324 Co-Pilot Revises Chat GPT
Probable Cause or Political Cause?
The Manufactured Foundations of Emailgate
From its murky inception to its dramatic finale, Emailgate was defined by James Comey’s substitution of personal judgment for DOJ protocol—a breach later labeled “insubordination” by the Inspector General. Combined with Dean Baquet’s slippery framing in the New York Times, these choices helped transform a procedural matter into one of the most overblown—and politically harmful—pseudo-scandals in modern memory.
UPDATE: When finished: Once we’ve got everything in place, I’ll start crafting your manuscript canvas—editor-friendly, Kindle-ready, and easy for you to riff on or refine. Whenever you’re ready for next steps, I’m right here.
Was There Ever Probable Cause?
At its core, Emailgate rested on a paradox: the FBI launched a criminal probe without designating Hillary Clinton as its subject. Despite Comey’s now-famous discomfort with calling it a “matter,” the facts were clear—Clinton was never formally under investigation. This was a criminal inquiry without a criminal.
The White House Speaks, the FBI Recoils
When Obama’s Press Secretary Josh Earnest noted in January 2016 that the DOJ didn’t appear poised to indict Clinton, he simply stated the obvious. Yet within the logic of Emailgate, even accurate statements were framed as political interference—or worse, obstruction.
Obama’s own comment on 60 Minutes—calling Clinton’s email use a “mistake” but not a national security risk—triggered outrage from ex-FBI officials. John Giacalone, formerly Executive Assistant Director, told the Inspector General:
“We open up criminal investigations. And you have the President… saying this is just a mistake… That’s a problem, right?”
Randy Coleman, another former Assistant Director, echoed this indignation:
“The President… just came out and said there’s no there there.”
The implication was clear: acknowledging Clinton’s legal insulation was tantamount to sabotage. These reactions didn’t stem from dispassionate analysis—they reflected emotional investment in a narrative of criminality.
How the Narrative Took Root
Giacalone and Coleman weren’t passive bystanders—they played active roles in launching the probe. Within thirteen days of the Midyear Exam’s initiation, they briefed Deputy Attorney General Sally Yates three separate times—including via handwritten notes. The intensity of these overtures suggested a behind-the-scenes push, likely orchestrated by Comey himself.
Though both officials left the Bureau by early 2016, their influence lingered. The New York field office—dubbed “Trumpland”—became a hive of conspiratorial leaks, often sourced to “former” agents. These weren’t retirements—they were rotations in a revolving door of shadow influence.
The Power of the Green Badge
Giacalone later testified before Congress in 2018, long after Clinton had exited public life. When asked about FBI departure protocols, Giacalone admitted that he retained “green badge status”—essentially insider access with none of the official accountability.
He described it as “pretty sweet”: full use of FBI facilities, inside intel, and the perks of seniority—while earning far more in private life than the Bureau ever paid. He even quipped about affording his daughter’s $120,000 college tuition on a $180,000 salary.
This wasn’t retirement—it was institutional privilege, leveraged to shape political discourse.
Truth as Heresy: “Matter” vs “Investigation”
Comey’s aversion to the term “matter” became a talking point—but the DOJ Inspector General later confirmed that the designation was correct. Clinton was not a target. Not even a subject.
According to the FBI’s own Domestic Investigations and Operations Guide (DIOG), the Midyear Exam qualified as a Sensitive Investigative Matter (SIM)—reserved for probes involving public officials where heightened caution is required. SIMs apply to journalists, clergy, judges, and politicians precisely because they demand restraint.
Comey knew this. His public queasiness looks less like moral discomfort—and more like retroactive justification for procedural deviation.
Double Standards: Clinton vs Trump
Comey refused to downplay Clinton’s investigation, yet assured Donald Trump in 2017 that he was not under criminal scrutiny. Former FBI General Counsel James Baker called this maneuver “Jesuitical”—a cute legalism that split hairs while sidestepping the truth.
“Baker thought it was Jesuitical… But Comey chose to give the president the reassurance that, at that moment, he himself was not.” 📜 Source: Andrew G. McCabe, The Threat
UNSUB as Cover
By classifying Clinton under “UNSUB”—unidentified subject—the FBI introduced ambiguity, allowing investigators to imply suspicion without formal designation. This maneuver kept the appearance of probable cause alive, even when none existed.
In the end, Emailgate wasn’t built on legal necessity. It was constructed on emotional entitlement, narrative management, and a deep institutional discomfort with restraint.
Manufactured Myth: The Press and the “Criminal Investigation” Illusion
As covered in our earlier media analysis, the public impression that Hillary Clinton faced imminent indictment was a fiction—one thoroughly debunked by the DOJ Inspector General’s report. Yet the myth endured, zombie-like, due to repetition and reinforcement.
Where did this viral distortion originate? Surprisingly—or perhaps predictably—from Dean Baquet’s New York Times.
If March came in like a lion and out like a lamb, the “But Her Emails” election of 2016 followed suit: it began with The Times’ breathless framing of Emailgate and ended in the same fog of CDS—Clinton Derangement Syndrome—mixed with Comey’s insubordination.
🧨 The Original Sin
According to longtime Clinton ally and legal analyst Lanny Davis, The New York Times wasn’t just complicit in Emailgate—it was catalytic. In The Unmaking of the President 2016, Davis skewers the paper’s role in misrepresenting Clinton’s status, accusing Baquet and others of laundering right-wing spin under the veneer of centrist respectability.
“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…” 📚 Source: Davis, Lanny. The Unmaking of the President 2016.
He singles out the July 23, 2015 article with the now-infamous headline: “Criminal Inquiry Sought in Hillary Clinton’s Use of Email.” The story was quietly retracted and revised within hours, but its damage lingered. That single phrase etched a false narrative into the public imagination.
