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Comeygate Chapter Refinement

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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.

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 Revolving Door

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?

6.21.18-Giacalone-Interview_Redacted.pdf

Pg 9

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.

But green badge status enabled him to make a lot more elsewhere while retaining access to NY FBI headquarters-the info, the intel, etc.

“Matter Not Investigation”: Truth as Heresy

Comey’s queasiness over calling it a “matter” rather than an “investigation” was endlessly quoted. But as the DOJ Inspector General later confirmed, that language—awkward though it may have been—was technically correct. Clinton wasn’t a target. She wasn’t even a subject.

📜 Footnote: See the DOJ OIG report released on June 14, 2018.

Among the explosive revelations from IG Michael Horowitz’s testimony to the Senate Judiciary Committee was this:

“Nobody was listed as a subject of this investigation at any point in time.”

And in fact, even within the Bureau, it wasn’t just a matter—it was a Sensitive Investigative Matter (SIM). According to the FBI’s own Domestic Investigations and Operations Guide (DIOG), a SIM designation is reserved for inquiries involving “domestic public officials” or political candidates where heightened oversight is required. FBI officials explained to the OIG that SIMs are used in cases involving clergy, judges, journalists, and politicians—precisely because they require extreme caution and should not be treated like standard criminal cases (DOJ OIG Report, 2018, p. 40).

A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election

This also casts serious doubt on Comey’s oft-cited “queasiness” over the term “matter.” The designation of Midyear as a Sensitive Investigative Matter wasn’t some bureaucratic technicality—it underscored that this wasn’t a standard criminal probe. As FBI Director, Comey would have been fully aware of this classification and its implications. So his public posturing over terminology begins to look far less like ethical discomfort and far more like retroactive justification for his break with protocol.

In other words, this wasn’t just not a typical criminal probe—it was explicitly governed by heightened institutional restraint. That Comey and others later tried to portray it as something else speaks volumes about their motives.

So when Clinton said she wasn’t a subject? She was telling the truth. No matter how queasy it made Comey—or how many times Chris Cillizza mocked her for it.

Indeed one effect of putting this under UNSUB was to give  the Midyear Investigation Emailgate investigative ambiguity.

Double Standards and Queasiness on Cue

Interestingly, while Comey felt “queasy” about downplaying Clinton’s investigation, he had no such qualms about assuring Donald Trump in 2017 that he was not under investigation. Apparently, that didn’t trigger any moral “conundrums.”

Indeed, according to Andy McCabe in The Threat: How the FBI Protects America in the Age of Terror and Trump (2019), FBI General Counsel James Baker believed this distinction—that the Trump campaign was under criminal investigation but Trump himself somehow wasn’t—was, if not ‘queasy,’ then rather too Jesuitical.

“…Baker thought it was jesuitical—basically, too cute by half—to say the president was not under investigation. But Comey chose to give the president the reassurance that, at that moment, he himself was not.”

📜 Footnote: Source: Andrew G. McCabe, The Threat, Kindle edition, Location 3596.

UNSUB as Cover: How the FBI Faked Probable Cause

In fact 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 the UNSUB designation, witnesses told us that a primary focus of the Midyear investigation was on former Secretary Clinton’s intent in setting up and using her private email server. An FBI OGC attorney assigned to the Midyear team (FBI Attorney 1) told the OIG, “We certainly started looking more closely at the Secretary because they were her emails.” Randall Coleman, the former Assistant Director of the Counterintelligence Division, stated, “I don’t know [why] that was the case, why it was UNSUB. I’m really shocked that it would have stayed that way because certainly the investigation started really kind of getting more focused.”

This of course was the same Randall Coleman who had been so indignant that Obama had-correctly as it happened-suggested it was unlikely Clinton had done anything indictable. Also the same Randall Coleman who felt it necessary to suggest to Sally Yates three different times within the space of 13 days that Clinton was under investigation.

Comey similarly claimed like Coleman to be rather stunned to learn Clinton was not the subject.

In his OIG interview, Comey described former Secretary Clinton as the subject of the Midyear investigation and stated that he was unaware that the investigation had an UNSUB designation. Similarly, in his book, Comey referred to former Secretary Clinton as the subject of the Midyear investigation, stating that one question the investigation sought to answer was what Clinton was thinking “when she mishandled that classified information.”

While he did he also in his book-as we will look at more in Chapter Why Did it Take a Year?-admitted that it was always going to be very tough to prove intent which calls into question the very premise of opening the investigation in the first place-probable cause. But how plausible is it that neither Comey nor Coleman knew it was an UNSUB? They were literally the senior FBI officials who had designated it as such. Seen this way this handwringing and playing dumb seems much less innocent-it suggests deliberate mendacity.

Because at the end of the day 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.

UNSUB = Investigative Ambiguity

• By using an Unknown Subject designation, FBI leadership avoided naming Clinton as a target—because they lacked the predicate or probable cause to do so.
• It gave them bureaucratic flexibility while allowing them to act as if she were the target—especially in media briefings.

The Emailgate Echo Chamber: From the FBI to the Front Page of the **New York Times”

And it matters—pun intended—that this wasn’t a criminal investigation. When Comey exonerated her of wrongdoing while politically wounding her on July 5, 2016, nearly 60% of the public believed Hillary Clinton SHOULDj have been indicted. This wasn’t based on facts, but on a false narrative perpetuated by both the FBI and the media.

Let’s pause to consider the weight of this misrepresentation. For 15 months, Comey and others misled the public into believing Clinton was under criminal investigation—a falsehood dutifully amplified by the media, then seized upon by the Breitbart crowd and the GOP echo chamber. Meanwhile, Clinton’s own description of the inquiry—as a “matter”—turned out to be accurate all along

As noted in our earlier media analysis, this false framing created the impression that Clinton faced imminent indictment—when in truth, that was never likely, as the IG report makes abundantly clear.

So where did this damaging, zombie-like myth originate? That everyone “knew” Clinton was under criminal investigation—because it had been repeated so many times?

Would you believe it came from Dean Baquet’s New York Times?

Fitting, no doubt-if March comes in like a lion and out like a lamb, the But Her Emails election of 2016 ended just as it begun-the NYT’s shoddy reporting based on its shoddy Emailgate obsession and shoddy Clinton Derangement Syndrome (CDS) *and, *of course, Comey’s insubordination.

The Original Sin of the Emailgate Investigation

To understand just how central the New York Times was to creating and amplifying the false narrative of Clinton’s “criminal investigation,” we turn to one of the earliest and sharpest critics of the paper’s conduct: Lanny Davis, a longtime Clinton defender and legal analyst. In his book The Unmaking of the President 2016, Davis offered a scathing indictment of the Times and its editors, especially Executive Editor Dean Baquet.

Davis points to the Times as the epicenter of the “criminal investigation” mischaracterization. According to him, the Times had a unique capacity to legitimize right-wing spin by laundering it through the appearance of centrist objectivity. As he writes:

“The Times refused to report the truth: that there was never a criminal investigation of Hillary Clinton, that she was never the target of the FBI probe, and that the so-called ‘classified information’ was almost entirely overclassified after the fact.”

He also highlights the outsized influence of a single article published on July 23, 2015, with the now-infamous headline: “Criminal Inquiry Sought in Hillary Clinton’s Use of Email”—a headline that was retracted and revised within hours but nonetheless set the tone for public discourse.

FN: Amazon.com: The Unmaking of the President 2016: How FBI Director James Comey Cost Hillary Clinton the Presidency eBook : Davis, Lanny J.: Kindle Store

End FN

The Times Gets the Story Half-Wrong

FN: Davis

On March 2, 2015 the Times literally midwifed the faux Emailgate scandal with weasel words. The weasel words of the Times would begin this fiasco as their weasel overwrought headlines of October 28, 2016 would end it.

“Then came the first paragraph: March 2, 2015, WASHINGTON—Hillary Rodham Clinton exclusively used a personal email account to conduct government business as secretary of state, State Department officials said, and may have violated federal requirements that officials’ correspondence be retained as part of the agency’s record.”

“I noticed the word “may.” It weakened a declarative statement. Eichenwald seemed to agree in a Newsweek column he posted the following week, on March 10, titled “Why Hillary Clinton’s ‘Emailgate’ Is a Fake Scandal.” Here is what he wrote: “There is a term in journalism for the word may. It’s called a weasel word, which helps readers gloss over what the story is really saying: That the Times doesn’t know if the regulations were violated, but it sure sounds good to suggest that they could have been.”

FN: Location 222

End FN

Davis and Einchenweld had the inconvenience of being right but then again 2015 proved to be the first post truth election

FN: Chapter Unreported Background

End FN

so this same problematical dynamic would characterize the reporting on Emailgate for the entire 2016 election-the reporting would use weird devices like this to frame every story in the worst possible light for Hillary Clinton.

