper use of text messages and instant 

messages, including any related discovery obligations, and (2) consider whether to 

provide additional guidance about the allowable uses of FBI devices for any nongovernmental purpose, including guidance about the use of FBI devices for political 

conversations. 

II. Use of Personal Email

As mentioned above, we identified several instances in which Comey and 

Strzok used personal email accounts for official government business. When 

questioned, Page also told us she used personal email for work-related matters at 

times. We briefly discuss these issues below.

On September 21, 2016, the Department issued a Policy Statement detailing 

the records retention policy for email communications. The Policy Statement 

contained the following guidance for the use of personal email accounts:

In general, DOJ email users should not create or send record emails or 

attachments using non-official email accounts. However, should 

exigent circumstances require the use of a personal account to conduct 

DOJ business, the DOJ email user must ensure that the communicated 

information is fully captured in a DOJ recordkeeping system within 20 

days. If sending the email from a non-official account, the email user 

must copy his or her DOJ email address as a recipient. If receiving a 

DOJ business-related email on a non-official account, the DOJ email 

user must forward the business-related email to his or her DOJ email 

account. Once the user has ensured the capture of the email 

information in the DOJ account, the DOJ email should be removed 

from the non-official account.

See DOJ Policy Statement, Electronic Mail and Electronic Messaging Records 

Retention (approved on September 21, 2016).
425

A. Comey

We identified numerous instances in which Comey used a personal email 

account (a Gmail account) to conduct FBI business. We cite five examples of such 

use in this section and include information provided by Comey and Rybicki about 

Comey’s use of a personal email account.

On November 8, 2016, Comey forwarded to his personal email account from 

his unclassified FBI account a proposed post-election message for all FBI employees 

that was entitled “Midyear thoughts.” This document summarized Comey’s 

reasoning for notifying Congress about the reactivation of the Midyear investigation. 

In late December 2016, Comey forwarded to his personal email account from his 

unclassified FBI account multiple drafts of a proposed year-end message to FBI 

employees. On December 30, 2016, Comey forwarded to his personal email 

account from his unclassified FBI account proposed responses to two requests for 

information from the Office of Special Counsel.216 The forwarded email included 

two attachments: (1) a certification for Comey to sign; and (2) a list of FBI 

employees with information responsive to this request, including their titles, office, 

appointment status, contact information, and duty hours. On January 6, 2017, 

Comey forwarded to his personal email account from his unclassified FBI account an 

email from Rybicki to Kortan highlighting language that needed to be corrected in a 

Wall Street Journal article. In mid-March 2017, Comey sent from his personal 

email account to his own and Rybicki’s unclassified FBI accounts multiple drafts of 

Comey’s proposed opening statement for his March 20, 2017 testimony to the 

House Intelligence Committee.

We asked Comey about his use of personal email for FBI business and 

showed him the November 8, 2016 email with Rybicki as an example. Comey 

stated:

I did not have an unclass[ified] FBI connection at home that worked. 

And I didn’t bother to fix it, whole ‘nother story, but I would either use 

my BlackBerry, must have been or Samsung...my phone, I had two 

phones—a personal phone and a government phone. Or if I needed to 

write something longer, I would type it on my personal laptop and 

then send it to Rybicki, usually I copied my own address.... Yeah. 

And so I would use, for unclassified work, I would use my personal 

laptop for word processing and then send it into the FBI.

We asked Comey if he had any concerns about conducting FBI business on his 

personal laptop or personal email. Comey stated that he did not and explained:

Because it was incidental and I was always making sure that the work 

got forwarded to the government account to either my own account or 

Rybicki, so I wasn’t worried from a record-keeping perspective and it 

 

216

 This refers to the federal agency responsible for investigating violations of the Hatch Act, 

not to Special Counsel Robert Mueller III.
426

was, because there will always be a copy of it in the FBI system and I 

wasn’t doing classified work there, so I wasn’t concerned about that.

Comey stated that he did not use his personal email or laptop for classified or 

sensitive information, such as grand jury information. Comey told us that he only 

used his personal email and laptop “when I needed to word process an unclassified 

[document] that was going to be disseminated broadly, [such as a] public speech 

or public email to the whole organization.” We asked Comey if the use of personal 

email in this manner was in accordance with FBI regulations. Comey replied, “I 

don’t know. I think so, but I don’t know. I remember talking to Jim [Rybicki] 

about it at one time, and I had the sense that it was okay.”

We also asked Rybicki about Comey’s use of a personal email account. In 

response to the OIG’s questions and in consultation with Comey, Rybicki sent the 

OIG an email on April 20, 2017, that stated:

In rare circumstances during his tenure, Director Comey sends 

unclassified emails from his official FBI.gov email account address to 

[his Gmail account]. This permits him to open attachments and use 

his personal laptop to then work on a speech or other content intended 

for wide dissemination. He then sends drafts or the completed text to 

his official FBI.gov email account or to another FBI.gov email account 

from [his Gmail account]. He opened this personal account at about 

the time he became Director....

To ensure a high level of cybersecurity, Director Comey routinely 

deletes all emails from his [Gmail] account each day, and then clears 

the deleted messages folder. He began this practice about two years 

ago.

The Director does not recall receiving and/or seeking advice 

concerning the use of these accounts.

We found that, given the absence of exigent circumstances and the 

frequency with which the use of personal email occurred, Comey’s use of a personal 

email account on multiple occasions for unclassified FBI business to be inconsistent 

with the DOJ Policy Statement.

B. Strzok and Page

During our review, we identified several instances where Strzok used his 

personal email account for government business. Examples included an email chain 

forwarded to Strzok’s personal email account on December 10, 2016, discussing a 

draft congressional response, and draft versions of emails on his personal email 

account that Strzok eventually sent to other FBI employees using his government 

account. Most troubling, on October 29, 2016, Strzok forwarded from his FBI 

account to his personal email account an email about the proposed search warrant 

the Midyear team was seeking on the Weiner laptop. This email included a draft of 

the search warrant affidavit, which contained information from the Weiner

investigation that appears to have been under seal at the time in the Southern 
427

District of New York and information obtained pursuant to a grand jury subpoena 

issued in the Eastern District of Virginia in the Midyear investigation.217 

We asked Strzok about these emails and his use of personal email account 

for FBI business. Strzok stated:

My general practice was not to use personal email for FBI business. 

The times that I did it was when it wasn’t possible or there, there were 

problems with the FBI systems. In the case of I think the one issue 

that came out was...the one about the draft affidavit for the Weiner 

laptop.

Our phones at the time had significant limitations specifically to that. 

You couldn’t view redlines. And so, and, but yet you could on an 

iPhone. So I remember in the case of that search warrant forwarding 

it over so I could see what DOJ changed and their comment bubbles in 

regard to that. There were some other times where I was either out of 

the office. I think a lot of those were either I was on travel or 

certainly over the weekends. It is very cumbersome on the old 

iPhones, or on the old Samsungs of the Bureau because of the way 

they autocorrect spelling and the nature of the...keyboard, it is difficult 

to write anything of length whatsoever. So there were times that, I 

mean, I think there’s one where I was very aggravated with a set of 

circumstances that had unfolded. I was going to tell my boss about it, 

and I remember talking with Lisa [Page] saying, hey look, did I hit the 

right tone in this because I wanted to, you know, just be respectful, 

but at the same time convey my frustration. 

I wrote that on my home computer, because it’s easier to type it out. 

I think there was one that might be a holiday greeting that I sent to 

Bill [Priestap]. But, again, the sort of thing that, you know, for, for 

convenience, but because on the one hand it was bulky to, our 

technology was crappy, and it was impossible on the rare occasion I 

would write these things. And then send them to, you know, my 

account and forward it on. So it got incorporated and picked up into 

the FBI system.

Strzok told us that his understanding was that FBI policy discouraged the use of 

personal email and devices, but “there are allowances made” where “it is not 

practical or possible to use your [FBI] device.” Strzok stated that he would double 

delete any work-related emails in his personal account.218

 

217

 The OIG previously notified the respective U.S. Attorney’s Offices about Strzok’s actions.

218

 We requested access to Strzok’s personal email account. Strzok agreed to produce copies 

of work-related emails in his personal account but declined to produce copies of his personal emails. 

Strzok subsequently told the OIG that he had reviewed the emails residing in his personal mailboxes 

and found no work-related communications. We determined that we lacked legal authority to obtain 

the contents of Strzok’s personal email account from his email provider, which requires an Electronic 

Communications Privacy Act (ECPA) search warrant to produce email contents. Strzok’s email 
428

We also identified numerous references in text messages between Page and 

Strzok about using “Imessage” (or “Imsg”) or a personal email account. A number 

of these messages reference work-related discussions on those forums. We asked 

Strzok and Page about this. Strzok stated, “Typically, we would iMessage personal 

things.” We asked Strzok if he and Page ever exchanged work-related information 

on iMessage. Strzok told us, “I do not recall that. I can’t exclude it ever, ever 

happening, but I don’t recall ever sending work-related stuff on, on iMessage.”

Page told us that references to these other forums reflected “mostly personal 

use” as opposed to using them for work purposes. However, she stated that she 

and Strzok sometimes used these forums for work-related discussions due to the 

technical limitations of FBI-issued phones. Page explained:

[I]n particular, the autocorrect function is the bane of literally every 

agent of the FBI’s existence because those of us who care about 

spelling and punctuation, which I realize is a nerdy thing to do, makes 

us crazy because it takes legitimate words that are spelled correctly 

and autocorrects them into gobbledygook. And so, it is not uncommon 

for either one of us to just either switch to our personal phones or, or 

in this case, where it was going to be a, a fairly substantive thing that 

he was writing, to just save ourselves the trouble of not doing it on our 

Samsungs. Because they are horrible and super-frustrating. 

Page also noted that she and Strzok would often use personal email accounts to 

send news articles to one another.

We refer to the FBI the issue of whether Strzok’s use of personal email 

accounts violated FBI and Department policies. As noted above, Page left the 

Department on May 4, 2018.

III. Allegations that Department and FBI Employees Improperly 

Disclosed Non-Public Information

Among the issues we reviewed were allegations that Department and FBI 

employees improperly disclosed non-public information. We found that Department 

and FBI officials raised considerable concerns about alleged leaks of information, 

particularly in October 2016, regarding the Midyear investigation and the Clinton 

Foundation investigation.

 

provider’s policy applies to opened emails and emails stored for more than 180 days, which ECPA 

otherwise permits the government to obtain using a subpoena and prior notice to the subscriber. See

18 U.S.C. § 2703(a), (b)(1)(B)(i); COMPUTER CRIME AND INTELLECTUAL PROPERTY SECTION, U.S. DEPARTMENT OF 

JUSTICE, SEARCHING AND SEIZING COMPUTERS AND OBTAINING ELECTRONIC EVIDENCE IN CRIMINAL INVESTIGATIONS at 

129-30 (2009). In addition, although we learned that a non-FBI family member had access to 

Strzok’s personal email account in 2017, Strzok told the OIG that no one else had access to his 

personal email account during the period in question (i.e., late October 2016).
429

As we describe in Chapter Eleven of this report, Lynch and Comey discussed 

their concerns about leaks on October 31, 2016. Additionally, on October 26, 2016, 

Lynch raised her concerns about leaks with McCabe and the head of the FBI New 

York Field Office (NYO), with specific focus on leaks regarding the FBI’s high-profile 

investigation into the death of Eric Garner, as we detailed in our February 2018 

misconduct report concerning McCabe.219 McCabe told us that he “never heard 

[Lynch] use more forceful language.” The head of FBI NYO confirmed that the 

participants got “ripped by the AG on leaks.” These widespread concerns about 

leaks led Comey, following the 2016 election, to instruct the FBI’s Inspection 

Division (INSD) to investigate whether confidential information was being 

improperly disclosed by any FBI employees.220

Concerns about the impact of possible leaks on the Midyear investigation, 

particularly in the October 2016 time period, are described in Chapters Ten and 

Eleven. Several FBI officials told us that their concerns about potential leaks were 

a factor that influenced them in the discussions about the possibility of sending a 

notification letter to Congress on October 28, 2016, regarding the FBI’s discovery of 

Clinton-related emails on the Weiner laptop. As then FBI General Counsel Baker 

starkly characterized that decision to us, “[I]f we don't put out a letter, somebody 

is going to leak it.”

Against this backdrop, and as noted at the time the OIG announced this 

review, we examined allegations that Department and FBI employees improperly 

disclosed non-public information. We focused, in particular, on the April/May and 

October 2016 time periods. We have profound concerns about the volume and 

extent of unauthorized media contacts by FBI personnel that we have uncovered 

during our review.

Our ability to identify individuals who have improperly disclosed non-public 

information is often hampered by two significant factors. First, we frequently find 

that the universe of Department and FBI employees who had access to sensitive 

information that has been leaked is substantial, often involving dozens, and in some 

instances, more than 100 people. We recognize that this is a challenging issue, 

because keeping information too closely held can harm an investigation and the 

supervision of it. Nevertheless, we think the Department and the FBI need to 

consider whether there is a better way to appropriately control the dissemination of 

sensitive information.

 

219

 U.S. Department of Justice (DOJ) Office of the Inspector General (OIG), Report of 

Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe, 

Oversight & Review Report (February 2018), https://oig.justice.gov/reports/2018/o20180413.pdf 

(accessed May 14, 2018).

220

 One of those investigations led to INSD raising questions about McCabe’s conduct and 

resulted in the OIG taking over the matter from INSD. Ultimately, the OIG found that McCabe himself 

had authorized others in the FBI to disclose information regarding the FBI’s Clinton Foundation 

investigation just days prior to the election.
430

Second, although FBI policy strictly limits the employees who are authorized 

to speak to the media, we found that this policy appeared to be widely ignored 

during the period we reviewed.221 We identified numerous FBI employees, at all 

levels of the organization and with no official reason to be in contact with the 

media, who were nevertheless in frequent contact with reporters. The large 

number of FBI employees who were in contact with journalists during this time 

period impacted our ability to identify the sources of leaks. For example, during the 

periods we reviewed, we identified dozens of FBI employees that had contact with 

members of the media. Attached to this report as Attachments G and H are link 

charts that reflects the volume of communications that we identified between FBI 

employees and media representatives in April/May and October 2016.222

In addition to the significant number of communications between FBI 

employees and journalists, we identified social interactions between FBI employees 

and journalists that were, at a minimum, inconsistent with FBI policy and 

Department ethics rules. For example, we identified instances where FBI 

employees received tickets to sporting events from journalists, went on golfing 

outings with media representatives, were treated to drinks and meals after work by 

reporters, and were the guests of journalists at nonpublic social events. We will 

separately report on those investigations as they are concluded, consistent with the 

Inspector General (IG) Act, other applicable federal statutes, and OIG policy.

The harm caused by leaks, fear of potential leaks, and a culture of 

unauthorized media contacts is illustrated in Chapters Ten and Eleven, where we 

detail the fact that these issues influenced FBI officials who were advising then 

Director Comey on consequential investigative decisions in October 2016. The FBI 

updated its media policy in November 2017, restating its strict guidelines 

concerning media contacts, and identifying who is required to obtain authority 

before engaging members of the media, and when and where to report media 

contact. We do not believe the problem is with the FBI’s policy, which we found to 

be clear and unambiguous. Rather, we concluded that these leaks highlight the 

need to change what appears to be a cultural attitude. Accordingly, we recommend 

that the FBI evaluate whether (a) it is sufficiently educating its employees about 

both its media contact policy and the Department’s ethics rules, and (b) its 

disciplinary penalties are sufficient to deter such improper conduct.

 

221

 The Media Policy in effect both at the time of these events and currently authorizes only 

four employees at FBI Headquarters to speak directly to the media without prior authorization. This 

list includes the Director, Deputy Director, Associate Deputy Director, and the Assistant Director of the 

Office of Public Affairs (OPA). All other headquarters employees are required to coordinate with OPA 

prior to any contact with the media. In FBI Field Offices (FO), only the head of the FO and a 

designated Public Affairs Officer are authorized to speak to the media. The policies require these 

authorized FO officials to coordinate with OPA on stories with national interest.

222

 These charts do not reflect communications that occurred between media representatives 

and FBI employees who were working in a public affairs capacity or were otherwise authorized to 

speak directly to the media.
431

CHAPTER THIRTEEN: 

WHETHER FORMER DEPUTY DIRECTOR ANDREW MCCABE 

SHOULD HAVE RECUSED FROM CERTAIN MATTERS

I. Introduction

In this chapter we address whether former FBI Deputy Director Andrew 

McCabe should have recuse himself from the Clinton email server and Clinton 

Foundation investigations prior to November 1, 2016.223 We also address whether 

McCabe violated his recusal obligations after he recused himself from those 

investigations on November 1, 2016.224

II. Timeline of Key Events

Aug 10, 2014 Andrew McCabe becomes Assistant Director in Charge of the FBI 

Washington Field Office (WFO). 

Feb 25, 2015 McCabe’s wife, Dr. Jill McCabe, receives a call from the Virginia 

Lieutenant Governor’s office asking her to consider a state 

senate run.

Mar 7, 2015 McCabe accompanies Dr. McCabe to Richmond and the two 

meet with Governor McAuliffe to discuss her potential run for 

state senate.

Mar 9-13, 2015 McCabe contacts Director Comey’s Chief of Staff and Deputy 

Director Giuliano to discuss Dr. McCabe’s potential run.

Mar 11, 2015 McCabe obtains advice from FBI ethics official Patrick Kelley and 

FBI General Counsel Baker.

Mar 12, 2015 Dr. McCabe announces candidacy for state senate.

April 29, 2015 McCabe documents his recusal from all Virginia public corruption 

cases.

 

223

 This chapter has been written to avoid reference to Law Enforcement Sensitive (LES) 

information. Attached to this report at Appendix Two is a non-public LES appendix containing the 

complete, unmodified version of Chapter Thirteen.

224

 The OIG’s review focused on McCabe’s conflict of interest obligations. Other allegations 

against McCabe arising from his wife’s 2015 campaign for state senate were not within the OIG’s 

jurisdiction and therefore not within the scope of this review. Specifically, in a December 1, 2017, 

letter to Deputy Attorney General Rosenstein, Senator Charles Grassley expressed concern that 

McCabe may have violated the Hatch Act. See The Honorable Charles Grassley, letter to Rod 

Rosenstein, Deputy Attorney General, U.S. Department of Justice, December 1, 2017. The Hatch Act 

generally governs the political activity of federal employees to protect the federal workforce from 

partisan political influence. The law’s restrictions on political activity are codified at 5 U.S.C. §§ 7321-

7326. The U.S. Office of Special Counsel (OSC) has jurisdiction over potential Hatch Act violations.
432

July 10, 2015 FBI opens the Clinton email investigation.

Fall 2015 Dr. McCabe’s campaign committee (McCabe for Senate) receives 

a combined total of ~ $675,000 from a Political Action 

Committee controlled by McAuliffe ($467,500 in monetary 

contributions) and from Virginia Democratic Party ($207,788 in 

in-kind contributions). McCabe states he was not aware of 

these contributions until October 2016.

Sep 6, 2015 McCabe leaves WFO and becomes Associate Deputy Director for 

the FBI.

Nov 3, 2015 Dr. McCabe defeated in state senate election.

January 2016 FBI opens Clinton Foundation investigations.

Feb 1, 2016 McCabe becomes Deputy Director for the FBI.

Oct 23, 2016 The Wall Street Journal publishes article disclosing McAuliffe 

contributions to Dr. McCabe’s campaign, triggering discussions 

with Director Comey about whether McCabe should be recused 

from Clinton-related investigations.

Nov 1, 2016 McCabe formally recuses himself from participating in Clintonrelated investigations, but the decision is not announced 

externally and only to a limited group internally.

III. Relevant Standards and Procedures

In this section we summarize the statutes, regulations, and FBI policies 

relevant to the conflict of interest and recusal issues.

A. Financial Conflict of Interest Statute

18 U.S.C. § 208 is the criminal conflict of interest statute addressing financial 

interest conflicts. It prohibits an executive branch employee from “participating 

personally and substantially” in a particular matter in which the employee knows he 

(or other persons whose interests are imputed to him, including the employee’s 

spouse) have a disqualifying financial interest. The particular matter must also 

have “a direct and predictable effect” on the financial interest. 5 C.F.R. 

§ 2635.402. Direct and predicable effect is defined by regulations to include “a 

close causal link between any decision or action to be taken in the matter and any 

expected effect of the matter on the financial interest.” 5 C.F.R. § 2635.402(b)(1). 

However, a particular matter does not have a direct effect on a financial interest, “if 

the chain of causation is attenuated or is contingent upon the occurrence of events 

that are speculative or that are independent of, and unrelated to, the matter.” Id.
433

B. Executive Branch Regulations Addressing Appearance Concerns 

and Impartiality in Performing Official Duties

The Office of Government Ethics (OGE) promulgates the Standards of Ethical 

Conduct for Employees of the Executive Branch (Standards of Ethical Conduct or 

OGE regulations). See 5 C.F.R. Chapter XVI, Subchapter B., Part 2635. 5 C.F.R. 

§ 2635.101 identifies general principles applying to all executive branch employees. 

One principle addresses appearance concerns and states that: “[e]mployees shall 

endeavor to avoid any actions creating the appearance that they are violating the 

law or the ethical standards set forth in this part.”225 5 C.F.R. § 2635.101(b)(14). 

See also Executive Order 12674 (as modified by Executive Order 12731) on 

Principles of Ethical Conduct for Government Officers and Employees, section 

101(n).

Conflicts of interest for federal employees are addressed in the OGE 

regulations at 5 C.F.R. §§ 2635.401 – 2635.403 and 2635.501 – 2635.503. 

Section 502(a), relating to “Personal and business relationships,” provides:

Where an employee knows that a particular matter involving specific 

parties is likely to have a direct and predictable effect on the financial 

interest of a member of his household, or knows that a person with 

whom he has a covered relationship is or represents a party to such 

matter, and where the employee determines that the circumstances 

would cause a reasonable person with knowledge of the relevant facts 

to question his impartiality in the matter, the employee should not 

participate in the matter unless he has informed the agency designee 

of the appearance problem and received authorization from the agency 

designee in accordance with paragraph (d) of this section.

5 C.F.R. § 2635.502(a).

Section 502(a) thus identifies two categories of circumstances creating 

conflicts of interest that require recusal. The first is where an employee knows that 

a “particular matter involving specific parties is likely to have a direct and 

predicable effect on the financial interest of a member of his household.” Section 

402(b)(1) defines “direct and predicable effect,” as described above in connection 

with 18 U.S.C. § 208.

The second category of conflict requiring recusal occurs if the employee 

knows that a person with whom the employee has a “covered relationship” is or 

represents a party to the “particular matter.” Section 502(b) defines “covered 

relationships” to include, among other things, persons who are members of the 

employee’s household, persons who are relatives with whom the employee has a 

 

225

 5 C.F.R. § 2635.101(b)(8) is the general principle which states that “[e]mployees shall act 

impartially and not give preferential treatment to any private organization or individual.” In this 

chapter we address McCabe’s recusal obligations and do not discuss whether McCabe’s conduct 

demonstrated that he acted with bias or partiality.
434

“close personal relationship,” and persons with whom the employee has certain 

financial relationships. 5 C.F.R. § 2635.502(b).

Where either of these two circumstances is present and the employee 

determines that these circumstances “would cause a reasonable person with 

knowledge of the relevant facts to question [the employee’s] impartiality in the 

matter, the employee should not participate in the matter” unless he or she has 

obtained authorization to do so from a designated agency ethics official. 5 C.F.R. 

§ 2635.502(a). Thus, the “reasonable person” test is the standard for determining 

whether the circumstances could raise a fair question about an employee’s 

impartiality thereby creating an appearance concern.226 Section 502 encourages 

the employee to seek the assistance of his supervisor, an agency ethics official, or 

the agency designee in making a recusal determination. 5 C.F.R. 

§ 2635.502(a)(1). Section 502 also empowers the employee’s supervisor to 

request the agency designee to make a determination about whether recusal is 

required. 5 C.F.R. § 2635.502(c). The agency designee may also make such a 

determination on his or her own initiative. Id.

In addition to the specific circumstances described above, section 502(a)(2) 

contains a catchall provision that addresses impartiality concerns in any “other 

circumstances.” It states:

An employee who is concerned that circumstances other than those 

specifically described in this section would raise a question regarding 

his impartiality should use the process described in this section to 

determine whether he should or should not participate in a particular 

matter.

Section 502(a)(2) gives the employee the option to invoke the section 502 

process (i.e., seeking a recusal determination or waiver from the agency designee) 

for these “other circumstances.” See also 5 C.F.R. § 2635.501(a). For example, 

where the unique circumstances of “a personal friendship, or a professional, social, 

political or other association not specifically treated as a covered relationship” raise 

an appearance question, the employee may elect to use the section 502 process. 

Office of Government Ethics (OGE) 99 x 8, Memorandum to Designated Agency 

Ethics Officials Regarding Recusal Obligation and Screening Arrangements, April 26, 

1999 at 2.

The OGE has made clear that while employees are “encouraged” to 

use the process provided by section 502 (a)(2), “[t]he election not to use 

that process should not be characterized, however, as an ‘ethical lapse.’” 

OGE 94 x 10(1), Letter to a Departmental Acting Secretary, March 30, 1994; 

see also, OGE 01 x 8 Letter to a Designated Agency Ethics Official, August 

23, 2001. Further, a note in section 502 states that “[n]othing in this section 

 

226

 The “reasonable person” standard is also the test for the general appearance principle in 

section 101 referenced above. 5 C.F.R. § 2635.101(b)(14) (“Whether particular circumstances create 

an appearance that the law or these standards have been violated shall be determined from the 

perspective of a reasonable person with knowledge of the relevant facts.”).
435

shall be construed to suggest that an employee should not participate in a 

matter because of his political, religious or moral views.”

A recused employee is prohibited from participating in the matter unless 

authorized by the agency designee based on a determination that the Government’s 

interest “in the employee’s participation outweighs the concern that a reasonable 

person may question the integrity of the agency’s programs and operations.” 

5 C.F.R. § 2635.502(d). The authorization could allow for partial participation by 

adjusting the employee’s duties to “reduce or eliminate the likelihood that a 

reasonable person would question the employee’s impartiality.” 5 C.F.R. 

§ 2635.502(d)(6).

C. Department of Justice Regulation Requiring Disqualification 

Arising from Personal or Political Relationships

28 C.F.R. § 45.2 is a Department of Justice regulation which addresses 

recusal arising from a Department employee’s personal or political relationships.227 

Section 45.2(a) states that no Department employee “shall participate in a criminal 

investigation or prosecution if he has a personal or political relationship with” any 

person or organization that is the subject of the investigation or prosecution or with 

any person or organization that the employee “knows has a specific and substantial 

interest that would be directly affected by the outcome of the investigation or 

prosecution.”

Section 45.2(c)(1) defines “political relationship” to mean:

[A] close identification with an elected official, a candidate (whether or 

not successful) for elective, public office, a political party, or a 

campaign organization, arising from service as a principal adviser 

thereto or a principal official thereof.

In an April 2017 memorandum, the FBI’s then-chief ethics official, while 

acknowledging that the syntax of this definition is not “crystal clear,” wrote that 

section 45.2(c)(1) appears to require that in order to have a “close identification” 

with an elected official or candidate, the “employee must be or have been a 

‘principal adviser’ to the official or candidate.”228

Section 45(c)(2) defines “personal relationship” in part to mean “a close and 

substantial connection of the type normally viewed as likely to induce partiality.” It 

presumes an employee has a personal relationship with a parent, sibling, child, or 

spouse, and states that whether an employee’s relationships are “‘personal’ must 

 

227

 28 C.F.R. § 45.2 implements 28 U.S.C § 528, which states that the Attorney General shall 

promulgate rules and regulations which require the disqualification of Department Employees “from 

participation in a particular investigation or prosecution if such participation may result in a personal, 

financial, or political conflict of interests, or the appearance thereof.”

228

 Patrick W. Kelley, Deputy Designated Agency Ethics Official & Assistant Director, Office of 

Integrity and Compliance, FBI, memorandum for the FBI Deputy Director, Recusal, April 11, 2017. 

Kelley retired from the FBI on February 28, 2018.
436

be judged on an individual basis with due regard given to the subjective opinion of 

the employee.”

Unlike other ethics provisions that contain language imputing to the 

employee a relative or spouse’s conflicts of interest, section 45.2 does not have 

language imputing to the Department employee a relative or spouse’s political or 

personal relationships.

Section 45.2(b) requires an employee “who believes that his participation 

may be prohibited by paragraph (a) of this section” to report the matter to his 

supervisor. If the supervisor determines that the employee has a personal or 

political relationship as described in paragraph (a), “he shall relieve the employee 

from participation” unless he determines that the relationship will not render the 

employee’s “service less than fully impartial and professional,” and the 

“participation would not create an appearance of a conflict of interest likely to affect 

the public perception of the integrity of the investigation or prosecution.”

D. What Constitutes “Participation” Under the Regulations

18 U.S.C. § 208 prohibits an employee from participating “personally and 

substantially” in a matter in which he has a disqualifying financial interest. See also

18 U.S.C § 207(a)(1). The OGE regulations define “personal and substantial” and 

states in part: “[t]o participate substantially means that the employee’s 

involvement is of significance to the matter...it requires more than official 

responsibility, knowledge, perfunctory involvement, or involvement on an 

administrative or peripheral issue.” 5 C.F.R. § 2635.402(b)(4).

In contrast, 5 C.F.R. § 2635.502 and 28 C.F.R. § 45.2 both use the term 

“participate” without qualification and neither the OGE nor DOJ regulations contain 

definitions describing the type of “participation” to be avoided by recused 

employees. Section 502(e) states that “[d]isqualification is accomplished by not 

participating in the matter.” The OGE has provided general guidance on the scope 

of an employee’s recusal obligations and stated that a proper recusal requires “that 

an employee avoid any official involvement in a covered matter.” OGE 99 x 8 at 2. 

The OGE has offered the following advice to ethics officials to share with employees 

who “may not fully appreciate the meaning of the term ‘recuse’”:

An employee should refrain, abstain, refuse, relinquish, forebear, 

forgo, hold off, keep away, give up, decline, desist, discontinue, end, 

cancel, close, quit, terminate, stop, halt, cease, drop, stay away, shun, 

avoid participation in the matter before him or her. In other words, 

just don’t do it.

Id. at n.2.

