337 Chapter: Probable Cause or Political Cause? The Manufactured Foundations of Emailgate

📘 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.

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. We are still suffering the repercussions 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[^1] on labeling the probe a “criminal investigation,” Hillary Clinton was never officially designated its subject. No formal charges were filed. No probable cause was established. Yet the machinery of criminality clanked into motion.

The press echo chamber saturated the public with Emailgate coverage. The FBI insisted it was a criminal investigation of Clinton, yet when it opened the probe on July 10, 2015, it designated her as an UNSUB—not a subject. It wasn’t factual. It was rhetorical framing.

Inside the Bureau, outrage swirled—not over Clinton’s actions, but over semantics. When President Obama described her email use as a “mistake” and Press Secretary Josh Earnest noted the DOJ wasn’t poised to indict, 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

Giacalone and Coleman were also the two agents who, on July 23, 2015, hand-delivered a note to Deputy AG Sally Yates, notifying her that the FBI—likely under Comey’s direction, as Lanny Davis suggests—had opened the “But Her Emails” probe on July 10.

This was the third time in just thirteen days that the Bureau had notified Yates of the investigation. The repetition wasn’t bureaucratic—it was theatrical. A kind of institutional insistence that this probe deserved elevation, even if the facts didn’t.

By early 2016, both agents were “former” FBI officials. Yet as we’ll see, many supposedly former agents continued to show up at headquarters, conspiring against Clinton. Were Giacalone and Coleman among the leakers? The question lingers.

In 2018, long after Clinton had exited public life, the GOP Congress—having prematurely shut down the Russia investigation—resurrected Emailgate. One of their witnesses? “Former EAD John Giacalone.”

Giacalone and Coleman were also the two agents who, on July 23, 2015, hand-delivered a handwritten note to Deputy AG Sally Yates, notifying her that the FBI—likely under Comey’s direction, as Lanny Davis suggests—had opened the “But Her Emails” probe on July 10.

[^2]: This was the third time in 13 days the FBI had notified Yates of the investigation.

🟩 The Power of the Green Badge

During his testimony, Giacalone was asked:

“When you retire from the FBI… you surrender your badge, your gun, and they walk you to the door. You can’t get back in without an escort. Is that correct?”

LOL. Giacalone explained that this was far from correct. 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.

Green badge status enabled him to retain access to NY FBI headquarters—the info, the intel, the influence.

This wasn’t retirement. It was institutional privilege, leveraged to shape political discourse.

🧠 Narrative Engineering Over Legal Debate

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.

📌 Notes

[^1]: “Queasy” is apparently one of Comey’s favorite words. [^2]: FN: Location 944

🧩 Truth as Heresy: “Matter” vs. “Investigation”

Comey’s moral panic over the term “matter” became a meme—fueling overwrought commentary about DOJ concealment and bureaucratic euphemism. But as the 2018 Inspector General report revealed, the infamous phrase wasn’t even Comey’s. It originated with DOJ official George Toscas, who later said:

“I don’t know if I ribbed [Comey] walking out… maybe I said that, maybe I didn’t. It wouldn’t faze me if I did… But it makes it appear as though I was sort of knocking the AG [Lynch]… which is obviously why some goofball felt that they should talk about that to the newspapers.” —Toscas, IG Report, p. 65

Toscas insisted it was a joke—not a criticism. And Loretta Lynch herself confirmed that interpretation:

“Lynch recalled Toscas making a joke about the ‘Federal Bureau of Matters’… She said that she took this as good-natured ribbing, and the laughter told her that others in attendance also took it as a joke.” —IG Report, p. 63

Even DOJ official Axelrod downplayed the exchange:

“The discussion about whether to acknowledge an ‘investigation’ was just one small part of that meeting. Lynch suggested using the term ‘matter’ as a way of threading the needle—to avoid violating Department policy while also not appearing evasive.”