In any case this was a pattern in the NYT reporting which would continue right through till the bitter end-that once again being October 28, 2016 with that absurd front page freakout over the Comey Letter-that they ‘might or might not’ reopen Emailgate. It was always framing things in the most uncharitable direction possible the tone of the coverage was always that she was guilty till proven innocent As Lanny Davis remarked:

“Then I looked at the last phrase in the paragraph about what “requirements” were “possibly” violated. Later on in the story, those requirements were further defined: “Regulations from the National Archives and Records Administration at the time required that any emails sent or received from personal accounts be preserved as part of the agency’s records.”

“Then I was surprised to see a flat-out statement from the Times of a violation of these regulations by Clinton and her aides: “But Mrs. Clinton and her aides failed to do so.” What exactly had Mrs. Clinton and her aides failed to do in violation of that regulation? If they “retained” or “preserved” the records, was there a specific requirement that the records had to become part of the agency’s records immediately? In other words, was there a specific time period in the Federal Records Act or in the regulations the Times referred to?”

Location 233

But this was the tone throughout-Hillary Clinton had* obviously* or at least* likely* or at least* might have* or at least* could have* done something terrible with her emails. Nobody could ever say quite what. But whatever it was it was no doubt truly terrible.

But nobody could ever say what that was. Certainly no one could ever say what law she had broke. She was accused of violating a regulation-conveniently ignoring that this regulation hadn’t even been in place when Clinton led State.

In the third paragraph of the article, I learned that in December 2014, Clinton had turned over “55,000 pages of emails” as a result of a “new State Department effort to comply with record-keeping practices.” The word “new” caught my attention. I vaguely recalled reading that the FRA had recently been amended. So I googled it and discovered that in November 2014, almost two years after Clinton had left office, the act was amended and enacted into law. The new rules set, for the first time, a specific time period after an executive official leaves office—sixty days—to turn over all official records. Prior to that, when Clinton was secretary of state, there was no official deadline.”

Location 252

So Davis had asked himself the obvious question: Why hadn’t the Times disclosed this change in the law in the article? I still figured there would have to be some legal expert to back up the paper’s assertion that “Clinton and her aides” had “failed” to comply with the “requirements.”

Turns out there was such a legal expert who would make much of the idea that Clinton’s email setup was “unusual”-but he never said it was illegal. On the other hand he never pointed out it was actually legal. Davis would ask him why he never did-turns out no one asked.

“You are the attorney quoted in the Times story on Clinton’s emails?” I asked. “Yes, I am,” he said. “I read your quotes. I saw that you considered Clinton’s use of private address emails unusual, but what is your opinion on whether they were legal or illegal?” “Oh, no question about that. As of the time she was secretary of state, her emails using a private address were legal.” I was stunned. “Well, why didn’t you give the Times that quote to use in the story? That could have changed the headline that what she did was ‘possibly’ or ‘may be’ a violation of rules or requirements. You could have said that while it was ‘unusual,’ it wasn’t in violation of the regulations or the then existing version of the Federal Records Act. Am I right?” “I don’t think the reporter ever asked me that specific question.”

Location 281

Gee-they never asked. This legal expert simply answers questions he’s asked. But the big question is why he wasn’t asked that specific question. If you’ve observed the mainstream media over any period of time it seems pretty clear-this was no the narrative that media was interested in that that time.

I’ve discussed this even more in the media criticism part of this book but suffice to say the media’s-terrible- 2016 Emailgate coverage is a major impetus of this book. In particular what I found so striking is the pack mentality of the media where even good reporters who I generally held in fairly high esteem got in line.

FN: Again I look at this in even greater detail in the media section-see for just one example Keith Olbermann’s experience in 1998 where they did everything but threaten to kill him if he stopped doing Lewinsky coverage.

End FN

Like when Chris Haye’s last question for Hillary Clinton was “Do you worry you will be indicted’ In 2019 Hayes would-rightly-speak of “the infuriating conclusion to the most ridiculous story of 2016: Hillary Clinton’s emails

Chris Hayes Comments On The End Of The Hillary Clinton Emails Story | All In | MSNBCi

” but he himself had buttressed it by once again reinforcing the canard that Hillary Clinton was quite likely going to be indicted when it had been pretty clear from the start she’d committed no crime. This is why the best the media could come up with was that her email setup was “unusual”-a la Jason R. Baron-but they had to admit it wasn’t illegal.

But that’s the rub, when Comey-very belatedly as we’ll document in the next chapter-finally cleared Clinton, 60% of Americans nevertheless-quite wrongly-believed she should have been indicted and that she had gotten special treatment-the truth was quite the opposite her treatment WAS special that is especially bad.

And this is hardly surprising when even a reporter as widely and rightly respected as Margaret Sullivan defended the highly dubious Emailgate coverage.

FN: Location 300-311

End FN

Back to Davis:

However, the emails story quickly morphed into public criticisms about Clinton’s “poor judgment” in using a private system. And that led me, and many others with any logic and nonpartisan intellectual honesty, to wonder why the New York Times and everyone else ignored or downplayed the fact that Colin Powell had also used a private email system outside the State Department system during his tenure as secretary of state from 2001 to 2004. So on the “judgment” issue, the precedent of Secretary Powell should have been given far more attention.”

It wasn’t for one very simple reason: it didn’t fit their narrative that what Clinton had done was “highly unusual”-later this morphed into “bad judgment” ie once again not illegal. But again this didn’t matter in 2016 the first Post Truth election.

“By now, everyone knows that the emails issue came to dominate the Hillary Clinton 2016 campaign as coverage of that issue eclipsed attention to her policy proposals to solve America’s problems.”

FN: Location 330

Will still never forget Cillizza’s article where he criticized Clinton for talking too much about the economy with concrete solutions to fix it. Then after the election she was accused of not talking about it barely at all. Again our first post truth election

End FN

Lanny Davis then points out that to a large extent the emails destroyed Hillary’s popularity. This is one of those things that for those who accept the received conventional wisdom-ie a lot of people if not most people-this probably seems very hard to imagine but prior to Emailgate-during her actual time as Obama’s Secretary of State-she was actually very popular.

Lanny Davis then points out that to a large extent the emails destroyed Hillary’s popularity. This is one of those things that for those who accept the received conventional wisdom-ie a lot of people if not most people-this probably seems very hard to imagine but prior to Emailgate-during her actual time as Obama’s Secretary of State-she was actually very popular. But not many remember this-many assume she was always “unlikeable.”

FN: Locatoin 340 see also Chapter Unlikeable

This is why I don’t think you can disdain bad journalism enough when you consider the Orwellian world that we as a nation inhabit today

FN: Chapter Orwell

I talked about this more in the media section but the media-CNN and yes “even MSNBC” every day all day for months upon months in early-post the NYT piece at the start of March discussed above-to mid 2015 did nothing for show after show but fulminate about “Her Emails” and would continue to declare “this is why Americans don’t trust Hillary Clinton.”

What’s notable though is that Americans actually had given her high marks before being told all day every day for six months that they didn’t like or trust her. It was just classic suggestion like by insisting “nobody likes her” many started to agree-kind of a very interesting no to say depressing tendency of many people to follow whatever they have been told the consensus is.

“For example, prior to the Times story, nine out of ten favorable-versus-unfavorable polls listed on RealClearPolitics.com from January 1 to March 1 showed net positive impressions. But after the story, the results changed dramatically. Among the twenty-four polls listed between March 2 and June 1, half were net negative impressions of Clinton. And after June 1, Clinton remained net negative on voter impressions in all the RCP polls over the next eighteen months, until Election Day 2016.”

FN: Location 340

And regarding bad journalism the NYT has led every step of the way as it did in 2016 to say the least.

Again so much of if just comes down to narrative. When a story doesn’t further a particular narrative the media favors it simply gets no air. Davis relates how late in the game it was when there was finally any reporting on Colin Powell’s on email setup.

“On September 8, 2016, just two months before Election Day, Rep. Elijah Cummings (D-MD), ranking member of the House Committee on Oversight and Government Reform, released 2009 emails between Secretary Powell and Secretary Clinton. We learned that Powell had hooked up a personal computer to AOL and used AOL to send and receive his personal and official business emails. We learned from his own emails to Clinton that his purpose was to avoid the State Department system for privacy reasons.

“I didn’t have a Blackberry,” Secretary Powell said in an email to Clinton in response to her inquiry about whether she could use her BlackBerry for personal and official business communications. “What I did was have a personal computer that was hooked up to a private phone line (sounds ancient). So I could communicate with a wide range of friends directly without it going through the State Department servers. I even used it to do business.”

