📘 Chapter: Probable Cause or Political Cause?

The Manufactured Foundations of Emailgate

From its murky inception to its dramatic crescendo, Emailgate was never about legality. It was a scandal forged in the crucible of narrative expedience—engineered through FBI overreach, media distortion, and a culture eager to equate proximity with guilt.

UPDATE: Missing-Sally Yates. Also maybe expand more on Green Badges

James Comey’s decision to supplant Department of Justice protocol with his Kantian moral intuitions —later aptly labeled “insubordination” by the Inspector General—paired with Dean Baquet’s editorial sleight-of-hand at The New York Times, helped reframe a bureaucratic process into a pseudo-scandal with national consequences that we are still very much suffering the repercussions of today

At its center lay a paradox: an investigation without a subject, a crime without intent, and a public perception shaped more by repetition than fact. This chapter unspools the anatomy of that distortion—tracing how a security referral morphed into an indictment in search of a crime.

I. 🎭 The Illusion of Investigation

A Criminal Case Without a Criminal

Despite James Comey’s  “queasy” insistence

FN: Queasy is apparently one of Comey’s favorite words

on labeling the probe a “criminal investigation,” the inconvenient fact is Hillary Clinton was never officially designated its subject. No formal charges were filed. (And this chapter will argue) no probable cause was established. And yet the machinery of criminality clanked into motion.

The press echo machine juiced up Emailgate with saturation coverage. The FBI peevishly insisted it was a criminal investigation of Hillary Clinton yet as we will see when it opened the Emailgate investigation on July 10 actually designated it an UNSUB. It wasn’t factual. It was rhetorical framing.

Inside the Bureau, outrage swirled—not over any substantive issues regarding Clinton’s actions, but over semantics. When President Obama described Clinton’s email use as a “mistake” and Press Secretary Josh Earnest noted the DOJ wasn’t poised to indict her, the reaction wasn’t legal scrutiny. It was moral panic.

“We open up criminal investigations. And you have the President… saying this is just a mistake… That’s a problem, right?” —John Giacalone, former FBI Executive Assistant Director

“The President… just came out and said there’s no there there.” —Randy Coleman, former Assistant Director

Both men were instrumental in briefing DOJ leadership during the early phases of the Midyear Exam. Their indignation signaled less concern for law—and more resentment that Obama had the temerity to undermine their Emailgate narrative.

Sally Yates and the Early Stages of Emailgate

Interestingly these two-“Former EAD John Giacalone” and “Former AD Randy Coleman” were also the two agents in the very early stages-actually on July 23, 2015- of the Emailgate investigation who thought it necessary to hand deliver a handwritten note notifying Deputy AG Sally Yates that the FBI-as Lanny Davis opines it was likely Comey himself-had opened up the But Her Emails probe on July 10, 2015; yet another day which will live in infamy for Comey along with July 5, 2016, and October 28, 2016.

FN: Location 944

This was kind of interesting first of all because this was the third time the FBI had notified Yates of the Emailgate Midyear investigation Yates in the space of 13 days that they’d opened up the investigation. Interestingly too that by early 2016 the two gung ho FBI agents-at least they were gung ho about investigating Clinton’s emails were former agents. In light of the role that allegedly former agents would have in leaking Emailgate information. Were they two of the leaking agents? As we’ll see in 2016 many supposedly former agents continued to show up to work everyday to bitch and conspire against Clinton.

The Power of the Green Badge

Indeed, in 2018 the GOP Congress having already prematurely shutdown the Russia investigation opened up a kind a parallel investigation going back to Her Emails again-even though by then she’d been out of public life for two years-ie they were essentially investigating a private citizen.

One witness Chuck Grassley and his GOP co-conspirator friends had was: “Former EAD John Giacalone” 

Giacaloe had been asked if

“when you retire from the FBI, it’s my understanding that, you know, you turn your equipment in, you surrender your badge, you surrender your gun, they walk you to the door, and they literally throw you out on the street. Youcannot get back into the building again without going through some escort procedure. Is that correct?”

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.

These weren’t legal debates. They were acts of narrative engineering. The terminology—“criminal,” “target,” “classified”—became cudgels to frame perception.