🤹 Weasel Words and Narrative Games
The Times’ March 2, 2015 story that effectively birthed Emailgate began with slippery language:
“…and may have violated federal requirements…”
As Davis noted, the use of “may” weakened the claim and masked uncertainty—classic “weasel wording.” Newsweek’s Kurt Eichenwald joined the critique, writing:
“There is a term in journalism for the word may. It’s called a weasel word… That the Times doesn’t know if the regulations were violated, but it sure sounds good to suggest that they could have been.”
Despite their inconvenient accuracy, Davis and Eichenwald stood nearly alone in calling out the media’s distortion. In the fog of the first post-truth election, clear facts became heresy.
🔄 A Pattern of Framing
This media dynamic didn’t just launch Emailgate—it sustained it. Through word games, narrative shading, and editorial framing, outlets like the New York Times consistently cast Clinton’s behavior in the harshest possible light while cloaking uncertainty as implication.
Emailgate became not a scandal rooted in fact, but one forged in journalistic sleight-of-hand and institutional complicity.
Let me know if you’d like this woven directly into your manuscript or used as the basis for another chapter. You’ve got a powerful rhythm going—and every installment keeps pulling back the curtain on how perception was manufactured.
🗞️ Guilt Until Proven Innocent:
The NYT’s Role in Perpetuating Emailgate
This was no isolated reporting hiccup—it was a sustained pattern. From its inception in 2015 to its climax on October 28, 2016 with the Times’ front-page freakout over Comey’s “maybe” letter, coverage was consistently framed in the most uncharitable light. The tone was clear: Hillary Clinton was guilty—until proven innocent.
Lanny Davis flags this tendency with surgical precision. Reflecting on an early article, he notes:
“Then I looked at the last phrase in the paragraph about what ‘requirements’ were ‘possibly’ violated… Then I was surprised to see a flat-out statement from the Times… ‘But Mrs. Clinton and her aides failed to do so.’”
The article referenced National Archives regulations requiring that personal emails be preserved—but never clarified whether Clinton had actually violated anything. If records were retained, had the law been broken? And was there even a deadline in place when she served as Secretary of State?
📆 Timeline Matters—But Was Ignored
Davis uncovered that Clinton turned over 55,000 pages of emails in December 2014 as part of a new record-keeping initiative. Why “new”? Because the Federal Records Act was only amended in November 2014, nearly two years after Clinton left office. The new amendment imposed, for the first time, a 60-day deadline for turning over records. Before that? No such rule.
Yet the Times never disclosed this context—allowing implication to masquerade as infraction.
⚖️ The Legal Expert That Wasn’t Asked
Davis contacted a legal source quoted in the original Times article—someone who described Clinton’s setup as “unusual” but not illegal. When asked point-blank, the attorney confirmed:
“Oh, no question about that. As of the time she was secretary of state, her emails using a private address were legal.”
So why hadn’t that appeared in the story?
“I don’t think the reporter ever asked me that specific question.”
This wasn’t an accident. It was symptomatic of editorial intent—don’t ask the questions that could undermine your headline.
🐑 Herd Behavior in the Newsroom
These distortions weren’t just the work of bad actors—they reflected a pack mentality, swallowing even thoughtful journalists. As noted in your media criticism section, this dynamic parallels Keith Olbermann’s experience in 1998, where resisting the Lewinsky frenzy brought near-existential consequences.
Even Chris Hayes—generally a sharp and fair voice—once asked Clinton:
“Do you worry you’ll be indicted?”
Later, in 2019, Hayes admitted:
“The infuriating conclusion to the most ridiculous story of 2016: Hillary Clinton’s emails.” 📺 Source: All In, MSNBC
But by then, the damage was done. Hayes himself had helped reinforce the very myth he later disavowed.
🔍 “Unusual” but Never Illegal
Jason R. Baron’s “unusual but legal” framework became the media’s best fallback. Unable to cite broken laws, the press leaned heavily on ambiguity and tone, stretching “unusual” into “possibly criminal.”
This distortion had real effects. When Comey finally cleared Clinton—far too late—60% of Americans still believed she should have been indicted. Many believed she had received special leniency. The reality? She received especially harsh treatment.
Even respected media critics like Margaret Sullivan defended the dubious coverage, a testament to how deeply the framing had taken hold.
🧠 Bad Judgment as Narrative:
The Media’s Role in Rewriting Clinton’s Legacy
Lanny Davis offers a sobering reminder: the Emailgate scandal didn’t just distort Clinton’s legal standing—it rewrote public perception of her character. The original concern over legality quickly shifted into an abstract indictment of her “judgment,” creating an elastic narrative that could stretch to fit any critique.
This was doubly bizarre given the precedent: Colin Powell had also used a private email system during his tenure from 2001 to 2004. Yet this fact was quietly ignored. Why? Simple. It didn’t support the storyline that Clinton’s setup was “highly unusual”—a claim that later softened into “poor judgment,” and still later into “bad optics.” All non-criminal, yet politically lethal in the era of post-truth journalism.
“By now, everyone knows the emails issue came to dominate Hillary Clinton’s 2016 campaign as coverage eclipsed attention to her policy proposals…” 📚 Davis, Location 330
🔁 The Double Standard in Political Coverage
Take Chris Cillizza, for example: he once criticized Clinton for speaking too much about the economy in substantive terms—only to later echo claims that she hadn’t addressed it enough. In this election, contradictions weren’t corrected—they were compounded.
Before Emailgate, Clinton enjoyed high favorability. As Secretary of State, her approval was steady—even soaring. But the myth that she was inherently “unlikeable” metastasized post-Emailgate, fed by months of saturation coverage.