“Also, significantly, it was reported that Powell’s emails had contained classified information, and so too had emails of senior aides to former secretary of state Condoleezza Rice.”

Location 345-355

So Powell consciously had this setup to avoid going through the State Department servers and both Powell’s emails and emails of senior aides for former secretary of state Condoleezza Rice yet it took 16 months from the Times first Emailgate story on March 2. 2015 and Elijah Cummings release of 2009 emails between Hillary and Powell for the media to discuss this fact. Why? Again it wasn’t in line with the mainstream media narrative that Hillary Clinton did something truly EVIL and UNUSUAL with her emails-even though she did nothing illegal.

It’s also “a trivial fact” that Clinton’s email setup had actually been known about for two years. Trivial as it conflicts with the media’s-to say nothing of the FBI’s- Emailgate narrative.

“First, on March 13, 2013, it was reported that a hacker who called himself “Guccifer” (a Romanian named Marcel-Lehel Lazar) had successfully hacked into the AOL account of Sidney Blumenthal, a friend of the Clintons who had worked in the White House as a senior adviser to President Clinton in the late 1990s. The Russian-government-controlled TV news organization, RT, first published Blumenthal’s emails to Hillary Clinton at her private account address and posted all of them on March 20, 2013. Thus we also could have learned that Hillary Clinton’s use of a private email address had been known for two years.”

“Second, a week later, on March 20, it was reported that Guccifer had hacked Secretary Colin Powell’s AOL account. At the very least, if the references to the Powell precedent, his emails to Clinton, and the fact that his AOL server had been hacked had been included high up in the first March 2 Times story, the negative political impact on Clinton as the email story unfolded would have been much less.”

Which is why it wasn’t referenced. Just like-as we’ll get to in later chapters-THE REASON Huma Abedin’s emails to Hillary Clinton-that very conveniently ended up on her disgraced-not to say catfished-husband Anthony Weiner’s laptop-were publicly revealed on October 28, 2016 rather than a month earlier-as we will see in Chapter “Comey’s October Surprise Wasn’t a Surprise for Devin Nunes” the emails were allegedly discovered by FBI agent John Robertson-again allegedly completely by accident. Though as we’ll see in Chapter Devin Nunes, somehow Nunes and his GOP co-cospirators in Congress would already know about Huma’s emails to Hillary on Weiner’s laptop no later than September 29.

FN:

CF: Schoenblog does an excellent analysis of Barrett’s very dubious book

The Surprising Story behind “October Surprise” | Schoenblog.com

End FN

There are a number of “big conundrums” of Emailgate that we try to cover in this Comeygate section of the book: in this chapter it’s wether there was probable cause at all in the next chapter it’s why it took Comey so long to clear Hillary Clinton-as it was undeniable by January 2016 at the latest the chance she would be indicted was very low; of course as we suggest above it was probably very low considerably before then indeed arguably it was clear BEFORE the investigation started which might explain the UNSUB designation. Then there’s the contrived furor over Tarmacgate, there’s Comey’s mysterious Russian document, there’s Weinergate, there’s the phenomenon of True Pundit. All are covered in the subsequent chapters in the Comeygate section.

But as big as any is certainly the LOST MONTH before the Comey Letter. Because it’s self evident that Clinton lost BECAUSE of the Comey Letter-see Nate Silver. But had this exact same fact pattern been revealed on September 28-again Nunes knew of the emails by September 29 at the latest. But at the end of the day the reason the emails were publicly released on October 28 rather than September 28 was that they wouldn’t been politically damaging, as it happened fatally, to Hillary’s campaign just like the reason the media didn’t report on Colin Powell’s email practices until 16 months after the NYT first Emailgate piece on March 2-and only did then because Elijah Cummings forced the issue by releasing Powell’s communications with Clinton-because with that context the reporting wouldn’t have severely damaged Clinton’s political chances.

Occam’s Razor.

Those were the “Clinton Rules” of 2016-everything is always framed as uncharitably as possible so as to do the most political damage.

FN: CF chapter on the Clinton Rules that Jonathan Chait discussed.

So in that same vein under the same rules-the Clinton Rules-the fact that Clinton’s private server seemed more secure than the State Department server was another “trivial fact” as it didn’t fit with the Emailgate narrative. Interesting that for once the GOP feigned the belief that the “government run” email server was far superior and more secure-when ironically this was one time it wasn’t!

FN: Location 376

Indeed on July 5 after Comey’s inappropriate “very careless” press conference

FN: see chapter Very Careless-it was revealed that in fact Clinton’s email was not hacked.

FN: Ibid

Again the natural law of Savvy mainstream media in 2016 was that if it contradicted the Emailgate narrative then the media-for some wholly mysterious reason-wasn’t interested

“It is unclear why the Times missed the issue of the private server. Perhaps they didn’t consider it significant. They also later missed the fact that more than 90 percent of the emails Clinton sent and received contained the state.gov address—they were between her and other State Department officials. Thus, these were automatically captured on the State Department server.”

Just another “trivial fact” as it contradicts the Emailgate narrative. Indeed, as Davis points out it was not surprising-actually interestingly he said he WAS somewhat surprised which I find surprising- in the least that partisan Republicans-kind of redundant to call Republicans partisan-were partisan but what explains the tendency of the media led by the Times which the rest of the mainstream tended to follow to engage in months upon months of “no facts all speculation negative coverage” of Clinton? Part of it-though the media of course is loath to admit it was many of them had “Clinton Derangement Syndrome” themselves.

Davis them raises the bloody shirt of Whitewater-not surprising with his history as a Clinton lawyer during Whitewater. He argues this is a case of historical amnesia by the press.

“As usual, the talking heads recycled the trite word “narrative”—that these private emails were consistent with her “penchant for secrecy”—with the same hype and repetition of the word “scandal” as seen during the Whitewater “scandal.” The “coverage” was filled with sound and fury, signifying nothing.”

“It amazed me how few of the TV reporters even remembered Whitewater, much less knew that it was a classic example of a nonscandal that began that way and ended that way, notwithstanding the media hype, partisan attacks on both Clintons, and a criminal investigation lasting seven years, conducted by an independent counsel with an unlimited budget. Would they never learn the lesson of the dangers of getting ahead of the facts? Or didn’t it matter, so long as column inches mounted in news stories and clicks and ratings stayed high to measure readers and viewers?”

Location 385

BREAK into Comeygate 2.0 Canvas

However after her statements at the UN on March 10 Emailgate DID die out for about four months. UNTIL: in July 2015, when the NY Times got the story wrong again.

The Times Gets it Wrong Again

Lanny Davis to begin Chapter 2:

“The Times Gets It Wrong Again”

“At 10:31 P.M. on Thursday, July 23, 2015, the Times posted a lead story on its website with the headline “Inquiry Sought in Hillary Clinton’s Use of Email.” The story had been written by Times reporters Matt Apuzzo and Michael Schmidt.

“The first paragraph stated that “two inspectors general* [one from the Intelligence Community,† called the ICIG, and the other from the State Department] have asked the Justice Department to open an investigation into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state.”

“The story was based on a July 23, 2015, memorandum that the Times was told by a leaker came from the two IGs recommending a “criminal referral” concerning Hillary Clinton’s mishandling of her private emails. The memo was actually sent just by the Intelligence Community inspector general, I. Charles McCullough III—not also sent by the State Department inspector general, Steve A. Linick, as the Times wrongly reported. McCullough wrote the memo but personally signed it and sent copies to the two chairs of the House and Senate Intelligence Committees and the director of national intelligence (DNI). The full July 23, 2015, memo appears on pages 33–34.”

FN: Location 426-436

Speaking of the Times getting it wrong again Apuzzo/Schmidt begun with an error as Linick didn’t sign it.

Remember the pattern we discussed above about narrative-where the story that the FBI chose to tell and the NY Times and Friends wanted to tell was the Emailgate narrative-which was always maximally uncharitable and supposedly incriminating for Hillary Clinton? Well there were actually two documents:

““There were actually two documents created by McCullough that had significant ramifications for Hillary Clinton and her presidential campaign.”

But only one would become public then-the other one didn’t become public until two months after the 2016 election-once again pretty convenient, two months after THAT WOMAN was safely defeated-the other would become public immediately and reignite the much ado about nothing Emailgate furor.

“The second was the July 23, 2015, McCullough memo to Congress and the DNI. According to a source close to McCullough,‡ this July 23 memo was virtually identical to the July 6 “referral” McCullough had secretly made two weeks before to the FBI.”

So McCullough had secretly made this same “referral” to Trumpland the FBI two weeks before but we wouldn’t learn about this until two months after Trumpland had elected Trump.

“News that Hillary Clinton was under criminal investigation because of her emails was a big deal.”

