330 Probable Cause or Political Cause? The Manufactured Foundations of Emailgate

Probable Cause or Political Cause? The Manufactured Foundations of Emailgate

From the moment Emailgate began, it mirrored the way it ended—with James Comey substituting personal moral judgments for DOJ protocol. As the Inspector General would later put it: insubordination. That, and the weasel-worded framing of Dean Baquet’s New York Times, helped set the stage for one of the most overblown—yet, in retrospect, profoundly harmful—political pseudo-scandals in modern memory.

Let’s Start from the Beginning: Was There Ever Probable Cause?

Was there even probable cause for the email probe in the first place? From the outset, confusion reigned: was this a criminal investigation into Hillary Clinton herself, or just a procedural review of State Department email security and recordkeeping practices?

It appears the original report that Clinton was under investigation was a mistake. And despite Comey’s much-quoted “queasy” reaction to Loretta Lynch calling it a “matter” rather than an “investigation,” the facts remain clear: Clinton was never formally the subject of the Midyear Exam investigation. This was, in essence, a criminal investigation without a subject.

Rewriting the Narrative: The White House Speaks Out

Yet, Comey and his team became apoplectic when Obama’s Press Secretary, Josh Earnest, offered an accurate response to whether Clinton would be indicted (January 2016):

“That will be a decision made by the Department of Justice and prosecutors over there… Based on what we know from the DOJ, it does not seem to be headed in that direction.”

This statement was factually accurate and appropriately cautious. Yet, in the twisted logic of Emailgate, even accurate statements by the Obama White House or the Clinton campaign were seen as interference—or worse, obstruction.

But the FBI’s reaction to even the mildest of White House commentary reveals something deeper—and darker.

Flashback to October 11, 2015: President Obama appears on 60 Minutes, calls Clinton’s email use a “mistake,” but adds it “did not pose a national security problem” and was being “ginned up” in the heat of a presidential campaign. This, too, was demonstrably true. Two days later, Press Secretary Josh Earnest reiterated that Obama’s comments were based on public information, not on any inside knowledge of the FBI investigation.

And yet—enter two senior FBI officials who had been central in the early rollout of the Emailgate investigation and had since left the Bureau by 2016: former Executive Assistant Director John Giacalone and former Assistant Director Randy Coleman. Each erupted in outrage. Giacalone told the DOJ Inspector General:

“We open up criminal investigations. And you have the President of the United States saying this is just a mistake…. That’s a problem, right?”

Coleman was even more explicit in his indignation:

“[The FBI had] a group of guys in here, professionals, that are conducting an investigation. And the…President of the United States just came out and said there’s no there there.”

What these comments make clear isn’t just their discomfort with Obama’s accuracy—it’s their entitlement to a narrative of criminality. The idea that someone—especially a sitting president—might downplay the scandal they were so committed to amplifying was viewed not as correction, but sabotage.

This wasn’t the reaction of dispassionate public servants. This was the mindset of officials emotionally—and perhaps politically—invested in a particular outcome. And while Giacalone and Coleman had officially left the Bureau in early 2016, their influence lingered: they helped shape the tone and assumptions of Midyear from the start.

Sally Yates and the Early Stages of Emailgate

Interestingly, these same two former agents—Giacalone and Coleman—had played an aggressive role in initiating the probe. On July 23, 2015, just thirteen days after the Midyear Exam began, they hand-delivered a handwritten note to Deputy Attorney General Sally Yates informing her of the investigation.

This was, remarkably, the third time in thirteen days that the FBI had briefed Yates on the matter. As Lanny Davis later speculated, the intensity and urgency behind the early outreach—especially through handwritten notes—suggests that James Comey himself was driving the agenda from the background.

Lanny Davis and the Original Sin of Emailgate

In his 2018 book The Unmaking of the President 2016, longtime Clinton confidant and attorney Lanny Davis recounts the moment he knew the email story was being warped into something dangerous. It began with The New York Times’ now-notorious July 23, 2015 front-page headline: “Criminal Inquiry Sought in Hillary Clinton’s Use of Email.” The phrase alone sparked an explosion in the media and gave conservative narratives all the fuel they needed.

But as Davis meticulously documents, the story was flatly wrong. The referral from the inspectors general was not criminal, and did not name Clinton. It was a routine security referral about whether any classified information had passed through her server—something that could apply to anyone at State.

Davis shows that the Times’ mistake originated in part from misleading guidance they received from government sources—perhaps including FBI officials eager to get a criminal frame out into the world. He cites conversations in which DOJ officials scrambled to walk the story back, furious that the Times had gotten it so wrong. But in the paper’s typical fashion, it issued only a vague clarification—and never corrected the headline.

The broader effect of the story, Davis argues, was catastrophic. Overnight, the public perception became: Clinton is under criminal investigation. Even though this was false, the impression stuck. And it gave cover to the FBI’s own decisions to keep the probe going—and to treat it as a matter of serious national security.

It’s in this context that we should understand the rush by Coleman and Giacalone to brief Sally Yates repeatedly—and perhaps Comey’s own eagerness to override DOJ norms and push the investigation into public view.

After all, if the Times had already cast it as a criminal matter, what harm could there be in “confirming” that something was happening? Indeed, Comey would soon do much more than confirm it—he would break every protocol to opine on it publicly, and later, intervene in the 2016 election.

