A few hours into a House committee hearing Tuesday, Rep. Eric Swalwell asked Inspector General Michael Horowitz: “Do you agree that there is no evidence Jim Comey lied to you in your investigation?”
“We did not make any finding that he lied to us,” Horowitz answered.
Swalwell’s line of questioning was intended to summarize what the IG didn’t find—examples of improper prosecutorial decisions based on political biases revealed in text messages; definitive evidence that Hillary Clinton was guilty of a crime; or evidence that Comey leaked the existence of the Russia investigation—to set up his final question, which was, “Mr. Horowitz, do you think it’s time to move on past the Hillary Clinton emails?”
While Horowitz deflected that decision to Congress, his direct answer whether Comey lied was curious, in that his conclusion conflicts with facts and testimony detailed in his own report. Perhaps the most controversial issue the report examined was Comey’s late-October decision to notify Congress of new evidence that “may be pertinent” to the Clinton email investigation: thousands of Clinton emails found on Anthony Weiner’s laptop.
The notification came four months after Comey’s infamous July 5 press statement, in which he declared the investigation effectively closed, with no recommendation of criminal referral for Clinton to the Department of Justice. The October letter notified Congress the FBI was re-opening the investigation, and was received as if a grenade has rolled into the Clinton camp 11 days before voters went to the polls.
Many perceived President Trump’s surprise victory a week or so after the notification letter lit up the electorate as the direct result of Comey’s decision. Accusations and incriminations ensued.
Comey’s Explanation Contradicts the IG Report
Comey defended his decision to submit the letter, on purely ethical grounds. In his book and all of his subsequent interviews, he described his dilemma as a binary decision between “speak” and “conceal,” repeatedly and consistently declaring that he chose the “speak” option to avoid the “catastrophic” and “corrosive” ramifications to the FBI and DoJ that would come with a decision to “conceal.”
Absent from this explanation is any mention of leaks. Not a word. It was widely reported at the time, and since, that Comey was responding to the threat that FBI agents in New York were beginning to leak elements of the story to the media. It was widely believed at FBI HQ and the DoJ that it was simply a matter of time before the press would report that the FBI was sitting on explosive new evidence in the Clinton email investigation, and Comey’s FBI was slow-walking the investigation to avoid re-opening the investigation.
This is not an ethical dilemma. This is a blinking red light on the “self-preservation” console. For whatever reason, be it bureaucratic mismanagement, inadequate leadership, the distraction of the Russia investigation, or purposeful inattention, the lid was about to blow off of a month-long internal battle within the FBI to either address (“speak”) or ignore (“conceal”) these emails. In this case, the New York FBI was doing the speaking (to the media) and the accusation was that FBI HQ was doing the concealing.
Under these circumstances, a month after learning of the existence of Clinton emails on Weiner’s laptop, Comey found himself, sitting in his conference room at 10 a.m. on October 27, being briefed by the reassembled Mid-Year Exam team on the imperative to get a search warrant to review those emails. FBI New York had complained to Justice officials in the Southern District of New York office. Those officials had contacted main Justice in DC and inquired about the status of the search warrant they’d requested weeks prior.
What happened behind the closed doors of that FBI conference room appears to be under dispute, although the majority of attendees seem to generally agree about the nature of the primary issues they argued across the table. First, once they agreed that a search warrant should be obtained, Comey characterized as a matter of “personal integrity” that Congress be notified. There is general consensus that this was a consistent topic of discussion. Comey says he believed his testimony to Congress, during which he assured them the investigation was over, obligated him to amend that testimony in light of the new evidence and search warrant request.
The other topic of discussion was the threat of leaks out of the New York FBI office, suggesting to the media that Comey or his team were slow-walking the investigation. Everyone in the room, and everyone at the Justice Department who were subsequently informed of the deliberations, agrees this was a major factor in the decision matrix, given equal if not more weight than Comey’s expression of “personal integrity.” Everyone, that is, except for James Comey.
Here’s how Comey described it to OIG inspectors:
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.”
“That would be a cowardly way to make a decision,” Comey said. Remember that.
Comey’s chief counsel and confidante, James Baker, was in the room for all of the meetings. Here’s what he told the IG inspectors:
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.
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 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.’
Peter Strzok was the lead investigator on the Mid-Year Exam investigation, and was in all of the meetings, while his paramour and FBI lawyer Lisa Page was privy to the details of the decision-making process. Here’s what they told the IG:
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.
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.
Over the day or two leading up to Comey’s release of his letter to Congress in late October, FBI and DoJ officials were burning up the phone lines while in a bureaucratic kabuki dance designed to protect themselves from the other’s anticipated actions. This back-and-forth was conducted exclusively at the deputy level—there was no direct contact between the principals.
Then a Proxy Negotiation Comey Decides to Buck
Comey refused to speak directly to Attorney General Loretta Lynch or Deputy Attorney General Sally Yates because he believed they would order him not to release the letter, and he wanted to give them a chance to provide their guidance indirectly. He chose to characterize such guidance, delivered by a Lynch deputy arguing on her behalf to an FBI deputy arguing Comey’s position, to be a “recommendation” he could then decline. That is the action he ultimately took.