To say the least. It had the inconvenient fact of not being true. But this was the 2016 election, the first post truth election and this became the accepted frame of her entire campaign-she’s under *criminal *investigation no matter how false it in fact was.”

“The story spread rapidly across the Internet that night. It dominated coverage on front pages across the nation and lead stories on news websites. It went viral on Twitter and other social media. It led all the morning TV shows, with the inevitable BREAKING NEWS crawling across the screens of cable news shows. However, by midday on Friday, Justice shocked everyone. It withdrew its prior “confirmations” to the Times and other news organizations it had made only a few hours earlier. It stated that there had not been a “criminal referral” as they had previously stated, but rather a “security referral”—without explaining what that latter term meant. Then something even more unusual happened.”

“The two inspector generals, McCullough and Linick, who rarely spoke to the media at all, issued a joint public statement echoing the Justice Department’s contradiction of the Times story that they had made a “criminal referral” about Hillary Clinton and her private email system. They made the same distinction—there was no “criminal referral,” but rather a “security referral.”

FN: Location 452-463

Hmmm. A *security referral. *That’s not a criminal investigation at all, indeed, you could maybe even call it a *matter. *

Once again we’re back to MATTER NOT INVESTIGATION after all.

“The Washington Post immediately posted a story explaining what a “security referral” was—a routine dispute between agencies as to what Clinton emails should or should not be released under the Freedom of Information Act (FOIA). The Post reported: “McCullough [the ICIG] said he also recommended that freedom-of-information officials at the State Department implement ‘a dispute resolution process [involving the Intel Community, State, and the FBI] in regard to differences of opinion about classification levels and exemptions.’ ” So if this was what the Times story was really about, then what was all the fuss about? How did it merit a rushed posting by the Times late on Thursday night and then front-page treatment in the July 24 morning paper? And how did the Times reporters, two of the most outstanding reporters in Washington, get the core fact wrong that there was no criminal referral made by McCullough, much less made by “two IGs”? By midday, after repudiation of the story by both Justice and the IGs, obviously the Times had to withdraw the story that Clinton was personally under criminal investigation. Condemnations of both the Times and the Justice Department for getting something so important so wrong, unfairly damaging.”

Of course, once fake news is put out into the political  bloodstream it’s very tough to drain it out in the future as the Times own Public Editor admitted:

“The Times was faulted by its own public editor for the “rush to publish,” and many others criticized Justice for the “rush to confirm.” The criticism was even worse when the Times’ public editor several days later acknowledged that the paper’s reporters had not seen the July 23 memo that was the basis for their entire story, even though the reporters said that they relied on confirmations of what they had been told from multiple sources at the Justice Department. Virtually everyone following the presidential campaign had the same questions: What the heck had happened? The Times gets confirmations, Justice reverses itself, and two inspectors general issue a public statement rebutting a newspaper story? These questions had answers, albeit troubling and only completely understandable, two months after the election, when the FBI published its “public vault” of website documents that had previously remained undisclosed. ”

FN: Of course, during the Trump 1.0 term, Dean Baquette decided having a public editor was no longer convenient and fired Spayd after she rightly apologized for how the Times missed the bus on the Russia investigation BEFORE the election-see Chapter A on “The FBI Sees no Clear Links.”

End FN

So why did the Times get their story is so wrong?

“Virtually everyone following the presidential campaign had the same questions: What the heck had happened? The Times gets confirmations, Justice reverses itself, and two inspectors general issue a public statement rebutting a newspaper story? These questions had answers, albeit troubling and only completely understandable two months after the election, when the FBI first posted on its “public vault” of website documents that had previously remained undisclosed. (They will be explained in the next chapter.)”

“Let’s start with how the Times reported this story and how it got it so wrong. We begin during the afternoon and evening of July 23, inside the sausage factory process among a national newspaper trying to confirm a leak, a presidential campaign not knowing the substance of the leak, and the Justice Department hastily “confirming” the story.”

Again when you want to understand 2016 it’s all about narrative-the Emailgate narrative. Whatever furthered it interested the media whatever didn’t had no interest to them. To further this story on the evening of July 23 the Times wasn’t even interested in basic the basic ethics of professional journalism-not even waiting to warn the Clinton campaign as they had promised before furthering the dubious story of Emailgate.

“That afternoon, Brian Fallon, the national press secretary for the Clinton campaign, received a call from Times reporter Schmidt. Before joining the Clinton campaign, Fallon had served as public affairs director at the Department of Justice under Attorney General Eric Holder. Schmidt was a widely respected young reporter who had been covering Congress, including the Benghazi special committee work and hearings. Schmidt asked Fallon if he had heard about a memo or some written communication from “two IGs” from the State Department and the Intel Community raising the possibility of classified material traversing Secretary Clinton’s email system.”

FN: Location 484

Fallon though rightly saw this as fishing-for something, anything to further the narrative.

Fallon, a pro when it came to reading and interpreting journalists, had the impression that Schmidt was fishing. He didn’t seem to have any hard information and was looking to “feed” from Fallon’s reaction the story he didn’t yet have. But Fallon had no idea what Schmidt was talking about and told him so. Schmidt said he would call Fallon back before writing a story. Fallon at that point did nothing further, as he didn’t take Schmidt’s call seriously.”

But Schmidt DID assure Fallon he’d call him back before writing a story. Then-he didn’t call him back. Because even basic journalistic fairness and ethics didn’t matter if it slowed down the Emailgate train.

Unbeknownst to Fallon, a couple of hours later, at about 6:30 or 7 P.M., Apuzzo, the other Times reporter working on the same story, whose primary beat was the Justice Department, called a junior Justice official who dealt with the media. Apuzzo asked for confirmation that the department had received a written criminal referral from two IGs of Intel and State seeking a “criminal investigation” of Hillary Clinton over her handling of her emails.”

Again it’s like those old covers from Highlights many us Gen Xers remember when we were kids-were you had to find everything wrong with the picture. Finding all the errors in Emailgate-by both the FBI and the NY Times-is also good for hours of material-once again it was only one IG had made the initial referral-the Intelligence Community IG, the State IG had not joined in AND even IC IG Charles McCullough had only made a security referral-perhaps A MATTER?-NOT a criminal one.

As for this “junior Justice official” Apuzzo’s entire demeanor during this episode would be the same as from the first story and with Fallon-very urgent to further the Emailgate story considerably less concerned about being accurate much less fair.

As we’ll see in the Why Comey Wrote the Comey Letter Chapter, Comey also referred to a phantom “junior Justice official” during his-rather contrived-deliberations on doing the Comey Letter-I say contrived as it’s clear he’d already made up his mind.

This official was not a lawyer. (To maintain the promised anonymity of the former Justice Department officials who were sources for this account, I will use the pronoun “he” for all, even though the gender could be male or female.) The junior official called a senior department official, an attorney who worked near the level of the attorney general.”

Now enter-a “senior department official” who would prove to be considerably less responsible than the “junior Justice official.”

“He asked whether Clinton was under criminal investigation. The senior official paused, then said yes, he could confirm.”

“Are you sure?” the junior official asked. He knew that confirming to Apuzzo would trigger a major Times story. Announcing that Hillary Clinton was under criminal investigation could be a game changer affecting the election. We had better be right in confirming, he thought. We can always give no comment tonight and wait to see whether we can get more information tomorrow morning, he said to the senior official.

So the junior official was rightly concerned to be pretty certain before taking a step that could well prove to be a game changer affecting the election. This “junior official’s” concern was quite well placed as this would prove to be “a game changer affecting the election.” Indeed regarding Comey’s “junior official” in October they-she? In the chapter I reveal who I believe it is and she’s a she LOL-also proved to be far more responsible than the alleged “senior officials” certainly than Comey. Again not to belabor the gender of these “junior officials” but I tend to suspect they were both female, again I’m fairly confident Comey’s junior official is and suspect the one Apuzzo spoke to also was. 2016 was the year for ignoring the warnings and advice of smart, competent women…

“Anyway Apuzzo’s “senior official” was apparently far less concerned about affecting a Presidential election assuming he-again presuming on the gender I admit-didn’t actively hope to effect it as many in the FBI as we will see in subsequent chapters actively wanted. Indeed in the Comey Letter Chapter Comey had piously declared to his “junior official” that it’s wrong to even worry about affecting the election it’s a base concern. Which is pretty much the opposite of what DOJ regulations say but again in Emailgate such quibbles were a trivial concern certainly Comey was always far less concerned about DOJ regulations and protocols than his own Kantian moral intuitions.”

The senior official said he would check with others and call back, which he did shortly thereafter. He told the junior official that he had spoken to another department official. “He said I could confirm the criminal referral, saying, ‘It is what it is.’ ” The senior official also added, vaguely, that he had gotten the same confirmation from an FBI official. So the junior official, still with serious doubts, called Apuzzo back at about 8 P.M. on July 23 and said he had gotten confirmation of a criminal referral about Clinton’s emails.