But when this anecdote was leaked, it was weaponized. The media framed Lynch’s request as evasive, even sinister—suggesting she was trying to conceal wrongdoing. In reality, she was following standard DOJ protocol: not commenting on ongoing investigations.

🧠 The Inversion of Truth

The public narrative flipped reality on its head. Lynch was accused of hiding something the public had a right to know. But as the IG documents show, it was Comey and his allies—Randy Coleman, John Giacalone, and others—who pushed for disclosure against DOJ norms.

The context matters. The “matter vs. investigation” debate was part of a larger internal dispute between the FBI and DOJ over whether to publicly confirm the existence of the Emailgate probe:

“Following the public referral to the FBI from the IC IG in July 2015… there was a significant disagreement between ODAG and FBI officials regarding whether to acknowledge that a criminal investigation had been opened. FBI officials 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.” —IG Report, p. 59

Comey rejected this approach. In an August 27, 2015 email, he wrote:

“I’m thinking it a bit silly to say we ‘can’t confirm or deny an investigation’ when there are public statements by former Secretary Clinton and others about the production of materials to us. I would rather be in a place where we say we ‘don’t comment on our investigations.’”

Rybicki later told the IG that Comey believed silence would “stretch any credibility the Department has.”

🔄 Selective Transparency

But Comey’s reasoning here is upside down. Lynch wasn’t wrongly trying to conceal something—the public simply didn’t have the right to know. And Comey knew this. He followed that very protocol in another case: the Russia counterintelligence investigation, launched in July 2016, wasn’t publicly confirmed until March 2017, when Comey testified before Congress.

So why the double standard?

Comey’s logic seemed to be: since rogue FBI agents were already leaking about Emailgate, the solution was to further violate DOJ policy by confirming the investigation publicly. It was a rationale built not on law, but on optics—and it set the stage for the public spectacle that followed.

🕸️ Comey’s “Spider Sense” and the Politics of Protocol

Comey claimed that Lynch’s suggestion to use the term “matter” made his “spider sense tingle”—as if she were “carrying water for the Clinton campaign.” But even he admitted:

“In fact my experience with her has always been very good and independent, and she always struck me as an independent-minded person.” —IG Report, p. 60

So what was the basis for his suspicion? Lynch was simply following DOJ protocol—a fact later confirmed by the Inspector General. Clinton wasn’t a target. Not even a subject. The term “matter” wasn’t a euphemism—it was accurate.

🧠 The Irony of Accuracy

Comey’s indignation over “matter vs. investigation” was not only misplaced—it was contrived. At the September 2015 meeting with Lynch, Comey agreed to the terminology without protest:

“Toscas said that Comey concluded the meeting by agreeing to call it a matter, stating, ‘OK, I think that will work.’” —IG Report, p. 65

There was no indication at the time that Comey questioned Lynch’s impartiality. His later outrage seems retrofitted—designed to justify his unilateral actions in July 2016.

🧾 DOJ Protocol and the SIM Designation

The FBI’s own Domestic Investigations and Operations Guide (DIOG) designated the Midyear Exam as a Sensitive Investigative Matter (SIM)—literally, a matter. According to the DIOG:

“A SIM includes an investigative matter involving the activities of a domestic public official or political candidate… and any other matter which, in the judgment of the official authorizing an Assessment, should be brought to the attention of FBI Headquarters and DOJ officials.”

The Midyear investigation was opened with an Unknown Subject(s) (UNSUB) designation. No individual—including Clinton—was ever identified as a subject or target. This allowed the FBI to follow the evidence without prematurely assigning blame.

🧨 The Contrived Outrage

Despite all this, Comey and Randall Coleman later affected astonishment that Midyear was a matter. But the facts show otherwise:

• Toscas explained that most intelligence community referrals are not treated as criminal investigations.
• The DOJ had no desire to set a precedent by publicly acknowledging an investigation into Clinton.
• Comey himself agreed to the terminology at the time—only to later weaponize it as justification for his July 5 statement.