E. FBI Procedures and Ethics Officials

The Department’s ethics program is administered by the Designated Agency 

Ethics Official (DAEO), the Assistant Attorney General for Administration, and the 

Departmental Ethics Office. See DOJ Order 1200.1, part 11, chapter 11-1, B.1, 4. 
437

The Deputy Designated Agency Ethics Official (Deputy DAEO) is the person to 

whom the DAEO delegates the responsibility and authority for the management of 

the ethics program within each Department component. Id. at B.3. Patrick W. 

Kelley was the FBI’s Deputy DAEO and Assistant Director for the FBI’s Office of 

Integrity and Compliance during the time period of our review.

The FBI Director’s authority as the FBI’s Agency Designee has been 

delegated to the FBI’s Deputy DAEO. See James B. Comey, Director, Federal 

Bureau of Investigation, memorandum for Lee J. Lofthus, Assistant Attorney 

General for Administration, Department of Justice, November 12, 2013 at 2. 

Consequently, for FBI employees—including the Deputy Director of the FBI—the 

FBI’s Deputy DAEO may make ethics determinations on his own, without approval 

or consultation with the Department’s DAEO, the Departmental Ethics Office, or the 

FBI Director.229

Within the FBI, all Chief Division Counsel (CDC) and other employees 

designated by the Deputy DAEO may act as “ethics counselors.” FBI Ethics and 

Integrity Program Policy Guide, 2.2.3(a). Ethics counselors’ duties include 

providing advice regarding the standards of ethical conduct to employees in their 

offices, channeling questions requiring formal ethics determinations to the Deputy 

DAEO and forwarding any written advice to the Deputy DAEO. Id at 2.2.3(b). 

Employees with ethics questions are directed to contact the ethics counselors 

designated in their respective offices. Id. at 2.3(b). FBI policy states that 

disciplinary action is generally not taken against an employee who engaged in 

conduct relying in good faith on the advice of an ethics counselor. Id. at 2.3(c)

IV. Factual Findings

A. Background Facts

1. Andrew McCabe

McCabe began his career with the FBI in 1996 as a Special Agent in the New 

York Field Office. McCabe served in a variety of leadership positions in the FBI 

during his career, including as Assistant Director for the Counterterrorism Division 

and Executive Assistant Director for the National Security Branch. He served as 

Assistant Director in Charge (ADIC) of the FBI’s Washington Field Office (WFO) from 

August 2014 until September 2015. On September 6, 2015, McCabe became 

Associate Deputy Director of the FBI, responsible for the FBI’s non-operational 

divisions. On February 1, 2016, McCabe became Deputy Director of the FBI, 

overseeing all FBI domestic and international investigative and intelligence 

activities. McCabe became Acting Director of the FBI on May 9, 2017, when FBI 

Director James Comey was fired. McCabe served as Acting Director until August 2, 

2017, when Christopher Wray became the new FBI Director. At that time, McCabe 

 

229

 Ethics determinations for the Director are made by the Deputy Attorney General. See DOJ 

Order 1200.1 at part 11, chapter 11-1, C2.1.
438

resumed his duties as Deputy Director, a position he held until January 29, 2018, at 

which point he went on annual leave but remained an FBI employee. In February 

2018, the OIG issued a misconduct report regarding McCabe to the FBI.230 On 

March 16, 2018, Attorney General Sessions terminated McCabe’s employment with 

the FBI.

2. FBI Clinton Investigations

The FBI opened the Clinton server email investigation when McCabe was the 

ADIC of WFO and opened the Clinton Foundation investigations after McCabe 

became FBI Associate Director. 

3. Dr. McCabe Meets Governor McAuliffe in February 2014

In February 2014, then-Governor Terry McAuliffe visited the hospital where 

Dr. Jill McCabe practiced to advocate for expansion of Medicaid coverage in Virginia. 

McCabe told us that, by coincidence, his wife, Dr. McCabe, was working at the 

hospital that day and was present at the time of Governor McAuliffe’s visit. McCabe 

told the OIG that Dr. McCabe had not previously met Governor McAuliffe until his 

visit to her hospital that day.

4. Recruitment to Run for Virginia State Senate in February 

2015

A year later, on February 25, 2015, Dr. McCabe received a phone call from 

an aide to then-Virginia Lieutenant Governor Ralph Northam. That day, Dr. McCabe 

emailed her husband and said the aide had asked if she would consider running for 

Virginia State Senate against the incumbent in District 13. McCabe told us that Dr. 

McCabe had not previously met Lieutenant Governor Northam.

McCabe said that Dr. McCabe was subsequently invited to, and agreed to 

attend, a Democratic caucus meeting in Richmond on March 7, 2015, which would 

provide an opportunity for her to discuss a potential run with other elected officials. 

According to McCabe, a Virginia State Senator told Dr. McCabe that Governor 

McAuliffe was scheduled to speak at the meeting and they might have an 

opportunity to speak to him as well, although it was “not a guarantee” that they 

would talk with the Governor.

5. The McCabes’ Meeting with Governor McAuliffe in March 

2015

McCabe accompanied Dr. McCabe on her trip to Richmond on March 7.

 

230

 See U.S. Department of Justice (DOJ) Office of the Inspector General (OIG), A Report of 

Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe, Oversight 

and Review Division (February 2018).
439

a. Conversation with Richmond Special Agent in 

Charge (SAC) on March 6

McCabe said the day before the March 7 trip he spoke to the Special Agent in 

Charge of the FBI’s Richmond Field Division (Richmond-SAC), to let him know he 

would be in Richmond with Dr. McCabe because she was considering a state senate 

run and they were going to a meeting “to talk with more people about this 

prospect.” McCabe also said he talked to Richmond-SAC to get his impressions on 

Richmond and the state legislature and that Richmond-SAC “was very positive 

about it.” McCabe told the OIG that Richmond-SAC was the first FBI employee with 

whom he discussed the March 7 trip. 

Richmond-SAC told us that McCabe called to tell him he would be coming to 

Richmond with his wife to meet with the Governor as she was considering a run for 

office. Richmond-SAC said McCabe asked if he would “get in the way of anything” 

by going to meet with state legislators. Richmond-SAC said he did not have any 

investigative concerns with him meeting the Governor or state legislators, although 

he warned McCabe that if McCabe met with Governor McAuliffe, he would “be 

tethered to the Clintons” forever, and this could impact McCabe’s future in 

government.

b. The McCabes’ Meeting with McAuliffe on March 7

McCabe told us that on March 7 he and Dr. McCabe drove to Richmond for 

the Democratic caucus meeting where they met with a Virginia State Senator. 

According to McCabe, the State Senator told them “there’s been a change of plans” 

and that Governor McAuliffe wanted to speak to Dr. McCabe at the Governor’s 

mansion. The three then drove to the mansion in the McCabes’ car.

McCabe said they met with Governor McAuliffe at the mansion for 30 to 45 

minutes. He said the Governor made it very clear that his number one priority was 

expanding Medicaid, and that “they” (from the context, apparently referring to the 

Virginia Democratic Party and himself) planned to target a few state senate seats. 

McCabe said the Governor explained why they thought Dr. McCabe would be a good 

candidate and that he said she could expect to spend a lot of time fundraising. 

According to McCabe, Governor McAuliffe said that he and the Democratic Party 

would support Dr. McCabe’s candidacy. However, McCabe told us to the best of his 

recollection they did not discuss financial support nor did they say they would 

support Dr. McCabe “in the form of financial backing.” McCabe also said there was 

no mention of the Governor’s Political Action Committee (PAC), the Clintons, or 

Clintons’ associates providing financial assistance. McCabe said that Dr. McCabe 

asked McAuliffe questions about the nature, demands, and logistics of the 

legislative session and the amount of time she would have to spend in Richmond 

because she “had no intention ever of leaving her medical profession.” McCabe 

said the Governor asked him about his occupation and McCabe told him he worked 

for the FBI but that they did not discuss McCabe’s work or any FBI business.

According to McCabe, after the meeting at the Governor’s mansion, he and 

Dr. McCabe rode with the Governor to a hotel, where the Governor delivered his 
440

speech. McCabe said they were at the hotel for 20 to 25 minutes, standing in the 

audience listening to the speech and returned with the Governor to the mansion 

where the McCabes had left their car. McCabe said they stayed for another 20 to 

30 minutes at the mansion for an unrelated event before returning home in their 

car.231 McCabe told us the March 7 meeting was the first and only time he had ever 

met McAuliffe.

c. Follow-up Conversation with Richmond SAC on 

March 8

Richmond-SAC told us that McCabe called him probably the following day 

(March 8) and described the meeting with Governor McAuliffe. According to 

Richmond-SAC, McCabe said it was a “surreal meeting” with the Governor at the 

mansion. Richmond-SAC said McCabe told him that from the mansion they were 

whisked away to a function at a hotel and that the Governor, without Dr. McCabe 

having committed to a run, introduced her as someone that they believed could 

unseat the incumbent senator in District 13. Richmond-SAC said McCabe told him 

that he would address any ethics issues.

6. Dr. McCabe’s Campaign

Dr. McCabe announced her run for the Virginia State Senate on March 12, 

2015. In FBI responses to Congressional inquiries in December 2016, the FBI 

stated that, to the best of McCabe’s recollection, his role in Dr. McCabe’s campaign 

“included providing transportation to his spouse in their personal vehicle on two 

occasions to public events; attending one public debate as a spectator; and 

appearing in a family photo which was used in a campaign mailer.”232

Dr. McCabe’s campaign committee, McCabe for Senate, received substantial 

monetary contributions in 2015 from Common Good VA, a PAC controlled by thenGovernor McAuliffe, as well as in-kind contributions from the Virginia Democratic 

Party. According to state campaign finance records, Common Good VA donated a 

total of $467,500 to McCabe for Senate, the vast majority of which was contributed 

in October 2015. The Virginia Democratic Party provided a total of $207,788 in the 

form of campaign mail production in September and October 2015. The combined 

total of $675,288 from the Governor’s PAC and the party represents approximately 

40 percent of the total contributions raised by Dr. McCabe for her state senate 

campaign during the 2015 election cycle, according to the records. 

On June 26, 2015, Hillary Clinton was the featured speaker at a fundraiser in 

Fairfax, Virginia hosted by the Virginia Democratic Party and attended by Governor 

McAuliffe. News accounts at the time indicated that the party raised more than 

 

231

 McCabe said he did not remember what the unrelated event was about.

232

 The FBI also stated in the letter that McCabe’s campaign activities were permissible under 

the Hatch Act. We discuss the FBI’s Congressional responses in further detail below.
441

$1,000,000 at the fundraiser.233 McCabe told us he was not aware of the June 

2015 fundraiser until the October 2016 news accounts and that neither he nor his 

wife attended the event.234

McCabe told us that during his wife’s campaign he was generally unaware of 

the nature and source of donations to her campaign, including the contributions 

from Governor McAuliffe’s PAC and the Virginia Democratic Party. According to 

McCabe, he learned of these details for the first time from the October 23, 2016, 

Wall Street Journal article, discussed below. He told us he was not aware of the 

Clintons or anyone on their behalf ever contributing to Dr. McCabe’s campaign.

B. McCabe Discusses Wife’s Candidacy with FBI Officials, Seeks 

Ethics Advice, and Recuses from Various FBI Investigations

1. Meeting with Comey’s Chief of Staff; Extent of Director 

Comey’s Knowledge or Approval

McCabe said that the week following the March 7 meeting with Governor 

McAuliffe, he spoke to Chuck Rosenberg, Director Comey’s then-Chief of Staff. He 

said he told Rosenberg that his wife was considering a state senate run and that 

they had traveled to Richmond and met with Governor McAuliffe. McCabe said they 

had a “fulsome discussion about everything that was involved,” and that he 

described the information they had gathered, although he could not recall whether 

he flagged for Rosenberg the fact that his wife’s campaign could receive financial 

support from the Democratic Party or other sources influenced by McAuliffe. 

McCabe said he told Rosenberg that his wife would not run if the Director had “any 

concerns about it reflecting negatively” on the FBI or McCabe. McCabe said that 

Rosenberg called him back a few hours later and said he had spoken to the Director 

“and he’s totally comfortable with it.” McCabe told us the ethics issues were 

foremost on his mind and that he believed he talked to Rosenberg about the efforts 

he (McCabe) would take with the FBI’s chief ethics official, Patrick Kelley, to 

address conflict of interest and recusal issues. McCabe said he believed that the 

Director’s approval would have been with the understanding that McCabe would 

address all conflict and recusal issues as required.

Rosenberg told us that he recollected one brief in-person conversation in his 

office with McCabe at the time his wife was considering a run for the state senate. 

Rosenberg said that McCabe told him that his wife was considering a run and asked 

whether Rosenberg thought that would be problematic. Rosenberg said he told 

 

233

 See Jim Nolan, Clinton Rouses Virginia Democrats at Party Fundraiser at GMU, RICHMOND 

TIMES-DISPATCH, Jun. 27, 2015, 2015 WLNR 19664828; Patrick Wilson, Clinton Makes Her First 

Campaign Appearance in Virginia, THE VIRGINIAN-PILOT, Jun. 27, 2015, 2015 WLNR 18860380; Rachel 

Weiner, At George Mason Arena, Clinton Goes on the Attack, WASH. POST, Jun. 28, 2015, 2015 WLNR 

18937709.

234

 Clinton also appeared with Governor McAuliffe at a campaign rally in Alexandria, Virginia 

on October 23, 2015. Laura Vozzella, Clinton Stirs Up Crowd in Alexandria, Va., at Afternoon Rally, 

WASH. POST, Oct. 23, 2015, https://www.washingtonpost.com/news/postpolitics/wp/2015/10/23/clinton-stirs-up-crowd-in-alexandria-va-at-afternoon-rally (accessed March 

27, 2018). McCabe also told us that neither he nor his wife attended this event.
442

McCabe he did not believe there would be any issues with it, but that McCabe 

should talk to Kelley. He told us he probably also said to McCabe that he would 

think about it further and let McCabe know if something ended up concerning him 

about the situation. Rosenberg said he told McCabe that his wife was a private 

citizen and so long as her campaign does not interfere with his FBI work, he did not 

see why there would be an issue. Rosenberg said he did not recall a subsequent 

conversation with Director Comey about this issue, but he believed McCabe’s 

recollection that Rosenberg called McCabe back and said the Director had no issue 

with it was correct because that sounded like what he would have done.

Rosenberg said the conversation with McCabe was at “a fairly abstract level” 

and he assumed that that the ethics questions would be addressed with Kelley. 

Rosenberg said he told McCabe as long as “he was careful about recusals” and 

talked to Kelley it seemed okay to him.

Comey told us he did not recall Rosenberg having asked him whether he had 

any concerns with a potential run for office by ADIC McCabe’s wife at the time she 

was considering a run. Comey said he believes he learned for the first time that Dr. 

McCabe had run for office in a causal conversation with her at an event in July 2016 

(about 8 months after she lost the election), and that he recalled being surprised 

about that fact. Comey told us that assuming McCabe’s recollection was accurate, 

then it is likely that Rosenberg described the issue in passing to him and said he 

had “checked it out and it’s all good” and Comey said “ok, no sweat.”

2. Conversation with Deputy Director Giuliano

McCabe told us he also spoke about his wife’s potential run with his direct 

supervisor, then-Deputy Director Mark Giuliano, on March 9, the Monday after their 

visit to Richmond. McCabe said he described the “whole situation” to Giuliano in a 

“robust conversation” in which he described why his wife was interested in a 

possible run and the “sensitivities” of her run relative to his position, and that he 

identified WFO’s public corruption program. He said Giuliano responded by 

directing him to talk to Kelley to identify a “clear path forward” that avoided any 

Hatch Act or recusal problems. McCabe said Giuliano did not express any 

reservations and that Giuliano said “...good for her...she’s getting involved and 

trying to do the right thing.”

By contrast, Giuliano told us that he advised McCabe, when McCabe told him 

that his wife was planning to run, that it was a “bad idea.” According to Giuliano, 

McCabe responded by saying, “she’s supported me for all these years; I need to 

support her; what do I need to do?” Giuliano said he told McCabe to consult Kelley 

and FBI attorneys, and that he believes McCabe ultimately “dotted every ‘I’ and 

crossed every ‘T’ that he needed to” on the issue. Giuliano also told us that he 

ensured that McCabe was recused from appropriate WFO investigations.

3. Meeting with Acting Chief Division Counsel on March 10

McCabe and WFO’s Acting Chief Division Counsel (A-CDC), met on March 10, 

2015, the day before a meeting McCabe scheduled with Kelley. McCabe said he 
443

had an in-depth conversation with A-CDC when they met and that he asked her to 

attend the meeting with Kelley.

A-CDC confirmed that she and McCabe had a conversation on March 10 in 

which McCabe described to her many details, including that he and his wife had met 

that weekend with McAuliffe at the governor’s mansion. A-CDC told us, and her 

contemporaneous notes corroborate, that McCabe identified public corruption 

investigations and other areas of potential conflicts. She said that he wanted her to 

identify the conflict parameters he would work under if his wife decided to run. She 

responded by suggesting a “taint team” review process to identify potential conflict 

cases. A-CDC said that McCabe was also very concerned with telling WFO 

employees about his wife’s run for fear that they would feel pressured to vote for 

her. A-CDC said that McCabe told her that he had already notified the Director and 

the Deputy Director.

4. Meeting with Kelley and Baker on March 11

McCabe met with Kelley at his office at FBI Headquarters on March 11, 2015. 

The meeting was also attended by A-CDC and FBI General Counsel James Baker, 

who joined halfway through the meeting. According to McCabe, Kelley addressed 

two areas in their discussions: the Hatch Act restrictions on McCabe’s activities 

during the campaign, and conflict of interest and other issues to consider in the 

event Dr. McCabe won her race. They did not discuss how to address donations to 

Dr. McCabe’s campaign or the possibility that they could create an appearance of a 

conflict of interest if made by individuals who may be under investigation by the 

FBI, or closely affiliated with individuals under investigation by the FBI. McCabe 

said that they also discussed a process in which ongoing and future cases would be 

identified for potential recusal, with A-CDC serving as a “filter” of cases and the 

WFO’s Special Agents in Charge (SACs) tasked with bringing potential conflict cases 

to A-CDC for a recusal decision. McCabe said that in the meeting they “hammered 

out the details of how they would do this collaboratively” and that Kelley was 

satisfied that such a process was “an abundantly cautious way to approach the 

issue.” McCabe said that they had minimal discussion regarding considerations in 

the event Dr. McCabe won, but that Kelley said a win by her might trigger other 

recusal issues and that they would “cross that bridge” when they got to it.

According to McCabe, the filtering arrangement they discussed was to take 

effect immediately. McCabe told us that in the March 11 meeting it was his “strong 

belief” that his wife would run because the “all-clear report” from Rosenberg was 

the “last hurdle” prior to her decision to run. Dr. McCabe announced her run for the 

state senate the next day, March 12, 2015.

According to A-CDC, during the March 11 meeting Kelley and Baker were 

concerned with potential Hatch Act violations and said they did not think there 

would be case conflict of interest issues unless Dr. McCabe won her election. ACDC told us that McCabe said they should nonetheless proceed as if there are 

conflicts of interest.
444

Kelley told us that Hatch Act considerations were the focus of most of the 

March 11 meeting. Kelley said that once the Hatch Act questions were resolved 

they discussed what to do with WFO investigations and that McCabe, A-CDC, or 

both said they had put measures in place to screen investigations for conflicts. 

Kelley’s notes of the March 11 meeting are contained in an Ethics Advice Tracker, 

an OIC electronic form used to memorialize advice provided. The Tracker stated 

that in the meeting they “reviewed disqualification/recusal requirements” and that 

McCabe had “already put in place filtering arrangements within his office.” A-CDC 

said that they did not memorialize a filter process or issue written instructions 

immediately, but that they put in place a “stopgap measure” of funneling all public 

corruption matters through the Criminal Division SAC, Acting SAC, or someone from 

the CDC’s office to assess potential conflicts until they had implemented a formal 

process.

McCabe told us that after the March 11 meeting, he expected A-CDC to 

document the recusal, speak to the Acting SAC about the filtering process, and 

work with the Acting SAC to list any cases from which he would be recused. 

McCabe said that he did not necessarily expect to hear about the specific cases that 

he had been recused from. McCabe told us that at a regularly scheduled meeting of 

the WFO SACs, the same week as the March 11 meeting, he informed the SACs of 

his wife’s decision to run for state senate and of the filtering arrangement that they 

had put in place for identifying potential conflict cases.

5. McCabe Recusal EC Issued on April 29

The A-CDC documented McCabe’s recusals in an Electronic Communication 

(EC) dated April 29, 2015, which was approved by McCabe.235 The EC was sent to 

all of the WFO’s SACs and began by referencing Dr. McCabe’s run for state senate 

and stating that prior to her announcement, McCabe had consulted FBI officials “to 

identify limitations on his participation in her campaign and to identify areas where 

Dr. McCabe’s campaign may present potential conflicts of interest.” It then 

referenced the March 11 meeting and stated that they had “also addressed with AD 

Kelley and GC Baker the potential for conflicts of interest.” The EC stated that ACDC and the Acting SAC of the Criminal Division (A-SAC), in which the public 

corruption squads were located, had “identified several areas” where McCabe’s 

“dissociation would be appropriate,” including:

[A]ll public corruption investigations arising out of or otherwise 

connected to the Commonwealth of Virginia present potential conflicts, 

as Dr. McCabe is running for state office and is supported by the 

 

235

 A-CDC told us she drafted the EC on her own and did not coordinate the writing of the EC 

with Kelley or any others in OIC or OGC. A-CDC said McCabe was the approving official on the EC 

because he was her direct supervisor. When we asked Kelley whether McCabe’s supervisor or some 

other official should have approved the EC given that its subject matter was about his recusal, he said 

he believed it was “fine” for McCabe to approve it and make a record of the recusal in the system. 

Kelley provided two reasons. First, he said the EC work flow process requires a supervisor to approve 

its creation and McCabe is A-CDC’s supervisor. Second, he said that substantively the EC does not so 

much reflect on the decision to recuse as it describes the administrative measures that would be taken 

to implement the recusal protocols.
445

Governor of Virginia. Therefore, out of an abundance of caution, the 

ADIC will be excluded from any involvement in all such cases.

The April 29 EC then stated that supervising case agents in the WFO’s Criminal 

Division had conducted “an initial review” of pending investigations to identify cases 

that present a potential conflict of interest, that these cases were identified to ACDC and would be included in the matters in which McCabe “may take no part, 

either by being briefed or in the decision-making process.”

The EC next identified a screening protocol for future or other ongoing cases 

requiring the CDC to review any investigations that may present “an actual or 

perceived conflict of interest” and make the recusal determination. The EC 

concluded by stating: “This protocol will be reassessed and adjusted as necessary 

and at the conclusion of Dr. McCabe’s campaign in November, 2015.”

A-CDC told us she did not recall why she did not document the recusal until 

April 29 and that it was “always the plan” to memorialize the recusal in an EC.

C. No Reassessment of Conflict/Recusal when McCabe becomes 

ADD or after Dr. McCabe Loses Election

McCabe left the WFO and became the FBI’s Associate Deputy Director (ADD) 

in September 2015, while his wife’s campaign was ongoing. The ADD primarily has 

administrative responsibilities rather than operational ones.

When we asked McCabe if he had any conversations with anyone about 

whether the April 29 EC and its provisions traveled with him to his new position as 

ADD, he said he did not recall having any such conversations.

Dr. McCabe lost her race for the state senate on November 3, 2015. As 

noted above, the April 29 EC stated that the recusal protocol would “be reassessed 

and adjusted ... at the conclusion of Dr. McCabe’s campaign in November 2015.” 

When we asked McCabe about the language related to reassessment, he told us no 

one approached him at the end of his wife’s campaign to discuss the issue with him.

D. Participation in Clinton Email and Clinton Foundation 

Investigations

1. McCabe Not Recused as ADIC, ADD, or DD

As described in this report, until he recused himself from the Clinton email 

and Clinton Foundation investigations on November 1, 2016, McCabe had an active 

role in the supervision of the Clinton email investigation after he became the 

Deputy Director in February 2016. He also had oversight of the Clinton Foundation 

investigations when he became Deputy Director. When McCabe served as ADD, he 

did not have supervision over the Clinton email investigation, but he was 

occasionally present at meetings where the matter was discussed, according to 
446

McCabe and an FBI response to Congressional inquiries.236 In July 2015, when the 

Clinton email investigation was opened, McCabe was serving as the ADIC in the 

WFO. He told us he had no recollection of participating in any discussions about the 

opening of the case and only learned after the fact that the WFO had provided 

personnel to the Clinton email investigation team.

2. Recusal Concerns Related to Clintons Raised in May 2015 

when McCabe is ADIC

McCabe said that he never heard of any concerns that his wife’s run for office 

presented a conflict for him in Clinton matters until October 2016, as detailed 

below. He also told us that until that time, he did not consider addressing a 

potential Clinton conflict because neither he nor his wife had any connection to 

Hillary Clinton, his wife’s campaign received no support from her, and whatever 

relationship Hillary Clinton had to Governor McAuliffe did not appear to McCabe to 

be grounds for a conflict. We found one instance prior to October 2016 in which 

concerns were raised about a potential conflict for McCabe in Clinton-related 

matters, although we found no evidence that these concerns were brought to 

McCabe’s attention. As described below, these concerns were raised by WFO 

personnel in May 2015, shortly after the April 29 EC was issued.

a. Complaint Regarding Clinton

On May 4, 2015, a private attorney emailed Director Comey to request that 

the FBI open a public corruption investigation into Hillary Clinton, citing public 

allegations related to the Clinton Foundation and her use of a private email server 

while she was Secretary of State. Comey forwarded the complaint to Deputy 

Director Giuliano, who in turn forwarded it the next day to McCabe, stating: 

“[p]rovided to WFO for whatever action you deem appropriate.”

On May 5, 2015, McCabe, who was out of the country on vacation, forwarded 

the email to A-SAC and directed her to have the complaint reviewed and to contact 

the private attorney and “conduct a standard assessment of these allegations.” 

McCabe copied Giuliano on this email. A few hours later, McCabe sent a follow up 

email to A-SAC stating, “To be clear, we are info gathering at this point. Please do 

not open a case or assessment until we have the chance to discuss further.” A-SAC 

responded by stating she understood and added that they had “already discussed 

the issue in coordination with [the Department’s Public Integrity Section] and [FBI 

Headquarters] as this is not the first complaint on this matter. We are following 

established protocol and guidelines for these types of complaints.” McCabe 

responded to A-SAC, “Great. Thanks.” He also forwarded to Chuck Rosenberg the 

 

236

 McCabe told us that when he was ADD and Deputy Director Giuliano was absent, McCabe 

filled in for him at meetings, although McCabe said he did not recollect doing so at any meetings 

related to the Clinton email investigation. Giuliano also told us that for a period of about two weeks 

before he departed the FBI and McCabe became the Deputy Director, McCabe shadowed Giuliano and 

he coached McCabe as he took over his new position.
447

first email he sent to A-SAC and described to Rosenberg his subsequent instructions 

to A-SAC to hold off on opening a case or assessment.

Rosenberg told us he vaguely recalled the email thread but he did not recall 

McCabe’s email to him or his response to McCabe, which was “[u]nderstood...

[e]njoy your vacation”. He said he does not recall the email thread prompting any 

concerns at headquarters about McCabe working on Clinton matters and that he 

would not have made a connection with a Clinton matter and Dr. McCabe and 

Governor McAuliffe.

b. Supervising Case Agent and A-SAC Raise Concerns 

About McCabe Participating in Decisions Related to 

Clinton

A-SAC forwarded the email thread to a supervising case agent in the Criminal 

Division the same day who replied “ADIC should recuse himself from this matter in 

my opinion.” The supervising case agent told us he was concerned because, among 

other things, he knew “the Clintons and McAuliffe are hard to separate,” and that 

McAuliffe ran her 2008 campaign for President. He also described his concerns as 

being protective of McCabe’s interests by anticipating how any participation by him 

on a Clinton matter would play out in the press since “the ADIC’s wife has benefited 

from her relationship to McAuliffe.”

A-SAC told us that her concern on the nature of a potential Clinton conflict 

“was overall [public corruption], and Clinton specifically because of just the broader 

relationship between McAuliffe and Clinton.” A-SAC said she spoke to A-CDC who 

reached out to Kelley. A-SAC said she also addressed her concerns with another 

SAC in WFO and the then-Chief of the Public Corruption Section of CID (PCS-Chief). 

PCS-Chief told us he recalls speaking to A-SAC about concerns she had although he 

did not recall the specifics of those concerns or the identity of the matter. PCSChief told us he passed along A-SAC’s concerns to one of his superiors. A-SAC said 

she did not know whether PCS-Chief or anyone else prompted McCabe in the May 5 

time period about a potential Clinton conflict.

c. A-CDC and Kelley’s Communications and Nonrecusal 

Decision

On May 5, A-CDC emailed Kelley and stated:

I have an issue I would like to run by you regarding ADIC McCabe’s 

potential conflicts of interest and his wife’s campaign. Should be fairly 

quick, but I would appreciate your opinion on how we are handling a 

particular matter.

A-CDC’s email to Kelley did not identify the subject of the potential conflict of 

interest. Kelley and A-CDC spoke by phone the following morning, May 6, which 

Kelley documented in an Ethics Advice Tracker dated May 7, 2015. In the Tracker, 

Kelley summarized the advice he provided to A-CDC as follows:
448

Q re necessity of recusal of her ADIC. Relates to ADIC’s spouse 

running for partisan office which we have discussed and worked out 

recusal arrangements, etc. This matter concerns a separate 

investigation where there may be a relationship between certain 

persons. Advised that relationship in the investigations was not 

enough to warrant recusal. Details too sensitive to be included here.

A-CDC told us she did not remember why she reached out to Kelley and did not 

recall discussing with anyone a potential McCabe conflict with Clinton-related 

matters. Likewise, Kelley told us that he did not recall his conversation with A-CDC 

or whether the advice memorialized in the Tracker related to a potential conflict 

regarding Clinton. (The Tracker did not reference Clinton or otherwise identify the 

subject of the potential conflict of interest.)