It is what it is-right? Actually not really. Note there are two different questions here-one is wether there was a criminal referral by two IGs. The answer to that question was no in fact as it was only one IG who’d made the referral and that was merely a security not a criminal referral. But while that was a serious problem-the shoddiness of the Times reporters their eagerness to further the Emailgate narrative without basic due diligence and attention to accuracy another serious issue was the conduct of the FBI, certainly of this “senior official” at the DOJ. Because even if the story was accurate-as it turns out it was not-it’s highly questionable wether they should have so eagerly made it public before much less so early in the game-it’s highly questionable wether they should have confirmed it to the NY Times at all. Again as we saw above the FBI and Friends certainly know how to follow proper protocol as they did it during the So the junior official, still with serious doubts, called Apuzzo back at about 8 P.M. on July 23 and said he had gotten confirmation of a criminal referral about Clinton’s emails.Russia investigation about the Trump campaign-there Comey only confirmed it in March 2017-ie a full eight months after it was opened while Emailgate was made public pretty much the first day. Again proper protocol is to neither confirm nor deny as they properly followed during the Russia investigation.

Meanwhile the “junior official” remained concerned even as they did confirm what they were told.

“So the junior official, still with serious doubts, called Apuzzo back at about 8 P.M. on July 23 and said he had gotten confirmation of a criminal referral about Clinton’s emails.”

At this point Apuzzo called Fallon back but he already sounded like he’d made up his mind this was a thing based on this one senior official-despite both repudiation by both IGs he’d based the story on as well as repudiation by the DOJ.  Apuzzo had decided on a narrative and now nothing would dissuade him least of all* trivial facts. *

“At 8:36, Schmidt called Fallon back. Unlike his earlier call in the afternoon, Schmidt now sounded far more definite and ready to go with a story. He told Fallon that the Times had received a “separate tip” that two IGs had sent a criminal referral to Justice about Hillary Clinton being under investigation over her emails.”

He conveniently left out that this “separate tip”-the senior DOJ official?-contradicted by the repudiation of both IGs and the DOJ. Again par from the course as this wasn’t helpful to the Emailgate narrative quite the opposite. Meanwhile Fallon had a very interesting thought on who was behind the leak:

“(Fallon had a hunch the leak came from someone on Capitol Hill. He guessed it was someone from the House Benghazi Committee, since that was the committee Schmidt had covered previously.)”

It would explain the urgency that both Apuzzo and this alleged “senior official” had-it was the opposite of a dispassionate exercise either on the journalistic side of Apuzzo-Schmidt or the alleged “senior official.” There was clearly a partisan agenda behind it which further buttresses Fallon’s hunch.

“Fallon’s adrenaline spiked along with his heartbeat. If true, this was very serious; it could represent a grave threat to the Clinton campaign, which, in the summer of 2015, was already in a competitive contest with Vermont senator Bernie Sanders for the nomination.”

“Fallon told Schmidt he hadn’t heard anything about a criminal referral to Justice about Clinton. He thought it was implausible since he figured someone from the legal advisers to Clinton (or himself, as a former Justice Department official) would have heard about it, even vaguely. Fallon asked Schmidt how certain was he about the truth of this tip. Had he challenged the “tipster” to show him the document that was the basis of the tip? No answer.”

Location 505

So-no. If he had he would have said so. Again nothing matters but the narrative. Apuzzo was so eager to further Emailgate that it never occurred to him to ask to see the document.

In any case this is the fateful moment where I do think it’s arguable that Apuzza violates a core principle of journalist ethics.

“Fallon still had a feeling that Schmidt didn’t have it all completely nailed down and hadn’t seen the document that had triggered his call. Fallon asked whether he could have more time to check this out with senior campaign officials. Schmidt said that was fine, that Fallon “had time,” suggesting publication of the story was not imminent.”

Fallon checked with Clinton campagin headquarters in Brooklyn to see if anyone had heard anything about an imminent investigation-he and communications director Jennifer Palmieri called a conference and no one had heard anything about an imminent investigation.

Fallon was relieved. If Justice was initiating a criminal investigation of Hillary Clinton, Fallon, a veteran of breaking news stories, believed there would have been various leaks already occurring and maybe other news organizations chasing the same leak.

Fallon was very confident however that Schmidt would keep his word in what he’d promised in their earlier conversation:

Fallon was certain of one thing: Schmidt and the Times would not go with a story of such importance

Fallon was certain of one thing: and potential damage to Clinton’s presidential candidacy without calling back to seek a comment, and perhaps share the basis of the information that had been confirmed as true.”

Location 516-525

Alas this confidence Fallon had in Schmidt and Apuzzo playing by basic journalistic standards and ethics.

Meanwhile, Apuzzo had apparently received confirmation of the criminal referral from other sources at Justice. Even though neither he nor Schmidt had read the July 23 memo that had been characterized by the “tipster” as a “criminal referral,” both reporters were confident that they had multiple sources at the Justice Department confirming the story.”

Meanwhile, Apuzzo had apparently received confirmation of the criminal referral from other sources at Justice. Even though neither he nor Schmidt had read the July 23 memo that had been characterized by the “tipster” as a “criminal referral,” both reporters were confident that they had multiple sources at the Justice Department confirming the story.”

When Fallon didn’t hear back from Schmidt after 10 PM that night he did begin to become a little concerned but even then the last thing he expected was to Schmidt to publish before getting back to him as promised-that he and Apuzzo, the NY Times, would never break their word and violate such basic professional, journalistic, ethics.

Eighteen minutes later, Fallon called again. Voice mail again. Fallon left another message. He was now more concerned.”

“Just before eleven o’clock, Fallon’s cell phone rang. It was Schmidt. “I assume you are not writing and still checking out the ‘tip,’ ” Fallon said.

Schmidt replied, “Sorry, that’s not correct. The story has just been published on the Times website.”

FN: Location 524

“What?” asked Fallon. He hung up in a fury. He and Palmieri immediately went to the Times website. They were horrified to see the headline and story that Hillary Clinton was under criminal investigation at the request of two IGs for possibly mishandling sensitive information on her private emails.”

Fallon was angry at Schmidt and the Times for violating what he thought was a fundamental rule of fairness between a journalist and a source: You don’t publish a story that could do damage to anyone, much less a front-running presidential candidate, without calling and giving the subject a chance to respond.”

“Fallon immediately called Schmidt to express his anger. He also spoke to Apuzzo. It was apparent to Fallon that neither reporter had read the memo from the IGs that seemed to be the basis for the “tip” they had received. Fallon still didn’t know that Justice Department officials had already confirmed the story.”

This in one-fateful episode-was a recurring theme of Emailgate. Schmidt through a heated back and forth with each NYT reporter realized that neither reporter had a hard confirmation that Hillary Clinton was under criminal investigation. But this wasn’t surprising as we know in retrospect that they couldn’t have had confirmation as she wasn’t.

This was then followed by another recurring theme-the Times would make a belated correction but it wouldn’t get the front page viral treatment the original error received.

“A short time later, by then near midnight on July 23, Fallon learned that the Times had filed a revised version of the story, deleting the personal reference to Clinton as the subject of the criminal investigation. The revised version switched to a passive tense, omitting Clinton’s name—now the “criminal referral” by the “two IGs” was about “whether a sensitive government investigation was mishandled.”

“But the Times made this subtle tense change in the story without informing the readers at the time. (Four days later, on July 27, a relatively lengthy Editors’ Note acknowledged that the failure to inform the readers of the deletion of Hillary Clinton as a personal subject of the investigation was an error.) However, that change didn’t help Clinton at all.”

Exactly-the “subtle tense change” that nevertheless had massive implications but few would appreciate it indeed few would learn of it. Once again the Emailgate narrative was left completely in tact-once again when Comey cleared Clinton on July 5, 2016 60% of poll respondents-wrongly-believed she SHOULD have been indicted when the truth is very arguably-as this chapter does argue-she should never have been investigated in the first place.

Because the corrections would always be terse and on Pg A29 or made 27 paragraphs under the initial visceral-uncharitable indeed inaccurate-headline. Meanwhile the lie would be repeated again and again-even long after the one time correction.

“The story as first posted, with “criminal investigation” in the headline, was repeated across mainstream websites and social media overnight and on all the Friday morning network and cable news shows. The Clinton campaign’s frantic efforts to inform other media outlets about the deletion of Hillary Clinton as personally the subject of the “referral” were ineffectual.”

“The damage was done. As the Times public editor put it in her lengthy July 27 critique of the article, “You can’t put stories like this back in the bottle—they ripple through the entire news system.”

