It is a firmly held belief among many Hillary Clinton supporters that the scandal surrounding her personal email server was, top-to bottom, an exercise in bad faith. Bad faith from the reporters and editors who splashed the story on the front pages. Bad faith from the federal investigators who dug into the scandal for months. And, above all, bad faith from then-FBI director James Comey who lashed out at Clinton as "extremely careless" when he announced she would not be prosecuted in July 2016, and who may have sunk her campaign in late October by publicly announcing the FBI was reopening its investigation, just days before the election. Using the language of the prison yard to describe her FBI nemesis, Hillary Clinton writes in her campaign memoir that Comey had "shivved" her.
But deep in the transcript of Comey’s recent, hours-long interview with ABC News, the former FBI director offers a powerful pushback against this narrative, starting with the fact that he did not operate in a vacuum, making clear that the decision to announce the re-opening of the Clinton case was arrived at, jointly, with top FBI staff: "The senior team of the FBI," he says, "including the general counsel, thought we have to."
Comey’s central message is that the criminal investigation into Clinton was potentially very serious. He likens the fact that the FBI was "criminally investigating one of the two candidates for president of the United States during the campaign" to a "500-year flood." In short, the server scandal was treated as big news – because it was. (For all of his current legal troubles, Trump was not under personal investigation at the time, Comey notes. A couple of Trump campaign staffers were part of a then early-stages counterintelligence probe into Russian meddling; a different beast from an active, public criminal investigation.)
Some essential background: The criminal investigation of Clinton began after a public referral in July 2015, from the Intelligence Community Inspector General, who warned that classified information might have been mishandled on Clinton’s private server. After a yearlong investigation, the FBI found strong evidence of wrongdoing – that Clinton and her team had routinely risked state secrets by running unsecured email through her home server. "This is more than just ordinary sloppiness," Comey tells ABC. "This was over the course of four years, dozens of conversations on email about secret topics. And, I think, eight about top secret topics."
The reason that the FBI did not recommend felony prosecution, however, is that investigators never found "a smoking gun," Comey says. They lacked an email or other record that established criminal intent – perhaps a warning to Clinton that she shouldn’t use a private server or any "indication of her obstructing justice." Absent such a damning piece of evidence, there was no precedent to prosecute. And so, in a decision that became the president’s pretext for his firing, Comey staged a press conference in July of 2016 denouncing Clinton’s carelessness in risking classified information, even as he let her off the hook, as a criminal matter.
The revelation Comey offered to ABC News regards his more-infamous decision to announce that the FBI was reopening its investigation in late October. Comey explains, in plain English for the first time, why he felt such a powerful obligation to report to congress that the FBI was digging back in. (Comey’s previous testimony on this information was brief and oblique.)
The FBI’s investigation of now-convicted-sex-criminal Anthony Weiner, the husband of Clinton deputy Huma Abedin, had turned up a laptop with tens of thousands of Clinton’s emails. Included, Comey says, were never-before-reviewed emails from Clinton’s Blackberry domain that predated her move to a private server. The timing of these emails was important: They could have included incriminating evidence about the decision to start using the private email system.
Keeping quiet, Comey feared, risked breaching the public’s trust in the FBI and the Justice Department. He’d personally assured America that the case was closed. Suddenly, he says: "It's October 27th, that's not true anymore, in potentially a huge way."
Comey tells the story well, and his remarks to George Stephanopoulos are worth reading in full:
So we're now less than two weeks from the election. The deputy director emailed me at about 5:30 in the morning and said, "The midyear team," which was the code-name for the Clinton email investigation, "needs to meet with you."
And it's unusual to email me at 5:30 in the morning. And so I arranged to meet with the team. And I walked in with a stupid smile on my face, I think, and said, "The band is back together." 'Cause they were sitting in the same seats they'd sat in so many times.
And I didn't smile again for a long time like that — after that. And what they told me was, "We have found, for reasons we can't explain, hundreds of thousands of Hillary Clinton's emails on Anthony Weiner's laptop. And something much more important than that. Thousands of emails from Hillary Clinton's Blackberry domain."
She used a Blackberry for the first three months or so of her tenure as secretary of State before setting up the personal server in the basement. And the reason that matters so much is, if there was gonna be a smoking gun, where Hillary Clinton was told, "Don't do this," or, "This is improper," it's highly likely to be at the beginning.
And we never found those emails. And so now they're telling me, "For reasons we can't explain, thousands of those Blackberry emails are on Anthony Weiner's laptop." And so I said, "Okay. We gotta go get ‘em. How fast can you review these?" And the answer was, "We can't possibly finish before the election because we have to read tens of thousands of emails.
We can't ask recruits to come in and review them because you have to know the context." And so I'm sitting there on the morning of October 27th, they're telling me there's material that may change the conclusion in this case. We all agree, including the Department of Justice, we've gotta get a search warrant to go get these.
And then the question for me now is, "So what do we do now?"
In short: the decision to reopen the investigation may not line up with the spin that it was a mop-up exercise or preening due-diligence, where the FBI was sorting through likely innocuous emails they’d probably already seen before. The bureau had uncovered, thanks to Weiner’s perversions, a new cache of emails from the critical period before Clinton began mishandling classified information that could demonstrate what Comey calls "corrupt intent" and reverse the recommendation not to prosecute. "I want people to know where the decision came from," Comey tells ABC. "I'm not trying to help a candidate or hurt a candidate; I'm trying to do the right thing. And you can come up with different conclusions. But it's just not fair to say we were doing it for some illegitimate reason."
What’s more, no one in the Justice Department, not even the attorney general, believed the renewed investigation would stay quiet even in the absence of an official notice to congress. Comey relates a private meeting with Obama AG, Loretta Lynch, on Halloween:
I'm sure it showed on my face how beaten I felt. And then we sat down and she said, "How are you doing?" Loretta Lynch is a really good person and has known me a long time… And I told her that I felt terrible, that I felt beaten, and — but that I didn't see that I had a choice. And then she said something that floored me. She said, "Would they feel better if it leaked on November the 4th?"
And my reaction was — and I said to her, "Exactly, Loretta."
Caveats abound: The former FBI director is a flawed, arrogant man, whose full remarks reveal a troubling disregard or perhaps distrust of women in power. Comey is not the hero of this, or any story. But maybe – just maybe – the former FBI director is not the goat after all.