The Senate Homeland Security and Governmental Affairs Committee has discovered that edits made to former FBI Director James Comey's statement exonerating Hillary Clinton for transmitting classified info over an unsecured, private email server went far beyond what was previously known, as detailed in a Thursday letter from committee chairman Sen. Ron Johnson (R-WI) to FBI Director Christopher Wray.
James Comey, Andrew McCabe, Peter Strzok
The letter reveals specific edits made by senior FBI agents when Deputy Director Andrew McCabe exchanged drafts of Comey's statement with senior FBI officials, including Peter Strzok, Strzok's direct supervisor, E.W. "Bill" Priestap, Jonathan Moffa, and an unnamed employee from the Office of General Counsel (identified by Newsweek as DOJ Deputy General Counsel Trisha Anderson) - in what was a coordinated conspiracy among top FBI brass to decriminalize Clinton's conduct by changing legal terms and phrases, omitting key information, and minimizing the role of the Intelligence Community in the email investigation. Doing so virtually assured that then-candidate Hillary Clinton would not be prosecuted.
Heather Samuelson and Heather Mills
Also mentioned in the letter are the immunity agreements granted by the FBI in June 2016 to top Obama advisor Cheryl Mills and aide Heather Samuelson - who helped decide which Clinton emails were destroyed before turning over the remaining 30,000 records to the State Department. Of note, the FBI agreed to destroy evidence on devices owned by Mills and Samuelson which were turned over in the investigation.
Sen. Johnson's letter reads:
According to documents produced by the FBI, FBI employees exchanged proposed edits to the draft statement. On May 6, Deputy Director McCabe forwarded the draft statement to other senior FBI employees, including Peter Strzok, E.W. Priestap, Jonathan Moffa, and an employee on the Office of General Counsel whose name has been redacted. While the precise dates of the edits and identities of the editors are not apparent from the documents, the edits appear to change the tone and substance of Director Comey's statement in at least three respects.
It was already known that Strzok - who was demoted to the FBI's HR department after anti-Trump text messages to his mistress were uncovered by an internal FBI watchdog - was responsible for downgrading the language regarding Clinton's conduct from the criminal charge of "gross negligence" to "extremely careless."
"Gross negligence" is a legal term of art in criminal law often associated with recklessness. According to Black's Law Dictionary, gross negligence is “A severe degree of negligence taken as reckless disregard," and "Blatant indifference to one's legal duty, other's safety, or their rights.” "Extremely careless," on the other hand, is not a legal term of art.
According to an Attorney briefed on the matter, "extremely careless" is in fact a defense to "gross negligence": "What my client did was 'careless', maybe even 'extremely careless,' but it was not 'gross negligence' your honor." The FBI would have no option but to recommend prosecution if the phrase "gross negligence" had been left in.
18 U.S. Code § 793 "Gathering, transmitting or losing defense information" specifically uses the phrase "gross negligence." Had Comey used the phrase, he would have essentially declared that Hillary had broken the law.
Also removed from Comey's statement were all references to the Intelligence Community's involvement in investigating Clinton's private email server.
Director Comey's original statement acknowledged the FBI had worked with its partners in the Intelligence Community to assess potential damage from Secretary Clinton's use of a private email server. The original statement read:
[W]e 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.
The edited version removed the references to the intelligence community:
[W]e have done extensive work [removed] to understand what indications there might be of compromise by hostile actors in connection with the personal e-mail operation.
Furthermore, the FBI edited Comey's statement to downgrade the probability that Clinton's server was hacked by hostile actors, changing their language from "reasonably likely" to "possible" - an edit which eliminated yet another justification for the phrase "Gross negligence." To put it another way, "reasonably likely" means the probability of a hack due to Clinton's negligence is above 50 percent, whereas the hack simply being "possible" is any probability above zero.
It's also possible that the FBI, which was not allowed to inspect the DNC servers, was uncomfortable standing behind the conclusion of Russian hacking reached by cybersecurity firm CrowdStrike.
The original draft read:
Given the combination of factors, we assess it is reasonably likely that hostile actors gained access to Secretary Clinton's private email account."
The edited version from Director Comey's July 5 statement read:
Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton's personal e-mail account.
Johnson's letter also questions an "insurance policy" referenced in a text message sent by demoted FBI investigator Peter Strzok to his mistress, FBI attorney Lisa Page, which read "I want to believe the path you threw out to 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...."
One wonders if the "insurance policy" Strzok sent to Page on August 15, 2016 was in reference to the original counterintelligence operation launched against Trump of which Strzok became the lead investigator in "late July" 2016? Of note, Strzok reported directly to Bill Priestap - the director of Counterintelligence, who told James Comey not to inform congress that the FBI had launched a counterintelligence operation against then-candidate Trump, per Comey's March 20th testimony to the House Intelligence Committee. (h/t @TheLastRefuge2)
Transcript, James Comey Testimony to House Intel Committee, March 20, 2016
The letter from the Senate Committee concludes; "the edits to Director Comey's public statement, made months prior to the conclusion of the FBI's investigation of Secretary Clinton's conduct, had a significant impact on the FBI's public evaluation of the implications of her actions. This effort, seen in the light of the personal animus toward then-candidate Trump by senior FBI agents leading the Clinton investigation and their apparent desire to create an "insurance policy" against Mr. Trump's election, raise profound questions about the FBI's role and possible interference in the 2016y presidential election and the role of the same agents in Special Counsel Mueller's investigation of President Trump."
Johnson then asks the FBI to answer six questions:
- Please provide the names of the Department of Justice (DOJ) employees who comprised the "mid-year review team" during the FBI's investigation of Secretary Clinton's use of a private email server.
- Please identify all FBI, DOJ, or other federal employees who edited or reviewed Director Comey's July 5, 2016 statement. Please identify which individual made the marked changes in the documents produced to the Committee.
- Please identify which FBI employee repeatedly changed the language in the final draft statement that described Secretary Clinton's behavior as "grossly negligent" to "extremely careless." What evidence supported these changes?
- Please identify which FBI employee edited the draft statement to remove the reference to the Intelligence Community. On what basis was this change made?
- Please identify which FBI employee edited the draft statement to downgrade the FBI's assessment that it was "reasonably likely" that hostile actors had gained access to Secretary Clinton's private email account to merely that than [sic] intrusion was "possible." What evidence supported these changes?
- Please provide unredacted copies of the drafts of Director Comey's statement, including comment bubbles, and explain the basis for the redactions produced to date.
We are increasingly faced with the fact that the FBI's top ranks have been filled with political ideologues who helped Hillary Clinton while pursuing the Russian influence narrative against Trump (perhaps as the "insurance" Strzok spoke of). Meanwhile, "hands off" recused Attorney General Jeff Sessions and assistant Attorney General Rod Rosenstein don't seem very excited to explore the issues with a second Special Counsel. As such, we are now almost entirely reliant on the various Committees of congress to pursue justice in this matter. Perhaps when their investigations have concluded, President Trump will feel he has the political and legal ammunition to truly clean house at the nation's swampiest agencies.