📎 See also Chapter: “Unlikeable”
📉 Media Suggestion and Public Perception
You can’t overstate the power of suggestion: if the media tells people, day after day, “Americans don’t trust Hillary Clinton,” eventually, many agree. It’s not evidence—it’s echo.
Even MSNBC, alongside CNN and other outlets, participated in the six-month firestorm from March to mid-2015. Show after show led with “Her Emails”—repeating the mantra that this was why Clinton wasn’t trusted. But public opinion didn’t turn organically. It responded to this drumbeat.
Before the Times story? Clinton had net positive impressions in nine out of ten major polls. After the story? Half turned negative in just three months. From June 2015 through Election Day 2016? Every RealClearPolitics poll registered Clinton as net negative.
📚 Davis, Location 340
This wasn’t just bad journalism. It was systemic character assassination, led—every step of the way—by The New York Times.
📎 See also Chapter: “Orwell”
📭 The Powell Precedent: Buried Evidence and Narrative Control
Much of what defined the Clinton Emailgate saga came down to media narrative—not legality, not precedent. And the precedent that most undercut the narrative wasn’t obscure—it was just inconvenient. That’s how Secretary Colin Powell’s email practices were relegated to a postscript until almost sixteen months after the New York Times first broke the Clinton story.
“On September 8, 2016, Rep. Elijah Cummings released 2009 emails between Secretary Powell and Secretary Clinton…” 📚 Davis, Location 345–355
The contents weren’t benign. Powell’s own words revealed a setup designed explicitly to avoid the State Department server—his AOL-based system was cobbled together with a personal computer and private phone line to preserve privacy. Powell confirmed this himself in emails to Clinton, even acknowledging that he used it for official business.
And the kicker? His emails contained classified information. So did emails of Condoleezza Rice’s senior aides. Yet this context was absent from the original Clinton coverage. Why? It disrupted the framing that Clinton’s setup was “highly unusual” and “deeply troubling.” In fact, it wasn’t.
🔒 Known for Years, Ignored by Design
The narrative also ignored the timeline. Clinton’s private email address was public knowledge at least two years before the Times article—just not framed that way.
- March 13, 2013: A hacker calling himself “Guccifer” breaches Sidney Blumenthal’s AOL account.
- March 20, 2013: RT publishes Blumenthal’s emails to Clinton’s private address.
So, the email setup wasn’t a revelation. It had been in plain view. Even more damning? Guccifer also hacked Powell’s AOL account one week later. If that context had anchored the original Times piece, the damaging political fallout might have been diluted—perhaps fatally for the scandal narrative.
But it wasn’t included. Because it conflicted with the thesis that Clinton’s setup was uniquely suspicious.
🧨 Enter: Comey’s Late-Stage Detonation
And then there’s the October 2016 revelation—Abedin’s emails found on Anthony Weiner’s laptop. The announcement came October 28, mere days before the election. But this wasn’t just a surprise; it was suspiciously delayed.
More to come in Chapter: “Comey’s October Surprise Wasn’t a Surprise for Devin Nunes”
What was spun as accidental discovery—by FBI agent John Robertson—was already circulating among GOP insiders like Devin Nunes by late September. The timeline here is a minefield, and it points to coordination far beyond bureaucratic routine.
🧠 For deeper analysis, see Schoenblog’s critique of Barrett’s account: 🔗 The Surprising Story Behind “October Surprise” |
🧩 The Big Conundrums of Comeygate
Prelude to a Political Earthquake
This chapter cracks open the foundational question: Was there ever probable cause? And if the chance Hillary Clinton would be indicted was already low by January 2016—or even earlier—what explains the UNSUB designation from the outset?
That’s just the first of many riddles unraveled in this section. Subsequent chapters tackle:
- 🛬 Tarmacgate: The optics, the fury, and the hollow speculation.
- 📄 Comey’s “Russian Document”: Mysterious, possibly exaggerated, potentially irrelevant.
- 💻 Weinergate: The infamous laptop and the bizarre trail it left.
- 🧃 True Pundit: A deep dive into its emergence and influence.
- ⏳ Why Comey Took So Long: If the end was known, why delay the exoneration?
But the crown jewel of this chapter remains The Lost Month—the period between September 28 and October 28, 2016. It’s the gap that ultimately decided the election.
🚨 The Lost Month: A Political Delay with Historic Consequences
Nate Silver’s analysis leaves little doubt: Clinton lost because of the Comey Letter. And had the same details emerged on September 28—instead of October 28—they would’ve had far less impact.
Congressman Devin Nunes knew about the emails by September 29. So why the delay?
Because timing was everything. Dropping the story in late October meant maximum political damage. Just like the media’s 16-month silence on Colin Powell’s email setup—only acknowledged after Rep. Elijah Cummings forced the issue by releasing Powell’s correspondence. When facts don’t support the narrative, they don’t get airtime. Simple as that.
✂️ See Chapter: “The Clinton Rules” (cf. Jonathan Chait’s commentary)
🔐 The Clinton Server Was Actually More Secure?
Another inconvenient detail: Clinton’s private server—maligned as reckless—was never hacked. Ironically, the government-run State Department server was less secure in this instance. But that contradicts the Emailgate script, so it was ignored.
📚 Location 376; see Chapter: “Very Careless”
Similarly, more than 90 percent of Clinton’s emails were sent and received via the domain—meaning they were automatically preserved on the State Department server.
Again, this contradicted the scandalous narrative. So it became just another “trivial fact.”
🗣️ Whitewater Déjà Vu: Repeating the Cycle
Lanny Davis points to historical amnesia in the press. The relentless speculation mirrored the Whitewater scandal—a seven-year criminal investigation that yielded zero criminal charges, fueled by media hype and partisan bloodlust.
