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...
"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
(p 221) 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 [Letterhead Memorandum] 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.
...
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 happened.”
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.
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.”
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.
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 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...
That's what it was. Over and over again Comey explained to his FBI colleagues and conveyed that same sense to General Lynch--HIS FRICKING BOSS--that he was motivated to protect HIS SHOP, not the larger shop THAT HE FRICKING WORKED IN!
...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.”
Yates told the OIG that she had concerns about the substance of Comey’s statement as she watched the press conference. She stated:
...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.
...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.”
...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.
...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 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. (231)