Kelley said that the first time he remembers hearing about a recusal question 

regarding Clinton-matters was in October 2016, as discussed below. Kelley also 

told us that in the May 2015 time frame he would have said there is no need for 

McCabe to recuse from Clinton-matters on the basis of the relationship between 

Governor McAuliffe and Clinton because their relationship is tangential: “[T]he 

question is, are McAuliffe’s relationships to Clinton imputed to Ms. McCabe. And 

frankly, I think that’s a bridge too far. I can’t see that we should impute all of 

McAuliffe’s relationships to McCabe.”

We found no evidence that McCabe was ever made aware of the concerns 

raised by A-CDC, A-SAC, or the supervising case agent. We also found no evidence 

that Kelley consulted with or questioned McCabe, who was out of the country on 

vacation, regarding A-CDC’s concerns before reaching his conclusions and providing 

the advice to A-CDC on May 7.

E. Clinton Email and Clinton Foundation Investigations Recusals

1. October 23, 2016 Wall Street Journal Article

On October 23, 2016, the Wall Street Journal (WSJ) published online an 

article stating that a political-action committee (PAC) run by Virginia Governor 

McAuliffe and the Virginia Democratic Party (over which the article reported 

McAuliffe “exerts considerable control”) collectively donated nearly $675,000 to the 

2015 unsuccessful state senate campaign of the wife of Andrew McCabe.237 The 

article described McAuliffe as “an influential Democrat with long-standing ties to Bill 

and Hillary Clinton” and noted that McCabe was an FBI official “who later helped 

oversee the investigation into Mrs. Clinton’s email use.” The article contained an 

official FBI statement that McCabe “played no role” in his wife’s 2015 state senate 

campaign and was promoted to FBI Deputy Director months after his wife’s defeat 

 

237

 See Devlin Barrett, Clinton Ally Aided Campaign of FBI Official’s Wife, WALL ST. J, Oct. 23, 

2016, https://www.wsj.com/articles/clinton-ally-aids-campaign-of-fbi-officials-wife-1477266114 

(accessed June 11, 2018). A print version of the article was published in the WSJ on Monday, October 

24, 2016.
449

“where,...he assumed for the first time, an oversight role in the investigation into 

Secretary Clinton’s emails.”238 According to the article, FBI officials stated that 

McCabe’s supervision of the Clinton email investigation in 2016 did not present a 

conflict or ethics issues because his wife’s campaign was over by then. The article 

went on to note that when the Clinton email investigation was launched in July 

2015, Mr. McCabe was “running the FBI’s Washington, D.C., field office, which 

provided personnel and resources to the Clinton email probe.”

Among other things, the article stated that McAuliffe could recall having met 

only once with McCabe, on March 7, 2015, when he and other state Democrats met 

with the couple to urge Dr. McCabe to run. It stated that after the March 7 

meeting, McCabe sought ethics advice from the FBI “and followed it, avoiding 

involvement with public corruption cases in Virginia, and avoiding any campaign 

activities or events.”

2. Internal Deliberations and Recusals from Clinton Email 

and Clinton Foundation Investigations

Immediately following online publication of the October 23 WSJ article, there 

was substantial public discussion as to whether McCabe’s oversight of the Clinton 

email investigation had been appropriate in light of the information in the article. 

In the week that followed the article, discussions ensued within the FBI over 

whether McCabe should recuse from Clinton-related matters. These discussions 

took on additional significance on October 27, when Comey was briefed by the FBI 

Clinton email investigation team regarding the Weiner laptop issue.

a. Comey and Baker Responses to Article

Comey told us he was “frustrated” that he had not known about the facts 

raised in the October 23 WSJ article earlier and that he had a conversation with 

McCabe about this. Had he known them earlier, Comey said he believed it “highly 

likely as a prudential matter” that he would have had someone else take on 

McCabe’s role in the Clinton email investigation, even if presented with an opinion 

from Kelley finding no requirement for recusal under the ethics rules. Comey said 

although he did not believe there was an actual conflict, “because of the nature of 

the [Clinton email] matter” he would not have permitted McCabe to participate as it 

would have been “used to undercut the credibility of the institution.” He said, “I 

don’t buy this. I think it’s crap, but it brings a vector of attack to this institution 

 

238

 The “played no role” reference in the FBI statement was derived from information provided 

by McCabe and was approved in advance by McCabe. Soon after publication of the October 23 WSJ 

article, the “played no role” statement came under public criticism. Subsequently, in its December 14 

letter to Senator Grassley (described below) relating to alleged conflict of interest issues involving 

McCabe, the FBI removed the “played no role” language from a draft of the letter and instead stated 

in its final letter: “To the best of his recollection, Mr. McCabe’s only activities related in any way to the 

campaign included providing transportation to his spouse in their personal vehicle on two occasions to 

public events; attending one public debate as a spectator; and appearing in a family photo which was 

used in a campaign mailer, all of which are permissible under the Hatch Act.”
450

and why would I open a vector of attack to this institution, its credibility is its 

bedrock, when I don’t need to.”

Comey said that while as a lawyer he could see the alleged conflict was a 

“triple bank shot,” a few days after the October 23 WSJ article the necessity of 

seeking a search warrant on the Weiner laptop was a “mushroom cloud” making 

“much more significant” the question of whether to notify Congress. He said that 

given these elevated stakes he did not need the “baggage” of an alleged conflict for 

McCabe brought into the decisions that would be “heavily scrutinized” and he did 

not have time to “get a legal opinion” or even for “thoughtful analysis” on whether 

McCabe should participate in the decisions. He said there was enough in the news 

articles to counsel against McCabe’s involvement. He said that while initially he 

viewed the conflict allegations as “a PR thing” that needed to be managed, “it 

became hugely significant to me once [the Clinton email investigation] awoke from 

the dead.” Comey said he told McCabe, “I don’t need you on this because I don’t 

see it as that close a call.”239

Baker told us that in the wake of the October 23 WSJ article, he and Comey 

had one-on-one conversations in which they discussed the issues it raised. Baker 

said that he believes he and Comey first learned from the October 23 WSJ article 

that Dr. McCabe’s campaign received large contributions attributed to McAuliffe. He 

said he and Comey concluded that McCabe should recuse himself from the Clinton 

email investigation “out of an abundance of caution.” Baker said that they agreed 

that it would be best if McCabe recused himself rather than being recused by 

Comey and that Comey instructed Baker to attempt to persuade McCabe to do so.

b. McCabe Excluded from Weiner Laptop Meeting on 

October 27

As described above in Chapter Nine, on October 27 at 10:00 a.m., Comey 

held a meeting with the Clinton email investigation team to discuss obtaining a 

search warrant for a set of Clinton-related emails the FBI had discovered on a 

laptop belonging to Anthony Weiner, and taking additional steps in the Clinton 

email investigation. Lisa Page, McCabe’s special counsel, attended the meeting. 

McCabe was out of town, but joined the meeting via conference call. After the 

meeting began, Baker suggested, and Comey agreed, that McCabe should leave the 

call. Comey told us that he asked McCabe to drop off the call, and McCabe was 

“very unhappy about it.”

Accounts differ about the reason stated on the October 27 call for excluding 

McCabe. McCabe told the OIG that the reason stated on the call for dropping him 

related to the potential for discussion about classified information. However, 

Comey, Baker, and Page all told us that Comey asked McCabe to leave the call out 

of an abundance of caution because of appearance issues following revelations in 

 

239

 Comey told us he did not recall his weighing in on whether McCabe should recuse from the 

Clinton Foundation investigation and said he did not remember knowing that McCabe ultimately 

recused from the Clinton Foundation investigation at the same time he recused from the Clinton email 

investigation.
451

the October 23 WSJ article about the campaign donations to Dr. McCabe from 

McAuliffe-associated PACs.

McCabe discussed the issue of his participation in the Clinton email matter 

further with Comey and Baker by telephone later that day. After these 

conversations, McCabe sent a text message to Page stating, “I spoke to both. Both 

understand that no decision on recusal will be made until I return and weigh in.”

c. Baker and Kelley Meet on October 27

Baker and Kelley met on October 27 to discuss the allegation of a conflict of 

interest raised by the October 23 WSJ article. Kelley said that he concluded, along 

with Baker, that although the facts did not require McCabe to recuse, it was 

“desirable” to recuse because of appearance concerns, so he recommended it. 

Baker told us that Kelley concluded that while McCabe was not legally required to 

recuse from Clinton matters he recommended recusal because of appearance 

concerns and out of an abundance of caution.

An Ethics Advice Tracker from the October 27 meeting memorializing the 

discussion and advice Kelley rendered states:

Cited to and discussed DOJ rule at 28 C.F.R. 45.2, conflict of interest 

statute at 18 USC 208, SOC rules on impartiality at 5 CFR 2635.502, 

and appearance standard at 5 CFR 2635.101(b)(14). Based on facts, 

advised that I saw no legal requirement for disqualification but, on 

balance, there was an appearance issue and would recommend 

recusal.

d. Kelley’s Rationale for Recusal

Although Kelley did not issue a formal opinion in October 2016, he told us 

that if he had put his advice in writing he was “confident” he would have said 

recusal of McCabe in the Clinton-related matters was not required. He said his 

recommendation that it was nonetheless desirable for McCabe to recuse was based 

on the allegations in the press and potential adverse publicity for the FBI were 

McCabe not to recuse, the fact that the FBI could “avoid a fight” while “preserving 

its equities” in having another senior leader take on McCabe’s role, and, on a 

personal level, making “life easier for the people who are under attack or under 

scrutiny.” While Kelley said McCabe’s recusals were desirable, he also told us that 

the question of whether a recusal is required under the standards of conduct is 

based on the reasonable person standard, see 5 C.F.R. § 2635.101(b)(14), and not 

on the “Washington Post test,” i.e., the likelihood that certain facts may become 

the subject of a news article. He said that while the likelihood of adverse publicity 

could factor into the reasonable person standard and that “we all have in the back 

of our mind how is this going to read in the Post...we have to make the decision 

based not on what’s in the Washington Post but on what a reasonable person would 

take away if that person knew the relevant facts, and sometimes that’s very 

nuanced.” In a memorandum Kelley wrote in April 2017, Kelley described McCabe’s 

Clinton-related investigation recusals as “not required by law or regulation” and 
452

done by McCabe “out of an abundance of caution, and to avoid further speculation 

in some quarters about the propriety of [his] continued participation.”

Kelley told us he did not believe that a reasonable person would question 

McCabe’s impartiality because Dr. McCabe had no relationship to Clinton, and while 

the relationship between the Governor and Clinton is close, he did not believe that 

meant “we can impute that relationship or should impute that relationship to Ms. 

McCabe and then turn around and impute that imputed relationship to Mr. 

McCabe...it’s too tangential to say recusal is required.”

e. Baker and McCabe Conversation on October 31

McCabe and Baker spoke about recusal by phone while McCabe was out of 

town on October 27, but no decision was made. McCabe told us he had 

conversations with Baker after returning to the office on October 31 and that Baker 

said to him that Kelley’s view was that he should recuse.240 Baker told us that he 

had a series of conversations with McCabe culminating in a “very intense” 

conversation in which Baker told McCabe that he believed he needed to recuse 

himself and that it was better that he do it “than have the boss order him to do it.” 

He said McCabe “was not happy about it” and “had lots of questions” and they had 

a “good argument back and forth.”

McCabe said that he had numerous discussions with Baker and Page during 

this time in which he expressed his view that he should not recuse out of 

abundance of caution as it “would unfairly create a negative inference over the 

work that the [Clinton email investigation] team had done with [his] participation 

over the previous” months. McCabe said Baker presented him with his argument 

that there existed connections among Hillary Clinton and McAuliffe and his wife, but 

it seemed to McCabe to be too “attenuated” to call for recusal.

McCabe said that the size of the contributions that came to light in the 

October 23 WSJ article was a relevant new fact for Baker in creating an appearance 

concern. McCabe said he countered by arguing that the size of the contributions 

should not determine whether a conflict is present, that you have a conflict at $1 as 

you do at $200,000, and while Baker agreed with his analysis that there was no 

legal conflict, Baker was focused on the “external impression of my involvement in 

the case.”

McCabe said Baker’s response to his concerns was to acknowledge that while 

he may be right on the law and facts that he was not required to recuse, Baker 

believed he should recuse in light of the news article, in an abundance of caution, 

for the sake of perception, and given Kelley’s view. McCabe said he believed there 

was “a very clear inevitable negative impact to being overly cautious.” McCabe said 

that in his discussions with Baker he asked whether he would be ordered to recuse 

 

240

 McCabe and Page both told us that neither of them spoke directly to Kelley about Clinton 

matter recusals in October 2016, but wished they had because they would learn in 2017 that Kelley’s 

view was the same as theirs — that there was no basis in fact or law that required McCabe to recuse 

from the Clinton matters.
453

and Baker told him “if the Director thinks you should, then it’s better to recuse 

yourself than to be...directed; [b]etter to recuse voluntarily, than involuntarily.”

f. McCabe and Comey Meeting on November 1

On November 1, McCabe and Comey spoke in the Director’s office. McCabe 

told us he said to Comey that he did not believe he should recuse from the Clinton 

email investigation and presented the arguments he made to Baker in their earlier 

conversations. McCabe said that Comey responded by saying he made a good 

argument but told him that in light of the external perception from the negative 

media attention he should recuse. McCabe told us that when he argued that his 

recusal at this late stage may call into question his earlier participation, Comey 

acknowledged that recusal could have such a negative impact, but said that given 

the media attention he should nonetheless recuse. McCabe said that although 

Comey did not explicitly order him to recuse, given what Baker said about a request 

from the Director to recuse, he told Comey that he would recuse.

Comey told us that in his conversation with McCabe, McCabe said that the 

allegations of conflict as to the Clinton email investigation were akin to a “triple 

cushion bank shot” and that therefore it was unreasonable for him to seek an 

opinion from Kelley on the alleged Clinton conflict. Comey said McCabe also told 

him that, although he did not believe there was a legal basis for recusal, he thought 

it was “prudent” for him to step aside.

Comey also said that in a conversation with McCabe he “made clear to him 

[his] disappointment” that these facts were not brought to his attention earlier.

g. November 1 Recusal Emails

On November 1, soon after his meeting with Comey, McCabe sent emails to 

FBI executives and officials overseeing the Clinton Foundation investigation and the 

Clinton email investigation informing them that he was recusing himself from those 

investigations. The emails stated:

As of today I am voluntarily recusing myself for the ongoing [Clinton 

email investigation / Clinton Foundation investigation]. I will continue 

to respond to congressional requests for historical information as 

necessary.

McCabe told us that the timing of the recusals from the Clinton Foundation and 

Clinton email investigations were not on different tracks and he believed that a 

recusal rationale based on a perceived Clinton-related conflict as to the Clinton 

email investigation logically extended to the Clinton Foundation investigation.

The FBI did not publicize McCabe’s recusals from these Clinton investigations 

despite the rationale that the recusals were at least in part intended to address the 

public perception of a potential conflict. In fact, even within the FBI, McCabe’s 

recusal decision was only shared with a limited audience, primarily those copied on 

the email and those aware of the recusal discussions. McCabe told us that he 
454

thought the decision to recuse was a mistake, so to be “very public” and publicize it 

“would just compound the mistake.”

3. Participation in Clinton Foundation Investigation after 

November 1

In this section we summarize three instances in which McCabe took actions 

related to the Clinton Foundation investigation after his November 1 recusal.

a. Call to NY ADIC Following November 3 Wall Street 

Journal Article

On November 3, 2016, the WSJ published another story on the Clinton 

Foundation investigation.241 That evening, McCabe emailed the ADIC of the FBI 

New York Office, William Sweeney, and stated, “This is the latest WSJ article. Call 

me tomorrow.” According to Sweeney’s calendar notes on November 4 and 

testimony to the OIG, McCabe and Sweeney spoke for approximately 10 minutes 

around 7 a.m., regarding “leaks and WSJ article” and that McCabe was “angry.” 

Sweeney’s calendar notes also reflect that McCabe expressed to him: “will be 

consequence[s] and get to bottom of it post elect[ion]. Need leaks to stop. 

Damaging to org.”242

McCabe told the OIG that he did not recall the details of the conversation on 

November 4, but it was “probably about leaks” to the media. McCabe said he 

would not have viewed his conversation with Sweeney as participating in the 

Clinton Foundation investigation but rather as a “logical follow-up to an ongoing 

conversation” he had been having with Sweeney for several weeks over the general 

issue of leaks coming out of the New York office. He said he was not transacting on 

the case, making decisions, or asking about the case, but rather telling Sweeney 

that he needed to address unauthorized media disclosures by getting his “people 

under control.” Additionally, McCabe told us he did not believe his recusal from the 

Clinton Foundation investigation encompassed his general responsibilities to 

address the issue of FBI leaks.

b. Email to Kortan on November 3 Wall Street Journal

Article

Also on the evening of November 3, McCabe emailed the latest WSJ article to 

Kortan and stated: “I am curious as to why I keep stumbling across these things 

with no notice whatsoever from my OPA machine?... I would like to discuss 

solutions tomorrow.” Kortan told us he did not recall the email from McCabe or any 

subsequent conversation with McCabe. McCabe said his email to Kortan was 

 

241

 See Devlin Barrett and Christopher Matthews, Secret Recordings Fueled FBI Feud in 

Clinton Probe, WALL ST. J., Nov. 3, 2016, https://www.wsj.com/articles/secret-recordings-fueled-fbifeud-in-clinton-probe-1478135518 (accessed June 11, 2018).

242

 As detailed in a separate OIG misconduct report, McCabe had himself authorized the 

disclosure of sensitive information about the Clinton Foundation investigation to the Wall Street 

Journal, which was included in an article published on October 30 as well as in the November 3 article 

he discussed with Sweeney.
455

intended to address a “persistent frustration” he had over not receiving timely 

notice by OPA of news articles of interest. McCabe told us he did not know if he 

had a subsequent conversation with Kortan in which Kortan provided an explanation 

for why OPA did not send him the article. However, McCabe said that Kortan may 

not have brought the November 3 WSJ article to his attention in the first place 

because McCabe had recused himself from the Clinton Foundation investigation. 

When we asked McCabe whether in retrospect he should have asked Kortan to be 

briefed or kept up to speed on matters he was recused from, he said, “no, no” and 

reiterated that may have been why Kortan did not bring the article to his attention.

F. Decision Not to Disclose McCabe’s Recusals to Congress

Soon after the publication of the October 23 WSJ article, the FBI received 

three Congressional requests for information regarding the facts and allegations in 

the article. One was a letter from Senator Charles E. Grassley to Director Comey 

dated October 28, 2016, requesting answers to 12 questions, including one which 

stated: “What steps are you taking to mitigate the appearance of a conflict of 

interest in the Clinton email investigation and to reassure Congress and the 

American people that the investigation was not subject to political bias?”

On December 14, 2016, the FBI sent its response to Senator Grassley’s 

letter, signed by the then-Acting Assistant Director (AAD) for the FBI’s Office of 

Congressional Affairs (OCA). The December 14 letter did not explicitly address 

Senator Grassley’s question concerning mitigation steps taken or otherwise disclose 

McCabe’s November 1 recusal from the Clinton email investigation. Instead, the 

last two sentences of the corresponding paragraph in the final December 14 letter 

stated:

Dr. McCabe lost the election for state senate on November 3, 2015, 

months before Mr. McCabe, as DD, assumed responsibility for the 

Clinton email investigation. Based on these facts, it did not appear that 

there was a conflict of interest – actual or apparent – that required 

recusal or waiver.

We attempted to determine who made the decision not to disclose the 

November 1 recusal of McCabe from the Clinton email investigation in the 

December 14 response to Senator Grassley, and for what reason.

Beginning in early December 2016, the OCA AAD and another OCA staff 

member circulated several drafts of the response to Senator Grassley. One draft 

included the sentence: “On October [?], 2016, out of an abundance of caution, Mr. 

McCabe recused himself from further participation in the [Clinton email] 

investigation.” Lisa Page responded in an email that stated, “No way on [that] 

sentence. During our conversation with Jim [Baker] last week, both of us 

express[ed] our overwhelming interest in protecting that fact as long as possible.” 

Page told us she believed the “both of us” reference was to herself and McCabe, but 

was not sure. Page told us she believed that McCabe’s recusal, if revealed, would 

have been misused for political purposes and further inflamed the claims that 

Comey and McCabe were biased in favor of Clinton. Page also said she was not 
456

sure who made the ultimate decision on whether to disclose McCabe’s recusal. She 

said that she did not know whether McCabe weighed in on this decision.

McCabe told us he did not have a recollection of any discussion, including 

with Comey, regarding whether to reveal his recusal from the Clinton email 

investigation in the December 14 letter. He said Page’s “protect the fact” comment 

in her email reflected their thinking at the time that to reveal that information 

would create a “potentially damaging misimpression of the case” and that although 

he did not recall specifically discussing this issue with Comey, he believed Comey 

was also of that view.

Comey said he had “some recollection” that his Chief of Staff, James Rybicki, 

presented him with two options being considered, one sentence urged by McCabe 

and his staff would respond narrowly, the other would volunteer the fact of 

McCabe’s recusal. Comey told us he did not recall the details of his participation in 

the decision on how to answer, but he said he recalled seeing the proposed 

language and hearing about an internal conflict that McCabe did not want the FBI to 

volunteer that he had recused from the Clinton email investigation. Comey told us 

that although he does not recall how he responded to the issue as it was presented 

to him, he assumes he would have agreed to the final language so long as it was 

“technically accurate I’m okay with answering it narrowly.” Rybicki told us he had a 

vague recollection of the Grassley letter, but could not recall any discussions 

regarding whether to disclose McCabe’s November 1 recusal to Congress or whether 

the issue was presented to Comey.

The OCA AAD told us he did not specifically recall who made the decision not 

to disclose McCabe’s recusal, but that he believes McCabe likely made the decision. 

However, the OCA AAD said he did not remember having a conversation with 

McCabe about disclosing his recusal in the December 14 letter or providing him a 

draft with the proffered recusal language in it.

V. OIG Analysis

A. Recusal Issues

In this section we analyze whether McCabe should have been recused from 

the Clinton investigations prior to November 1, 2016 and whether he adhered to 

the terms of his recusal once he was recused.

1. Summary of Findings

We found that McCabe was not required to recuse from the Clinton-related 

investigations under section 502(a) or any of the other relevant authorities. We 

also determined that, at the time McCabe became Deputy Director and thus had 

authority over Clinton-related investigations, no one in the FBI considered the 

question of whether Dr. McCabe’s campaign raised recusal concerns as to Clintonrelated investigation. This issue was not considered until after publication of the 

October 23 WSJ article and led to McCabe recusing himself from Clinton-related 

investigations on November 1, 2016. We found that McCabe did not fully comply 
457

with his November 1 recusal in a few instances related to the Clinton Foundation 

investigation as detailed below.

We found that FBI ethics officials and attorneys did not fully appreciate the 

potential significant implications to McCabe and the FBI from campaign donations to 

Dr. McCabe’s campaign. The FBI did not implement any review of campaign 

donations to assess potential conflicts or appearance issues that could arise from 

the donations. On this issue, we believe McCabe did what he was supposed to do 

by notifying those responsible in the FBI for ethics issues and seeking their 

guidance. Had the FBI put in place a system for reviewing campaign donations to 

Dr. McCabe, which were public under Virginia law, the sizable donations from 

McAuliffe’s PAC and the Virginia Democratic Party may have triggered prior 

consideration of the very appearance concerns raised in the October 23 WSJ article.

2. Recusal from Clinton-Related Investigations

We agree with FBI chief ethics officer Kelley and found that the relevant 

authorities did not require McCabe to recuse himself from Clinton-related 

investigations. With regard to the financial conflicts provisions in Sections 208 and 

502(a), there is no evidence of any financial or business ties between the McCabes 

and the Clintons or their Foundation. Further, there is no evidence that Hillary 

Clinton provided political or financial support to Dr. McCabe’s 2015 senate 

campaign. The fact that McAuliffe supported Dr. McCabe’s campaign, and was a 

known associate of Hillary Clinton, did not create any connection between the 

Clinton email investigation and Dr. McCabe’s financial interests. Indeed, by the 

time McCabe became Deputy Director and assumed supervisory responsibilities for 

any Clinton-related matters, Dr. McCabe had already lost her election, and no 

developments in the Clinton-related matters could have any plausible impact on Dr. 

McCabe’s financial interests, let alone a direct and predictable one as required 

under Sections 208 or 502(a).

In addition, because neither McCabe nor Dr. McCabe had a political or 

personal relationship with Clinton, McCabe was not obligated to recuse under 28 

C.F.R. § 45.2. As discussed above, “political relationship” under section 45.2 is 

defined to mean “a close identification with an elected official, a candidate (whether 

or not successful) for elective, public office, a political party, or a campaign 

organization, arising from service as a principal adviser thereto or a principal official 

thereof.” “Personal relationship” is defined as a “close and substantial connection 

of the type normally viewed as likely to induce partiality.” Neither McCabe nor Dr. 

McCabe, who had never even met Clinton, served as a “principal adviser” to Clinton 

or had a “close and substantial connection” to Clinton sufficient to meet the 

definitions of political and personal relationships in section 45.2.

Although McCabe was not required by law or regulation to recuse from the 

Clinton-related investigations, he recused from these investigations on November 1, 

2016, at the urging of Director Comey, who told us that he did not learn about 

McAuliffe’s financial support of Dr. McCabe’s candidacy until it was revealed in the 

October 23 WSJ article. Voluntary recusal is always permissible with the approval 
458

of a supervisor or ethics official, even where the elements in section 502(a) are not 

present.

We did not find fault with McCabe for not considering, prior to the October 23 

WSJ article, whether to recuse himself under the “other circumstances” provision of 

section 502(a)(2) or the “appearance” provision of section 101(b)(14) of the 

Standards of Ethical Conduct.243 However, we were troubled by the fact that the 

FBI ethics officials and attorneys did not fully appreciate the potential significant 

implications to McCabe and the FBI from campaign contributions to Dr. McCabe’s 

campaign and did not implement any review of those campaign donations. Thus, 

while the same factual circumstances that led to McCabe’s recusal on November 1, 

2016 were present at the time McCabe became Deputy Director on February 1, 

2016, the FBI ethics officials, McCabe, and Comey only learned of them as a result 

of the October 23 WSJ article. Had the FBI put in place a mechanism to review the 

campaign’s donation information, it would have been in a position to consider these 

issues earlier.

We believe McCabe did what he was supposed to do by notifying those 

responsible in the FBI for ethics issues and seeking their guidance. Thereafter, he 

was entitled to rely on those ethics officials to identify any ethics issues that were 

implicated by Dr. McCabe’s candidacy. 

Campaign donations to a spouse’s campaign present complicated questions 

under section 502(a), as well as under the financial conflict of interest statute. 

They also may present significant appearance issues under section 502(a)(2). The 

fact that the FBI did not apparently recognize the issues, and the potential 

importance of them, became evident when the October 23 WSJ article was 

published. Under Virginia law, the identity of contributors and their donation 

amounts was available to the public. Had the FBI reviewed the campaign donations 

to Dr. McCabe, they would have observed the $675,288 from McAuliffe’s PAC and 

the Virginia Democratic Party, which may have resulted in earlier consideration of 

the very appearance concerns raised in the October 23 WSJ article. The predictable 

result of the WSJ article triggered the October 2016 controversy, which led to 

Comey’s decision to ask McCabe to recuse himself from Clinton-related 

investigations.

We further determined that the FBI’s decision to keep McCabe’s recusal from 

Clinton matters a secret made no sense. The apparent purpose of that recusal was 

to address allegations concerning the propriety of McCabe’s continued participation 

in the Clinton-related investigations, which would be used to undercut the FBI’s 

credibility. This purpose is generally accomplished by informing the public that 

McCabe was recused. However, the FBI did not publicize McCabe’s recusal. As a 

related matter, we do not believe that the FBI acted wisely in deciding not to reveal 

McCabe’s recusal to Senator Grassley in response to a question to which this fact 

 

243

 As noted above, McCabe told us that neither he nor his wife attended the June 2015 

fundraiser in Virginia and that he was unaware that the Clintons or anyone on their behalf ever 

contributed to Dr. McCabe’s campaign. He said neither he nor his wife have ever met the Clintons.
459

was reasonably responsive. Again, the recusal decision served no function in 

protecting the FBI’s reputation if it was kept secret.

We considered whether McCabe violated his voluntary recusal from Clintonrelated matters after November 1. Recusal “is accomplished by not participating in 

the matter.” 5 C.F.R. § 2635.502(e). Exposure to case related information by a 

recused employee when attending a meeting or briefing, including receiving 

information about news articles related to the recused matter, is a form of 

participation that must be avoided. We found no evidence that McCabe continued 

to supervise investigative decisions in the Clinton-related matters after that day. 

We did find that McCabe, prompted by a follow-up WSJ article of November 3, 

2016, made inquiries about the steps the FBI was taking to address media leaks 

relating to the Clinton Foundation and exhorting managers to stop the leaking. 

McCabe’s conduct in inquiring about media leaks appears to have been consistent 

with instructions that Comey told us he gave McCabe about taking action on media 

leaks in the Clinton Foundation investigation. However, McCabe’s conduct was not 

fully consistent with his recusal, as the discussion of the Clinton Foundation 

investigation in the November 3 WSJ article was the very basis for his call and 

admonitions to Sweeney, the NY ADIC. McCabe told us he did not believe his

recusal from the Clinton Foundation investigation encompassed his general 

responsibilities to address FBI leaks. But McCabe’s November 1 recusal email 

contained one exception, which allowed him to continue to respond to 

Congressional requests for information, and it did not carve out an exception 

allowing him to continue addressing the leaks about the Clinton Foundation 

investigation.