Inside the media bubble, the distinction between a security review and a criminal probe vanished. And inside the FBI, the mission morphed from fact-finding to narrative framing—from adherence to DOJ policy to rationalizing something that began to resemble a political exercise.

Truth as Heresy: “Matter” vs “Investigation”

Comey’s moral panic over the term “matter” became a meme with all the furor  over “matter not investigation” and “The Federal Bureau of Investigations” as Horowitz’s IG report in 2018 revealed while this phrase is associated with Comey it was actually DOJ official George Toscas who apparently said it:

“Asked whether he made a comment to Comey about the “Federal Bureau of
Matters,” Toscas said that he did not specifically recall doing so but may have. He
said that, if he did, he intended it as a joke rather than as a criticism of Lynch.”

“I don’t know if I ribbed [Comey] walking out. You know he’s a friend
of mine…. In any event, maybe I said that, maybe I didn’t. It
wouldn’t faze me if I did, because it was in line with what I was saying
to them [about “investigation” being part of the FBI’s name]. But it
makes it appear as though I was sort of knocking the AG [Lynch] in
the way they reported it, which is obviously why some goofball felt
that they should talk about that to the newspapers….”

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

Pg 65

When that neologism was leaked to the media it as clearly meant to suggest Lynch’s asking Comey and Friends to refer to Emailgate as a “matter not investigation” was absurd or even an untoward desire to conceal something but as we saw above Toscas says he did not mean it as a criticism of Lynch.

It was Loretta Lynch who actually told the IG Toscas was who riffed on the whole “matter vs investigation” furor.

“Lynch recalled Toscas making a joke about the “Federal Bureau of Matters”
to one of the agents who was sitting beside him, and people laughing. She said
that she took this as a joke, as good-natured “ribbing” or “teasing,” and that the
laughter told her that others in attendance also took it as a joke.”

Pg 63

What is further notable though is that Toscas himself didn’t see this as a big deal-as we saw above his terse jibe that  “some goofball felt that they should talk about that to the newspapers.” Axelrod also saw it as “a small part of the meeting.”

“Axelrod told us that the discussion about whether to acknowledge an
“investigation” was just one small part of that meeting. He said that Lynch
suggested using the term “matter” as a way of “thread[ing] the needle” to avoid
violating Department policy while also not appearing evasive.”

However the  agent who leaked the “Bureau of Federal Matters” anecdote definitely meant to suggest that this comment and discussion WAS A BIG DEAL and  was meant TO CONCEAL and the overwrought Emailgate media commentary at the time certainly framed it that way.

The notion though that Lynch was somehow being evasive shows you how bastardized the public discussion over Emailgate was-so often the conventional narrative was framed in a way that was the opposite of the truth. It seems clear to me when looking at the fact pattern in the IG documents that if anyone had an untoward desire to conceal it was Comey and some of his fellow co-conspirators like Randy Coleman or John Giacalone.

The context of “matter v investigation” is important to understand why I argue the public discourse that suggested Lynch was engaging in a nefarious attempt to conceal things that public has a right to know is the opposite of the truth. It was part of a larger debate between the FBI and DOJ of wether they should publicly confirm the existence of the Midyear Investigation Emailgate:

“Following the public referral to the FBI from the IC IG in July 2015, the
Department and the FBI received questions from the media and Congress asking
whether they had opened a criminal investigation of former Secretary Clinton.
According to emails exchanged in late August 2015, there was a significant
disagreement between ODAG and FBI officials regarding whether to acknowledge
that a criminal investigation had been opened. FBI officials, according to the
emails, wanted to acknowledge “open[ing] an investigation into the matter,” while
ODAG officials approved language “neither confirm[ing] nor deny[ing] the existence
of any ongoing investigation,” based on longstanding Department policy. FBI and
Department letters sent to Congress on August 27 and September 22, 2015, and a
letter sent by the FBI General Counsel to the State Department on September 22,
2015, used the “neither confirm nor deny” language.”