In Davis’s telling, it was this early, dishonest headline—planted and spun by institutional actors—that allowed the snowball to roll. And the FBI, rather than correcting the record, chose to ride that momentum.

The Revolving Door

By early 2016, both Giacalone and Coleman had left the Bureau. But that didn’t mean they were truly out of the picture. Many of the damaging leaks and conspiratorial buzz that would plague the Clinton campaign came from individuals described as “former FBI agents.” In reality, some of these “retirees” continued showing up at the Bureau—especially the New York field office, dubbed “Trumpland”—to complain about Clinton and shape the narrative.

The story doesn’t end there. In 2018, with Clinton long out of public life, the Republican-controlled Congress launched yet another inquiry into her emails—this time, essentially investigating a private citizen. One of their star witnesses? John Giacalone.

During his testimony, he was asked:

“When you retire from the FBI, it’s my understanding that you turn your equipment in, surrender your badge and gun, and they walk you to the door. You can’t get back into the building without an escort. Is that correct?”

The concern was clear: was Giacalone really a “former” agent—or part of a revolving door of influence that blurred the line between official duty and political agenda?

LOL as Giacalone went on to explain this was far from correct. In fact he had what is called “green badge status” that pretty much allows former senior FBI agents to come and go into the building at will. Indeed, the more you learn about green badge status, the more clear it becomes that the life of a “former” senior FBI official is pretty sweet—you sort of retain all the perks and upsides of having all that power and intel info at your fingertips while being gainfully employed—officially—somewhere else with a much higher salary than the government pays. Giacalone relates how he was making “only $180,000 a year” at the FBI while his daughter’s college tuition was $120,000.

UNSUB as Cover: How the FBI Faked Probable Cause

The Midyear investigation was opened with an “Unknown Subject(s) (UNSUB),” and at no time during the investigation was any individual identified by the FBI as a subject or target of the investigation, including former Secretary Clinton. Officially, UNSUB meant the FBI had not identified a specific target. In practice, it allowed the Bureau to proceed with invasive scrutiny of Clinton—without the probable cause that would have been required to name her.

Despite this designation, internal communications show that Clinton was always the focus. FBI Attorney 1 told the OIG, “We certainly started looking more closely at the Secretary because they were her emails.” Randall Coleman, meanwhile, claimed he was “shocked” that the case had stayed UNSUB. But that’s hard to believe—he had already fumed at President Obama for implying there was “no there there.”

The UNSUB label may have been more than bureaucratic hedging—it may have been a deliberate tactic. By keeping Clinton unnamed, the Bureau sidestepped legal hurdles and avoided having to prove probable cause. And yet, through media leaks and Comey’s own framing, the public was led to believe she was under criminal investigation.

Comey’s own comments later only confirmed this duality. He said the FBI wanted to know what Clinton was “thinking” when she mishandled classified information—while also admitting that proving intent was never likely. If intent couldn’t be proven, what was the evidentiary basis for a criminal probe in the first place?

UNSUB became a fig leaf. It cloaked a lack of legal predicate behind a veil of procedural normalcy—while enabling a narrative of guilt to fester in the media and public imagination.

Breaking Protocol: Making It Public

Following the public referral to the FBI from the Intelligence Community Inspector General in July 2015, both the DOJ and FBI were immediately inundated with questions from Congress and the media. Was a criminal investigation into Clinton underway?

Emails from late August 2015 reveal a sharp disagreement between the FBI and DOJ’s Office of the Deputy Attorney General (ODAG). FBI officials wanted to acknowledge that they had opened “an investigation into the matter,” while ODAG insisted on using standard language: “neither confirm nor deny the existence of any ongoing investigation.” This, after all, was DOJ policy.

In public-facing letters to Congress (August 27 and September 22) and to the State Department (September 22), the FBI abided by the DOJ’s wishes and used the neutral language. But privately, James Comey was agitating for more.

Comey wrote in an August 27, 2015 email that it was “a bit silly to say we ‘can’t confirm or deny an investigation’ when there are public statements by former Secretary Clinton and others about the production of materials to us.” He said he’d prefer simply saying “we don’t comment on our investigations.”

According to Chief of Staff Jim Rybicki, Comey believed that because the IC IG referral had been made public, it would “stretch…any credibility the Department has left” to remain silent.

This framing—that protocol must yield to public curiosity—would become Comey’s hallmark. But the precedent it broke was dangerous. It undermined the very reason the DOJ has such protocols: to protect fairness, due process, and the integrity of investigations.

Later, Comey would try to justify his unprecedented July 5, 2016 public announcement by pointing to an earlier moment when Loretta Lynch asked him not to call it an “investigation” and to instead refer to it as a “matter.”

Comey claimed this gave him a “lump in [his] stomach” and made his “spider sense tingle.” He said he feared Lynch was “carrying water” for the Clinton campaign. But in the same breath, he also admitted that his past experiences with her had been “very good” and that she “always struck me as an independent-minded person.”

The real tell may be that Comey viewed normal DOJ language—language that avoided sensationalism—as suspiciously partisan. And in retrospect, that suggests more about his instincts than Lynch’s.

Ironically, Comey had no such “spider sense” when it came to keeping the Trump-Russia investigation secret during the same period. In that case, he rigorously followed protocol and refused to confirm or deny an ongoing investigation.

Two standards. One FBI.

And a pivotal choice to break protocol—one that may have changed the course of American history.