Similarly, McCabe encroached on his recusal obligations when he forwarded 

the November 3 WSJ article to OPA chief Kortan and asked why he (McCabe) kept 

seeing such articles without prior notice from OPA. While McCabe told us that his 

email to Kortan was intended to express a generalized frustration with lack of prior 

notice by OPA, McCabe acknowledged that he should not have asked Kortan to keep 

him up to speed on matters he was recused from. McCabe also said that may have 

been the very reason Kortan did not bring the November 3 WSJ article to his 

attention.244

 

244

 In March 2017, news accounts reported allegations that McCabe failed to disclose in his 

Public Financial Disclosure Report (OGE Form 278e) for 2016, the amount of salary his wife received 

from her employer and the campaign donations she received in 2015. However, such disclosures are 

not required by OGE Form 278e. First, the OGE regulation addressing the financial disclosure report 

expressly states that the report does not need to disclose the amount of the spouse’s income. See 5 

C.F.R. § 2634.309(1). Second, according to the OGE regulations, while campaign funds need not be 

included in the financial disclosure report “if the individual has authority to exercise control over the 

fund's assets for personal use rather than campaign or political purposes, that portion of the fund over 

which such authority exists must be reported.” 5 C.F.R. § 2634.311(a). However, the OGE 

regulations do not require reporting gifts that are received by a spouse “totally independent” of the 

spouse’s relationship to the filer. 5 C.F.R. § 2634.309(a)(2). While we did not investigate individual 

donations to Dr. McCabe’s campaign committee, during our review we did not find evidence 

suggesting that Dr. McCabe received campaign donations because of McCabe.
460

B. Conclusion

We agreed with Kelley, the FBI’s chief ethics official, that McCabe was not at 

any time required to recuse from the Clinton-related investigations under the 

relevant authorities. However, following the October 23 WSJ article and discussions 

with Comey, McCabe recused from the Clinton-related investigations on November 

1, 2016. Once McCabe recused himself, he was required to cease participation in 

those matters. Voluntary recusal is always permissible with the approval of a 

supervisor or ethics official, even where the elements in section 502(a) are not 

present. We found that McCabe did not fully comply with his recusal in a few 

instances related to the Clinton Foundation investigation.

We also found that the FBI ethics officials and attorneys did not fully 

appreciate the potential significant implications to McCabe and the FBI from 

campaign contributions to Dr. McCabe’s campaign and did not implement any 

review of those campaign donations. We therefore recommend that ethics officials 

consider implementing a review of campaign donations when Department 

employees or their spouses run for public office. 
461

CHAPTER FOURTEEN:

WHETHER FORMER ASSISTANT ATTORNEY GENERAL 

PETER J. KADZIK SHOULD HAVE RECUSED FROM CERTAIN 

MATTERS

I. Introduction

This chapter addresses allegations that former Department of Justice 

(Department or DOJ) Assistant Attorney General (AAG) for the Office of Legislative 

Affairs (OLA) Peter J. Kadzik improperly disclosed non-public information to the 

Clinton campaign and/or should have been recused from participating in certain 

matters.

The allegations regarding Kadzik stem from the public release of certain 

emails of John D. Podesta, Jr., the 2016 chairman of the Hillary Clinton presidential 

campaign and longtime friend of Kadzik. Beginning in October 2016, Wikileaks 

released Podesta emails, including emails between Kadzik and Podesta. Among the 

emails released by WikiLeaks was a May 19, 2015 email from Kadzik to Podesta 

with the subject line “Heads up” and which included information concerning a 

Department Freedom of Information Act (FOIA) litigation and a congressional 

oversight hearing. Shortly before that email, Kadzik had made efforts to assist his 

son in obtaining a position with the 2016 Clinton campaign.

On or about November 2, 2016, Department leadership determined that 

Kadzik’s May 19, 2015 “Heads up” email to the chairman of the Clinton campaign 

created an appearance of a conflict of interest and required Kadzik to recuse 

himself from Clinton-related matters. The Department’s Office of Professional 

Responsibility (OPR) subsequently conducted an inquiry and determined that Kadzik 

did not disclose privileged or confidential Department information in the email to 

Podesta.

The OIG’s investigation included reviewing investigative materials, 

documents, and emails from several DOJ components including OLA, OPR, and the 

Civil Division. The OIG also interviewed numerous witnesses, including Kadzik, 

then Principal Assistant Deputy Attorney General (PADAG) Matt Axelrod, Associate 

Deputy Attorney General Scott Schools, and the current and former Departmental 

Ethics Directors. Two relevant witnesses who worked in OLA under Kadzik, but are 

no longer with the Department, declined our request for an interview or were 

unable to schedule an interview.245

As detailed below, we found that Kadzik demonstrated poor judgment by 

failing to recuse himself under Section 502(a)(2) of the Standards of Ethical 

Conduct prior to November 2, 2016. First, Kadzik did not recognize the appearance 

of a conflict that he himself had created when he initiated an effort to obtain 

 

245

 The Inspector General Act of 1978, as amended, does not provide the OIG with the 

authority to compel non-Department employees to participate in interviews.
462

employment for his son with the Clinton campaign while he was participating in 

senior staff meetings where Clinton-related matters were discussed and signing 

letters to Congress regarding Clinton-related matters on behalf of the Department. 

Second, Kadzik created an appearance of a conflict when he sent Podesta the 

“Heads up” email that included government information about the FOIA litigation in 

an effort to be helpful to the Clinton campaign without knowing whether the 

information had yet been made public. His willingness to do so raised a reasonable 

question about his ability to act impartially on Clinton-related matters in connection 

with his official duties.

Additionally, although Department leadership ultimately decided to recuse 

Kadzik from Clinton-related matters upon learning of Kadzik’s “Heads up” email to 

Podesta, Kadzik subsequently forwarded several emails communicating information 

related to Clinton-related matters within the Department and indicated his intent to 

speak with staff about those matters. We therefore concluded that Kadzik 

exercised poor judgment by failing to strictly adhere to his recusal.

Lastly, because the government information in the “Heads up” email had in 

fact been released publically, we did not find that Kadzik released non-public 

information or misused his official position.

II. Timeline of Key Events

Jun 17, 2014 Kadzik is confirmed as AAG for OLA.

Jan 25, 2015 FOIA litigation is initiated seeking the release of former 

Secretary of State Clinton’s emails.

Mar 2, 2015 The New York Times reports that Clinton exclusively used 

personal email to conduct government business while Secretary 

of State.

Apr 12, 2015 Clinton announces candidacy for President of the United States. 

John Podesta serves as her campaign chairman; Brian Fallon, 

former DOJ Office of Public Affairs Director, serves as her 

campaign spokesman; and Jennifer Palmieri serves as her 

Director of Communications.

Apr 23, 2015 Kadzik emails Fallon asking for a job for his son with the Clinton 

campaign.

Apr 30, 2015 Fallon emails Kadzik asking for his son’s resume and stating that 

Palmieri would be reviewing resumes over the weekend. Kadzik 

replies, sending his son’s resume and noting that Kadzik’s wife 

and Palmieri went to college together.

May 5, 2015 Kadzik’s son emails Podesta his resume and asks for a job with 

the Clinton campaign. Podesta forwards the email to Palmieri, 
463

who replies that Kadzik’s wife had contacted her and that she 

told Kadzik’s wife that there were currently no openings with the 

campaign but positions might become available in July. (Email 

released by WikiLeaks).

May 18, 2015 Department files a proposed schedule for the release of the 

Clinton emails with the court in the FOIA litigation.

Politico reports on the Department FOIA filing and proposed

schedule for the release of the Clinton emails.

May 19, 2015 Kadzik sends Podesta the “Heads up” email about the FOIA filing 

and proposed schedule for the release of the Clinton emails, and 

about a congressional oversight hearing, which could include 

questions about the Clinton emails. (Email released by 

WikiLeaks).

Civil Division Chief testifies at the congressional oversight 

hearing.

Jul 10, 2015 FBI opens the Clinton email investigation.

Jan 2016 FBI opens Clinton Foundation investigation.

Nov 1, 2016 WikiLeaks releases the May 5 email chain that begins with 

Kadzik’s son asking Podesta for a job with the Clinton campaign.

Nov 2, 2016 WikiLeaks releases Kadzik’s May 19 “Heads up” email to 

Podesta.

~ Nov 2, 2016 PADAG Axelrod tells Kadzik to recuse himself from Clintonrelated matters.

Nov 8, 2016 Presidential Election

Dec 2016 OPR conducts an inquiry and finds that Kadzik did not send 

privileged or confidential information in his May 19, 2015 

“Heads up” email to Podesta.

Jan 19, 2017 Kadzik’s last day with the Department.

III. Relevant Standards 

In this section we identify the regulations from the Standards of Ethical 

Conduct for Employees of the Executive Branch Standards of Ethical Conduct), 5 

C.F.R. Part 2635, relevant to our analysis.
464

A. Personal and Business Relationships Creating an Appearance of 

a Conflict 5 C.F.R. § 2635.502

Personal and Business Relationships Creating an Appearance of a Conflict 5 

C.F.R. § 2635.502 (Section 502) establishes the analytical framework for 

determining when a federal employee has an appearance of a conflict of interest. 

As discussed in greater detail in Chapter Thirteen of this report, Section 502 

requires an employee to consider the appearance of his participation in a particular 

matter involving specific parties (1) that is likely to have a direct and predictable 

effect on the financial interest of a household member or (2) if the employee has a 

covered relationship with someone who is a party or represents a party to the 

matter. Section 502 also includes catchall provision which may apply to “other 

circumstances” that would lead a reasonable person to question an employee’s 

impartiality in a matter.

A recused employee is prohibited from participating in the matter unless 

authorized by the agency designee based on a determination that the Government’s 

interest “in the employee’s participation outweighs the concern that a reasonable 

person may question the integrity of the agency’s programs and operations.” 5 

C.F.R. § 2635.502(d). According to OGE, a proper recusal requires “that an 

employee avoid any official involvement in a covered matter.” OGE 99 x 8 at 2.

B. Use of Non-public Information 5 C.F.R. § 2635.703

Section 703 of the Standards of Ethical Conduct, 5 C.F.R. § 2635.703, states: 

“An employee shall not...allow the improper use of nonpublic information to further 

his own private interest or that of another, whether through advice or 

recommendation, or by knowing unauthorized disclosure.”

C. Use of Public Office for Private Gain 5 C.F.R. § 2635.702

Section 702 of the Standards of Ethical Conduct, 5 C.F.R. § 2635.702, states: 

“An employee shall not use his public office...for the private gain of friends, 

relatives, or persons with whom the employee is affiliated in a nongovernmental 

capacity....”

According to commentary to Section 702, “[i]ssues relating to an individual 

employee’s use of public office for private gain tend to arise when the employee’s 

actions benefit those with whom the employee has a relationship outside the 

office...”. 57 Fed. Reg. 35030 (Aug. 7, 1992).

IV. Factual Findings

A. Background

1. Peter J. Kadzik

Peter J. Kadzik was confirmed as the Assistant Attorney General (AAG) for 

the Office of Legislative Affairs (OLA) on June 17, 2014, and served in the position 
465

until January 19, 2017. As OLA AAG, Kadzik reported to the Deputy Attorney 

General. Kadzik had re-joined the Department as a Deputy Assistant Attorney 

General in OLA in 2013 after several decades in private practice. Early in his legal 

career, Kadzik served as an Assistant United States Attorney in the United States 

Attorney’s Office for the District of Columbia.

Kadzik is married to “LM.” LM previously served as a political appointee in 

former-President Bill Clinton’s administration. “RS” is Kadzik’s child from a prior 

marriage, who was 24 years old at the time of these events.246

2. John D. Podesta, Jr.

John D. Podesta, Jr. is an attorney who served as chairman of the 2016 

Clinton presidential campaign. During his career, Podesta also served in various 

high-level positions in both the Bill Clinton and Barack Obama administrations, 

including as White House Chief of Staff to Bill Clinton and as Counselor to Obama.

Kadzik and Podesta have a long standing personal and professional 

relationship which, during the Bill Clinton administration, included Kadzik serving as 

Podesta’s lawyer in 1998 during the Independent Counsel investigation. Kadzik’s 

relationship with Podesta was known at the time of and raised during his 

confirmation for the OLA AAG position.

Kadzik told the OIG that neither he nor his wife had any business,

contractual, or financial relationship with Podesta or the Clinton campaign while he 

served as OLA AAG. He said that he did not serve as an officer, director, trustee, 

general partner, agent, attorney, consultant, contractor, or employee of Podesta, 

Clinton, or the Clinton campaign. Kadzik said that neither he nor Podesta had 

performed any legal work for the other in the past five years.

3. Office of Legislative Affairs

The Office of Legislative Affairs (OLA) is responsible for managing the 

Department’s relationship with Congress and advancing its interests on Capitol Hill. 

Among its responsibilities, OLA prepares nominees for confirmation hearings and 

Department witnesses for congressional hearings; responds to congressional 

inquiries and oversight requests; advises and assists Department leadership on a 

variety of congressional matters; and advocates for the Department’s legislative 

priorities. When answering congressional inquiries and preparing nominees and 

employees for hearings, OLA routinely coordinates with the relevant DOJ 

investigative, litigation, and administrative components.

As OLA AAG, Kadzik reviewed and signed letters on behalf of the Department 

responding to Congressional inquiries, prepared the highest level nominees and 

witnesses for congressional testimony, and represented OLA at the daily senior staff 

 

246

 We have anonymized Kadzik’s wife and son by giving them initials as pseudonyms. We 

refer to Kadzik’s wife as “LM” and his son as “RS.”
466

meetings. Senior staff meetings were generally attended by the Attorney General 

(AG) and members of her staff, the Deputy Attorney General (DAG) and her 

Principal Assistant Deputy Attorney General (PADAG), as well as the Directors of 

OLA and the Office of Public Affairs (OPA).247 At the senior staff meeting, among 

other things, attendees discussed sensitive information regarding Department cases 

and investigations and coordinated matters and information that were expected to 

become public or to be the source of public commentary and questions.

Kadzik told the OIG that his role was that of the Department’s liaison with 

Congress and that as such, he was “not involved” in Department investigations. He 

stated that, “[t]o the extent that I corresponded with Congress, it was based on 

information provided to my office by the relevant component within the 

Department. So I didn't participate in any investigations.”

Department cases and investigations are often the subject of Congressional 

inquiries. As discussed below, OLA received numerous congressional inquiries 

related to the Clinton matters.

4. Ethics Training and Obligations

All Department employees are responsible for complying with Department 

policies as well as the Standards of Ethical Conduct for Employees of the Executive 

Branch, codified in 5 C.F.R. Part 2635, which include rules and regulations 

governing conflicts of interest, use of nonpublic information, and misuse of position. 

The Department provides training and resources to ensure all employees are aware 

of their ethical responsibilities and are able to obtain ethics advice as specific 

questions and situations arise. The ethics program includes annual mandatory 

ethics training, and a Deputy Designated Agency Ethics Official (DDAEO) in each 

Department component, among other things. A designated DDAEO works within 

OLA.

Kadzik acknowledged participating in the Department’s annual ethics 

training. He also acknowledged that OLA employees are subject to the same ethics 

rules and regulations as all other Departmental employees even though OLA 

employees are not assigned to investigative or litigation teams.

5. Kadzik’s Recusals

As a presidential appointee, Kadzik was required to enter an ethics 

agreement indicating that he understood and would comply with the conflict of 

interest laws and regulations and submit the financial disclosure form required by 

the provisions of the Ethics in Government Act of 1978.248 After he was confirmed, 

 

247

 The Office of Public Affairs is the Department’s principal point of contact for the news 

media.

248

 The Ethics Agreement was signed by Kadzik and Lee Lofthus, the AAG for Administration 

and the Department’s Designated Ethics Official, and sent to the Director of Office of Government 

Ethics (OGE).
467

Kadzik also sent a 2014 recusal memorandum to various Department components 

(including OLA) listing the matters from which he was recused and identifying the 

OLA DDAEO as the individual who would evaluate his need to recuse himself (serve 

as his “gatekeeper”) and the individuals who would serve in his capacity as Acting 

OLA AAG on those matters.249

Kadzik’s 2014 recusal memorandum stated that for matters from which he 

had recused, all communications should be with the Acting OLA AAG and “in no 

event should there be any discussions with [Kadzik].” Email shows that after the 

initial 2014 memorandum, Kadzik emailed the OLA DDAEO when he recused himself 

from additional matters involving clients of his former law firm, clients of his wife’s 

business, and personal matters. Kadzik told the OIG that he likely orally informed 

the OLA DDAEO, his deputies, and chief of staff when he was recused from Clintonrelated matters on or about November 2, 2016, as discussed below.

B. Events Preceding the “Heads Up” Email from Kadzik to Podesta 

(March through May 2015)

This section focuses on the events in the spring of 2015 leading up to the 

“Heads up” email from Kadzik to Podesta, which included information about the 

FOIA litigation and a congressional oversight hearing.

1. OLA Clinton-Related Work

On March 2, 2015, the New York Times reported that Clinton exclusively used 

a personal email account to conduct government business while serving as 

Secretary of State. The same day, the Department filed its initial response 

(Answer) in a FOIA litigation seeking Clinton’s email and other documents during 

her tenure as Secretary of State.250

At the time, both Lynch and Yates were awaiting confirmation for the 

positions of Attorney General and Deputy Attorney General, respectively.251 In 

order to prepare Lynch and Yates to answer questions related to the former 

Secretary of State’s exclusive use of a personal email account (and the applicable 

federal laws and regulations), Kadzik’s principal deputy drafted the briefing paper 

on the topic on March 18, 2015, and Kadzik added edits on March 21, 2015, after 

the document was reviewed by personnel in the Office of the Attorney General 

(OAG), Office of the Deputy Attorney General (ODAG), and the OPA.252 The briefing 

 

249

 Emails show that Kadzik coordinated his recusal memorandum with OLA’s DDAEO. The 

individual who served as OLA’s DDAEO under Kadzik has since retired from the Department and 

declined our requests for an interview.

250 The FOIA litigation discussed in this report is Leopold v. U.S. Dep’t of State, 15-cv-123 

(D.D.C.).

251

 Congress confirmed Attorney General Lynch on April 23, 2015, and Deputy Attorney 

General Yates on May 13, 2015.

252

 Despite the OIG’s repeated attempts, Kadzik’s principal deputy in OLA, who is no longer 

with the Department, was unable to accommodate the OIG’s request for an interview.
468

paper contained potential questions and the Department’s vetted answers on the 

topic as approved by personnel in OLA, the Civil Division, and the Office of the 

Attorney General. Briefing papers are used to help prepare nominees and 

employees to speak publicly on a Department issue or concern.253 Emails show that 

OLA (in conjunction with other components) scheduled “moots” or preparatory 

sessions with Lynch and Yates to prepare them to answer questions related to the 

State Department emails, among other issues, in March, April, and May 2015.

OLA also responded to congressional inquiries related to Clinton’s use of 

email during her tenure as Secretary of State. Emails show that Kadzik coordinated 

with the Office of the Attorney General and the White House with respect to 

nominee-Lynch’s response to an April 2, 2015 congressional inquiry asking whether 

Lynch would commit to an investigation into Clinton’s use of an email server and 

appoint a special counsel. Kadzik also replied on May 21, 2015, on behalf of the 

Attorney General, to an April 22, 2015 Congressional inquiry into whether Clinton 

was lobbied while Secretary of State by an unregistered agent of a foreign power 

associated with the Clinton Foundation.

In addition to preparing nominees Lynch and Yates, OLA participated in the 

preparation of the Director of the Office of Information Policy (OIP) and the Chief of 

the Civil Division to answer questions related to the State Department emails at 

their respective hearings. The OIP Director testified on a panel addressing open 

government at a Senate Judiciary Committee hearing on May 6, 2015.254 After the 

hearing, the OLA employee who accompanied the OIP Director emailed Kadzik that 

the majority of questions were directed to the panelist from the State Department 

regarding Clinton’s emails.

The Civil Division Chief testified on a panel on general oversight at a House 

Judiciary Committee hearing on May 19, 2015.255 Although prepared to answer, the 

Civil Division Chief was not asked questions related to the State Department emails 

at the hearing. After the hearing, Kadzik sent an email complementing the several 

DOJ division leaders who testified.

On May 18, the evening prior to the Civil Division Chief’s testimony before 

the House Judiciary Committee, the Department filed a proposed schedule for the 

production of former Secretary of State Clinton’s emails as required by the court in 

the FOIA litigation. According to the proposed schedule, the State Department 

emails would be released in January 2016.

 

253

 At the time, both Lynch and Yates were U.S. Attorneys and therefore they could be 

provided with Department information as part of their briefing materials.

254

 The hearing was titled “Ensuring an Informed Citizenry: Examining the Administration’s 

Efforts to Improve Open Government.”

255

 The hearing was before the Judiciary Subcommittee on Regulatory Reform, Commercial 

and Antitrust Law and titled “Ongoing Oversight: Monitoring the Activities of the Justice Department’s 

Civil, Tax and Environment and Natural Resources Divisions and the U.S. Trustee Program.”
469

2. 2016 Clinton Campaign Staffed and Announced

In early 2015, Clinton was preparing to announce her candidacy for 

President. Prior to her announcement, in February 2015, Podesta left his position in 

the White House as Counselor to the President to become Chief of Staff for the 

Clinton campaign. In mid-March 2015, Brian Fallon announced that he would be 

leaving his position as the Director of OPA at the end of the month to become the 

Clinton campaign’s national spokesperson. Clinton formally announced her 

candidacy for President on April 12, 2015.

Kadzik told the OIG that neither he nor his wife sought employment with the 

campaign or discussed the prospect of employment with the campaign with Podesta 

or other campaign members.

3. Kadzik Assists Son’s Job Search

Also in early 2015, Kadzik’s son “RS” was looking for employment 

opportunities and sought a job with the Clinton campaign. Emails show that 

Kadzik’s wife forwarded Kadzik her edited version of RS’s resume on March 22, 

2015, and that RS sent his resume to Kadzik and his wife for their “final review” on 

April 1, 2015.

According to RS’s resume, he lived in New York City and had worked for 

Kadzik’s wife’s public affairs firm since December 2014 (approximately 3 months). 

Emails indicate that RS was paid for hourly work performed from January to March 

2015.

Kadzik told the OIG that he did not support his son financially other than 

paying for his cell phone. He said that he did not declare his son a dependent on 

his 2015 tax returns and provided a redacted copy of his 2015 return to the OIG.

On April 23, 2015, shortly after he left the Department and on the day Lynch 

was confirmed as Attorney General, Fallon sent an email from his Clinton campaign 

address to Kadzik’s Department address that included a single word on the subject 

line “Congrats!” Kadzik replied:

Thanks! Hope all is well with you, [Fallon’s wife], the kids, and the 

candidate. Let me know if you or someone else needs a great assistant; my 

25 year old son is ready for [Hillary Rodham Clinton].

One week later, on April 30, 2015, Fallon replied to Kadzik:

Can you send me his resume? Unfortunately I do not get an assistant but 

Palmieri is hiring one and will be looking over resumes this weekend.

Within the hour, Kadzik emailed RS asking for his current resume and then 

forwarded RS’s resume to Fallon stating “Here you go. Again, thanks. FYI, 

[Palmieri] and my wife [LM], went to college together.”
470

Kadzik told the OIG that he did not recall sending Fallon the emails 

requesting a job for his son. Kadzik also said that his son was neither hired nor 

offered a job by the Clinton campaign and that he found employment with a digital 

education company in New York City in August 2015.

4. Kadzik’s Son Separately Seeks Employment with the 

Clinton Campaign

According to an email released by Wikileaks, on May 5, 2015, one week after 

Kadzik emailed Fallon his son’s resume, RS emailed his resume directly to 

Podesta.256 In his email to Podesta, RS said he was sending Podesta his resume at 

the suggestion of Kadzik and his wife, LM. Podesta then forwarded RS’s email to at 

least two other campaign workers, one of whom was Palmieri, the campaign’s 

Director of Communications. Podesta’s email stated “Do you need any help in 

[headquarters] or states? [Kadzik] and [LM’s] son.” Palmieri replied:

Heard from [LM], too. Told her we did not have openings for rest of quarter 

but can open back up in July.

Kadzik told the OIG that he did not recall when RS applied for a position with 

the Clinton campaign, whether he and his wife suggested that RS send his resume 

to Podesta, or whether he spoke to his wife about any discussions with Palmieri on 

RS’s behalf. Kadzik also said that he did not know whether his wife or son ever 

followed up with Podesta, Fallon, Palmieri, or anyone else associated with the 

campaign for a job for RS, but that he (Kadzik) did not.

5. Kadzik Gives Podesta a “Heads Up”

On May 19, 2015, Kadzik sent from his personal email account the “Heads 

up” email to Podesta. There is no timestamp on the email. Kadzik wrote:

 

256

 This email was published by WikiLeaks on November 1, 2016. WikiLeaks obtained emails 

from Podesta’s personal email account and released those emails online in the weeks leading up to the 

November 2016 election. Some of these emails, including this email from RS to Podesta, were not 

sent to or from a DOJ email address, and as such we were not able to authenticate them. Where the 

only source for an email was the WikiLeaks publication, we have identified the email as such.

“In January of [2017], our Intelligence Community determined that Russian military 

intelligence—the GRU—had used WikiLeaks to release data of US victims that the GRU had obtained 

through cyber operations[.]” Director Pompeo Delivers Remarks at CSIS, April 13, 2017, available at 

https://www.cia.gov/news-information/speeches-testimony/2017-speeches-testimony/pompeodelivers-remarks-at-csis.html (accessed April 25, 2018). The OIG is cognizant of the fact that the 

release of emails discussed in this chapter may be part of this cyber operation and our review of this 

material is in no way intended to validate or justify WikiLeaks’ data releases.

We note that the fact that the email became public after Podesta’s email was allegedly hacked 

and then released by WikiLeaks did not excuse or minimize Kadzik’s conduct. While Department 

leadership did not publically acknowledge the authenticity of the illegally hacked emails, Axelrod 

confronted Kadzik (who then authenticated the email), recognized the appearance of the conflict and 

its impact on the integrity of the Department, and ensured Kadzik’s recusal.
471

There is a [House Judiciary Committee] oversight hearing today where the 

head of our Civil Division will testify. Likely to get questions on State 

Department emails. Another filing in the FOIA case went in last night or will 

file in this am that indicates it will be awhile (2016) before the State 

Department posts the [Clinton] emails.257

Kadzik told the OIG that he did not recall, but does not deny sending the 

“Heads up” email to Podesta and that he “apparently” sent the email to Podesta to 

identify two important events of the day.

Kadzik told the OIG that no one in the Clinton campaign asked him for 

information regarding the FOIA litigation and that he did not send the email to try 

to help his son get a job with the campaign. Kadzik also said he did not send any 

other “heads up” type emails or otherwise communicate about Department matters 

to Podesta.258

Kadzik also said he did not speak with Podesta about Clinton after the 

Department opened an investigation into the Clinton email server in July 2015. 

Kadzik told the OIG that he distinguished speaking to Podesta about the FOIA 

litigation and the Clinton email investigation. “Whether [the email server 

investigation] was criminal or a security review, [], it was now the Department 

doing something as a Department, rather than the Department defending FOIA 

litigation, which was all public.”

C. Kadzik’s Subsequent OLA Work Related to or Referencing 

Clinton

In the time between spring 2015 and the day in November 2016 when 

Kadzik was recused from Clinton-related matters, the FOIA litigation continued and 

the FBI opened an investigation into Clinton’s use of a private email server and an 

investigation related to the Clinton Foundation. These cases generated Clintonrelated inquiries from Congress to which Kadzik responded both in testimony and in 

letters.

OLA continually responded to congressional inquiries and prepared 

Department employees to respond to congressional inquiries related to Clinton’s 

email server and the Department’s investigation. The inquiries corresponded to 

various aspects of the Department’s actions and investigative choices including: 

 

257

 Wikileaks published this email on November 2, 2016. We have no independent source for 

this email. Kadzik told us he did not recall it, but did not allege that it was inauthentic or inaccurate. 

Moreover, Kadzik acknowledged its authenticity to Axelrod when the “Heads up” email was released.

258

 Kadzik’s “Heads Up” email was not the only email of this type sent to the Clinton 

campaign. According to emails later released by WikiLeaks, on May 18, 2015, the same evening the 

Department filed its proposed schedule for releasing the emails, an unidentified Department employee 

emailed the FOIA filing to Fallon at Fallon’s personal email address and wrote “This was filed tonight.” 

Fallon forwarded the email to campaign members including Podesta. As noted above, Fallon left the 

Department at the end of March 2015 to join the campaign. Kadzik told the OIG that he had no 

participation in, or knowledge of, the May 18 email to Fallon with the FOIA filing.
472

requests to appoint a special counsel; decisions to grant immunity; potential 

perjury charges; the Lynch/Bill Clinton tarmac conversation; Comey’s July 5, 2016 

and Lynch’s July 6, 2016 announcements regarding the email server investigation 

and declination; congressional access to FBI investigative documents; additional 

FOIA inquiries; and Comey’s October 28 and November 6, 2016 letters to Congress 

regarding the FBI review of additional Clinton related emails.259 OLA also 

coordinated its hearing preparation and congressional responses with the 

appropriate components which, with respect to the Clinton-related matters, 

included, depending on the specific question, the OAG, ODAG, OPA, the Civil 

Division, the National Security Division (NSD), and the FBI. Thus while Kadzik had 

no role in the conduct of the underlying Clinton litigation and investigation, he 

reported on and defended the Department’s actions with respect to its handling of a 

wide variety of Clinton-related matters.

In addition, Kadzik, along with his FBI counterpart (the then Acting Assistant 

Director of the FBI’s Office of Congressional Affairs), and representatives from the 

Department of State and Office of the Director of National Intelligence were called 

to testify before Congress on September 12, 2016, to address congressional access 

to and redactions of FBI investigative material from the email server investigation.

The last letters that Kadzik signed before the 2016 election were sent on 

October 31, 2016, to several senators who had written to the Attorney General and 

FBI Director after receiving the FBI Director’s October 28, 2016 letter announcing 

the review of additional Clinton related emails. Kadzik wrote, in part, “We assure 

you that the Department will continue to work closely with the FBI and together 

dedicate all necessary resources and take appropriate steps as expeditiously as 

possible.”

Kadzik told the OIG that he had no role in the email server investigation and 

that to his memory, in response to a congressional inquiry, met with Department 

attorneys on the investigative team on only one occasion to discuss the terms of 

the immunity agreements.

With respect to letters from Congress, Kadzik approved standardized 

language which OLA used to respond with consistency. For example, when asked 

about the Clinton email investigation, OLA consistently responded: “Any 

investigation related to this referral will be conducted by law enforcement 

professionals and career attorneys in accordance with established Department 

policies and procedures which are designed to ensure the integrity of all ongoing 

investigations” and when asked about a special counsel OLA consistently responded 

by acknowledging the authority and stating that the “authority is rarely exercised.”