After much internal debate, Lynch and Yates decided not to speak with Comey directly for the same reason—they knew they’d have to give him a direct order not to send the letter, and they were concerned about actions he may (or may not) take in response. Their primary concern was that Comey’s deputies had been characterizing Comey’s motivation for sending the letter as a “personal ethical obligation,” which put them in the untenable position of downplaying the ethical considerations the FBI director had now put on the record.
The problem with all of this is the same problem we’ve been finding with a number of Comey actions he claims to have taken out of a sense of ethical responsibility: it simply wasn’t true. The real reason Comey and his staff were going through this dance wasn’t a sense of duty to amend his testimony to Congress. He admitted in the IG report that he may have forgone notification if he’d heard about the Weiner laptop issue earlier in the month:
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.
The “personal ethical obligation” was a convenient excuse, but it was the fear of an imminent leak by FBI New York revealing that FBI HQ was dragging their feet on potentially explosive evidence in the Clinton case that was the primary motivator for Comey’s proposed letter.
How do we know that? Because just about everyone in the meetings told us so, with the sole exception of Comey. Those FBI officials then began communicating their bosses’ guidance to their colleagues at the DoJ across the street.
Here’s What Everyone But Comey Said Happened
Yates was the deputy attorney general. Here’s how she characterized her understanding of the issue, based on conversations relayed to her by her deputy, Matthew Axelrod:
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.’
…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.’
Comey’s framing—that this was a “personal ethical obligation” and, by the way, there’s going to be a leak that’ll blow this out of the water anyway—was at odds with his statement that, given more time, he may have considered withholding notification of Congress until they were able to assess the significance of the emails found on the laptop.
There would not have been the additional imperative of getting in front of leaks earlier in the month. The only contributing factor to whether he decided to “speak” under those circumstances would’ve been the strength of his “personal ethical obligation.” Yet he allowed for the possibility that he wouldn’t have followed through on that obligation, given more time.
A “personal ethical obligation” is not generally thought to be a transactional virtue, but it is an effective tactic to box in those at DoJ who would be inclined to deny him his desire to notify. “We have to do this because it’s about to leak” would be, according to Comey, a “cowardly” position. But adding a “personal ethical obligation” to the argument injects a sense of honor and principle into the equation.
He knew what he was doing, and the DoJ knew what he was doing, as well. Here’s Lynch in the IG report:
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 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.
As we are all now aware, over the objections of the DoJ, Comey released the notification letter on October 28, 2016. The blowback was instant, and enduring. After a restive weekend, punctuated by either jubilation or acrimony from just about all quarters, Comey and Lynch met privately after their regular Monday morning staff meeting at DoJ.
Recall Swalwell’s question: “Did you find any evidence that Comey lied?” and Horowitz’s answer, “We did not make any finding that he lied to us.” Keep that in mind as you read the following statements from Comey and Lynch.
Comey characterized the meeting as a brief and cordial encounter, wherein Lynch effectively endorsed his actions and showed sympathy for his plight. She then, according to Comey, selfishly asked him to try to make it appear as if she had given him a hard time:
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.
Loretta Lynch, the attorney general of the Unites States, told the IG, in her own words, that FBI Director Comey was lying to them. Here’s how she described the meeting (emphasis added):
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 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…
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.
…[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.
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… And I said, you know, I’ve talked, you and I have talked about that before…. [McCabe] and I have talked about them before….
[H]e 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 said 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.
Lynch’s chief of staff stated that Lynch told her about the conversation with Comey afterwards. [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.
This Guy Is Lying Like Roadkill
I’ve included both descriptions in their entirety to highlight both the stark differences in testimony as to what was discussed, and to refrain from cherry-picking quotes that support my contention that Comey lied to the OIG, both about this meeting and his motivation for releasing the notification.
Comey told the IG he hadn’t considered the likelihood of a leak from FBI New York in making his decision to notify Congress. Everyone else associated with the deliberations testified that he did. Comey omitted from his description of the meeting with Lynch his agreement that his primary concern was a leak from the FBI Field Office in New York, along with any acknowledgement that she’d expressed her disappointment in what he did, and why he did it.
In short, Comey manipulated the DoJ by characterizing his dilemma as a “personal integrity obligation” when all around him knew this to be eyewash. He mischaracterized the closed-door discussions at FBI HQ to omit any reference to the fact that the fear of leaks was an integral part of the deliberations. He then mischaracterized his meeting with Lynch to protect the same narrative. To have made that decision based on the fear of leaks, he said, “would have been cowardly.”
One can be forgiven, after reading the IG report, for having a hard time believing anything Comey says about one-on-one meetings held in a private setting. Whether or not IG Horowitz felt it necessary to present as a “finding,” the fact remains that, if Comey is telling the truth, everybody else is lying.