🧭 Footnote Highlights

FN1: The term “anti-Clinton” will be developed in subsequent chapters. That these agents were leaking in ways damaging to Clinton is public knowledge, and was a major focus of the IG investigation into Midyear. As of 2025, in 117 years of the FBI, we’ve yet to have a Democratic FBI Director.

FN2: McCabe’s leaks were untoward, but they actually helped the Trump campaign—coming just three days after the Comey Letter. His motive mirrored Comey’s: to reassure Trump allies he wasn’t in Clinton’s pocket. This is the core paradox of Emailgate—Clinton wasn’t given special treatment; she was given especially bad treatment.

🕵️‍♂️ UNSUB and the Fiction of Surprise

Despite the UNSUB designation, FBI witnesses acknowledged that the Midyear investigation was always focused on Clinton’s intent in setting up and using her private email server. One FBI attorney told the OIG:

“We certainly started looking more closely at the Secretary because they were her emails.”

Randall Coleman, then Assistant Director of the Counterintelligence Division, expressed apparent disbelief:

“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.

But did it really get more focused on Clinton—or was it always focused on her? The fact that she was never made a subject tells us something crucial: they made no headway in showing criminal culpability. Yet the political exercise dragged on for over a year. (See next chapter.)

Comey, too, described Clinton as the subject—both in his OIG interview and in his memoir:

“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 Coleman, given his early role in launching Emailgate—didn’t know about the UNSUB designation. Their later “queasiness” looks less like moral discomfort and more like retroactive justification for procedural deviation.

We’ll revisit this “shock” in light of what Comey and Coleman actually did on July 10—when the investigation was formally opened.

📰 The Times and the Birth of Emailgate

Framing as Foundation

It started with The New York Times—where else?

FN: The Times also birthed Whitewater. Lanny Davis, whose book will be a key source for this chapter, rightly analogizes Whitewater to Emailgate. End FN

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

The Times published a story suggesting Clinton “may have violated federal requirements” by using a personal email account. The language was slippery—classic “weasel wording,” as 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 claimed Clinton and her aides “failed to do so”—meaning failed to preserve records. But it obscured the timeline: the Federal Records Act was amended in November 2014, nearly two years after Clinton left office. 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 used a private system for official correspondence.
• Condoleezza Rice’s aides sent emails later marked classified.
• Powell’s setup included a hacked AOL account and cobbled hardware—far less secure than Clinton’s configuration.

Unusual—i.e., not illegal. When you lack the facts, pound the law. When you lack the law, pound the table. The Emailgate narrative did both.

FN: See Fools for Scandal: How the Media Invented Whitewater by Gene Lyons. Also relevant: Chapter Keith Olbermann. End FN

But Powell’s example didn’t support the scandal narrative. So it was buried—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 discussed in Chapter Chuck Todd, Paul Waldman provocatively observed that many in the media felt the Clintons “got away with something” in the 1990s. The bad coverage of 2016 was, in part, a retroactive vindication of the bad coverage of Whitewater and Lewinsky. End FN

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.” —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

• 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?” —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 likely the Huma Abedin–Clinton emails were anything but duplicates.

And so it was that Emailgate began just as it ended—with dubious reporting by The New York Times. The first post-truth election was seeded by this problematic piece—the germ from which twenty months of insinuation would bloom.

📆 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. Lanny 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 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.

📰 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 Clinton campaign press secretary Brian Fallon. Earlier in the evening, Schmidt had reached out with what Fallon described as a “tentative inquiry”—asking general questions about Clinton’s email practices and whether the campaign had heard anything from DOJ.

Now, his tone had shifted—from exploratory to assertive. Schmidt claimed the Times had received a “separate tip” that two Inspectors General had sent a criminal referral to the DOJ regarding 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 IGs themselves. But Schmidt gave no indication that this contradiction was forthcoming. Nor had he seen the memo. Fallon pressed him: Had he asked to see the document? Schmidt gave no answer.