Axelrod also told the OIG that Kadzik had “no role” in the email server 

investigation. Axelrod said that the investigative information pertaining to that 

investigation was closely held, not discussed in senior staff meetings, and not 

 

259

 We note that upon receiving a September 2016 congressional inquiry requesting the 

appointment of special counsel, Kadzik specifically requested the latest Department filing in the FOIA 

litigation.
473

discussed with Kadzik. However, Axelrod stated that Kadzik worked “on things

related to [the Clinton email investigation].” Axelrod also said that Kadzik likely 

had more access to information regarding the FOIA litigation for the Clinton emails 

since that was a civil matter in litigation and discussed in senior staff meetings.

D. Response to WikiLeaks Release

The WikiLeaks release of Podesta/Kadzik emails on November 1 and 2, 2016, 

generated inquiries about Kadzik’s conduct from several sources.

Axelrod told us that when WikiLeaks released the “Heads up” email, he 

contacted Kadzik, who authenticated the email and, after searching his emails, 

assured Axelrod that there were no other similar emails (referencing Departmental 

matters) that could be released by WikiLeaks.

The Acting Director of OPA emailed Kadzik on November 2 stating that he 

wanted to speak with Kadzik. The same day the OPA Acting Director informed the 

press that Kadzik’s “Heads up” email contained “public information” that Kadzik 

sent “in his personal capacity” and was not sent “during work hours.” The OPA 

Acting Director told us that he made the statements attributed to him in the press 

and said that while he did not specifically recall the conversation with Kadzik, he did 

not dispute that the information came from Kadzik.260

The then Director of the DOJ Ethics Department told us that she contacted 

the OLA DDAEO about the “Heads up” email and asked whether it contained nonpublic Departmental information. She said the OLA DDAEO assured her that the 

information in the email was public when Kadzik sent the email. The then Ethics 

Director nevertheless expressed concern to us that a Department leader had sent 

an email to a third party without knowing whether the Department-related 

information in the email had been made public.

Also following the disclosure, the Department’s Office of Professional 

Responsibility (OPR) initiated an inquiry into whether Kadzik had disclosed 

privileged or confidential Department information to the Clinton campaign. OPR 

submitted questions for Kadzik’s written response and, in December 2016, closed 

the inquiry after determining that the Kadzik’s “Heads up” email contained only 

public information and personal opinion. Among other things, OPR found that on 

May 18, 2015, the Department filed with the court the document containing the 

proposed schedule for the release of the Clinton emails; the media reported the 

schedule the same evening; and Kadzik sent his “Heads up” email to Podesta on 

May 19, 2015, the following day. OPR concluded that Kadzik’s email did not include 

privileged or confidential information. OPR did not consider Kadzik’s conduct in 

terms of other ethical standards including recusal.

 

260

 The Acting OPA Director said that he spoke to the reporter off the record and should not 

have been quoted because the Department did not want to acknowledge illegally obtained emails.
474

E. Kadzik Is Recused

Axelrod told us that after Wikileaks posted the “Heads up” email, he 

concluded that Kadzik should be recused from all Clinton-related matters. He 

stated the email created an appearance problem because high level DOJ employees 

should not be giving a “heads up” to a campaign and that Kadzik had admitted he 

did not know whether the schedule in the FOIA litigation had been publicly filed at 

the time he sent Podesta the email. Axelrod stated that the recusal was not 

because of Kadzik’s personal relationship with Podesta but because Kadzik sent the 

“Heads up” email. Axelrod said that “it was a feeling that, right, DOJ folks, 

especially like senate confirmed senior leaders, but really anyone in DOJ shouldn’t 

be, you know, it wasn’t good practice to be emailing sort of people involved in sort 

of political campaigns to, right. It’s not our job to give campaigns a head’s up. It’s 

our job to do our work free from politics.”

Axelrod said that because Kadzik was a presidential appointee, Axelrod 

probably discussed the matter with the Deputy Attorney General and possibly the 

Attorney General and Associate Deputy Attorney General. Axelrod said that in 

those discussions, “the decision was made was made [that Kadzik] should...be 

screened off from...things Clinton related.”

Axelrod said that he told Kadzik that he needed to be recused on all Clintonrelated matters and that Kadzik should recuse himself. Axelrod said that Kadzik 

“understood” but was not “wild about” the need to recuse himself. He said that 

Kadzik was not on the email server investigative team or the FOIA litigation team 

but it was an appearance issue and someone else needed to sign the Department’s 

letters to Congress.

Associate Deputy Attorney General (ADAG) Scott Schools told the OIG that 

after the “Heads up” email was posted, Axelrod called him and they agreed that 

Kadzik should be recused from Clinton-related matters because of the appearance 

problem. In a subsequent telephone call, Axelrod informed Schools that Kadzik did 

not agree with, but was willing to abide by, the decision to recuse himself from the 

Clinton-related matters. Axelrod also asked if Kadzik’s recusal needed to be 

documented. Schools said that there was no requirement to document the recusal 

and told the OIG that while the decision to recuse was not difficult, the rationale 

was nuanced and might be over scrutinized if the document was subject to a FOIA 

request.

According to Schools, Kadzik’s principal deputy in OLA later called him to ask 

whether OLA should be informed of Kadzik’s recusal. Schools told her that she 

could inform OLA personnel about Kadzik’s recusal but told the OIG that he did not 

know if she had.261

Kadzik told us Axelrod called him “on or about November 2, 2016” and said 

that “in light of the controversy, I should recuse myself from anything further 

 

261

 As noted above, despite the OIG’s repeated attempts, Kadzik’s principal deputy, who is no 

longer with the Department, was unable to accommodate the OIG’s request for an interview.
475

concerning the Clinton emails.” Kadzik said that since he “had nothing to do with 

the Hillary Clinton email investigation or [FOIA] litigation,” the recusal only meant 

he would not review and sign anymore letters to Congress about the matters.

Kadzik said that he would have informed his OLA deputies, OLA DDAEO, and 

chief of staff of his recused status but did not recall the conversation or who stood 

in his place as Acting OLA AAG for those matters. He said it was likely that it was 

his principal deputy, as she was “the oversight person.”

Axelrod said that Kadzik’s principal deputy took over his responsibilities on 

Clinton-related matters – that she took Kadzik’s place in the discussions related to 

the Clinton email investigation during the week before the election and then 

generally handled the Clinton related matters through the rest of Kadzik’s term as 

OLA AAG, which ended on January 19, 2017.

Kadzik told the OIG that he could not recall how Axelrod defined the scope of 

his recusal but that, as a practical matter, Kadzik understood that he would no 

longer sign letters to Congress on behalf of the Department that were related to the 

Clinton emails and that he was not aware that any letters came in after November 

2, 2016. Kadzik said that he “wasn't participating in anything with respect to 

Hillary Clinton and the emails other than signing letters to Congress.” Kadzik also 

said that despite his recusal, he never had to leave a meeting because the Clinton 

email server investigation was never discussed. However, Axelrod and the OPA 

Acting Director told us that Kadzik was replaced by his principal deputy for a time 

at senior staff meetings after WikiLeaks released the “Heads up” email. Axelrod 

said that the principal deputy replaced Kadzik because the discussions involved 

Clinton-related matters.

Though Kadzik said he told his deputies and the OLA DDAEO that he was 

recused, emails show that Kadzik subsequently sent and received emails about 

Clinton-related matters.

Kadzik forwarded various congressional inquiries about Clinton-related 

matters to ODAG, OAG, OAAG, OLA, and FBI personnel that had also been sent to 

his principal deputy. When we asked why he did not leave the matter for his 

principal deputy to handle, Kadzik said he forwarded the emails to the persons who 

he thought could respond to the inquiries and that action was no different than 

reminding his principal deputy that he was recused.

We also asked Kadzik about two Clinton-related emails forwarded to him by 

his principal deputy. Kadzik’s principal deputy sent one email on November 3, 

2016, with the notation “FYSA” (for your situational awareness) and another on 

November 6, 2016, with the notation “I’ve got it. (Calls throughout today. All the 

right people looped.)” Kadzik said he did not know why his principal deputy sent 

him emails after he was recused, that he had not asked her to keep him informed 

of the matter despite his recused status, and that he did not believe the ”looped in” 

email “[broke] the recusal.” As noted previously, we were unable to ask the 

principal deputy about these emails because she did not make herself available for 

an interview.
476

There is evidence that on two other occasions, Kadzik may have spoken with 

his principal deputy and DDAEO directly about Clinton-related matters. On 

November 4, 2016, Kadzik’s principal deputy forwarded him an email from a Senate 

Judiciary staffer asking whether there would soon be an official update on the 

Weiner laptop email review. Kadzik replied, “Call me later this am.” Kadzik told 

the OIG that he did not recall receiving the email, responding to his principal 

deputy, or whether he ultimately spoke with her. On November 28, 2018, when 

the OLA DDAEO asked Kadzik and his principal deputy about the Mills immunity 

agreements with respect to a FOIA request, Kadzik replied “Will circle back with 

both of you tomorrow.” Kadzik said he asked that they circle back to “find out what 

she was asking about.”

In contrast, emails also show that with respect to other (non-Clinton related 

matters) on which Kadzik was recused, he reminded or informed the persons on the 

email of his recused status.

V. Analysis

We analyze Kadzik’s actions with respect to three regulations from the 

Standards of Ethical Conduct for Employees of the Executive Branch (Standards of 

Ethical Conduct), 5 C.F.R. Part 2635: Personal and business relationships, 5 C.F.R. 

§ 2635.502 (Section 502); Use of non-public information, 5 C.F.R. § 2635.703 

(Section 703); and Use of public office for private gain, 5 C.F.R. § 2635.702 

(Section 702).

A. Whether Kadzik Should Have Been Recused Prior to November 

2 from Clinton-Related Matters under Section 502 of the 

Standards of Ethical Conduct

Section 502 of the Standards of Ethical Conduct, 5 C.F.R. § 2635.502 

establishes the analytical framework for determining when a federal employee has 

an appearance of a conflict of interest that merits recusal. As discussed above, 

Section 502 requires an employee to consider the appearance of his participation in 

a particular matter involving specific parties (1) that is likely to have a direct and 

predictable effect on the financial interest of a household member, or (2) if the 

employee has a covered relationship with someone who is a party or represents a 

party to the matter. Section 502 also includes catchall provision which may apply 

to “other circumstances” that would lead a reasonable person to question an 

employee’s impartiality in a matter.

1. Whether There Was a Particular Matter Involving Specific 

Parties

The threshold issue for a Section 502(a) analysis is whether there is a 

“particular matter involving specific parties” before the Department. A “particular 

matter involving specific parties” denotes a specific proceeding which affects the 

legal rights of the parties such as an investigation or litigation. 5 C.F.R. 

§ 2640.102(l).
477

During Kadzik’s tenure as OLA AAG, the Department defended the 

Department of State in a FOIA litigation filed in January 2015 seeking emails from 

Clinton’s personal server during her tenure as Secretary of State, among other 

things. The Department also initiated the Clinton email investigation in July 2015. 

Both the FOIA litigation and the email server investigation are “particular matters 

involving specific parties,” as each is a discrete litigation or investigation. Clinton 

and others were specific subjects of the Clinton email investigation, and the FOIA 

litigation involved particular plaintiffs and defendants.262 Therefore, we include 

both the FOIA litigation and the email server investigation in our analysis (and for 

the ease of the reader refer to both as “Clinton-related matters.”)

2. Whether Kadzik Should Have Recused Because of his 

Son’s Efforts to Obtain Employment with the Clinton 

Campaign

We next considered whether Kadzik was required to recuse from the Clintonrelated matters because of Kadzik and his son RS’s efforts to obtain employment 

for his son with the Clinton campaign.

Under the “financial interests” provisions of Section 502(a), recusal would be 

required if the Clinton-related matters were likely to have a direct and predictable 

effect on the financial interest of a member of Kadzik’s household. A direct and 

predictable effect requires a causal link between a decision on the matter and the 

effect on the specified financial interest and cannot be attenuated or dependent on 

the occurrence of speculative events. 5 C.F.R. §§ 2635.502(b)(2), 2635.402(b)(1).

Kadzik told the OIG that his son lived in New York City and supported himself 

financially. Kadzik also provided a redacted copy of his 2015 federal tax returns on 

which he did not declare his son as a dependent.

Even if the Clinton-related matters could affect his son’s financial interests, 

RS was not a member of Kadzik’s household. Therefore, we found that RS’s efforts 

to obtain employment with the Clinton campaign did not require Kadzik to recuse 

himself from Clinton-related matters under the financial interest provision of 

Section 502(a).

Under the “covered relationship” provision of Section 502(a), recusal would 

be required if Kadzik had a covered relationship with a party or with someone who 

represents a party to a matter. Section 502 defines “covered relationship” to 

include a “person for whom the employee's...dependent child is, to the employee's 

knowledge,...seeking to serve as an...contractor or employee.” This is the only 

category of “covered relationship” potentially applicable with respect to Kadzik’s 

 

262

 Although Clinton was not a named party to the FOIA litigation, it is possible that she would 

be considered a “party” within the meaning of Section 502 because the litigation centered around her 

use of a private server and sought emails stored on it. OGE does not take a narrow or strictly legal 

view of what it means to be a party under Section 502. OGE letter 01 x 8. As detailed below, we 

were not required to reach this issue. The FOIA litigation indisputably had specific parties, even if 

Clinton was not one of them.
478

son.263 If RS was a dependent child, Kadzik would have had a covered relationship 

with a party to the particular matter since RS was seeking employment with the 

Clinton campaign and Clinton was clearly a party to the Clinton email investigation 

and may have been a party to the FOIA litigation. 5 C.F.R. § 2635.502(b)(1)(iii).

We did not find that RS was a “dependent child.” In April 2015, Kadzik’s son 

was 24 years old.264 Kadzik said that his son was supporting himself financially 

while living in New York City and that Kadzik only covered the cost of his son’s cell 

phone. Kadzik also told the OIG that he did not declare his son as a dependent on 

his 2015 tax returns and provided a redacted copy of his 2015 return to the OIG 

confirming this fact. Thus we found no evidence of a covered relationship based on 

Kadzik and his non-dependent son’s efforts to obtain employment for his son with 

the Clinton campaign.265

The “other circumstances” provision in Section 502 applies when a federal 

employee is concerned that “other circumstances” would cause a reasonable person 

to question his impartiality. As with all Section 502 provisions, the conflict may be 

self-identified by the employee or directed by management. OGE Memorandum 04 

x 5.

Kadzik did not self-identify a potential appearance of a conflict under the 

“other circumstances” provision based on his, his wife’s, and his son’s efforts to get 

his son a job with the Clinton campaign. In April and May 2015, Kadzik, his wife, 

and son reached out to personal acquaintances in the Clinton campaign in an 

attempt to obtain a job for his son RS with the campaign. At the same time, Kadzik 

was participating in senior staff meetings where Clinton-related matters were 

discussed and signing letters to Congress regarding Clinton-related matters on 

behalf of the Department.

We believe that these circumstances would cause a reasonable person to 

question Kadzik’s impartiality in Clinton-related matters during the time RS was 

seeking employment with the Clinton campaign. We therefore concluded that 

under the “other circumstances” provision of Section 502(a)(2), Kadzik should have 

either recused himself from Clinton-related matters beginning in April 2015, when 

he initiated employment solicitations to the Clinton campaign, until RS was no 

longer seeking employment with the campaign, or disclosed these circumstances to 

the appropriate Department ethics officer so that the Department could have 

considered whether Kadzik should be recused.

According to OGE, self-identification under the “other circumstances” 

provision is permissive, but not required, and therefore the failure to recuse under 

 

263

 Although RS was a relative of Kadzik’s with whom he who presumably had a “close 

personal relationship,” this fact did not create a “covered relationship” because RS was not a party to 

the Clinton-related investigations, nor did he represent a party.

264

 Kadzik wrote in the email to Fallon that his son was 25 years old; however, his son would 

not turn 25 until later in the year.

265

 Because RS was not a dependent child, and no other “covered relationship” appears to be 

in issue, we were not required to determine whether Clinton was a “party” to the FOIA litigation.
479

the provision is not an ethics violation. “Employees are encouraged to use the 

process provided by [the “other circumstances” provision], [but] the ‘election not to 

use that process cannot appropriately be considered to be an ethical lapse.’” OGE 

letter 01 x 08 citing OGE letter 94 x 10(2); see also OGE 97 x 8, OGE 95 x 5; OGE 

94 x 10. Instead, according to the former Departmental Ethics Director, the failure 

to self-identify under the “other circumstances” is evidence of an employee’s 

judgment and may reflect on whether the employee has the judgment necessary 

for a particular Department position.

Although Kadzik did not commit an ethics violation by failing to recuse 

himself under Section 502(a)(2), we found that his failure to recognize the 

appearance of a conflict by participating in Clinton-related matters when he, his 

wife, and his son were trying to get his son a job with the Clinton campaign 

demonstrated poor judgment.

3. Whether Kadzik Should Have Recused from ClintonRelated Matters in May 2015 by Reason of Sending the 

“Heads Up” Email to Podesta

According to Kadzik, Axelrod told him he should recuse himself from Clintonrelated matters “on or about” November 2, 2016, after learning that Kadzik had 

sent the “Heads up” email to Podesta on May 19, 2015. Axelrod told us that the 

“Heads up” email to Podesta raised appearance concerns because Kadzik 

communicated with a partisan campaign about Department matters and provided 

information without knowing whether it had yet been made public.266

As noted, Kadzik sent the “Heads up” email in May 2015. He continued to 

participate in senior staff meetings, prepare Department employees for hearings,

and respond to inquiries about Clinton-related matters between May 19 and 

November 2, when Axelrod instructed him to recuse himself. We therefore 

analyzed whether Kadzik should have recused himself under Section 502 in May 

2015 rather than waiting for Axelrod to do it a year and a half later.

We determined that the “Heads up” email did not require Kadzik to recuse 

under the personal or financial interests provision of Section 502(a). Neither 

sending the email nor any other aspect of Kadzik’s relationship with Podesta or the 

 

266

 We also note that long standing Department policies addressing employee participation in 

political activity place greater restrictions on the political activities of presidential appointees than does 

the Hatch Act. The Department’s stated purpose for further restricting the political activities of 

political appointees is to ensure that “there is not an appearance that politics plays any part in the 

Department’s day to day operations.” Among other things, Department policy prohibited Kadzik from 

participating in political activity “in concert” with a political party, partisan group, or candidate for 

partisan political office, even when off duty. We believe that it is a close question whether Kadzik 

violated Department policy by acting “in concert” with the campaign when he sent Podesta the “Heads 

up” email. Even if Kadzik did not violate the letter of the Department’s policy, he certainly intended to 

provide assistance, however small, directly to Podesta, the campaign Chairman, which was 

inconsistent with the stated intent of the policy. See James M. Cole, Deputy Attorney General, U.S. 

Department of Justice, memorandum for All Department of Justice Non-Career Employees, July 14, 

2014, https://www.justice.gov/sites/default/files/jmd/legacy/2014/03/24/pol-activ-dag-noncareeremployees.pdf (accessed June 6, 2018).
480

Clinton campaign gave Kadzik or a member of his household a financial interest 

that would be affected by the outcome of the Clinton-related investigations. We are 

not aware of any evidence that Kadzik or any member of his household had any 

business, contractual, or financial relationship of any kind with Podesta, Clinton, or 

the Clinton campaign, or any other financial interest that would be affected by any 

Clinton-related matters pending in the Department of Justice.

Nor did the facts create a “covered relationship” within the definition in 

Section 502(b)(1). For example, Kadzik did not serve as, or seek to serve as, an 

officer, director, trustee, general partner, agent, attorney, consultant, contractor, or 

employee of Podesta, Clinton, or the Clinton campaign. See 5 C.F.R.

§ 2635.502(b)(1).

We therefore turned to the question of whether Kadzik’s “Heads up” email to 

the Clinton campaign was an “other circumstance” that would raise a question 

about Kadzik’s impartiality with respect to Clinton-related matters within the 

meaning of Section 502(a)(2). As noted above, according to OGE, selfidentification under the “other circumstances” provision is permissive, but not 

required. Therefore, the failure to recuse oneself under the provision may be bad 

judgment, but not an ethics violation.

The “Heads up” email reflected an effort by Kadzik to be helpful to the 

Clinton campaign. Kadzik sent government information (the proposed schedule for 

the release of the Clinton emails in the FOIA litigation) to a partisan campaign 

without knowing whether it had been made public. Kadzik’s May 2015 “Heads up”

email explicitly stated that he did not know whether the Department had yet filed 

the proposed schedule in court. Similarly, according to Axelrod, Kadzik admitted in 

November 2016 that he did not know whether the information had been released 

publically when he sent the email to Podesta. Because Kadzik admittedly did not 

know that the information had been released publically when he sent the “Heads 

up” email to Podesta, Department leadership decided that Kadzik should be recused 

from Clinton-related matters. As discussed below, Kadzik actually used information 

he acquired in his official position with the intention to assist the campaign in a 

manner that would have been a misuse of office but for a fact that Kadzik did not 

definitely know — that the proposed schedule had already been made public.267

 

267

 After reviewing a draft of this chapter, Kadzik’s attorney submitted a letter to the OIG 

which, among other things, stated that “Mr. Kadzik learned the information he shared with Mr. 

Podesta from the Politico article.” However, Kadzik’s attorney provided no evidentiary basis for the 

statement, and it conflicts with the content of the May 19, 2015 “Heads up” email and is inconsistent 

with Kadzik’s previous statements to the Department. The Politico article (that Kadzik provided to 

OPR in response to the inquiry that arose because of his “Heads up” email) clearly states that the 

proposed schedule was “filed in U.S. District Court in Washington” on “Monday night.” Yet Kadzik 

wrote in his Tuesday morning email that he did not know if the document had yet been filed and 

admitted the same to Axelrod in November 2016. In addition, in his December 2016 written response 

to OPR’s inquiry, Kadzik wrote that he “did not recall” the source from which he learned the 

information in his email and cited the Politico article only to establish that the information had been 

made public when he sent it to Podesta.
481

Kadzik’s willingness to do that raised a reasonable question about whether he 

would be willing or inclined to act partially toward the Clinton campaign in 

connection with his official duties, which sometimes touched on Clinton-related 

matters. At minimum, this created an appearance problem with respect to Kadzik’s 

ability to act impartially that justified Axelrod in recusing him from further 

participation in Clinton-related matters.

We believe that Kadzik used poor judgment not only in sending the email to 

a partisan campaign without knowing whether its content was public, but also in 

failing to recognize how his action would impact the Department and in failing 

thereafter to recuse himself from Clinton-related matters pursuant to Section 

502(a)(2).

B. Whether Kadzik Violated the Terms of his Recusal after 

November 2, 2016

In this section, we discuss whether Kadzik violated the terms of his recusal 

after Axelrod instructed him to recuse from Clinton-related matters on or about 

November 2, 2016.

Shortly after his confirmation, Kadzik signed an ethics agreement with JMD 

(for OGE’s approval) which identified the scope of his recusals and sent a 2014 

memorandum to various leadership components and OLA identifying the specific 

matters from which he would be recused. Kadzik’s memorandum stated that no 

one should communicate with him about the matters from which he was recused. 

Furthermore, Kadzik demonstrated his knowledge that a recusal included 

communications when he received emails related to other recused matters and 

replied notifying the sender that he was recused.

Communicating about a matter is considered participation and employees 

should not communicate with others about matters from which they have been 

recused.268 Occasionally, a recused employee may receive communications about 

the matter in an email, telephone call, or meeting. On those occasions, recused 

employees are trained to clearly identify their recusal to the sender of the email, 

the caller, or meeting attendees (as the employee leaves the meeting room or the

discussion is tabled). While an inadvertent communication would not be considered

“participation” in violation of the recusal, repeated and unaddressed 

communications may evidence a violation of the recusal or a lack of respect for 

both the process and the Department that would represent poor judgment.

We found that Kadzik forwarded several emails communicating information 

related to Clinton-related matters within the Department after his recusal and 

indicated his intent to speak with staff about those matters. In each of those 

 

268

 We recognize that Kadzik did not have complete visibility into all Department matters 

(particularly the closely-held Clinton email investigation). However, recusals not only serve to prevent 

an employee from affecting a particular investigation or litigation, but also serve to prevent an 

employee from receiving and misusing Department information. Once an employee is recused from a 

matter, the employee must fully respect the recusal and cease all participation or seek a 

determination by the agency designee under section 502(d).
482

instances his principal deputy also was copied on the incoming email and aware of 

Kadzik’s recusal. In none of those instances did Kadzik either respond to the 

incoming email informing the sender that he was recused from Clinton-related 

matters or advise the recipients of his forwarded emails that he was recused from

Clinton-related matters. By contrast, when Kadzik received emails related to other 

matters from which he was recused, he appropriately responded to the senders 

alerting them to or reminding them of his recusal.

We therefore found that Kadzik understood his responsibilities when 

contacted about matters from which he was recused, and that he exercised poor 

judgment when he failed to fully respect his post-November 2 recusal. Kadzik 

argued that his post-recusal participation was not substantial. However, even if 

this was a mitigating factor, we could not substantiate his assertion because Kadzik 

told us he was unable to recall details of his activities during this time. In addition, 

as noted previously, his principal deputy and his ethics advisor (OLA DDAEO), 

neither of whom still work for the Department, did not make themselves available 

to speak with us.

Ultimately, once Department leadership made the decision that Kadzik should 

be recused from Clinton-related matters, Kadzik was required to cease all 

participation.

C. Whether Kadzik Improperly Used Non-Public information in 

Violation of the Standards of Ethical Conduct

We next consider whether Kadzik violated Section 703 of the Standards of 

Ethical Conduct, 5 C.F.R. § 2635.703, which states: “An employee shall not...allow 

the improper use of nonpublic information to further his own private interest or that 

of another, whether through advice or recommendation, or by knowing 

unauthorized disclosure.”

In December 2016, OPR conducted an inquiry to consider whether Kadzik 

disclosed privileged or confidential Department information to the Clinton campaign 

and determined that Kadzik’s “Heads up” email contained public information and 

personal opinion. Among other things, OPR found that on May 18, 2015, the 

Department filed with the court the document containing the proposed schedule for 

the release of the Clinton emails; the media reported the schedule the same 

evening; and Kadzik sent his “Heads up” email to Podesta on May 19, 2015, the 

following day. OPR concluded that Kadzik’s email did not include privileged or 

confidential information.

Although OPR did not specifically address Kadzik’s compliance with Section 

703, the fact that the information in Kadzik’s “Heads up” email did not include 

nonpublic information also requires the finding that Kadzik did not violate Section 

703.
483

D. Whether Kadzik Misused His Public Office for Private Gain in 

Violation of the Standards of Ethical Conduct

We next consider whether Kadzik violated Section 702 of the Standards of 

Ethical Conduct, 5 C.F.R. § 2635.702, which states: “An employee shall not use his 

public office...for the private gain of friends, relatives, or persons with whom the 

employee is affiliated in a nongovernmental capacity...”. According to commentary 

to Section 702, “[i]ssues relating to an individual employee’s use of public office for 

private gain tend to arise when the employee’s actions benefit those with whom the 

employee has a relationship outside the office...”. 57 Fed. Reg. 35030 (Aug. 7, 

1992).

We found that Kadzik learned of the proposed schedule for the release of the 

Clinton server emails in his capacity as a Department employee. We also found 

that Kadzik sent the information to a longtime personal friend and professional 

colleague, Podesta, with whom Kadzik had a relationship outside the office. 

Further, we found that Kadzik believed that the information would be of benefit to 

the Clinton campaign.269 However, as discussed above, the information included in 

the “Heads up” email was public at the time that Kadzik sent it. Therefore we did 

not find that these facts amounted to a violation of Section 702.

 

269

 In his email, Kadzik also said that the Civil Division Chief may be asked questions about 

the Clinton emails in the congressional hearing scheduled that day. However, Kadzik’s opinion was 

not based on nonpublic information, as notice of the hearing had been posted on the committee’s 

website and congressional interest in the Clinton emails was public information. We note that the Civil 

Division Chief was not asked questions about the Clinton email server during the hearing.
484

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485

CHAPTER FIFTEEN: 

FBI RECORDS VAULT TWITTER ANNOUNCEMENTS

I. Introduction

On November 1, 2016, in response to multiple Freedom of Information Act 

(FOIA) requests, the FBI Records Management Division’s Records/Information 

Dissemination Section (RIDS) posted records to the FBI Records Vault, a page on 

the FBI’s public website, concerning the “William J. Clinton Foundation” (Clinton 

Foundation). The bulk of those records concerned the 2001 investigation into the 

pardon of Marc Rich. The @FBIRecordsVault Twitter account announced this 

posting later that same day.270 This Twitter announcement or “tweet” followed a 

series of 20 tweets released from the @FBIRecordsVault account on October 30, 

2016, after a year-long dormant period during which no tweets announcing FOIA 

releases on the FBI Records Vault had been issued. One of the 20 tweets on 

October 30, 2016, concerned a release of records for Fred C. Trump, the father of 

then candidate Donald Trump.

Several newspaper reports suggested that the timing of the Clinton 

Foundation tweet—coming four days after FBI Director James Comey had 

announced the re-opening of the Hillary Clinton email investigation—was “further 

evidence of FBI meddling” in the 2016 election.

The FBI Inspection Division (INSD) conducted a review of the circumstances 

leading to the Clinton Foundation tweet that focused particularly on the causes of 

the one-year dormant period and the circumstances surrounding the release of 20 

tweets on October 30, 2016, which as noted above included the Fred C. Trump 

information. INSD’s investigation found that: (1) the materials responsive to the 

FOIA requests were “properly posted” to the FBI Records Vault and (2) a technical 

malfunction that began in October 2015 and went unnoticed caused the 

@FBIRecordsVault Twitter account to cease posting automatic Twitter 

announcements about records posting to the Vault. The malfunction was corrected 

with a software update on October 30, 2016. After this correction, INSD found that 

the tweet function operated properly—automatically posting overdue tweets on the 

@FBIRecordsVault Twitter feed for FOIA releases posted during the dormant period 

on the FOIA Vault page—and then functioning as intended from that point forward, 

to include the November 1, 2016 tweet concerning the Clinton Foundation. 

Therefore, INSD concluded that the tweet concerning the Clinton Foundation was 

not affected by the software malfunction that prevented the issuance of other 

tweets for the one-year period.