The next morning in a morning DOJ meeting of senior people no one offered any objection to the story and, naturally, other media outlets followed the Times’ lead-after all they’re the Times. Again this is how a bad narrative takes hold and becomes part of the received conventional “wisdom”-this is among other things an excellent example of why a Nietzschean cum Zarathustrean like myself can never talk about the “conventional wisdom” without some irony.

Meanwhile the two IGs who the Times story wrongly credited for making a criminal investigation into Hillary Clinton were aghast-and felt they needed to so* something. *

“There’s a real shit storm going on,” Linick is reported to have said. “Neither of us made a criminal referral about Hillary Clinton and emails—am I right?”

“McCullough scanned the Times story. He may have said words that would require an “expletive deleted” expression. “No, of course not,” McCullough said. The referral he had made early in the month to the FBI, and summarized in his July 23 memo to Congress, was about bolstering State’s efforts to review Clinton’s emails for possible classified information before any decisions on disclosure should be made under FOIA. That was a security referral, not a criminal referral, he said.”

Exactly-matter not investigation. As the two IGs scrambled to correct it was beginning to dawn over at DOJ what a shitstorm was started:

“Meanwhile, Justice officials, embarrassed about their erroneous confirmation to the Times the night before that the two IGs had made a criminal referral, were also at work on a corrective statement. Sources report that by then they actually had read a copy of the McCullough July 23 memo to Congress. It didn’t take long to read the two-page document and to see that there was no “criminal referral” mentioned. So the difficult and embarrassing decision was made at senior levels at Justice to reverse its prior confirmations. The junior official who had confirmed to Apuzzo the night before heard the news and called Apuzzo immediately to tell him. He deserved to hear first, the official explained. His reaction was not positive.”

Location 567

So Apuzzo-and Schmidt and their employer-had no excuse at this point. But again Emailgate is the story of the triumph of a preferred narrative over truth. And we here 10 years later-almost to the day as today is 7/22/2025-are still living with the awful aftereffects.

So Apuzzo-and Schmidt and their employer-had no excuse at this point. But again Emailgate is the story of the triumph of a preferred narrative over truth. And we here 10 years later-almost to the day as today is 7/22/2025-are still living with the awful aftereffects.

So at Friday July 12:15 the DOJ would officially retract their prior confirmation of a “criminal investigation” by the two IGs.

“Rather, they described it, for some reason without further explanation, as a “security referral.” The media reaction critical of Justice was severe not only for the department’s haste to confirm but also its failure to explain its reversal.

Meanwhile our two misquoted IGs made an unusual joint public statement:

At about the same time, the two IGs—ICIG McCullough and State’s IG Linick—issued their unusual joint public statement directly contradicting the Times front-page story that morning, saying they had not made a “criminal referral” regarding Hillary Clinton’s handling of the emails, but rather a “security referral” for “counterintelligence purposes.”

As Davis argues this joint statement on July 24 was crucial in highlighting “a lot of the subsequent misreporting on the Clinton email issue by mainstream media through the rest of Hillary Clinton’s campaign. The key reporting errors made by the mainstream media can be seen, in retrospect, to go back to the distinction between a noncriminal “security referral” versus a criminal referral.”

FN: Location 576

Once again: matter not investigation.

“The media consistently failed to report the crucial distinction between Clinton emails that had no appropriate classified markings and those unmarked emails that were described as “containing classified information,” based on post-facto judgments by some Intel Community members that were, at the very least, subject to debate and that occurred in a tiny fraction (well below 1 percent) of the thirty thousand plus Clinton State Department emails sent to her private server. The distinction is crucial: between what was legal versus what was illegal.”

This remained a stumbling block that the media would misapprehend and the GOP would exploit straight to election day.

Now let’s examine the key sentences of the July 24 public statement by the two IGs with comments about their implications for the handling of the Clinton email issue by the media for the remainder of the campaign:

“Yesterday [July 23] the Office of the Inspector General of the Intelligence Community (ICIG) sent a congressional notification to intelligence oversight committees updating them of the ICIG support to the State Department IG (attached).”

“The ICIG found four emails containing classified IC-derived information in a limited sample of 40 emails of the 30,000 emails provided by former Secretary Clinton. The four emails, which have not been released through the State FOIA process, did not contain classification markings and/or dissemination controls. Note no “classification markings and/or dissemination controls on four out of forty. These four emails were identified after an inspector in McCullough’s IG office in Virginia visited the State Department for two days at the end of June and reviewed the thirty thousand plus Clinton emails. He was forced to stop after two days but was allowed to take a sample of forty emails that he believed might “possibly” include classified information. Subsequently, Intel Community experts reviewed these forty and identified four that they believed contained classified information.”

Note no “classification markings and/or dissemination controls” on four out of forty. These four emails were identified after an inspector in McCullough’s IG office in Virginia visited the State Note no “classification markings and/or dissemination controls” on four out of forty. These four emails were identified after an inspector in McCullough’s IG office in Virginia visited t thousand plus Clinton emails. He was forced to stop after two days but was allowed to take a sample of forty emails that he believed might “possibly” include classified information. Subsequently, Intel Community experts reviewed these forty and identified four that they believed contained classified information.”

Yet as Lanny Davis points out while this sample was  only 40 out of 30,000 by the end of the damnable Emailgate investigation:

“none of the thirty thousand Clinton emails would be found to have appropriate classification markings. This was confirmed by the source close to ICIG McCullough. Yet the crucial distinction between documents appropriately marked and not marked was either ignored or confused by Republicans, intentionally conflated to suggest that unmarked documents could be the basis of criminal prosecution.”

FN: Location 636

Note also the little word “may”-ie ““may.” There was no finding that the “classified information” had in fact been “compromised” when it was transferred to a “private server” or to a “thumb.”

Indeed Lanny Davis quite reasonably  questions why as Comey himself would admit on his (in)famous July 5 press conference the following year-infamous because it was wholly inappropriate and in violation of DOJ rules and protocols as we’ll see in Chapter Comey Presser-his year long witch hunt investigation found “no evidence” of any successful hacking or compromise of Hillary’s server-why McCullough found it necessary to ring “the alarm bell of a “compromise” requiring an interagency “counterintelligence” “security referral.”

But in any case McCullough had never intended a criminal investigation yet this piece of misreporting by the NYT would (mis)inform the public discussion of Emailgate for the next 15 months and would ultimately flip the Presidential election and elect a Kremlin aligned authoritarian madman and we are now 10 years later-today is 7/26/25, ie 10 years and three days since the dog’s breakfast that Apuzzo/Schmidt and their NYT made of this story-and our democracy remains on life support.

“As we shall see in the next chapter, this “noncriminal” referral by McCullough was referenced as a possible basis for the FBI to open a “full” criminal investigation of Clinton’s handling of emails. However, the source close to McCullough stated that it was never McCullough’s intent to initiate a criminal investigation of Clinton. In fact, he did not know that such a criminal investigation of Clinton had been opened until he read about it in the media months later.”

The question of how McCullough’s “security referral” became a criminal investigation  Sensitive Intelligence Matter (UNSUB) at the FBI is another question that remains of great interest-we touched on it above in the deliberations of Comey and Friends- Giacalone and Coleman, the furor over “matter not investigation” et. al-and will consider it more below.

Regarding the memo McCullough sent to the (GOP) Congress on July 23 it’s arguable as Davis does argue that there was a deliberate attempt to confuse and mislead.

“Here is the only sentence in McCullough’s July 23 memo to the congressional intelligence committees that contains a reference to a referral to the FBI:

“As my office’s limited sampling identified four emails containing classified IC information, I referred this matter to counterintelligence officials at State and within the IC, including the National Counterintelligence and Security Center and the Federal Bureau of investigation. Note that there is no word “criminal” in this sentence. This is probably the sentence that the leaker of the McCullough July 23 memo to the Times either misunderstood or intentionally mischaracterized—i.e., wrongly inferring that since there was a reference to the FBI in the memo, that must have meant that McCullough was making a “criminal referral.” Wrong. In fact, the sentence includes not only a reference to the FBI in its noncriminal counterintelligence role to review documents for possible classification status, but also to the State Department and the National Counterintelligence and Security Center as well—omitted by the Times in its erroneous reporting.”

FN: Location 665

Of course it was as it wasn’t convenient to the Emailgate narrative-again that was the generalized law of Emailgate during the entire 20 months.

In any case, what was the response of the Times when both IGs-only one who’d actually made the security referral-contradicted its reporting of a criminal investigation early on July 24?

