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”

The Original Sin of the Emailgate Investigation

On March 2, 2015, the New York Times midwifed the faux Emailgate scandal with classic weasel words. The same rhetorical sleight-of-hand that launched the saga would bookend it on October 28, 2016, with overwrought headlines about the Comey Letter that helped sink Clinton’s campaign.

Consider the lede of that March 2, 2015 article:

“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.”

Note the word “may.” It weakens the declarative statement—creating innuendo without actually asserting fact. Legal analyst Kurt Eichenwald called it out in a Newsweek column a week later titled “Why Hillary Clinton’s ‘Emailgate’ Is a Fake Scandal.” 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 — Lanny Davis quoting Eichenwald’s analysis.

End FN

Davis and Eichenwald had the inconvenience of being right—but 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 New York Times reporting that continued right through to the bitter end—October 28, 2016—with that absurd front-page freakout over the Comey Letter. The Times consistently framed stories in the most uncharitable direction possible; the tone always implied Clinton was guilty until 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?”

FN: Location 233 — Davis quoting the original March 2, 2015 article and analyzing its language.

End FN

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.

Nobody could ever say what that was. Certainly no one could ever say what law she had broken. 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, Davis notes 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 Davis’s attention. He recalled that the Federal Records Act had recently been amended. So he checked—and indeed, in November 2014, nearly two years after Clinton left office, the FRA was amended for the first time. 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.

FN: Location 252 — Davis confirming timing of the FRA amendment.

End FN

So Davis asked himself the obvious question: Why hadn’t the Times disclosed this change in the law? Surely 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.”

There was such an expert—the same one who had told the Times Clinton’s email setup was “unusual.” But as Davis discovered, he had never called it illegal—and had never been asked if it was legal.

“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.”

FN: Location 281 — Davis’s exchange with the legal expert.

End FN

Gee—they never asked. This legal expert simply answered questions he was asked. But the real question is: Why wasn’t he asked the most important one?

Anyone familiar with mainstream media behavior during political scandals can guess why. This wasn’t the narrative the Times wanted. The media, broadly, had little interest in clarifying Clinton’s compliance with law and regulation. That wasn’t the storyline.

As discussed in greater detail in the media criticism section of this book, the terrible 2016 Emailgate coverage is one of the key motivations behind this project. The media’s pack mentality infected even solid reporters I had previously respected.

FN: For example, Keith Olbermann’s 1998 experience covering the Lewinsky scandal, where he was pressured—and essentially threatened—into continuing coverage he believed was illegitimate.

End FN

Consider when Chris Hayes asked Hillary Clinton, “Do you worry you will be indicted?” In 2019, Hayes would rightly call the Clinton email scandal “the infuriating conclusion to the most ridiculous story of 2016.” But back in 2016, he was reinforcing the canard that indictment was likely—even when it was clear no crime had occurred.

That’s why the media could only fall back on the idea that Clinton’s email setup was “unusual”—as legal expert Jason R. Baron put it—but ultimately, even he had to admit it wasn’t illegal.

That’s the rub: When Comey—belatedly—cleared Clinton, 60% of Americans still believed she should have been indicted and had received special treatment. The truth? Her treatment was special—especially bad.

Even a widely respected media critic like Margaret Sullivan defended this highly dubious coverage.

FN: Location 300–311 — Davis on Sullivan’s defense of the Times coverage.

End FN