The OIG conducted this follow-up review focused in particular on the 

circumstances surrounding the November 1, 2016 FOIA posting on the FBI Records 

 

270

 The posting date for the records on the Vault is October 31, 2016, but the RIDS Section 

Chief and a RIDS analyst told us that October 31 reflects the date when the records were uploaded 

into the system to be reviewed by RIDS and OPA personnel, but not the date the records were 

published for the public.
486

Vault and the subsequent tweet announcing the posting. The purpose of this 

review was to determine whether there was any evidence that improper political 

considerations were a factor in the timing of these events. As part of this 

investigation, the OIG reviewed FOIA requests received by the FBI on the Clinton 

Foundation prior to November 1, 2016, documents associated with the FBI’s 

processing of these requests, and email records for individuals involved in 

processing and releasing the requests. The OIG interviewed eight individuals from 

RIDS and the FBI’s Office of Public Affairs (OPA).

Based on our investigation, we found no evidence to indicate that improper 

political considerations influenced the FBI’s processing and release of the Clinton 

Foundation documents or the use of an FBI Twitter account to publicize the release. 

The evidence indicates that the FOIA requests related to the Clinton Foundation 

were processed according to RIDS’ internal procedures like other similarly-sized 

requests. Likewise, we found no evidence to indicate that the FOIA response was 

either expedited or delayed in order to impact the 2016 Presidential election. Below 

are the factual findings and conclusions reached by the OIG’s investigation.

II. Background

This section discusses the laws, regulations, guidance, and procedures 

governing the FBI’s activities in receiving, researching, processing, and responding 

to FOIA requests and, in appropriate cases, publicly releasing documents produced 

in response to FOIA requests by posting such documents on the FBI Records Vault.

A. Freedom of Information Act, 5 U.S.C. § 552

The Freedom of Information Act, 5 U.S.C. § 552 (FOIA), requires federal 

agencies to make agency records available to the public and sets forth the specific 

requirements to do so along with guidance on records and information exempt from 

public release. On June 30, 2016, the FOIA Improvement Act of 2016 (the FOIA 

Improvement Act), Public Law No. 114-185, 130 Stat. 538, updated 5 U.S.C. § 552 

with a notable change pertinent to this case regarding when an agency must 

release previously-requested records to the public. Before the FOIA Improvement 

Act, FOIA permitted agencies to proactively release records, “which, because of the 

nature of their subject matter, the agency determines have become or are likely to 

become the subject of subsequent requests for substantially the same records.”271 

This wording, often referred to as the “frequently requested record” provision of 

FOIA, allowed agencies latitude to decide when to make these records available and

for how long.272 However, the FOIA Improvement Act now also requires agencies to 

publicly release records once they have received three or more requests for the 

same or substantially similar records. This is commonly referred to as the “rule of 

 

271

 5 U.S.C. § 552(a)(2)(D) (2009).

272

 5 U.S.C. § 552(a)(2)(D) (2009).
487

three.”273 An agency may also pre-emptively release the records if it believes they 

will receive additional requests for the records.274

Under FOIA, agencies are authorized to withhold information from public 

release that is specifically exempt from release under 5 U.S.C. § 552(b), 

traditionally referred to as FOIA exemptions. Exemptions cover material such as 

classified information, trade secrets, personnel and medical files, and law 

enforcement information.275 Under this provision however, the agency is tasked 

with redacting the information that cannot be disclosed, but releasing as much of 

the requested information as possible.276

In sensitive law enforcement matters, FOIA allows a law enforcement agency 

to “treat the records as not subject to the requirements of [FOIA].”277 This is 

known as a FOIA exclusion, which “provide[s] protection in three limited sets of 

circumstances where publicly acknowledging even the existence of the records 

could cause harm to law enforcement or national security interests.”278 The first 

exclusion protects records in an ongoing criminal investigation, the release of which 

could “reasonably be expected to interfere with enforcement proceedings.”279 The 

second exclusion protects from the acknowledgment of confidential informant 

records.280 The last exclusion protects the FBI’s classified foreign intelligence, 

counterintelligence, and international terrorism records.281 The Department’s Office 

of Information Policy (OIP) requires Department components—including the FBI—to 

obtain OIP’s approval to use a FOIA exclusion.282

FOIA allows agencies to expedite the processing of records in cases where 

the requester can “demonstrate[] a compelling need” or in other situations as 

defined by each agency.283 A “compelling need” is defined in FOIA as a situation 

where not receiving the requested records quickly “could reasonably be expected to 

pose an imminent threat to the life or physical safety of an individual” or in 

situations where individuals who disseminate information demonstrate an “urgency 

 

273

 5 U.S.C. § 552(a)(2)(D)(ii) (2016).

274

 5 U.S.C. § 552(a)(2)(D)(ii).

275

 5 U.S.C. § 552(b).

276

 5 U.S.C. § 552(b).

277

 5 U.S.C. § 552(c)(1).

278

 Department of Justice, Office of Information Policy, Implementing FOIA’s Statutory 

Exclusion Provisions, Aug. 15, 2014, https://www.justice.gov/oip/blog/foia-guidance-6.

279

 5 U.S.C. § 552(c)(1)(B)(ii).

280

 5 U.S.C. § 552(c)(2).

281

 5 U.S.C. § 552(c)(3).

282

 36 C.F.R. § 16.6(g)(1) (2017).

283

 5 U.S.C. § 552(a)(6)(E)(i).
488

to inform the public concerning actual or alleged Federal Government activity.”284 If 

the agency grants the request, it must process the FOIA request “as soon as 

practicable.”285

B. The FBI FOIA Process

RIDS oversees the FBI’s FOIA program. This section describes the RIDS 

FOIA process, their coordination with other FBI entities on “high visibility” and “rule 

of three” requests, and the posting of FOIA requests on the FOIA Vault.

1. Records/Information Dissemination Section’s FOIA 

Process

FBI Policy Directive 0481D, Freedom of Information Act and Privacy Act 

Requests, February 8, 2012, establishes the FBI’s FOIA and Privacy Act programs 

and provides top-level guidance. It sets forth that the FBI’s policy is to respond to 

FOIA and Privacy Act requests within 20 business days (the requirement set forth in 

the FOIA) and establishes an over-arching list of responsibilities for various offices 

within the FBI to assist RIDS to meet that goal. Policy Directive 0481D provides no 

additional procedural guidance beyond this top-level listing of roles and 

responsibilities. With the exception of Policy Directive 0481D, RIDS does not have 

any formal rules or manuals that outline the FBI’s FOIA process.286

FOIA requests received by the FBI are initially reviewed during a weekly 

meeting by senior RIDS personnel, including the section chief, assistant section 

chief, and unit chiefs. During that meeting, “high visibility” and complex requests 

are identified, as well as those that may qualify for expedited treatment (if 

requested). RIDS personnel told us that high visibility requests are generally those 

dealing with current political issues; anything dealing with a significant issue or 

person of interest to the public and the FBI; or items that have potential to impact 

the FBI. According to RIDS personnel, the RIDS Section Chief and Assistant 

Section Chief normally determine which requests will be designated high visibility 

requests. As detailed below, responses to high visibility requests receive a higher 

level of supervisory review at the end of the process, and are also made available 

to the public on the FBI Records Vault.

Following intake, a FOIA request is then submitted to the Work Process Unit 

(WPU) in RIDS for initial processing. FOIA analysts send the requestor an 

acknowledgement of the request and provide them a FOIA number. They then 

search the FBI’s central records system, including Sentinel and the Automated Case 

Support (ACS) system, and contact relevant FBI personnel to locate responsive 

 

284

 5 U.S.C. § 552(a)(6)(E)(v). The Department’s FOIA Regulations add two more categories 

in which the Department may grant expedited processing: the loss of substantial due process rights 

or matters of widespread and exceptional media interest in which there exist possible questions about 

the government’s integrity that affects public confidence. 28 C.F.R. § 16.5(e)(1)(i)-(iv).

285

 5 U.S.C. § 552(a)(6)(E)(iii).

286

 As a result, the following description of the FBI’s process is based on interviews with RIDS 

managers and analysts. 
489

records. If no records are found, the FBI communicates this fact to the requestor. 

If responsive records are identified, they are compiled, quality checked, and then 

uploaded into the FOIA Document Processing System.

Once the collection of documents has been completed, the response is placed 

in a workflow “queue” to await processing by a RIDS disclosure analyst in one of 

the RIDS processing units. The FBI has established four separate workflow 

“queues” based on the volume of responsive documents. Responses that qualify for 

expedited treatment under FOIA are moved to the front of the appropriate workload 

queue. All other responses enter the queue from the back, in a “First In, First Out” 

order.

According to the RIDS Section Chief, requests with 50 or fewer pages of 

responsive documents enter the “small” queue and are typically processed within 

approximately 4 months from the date of the request to the date of the 

response.287

Requests generating between 50 and 950 pages of responsive documents are 

directed to the “medium” queue and are typically completed in approximately 9 to 

10 months. Completion time for requests placed in the “large” queue, those that 

generate 950 to 8,000 pages of relevant documents, is approximately 2 and a half 

years. The fourth queue, for extra-large requests that generate over 8,000 pages 

of responsive documents, can take upwards of 4 years to fulfill. For larger 

requests, requestors do not have to wait the full time period for documents; RIDS 

provides interim releases in batches of 500 pages at a time.

RIDS personnel explained that once a request has worked its way to the 

front of the appropriate workflow queue, a supervisor assigns the responsive 

documents to a disclosure analyst for processing. Processing the documents 

involves a line-by-line review of the documents to identify and redact information 

exempt from release under the FOIA. After the disclosure analyst’s review is 

complete, RIDS experts and supervisors conduct a quality review. If the request is 

not a high visibility request, the analyst finalizes the release, sends the appropriate 

correspondence to the requestor, and closes the matter.

Responses to high visibility requests are subject to additional management 

review before being released to the requestor or posted to the FBI Vault, including 

by the RIDS Section Chief and the FOIA attorney supporting RIDS, to ensure 

accurate and proper application of exemptions, classification decisions, and 

redactions and to spot any other potential issues. The processing analyst drafts a 

“high visibility” memorandum to accompany the package through these additional 

reviews. According to the RIDS Section Chief, the designation of a request as “high 

visibility” does not mean it will be processed quicker than any other request, unless 

it otherwise qualifies for expedited treatment. Rather, these requests are 

processed according to the same prioritization procedures as other FOIA requests.

 

287

 The average processing times are based on regular analysis of queue processing times by 

RIDS personnel in order to provide estimated completion dates to FOIA requestors.
490

2. Release of FOIA Documents on the FBI Vault 

The FBI Records Vault is a page on the FBI.gov public website. Requests 

posted to the FBI Records Vault fall into one or both of the following categories: 

high visibility requests or requests that meet the “rule of three” standard as defined 

in the 2016 updates to FOIA.

Although OPA manages the overall FBI.gov public website, RIDS is 

responsible for the content and postings for the FBI Records Vault page. According 

to RIDS personnel, in the fall of 2016, once RIDS management determined that a 

post would be made to the FBI Records Vault, RIDS would notify the RMD chain of 

command, OPA’s National Press Office, and often the General Counsel’s FOIA 

Litigation Unit Chief of the upcoming post. To assist historians and researchers who 

use the FBI Records Vault, RIDS would often ask the FBI Historian to draft a 

summary of the documents to accompany the posting on the FBI Records Vault. 

The purpose of RIDS’s notification to the National Press Office was to allow the 

National Press Office an opportunity to prepare for any media inquiries and to notify 

OPA management and FBI executive management as necessary.

Ultimately, once all these offices had been notified of the upcoming post, and 

a summary had been drafted to be posted with the responsive documents, the 

RIDS Section Chief made the final determination of when to post the documents.288 

Postings could be delayed by the Section Chief and Assistant Section Chief of RIDS, 

as well as the Office of Public Affairs and FBI executive management. The RMD 

Section Chief told us that postings could only be delayed for short periods of time to 

give FBI executive management notice that information with high public interest 

was about to be posted. Once the release was posted to the FBI Records Vault, the 

@FBIRecordsVault Twitter account was configured to automatically announce (autotweet) the addition of new content to the FBI Records Vault.

III. Findings

This section presents our findings with regard to the timeline of events and 

our analysis of whether there were any improper political considerations involved 

with the timing of the FOIA release and its associated tweet.

A. Facts

1. Timeline

Nov 10, 2015 FBI Records Management Division (RMD) receives the first FOIA 

request for documents relating to the Clinton Foundation. 

Several subsequent requests for the same or similar materials 

are later combined with the initial request for processing.

 

288

 The Assistant Section Chief of RIDS could make the determination in the absence of the 

Section Chief.
491

Dec 17, 2015 Records/Information Dissemination Section (RIDS) analysts 

begin searching for responsive documents.

May 12, 2016 RIDS analysts complete the search for responsive documents. 

The resulting collection (the “Clinton Foundation documents”) is 

placed in the “medium workflow queue” to await processing for 

release on a “First In, First Out” basis.

Aug 15, 2016 RIDS begins reviewing the Clinton Foundation documents for 

exempt and classified material.

Oct 25, 2016 RIDS completes its review and redaction of the documents. 

Because RIDS had designated this release as a “high visibility” 

response, it receives review by the RIDS Assistant Section Chief 

and the FBI Office of Public Affairs (OPA) prior to release to the 

requesters and to the FBI Records Vault. The FBI Historian is 

asked to draft a summary of the documents’ contents to 

accompany the release to the Vault.

Oct 28, 2016 OPA informs RIDS that it concurs with the proposed release of 

the Clinton Foundation documents.

Oct 31, 2016 OPA requests RIDS to postpone posting the Clinton Foundation

documents for one day because of workload resulting from 

Director Comey’s October 28 letter to Congress announcing 

reactivation of the Clinton email investigation.

Nov 1, 2016 RIDS publishes the Clinton Foundation documents on the FBI 

Records Vault. The posting is announced on a systemgenerated tweet from @FBIRecordsVault.

2. Detailed Chronology

The first Clinton Foundation request received by RMD on November 10, 2015, 

sought any and all records about the Clinton Foundation. Between November 11 

and December 15, 2015, the request was pending assignment for initial processing. 

The Work Processing Unit opened a request for the Clinton Foundation on December 

15. Materials from six subsequent, similar requests were later combined with this 

request.289 These multiple requests met the “rule of three” standard for posting on 

the FBI’s FOIA Vault page. The Clinton Foundation request was designated as a 

high visibility request during processing due to its subject and the expectation it 

could attract media attention. The request was not designated for “expedited” 

treatment.

 

289

 The subsequent requests were dated April 1, 2016; July 13, 2016; July 14, 2016; August 

16, 2016; August 17, 2016; and August 30, 2016.
492

Between December 17, 2015, and May 12, 2016, RIDS analysts searched for 

and gathered material responsive to the request. During this initial phase, RIDS 

identified additional documents that were responsive to the FOIA request but 

potentially qualified for a FOIA exclusion. The RIDS Section Chief stated to the OIG 

that when they located these documents, he coordinated with the relevant 

investigative section chief and determined the FBI should seek Department 

approval to use a FOIA exclusion. The RIDS Section Chief explained to the OIG 

that the Department’s policies required the FBI to “write up an exclusion” for 

approval by OIP. The Director of OIP ultimately approved the FBI’s use of an 

exclusion for these documents on July 25, 2016.

Responsive materials also included documents involving a closed 2001 FBI 

investigation probing whether donations to the Clinton Foundation had been made 

to influence former President Clinton to pardon Marc Rich. After discovering the 

Marc Rich records on May 9, 2016, the RIDS Section Chief released the records to 

the medium processing queue.

In the three months between May 12 and August 15, 2016, the documents 

collected in response to the request (the “Clinton Foundation documents”) were in 

the medium workflow queue awaiting processing. During this timeframe, additional 

relevant records were located and added to the documents already in the queue, 

but the request remained in the medium queue.

On August 16, 2016, the Clinton Foundation request entered the processing 

and review phase in which the analyst reviewed the pages for exempted material 

and performed a declassification review, and the supervisor performed a quality 

review. Because the Clinton Foundation request had been designated as a high 

visibility request, it received additional review by the FOIA Unit Chief, the RIDS 

Assistant Section Chief and the RIDS Section Chief.

On October 25, 2016, the RIDS Assistant Section Chief notified two 

individuals in OPA’s National Press Office—the Unit Chief and a Public Affairs 

Specialist—and the FBI Historian via email that documents responsive to the Clinton 

Foundation request, a high visibility FOIA release, were ready for their review prior 

to release. The Assistant Section Chief noted in his email that RIDS planned to post 

the FOIA response to the FBI Records Vault on October 28 or 31, 2016. The 

Assistant Section Chief noted in his email that “the timing, of course, may draw 

attention” to this release and provided a copy of the high visibility memo drafted by 

the FOIA review unit, which provided a brief overview of the substance of the 

release. The Assistant Section Chief told us and the recipients stated that they 

understood this statement to refer to the short time before the 2016 election and 

thus the expected media interest in any release involving the Clintons. In the email

the Assistant Section Chief also requested that the FBI Historian write a synopsis 

for the FBI Records Vault posting.

On October 26, the National Press Office Unit Chief sent an email to the 

Public Affairs Specialist in her office and the FBI Historian stating, “Can you give 

this [reviewing the Clinton Foundation documents] priority in the event we need to 

consider timing?” According to the Unit Chief, her timing concern involved the 
493

election being close and with the potential media coverage, needing to allot time to 

review documents to be prepared for any issues that might arise after the 

documents were released. The Unit Chief told us that the press office wanted to 

review the documents in order to determine whether to alert FBI executive 

management, potentially including the FBI Director, to the potential media 

coverage. She stated that her reference to the timing was not to make it a high 

priority to ensure that it was released prior to the election, but that it meant “that 

they need[ed] to stop what they’re doing and review this so that we can make a 

decision if we need to, or raise it to another level.”

On October 27, the Public Affairs Specialist provided the high visibility 

memorandum and about 15 pages of the FOIA release documents to the Assistant 

Director (AD) of OPA, Michael Kortan, for his review. The FBI Historian told us that 

in response to the request from RIDS and the National Press Office Unit Chief, he 

drafted a synopsis to accompany the release of records and sent it to the National 

Press Office Unit Chief on October 27, 2016. That same day, the FBI Historian also 

emailed the Assistant Section Chief with a short summary of the release to 

accompany the FBI Records Vault posting, and cautioned the Assistant Section 

Chief not to make the post “live” before checking back with the Public Affairs 

Specialist on whether OPA was ready for the release.

On Friday, October 28, the Public Affairs Specialist emailed RIDS to say that 

OPA reviewed the FOIA response, and had no issues with the proposed release.

On Monday, October 31, the Public Affairs Specialist sent an inquiry to RIDS 

at 9:17 a.m. asking whether the responsive materials had been released to the 

requester yet. When the RIDS Assistant Section Chief responded that they were in 

the process of posting it to the FBI Records Vault, the Public Affairs Specialist 

requested an hour delay to give AD Kortan an additional heads-up. As a result, 

RIDS planned for an 11:30 a.m. release and informed OPA. The Public Affairs 

Specialist then called the RIDS Section Chief and requested to delay the posting for 

a full day. The RIDS Section Chief stated that the Public Affairs Specialist told him 

they needed the delay because they were overwhelmed by the reaction to Director 

Comey’s announcement regarding the Clinton email investigation and “that there’s 

not any way [the National Press Office] can deal with this today.” However, the 

Public Affairs Specialist told us she could not recall the reason for the delay. The 

National Press Office Unit Chief stated that this was a typical delay needed to 

ensure that AD Kortan had the time to review the documents and make 

notifications to executive management. The RIDS Section Chief agreed to delay the 

posting until the next day.

On the morning of November 1, the RIDS Section Chief sent an email to 

members of his team as well as individuals in OPA stating that RIDS was ready to 

make the Clinton Foundation documents public on the FBI Vault site. In the 

absence of further delay requests or other inputs from OPA, the RIDS Section Chief 

approved the public posting of the materials and instructed one of his subordinates, 
494

a Supervisory Government Information Specialist (SGIS), to publish it on the FBI 

Records Vault. The SGIS then posted the FOIA records.290

Witnesses told us that the fact that the presidential election was just a week 

ahead was not a factor in deciding when to release the Clinton Foundation

documents to the public, though they knew the timing would call attention to their 

release. They stated that the FBI does not take into account elections in deciding 

how to process FOIA requests or when to release responsive documents to the 

public. Witnesses told us that there was no FOIA equivalent to the Election Year 

Sensitivities guidance that addresses overt investigative steps and the timing of 

charges. Further, they told us that there were no discussions about delaying the 

release of the Clinton Foundation documents until after the election and that the 

fact that the release occurred the week before the election was a coincidence.

In response to OIG inquiries regarding the processing and the timing of the 

release, the RIDS Assistant Section Chief emphasized that FOIA is a release statute 

and presumes release: “[T]he legal duty under the FOIA is to release 

something...when it’s ready to be released...[i]rrespective of any timing, 

irrespective of any election. [The] FOIA statute says when something is ready to 

be released, we release it.” He also stated, “We deal with the most sensitive 

issues...every day.... [Y]ou have to stick to the process.” The RIDS Section Chief 

told us that the only guidance they received regarding the timing of FOIA releases 

came “from the Director himself when he released [a summary of Hillary Rodham 

Clinton’s July 2, 2016 interview with the FBI].”291 The FBI had received criticism for 

releasing the documents on a Friday to minimize press attention. The Section Chief 

told us that, in a message to the FBI, he understood Comey to say that the FBI 

does not “hold onto anything for political purposes” and “when it’s ready it goes 

out.” The attorney supporting RIDS stated that in her interactions with RIDS 

management, “they have always been very clear that the FOIA process operates 

rather independently of any politics with a small p or the big P for that matter, that 

may be going on.” She added:

[T]he way that RIDS works, it’s such a massive beast that it’s 

essentially a machine.... And it could be the dogcatcher case next to 

the Hillary Clinton case, and you’re going to handle them the same. 

The next one in your queue pops up, you’re going to work it until it’s 

done, and then you’re going to move onto your next one. So, the 

FOIA process...does not sort of cherry pick the things that we want to 

handle at any particular time in any particular way, either fast or slow.

 

290

 The public FBI Records Vault webpage indicates that the Clinton Foundation documents 

were posted on October 31, 2016. However, the RIDS Section Chief and the SGIS told us that this 

date refers to when the documents were uploaded to the system for review by RIDS and OPA. The 

documents were not made available to the public until November 1, 2016.

291

 On September 2, 2016, the FBI posted Hillary Clinton’s July 2, 2016 interview with the FBI 

concerning allegations that classified information was improperly stored or transmitted on a personal 

email server she used during her tenure.
495

Later on November 1, a system-generated tweet from @FBIRecordsVault 

announced the posting on FBI’s Records Vault. Shortly thereafter, NPO began 

receiving inquiries from the media questioning the timing of the posting of the 

records and the associated tweet. The SGIS stated that he received multiple 

inquiries about the tweet because individuals within OPA and RMD were concerned 

that he had manually tweeted the release. The SGIS told us he informed the 

individuals who called that he had not manually tweeted concerning the release. 

He then checked the Twitter feed on his phone and realized the attention it was 

getting, so he looked into what happened. The SGIS stated he then learned about 

the issues with the automatic Twitter feed, that those issues had been corrected on 

October 30, and that upon correction the system released multiple tweets 

concerning posts over the prior year.

B. Analysis

In order to determine whether the Clinton Foundation release was impacted 

by any improper political motivation, we examined two issues. First, we explored 

whether the Clinton Foundation request was handled differently than other 

similarly-sized, high visibility FOIA requests. Next, we also examined whether any 

FBI officials improperly attempted to affect the timing of the processing or release 

of the responsive documents to either advance or harm the prospects of either 

presidential candidate.

We found no evidence that the Clinton Foundation request was handled any 

differently than other FOIA requests. Within RIDS, all of the individuals we 

interviewed told us that the Clinton Foundation request was processed just like any 

other FOIA request. The RIDS Section Chief told us the FOIA process is a 

regimented process based on workload queues, and that the Clinton Foundation 

request “just fell right into line with this [process]” and this request “was a number 

on somebody’s spreadsheet.” The RIDS Assistant Section Chief said that they 

followed “the business process at the time.”

We found no evidence that anyone in RMD or OPA expedited or delayed the 

processing or posting of the request for any improper purpose. The RIDS Section 

Chief stated that the Clinton Foundation request was processed according to its size 

queue and consistent with that queue’s processing timeline. Our review of the 

timeline for the processing of this request confirmed the Section Chief’s 

assessment. RIDS located over 500 pages responsive to the request, putting the 

request in the medium queue with a stated average processing time of 9-10 

months.292 The request was received on November 10, 2015, and was posted on 

November 1, 2016—just under 12 months. The RIDS Section Chief told the OIG 

that the response did not meet the average processing time because it was “an 

unusual request” due to the potential FOIA exclusion, “which totally skew[ed] what 

happen[ed].” However, the RIDS SGIS who monitors the FOIA processing time 

 

292

 We did not perform an independent audit of RIDS’ medium queue, but utilized the 

averages as reported to us by the RIDS Section Chief and Assistant Section Chief.
496

statistics, told the OIG that the time it took RIDS to produce this response “wasn’t 

off of the, off-timing,” and he did not think anyone had rushed it or slowed it down.

Additionally, the individuals we interviewed told us that there were no efforts 

to delay the release of the Clinton Foundation documents until after the election or 

efforts to expedite the release before the election. In fact, all of the witnesses we 

spoke to said that at no time were there any discussions about holding the Clinton 

Foundation release until after the election or ensuring that it was released before 

the election. The RIDS Section Chief told us that “there was no actual timing 

involvement to get it out before the election.” The RIDS Assistant Section Chief 

said there were no internal discussions about whether to hold the release until after 

the election. He told us that “FOIA is a disclosure action.... There was no 

consideration of [timing].” The National Press Office Unit Chief told us that 

documents are released when they are ready for release, regardless of the date or 

time period they fall under. She stated that OPA might ask for a delay of a few 

hours or a day or two if they needed time to review the documents, but would not 

hold back releasing information for a substantial period of time. The witnesses 

interviewed denied taking any action, or delaying any action, with regard to the 

FOIA request in order to assist or harm either candidate’s prospects in the election.

None of the witnesses had knowledge of any attempt to do so.
497

CHAPTER SIXTEEN:

CONCLUSIONS AND RECOMMENDATIONS

I. Conclusions

The Clinton email investigation was one of the highest profile investigations 

in the FBI’s history; however, it is just one of thousands of investigations handled 

each year by the approximately 35,000 FBI agents, analysts, and other 

professionals who dedicate their careers to protecting the American people and 

upholding the Constitution and the rule of law. Through the collective efforts of 

generations of FBI employees, the FBI has developed and earned a reputation as 

one of the world’s premier law enforcement agencies.

The FBI has gained this reputation, in significant part, because of its 

professionalism, impartiality, non-political enforcement of the law, and adherence 

to detailed policies, practices, and norms. However, as we outline in this report, 

certain actions during the Midyear investigation were inconsistent with these longstanding policies, practices, and norms.

First, we found that several FBI employees who played critical roles in the 

investigation sent political messages—some of which related directly to the Midyear 

investigation—that created the appearance of bias and thereby raised questions 

about the objectivity and thoroughness of the Midyear investigation. Even more 

seriously, text messages between Strzok and Page pertaining to the Russia 

investigation, particularly a text message from Strzok on August 8 stating “No. No 

he’s not. We’ll stop it.” in response to a Page text “[Trump’s] not ever going to 

become president, right? Right?!,” are not only indicative of a biased state of mind 

but imply a willingness to take official action to impact a presidential candidate’s 

electoral prospects. This is antithetical to the core values of the FBI and the

Department of Justice. While we did not find documentary or testimonial evidence 

that improper considerations, including political bias, directly affected the specific 

investigative actions we reviewed in Chapter Five, the conduct by these employees 

cast a cloud over the entire FBI investigation and sowed doubt about the FBI’s work 

on, and its handling of, the Midyear investigation. It also called into question 

Strzok’s failure in October 2016 to follow up on the Midyear-related investigative 

lead discovered on the Weiner laptop. The damage caused by these employees’

actions extends far beyond the scope of the Midyear investigation and goes to the 

heart of the FBI’s reputation for neutral factfinding and political independence.

Second, in key moments, then Director Comey chose to deviate from the 

FBI’s and the Department’s established procedures and norms and instead engaged 

in his own subjective, ad hoc decisionmaking. In so doing, we found that Comey 

largely based his decisions on what he believed was in the FBI’s institutional 

interests and would enable him to continue to effectively lead the FBI as its 

Director. While we did not find that these decisions were the result of political bias 

on Comey’s part, we nevertheless concluded that by departing so clearly and 

dramatically from FBI and Department norms, the decisions negatively impacted 

the perception of the FBI and the Department as fair administrators of justice. 
498

Moreover, these decisions usurped the authority of the Attorney General and upset 

the well-established separation between investigative and prosecutorial functions 

and the accountability principles that guide law enforcement decisions in the United 

States.

As we further outline in this report, there was a troubling lack of any direct, 

substantive communication between Comey and then Attorney General Lynch in 

advance of both Comey’s July 5 press conference and his October 28 letter to 

Congress. With regard to the July 5 events, Comey affirmatively concealed his 

intentions from Lynch. When he did finally call her on the morning of July 5—after 

the FBI first notified the press—he told her that he was going to be speaking about 

the Midyear investigation but that he would not answer any of her questions, and 

would not tell her what he planned to say. During that call, Lynch did not instruct 

Comey to tell her what he intended to say at the press conference. With respect to 

the October 28 letter, Comey chose not to contact Lynch or then Deputy Attorney 

General Yates directly; rather, he had FBI Chief of Staff Rybicki advise Yates’s 

senior advisor (then PADAG Axelrod) that Comey intended to send a letter to 

Congress and that Comey believed he had an obligation to do so. Given these 

circumstances, Lynch and Yates concluded it would be counterproductive to speak 

directly with Comey and that the most effective way to communicate their strong 

opposition to Comey about his decision was to relay their views to him through 

Axelrod and Rybicki. We found it extraordinary that, in advance of two such 

consequential decisions, the FBI Director decided that the best course of conduct 

was to not speak directly and substantively with the Attorney General about how 

best to navigate these decisions and mitigate the resulting harms, and that 

Comey’s decision resulted in the Attorney General and Deputy Attorney General 

concluding that it would be counterproductive to speak directly with the FBI 

Director.