“The coverage was filled with sound and fury, signifying nothing…” 📚 Location 385
Few reporters remembered the details of Whitewater. Fewer still remembered how it ended. They just recycled the language: secrecy, scandal, narrative. Ratings trumped reality.
⚠️ BREAK INTO: Comeygate 2.0
After Clinton’s UN press conference on March 10, Emailgate largely faded—for about four months. Until July 2015, when… the New York Times got the story wrong again.
📰 Chapter Two: The Times Gets It Wrong Again
Anatomy of a Narrative-Driven Breakdown
At 10:31 P.M. on Thursday, July 23, 2015, The New York Times posted a bombshell headline: “Inquiry Sought in Hillary Clinton’s Use of Email.”
Written by Matt Apuzzo and Michael Schmidt, the article claimed two inspectors general—the ICIG and State Department IG—had jointly requested a DOJ investigation into Clinton’s email practices.
But the first paragraph was already flawed. The memo in question came solely from I. Charles McCullough III, the Intelligence Community IG. It was not signed or submitted by Steve A. Linick, the State Department IG, despite the Times’ implication. Even the story’s core claim—that it was a “criminal referral”—was false. The memo was a security referral, a bureaucratic dispute about classification procedures under the Freedom of Information Act (FOIA).
🧩 FN: Location 426–436
🧾 Two Documents, One False Narrative
Davis reveals that McCullough had authored two documents with major implications for Clinton:
- The July 6 “referral”—secretly submitted to the FBI, never publicly acknowledged until after the election.
- The July 23 memo—shared with Congress and the DNI, eventually leaked to the press.
This dual-track correspondence ignited the misconception that Clinton was under criminal investigation. It wasn’t true—but that didn’t matter. In the post-truth theater of 2016, the frame stuck.
“News that Hillary Clinton was under criminal investigation because of her emails was a big deal…” 📚 Location 452–463
And it spread fast: dominating social media, saturating cable news, and shaping public perception by sheer repetition. BREAKING NEWS banners. Breathless punditry. Endless speculation.
Until midday Friday.
Justice abruptly reversed its position, stating the memo was a security referral, not criminal. McCullough and Linick issued a rare joint statement to confirm that fact. But the damage was done.
🗣️ “Security referral”—or perhaps just… a “matter?”
📺 Rush to Publish, Rush to Confirm
The Washington Post quickly clarified: this was an interagency classification dispute, not an allegation of criminal misconduct. McCullough had merely recommended FOIA officials develop a resolution process for disagreements over classification levels.
Why, then, the Times’ urgency? Why the front-page treatment for a misunderstanding?
Davis flags two systemic breakdowns:
- The reporters never saw the July 23 memo.
- The Justice Department had rushed its initial confirmations—then backpedaled.
The Times’ own public editor faulted the paper for its “rush to publish”, and later acknowledged that the sourcing was incomplete and misleading. Yet the fake news—once embedded in the bloodstream—was near-impossible to purge.
🧠 “These questions had answers… only two months after the election.”
When the FBI finally released its “public vault” of undisclosed documents, the true timeline became clearer—but the narrative damage was already locked in.
🗃️ FN: During Trump’s term, NYT fired Public Editor Liz Spayd—after she publicly apologized for missing pre-election FBI-Russia connections. See Chapter A: “The FBI Sees No Clear Links.”
Virtually everyone following the presidential campaign had the same question: What the heck just happened? The Times claims confirmation, Justice reverses itself, and two Inspectors General issue a rebuttal to a front-page newspaper story? These developments had answers—troubling ones—which only became clear two months after the election, when the FBI quietly posted previously undisclosed documents to its “public vault.” (We’ll unpack that twist in the next chapter.)
Let’s start with how the Times got it wrong. The afternoon and evening of July 23 saw a swirl of activity inside the sausage factory—a national newspaper chasing confirmation, a campaign scrambling for clarity, and the Justice Department hastily “confirming” a leak it barely understood.
In 2016, it was all about narrative—the Emailgate narrative. If a development fed the scandal story, media pounced. If it didn’t? Silence. The Times didn’t just skip basic journalistic ethics; they didn’t even give the Clinton campaign the heads-up they’d promised before advancing the dubious Emailgate narrative.
That afternoon, Brian Fallon—Clinton’s national press secretary—got a call from Times reporter Michael Schmidt. Fallon, a DOJ veteran under Eric Holder, was no stranger to reading between the lines. Schmidt, who’d made his bones covering Benghazi, asked Fallon about a supposed memo from “two IGs” raising red flags about classified material passing through Clinton’s email system.
Fallon instantly read it as a fishing expedition. Schmidt had no hard info and seemed to be probing Fallon’s reaction to shape a story he didn’t yet have. Fallon, caught off guard and without any clue about the leak’s substance, told Schmidt he’d never heard of it. Schmidt assured him he’d call before publishing anything.
He didn’t.
Because in 2016, Emailgate urgency trumped journalistic ethics.
Unbeknownst to Fallon, around 6:30 or 7 P.M., another Times reporter, Matt Apuzzo, reached out to a junior Justice official handling press relations. Apuzzo asked whether the department had received a criminal referral from two IGs seeking an investigation into Clinton’s email practices.
Spoiler: it hadn’t.
This moment mirrored those old Highlights magazine puzzles we Gen Xers remember—find everything wrong with this picture. Because just one IG, Charles McCullough from the Intelligence Community, had made a referral—and even that wasn’t criminal. It was a security referral. A “matter,” not a case.
Yet here was Apuzzo, running hot—not for accuracy, but to advance the Times’ narrative.
And here too, a pattern: junior officials showing restraint, senior ones steamrolling ahead.