“Contemporaneous emails show that former Director Comey disagreed with
this approach. In an August 27, 2015 email to Deputy Director (DD) Giuliano, Chief
of Staff James Rybicki, and FBI Office of Public Affairs (OPA) Assistant Director (AD)
Mike Kortan, he stated, “I’m thinking it a bit silly to say we ‘can’t confirm or deny
an investigation’ when there are public statements by former [S]ecretary Clinton
and others about the production of materials to us. I would rather be in a place
where we say we ‘don’t comment on our investigations.’” Rybicki told the OIG that
Comey thought that the Department and FBI needed to say more about the
investigation because the IC IG referral was made publicly, and refusing to
acknowledge an investigation would “stretch…any credibility the Department has.”

Pg 59

It needs to be appreciated the extent to which Comey’s reasoning here is upside down. Lynch was not wrongly trying to conceal something the public had a right to know as the public didn’t have the right to know it. And Comey and his Trumpland FBI clearly knew this in other cases-quite notably when the Russia counterintelligence investigation begun in July 2016 it wasn’t confirmed publicly until March of 2017-Comey himself finally publicly confirmed it.

While Comey may have considered it “silly” for them to say they could “neither confirm nor deny” whether there was an Emailgate investigation or not doing so did have the convenience of being in line with what DOJ protocol called for-again Comey himself was able to follow this protocol in the Russia investigation when Trump was the focus.

Comey’s premise here was that since a number of rogue anti Clinton FBI agents had been violating DOJ policy for months in leaking about the Emailgate investigation the correct response to this was to further violate DOJ policy by publicly revealing the existence of the investigation.

FN: As to why I call these rogue agents “anti Clinton” will be developed in subsequent chapters in this Comeygate section of the book. That they were rogue agent leaking about the investigation in ways damaging to Clinton through the election is publicl knowledge as this was one of the major lines of investigation in the IG investigation of Midyear Emailgate quoted above. For now suffice to point out that in-now in 2025-117 years of the FBI we’ve yet to ever have a Democratic FBI Director

End FN

Regarding Loretta Lynch, Comey went as far as suggesting Lynch’s suggestion of “matter” made his “spider sense tingle” that she was “carrying water for the Clinton campaign.”

“Comey told the OIG that he decided not to fight this instruction from the AG, but
that it “made [his] spider sense tingle” and caused him to “worry…that she’s
carrying water for the [Clinton] campaign[.]” As described in Chapter Six, Comey
told the OIG and testified before Congress that this instruction from Lynch was one
of the factors that influenced his unilateral decision to make a public statement on
July 5, 2016, without coordinating with the Department.56 However, Comey also
said to us that he had no other reason to question Lynch’s motives at that time,
stating, “[I]n fact my experience with her has always been very good and
independent, and she always struck me as an independent-minded person[.]”

Pg 60

If anything his predication for suggesting Lynch was “carrying water for the Clinton campaign” just for what was essentially following DOJ policy is as weak as the predication for the entire Emailgate investigation indeed it makes me wonder if the partisan actor in this picture wasn’t Comey himself. Because for all Comey’s tingling spidey sense and “queasiness”  turns out that Loretta Lynch’s neologism had the inconvenience of being true.

In fact the DOJ Inspector General later confirmed that the designation was correct-turns out it wasn’t even a neologism it was just standard DOJ protocol something Comey seemed to find unmanly and lacking in moral grandeur. Clinton was not a target. Not even a subject. So Loretta Lynch’s preferred gloss-“matter”-had the inconvenience of being accurate. Indeed it’s ironic that Andy McCabe would be accused-in Trump’s politically motivated boondoggle in 2018 of a “lack of candor” in what he told Comey about his leaks October 31, 2016.

McCabe showed ‘lack of candor’ with Comey: DOJ inspector general report – ABC News

FN: To be sure McCabe’s leaks were untoward though they actually further HELPED the Trump campaign as it was just three days after the Comey Letter so it basically kicked Clinton again while she was down. McCabe’s motive was actually similar to Comey’s in doing the Comey Letter though-he was trying to reassure the Trumpers he wasn’t somehow in the pocket for Clinton; this is the entire story of Emailgate-to prove Clinton wasn’t getting specially good treatment she was given specially bad treatment.

Because that’s exactly how I would describe Comey’s conduct throughout the entirety of Emailgate. Because as we saw above Toscas never saw Comey make the kind of heavy weather over “matter v investigation” at the meeting with Loretta Lynch in September, 2015 he would make later.

