Day: January 21, 2024

James Comey in Washington in 2016, when he was the F.B.I. director.Credit…Drew Angerer/Getty Images

James Comey’s Oct. 28, 2016, letter to Congress — announcing the resumption of the Hillary Clinton email investigation based on newly discovered evidence — may well have cost her the presidency. In “A Higher Loyalty,” Mr. Comey explains that his decision to send the letter was made solely on the merits and based on two key assumptions presented to him the day before — on Oct. 27.

I, too, am well versed in Mrs. Clinton’s emails. In 2015 and 2016, I was a leader of the State Department Office of Inspector General team that examined Mrs. Clinton’s use of personal email when she was secretary of state (along with the email use of four other secretaries of state).

The inspector general’s work was conducted parallel to but independently of the F.B.I.’s criminal investigation. It focused on the State Department’s handling of personal email use by Mrs. Clinton over her four-year term, covering in detail civil and administrative issues affecting cybersecurity, records preservation, the Freedom of Information Act and the treatment of classified material. Like the F.B.I. investigators, the inspector general team interviewed dozens of former and current State Department employees and searched available hard-copy and electronic files.

The effort culminated in four published reports, and the inspector general testified before Congress at the same July 2016 hearing at which Mr. Comey explained why the F.B.I. had closed its Clinton email investigation without recommending criminal charges.

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I believe, in light of the explanation in Mr. Comey’s book, that his decision to send the letter was deeply flawed. He has repeatedly characterized the decision as a terrible choice: “speak or conceal.” But there was a third choice on Oct. 27 that weighed against sending the letter the next day.

Mr. Comey writes that he learned on that day the details about the discovery, on Anthony Weiner’s laptop, of new and potentially significant Clinton email evidence — “hundreds of thousands” of emails, including “thousands” that the F.B.I. had never seen before covering Mrs. Clinton’s first three months as secretary of state. While 60,000 emails covering the last 45 months were known to exist, emails from the first three months — likely less than 5,000 — had been stored on an unavailable, older BlackBerry system.

Mr. Comey writes that he was provided with two key assumptions about these emails. First, among the BlackBerry emails, there was the possibility of finding “smoking guns” sufficient to cross the high threshold required to bring criminal charges. The thinking was that there might be evidence of Mrs. Clinton’s culpable intent early in her tenure because at that time she was learning the ropes at the State Department and might have been instructed not to use her personal email system.

The second assumption was that it would be impossible for the F.B.I. to review the hundreds of thousands of Weiner emails before Election Day. Mr. Comey writes that “everyone in the room said that this review would take many weeks.” He continues, “There was, they said, too much material to do it more quickly” — and there was “no chance” a review could be completed before the election.

In my view, neither assumption holds up. The F.B.I. “had spent hundreds if not thousands of hours over the past year circling the former secretary, reading thousands of her emails and interviewing all those around her,” writes Mr. Comey. According to the investigative material posted on the F.B.I.’s website, those interviews included over 40 current or former State Department employees, most of whom knew something about Mrs. Clinton’s email because they handled or were aware of a variety of operational tech issues over four years.

So, on Oct. 27, the F.B.I. investigators were deeply knowledgeable about Mrs. Clinton’s email and could make highly informed judgments about what was found on Mr. Weiner’s laptop. Mr. Comey should have reasonably recognized that the chance of finding a smoking gun in the first three months when such evidence was wanting for the remaining 45 months — when the Clinton email system experienced such common tech issues as no connectivity, bad firewalls, phishing and power failures — was low at best. Because of those issues, State Department management, diplomatic security and tech staff members knew of Mrs. Clinton’s system and its inherent risks and repeatedly raised these issues with Mrs. Clinton’s immediate staff. Yet the F.B.I. found insufficient evidence to support a criminal case.

The second assumption involving the supposedly long duration of the email review was also flawed. First, by prioritizing a review of the few thousand new BlackBerry emails for smoking guns, a small number of seasoned investigators could have carefully looked at them in hours, not days or weeks.