This is not the first time the Department and the FBI have conducted a 

politically-charged investigation, and it will not be the last. To protect the 

institutions from allegations of abuse, political interference, and biased enforcement 

of the law, the Department and the FBI have developed policies and practices to 

guide their decisions. In the vast majority of cases, they are followed as a matter 

of routine. But they are most important to follow when the stakes are the highest, 

and when the pressures to divert from them—often based on well-founded concerns 

and highly fraught scenarios—are the greatest. No rule, policy, or practice is 

perfect, but at the same time, neither is any individual’s ability to make judgments 

under pressure or in what may seem like unique circumstances. It is in these 

moments—when the rationale for keeping to the ordinary course fades from view 

and the temptation to make an exception is greatest—that the bedrock principles 

and time-tested practices of the Department and the FBI can serve their highest 

purpose. This notion was most effectively summarized for us by DAAG George 

Toscas, who was the most senior career Department official involved in the daily 

supervision of the Midyear investigation:

One of the things that I tell people all the time, after having been in 

the Department for almost 24 years now, is I stress to people and 

people who work at all levels, the institution has principles and there’s 
499

always an urge when something important or different pops up to say, 

we should do it differently or those principles or those protocols you 

know we should—we might want to deviate because this is so 

different. But the comfort that we get as people, as lawyers, as 

representatives, as employees and as an institution, the comfort we 

get from those institutional policies, protocols, has, is an unbelievable 

thing through whatever storm, you know whatever storm hits us, 

when you are within the norm of the way the institution behaves, you 

can weather any of it because you stand on the principle.

And once you deviate, even in a minor way, and you’re always going 

to want to deviate. It’s always going to be something important and 

some big deal that makes you think, oh let’s do this a little differently. 

But once you do that, you have removed yourself from the comfort of 

saying this institution has a way of doing things and then every 

decision is another ad hoc decision that may be informed by our policy 

and our protocol and principles, but it’s never going to be squarely 

within them.

There are many lessons to be learned from the Department’s and FBI’s 

handling of the Midyear investigation, but among the most important is the need 

for Department and FBI leadership to follow its established procedures and policies 

even in its highest-profile and most challenging investigations. By adhering to 

these principles and norms, the public will have greater confidence in the outcome 

of the Department’s and the FBI’s decisions, and Department and FBI leaders will 

better protect the interests of federal law enforcement and the dedicated 

professionals who serve these institutions.

II. Recommendations

For these reasons, and as more fully described in previous chapters, we 

recommend the following:

1. The Department and the FBI consider developing practice guidance 

that would assist investigators and prosecutors in identifying the 

general risks with and alternatives to permitting a witness to attend a 

voluntary interview of another witness, in particular when the witness 

is serving as counsel for the other witness.

2. The Department consider making explicit that, except in situations 

where the law requires or permits disclosure, an investigating agency 

cannot publicly announce its recommended charging decision prior to 

consulting with the Attorney General, Deputy Attorney General, U.S. 

Attorney, or his or her designee, and cannot proceed without the 

approval of one of these officials.

3. The Department and the FBI consider adopting a policy addressing the 

appropriateness of Department employees discussing the conduct of 

uncharged individuals in public statements.
500

4. The Department consider providing guidance to agents and 

prosecutors concerning the taking of overt investigative steps, 

indictments, public announcements, or other actions that could impact 

an election.

5. The Office of the Deputy Attorney General consider taking steps to 

improve the retention and monitoring of text messages Departmentwide.

6. The FBI add a warning banner to all of the FBI’s mobile phones and 

mobile devices in order to further notify users that they have no 

reasonable expectation of privacy.

7. The FBI consider (a) assessing whether it has provided adequate 

training to employees about the proper use of text messages and 

instant messages, including any related discovery obligations, and 

(b) providing additional guidance about the allowable uses of FBI 

devices for any non-governmental purpose, including guidance about 

the use of FBI devices for political conversations

8. The FBI consider whether (a) it is appropriately educating employees 

about both its media contact policy and the Department’s ethics rules 

pertaining to the acceptance of gifts, and (b) its disciplinary provisions 

and penalties are sufficient to deter such improper conduct.

9. Department ethics officials consider implementing a review of 

campaign donations when Department employees or their spouses run 

for public office.
ATTACHMENT 

A 
Assoc~te Dq,uty Anomey General 

MEMORANDUM 

TO: 

FROM: 

Michael E. Horowitz 

Inspector General 

U.S. Department o 

U.S. Department of Justice 

Office of the Deputy Attorney General 

Wadlington, O.C. 20S30 

June 11, 2018 

SUBJECT: Response to "A Review of Various Actions by the Federal Bureau of 

Investigation and Department of Justice in Advance of the 2016 Election" 

The Department of Justice (Department) appreciates the review your offic.e conducted 

regarding various actions by the Federal Bureau of Investigation (FBI) and the Department in 

advance of the 2016 election and the resulting report of investigation. This response addresses 

only the report and recommendations as they pertain to the Department as the FBI is responding 

separately. 

Based on the findings in the report, your office made six recommendations for the 

Department to consider. The Department concurs in Recommendations 1-5 and 9 and will 

expeditiously consider taking steps in response to them. 

cc: Hon. John Demers 

Assistant Attorney General 

National Security Division 

Hon, Christopher Wray 

Director 

Federal Bureau of Investigation 
ATTACHMENT 

B 
Office of the Director 

The Honorable Michael E. Horowitz 

Inspector General 

U.S. Department of Justice 

Washington. D.C. 

Dear Mr. Horowitz: 

U.S. Department of Justice 

Federal Bureau of Investigatio n 

Washington, D.C. 20535-000/ 

June 12. 2018 

The Federal Bureau of Investigation (FBI) greatly values the opportunity to review 

and respond to the fo rthcoming Report entitled ··A Review of Various Actions by the Federal 

Bureau of Investigation and Department of Justice in Advance of the 2016 Election." The FBI's 

formal response is enc losed, including a Law Enforcement Sensitive portion appended at the end. 

The FBI recognizes and appreciates the importance of the Inspector General's 

oversight role and thanks you for the thoroughness of your Report and recommendations 

regardi ng FBI actions and policies. 

Enclosure 
1

FBI RESPONSE TO THE REPORT OF 

THE DEPARTMENT OF JUSTICE’S OFFICE OF THE INSPECTOR GENERAL

The mission of the Federal Bureau of Investigation (FBI or Bureau) is to protect the 

American people and uphold the Constitution of the United States. Within this mission, the FBI 

has certain priorities, including protecting the United States against terrorist attack, foreign 

intelligence operations and espionage, cyber-based attacks and high-technology crimes, 

combatting public corruption at all levels, protecting civil rights, and combating major criminal 

offenses. Sometimes, the investigations and operations conducted by the FBI in furtherance of 

its mission may cut against the personally held views of certain Special Agents and other 

employees supporting those cases. There is nothing inherently wrong with this; indeed, the 

Constitution contains robust protections for personally held and espoused beliefs and the 

freedom of association. The FBI endeavors to, and as reflected in the Department of Justice 

(DOJ) Office of the Inspector General’s (OIG) “A Review of Various Actions by the Federal 

Bureau of Investigation and Department of Justice in Advance of the 2016 Election” Report, 

succeeds in its efforts, to maintain separation between personally held views and the actual work 

of the FBI. Nevertheless, proper oversight is required in order to ensure this separation remains 

effective, that the mission comes first regardless of personal view, that all investigations proceed 

objectively, and that the American people maintain their trust and confidence that the critically 

important work of the FBI remains unbiased and apolitical. The FBI appreciates the key role of 

the DOJ Office of the Inspector General (OIG) in the oversight process. 

Below, the FBI sets forth a response to the findings and recommendations contained in 

the OIG Report. The FBI recognizes that mistakes were made. These mistakes were errors of 

judgment, violations of or disregard for policy, or, when viewed with the benefit of hindsight, 

simply not the best courses of action. They were not, in any respect, the result of bias or 

improper considerations. Further, the OIG Report focuses on the conduct of several individuals

acting in extraordinary and unprecedented circumstances. None of the actions or conduct faulted 

by the OIG impugn the integrity of the FBI as an institution, or of the Bureau’s dedicated 

37,000-person workforce as a whole. 

I. Summary of FBI Response

The FBI identified eight (8) focal points, specific to the FBI, in the OIG Report: (1) 

conduct creating a perception that political bias could have influenced certain actions or 

decisions; (2) violation of or disregard for DOJ or FBI policies by former Director James 

Comey’s July 5, 2016, announcement and October 28, 2016, letter; (3) issues involving media 

contacts, leaks, and ethics rules on acceptance of gifts; (4) former Deputy Director Andrew 

McCabe’s recusal obligations; (5) the use of personal email accounts; (6) missteps in certain 

investigatory processes; (7) insubordination by former Director Comey; and (8) the potentially 

improper use of FBI systems and devices to exchange messages, the related referrals for 

investigation, and the creation of additional warning banners and guidance. 

The FBI’s accepts the OIG’s findings that certain text messages, instant messages, and 

statements, along with a failure to consistently apply DOJ and FBI interview policies, were 

inappropriate and created an appearance that political bias might have improperly influenced 

investigative actions or decisions. The Bureau also agrees with the OIG that, despite these errors
2

and the damage they may have caused to the FBI’s reputation, there was no evidence of bias or

other improper considerations affecting the handling of the Midyear Exam (MYE) investigation. 

The FBI is taking immediate remedial actions to reinforce the importance of maintaining a work 

environment free from the appearance of political bias. This includes a review of whether the

intermixing of work-related discussions with political commentary implicates any of the FBI’s 

Offense Codes and Penalty Guidelines. It will further include political bias training, Hatch Act 

training, and, as applicable, will also include a review of how the FBI staffs, structures, and 

supervises sensitive investigations. 

The FBI also accepts the OIG’s findings that former Director Comey’s July 5, 2016, 

announcement violated DOJ’s media policy and may have violated regulations regarding the 

public release of information, and that his October 28, 2016, letter was a serious error in 

judgment. In the judgment of the OIG, there was no evidence that these actions were the result 

of bias, political preference, or an effort to influence the election. The Bureau takes seriously its 

obligations to control public statements, especially those related to charging recommendations in 

criminal investigations and uncharged conduct. Accordingly, the FBI has issued a revised media 

policy, will act to further ensure that all personnel are aware of the new policy and the serious 

consequences for non-compliance, and will provide further training on media contact and the 

limited authority to release information. 

The OIG also identified a need to change the “cultural attitude” regarding media contacts 

and leaks at the FBI. The Director has ordered the Office of Integrity and Compliance (OIC), the 

Office of the General Counsel (OGC), and the Office of Professional Responsibility (OPR) to

review how personnel are trained regarding the media policy and related ethics rules, including 

those related to the acceptance of gifts, and whether current disciplinary penalties are adequate to 

deter unauthorized media contact or leaks. 

The OIG made several determinations regarding former Deputy Director McCabe’s 

recusal from the Clinton-related investigations. Because he may not have fully complied with 

his voluntary recusal obligations, the FBI OIC has been instructed to review recusal policy and 

training, and make updates as necessary to help more quickly identify and mitigate actual or 

perceived conflicts of interest.1

 The FBI OGC and OIC have also been directed to work together 

to develop a framework for earlier notification of potential conflicts caused by campaign 

contributions to covered persons and to provide additional training on recusal obligations and 

conflicts of interest. The Director has called for the framework to be completed within 60 days.

Upon finding that former Director Comey, Lisa Page, and Peter Strzok used personal 

email accounts for unclassified FBI business, the OIG referred Mr. Strzok for an investigation 

into whether his actions violated FBI and DOJ policies. This referral will be investigated and 

adjudicated pursuant to FBI and DOJ policies. While, there is no finding or indication that any 

classified material ever transited former Director Comey’s, Ms. Page’s, or Mr. Strzok’s personal 

devices or accounts, the FBI OGC and OIC have been tasked to evaluate whether additional 

training and messaging would reinforce the existing policies and protocols on the use of non-FBI 

 1 The OIG’s findings and recommendations related to other recusal issues and contained in the 

Law Enforcement Sensitive (LES) Appendix Two, are addressed separately in the appended LES 

response. 
3

devices and accounts and further minimize any non-compliance, and to report back to the 

Director on their findings within 60 days. 

The OIG concluded that certain MYE investigatory missteps were made. The FBI 

accepts the OIG’s conclusions that, in hindsight, it could have taken additional or different 

investigatory actions, including moving more quickly to secure a search warrant for Anthony 

Weiner’s laptop, and staffing the investigation differently so as to avoid affecting the MYE 

investigation when senior members of the MYE team were assigned to the Russia investigation. 

The FBI appreciates, however, that the OIG recognized that many of the identified missteps were 

judgment calls by seasoned investigators and prosecutors, and that there was no evidence that 

any decision was made as the result of bias or other improper considerations. This includes the 

decision not to seek personal devices from former Secretary Clinton’s senior aides, the 

prioritization of the Russia investigation at the time, and the delay in seeking a search warrant for 

the Weiner laptop. The FBI is convening a working group to provide recommendations, within 

120 days, for the staffing, structuring, and supervision of sensitive investigations to help avoid or 

mitigate similar missteps in the future. 

The OIG also stated that former Director Comey was insubordinate by intentionally 

concealing from DOJ his intentions regarding the July 5, 2016, announcement and instructing his 

subordinates to do the same. The FBI does not condone insubordination at any level. 

Compliance with policy – and the chain of command as appropriate – will be reinforced through 

training.

In its review of collected materials, the OIG found that several FBI employees had 

exchanged text messages, instant messages, or both, that included political statements hostile to 

or favoring particular candidates, and appeared to mix political opinion with discussions about 

the MYE investigation. The OIG found no evidence to connect the political views expressed by 

these employees with the specific investigative decisions, but referred five employees for 

investigation into whether the messages violated the FBI’s Offense Codes and Penalty 

Guidelines. The FBI will handle these referrals pursuant to the FBI’s disciplinary investigation 

and adjudication processes, and will impose disciplinary measures as warranted. The OIG 

separately recommended that the FBI add privacy warning banners to FBI-issued mobile devices 

and consider assessing whether employees are properly trained on the use of text messages and 

instant messages, as well as whether it should provide additional guidance about the use of FBI 

devices for non-governmental purposes. Although the FBI has clear and unambiguous warnings 

related to the use of FBI Information Technology and Systems, including FBI-issued devices, the 

Executive Assistant Director of the Information and Technology Branch has been directed to 

implement the suggested warnings in the most technologically expeditious and feasible manner. 

The Bureau will also provide renewed training on the governing policies related to device use. 

Each of these areas is discussed in more detail below. 

II. Detailed Response to the Eight Focal Points of the OIG Report

While the OIG Report contains several findings of poor judgment, violations of or 

disregard for policy, and investigatory actions that might have benefitted from a better decisionmaking process, it contains no finding that any error in judgment, violation of policy, or 

investigatory action was motivated by political bias or other improper considerations. This is 

critical to the operation of the FBI and the ability of the American people to count on the FBI to 
4

act impartially and objectively. For the same reasons, it is equally important to note again that 

the OIG Report is narrowly focused on the handful of individuals who were the most deeply 

involved in running the MYE investigation, and does not generally find fault with the FBI’s 

policies, practices, or procedures as they pertain to investigations, ethical conduct, or media 

contacts. 

1. Conduct creating a perception that political bias could have influenced certain 

actions or decisions

The OIG identified several separate acts that created an appearance that political bias 

could have influenced certain actions or decisions. The FBI accepts that text messages 

exchanged over FBI-issued devices by certain FBI employees, primarily Peter Strzok and Lisa 

Page, demonstrated extremely poor judgment and a lack of professionalism. The FBI also 

accepts that the content of these messages, critical of political candidates, brought discredit upon 

those exchanging them and harmed the FBI’s reputation. Similarly, the FBI accepts that the 

decision to allow Cheryl Mills and Heather Samuelson to be present during the interview of 

former Secretary Clinton was inconsistent with typical investigative strategy and created an 

appearance that political bias could have influenced this decision, especially when viewed in the 

light of messages exchanged between Mr. Strzok and Ms. Page.2

 

Despite the appearance of bias created by these actions, the OIG found no evidence that 

bias affected any investigatory decision or action. As determined by the OIG, there was no 

evidence of bias or other improper considerations in former Director Comey’s instruction to 

complete the MYE investigation “promptly.” Likewise, the OIG considered multiple decisions 

and actions taken by the MYE team related to obtaining evidence, interview timing and 

procedures, and the use of consent or immunity agreements. No evidence of bias or other 

improper considerations was found by the OIG in the MYE team’s: use of consent, rather than 

subpoenas, search warrants, or other legal process to obtain evidence; decisions regarding how to 

limit consent agreements; decision not to seek personal devices from former Secretary Clinton’s 

senior aides; decisions to enter into immunity agreements; decisions regarding the timing and 

scoping of former Secretary Clinton’s interview, or to proceed with the interview with Cheryl 

Mills and Heather Samuelson present; and, the decision to obtain testimony and other evidence 

from Ms. Mills and Ms. Samuelson by consent agreement and with act-of-production immunity. 

Although no bias or other improper consideration was found in the FBI’s decisions or 

actions, the appearance of bias is disconcerting and potentially damaging to the FBI’s ability to 

perform its mission. Accordingly, the FBI is instituting new political bias training, drawing 

from, among other sources, the training, guidance, and practices of the federal judiciary. To 

commence within 120 days, training will begin with senior leadership and the Senior Executive 

Service (SES) ranks, with the objectives of discussing the OIG Report, lessons learned, and the 

need for scrupulous, unwavering adherence to the policies and procedures intended to combat 

potential political bias. After this initial training, the Director will require all employees to 

 2 Identifying a different type of potential bias, the OIG Report also found it improper for Ms. 

Page to comment on or consider how the approach to interviewing former Secretary Clinton 

might affect the FBI’s interests if she won the presidency. The FBI agrees with this finding. 
5

undergo similar training to reinforce the importance of maintaining a work environment free 

from political bias. The training will cover multiple areas, including at a minimum ethics and 

integrity, objectivity, and the avoidance of political bias, and will occur across multiple settings, 

such as Special Agent in Charge onboarding, Senior Executive Service onboarding, Senior 

Leader courses, Leading People courses, and the Basic Field Training Course. If necessary, 

supplementary Hatch Act and ethics training may also be required. 

Additionally, the Director has tasked the Associate Deputy Director with establishing a 

working group to provide recommendations, within 120 days, on the staffing, structuring, and 

supervising of sensitive investigations in order to ensure that the full suite of the FBI’s 

investigative strengths, a balance of operational experience, and proper resources are provided 

such that every future sensitive investigation is conducted to the highest standards of the Bureau. 

This will include, among other things, consideration of when and whether to increase field office 

participation in such matters, and when and whether it would be beneficial to team agents from 

different components and backgrounds to leverage respective skill sets and experiences, e.g., 

drawing on the experience of public corruption agents when conducting counterintelligence 

investigations.

Disciplinary referrals from the OIG Report will be handled pursuant to the FBI’s 

disciplinary investigation and adjudication processes. Any allegation of misconduct by an FBI 

employee is reviewed, and if merited, investigated by either the FBI Inspection Division or the 

DOJ OIG, as occurred here. At the conclusion of the investigation, the matter is referred to the 

FBI’s OPR for adjudication. FBI employees must maintain the highest standards of personal and 

institutional responsibility. The FBI OPR ensures that the FBI maintains its rigorous standards 

of integrity and professionalism by impartially adjudicating allegations of employee misconduct. 

OPR’s prompt, thorough, and fair adjudication of employee misconduct cases materially 

enhances confidence in and support for the FBI and its mission. With that said, the FBI OPR has

already opened and is conducting investigations, or has concluded misconduct investigations 

arising out of or related to the conduct identified in the Report. It would not be appropriate to 

comment here on any particular individual who was or may be the subject of such an 

investigation. 

2. Violation of or disregard for DOJ or FBI policies by former Director James 

Comey’s July 5, 2016, announcement and October 28, 2016, letter

The OIG found that former Director Comey violated DOJ’s media policy, and potentially

regulations related to the public release of information, when he made his July 5, 2016, 

announcement. He was also found to have committed a serious error in judgment by sending his 

October 28, 2016, letter, in disregard of FBI and DOJ policy, without DOJ approval, and in 

usurpation of the Attorney General’s authority. The FBI does not contest these findings. 

The FBI will implement the OIG’s recommendation that the FBI adopt a policy on the 

appropriateness of employees addressing uncharged conduct in public statements. The Director 

is also tasking the FBI’s OGC to develop, within 30 days, guidance requiring prior consultation 

with DOJ preceding any public reference to FBI charging recommendations in criminal 

investigations. 

Pursuant to the new FBI media policy, FBI personnel authorized to communicate with the 

media must abide by DOJ guidelines contained in 28 CFR 50.2 “Release of information by 
6

personnel of the [DOJ] relating to criminal and civil proceedings,” and in the U.S. Attorney’s 

Manual Title 1-7.000 “Confidentiality and Media Contacts Policy.” This would include 

receiving advanced approval by the appropriate United States Attorney or Assistant Attorney 

General before communicating with the media about a pending investigation or case, except in 

emergency circumstances. Training on these policies will be included in the training described 

above.

3. Issues involving media contacts, dissemination of information, and leaks

The OIG’s conclusion that there is a need to change the “cultural attitude” regarding 

media contacts and leaks at the FBI is troubling. The FBI is acutely aware of the damage 

unauthorized communications or leaks can cause to investigations, prosecutions, the personal 

lives of those involved in the case or who may be subjects or targets, and the reputation of the 

Bureau. Leaks or unauthorized communications are not taken lightly, are never condoned, and 

may result in discipline, up to and including termination, and potentially prosecution. Given the 

conclusions reached in the OIG report, the Director instructed the Assistant Director of OPR to 

review whether current disciplinary penalties are adequate to deter unauthorized media contact or 

leaks and to report back on their adequacy, or the need for additional penalties, within 30 days.

The FBI protects information on a need-to-know basis and, to reinforce the limitations on 

sharing that information, revised its media policy effective November 15, 2017. As an additional 

step, the FBI will ensure that, within 30 days, all personnel are fully aware of the media policy 

and the serious potential consequences for noncompliance. The new media policy restricts who 

is authorized to communicate with the media (i.e., within FBI Headquarters, the Director, Deputy 

Director, Associate Deputy Director, Assistant Director of the Office of Public Affairs, and 

designated OPA staff; in a field office, the Assistant Director in Charge or Special Agent in 

Charge, designated public affairs officer, or other personnel specifically authorized by the field 

office head). The new policy requires that “all contact with members of the media about FBI 

matters must be reported” to the relevant Headquarters or field office officials. It also requires 

that personnel “must immediately notify their supervisors if contact with a member of the media 

concerns suspected classified or grand jury subject matter.” The policy also requires 

conformance with DOJ guidelines contained in 28 CFR 50.2 “Release of information by 

personnel of the [DOJ] relating to criminal and civil proceedings,” and in the U.S. Attorney’s 

Manual Title 1-7.000 “Confidentiality and Media Contacts Policy.” The FBI’s policies, training, 

and disciplinary measures related to media contact and ethics rules, combined with any 

additional policies and training developed after this review, will sufficiently mitigate the risk and

continue to deter this type of misconduct. 

4. Former Deputy Director Andrew McCabe’s recusal obligations

The OIG found that the former Deputy Director and the Bureau acted appropriately with 

regard to his involvement in and recusal from the Clinton-related investigations. The OIG 

concurred with the FBI’s determination that former Deputy Director McCabe was not required to 

recuse from those investigations and found that he notified the appropriate persons in the FBI to 

seek guidance on ethics issues. The OIG Report also makes clear that former Deputy Director 

McCabe generally abided by his voluntary recusal from Clinton-related matters after November 

1, 2016, in that there is no evidence that he continued to supervise investigative decisions in 

those matters after his recusal. The FBI agrees with the OIG that in a few instances, the former 

Deputy Director did not fully comply with his voluntary recusal. 
7

Based on the OIG’s findings related to the analysis of recusal decisions and recusal 

obligations, in particular the finding that FBI ethics officials and attorneys did not fully 

appreciate the potential significant implications of campaign contributions to Dr. McCabe’s 

campaign, and the ninth recommendation in the OIG Report, the FBI’s OGC and OIC have been 

directed to work together to develop a framework for earlier notification of potential conflicts 

caused by campaign contributions to covered persons and to provide additional training on 

recusal obligations and conflicts of interest. The Director has mandated that the framework be 

completed within 60 days.

5. The use of personal email accounts by former Director Comey and Peter Strzok

The OIG found that former Director Comey used personal email accounts for unclassified 

FBI business, absent exigent circumstances, in contravention of FBI and DOJ policy. The OIG 

also found that Peter Strzok and Lisa Page used personal email accounts for unclassified FBI 

business. Although former Director Comey and Ms. Page are no longer employed by the FBI, 

the OIG referred Mr. Strzok for an investigation into whether his use of personal email accounts

violated FBI or DOJ policy. The FBI will handle this referral pursuant to the FBI’s disciplinary 

investigation and adjudication processes. The FBI notes that there is no finding or indication in 

the OIG Report that any classified material ever transited former Director Comey’s, Ms. Page’s, 

or Mr. Strzok’s personal devices or accounts.

The Bureau will evaluate whether additional training and messaging would clarify and 

reinforce the existing policies and protocols on the use of non-FBI devices and accounts and 

further minimize any non-compliance by FBI personnel. Further, the Director has tasked the 

Executive Assistant Director of the Information and Technology Branch with evaluating the 

benefits of consolidating existing relevant policies and guidance concerning the use of personal 

devices and accounts for FBI business, in order to underscore the requirement for exigency in 

such use. 

6. Missteps in certain investigatory processes

Two complex, exceptionally important investigations were being conducted concurrently 

by the FBI in 2016, MYE and the Russia influence investigation. The FBI sought to staff both 

investigations with the people it thought at the time were the best qualified (as it always does). 

Both were close-hold, sensitive, and multifaceted. At the highest levels of leadership then in the 

FBI, judgment calls and decisions were made regarding how each investigation should proceed 

and how investigatory actions should be prioritized. The OIG questioned some of the judgment 

calls and decisions, including reassigning senior members from the MYE team to the Russia 

influence investigation, the delay in seeking a search warrant for Anthony Weiner’s laptop, and 

the decision by agents and prosecutors not to subpoena or seek search warrants for the personal

devices of three senior aides to former Secretary Clinton. The FBI agrees that it could have 

moved more quickly to secure a search warrant for Weiner’s laptop and could have staffed the 

two investigations differently to minimize any detrimental effect to the MYE investigation. The 

addition of staff or resources may have impacted how agents and prosecutors decided what 

devices to seek and review, even if their judgment that certain devices were likely of limited 

evidentiary value remained the same. 

While the OIG was critical of these judgment calls and decisions, it did not find that these

were the result of bias or other improper considerations. Rather, the OIG specifically concluded 
8

that there was no evidence of bias or improper considerations in the decision not to seek the 

personal devices from former Secretary Clinton’s senior aides, the lack of urgency in seeking a 

search warrant for the Weiner laptop, and the prioritization of the Russia influence investigation. 

As previously described, in an effort to learn from its past decisions, good and bad, the 

FBI is establishing a working group to provide recommendations for the staffing, structuring, 

and supervision of sensitive investigations to help avoid or mitigate similar missteps in the 

future.

7. Insubordination by former Director Comey

The OIG found that former Director Comey was insubordinate when he intentionally 

concealed from DOJ his intentions regarding the July 5, 2016, announcement and instructed his 

subordinates to do the same. The FBI does not condone insubordination at any level and will 

institute training to ensure compliance with policy and the chain of command, as appropriate. 

8. The potentially improper use of FBI systems and devices to exchange messages, 

the related referrals for investigation, and the recommendations to create 

additional warning banners and guidance.

The OIG found that several FBI employees had exchanged text messages, instant 

messages, or both that included political statements. The OIG also found that some messages 

appeared to mix political opinion with discussions about the MYE investigation. The OIG 

concluded there is no evidence to connect the political views expressed by these employees with 

the specific MYE investigative decisions. Regarding the messages, the FBI will handle the 

OIG’s referrals pursuant to its disciplinary investigation and adjudication processes and will 

impose disciplinary measures as warranted.

Based on its review of these messages, the OIG separately recommended that the FBI add 

privacy warning banners to FBI-issued mobile devices and consider assessing whether 

employees are properly trained on the use of text messages and instant messages and whether it 

should provide additional guidance about the use of FBI devices for non-governmental purposes. 

FBI employees sign a Rules of Behavior Agreement expressly consenting to the monitoring of 

data communications over FBI information systems (emails, facsimile, computer database use 

and data storage, digital transmission of data, but not voice communications). This agreement 

form must be signed before access to any FBI Information Technology or Information Systems is 

granted. Existing policy also advises employees that “FBI personnel using FBI information 

systems have no reasonable expectation of privacy.” Further, the warning banners that appear at 

login on the FBI’s computer systems expressly apply to “all devices [or] storage media attached 

to this network or to a computer on this network.” Although the FBI has clear and unambiguous 

warnings related to the use of FBI Information Technology and Systems, including FBI-issued 

devices, the Executive Assistant Director of the Information and Technology Branch has been 

directed to implement the suggested warnings in the most technologically expeditious and 

feasible manner. The Bureau will also provide enhanced training on the governing policies 

related to device use, including but not limited to the use of FBI Information Technology and 

Systems for political conversations. 

* * * *
9

In addition to the focal points addressed above, which the FBI believes are responsive to 

findings and recommendations in the OIG report, one other specific and narrow recommendation 

deserves a brief response. 

The OIG recommends that the Office of the Deputy Attorney General (ODAG) consider 

taking steps to improve the retention and monitoring of text messages Department-wide. The 

Bureau already goes to great lengths, within the restrictions imposed by existing technology and 

practicality, to capture and retain text messages sent or received on FBI-issued devices. Still, the 

FBI stands ready to work with ODAG to improve its processes and capabilities. 

III. Conclusion

The FBI appreciates the role of the OIG, its dedication to its task, and the thoroughness of 

its investigation in bringing to light ways in which the FBI can improve the performance of its 

mission. The Bureau also appreciates the finding that there was no evidence that bias or 

improper considerations affected its investigative actions or decisions. Further, while the OIG 

Report focused on only a handful of individuals, as described above, the FBI is reviewing the 

recommendations of the OIG and will be taking action that applies far more broadly to FBI 

leadership, career Special Agents and Intelligence Analysts, and all the various personnel that 

make the FBI the premiere law enforcement and national security agency in the world. The FBI 

is extraordinarily cognizant of the need to maintain impartiality and objectivity, and to make 

certain that the American people trust it to always do so.
ATTACHMENT 

C 
Unknown 

From: 

Sent 

To: 

Subject: 

STRZOK, PETER P. (CD) (FBI) 

Friday, May 06, 2016 6:08 PM 

MCCABE, ANDREW G. (DO) (FBI); PRIEST AP, E W. (CD) (FBI); 

(FBI); PAGE, USA C. (OGC) (FBI) 

RE: Midyear Exam ··- UNCLASSIFIED 

Classification: UNCLASSIFIED 

====================== -~============================= 

Understood and will do. 