“Toscas told the OIG that he mentioned at the meeting that the Department
opens only a small fraction of the referrals it receives from the intelligence
community as criminal investigations, and that the Department may not want to
publicly acknowledge an investigation into former Secretary Clinton because it could
serve as precedent for other referrals. Toscas said he also made clear to the group
that Midyear was a criminal investigation, and that the prosecutors had referred to
it as an investigation in letters to counsel and in search warrant applications.”

FN: Location 65

Hmmm-so most referrals from the intelligence community are NOT treated as criminal investigations, ie most of them are matters?!

“Toscas said that Comey concluded the meeting by agreeing to call it a
matter, stating, “OK, I think that will work.” This statement also appeared in
Toscas’s contemporaneous notes. Toscas told the OIG that there was no indication
at the time that Comey was concerned about the meeting or that the meeting had
led him to question Lynch’s impartiality.”

So Comey meekly agreed to call it a matter… What this strongly suggests is his indignation over the whole thing was contrived.

Indeed according to the FBI’s own Domestic Investigations and Operations Guide (DIOG), the Midyear Exam qualified as a Sensitive Investigative Matter (SIM)-ie the FBI literally designated it a matter. 

“The FBI designated the Midyear investigation as a Sensitive Investigative
Matter (SIM). According to the DIOG, a SIM includes “an investigative matter
involving the activities of a domestic public official or domestic political candidate
(involving corruption or a threat to the national security)” as well as “any other
matter which, in the judgment of the official authorizing an Assessment, should be
brought to the attention of FBI [Headquarters] and other DOJ officials.” FBI
witnesses told us that the SIM designation is typically given to investigations
involving sensitive categories of persons such as attorneys, judges, clergy,
journalists, and politicians, and that that SIM investigations are overseen more
closely by FBI management and the FBI Office of General Counsel than other
investigations.”

“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. FBI witnesses told us that the “UNSUB” designation is common and means
that the FBI has not identified a specific target or subject at the outset of an
investigation. According to FBI witnesses, this allowed the FBI to expand the focus
of the investigation based on the evidence without being “locked into a particular
subject.” With respect to the Midyear investigation, witnesses told the OIG that the
FBI did not identify anyone as a subject or target during the investigation because
it was unclear how the classified material had been introduced to the server and
who was responsible for improperly placing it there.”

Yet both Comey AND Randall Coleman affected to be astonished that Midyear Emailgate was indeed a matter. 

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.”

SHOCKED I tell you. I don’t know that it got MORE focused as it clearly always was focused on Clinton. But the fact that she was never made the sujbect tells you they made no headway in showing any criminal culpability on her part-yet the political exercise matter would drag on for a year-see the next chapter.

“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.”

It’s hard to believe Comey-or for that matter Coleman in light of his early central role in the opening up of Emailgate- didn’t know this as we’ll see below when we discuss July 10 and so his notorious public queasiness looks less like moral discomfort—and more like retroactive justification for procedural deviation. It seems clear that the scandal over “matter not investigation” was retroactive and contrived and the notion that Comey as the FBI Director when Emailgate was opened didn’t know it was an UNSUB strains credulity-we will look into the FBI’s July 10 opening of the Emailgate boondoggle below.

UPDATE 2.0: We’ll see if this section belongs here or below later.

II. 📺 The Times and the Birth of Emailgate

Framing as Foundation

It started with the New York Times-where else?

FN: The Times was also where Whitewater started and Lanny Davis whose book will be an important source for this chapter quite rightly analogizes Whitewater to Emailgate

End FN

 March 2, 2015 — The Times Gets the Story Half-Wrong

On March 2, 2015, the paper published a story suggesting Clinton “may have violated federal requirements” by using a personal email account. The language was slippery—the classic “weasel wording” that Newsweek’s Kurt Eichenwald later skewered:

“There is a term in journalism for the word may. It’s called a weasel word…”

Lanny Davis dissected this moment with surgical precision. The article asserted, categorically, that Clinton and her aides “failed to do so”—meaning failed to preserve records. But what the piece obscured was timeline: the Federal Records Act was amended in November 2014, nearly two years after Clinton left office. The new 60-day preservation rule didn’t exist when she served. She turned over 55,000 pages in December 2014—just weeks after the amendment passed.