If your guess would be “to publish a “clean-up” version that was strictly factual and balanced.”-that would be reasonable yet you’d be wrong. As Davis points out the Times COULD have amplified the meaning of a “security referral,” explaining that this was mostly about a typical FOIA dispute between the Intel Community and the State Department, in which the FBI was playing a noncriminal, “security referral” role, and that would have been the end of that.”

But that wouldn’t have been convenient to the Emailgate narrative-so of course the Times was never going to do that.

UPDATE::

Comeygate Part 3

As usual the Times published the correction deep in the bowels of a long another long article-it waited until paragraph 7 to reveal the significant fact Clinton’s emails “were not marked classified.”

The article continued: “The two investigators did not say whether Mrs. Clinton sent or received the emails [that contained classified information]. If she received them, it is not clear that she would have known that they contained government secrets, since they were not marked classified.”

Seems like as this was a pretty important distinction the Times didn’t know the answer to maybe these categorical headlines that Clinton was under criminal investigation and had that her emails had contained classified information were not so responsible? It’s almost as if they were trying to further a narrative…

Next the Times moved onto a framing that became THE framing of the Emailgate narrative-Hillary Clinton was guilty of SOMETHING. Of what was never clear-or it was always changing. There would be on flawed premise but if you knocked it down there was always another to take it’s place. Again this is why when Comey as we see in the next chapter very belatedly cleared Hillary Clinton 60% of poll respondents thought she got away with SOMETHING that she should have been indicted FOR SOMETHING.

““Irrespective of terminology, the referral raises the possibility of a Justice Department investigation into Mrs. Clinton’s emails as she campaigns for president. . . . Mishandling classified information is a crime. Justice Department officials said no decision has been made about whether to open a criminal investigation.”

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“Irrespective of terminology…”reduces any attempt to interject inconvenient facts into the convenient Emailgate narrative to hairsplitting but in truth these are not quibbles, “terminology” is not just about quibbling over niceties-in some of  these cases the distinction is one between legal and criminally liable behavior but since the chance Clinton had committed an indictable crime was always rather remote the question of legality was dismissed to “terminology.

“the referral raises the possibility of a Justice Department investigation into Mrs. Clinton’s emails…”

Weasel words atop weasel words. The referral-that the Times wrongly reported as criminal then offered a very terse far beneath the fold correction-“raises the possibility” belies the level of certainty that this mere “possibility” was an actuality.

Then we get to the (in)famous “mishandling of classified information” that Comey would himself use and misuse in his inappropriate presser a year later:

“What are we to make of the reminder that “mishandling classified information is a crime”? Well, of course it is. “Mishandling” by definition means sending clearly marked “classified” documents through unsecure channels, whether using the unsecure state.gov emails system or a private server. But since the story already stated that so far none of Clinton’s emails reviewed were marked, then what was the purpose of this gratuitous statement? And then the next sentence, that the Justice Department had said “no decision has been made” whether to open an investigation. What is the point of reporting what the Justice Department has decided not to do yet? It is hard to avoid the conclusion that this final July 24 Times story seemed to be more about vindication and argument than straight fact reporting, with the overall effect to suggest that, well, we might have been wrong about Hillary Clinton being under criminal investigation now, but . . . just wait . . . it won’t be too long.”

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As Davis says it was almost as if the Times was predicting something. This would be the tenor of Emailgate throughout October 28, indeed until election day which fed the public ending up with the false narrative that Hillary Clinton SHOULD have been indicted-she was guilty OF SOMETHING. Again “even the liberal Chris Hayes” had asked Hillary in the last question of their big interview wether she fears being indicted-it reinforced yet again a false narrative.

But now let us circle back to another big question of this chapter that I referred to above-indeed as we just passed the anniversary of this truly abysmal moment in American history with the NYT erroneously reporting that Clinton was under criminal investigation-how the FBI came to open a criminal investigation Unkown Subject (UNSUB) investigation. For this investigation of the Emailgate investigation there ARE some subjects starting with Comey and his two Emailgate elves Giacalone and Coleman who were so bent out of shape over “matter not investigation” even though it WAS A MATTER not that it in truth* ever mattered much.”

But our investigation of Emailgate has actual subjects-unlike Emailgate itself. Certainly our investigation of Emailgate has more predication than Emailate itself ever had. But I keep going back to all the faux indignation over “matter not investigation”-I strongly suspect it was contrived. The idea that UnHoly Emailgate Trinity of Comey-Giacalone-Coleman were shocked, SHOCKED I tell you, that it was actually an UNSUB doesn’t pass the laugh test-after all who opened the unpredicted investigation in the first place?

Speaking of which, chapter two of Lanny Davis’ book focuses on just this, indeed the chapter title is aptly enough “The FBI Criminal Investigation.” He opens the chapter with a discussion of how Trumpland the FBI

chose the Sunday night of January 8, 2017-exactly two months after Trump’s illegitimate victory-

FN: if the Emailgate chicanery didn’t put an asterisk next to an election for President of the US nothing will

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too release 200 documents from the Emailgate investigation on its website called its FOIA vault.

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Among these 200 documents Davis argues were three important ones. I certainly agree the first one was pretty important it was the memo opening “a criminal investigation of Hillary Clinton and her email practices.”

Of course, as we discussed above it wasn’t in fact a criminal investigation of Clinton but an UNSUB-ie of “unknown subjects.” But let’s get to the main event-what was the criminal investigation of Clinton that wasn’t a criminal investigation of Clinton predicated on?

“This memo, which appears on pages 58–60, claimed the decision was based on “documentation” provided by the ICIG, Charles McCullough, in a July 6 referral sent to the FBI.”

Once again let’s reiterate that McCullough’s referral wasn’t a criminal referral and was never intended to be such-as we quoted Mccullough himself above. But as Davis points out this drop confirmed that there was a “criminal investigation”-again not of Clinton but “unknown persons”-but that it wasn’t the two ICIG’s but Trumpland the FBI.

The second important document was a hand delivered FBI memo-there are so many FBI Emailgate “memos” ending with the October 28 “memo” that the FBI either was or was not reopening Emailgate followed by the final November 3* memo that confirmed they were not concluding there weren’t new emails just duplicates which had been likely all along; see Chapter Why did Comey Write the Comey Letter” for more-to Sally Yates on July 21-as we saw above, this was one of three times the FBI so it necessary to tell Sally yates this.

Naturally the memo once again asserted the opening of the Emailgate investigation was based on McCullough’s ICIG security referral-that once again was not a criminal referral.

Forgive me for repeating this but as Goebbels said a lie told enough times becomes the truth so I’m just trying to catch up-again the saying that the lie travels half way around the world before the truth puts its pants on. As it is to this day many people still believe the Emailgate lies.

Yet another interesting conundrum is that despite seeing this memo the DOJ withdraw its confirmation of the criminal investigation on June 24-as we saw above.

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David conjectures perhaps they faced a dilemma.

“Senior Justice officials learned on Friday morning that they had wrongly confirmed on Thursday night that the two IGs had made a criminal referral to the FBI to investigate Clinton. The ICIG publicly stated (and undoubtedly told these top officials sometime that morning) that he had not made a criminal referral to the FBI but rather a “security referral.”

“But, again, why didn’t Justice, after it retracted its confirmation to the Times, volunteer that there was, in fact, an open FBI criminal investigation of Clinton as of two weeks before? Most legal experts would agree that they made the right decision not to do so. The long-standing policy of the Justice Department and, indeed, all criminal justice systems in the United States—federal, state, and local—is not to confirm (or deny) the existence of an ongoing criminal investigation. This is based on the principle of due process and the presumption of innocence. To confirm an investigation is to cast a shadow over a citizen who is still supposed to be protected by the due process rights and the presumption of innocence under our Constitution.”

Indeed and in this vein note that as we saw above, James Comey a few months later in September of that year would summarily dismiss and handwave away this long standing Justice Department policy in the most snarky way imaginable. He thought that as many of his own FBI agents had been continuingly leaking about it for two months why not just confirm it publicly? The answer is self evident-though apparently not for Comey-as Davis says: the principle of due process and the presumption of innocence. But again Comey felt this principle was for some reason in this case kind of trivial.

And-indeed-we’ll talk about this more in Chapter Why the Comey Letter-but it’s notable that this was not the first time Comey did something like this when you recall when he prosecuted Martha Stewart despite the* trivial fact* she had committed no crime-he prosecuted her for “lying” but even the question of wether this was really lie was subject to interpretation. But it’s certainly suggestive of a pattern-where Comey somehow seemed to think that there were certain occasions trivial concerns like due process and presumption of evidence, not to mention probable cause, could be set aside for his own moral ad hockery.