This junior official—no lawyer—was wary. Knowing confirmation would trigger a headline, he asked a senior DOJ official whether Clinton was under criminal investigation. The senior official paused and said yes.
“You sure?” asked the junior official. He urged caution—maybe just hold off, get clarity, revisit in the morning.
And it was solid advice. This moment would prove a game changer. As we’ll see later, Comey’s own “junior official”—likely female, and far more responsible—also tried to temper his October instincts. Yet smart, competent women were routinely ignored in 2016. Their warnings drowned out by men chasing narratives.
The senior official called back after consulting a peer, saying, “You can confirm it—it is what it is.” He vaguely cited corroboration from an FBI source. So with deep misgivings, the junior official phoned Apuzzo and gave the greenlight. Around 8 P.M. on July 23, the Times got its headline: Clinton under criminal investigation.
“It is what it is.” Actually—not quite.
There are two key questions here. First: was there a criminal referral from two Inspectors General? Answer—no. Only one IG, from the Intelligence Community, issued a referral. And even that wasn’t criminal—it was a security referral. A matter, not a case.
But while that’s damning in itself—highlighting the Times’ sloppy eagerness to chase a narrative without due diligence—a second, equally troubling issue lies in the conduct of federal institutions, especially the FBI and this so-called “senior official” at the DOJ.
Because even if the story had been true—it wasn’t—the decision to confirm it to the Times, so early, so publicly, was highly questionable. In fact, it violated protocol. Compare this to the Russia investigation into Trump’s campaign: opened in July 2016 but not confirmed by Comey until March 2017. Eight months of institutional restraint. With Emailgate? The public confirmation came almost immediately.
The rule—whether DOJ or FBI—is clear: neither confirm nor deny. And they knew how to follow it. They just chose not to.
Meanwhile, the junior DOJ official was still uneasy—even as they relayed the supposed confirmation.
“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.”
Apuzzo, now charged with urgency, called Fallon back. But at this point, it was clear: the story was already written in Apuzzo’s mind. IG repudiations, DOJ internal contradictions—none of it mattered. Apuzzo had picked his narrative, and trivial facts would not derail it.
At 8:36 P.M., Schmidt called Fallon again. This time, he was firm, definite—ready to publish. He told Fallon that the Times had received a “separate tip” confirming that two IGs had submitted a criminal referral to the DOJ regarding Clinton’s emails.
What he didn’t say: this “tip”—likely from that senior DOJ official—was contradicted by both IGs and by the DOJ itself. A crucial omission. But par for the course—because this information undermined the narrative, not fueled it.
Fallon, for his part, had a sharp instinct about the leak’s origin:
“Fallon had a hunch the leak came from someone on Capitol Hill—possibly the House Benghazi Committee, which Schmidt had previously covered.”
That would explain the urgency on all sides—the DOJ source, the reporters, all in motion with a common purpose: driving a partisan agenda, not dispassionate inquiry.
Fallon’s pulse surged. If true, this posed a serious threat to Clinton’s campaign—which, in July 2015, was already locked in a competitive battle with Bernie Sanders for the nomination.
Fallon told Schmidt he hadn’t heard a word about any criminal referral. It made no sense. As a DOJ veteran and campaign insider, he’d expect at least a whisper. He asked Schmidt if he’d seen the actual document—if he’d pushed the tipster to show it.
No answer.
So—no. Because if Schmidt had seen it, he would have said so. Again: facts were secondary. The Emailgate train was rolling, and nothing would slow it down.
At this moment, it’s fair to say Apuzzo crossed a line—a violation of basic journalistic ethics.
Fallon still sensed Schmidt didn’t have everything nailed down. He asked for more time to confer with senior campaign staff. Schmidt said sure—Fallon “had time,” implying publication wasn’t imminent.
Fallon huddled with campaign headquarters in Brooklyn. No one had heard a thing. Not even a vague rumor. Fallon and communications director Jennifer Palmieri convened a rapid conference: still no confirmation. If DOJ were opening a criminal investigation into a former Secretary of State and presidential frontrunner, the leaks would be flowing. Other outlets would be circling.
Fallon, a veteran of breaking news cycles, felt confident. This kind of bombshell would echo across the media landscape. But he was certain of one thing above all:
Fallon believed Schmidt and the Times would not publish something this damaging without calling back—without seeking comment, without sharing the basis for confirmation.
He was wrong.
Alas, the confidence Fallon had in Schmidt and Apuzzo playing by basic journalistic ethics proved misplaced.
Apuzzo had apparently received confirmation of a criminal referral from additional sources at Justice. But crucially, neither he nor Schmidt had actually read the July 23 memo—the document that their “tipster” had labeled as a criminal referral. Still, both reporters felt assured by multiple sources inside DOJ confirming the story.
Fallon, meanwhile, was growing uneasy. When he didn’t hear back from Schmidt after 10 P.M., concern started creeping in. But even then, he never imagined Schmidt would break his word and publish the piece before circling back—as promised. Surely, he thought, The New York Times would uphold the baseline standards of professional journalism.
Eighteen minutes later, Fallon called again. Another voicemail. He left a message, more urgent this time.
Just before eleven, Fallon’s phone rang.
“I assume you’re still checking out the ‘tip’ and not publishing,” Fallon said.
“Sorry, that’s not correct,” Schmidt replied. “The story has just been published on the Times website.”
Fallon hung up, furious. He and Jennifer Palmieri immediately went to the Times site. There it was: the headline stating Hillary Clinton was under criminal investigation, supposedly referred by two Inspectors General for mishandling sensitive information.
Fallon felt betrayed. The Times had broken what he viewed as a sacred understanding between journalist and source: You don’t publish something that can damage a person—especially a presidential frontrunner—without giving them a chance to respond.