Instead of anchoring the story in legal context, the Times fronted it with insinuation.

Further distortion followed. Clinton’s setup was described as “unusual,” despite precedent: Colin Powell had used a private system for official correspondence, and Condoleezza Rice’s aides had sent emails later marked classified. Powell’s case included a hacked AOL account, cobbled hardware, and private servers—far less secure than Clinton’s configuration.

Unusual-ie not illegal. When you lack the facts pound the law, the fools for Emailgate had neither so they pounded the table.

FN: Whitewater book “Fools for Scandal.”

Fools for Scandal: How The Media Invented Whitewater: Lyons, Gene: 9781879957527: Amazon.com: Books

See also Chapter Keith Olbermann

End FN

But Powell’s example didn’t support the scandal narrative. So it was buried for over a year—until Rep. Elijah Cummings released his emails in September 2016. By then, the damage to Clinton’s image was embedded in public consciousness.

“Clinton Derangement Syndrome” wasn’t just partisan. It had an institutional host: the media.

FN: As we saw in Chapter Chuck Todd, Paul Waldman had made the provoactive observation that many in the media had felt the Clintons got away with something in the 1990s-ie on some level of the bad media coverage of 2016 was meant to vindicate the bad media coverage of the Whitewater cum Lewinsky 1990s.

Clinton’s net positives in polling evaporated post-Emailgate—not through organic erosion, but through narrative saturation. From March to October 2015, every major outlet repeated the storyline: She wasn’t trusted. She must be hiding something.

Echo replaced evidence.

This was journalism by implication—less about what the story said than what it suggested. And from this germ of insinuation bloomed a twenty-month narrative of presumed wrongdoing, amplified not by what Clinton had done, but by what she might have done.

One legal expert quoted in the original Times story told Davis: “As of the time she was secretary of state, her emails using a private address were legal.” Asked why this wasn’t mentioned in the article, he replied: “I don’t think the reporter ever asked me that specific question.” (FN: Davis, Location 281)

The omission speaks volumes: legality wasn’t withheld—it was unrequested. The media didn’t ask questions that risked collapsing the narrative.

The pattern continued:

• Declaratives followed by qualifiers.
• Regulatory timelines glossed over.
• Shifts in federal law—like the 2014 amendment requiring email preservation within 60 days—went unmentioned, though Clinton left office two years prior.

In Davis’s dissection:

“If [Clinton and her aides] ‘retained’ or ‘preserved’ the records, was there a specific requirement that the records had to become part of the agency’s records immediately?” (FN: Davis, Location 233)

Instead, the coverage suggested Clinton had obviously, or at least likely, or at least might have, or at least could have violated rules. Nobody could quite say what she’d done wrong—but everyone insisted it was bad.

The Times set the tone—speculative, suspicious, and structurally biased against exculpatory context. This dynamic held until the bitter end: the October 28 front-page freakout over the Comey Letter—another story framed by what might happen though in reality it was never very likely the Huma Abedin-Hillary Clinton emails were NOT duplicates.

And so it was that the first post-truth election began with this problematic NYT piece-the first Emailgate article. And even reputable reporters got swept into the pack mentality, where insinuation mattered more than verification.

SECTION III: July 23, 2015 — The Day Donald Trump Won the 2016 Election

The initial narrative was launched not by legal fact, but by headline fiction. At 10:31 PM, The New York Times published a lead story claiming “Criminal Inquiry Is Sought in Clinton’s Use of Email.” The piece cited unnamed officials and referenced a “memo” from two Inspectors General. The truth? Only one memo existed—sent by I. Charles McCullough III of the Intelligence Community IG. Steve Linick, from State, did not sign or co-author the referral, contrary to what the Times reported [¹].