Of course, whatever the DOJ’s motivation was in taking back their confirmation on July 24, another very good reason, indeed in a sense the best reason was that: Clinton was NOT under criminal investigation. McCullough’s ICIG referral the FBI allegedly-I’m taking nothing for granted with Trumpland, especially in light the suspicious antics of Comey-Giacalone-Coleman we looked at above-was not a criminal referral and despite all the faux indignation of Comey-Giacalone-Coleman-‘Uh, oh I’m getting kind of queasy’, ‘What is this the Federal Bureau of Matters?!’-Clinton wasn’t under criminal investigation by the FBI either.

The third document posted by the FBI on that late Sunday night of January 8, 2017 had a pretty fascinating revelation:

“an FBI report of its interview (called a 302) of an inspector in the ICIG’s office in Virginia. This document appears on pages 65–67. What made that interview significant is that the second to last paragraph on page 67 confirmed that Clinton’s thirty thousand emails were in fact reviewed in two days—June 26–27, 2015. Also, this interview happened to occur on July 23. As we shall see, many of the ICIG and FBI actions adversely affecting Hillary Clinton happened on that day.”

So the thirty thousand emails were reviewed on June 26-27-over two weeks prior to the FBI opening the criminal not criminal investigation of Hillary Clinton. As for July 23, 2015… guess you could call this the day Donald Trump won the election. Indeed as Davis says this all raises serious questions about Comey and Friends.

“These three documents, taken together, raise troubling questions about the judgments and conduct of the FBI and James Comey; the Intelligence Community inspector general, Charles McCullough; and the top management of the Justice Department—questions that can be linked, directly or indirectly, to the decision by Comey on October 28, 2016, to send his letter to Congress.”

But let’s go back to July 10 when the FBI decided to open a criminal investigation-but not really a criminal investigation at least not of Hillary Clinton but rather of unknown “subjects”-of Clinton based on an ICIG referral by McCullough that he himself stated two weeks later was NOT a criminal referral.

One thing this July 10 FBI memo does is corroborate that it’s likely Comey himself who opened the criminal investigation of Hillary Clinton Unknown Subjects (UNSUB). Which once again is why I found his surprise and incredulity not just dubious but downright suspicious-how can it be a surprise to Comey that Emalgate was designated an UNSUB when he himself opened the investigation-and so must have been who designated an UNSUB in the first place?

The memo is from “FBIHQ, Counterespionage Section,” the Bureau’s headquarters in Washington. This means that FBI director James Comey himself presumably authorized the opening of this criminal investigation of Hillary Clinton. (Although her name is redacted from the memo, there are many indications that she is the subject, such as the fact that the investigation was designated as a “Sensitive Investigative Matter due to a connection to a current public official, political appointee or candidate . . .”) That is another reason why it is safe to assume that James Comey as director likely personally approved the opening of this investigation.”

“The first page of the memo states the synopsis of the investigation: “FBIHQ, Counterespionage Section, is opening a full investigation based on specific articulated facts provided by an 811 referral from the Inspector General of the Intelligence Community, dated July 6, 2015 regarding the potential compromise of classified information.”

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However as Davis documents, an 811 doesn’t necessarily or even typically lead to a criminal investigation.

“It does not necessarily involve a criminal investigation. Often an 811 referral from a department to the FBI merely advises the need for a review by the FBI’s noncriminal counterintelligence division experts to determine whether unmarked documents requested under the Freedom of Information Act should be marked “classified” and, thus, withheld from disclosure. As the Los Angeles Times reported, Section 811 referrals from the ICIG “may or may not ultimately launch an investigation. Experts say such referrals from an intelligence agency inspector general are routine and often do not lead to much.”

And-“This is what a source close to McCullough described as McCullough’s understanding of the document he sent to the FBI on July 6, 2015…”

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“The source said that McCullough never intended his submission to the FBI on July 5 to be characterized as a “criminal referral,” because it was not.

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What McCullough had sought in his referral was to enlist the FBI to help pressure the State Department:

“McCullough’s referral, the source said, was intended to seek support from the FBI to pressure State to allow representatives of the Intelligence Community, as well as the Counterintelligence Division of the FBI, to participate in State’s ongoing FOIA review process of Hillary Clinton’s emails. McCullough expressed concerns in that July 6 referral (and the July 23 memo) that the State Department had rejected requests for such participation in that FOIA review process by representatives from the Intel Community and FBI counterintelligence experts.”

Now this in itself was dubious-that there was such a need-as Davis also discusses-as saw above he also criticizes McCullough’s role in leading to July 23, 2015-the day Trump won the 2016 election. In any case back to the FBI’s opening the Emailgate investigation 13 days earlier on July 10.

Was there probable cause? The argument in this chapter is that it’s very dubious that there was. One reason I say this is because as we discussed above it was never likely there would be the evidence needed to convict Hillary Clinton-indeed Comey in his own book would admit this. But in that case it never should have been opened in the first place.

To be sure to open a criminal investigation the FBI needed at the minimum a single articulable fact.

The FBI memo includes on page 2 only a single fact to satisfy its criterion of a specific “articulable factual basis” for the belief that Clinton may have committed a crime “regarding the potential compromise of classified information”: “. . . a sample unclassified e-mail that allegedly contains information at a classified and SCI [Sensitive Compartmented Information] level. According to the ICIG, this e-mail was part of a larger trove of other unclassified e-mails they were reviewing during their own investigation.” However, this single fact cannot possibly satisfy the Operations Guide criteria as stated. While this single email allegedly contained information at a classified and SCI level, that does not establish that a crime may have been committed because neither ICIG McCullough nor the FBI in this memo stated the email in question had appropriate classified markings. And we know that without such classified markings, Secretary Clinton could not be said even “possibly” to have committed a crime, because, in the absence of the secretary ignoring emails that were appropriately marked as classified, the FBI had no basis for finding that she had criminal intent.”

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So this single articulable fact was NOT enough to open a criminal investigation as the emails lacked classified markings and hence intent could not be established. Certainly this standard leaves no room for a hunch or the supposition that there “could be” marked emails if the FBI could simply rifle through all 30,000. Which is what Emailgate quickly became-a 15 month fishing expedition because Hillary “might” have done something wrong. In other words the opposite of due process, presumption if innocence, and wholly lacking in probable cause.

This is well encapsulated by the FBI header for the July 10 memo: speaking of the ICIG referral it read:

“Potential Compromise of Classified Information.”

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Back to McCullough’s ICIG. Davis argues persuasively his claim that he wasn’t personally making judgments about classified information is suspect.

“Concerning the role played by the Intelligence Community inspector general, Charles McCullough, according to a source close to him, he was increasingly frustrated that the State Department resisted allowing his Intel Community colleagues to help in the review process of the Clinton emails. He claims that had he been allowed to do so, he would not have sent the same kind of referral to the FBI, complaining about the State Department’s noncooperation and resistance to allowing the Intel Community to be involved in the FOIA review process. His referral, his source says, to the FBI would have been more benign, more in the nature of a notice, “we are all working well together.” He even speculated, according to the source, that he might not have needed to send any referral to the FBI had there been full participation by the IC classification experts, the FBI counterintelligence experts, and the State Department. In such an event, he says, he would not have needed to use the language he used in his July 23 memo, warning that classified information that “should have been” marked might be released under FOIA, and Intelligence Community experts needed to be involved in the State Department FOIA review process.”

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He feigns a kind of innocence-if ONLY State had cooperated he wouldn’t have had to write the referral in this way or go to the FBI at all.

“McCullough also insisted, through this source, that he was not making judgments about the existence of classified information. He was passing along the judgments of experts in the Intelligence Community, he said. McCullough’s explanation remains suspect.”

But as Davis argues, McCullough actually worked as a Senior FBI official under none other than FBI Director Louis Freeh-yes Louis Freeh-in the 1990s; Free was a notoriously anti Clinton partisan who even forced Clinton to submit to a urine test when he was at a black tie gala.

And McCullough gave this referral to the GOP House-And he could hardly credibly claim to be “shocked, shocked” by the leaks of his anti-Clinton memos from a Republican-led congressional committee.”

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Indeed it’s pretty hard to disagree that State “had plenty of reason to doubt that McCullough and some members of the Intelligence Community were neutral arbiters in reviewing Clinton’s emails.”

Ultimately though Davis is exactly right: Comey and Friends were going to open a criminal investigation by hook or by crook-again Comey was able to send Martha Stewart to prison in the late 1990s despite having committed no crime.

In any event, even had McCullough not sent any referral to the FBI on July 6 or a benign one, signs suggest that the FBI and Comey would have found another reason to open a criminal investigation. As it was, they had no predicate facts—no Clinton emails marked classified—and yet they secretly began the criminal investigation as set forth in their secret July 10, 2015, memo. They seemed determined to open the investigation regardless of their own rules, as the memo shows.”

At the end of the day Emailgate was always an indictment in search of a crime.

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