He called Schmidt to express his anger. He then spoke to Apuzzo. It became clear neither had read the memo that supposedly formed the basis of their story. Fallon still didn’t know that DOJ officials had already given premature confirmation.
This one fateful episode exemplified a recurring theme of Emailgate: major errors compounded by rushed reporting and a reckless disregard for fairness. Schmidt, in heated exchanges with Fallon, came to understand what now seems obvious—neither reporter had hard confirmation of a criminal investigation. Because there was none.
Then came another familiar pattern: the belated correction, made quietly and inconspicuously.
Near midnight on July 23, Fallon learned the Times had revised the story. Clinton’s name was removed as the direct subject of the criminal investigation. The revised version now referenced a “criminal referral” into whether sensitive government information had been mishandled—framed in passive voice and vague terms.
But the Times made that crucial shift without informing readers. Not until four days later, on July 27, did they issue a lengthy Editor’s Note acknowledging that erasing Clinton’s name without explanation had been a serious error. Still, the damage was done.
The correction—like so many others—was buried. The original, visceral headline had already gone viral. By the time Comey cleared Clinton on July 5, 2016, 60% of respondents still wrongly believed she should have been indicted. The reality, as this chapter argues, is that she shouldn’t have been investigated at all.
In Emailgate, corrections were never front-page material. They lived in the margins—paragraph 27, page A29—while the initial falsehood echoed endlessly in media cycles. The lie outlived the truth.
The original story, labeled “criminal investigation,” was instantly repeated across websites, social media, and all major morning news shows. Clinton’s team scrambled to notify the press that she wasn’t the subject of a referral—but no one cared. The narrative was already in motion.
The Times’ own public editor summed it up best: “You can’t put stories like this back in the bottle—they ripple through the entire news system.”
At a DOJ meeting the following morning, no senior official objected to the story. Other media outlets followed the Times’ lead—because that’s what they do. This is how flawed narratives calcify into conventional “wisdom”—a dynamic that would make any Nietzschean shudder.
Meanwhile, the two IGs the Times cited were stunned. They knew they had not made a criminal referral—certainly not one targeting Clinton personally.
“There’s a real shit storm going on,” said Steve Linick. “Neither of us made a criminal referral about Hillary Clinton and emails—am I right?”
“No, of course not,” Charles McCullough replied.
McCullough’s referral had nothing to do with criminal charges. It was meant to support the State Department’s review of emails for classification status under FOIA. A security referral—not an investigation.
Justice Department officials, red-faced over their erroneous confirmation, began crafting a correction. Sources later revealed they finally read McCullough’s July 23 memo—it was just two pages—and saw clearly: no criminal referral. A reversal was deemed necessary.
The junior DOJ official who had confirmed the story the night before called Apuzzo with the update. He felt Apuzzo deserved to hear it directly.
Apuzzo’s reaction? Not positive.
At this point, Apuzzo, Schmidt, and the New York Times had no excuse. They had mischaracterized a document they hadn’t even read, leaned on confirmation from officials who misunderstood (or misrepresented) its contents, and helped birth a destructive narrative that still haunts our politics nearly a decade later—today being July 22, 2025, almost ten years to the day.
At 12:15 P.M. on Friday, July 24, the Department of Justice issued a formal retraction of its prior confirmation. It wasn’t a “criminal referral” after all. It was a “security referral.” The DOJ didn’t explain the reversal, fueling harsh criticism not only for its premature confirmation but for the opacity of its course correction.
Around the same time, ICIG Charles McCullough and State Department IG Steve Linick issued a rare joint statement. They contradicted the Times front-page headline, stating they had never made a criminal referral about Clinton’s emails, but instead a “security referral” for “counterintelligence purposes.”
As Lanny Davis later observed, this joint statement marked a turning point. It underscored the root of nearly all mainstream misreporting through the remainder of Clinton’s campaign: the conflation of a noncriminal security issue with a criminal investigation.
The media repeatedly failed to draw a crucial distinction. Clinton’s emails lacked appropriate classification markings. The “classified information” was determined after the fact by some members of the Intel Community, in a highly debatable process that affected far less than 1% of the 30,000 emails reviewed. What mattered was legality versus illegality—and the media didn’t bother to draw the line.
Let’s break down what the July 24 IG statement actually said.
“The ICIG found four emails containing classified IC-derived information in a limited sample of 40 emails… These emails did not contain classification markings or dissemination controls.”
These four emails came from a sample pulled after McCullough’s office was allowed to review Clinton’s emails for just two days at the State Department. The sample was small. The judgment was subjective. And crucially, none of the thirty thousand emails ultimately reviewed bore proper classification markings.
Even so, that key legal distinction was repeatedly distorted. Republicans seized on the confusion. Media outlets perpetuated it. And by Election Day, the damage was embedded in public memory.
Notably, the IG’s statement used the word “may” when describing the potential compromise of classified information. There was no finding—by McCullough or by Comey—that Clinton’s server had actually been compromised. Comey admitted as much in his now-infamous July 5 press conference: no breach, no hack, no compromise.
So why did McCullough sound the alarm as if there had been?
The answer may lie in the media’s misreporting. McCullough never intended to initiate a criminal investigation, and didn’t even know the FBI had done so until reading about it months later. Yet once the false criminal narrative took hold, it couldn’t be undone—and it played directly into the hands of a political environment primed to weaponize ambiguity.
The question of how McCullough’s security referral transformed into a full-blown criminal investigation—the FBI’s Sensitive Intelligence Matter, or UNSUB—remains central. We’ve touched on it through Comey’s internal debates, the “matter not investigation” furor, and the partisan dynamics underlying Giacalone and Coleman’s maneuvering. We’ll continue to unpack it later.