Fallon suspected the leak came from Capitol Hill—possibly someone connected to the House Benghazi Committee, which Schmidt had previously covered:

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

Meanwhile, Fallon gathered senior campaign 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 signals—leaks, chatter, institutional murmurs.

But Fallon still trusted Schmidt to follow journalistic norms. 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.

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.”

In three words, the story was already live.

The Times had published without verifying the document, without reconciling sources, and without giving the Clinton campaign a chance to respond—in direct contradiction to its own promise.

“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 on. I did not verify the tip that would upend a presidential election.

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, more than ten years after the Times’ July 23 fiasco.

Back to 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. Schmidt had promised a call before publication. Instead, Fallon discovered 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 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.

But the damage was done.

Rush to publish. Rush to confirm. Rush to distort.

🕛 MIDDAY JULY 24: INSTITUTIONAL BACKTRACK

By noon, the fallout had begun. Both the 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 wasn’t 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 State, FBI, and the Intelligence Community to sort it out.[⁴]

So what was the breaking news about? Why the urgency? Why was this framed as criminal when all parties involved now stated otherwise?

💥 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 broadcasts, social media feeds, and front pages across the country. The correction—if it can be called that—was tepid and buried. Far fewer saw it than the original headlines.

Even the Times’ own public editor later admitted fault:

• The reporters had not seen the memo.
• They relied on 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.

🧠 V: Narrative Momentum and the Illusion of Neutrality

The Times’ final July 24 article did not begin with a correction—it buried it. Not until paragraph seven did the paper acknowledge the key fact that Clinton’s emails “were not marked classified.”

“If she received them, it is not clear that she would have known that they contained government secrets…” — NYT, July 24, 2015

This isn’t journalism. It’s selective framing. It casts Clinton as guilty of something—without ever specifying what.

The piece then introduced the language that would define the Emailgate narrative through Election Day:

“Irrespective of terminology, the referral raises the possibility of a Justice Department investigation… Mishandling classified information is a crime.”[⁷]

“Irrespective of terminology” functioned as a narrative override—a dismissal of precision, legality, and fact. Yet the distinction at issue was not semantic: it was the line between routine classification dispute and criminal misconduct. The Times collapsed it into possibility and innuendo.

As Davis notes, this language wasn’t hypothetical—it was preemptive framing. The notion that Clinton was guilty had already taken hold. The narrative became protean: when one premise failed, another emerged.

Comey’s infamous July 5 press conference—during which he cleared Clinton—still left 60% of poll respondents believing she should’ve been indicted. The damage was cultural, not just political.

Even Chris Hayes, whose 2019 commentary rightly called Emailgate “the most ridiculous story of 2016,” had once asked Clinton, in a 2016 interview:

“Do you worry you will be indicted?”

It was the final question of the segment—leaving viewers with the impression that even a liberal anchor believed indictment was a real possibility. In reality, it had always been remote. But the narrative had become so pervasive that even sympathetic voices echoed its logic.

This is why the best the media could come up with was that her email setup was “unusual”—a term that admitted it wasn’t illegal.

🕵️ SECTION VI: July 10, 2015 — “Matter” vs. “Investigation” Again

Emailgate as an Indictment in Search of a Crime

As discussed above, Comey’s moral freakout over “matter vs. investigation” was never credible. When Lynch first proposed calling it a matter, he didn’t object. His “queasiness,” his tingling “spider sense,” only emerged retroactively.

Nor was Comey or Randall Coleman’s “shock” at Clinton not being the subject of the investigation believable. After all, Comey opened the matter himself.

This brings us to July 10, 2015—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 was never revised. Clinton never became the subject.

Davis writes:

“The memo is from ‘FBIHQ, Counterespionage Section,’… FBI director James Comey himself presumably authorized the opening of this criminal investigation of Hillary Clinton… Although her name is redacted, there are many indications that she is the subject… The investigation was designated as a ‘Sensitive Investigative Matter’ due to a connection to a current public official, political appointee or candidate.” —Davis, Location 849–859

The memo synopsis:

“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.”