By the morning of July 24, the narrative was cemented. Davis writes:

“News that Hillary Clinton was under criminal investigation because of her emails was a big deal… 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.” [²]

The story metastasized instantly:

• 📱 Went viral across social media platforms
• 📰 Saturated morning papers and TV news crawls
• 🧠 Planted cognitive anchors in millions of voters’ minds

Yet by midday July 24, the DOJ publicly walked back its statement, clarifying that the referral was not criminal but instead a “security referral”—a bureaucratic term with no formal statutory meaning. The Times made a quiet update, not a prominent correction. Davis again:

“Justice shocked everyone. It withdrew its prior ‘confirmations’ to the Times and other news organizations… Then something even more unusual happened.” [²]

The FBI did not issue a correction. The Times didn’t demand to see the referral memo. Media analysts did not interrogate the framing discrepancy. The fiction remained, reinforced by repetition and institutional silence.

FOOTNOTES

1. Davis, The Unmaking of Hillary Clinton, Chapter 2, Location 426–436
2. Ibid., Chapter 2 (early July 24 analysis), quoted directly from narrative framing following NYT article

Section VIII: The Bllithe Betrayal of Journalism-“That is not Correct”

SECTION IV: The Blithe Betrayal of Journalism — “That is not correct.”

At 8:36 PM on July 23, 2015, New York Times reporter Michael Schmidt called back Clinton campaign press secretary Brian Fallon. His tone had shifted from exploratory to assertive. He claimed the Times had received a “separate tip” that two Inspectors General had sent a criminal referral to the Department of Justice regarding Hillary Clinton’s email use.

Fallon was stunned—and suspicious. That tip, apparently from a senior DOJ official, would soon be contradicted by both the DOJ and the Inspectors General themselves. But Schmidt offered no indication that this contradiction was forthcoming. Nor did he mention seeing the memo—because he hadn’t. Fallon pressed him: Had he asked to see the document? Schmidt gave no answer.

Fallon suspected the source of the leak might be Capitol Hill, specifically someone connected to the House Benghazi Committee—one Schmidt had previously covered. There was a distinct urgency in the tip and in the reporting posture: not a neutral pursuit of truth, but a seemingly partisan acceleration of the Emailgate narrative.

“Fallon had a hunch the leak came from someone on Capitol Hill… the House Benghazi Committee.” [¹]

Meanwhile, Fallon gathered the Clinton campaign’s senior staff. No one had heard anything about an investigation. As a former DOJ official, Fallon found it implausible that a criminal probe of this magnitude would be kept quiet. In his experience, there would already be multiple signals—leaks, chatter, institutional murmurs.

But Fallon still trusted Schmidt to follow the norms of journalism. They had spoken. Schmidt had promised to call before publishing, to give the campaign a chance to respond.

At 10:00 PM, Fallon left another message. No response. Then, just before 11 PM, Schmidt finally picked up.

Fallon asked, “I assume you’re not writing and still checking out the tip?” Schmidt replied: “That is not correct.” [²]

In three words, the story was already live. The Times had published without verifying the document, without reconciling their sources, and without giving the Clinton campaign a chance to respond—in direct contradiction to their own promise.

The core fact? There was no criminal referral.

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

That is not correct. I did not honor my promise to let you know before I publish. I did not ask to see the document I based this story that will upend a Presidential election was Schmidt’s blithe response.

And we can add elect an unqualified hack with deep authoritarian tendencies compromised by Russia-and Israel-whose misrule we continue to suffer under here on August 1, 2025 over 10 years since the Times July 23 fiasco where they blithely violated core tenets of journalism.

Back to Lanny Davis

“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’s anger was more than personal—it stemmed from a core breach of journalistic ethics. He had expected a call before publication. Schmidt had promised that. Instead, Fallon was left to discover a damaging headline live—without review, without rebuttal.

And yet, Schmidt had no hard proof. Neither he nor Apuzzo had read the IG memo. A criminal investigation of Hillary Clinton had not been confirmed—because it didn’t exist.

“This in one-fateful episode was a recurring theme of Emailgate.”

And so began the next pattern: belated corrections that never matched the reach of the original misinformation. Near midnight, the Times revised the story—shifting to passive voice, scrubbing Clinton’s name, and softening the implications. But there was no announcement, no flag, no acknowledgement.

Not until four days later, with an Editor’s Note buried on July 27, did the Times admit its error. Yet the damage was done. Rush to publish. Rush to confirm.

