He said his only choices were “speak or conceal.” But a third way would have avoided election interference.
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By DAVID Z. SEIDE, The New York Times
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.
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