But this gets to the central thesis of the chapter: Emailgate should never have been opened. They lacked probable cause.

The “specific articulated facts” in the 811 referral? There was just one. And as Davis points out, an 811 referral doesn’t typically lead to a criminal investigation.

“Often an 811 referral merely advises the need for a review by the FBI’s noncriminal counterintelligence division… Experts say such referrals are routine and often do not lead to much.” —Los Angeles Times, via Davis

A source close to McCullough confirmed:

“McCullough never intended his submission to the FBI on July 6 to be characterized as a ‘criminal referral,’ because it was not.” —Davis, Location 859

Davis also critiques McCullough’s rationale. While McCullough clarified that it wasn’t a criminal referral, he claimed the security referral was necessary to pressure State into allowing Intel Community and FBI participation in the FOIA review.

But this justification was itself dubious. As Davis notes, McCullough’s role helped trigger the July 23 media fiasco—the day Trump won the 2016 election.

❓ Was There Probable Cause?

The argument here is clear: no.

It was never likely there would be evidence to convict Clinton. Comey himself later admitted this in his book. So why open the investigation at all?

Because Emailgate was an indictment in search of a crime. And the crime was never found—because it never existed.

🧨 SECTION VII: The Absence of Predicate Facts

Emailgate as an Indictment in Search of a Crime

To open a criminal investigation, the FBI needed—at minimum—a single articulable fact.

But the July 10 memo offered only this:

“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.” —Davis, Location 879–890

This single fact did not meet the FBI’s own criteria. The email lacked classified markings, and without those, Clinton could not be said—even “possibly”—to have committed a crime. The absence of markings meant the FBI had no basis for establishing criminal intent.

There was no room here for a hunch. No room for supposition. No legal justification for rifling through 30,000 emails on the off-chance that something might be incriminating.

Emailgate became a 15-month fishing expedition—a probe launched not on evidence, but on possibility. It was the opposite of due process. The opposite of presumption of innocence. And wholly lacking in probable cause.

Even the FBI’s own memo header betrayed the weakness of its foundation:

“Potential Compromise of Classified Information.” —Location 901

Potential—not actual. They did not have conclusive evidence. They had a theory.

🕵️ McCullough’s Referral and the Illusion of Neutrality

Davis argues persuasively that McCullough’s claim of neutrality is suspect.

According to a source close to him, McCullough was frustrated that the State Department resisted allowing Intel Community colleagues to participate in the FOIA review. He claimed that had State cooperated, he wouldn’t have needed to send the referral—or at least not in the form he did.

“His referral, his source says, to the FBI would have been more benign… He even speculated… that he might not have needed to send any referral to the FBI had there been full participation.” —Davis, Location 949

McCullough feigned innocence: If only State had cooperated…

He insisted he wasn’t making judgments about classified information—just passing along the views of Intel Community experts. But Davis is right to be skeptical.

McCullough had served as a Senior FBI official under Louis Freeh—a notoriously anti-Clinton partisan who once forced President Clinton to submit to a urine test at a black-tie gala.

And McCullough gave his referral to the GOP-led House Benghazi Committee. He could hardly claim to be “shocked, shocked” when his anti-Clinton memo leaked from a Republican-controlled body.

“State had plenty of reason to doubt that McCullough and some members of the Intelligence Community were neutral arbiters in reviewing Clinton’s emails.” —Davis, Location 968

🎯 The Determination to Investigate

Ultimately, Davis is exactly right: Comey and Friends were going to open a criminal investigation by hook or by crook.

Comey had sent Martha Stewart to prison in the late 1990s despite her having committed no underlying crime. He knew how to build a case on process violations—even when the substance was absent.

“Even had McCullough not sent any referral… 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.” —Davis

They seemed determined to open the investigation regardless of their own rules.

🧾 Final Verdict

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

The memo lacked predicate facts. The referral was mischaracterized. The investigation was launched on speculation. And the damage—political, cultural, institutional—was incalculable.