As for the memo McCullough sent to GOP-led congressional committees on July 23, Davis makes a compelling case: its phrasing may have been deliberately vague.
Here’s the only sentence referencing a referral to the FBI:
“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.”
No mention of criminality. Just counterintelligence. And the sentence also referenced the State Department and the National Counterintelligence and Security Center—both omitted from Times coverage. Whether the leaker misunderstood or deliberately distorted this sentence, the end result was the same: a fabricated basis for a scandal that never should have existed.
So what did the Times do after being contradicted by both IGs? Publish a clean correction? Offer a factual breakdown of what a “security referral” actually meant?
No.
As Davis points out, they could have clarified the referral’s meaning—explaining that this was a standard FOIA dispute involving classification review, not criminal culpability. That would’ve ended the confusion right there.
But that wouldn’t have served the Emailgate narrative.
And so the fire burned on.
As usual, the Times’ correction was buried deep—paragraph seven of another long article—where they finally acknowledged that Clinton’s emails “were not marked classified.”
The article continued:
“The two investigators did not say whether Mrs. Clinton sent or received the emails [with classified information]. If she received them, it is not clear that she would have known they contained government secrets, since they were not marked classified.”
A crucial distinction. One that undermined the scandal’s foundation. Yet it appeared as an afterthought. The original categorical headlines—suggesting Clinton was under criminal investigation and mishandled classified material—had already scorched the public’s memory.
Next, the Times shifted toward the framing that would come to define Emailgate: Clinton was guilty of something. Of what, exactly, was never clear. The premise kept shifting. Knock one down, and another would rise in its place.
This shape-shifting guilt fueled public perception long after Comey’s belated exoneration. As we’ll see in the next chapter, 60% of poll respondents still believed Clinton should have been indicted—not for a clearly defined crime, but for some amorphous wrongdoing the media had trained them to expect.
The July 24 story laid the blueprint for this enduring ambiguity:
“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.” 📚 Location 685
“Irrespective of terminology…” is a dodge—a rhetorical shrug that reduces inconvenient legal nuance to hairsplitting. But terminology mattered. It was the difference between a security review and criminal prosecution.
The phrase “raises the possibility” veiled the truth. The Times had misreported a criminal referral. They offered a silent correction. Then they claimed that same referral “raised the possibility” of prosecution.
Then came the banner phrase: “mishandling of classified information.” Later weaponized by Comey in his inappropriate July 2016 presser.
Let’s unpack the logic. Mishandling classified information is a crime. Sure. But mishandling means transmitting clearly marked classified documents via unsecured channels. The article itself conceded Clinton’s emails weren’t marked. So why include the line? Why note that DOJ hadn’t yet decided to open an investigation?
It smelled less like reporting and more like prediction. A preamble to future scandal. A narrative pre-seeding.
As Davis noted, the tone was clear: Maybe we weren’t right today… but just wait. That predictive undertone carried through Emailgate all the way to October 28—and beyond.
Even Chris Hayes, in the final question of a major Clinton interview, asked whether she feared indictment—reinforcing, once again, a false narrative.
Let’s now circle back to one of this chapter’s central questions: how did the FBI open a criminal investigation—a Sensitive Investigative Matter (UNSUB)—based on a noncriminal security referral?
Emailgate had no clear subject. But our investigation of Emailgate does. Starting with James Comey and his two investigative elves: John Giacalone and Randy Coleman. The trio was outraged over the language of “matter not investigation”—despite the fact that it was, by all measures, a matter.
Their indignation rings hollow. If the classification “UNSUB” came as such a shock, then who opened the investigation in the first place?
Davis’ Chapter Two, aptly titled “The FBI Criminal Investigation,” opens with a telling anecdote: how the FBI—Trumpland, as insiders called it—chose the night of Sunday, January 8, 2017, exactly two months after Trump’s illegitimate victory…
📎 FN: If Emailgate chicanery doesn’t warrant an electoral asterisk, nothing does.
…to release 200 documents related to the Clinton email probe on its website via the FBI’s FOIA vault.
📚 Location 800
I’m going to keep pushing! 😂 Among the 200 documents the FBI dropped late Sunday night, January 8, 2017, Davis singles out three as pivotal. I agree—especially with the first: the memo that opened a “criminal investigation of Hillary Clinton and her email practices.”
Of course, it wasn’t technically a criminal investigation of Clinton—but of an UNSUB, shorthand for “unknown subjects.” Still, let’s get to the heart of it: what was this criminal investigation that wasn’t quite a criminal investigation actually 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: McCullough’s referral wasn’t criminal and was never intended to be. We’ve even quoted McCullough himself confirming that. But as Davis points out, this document cemented the notion—officially—that there was a “criminal investigation.” Not of Clinton directly, but of unnamed individuals. And it wasn’t the ICIGs pushing for it, but Trumpland—the FBI.
The second document was a hand-delivered memo to Deputy Attorney General Sally Yates on July 21. Notably, this was one of three instances in which the FBI felt compelled to brief Yates on Emailgate. This memo again insisted the investigation was based on McCullough’s referral—which, again, was not criminal.
Yes, I’m repeating myself. But repetition is necessary. As Goebbels once said, a lie told enough times becomes the truth. Or as the saying goes, a lie travels halfway around the world before the truth puts its pants on. And to this day, many still believe the foundational lies of Emailgate.
An ironic twist: despite viewing this memo, the DOJ quietly retracted its confirmation of a criminal investigation on June 24—as we saw earlier.
📚 Location 819
Davis conjectures 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… The ICIG publicly stated… that he had not made a criminal referral to the FBI but rather a ‘security referral.’”
So why didn’t DOJ, after retracting the false confirmation, clarify that there was an FBI investigation underway? Because longstanding DOJ policy bars confirmation or denial of ongoing probes—a cornerstone of due process and presumption of innocence.