MIDDAY JULY 24: INSTITUTIONAL BACKTRACK

By noon, the fallout had begun. Both DOJ and the two Inspectors General—I. Charles McCullough III (ICIG) and Steve Linick (State)—issued public statements. They clarified that the July 23 memo was a security referral, not a criminal one. It was not about prosecuting Clinton—it was a procedural notification to ensure documents were being handled properly.

“There was no ‘criminal referral,’ but rather a ‘security referral.’” [³]

The Washington Post explained that this was essentially a classification dispute under FOIA—about how Clinton’s emails should be labeled during release. McCullough had even suggested a “dispute resolution process” between the State Department, FBI, and Intelligence Community to sort it out.

So what was the breaking news about?

Why the urgency?

Why was this framed as criminal, when all parties involved now stated otherwise?

“McCullough said he recommended a dispute resolution process regarding classification levels…” — Washington Post, July 24, 2015 [⁴]

THE DAMAGE DONE

Once a false narrative enters the bloodstream, it’s nearly impossible to drain it out.

Davis writes:

“This became the accepted frame of her entire campaign—she’s under criminal investigation no matter how false it in fact was.” [⁵]

The story had already dominated morning TV broadcasts, social media feeds, and front pages across the country. The correction, if it can be called that, was tepid and buried—seen by far fewer than the original headlines.

Even the Times’ own public editor later admitted fault:

• The reporters had not seen the memo.
• They relied on multiple DOJ sources who later reversed themselves.
• There was no effort to contact the campaign again before publication.

“The Times was faulted… for the ‘rush to publish.’ Justice for the ‘rush to confirm.’” [⁶]

Years later, Davis framed the moment with hard clarity:

“So if this was what the Times story was really about, then what was all the fuss about?” [⁵]

The answer was simple: narrative. Whatever furthered the Emailgate frame interested the media. Whatever contradicted it did not.

FOOTNOTES

1. Davis, The Unmaking of Hillary Clinton, Chapter 2, Location 505
2. Ibid., Location 524
3. Ibid., Location 452–463
4. Washington Post, July 24, 2015, McCullough’s FOIA classification remarks
5. Davis, The Unmaking of Hillary Clinton, multiple sources Chapter 2
6. NYT Public Editor, July 2015 — criticism of rush to publish

Section V1: July 10 2015:  Matter v Investigation Again

Emailgate as an indictment in search of a crime

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As I discussed above Comey’s moral freakout over “matter v investigation” was never credible-and as we saw when Lynch first proposed calling it a matter he DID NOT freakout. His “queasiness” his tingling “spider sense” only happened retroactively. Nor was his and Randall Coleman’s being “stunned” that Clinton was never the subject and that it was an UNSUB . I mean for Comey to be surprised by this isn’t just lacking in credulity it’s incredible. After all Comey opened THE MATTER in the first place.

And this brings us to July 10 the day the FBI opened the Midyear Emailgate investigation-that is a “criminal investigation of Hillary Clinton” that wasn’t actually a criminal investigation of Hillary Clinton. One more point on UNSUB-it’s notable that it was never at any point revised-Clinton at no point became the subject.

Lanny Davis:

“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.”

FN: Davis, Location 849-859.

This gets to a central thesis of this chapter: that Emailgate investigation should never have been opened in the first place as they lacked probable cause. This is clear when you consider the “specific articulated facts” in the 811 referral-this 811 being McCullough’s-security not criminal-referral.

So what were these articulated facts? Turns out there was just one-so it was an alleged articulated fact not facts. And as Davis points out an 811 referral 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…”

FN: Location 859

As we saw above McCullough and Linick-whose name the NYT wrongly reported publicly was also on the referral- debunked the Times claim of a criminal referral.

“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.

Because the single articulated fact was McCullough’s security referral-once again NOT a criminal referral. Now Lanny Davis also criticizes McCullough as while he himself took pains to clarify that it wasn’t intended as a criminal referral he somehow thought or so he claims that the security referral was necessary to force the hand of 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.

Again 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.”

Locations 879-890

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 of 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.”

Location 901

Potential-ie they did not have conclusive evidence that it was.

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.”

949

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-so he could hardly credibly claim to be “shocked, shocked” by the leaks of his anti-Clinton memos from a Republican-led congressional committee.”

Location 968

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.