Second, like other organizations that regularly review enormous amounts of stored electronic data, the F.B.I. possessed the technical means to determine quickly whether the haul of other emails on the Weiner laptop were backup duplicates of ones already in its possession, as the vast majority apparently turned out to be. Off-the-shelf software was available to compare the Weiner laptop emails against the F.B.I.’s existing collection to exclude duplicates from the review.

What was Mr. Comey’s third option on Oct. 27? Wait and see. Monitor the progress of the review closely. Do nothing until there was something to report.

Even a delay of a few days would have afforded the F.B.I. investigative team time to get a very good idea of what most likely was and was not in the new evidence. As it turned out, the team was able to complete its work days before the election, and Mr. Comey informed Congress in his Nov. 2 letter that the F.B.I. investigation was again closed.

If he had waited a few days, Mr. Comey would have made a better-informed decision. The F.B.I. would have done meaningful due diligence. Had that course been followed, perhaps he would not have ever sent the letters.

I expect Mr. Comey to argue that this is all 20/20 hindsight. But I continue to believe that the historical record surrounding his momentous decision requires additional balance and close scrutiny and context to ensure that it is complete and correct.

FBI Director James Comey would like you to travel back in time with him for a minute. It’s Friday morning, October 28. The day prior, members of his staff told Comey that they had found thousands of Hillary Clinton’s private emails stored on Anthony Weiner’s laptop, and needed a warrant to read them, thereby reopening the investigation into the Democratic presidential candidate’s use of a private email server while she was Secretary of State.

That morning, just 11 days before the presidential election, Comey saw two possible doors before him. “One was labeled speak, the other was labeled conceal,” he told the Senate Judiciary Committee Wednesday, in his most in-depth explanation yet of a decision that arguably cost Clinton the presidency. “To speak would be really bad. There’s an election in 11 days. Lordy, that would be really bad. But concealing, in my view, would be catastrophic.”

And so, Comey sent that infamous letter to members of Congress, explaining that the FBI was reopening its investigation. And the rest will, quite literally, become part of the history books.

The frankness comes in a week when Comey’s letter has received a fresh round of scrutiny, thanks in part to comments from Clinton herself. “I was on the way to winning until a combination of Jim Comey’s letter on October 28 and Russian WikiLeaks raised doubts in the minds of people who were inclined to vote for me and [they] got scared off,” Clinton said in a recent CNN interview.

Clinton’s critics dismissed the comment as evidence she hasn’t taken responsibility for her role in losing the election. But in his testimony, Comey conceded the letter’s potential influence—while stopping short of actual regret. “It makes me mildly nauseous to think we might have had some kind of impact on the election,” Comey said, “but honestly it wouldn’t have changed the decision.”

Democratic senators pressed the FBI director about why, if concealment was the concern, Comey withheld information about the concurrent investigation into the Trump campaign’s ties to Russia. Comey only confirmed that investigation, which had been ongoing since summer 2016, during another hearing this March. “I can’t imagine how an unprecedented, big and bold hacking interference in our election by the Russian government did not also present exceptional circumstances,” California Sen. Diane Feinstein said.

Comey insisted that the FBI, in fact, treated both investigations “consistently,” noting that the bureau refused to acknowledge the Clinton investigation even existed until it had been underway for several months. The same went for the Trump investigation. “We didn’t say a word about it until months into it,” Comey said. “I would expect we’re not going to say another peep about it until we’re done.”

In his testimony, Comey more or less confirmed many of the details that the New York Times reported in its investigation into the FBI’s decision-making process. Before he sent the famous letter, Comey said, a junior member of his staff asked him, “Should you consider that what you’re about to do may help elect Donald Trump president?”

Comey maintained that he shouldn’t. “Down that path lies the death of the FBI as an independent institution in America,” Comey told the committee.

Despite the candor, Clinton supporters will no doubt still condemn Comey’s decision. His comments didn’t address the argument that the bureau should have at least looked into whether there was anything nefarious in the new trove of emails (there wasn’t), before stoking speculation. Comey also continues to draw scorn from the “lock her up” wing of the Republican party, including most notably President Trump, who tweeted just last night that the FBI gave Clinton a “free pass.”

Maligned by both sides of the aisle, perhaps Comey has reached a kind of impartiality after all.

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