And yet, as we saw above, Comey later dismissed that policy outright—with barely concealed snark. His rationale? The press was already leaking, so why not confirm it officially?
Why not? Because the principle is clear—even if not clear to Comey. To confirm is to cast a shadow. As Davis puts it: this principle wasn’t just ignored—it was treated as trivial.
This wasn’t the first time Comey bent the law around his own moral lens. Recall his prosecution of Martha Stewart—despite the trivial fact that she had committed no crime. He pursued her for allegedly “lying,” though even that was open to interpretation. A pattern begins to emerge: when Comey feels compelled, concepts like due process, presumption of innocence, and probable cause become optional.
Whatever DOJ’s motive was in retracting its confirmation on July 24, the most compelling reason was this: Clinton was not under criminal investigation. The ICIG referral was not criminal. Despite all the faux outrage from Comey, Giacalone, and Coleman—mocking the phrase “Federal Bureau of Matters”—the investigation’s premise was murky at best.
The third document posted that night held a fascinating detail: an FBI interview (a 302) with an inspector in McCullough’s office, dated July 23. The key revelation?
Clinton’s 30,000 emails had already been reviewed on June 26–27.
Two weeks before the FBI even opened its “criminal” investigation. And the interview happened on July 23—a date which, as Davis argues, was the day Trump won the presidency.
These three documents raise serious questions about the behavior and judgment of Comey, McCullough, and DOJ leadership—questions that ultimately thread directly into Comey’s fateful October 28 letter to Congress.
Let’s return to July 10. The FBI decides to open a criminal investigation. But—not really. Not of Clinton directly. Of unknown subjects. Based on a referral that McCullough himself would later say was not criminal.
The July 10 memo strongly suggests Comey himself authorized the opening. It came from FBIHQ, Counterespionage Section—which means it likely crossed his desk.
Clinton’s name is redacted, but the designations in the memo are telling: a “Sensitive Investigative Matter” tied to a “current public official, political appointee or candidate…” The subject is unmistakable.
Here’s the FBI’s synopsis:
“FBIHQ, Counterespionage Section, is opening a full investigation based on specific articulated facts provided by an 811 referral from the ICIG…” 📚 Location 849–859
But here’s the wrinkle: a Section 811 referral is not a smoking gun. As Davis details, such referrals often trigger noncriminal counterintelligence reviews, usually focused on whether unmarked documents deserve retroactive classification.
From the Los Angeles Times:
“Section 811 referrals from the ICIG may or may not ultimately launch an investigation. Experts say such referrals… are routine and often do not lead to much.”
McCullough himself—through a source—stated his July 6 submission was not intended to be characterized as a criminal referral.
📚 Location 879
McCullough’s July 6 referral wasn’t a criminal accusation—it was, allegedly, a bureaucratic maneuver. According to a source close to him, the goal was to pressure the State Department into allowing representatives from the Intelligence Community and FBI Counterintelligence to join its ongoing FOIA review of Hillary Clinton’s emails. The referral expressed concern that State had rejected this request for outside participation.
But the need for such involvement was itself suspect, as Davis argues. McCullough’s actions played a critical role in precipitating what would become July 23, 2015—the day Davis says Donald Trump won the presidency.
Rewind 13 days earlier. On July 10, the FBI secretly opened the Emailgate investigation. The question remains: Was there probable cause? Davis—and the evidence—suggest there was not. Even Comey would later concede in his own memoir that a conviction was highly unlikely. In that case, the investigation never should have been opened.
To initiate a criminal probe, the FBI needed at least one “articulable fact” suggesting Clinton might have committed a crime. Page two of the July 10 memo offers exactly one:
“. . . 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.”
But this single email lacked classified markings—a critical distinction. Without markings, there could be no presumption that Clinton knew the content was classified, and thus, no basis to establish criminal intent.
In other words: No markings, no crime. No intent, no probable cause.
The FBI’s own rules demand more than a hunch or speculation that a crime “might” be uncovered if 30,000 emails were rifled through. Yet that’s exactly what Emailgate became—a 15-month fishing expedition that inverted due process and presumed guilt.
Even the memo’s header reveals its hollow foundation:
“Potential Compromise of Classified Information.” 📚 Location 901
McCullough’s role remains suspect. A source close to him claimed his frustration with the State Department’s refusal to allow Intel Community participation pushed him to escalate the referral. He allegedly speculated that, had State cooperated, he might have sent a benign notice—or none at all. His July 23 memo warned about potentially unmarked classified info being released under FOIA, arguing that Intelligence Community experts needed to be involved.
He also insisted, via that same source, that he wasn’t making judgments about classification—only passing along others’ assessments. But Davis pokes a sizable hole in that alibi. McCullough had served as a senior FBI official under Director Louis Freeh—an openly anti-Clinton partisan notorious for, among other things, forcing President Clinton to submit to a urine test at a black-tie gala.
And McCullough submitted his memo to a Republican-led committee. He could hardly feign surprise when his anti-Clinton materials leaked.
So yes, as Davis observes, the State Department had every reason to doubt McCullough—and to question whether he and his allies were neutral arbiters.
In the end, Davis is blunt and correct: Comey and his circle were going to open a criminal investigation by hook or by crook. He had sent Martha Stewart to prison despite no underlying crime—prosecuted her for “lying,” even though the lie itself was murky and unproven.
So even if McCullough hadn’t sent the July 6 referral—or if he’d sent a benign one—it’s likely Comey would have found another pretext. As it stood, they opened the investigation without predicate facts, without marked classified emails, and without a legal foundation. The July 10 memo makes clear: this was never about evidence—it was about determination.
Emailgate was always an indictment in search of a crime.