From: MCCABE, ANDREW G. (DO) (FBI) 

Sent: Friday, May 06, 2016 5:32 PM 

To: PRIESTAP, E W. (CO) (FBI); STRZOK, PETER P. (CD) (FBI}; PAGE, LISA C. (OGC} 

(FBI) 

Subject: FW: Midyear Exam ·-- UNCLASSIAED 

Importance: High 

Classification: UNCLASSIFIED 

============ ========================================= 

Folks: 

The Director composed the below straw man in an effort to compose what a "final" statement might look like in the 

context of a press conference. This was really more of an exercise for him to get his thoughts on the matter in order, 

and not any kind of decision about venue, strategy, product, etc. 

The Director asked me to share this with you four, but not any further. The only additional people who have seen this 

draft are Jim Rybicki and Jim Baker. Please do not disseminate or discuss any further. 

I do not know if the boss will want to discuss this at the Monday update but please review it before the meeting just in 

case. 

Thanks 

Andrew G. McCabe 

Deputy Director 

Federal Bureau of Investigation 

From: COMEY, JAMES 8. (DO) (FBI) 

sent: Monday, May 02, 2016 7:15 PM 

To: MCCABE, ANDREW G. (DO) (FBI); BAKER, JAMES A. (OGC) (FBI); RYBICKI, JAMES E. (DO) (FBI) 

Cc: COMEY, JAMES 8. (DO) (FBI) 

subject: Midyear Exam --- UNCLASSIAED 

Classification: UNCLASSIFIED 

-==-----=====-======================================== 

E2017001-0000000099-1 
E2017001- 0000000099-2

TRANSITORY RECORD 

I've been trying to imagine what it would look like if I decided to do an FBI only press event to 

close out our work and hand the matter to DOJ. To help shape our discussions of whether that, 

or something different, makes sense, I have spent some time crafting what I would say, which 

follows. In my imagination, I don't see me taking any questions. Here is what it might look like: 

Good afternoon folks. I am here to give you an update on our investigation of Secretary Clinton's use 

of a private email system, which began in late August. 

After a tremendous amount of work, the FBI has completed its investigation and has referred the case 

to the Department of Justice for a prosecutive decision. What I would like to do today is tell you three 

things: (1) what we did; (2) what we found; (3) what we have recommended to DOJ. 

But I want to start by thanking the many agents, analysts, technologists, and other FBI employees who 

did work of extraordinary quality in this case. Once you have a better sense of how much we have 

done, you will understand why I am so grateful and proud of their efforts. 

So, first: what we have done over the last eight months. 

The investigation began as a referral from the Intelligence Community Inspector General in connection 

with Secretary Clinton's use of a private email server during his time as Secretary of State, focused on 

whether classified information was transmitted on that private system. 

Our investigation focused on whether there is evidence that classified information was improperly 

stored or transmitted on that private system, in violation of a federal statute that makes it a felony to 

mishandle classified information either intentionally or in a grossly negligent way, or a second statute 

that makes it a misdemeanor to remove classified information from appropriate systems or storage 

facilities. 

Consistent with our counterintelligence responsibilities, we have also investigated to determine 

whether there is evidence of computer intrusion in connection with the private email server by any 

foreign power, or hackers on behalf of a foreign power. 

I have so far used the singular term, "email server," in describing the referral that began our 

investigation. It turns out to have been more complicated than that. Secretary Clinton used several 

different servers and providers of those servers during her four years at the State Department, and used 

numerous mobile devices to view and send email on that private domain. As new servers and 

providers were employed, older servers were taken out of service, stored, and decommissioned in 

various ways. Piecing all of that back together to gain as full an understanding as possible of the ways 

in which private email was used for government work has been a painstaking undertaking, requiring 

thousands of hours of effort. 

For example, when one of Secretary Clinton's original private servers was decommissioned in 20:xx, 

the email software was removed. Doing that didn't remove the email content, but it was like removing 

the frame from a huge finished jigsaw puzzle and dumping the pieces on the floor. The effect was that 

2 
E2017001- 0000000099-3

millions of email fragments end up unsorted in the server's un-used- or "slack" - space. We went 

through all of it to see what was there, and what parts of the puzzle could be put back together. 

FBI investigators have also read all 34,000 emails provided by Secretary Clinton to the State 

Department in spring 2015. Where an email was assessed as possibly containing classified 

information, the FBI referred the email to the U.S. government agency that was the likely "owner" of 

the information in the email so that agency could make a determination as to whether the email 

contained classified information at the time it was sent or received, or whether there was reason to 

classify the email now, even if its content was not classified at the time it was sent (this is the process 

sometimes referred to as "up classifying"). 

From that group of34,000 emails that had been returned to the State Department in 2015, the FBI sent 

xxxx emails to agencies for classification detenninations. Of those, xxxx have been determined to 

contain classified information at the time they were sent or received. Xxxx of those contained 

information that was Top Secret at the time they were sent; xxxx contained Secret information at the 

time; and xxxx contained Confidential information. Separate from those, a total of xx.xx additional 

emails were ''up classified" to make them Secret or Confidential; the information in those had not been 

classified at the time the emails were sent. 

The FBI also discovered xx.xx work-related emails that were not in the group of 34,000 that were 

returned by Secretary Clinton to State in 2015. We found those additional emails in a variety of 

ways. Some had been deleted over the years and we found traces of them on devices that supported or 

were connected to the private email domain. Others we found by reviewing the archived government 

email accounts of people who had been government employees at the same time as Secretary Clinton, 

including high-ranking officials at other agencies, with whom a Secretary of State might naturally 

correspond. This helped us recover work-related emails that were not among the 34,000 produced to 

State. Still others we recovered from the laborious review of the millions of email fragments dumped 

into the slack space of the server decommissioned in 20xx. 

All told, we found xx.xx emails that were not among those produced to the State Department last 

year. Of those, we assessed that xx.xx possibly contained classified information at the time they were 

sent or received and so we sent them to other government agencies for classification 

determinations. To date, agencies have concluded that xxxx of those were classified at the time they 

were sent or received, xxx at the Secret level and xxxx at the Confidential level. There were no 

additional Top Secret emails found. Finally, none of those we found have since been "up classified." 

I should add here that we found no evidence that any of the additional work-related emails we found 

were intentionally deleted in an effort to conceal them. Our assessment is that, like many users of 

private email accounts, Secretary Clinton periodically deleted emails or emails were purged from the 

system when devices were changed. Because she was not using a government account, there was no 

archiving of her emails, so it is not surprising that we discovered emails that were not on Secretary 

Clinton's system in 2015, when she produced the 34,000 emails to the State Department. 

It could also be that some of the additional work-related emails we recovered were among those 

deleted as "personal" by Secretary Clinton's lawyers when they reviewed and sorted her emails for 

production in 2015. We have conducted interviews and done technical examination to attempt to 

understand how that sorting was done. Although we do not have complete visibility because we are 

3 
E2017001- 0000000099-4

not fully able to reconstruct the electronic record of that sorting, we believe our investigation has been 

sufficient to give us reasonable confidence there was no intentional misconduct in connection with that 

sorting effort. 

The lawyers doing the sorting for Secretary Clinton in 2015 did not individually read tens of thousands 

of emails, as we did; instead, they used search terms to try to find all work-related emails among the 

more than 60,000 total emails remaining on Secretary Clinton's private system in 2015. It is highly 

likely their search terms missed some work-related emails, and that we found them, for example, in the 

mailboxes of other officials or in the slack space of a server. It is also likely that there are other workrelated emails that they did not produce to State and that we did not find elsewhere, and that are now 

gone because they deleted all emails they did not return to State, and the lav,ryers cleaned their devices 

in a such a way as to preclude forensic recovery. 

And, of course, in additional to our technical work, we interviewed many people, from those involved 

in setting up and maintaining the various iterations of Secretary Clinton's private server to staff 

members with whom she corresponded on email, to those involved in the email production to State, 

and finally, Secretary Clinton herself. 

Lastly, we have done extensive work with the assistance of our colleagues elsewhere in the Intelligence 

Community to understand what indications there might be of compromise by hostile actors in 

connection with the private email operation. 

That's what we have done. Now let me tell you what we found. 

There is evidence to support a conclusion that Secretary Clinton, and others, used the private email 

server in a manner that was grossly negligent with respect to the handling of classified 

information. For example, seven email chains concern matters that were classified at the TS/SAP level 

when they were sent and received. These chains involved Secretary Clinton both sending emails about 

those matters and receiving emails from others about the same matters. There is evidence to support a 

conclusion that any reasonable person in Secretary Clinton's position, or in the positon of those 

government employees with whom she was corresponding about these matters, should have known that 

an unclassified system was no place for such an email conversation. Although we did not find clear 

evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of 

classified information, there is evidence that they were extremely careless in their handling of very 

sensitive, highly classified information. 

Similarly, the sheer volume of information that was properly classified as Secret at the time it was 

discussed on email (that is, excluding the "up classified" emails) supports an inference that the 

participants were grossly negligent in their handling of that information. 

We also developed evidence that the security culture of the State Department in general, and with 

respect to use of unclassified email systems in particular, was generally lacking in the kind of care for 

classified information found elsewhere in the government. 

With respect to potential computer intrusion by hostile actors, we did not find direct evidence that 

Secretary Clinton's personal email system, in its various configurations since 2009, was successfully 

hacked. But, given the nature of the system and of the actors potentially involved, we assess that we 

4 
E2017001- 0000000099-5

would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the 

private email accounts of individuals with whom Secretary Clinton was in regular contact from her 

private account. We also assess that Secretary Clinton's use of a private email domain was both known 

by a large number of people and readily apparent. Given that combination of factors, we asses it is 

reasonably likely that hostile actors gained access to Secretary Clinton's private email account. 

So that's what we found. 

Finally, with respect to our recommendation to the Department of Justice. In our system, the 

prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has 

helped collect. Although we don't normally make public our recommendations to the prosecutors, we 

frequently make recommendations and engage in productive conversations with prosecutors about what 

resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I 

think unusual transparency is in order. 

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. At the outset, we are not aware of a 

case where anyone has been charged solely based on the "gross negligence" prohibition in the 

statute. All charged cases of which we are aware have involved the accusation that a government 

employee intentionally mishandled classified information. In looking back at our investigations in 

similar circumstances, we cannot find a case that would support bringing criminal charges on these 

facts. All the cases prosecuted involved some combination of: (1) clearly intentional misconduct; (2) 

vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; 

(3) indications of disloyalty to the United States; or (4) efforts to obstruct justice. We see none of that 

here. 

Accordingly, although the Department of Justice makes final decisions on matters such as this, I am 

completing the investigation by expressing to Justice my view that no charges are appropriate in this 

case. 

I know there will be intense public disagreement in the wake of this result, as there was throughout this 

investigation. What I can assure the American people is that this investigation was done competently, 

honestly, and independently. No outside influence of any kind was brought to bear. I know there were 

many opinions expressed by people who were not part of the investigation -- including people in 

government - but none of that mattered to us. Opinions are irrelevant, and they were all uninformed by 

insight into our investigation, because we did the investigation in a professional way. Only facts 

matter, and the FBI found them here in an entirely apolitical and professional way. I couldn't be 

prouder to be part of this organization. 

### 

--==-=---============================================= 

Classification: UNCLASSIFIED 

5 
ATTACHMENT 

D 
Statement by FBI Director James R Corney on the h1vestigatfon 

of Secretary Hmary Clinton's llse of a Personal Emrdi System 

J 1 ,- ?(' 1· ,, u y ), - J 6 

[As Prepared for Delivery l 

Good n1orning, T'rn hete to give you an update cn1 the FBI's investigatfon of Secretary 

Clinton)s use of a personal email system during her til:ne as Secretary of State. 

,1\frer a tremendous amount ofvvork over the last , the FBI is completing its 

investigation and referring the case to the Depa:rtrnent of J ustic:e for a prosec:utive decision. 

\Vhat I would like to do today is tell you three things: what we did; v:hat we found~ and what we 

are recommending Ui the Departr:nent of Justice. 

This will be an unusual statement in at kact a couple v/ays. First. I am going to include 

more detail about our proces.s than l ordinarily \\'Ollld, because I think.1l1e American people 

deserve those details in a case of intense public interest Second, I have not coordinated or 

,reviewed this statement in any way \Vith the Department ofJustice or any other part of the 

go,,emment Th.ey do not kno\v what I am about to say, 

I want to start by thanking the FBI ernployccs who did remarkable work in this case. 

Once you have a better sense of how much we have done, you \Vill understand ,vhy I am so 

grateful and proud of their efforts, 

So, first, what we have done: 

The investigation began as a referral from the .Intelligence Community Inspector General 

in corrnection \\<1th Secretary Clinton's use of a personal. email server during her time as 

Secretdt,Y of State. referral focused on \vliethcr classi information ,vas transmitted on 

that personal system. 

Our investigation looked at ,xhether there is evidence classified infonnation was 

improperly stored or transmitted on that persona! system, violation a federal statute making 

it a felony to mishandle classified information either intentionally or in a grossly negligent \Vay, 

or a second statute making it a misdemeanor to knowingly remove classified information from 

appropriate systems or storage fad t l tics. 

Consistent with our counter-intelligence responsibilities,\\\:' have also investigated to 

determine whether there is evidence of computer intrusion in connection ,vitb the personal email 

server by any foreign power, or other hostile actors. 

I have so far used the singular term.,, "email ~erver," in describing the referral that began 

our investigation, It turns out to have been r:nore complicated than that. Secietary Clinton used 

1 

(U//FOUO) FBI DOJ OIG ELEC 003446 
several different servers and administrators of those servers during her four years at the State 

Department, and used numerous mobile devices to view and send email on that personal. domain. 

As new servers and equipment were employed. older servers were taken out of.service, stored, 

and decommissioned in various ways. Piecing all of that back together - to gain as fuH 

an understanding as possible of the ways in which personal email was used for government work 

WW has been a painstaking undertaking. requiring thou&'a!lds ofhours of effort. 

For example~ when one of Secretary Clinton's original personal servers was 

decommissioned in 2013. the email software \-Vas removed. Doing that didn't remove the email 

content. but it was like removing the frame from a huge finished jigsaw puztle and dumping the 

pieces on the floor. The effect was that millions of email fragments end up unsorted in the 

server1 s un-used - or ~-slack~, - space. We searched through aH of it to see what •.:vas there, and 

what parts ofthepuzzJe could be put back together. 

FBI investigators have also re-ad aU of the approximately 30,000 emails provided by 

Secretary Clinton to the State Department in December 2014. Where an email was assessed as 

possibly containing classified information, the FBI ref.erred the email to any U.S. government 

agency that was a likely "ovmer'' ofinfrmnatlon in the email, so that agency could make a 

determination as to whether the email contained classified information at the time it was sent or 

received, or whether there was reason to classify the email now) even if its content was not 

classified at the time it was sent (that is the process sometimes referred to as ··up-cfassifying'l 

From the group of 30,000 emails returned to the State Department, 110 emails in 52 

email chains have been determined by the o-w1ling agency to contain classified infomi.ation at the 

time they were sent or received. Eight of those chains contained infom1ation that was Top Secret 

at the time they vvere sent; 36 chains contained Se,wt information at the time; and 8 contained 

Confidential information, which i.s the lowest level of classificatiorL Separate from those) about 

2,000 additional emails were ''up-classified'' to make them Confidential; the information in those 

had not been classified at the time the emails were sent. 

The FBI also discovered several thousand work-related entails that were not in the group 

of 30,000 that were returned by Secretary Clinton to State in 2(H 4. We found those additional 

emails in a variety of ways. Some had been deleted over the years and we found traces of them 

on devices that supported or were connected to the private email domain. Others we found by 

revieWin.g the archived government email accounts of people who had been government 

employees at the same time as Secretary Clinton; including high-ranking officials at other 

agencies, people with whom a Secretary of State might naturally correspond. 

This helped us recover work~related emails that were not among the 30,000 produced to 

State. Still others we recovered from the laborious review of the miUions of email fragments 

dumped into the slack space of the server decommissioned in 2013. 

\:Vithrespect to the thousands of emails ,ve found that were not among those produced to 

State, agencies have concluded that 3 of those were classified at the time they were sent or 

received,, 1 at the Secret level and 2 at the Confidential level, There were no additional Top 

Secret emails found. Fin.ally, none of those we found have since been "urH~lassified" 

2 

(U//FOUO) FBI DOJ OIG ELEC 003447 
.. 

I should add here that vve found no evidence that any of the additional work ~related 

emails ,vereintentionally deleted in an effort to conceal them .. Our assessment is that, like many 

email u...;;ers. Secretary Clinton periodically deleted .emails or emails were purged from the system 

when devices ,:vere changed. Because she was not using a government account - or even a 

commercial account like GmaiJ - there was no archiving at all of her emails. so it is not 

surprising that ive discovered emails that were not on Secretary Clinton's system in 2014, when 

she produced th.e 30J>OO emails to the State Department. 

lt could also be thatsome oft.he additional work~.related emails we recovered were 

among those deleted as "personal" by Secreta.ryClinton•s la:wyers \:Vhen they reviewed and 

sorted her emails for production in 2014. 

The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the 

content of all of her emails, as ,:ve did for those availahle to us; instead, they relied on header 

information and used search terms to try to :find all workMtelated emails among the reportedly 

more than 60,000 total emails remaining on Secretary Clinton's personal system in 2014. It is 

highly likely their search terms missed some work .. related emails, and that we later found them, 

for example, in the mail.boxes of other officials or in the slack space of a server. 

It is also likely that there are other work•related emails that they did not produce to State and that 

we did not find elsewhere, and that are now gone because they deleted all emails they did not 

return to State, and the la\.\ryers cleaned their devices in such a way as to preclude complete 

forensic recovery. 

V./e have conducted interviews and done technical examination to attempt to understand 

how that sorting was done by her attorneys. Although we do not have complete visibility 

because we are not able to fully reconstruct the electronic record of that sorting, we believe our 

investigation has been sufficient to give us reasonable confidence there \:Vas no intentional 

misconduct in connection, ~ith that sorting effort 

And, of course, in addition to our technical work, we interviewed many people, from 

those involved in setting up and maintaining the various iterations ofSecret.ary Clintonis 

personal server, to staff members with \Vhom she corresponded on email, to those involved in the 

email prt1duction to State, and finally, Secretary Clinton herself. 

Lasti we have done extensive work to understand what in4ications there .might be of 

compromise by lmstile actors in connection with the personal email operatic.m. 

That's what we have done. Now let me tell you what we found: 

Although we did not :find clear evidence that Secretary Clinton or her colleagues intended 

to violate laws governing the handling of cfossified information, there is evidenc-e that they were 

extremely careless in their handling of very sensitive, highly classified information. 

For exan1ple, seven ema:il chains concern matters that were classified at the Top 

Secret/Spe:cial Access Program level ,vhen they were sent and received. These .chains involved 

3 

(U//FOUO) FBI DOJ OIG ELEC 003448 
Secretary Clinton both sending emails about those matters and receiving emails :from others 

about the same matter~. There is evidence to support a conclusion that any reasonable person in 

Secretary Clinton's position, or in the _position of those government employees v.-ith whom she 

,:vas corresponding about these matters, should have kno\\-n that an unclassified system was no 

place for that conversation. Jn addition to this highly sensitive information, we also .found 

in.formation that was properly classified as Secret by the U.S. Intelligence Co11unu11ity at the time 

it was discussed on email (that is, excluding the later "up~classifie-d." emails). 

None of these emaHs should have been on any kind of unclassified system; but their 

presence is especially concerning because all of these emails were housed on unda.Ssified 

personal servers not even supported by full-time security staff, like those found at Departments 

and Agencies of the U.S. Government - or even ·vvith a commercial service like Gmail. 

Separately, it is important to say something about the marking of classified informatio11. 

Only a very small number of the emails containing classified information bore markings 

indicating the presence of classified information. But even if infom1ation is not marked 

Hclassified" in an email, participants who know or should know that the subject matter is 

classified are still obligatedtQ protect it 

\Vhile not the focus of our investigation, we also developed evidence that the security 

culture of the State Department in general, and with respect to use of unclassified email systems 

in particular, was generally lacking in the kind of care for classified information found elsewhere 

in the government 

With respect to potential c-omputer intru.~fon by hostile actors, we did not :find direct 

evidence th.at Secretary Clinton's person.al er:nail domain, in its various c-onfigurations since 

2009; was success.fully hacked. But, given the nature of the system and of the actors potentially 

involved, we assess that we would be unlikely to see such. direct evidence. We do assess that 

hostile actors gained access to the private commercial en:mil accounts of people with 1-vhom 

Secretary Clinton was in regular contact from her personal account. We also assess that 

Secretary Clinton's use of a personal email domain was both known by a large number of people 

and readily apparent She al.so used her personal email extensively while outside the United 

States, including sending and receiving work-related emails in the territory of sophisticated 

adversaries. Given that combination of factors, we assess it is possible that hostile actors gained 

access to Secretary Clinton's person.al email account. 

So that's what we found. Finally, with respect to our recommendation to the Department of 

Justice: 

In our system, the prosecutors make the dec-isions about whether charges are appropriate 

based on evidence the .FBI has helped collect. Although we don't no.rmally make public our 

recommendations to the prosecutors, we :frequently make recommendations and engage in 

productive conversations with prosecutors about what resolution may be appropriate, given the 

evidence. In this case. given the importance of the matter, I think. unusual transparency is in 

order, 

4 

(U//FOUO) FBI DOJ OIG ELEC 003449 
·;t: 

Although there is evidence of potential violations of the statutes regarding the handling of 

classifiedinformation, our judgment is that no reasonable prosecutor would bring such a case. 

Prosecutors necessarilyweigh a number of factors before bringing charges. Th.ere are obvious 

considerations; like the strength of the evidence, especially regarding intent. Responsible 

decisions also consider the context of a person's actions~ and how similar situations have been 

handled in the past 

In looking back at our investigations into mishandling or removal of classified 

information,, we cannot find a case that would support bringing criminal charges on these facts. 

All the cases prosecuted involved some combination of: clearly intentional and \\illful 

mishandling of classified information; or vast quantities of materials exposed in such a way as to 

support an inference of intentional misconduct; or indications of disloyalty to the United States; 

o:r efforts to obstruct justice. We do not see those things here. 

To be clear. this is not to suggest th.at in similar circumstances, a person who engaged in 

this activity ,vou1d face no consequences. To the contrary, those individuals are often subject to 

security or administrative sanctions. But that is not what we are deciding now. 

As a result, although the Department of Justice makes final decisions on matters like this, 

we are expressing to Justice our vie,v that no charges are appropriate in. this case. 

I know there will be intense public debate in the wake of this recommendation, as there 

was throughout this investigation. What I can assure the American people is that this 

investigation was done competently, honestly, and independently. No outside influence of any 

kind was brought to bear. 

I know there were many opinions expressed by people who were not part of the 

investigation -including people in government - but none of that mattered to us. Opinions are 

irrelevant, and they were all uninformed by insight into our investigation, because we did the 

investigation the right -..vay. Only facts matter~ and the FBI found them here in an entirely 

apolitical ~d professional way. I couldn 'tbe prouder to be part of this organization, 

### 

5 

(U//FOUO) FBI DOJ OIG ELEC 003450 
ATTACHMENT 

E 
Honorable Richard M. Burr 

Chairman 

Select Committee on Intelligence 

Honorable Charles E. Grassley 

Chairman 

Committee on the Judiciary 

Honorable Richard Shelby 

Chairman 

Committee on Appropriations 

Subcommittee on Commerce, Justice, Science 

and Related Agencies 

Honorable Ron Johnson 

Chairman 

Committee on Homeland Security and 

Governmental Affairs 

Dear Messrs Chairmen: 

U.S. Department of Justice 

Federal Bureau of Investigation 

Washington. D.C. 205]5 

October 28, 2016 

Honorable Devin Nunes 

Chairman 

Pennanent Select Committee on Intelligence 

Honorable Robert Goodlatte 

Chairman 

Committee on the Judiciary 

Honorable John Culberson 

Chaim,an 

Committee on Appropriations 

Subcommittee on Commerce, Justice, 

Science and Related Agencies 

Honorable Jason Chaffetz 

Chaim,an 

Committee on Oversight and 

Government Reform 

In previous congressional testimony, l referred to the fact that the Federal Bureau of 

Investigation (FBI) had completed its investigation of former Secretary Clinton's personal email 

server. Due to recent developments, I am writing to supplement my previous testimony. 

In connection with an unrelated case, the FBI has learned of the existence of emails that 

appear to be pertinent to the investigation. I am writing to inform you that the investigative team 

briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative 

steps designed to allow investigators to review these emails to determine whether they contain 

classified information, as well as to assess their importance to our investigation. 

Although the FBI cannot yet assess whether or not this material may be significant, and l 

cannot predict how long it will take us to complete this additional work, I believe it is important 

to update your Committees about our efforts in light of my previous testimony. 

Sincerely yours, 
I - Honorable Dianne Feinstein 

Vice Chairman 

Select Committee on Intelligence 

United States Senate 

Washington, DC 20510 

I - Honorable Patrick J. Leahy 

Ranking Member 

Committee on the Judiciary 

United States Senate 

Washington, DC 20510 

1 - Honorable Barbara Mikulski 

Ranking Member 

Committee on Appropriations 

Subcommittee on Commerce, Justice, Science 

and Related Agencies 

United States Senate 

Washington DC 20510 

1 - Honorable Thomas R. Carper 

Ranking Member 

Committee on Homeland Security and 

Governmental Affairs 

United States Senate 

Washington, DC 20510 

1 - Honorable Adam B. Schiff 

Ranking Member 

Permanent Select Committee on Intelligence 

U.S. House of Representatives 

Washington, DC 20515 

1 - Honorable John Conyers Jr. 

Ranking Member 

Committee on the Judiciary 

U.S. House of Representatives 

Washington, DC 20515 

1 - Honorable Michael Honda 

Ranking Member 

Committee on Appropriations 

Subcommittee on Commerce Justice, Science 

and Related Agencies 

.S. House of Representatives 

Washington, DC 205 I 5 
I - Honorable Elijah E. Cummings 

Ranking Member 

Committee on Oversight and 

Government Reform 

U.S. House of Representatives 

Washington, DC 20515 
ATTACHMENT 

F 
Honorable Richard M. Burr 

Chairman 

Select Committee on Intelligence 

Honorable Charles E. Grassley 

Chairman 

Committee on the Judiciary 

Honorable Richard Shelby 

Chairman 

Committee on Appropriations 

Subcommittee on Commerce, Justice, 

Science and Related Agencies 

Honorable Ron Johnson 

Chairman 

Committee on Homeland Security and 

Governmental Affairs 

Dear Messrs. Chairmen: 

U.S. Department of Justice 

Federal Bureau of Investigation 

Washington, D. C. 20535 

November 6, 2016 

Honorable Devin Nunes 

Chairman 

Permanent Select Committee on Intelligence 

Honorable Robert Goodlatte 

Chairman 

Committee on the Judiciary 

Honorable John Culberson 

Chairman 

Committee on Appropriations 

Subcommittee on Commerce, Justice, 

Science and Related Agencies 

Honorable Jason Chaffetz 

Chairman 

Committee on Oversight and 

Government Reform 

I write to supplement my October 28, 2016 letter that notified you the FBI would be 

taking additional investigative steps with respect to former Secretary of State Clinton's use of a 

personal email server. Since my letter, the FBI investigative team has been working around the 

clock to process and review a large volume of emails from a device obtained in connection with 

an unrelated criminal investigation. During that process, we reviewed all of the communications 

that were to or from Hillary Clinton while she was Secretary of State. 

Based on our review, we have not changed our conclusions that we expressed in July 

with respect to Secretary Clinton. 

I am very grateful to the professionals at the FBI for doing an extraordinary amount of 

high-quality work in a short period of time . 

cc: Sec next page 
I - Honorable Dianne Feinstein 

Vice Chairman 

Select Committee on Intelligence 

I - Honorable Patrick J. Leahy 

Ranking Member 

Committee on the Judiciary 

I - Honorable Barbara Mikulski 

Ranking Member 

Committee on Appropriations 

Subcommittee on Commerce, Justice, 

Science and Related Agencies 

I - Honorable Thomas R. Carper 

Ranking Member 

Committee on Homeland Security and 

Governmental Affairs 

I - Honorable Adam B. Schiff 

Ranking Member 

Permanent Select Committee on Intelligence 

I - Honorable John Conyers, Jr. 

Ranking Member 

Committee on the Judiciary 

I - Honorable Michael Honda 

Ranking Member 

Committee on Appropriations 

Subcommittee on Commerce, Justice, 

Science, and Related Agencies 

I - Honorable Elijah E. Cummings 

Ranking Member 

Committee on Oversight and 

Government Reform 
ATTACHMENT

G
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ATTACHMENT

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Secretary 

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Specia Agent In Otarge 

Section Otief Assistant Director 

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Reporter Reporter 

Assistant Lega Attache Unattributed \ i HQ Phooe N"mbe, 

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D rect on of C.ontads 
APPENDIX ONE

CLASSIFIED
APPENDIX TWO

LAW ENFORCEMENT SENSITIVE
U.S. DEPARTMENT OF JUSTICE OFFICE OF THE INSPECTOR GENERAL

950 Pennsylvania Avenue, Northwest

Suite 4760

Washington, DC 20530-0001

 

Also at Oversight.gov

The Department of Justice Office of the Inspector General (DOJ OIG) is a 

statutorily created independent entity whose mission is to detect and deter 

waste, fraud, abuse, and misconduct in the Department of Justice, and to 

promote economy and efficiency in the Department’s operations.

To report allegations of waste, fraud, abuse, or misconduct regarding DOJ 

programs, employees, contractors, grants, or contracts please visit or call the

DOJ OIG Hotline at oig.justice.gov/hotline or (800) 869-4499.

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