329 Was There Probable Cause 2.0

Probable Cause or Political Cause? The Manufactured Foundations of Emailgate

From the moment Emailgate began, it mirrored the way it ended—with James Comey substituting personal moral judgments for DOJ protocol. As the Inspector General would later put it: insubordination. That, and the weasel-worded framing of Dean Baquet’s New York Times, helped set the stage for one of the most overblown—yet, in retrospect, profoundly harmful—political pseudo-scandals in modern memory.

Let’s Start from the Beginning: Was There Ever Probable Cause?

Was there even probable cause for the email probe in the first place? From the outset, confusion reigned: was this a criminal investigation into Hillary Clinton herself, or just a procedural review of State Department email security and recordkeeping practices?

It appears the original report that Clinton was under investigation was a mistake. And despite Comey’s much-quoted “queasy” reaction to Loretta Lynch calling it a “matter” rather than an “investigation,” the facts remain clear: Clinton was never formally the subject of the Midyear Exam investigation. This was, in essence, a criminal investigation without a subject.

Rewriting the Narrative: The White House Speaks Out

Yet, Comey and his team became apoplectic when Obama’s Press Secretary, Josh Earnest, offered an accurate response to whether Clinton would be indicted (January 2016):

“That will be a decision made by the Department of Justice and prosecutors over there… Based on what we know from the DOJ, it does not seem to be headed in that direction.”

This statement was factually accurate and appropriately cautious. Yet, in the twisted logic of Emailgate, even accurate statements by the Obama White House or the Clinton campaign were seen as interference—or worse, obstruction.

But the FBI’s reaction to even the mildest of White House commentary reveals something deeper—and darker.

Flashback to October 11, 2015: President Obama appears on 60 Minutes, calls Clinton’s email use a “mistake,” but adds it “did not pose a national security problem” and was being “ginned up” in the heat of a presidential campaign. This, too, was demonstrably true. Two days later, Press Secretary Josh Earnest reiterated that Obama’s comments were based on public information, not on any inside knowledge of the FBI investigation.

And yet—enter two senior FBI officials who had been central in the early rollout of the Emailgate investigation and had since left the Bureau by 2016: former Executive Assistant Director John Giacalone and former Assistant Director Randy Coleman. Each erupted in outrage. Giacalone told the DOJ Inspector General:

“We open up criminal investigations. And you have the President of the United States saying this is just a mistake…. That’s a problem, right?”

Coleman was even more explicit in his indignation:

“[The FBI had] a group of guys in here, professionals, that are conducting an investigation. And the…President of the United States just came out and said there’s no there there.”

What these comments make clear isn’t just their discomfort with Obama’s accuracy—it’s their entitlement to a narrative of criminality. The idea that someone—especially a sitting president—might downplay the scandal they were so committed to amplifying was viewed not as correction, but sabotage.

This wasn’t the reaction of dispassionate public servants. This was the mindset of officials emotionally—and perhaps politically—invested in a particular outcome. And while Giacalone and Coleman had officially left the Bureau in early 2016, their influence lingered: they helped shape the tone and assumptions of Midyear from the start.

Sally Yates and the Early Stages of Emailgate

Interestingly, these same two former agents—Giacalone and Coleman—had played an aggressive role in initiating the probe. On July 23, 2015, just thirteen days after the Midyear Exam began, they hand-delivered a handwritten note to Deputy Attorney General Sally Yates informing her of the investigation.

This was, remarkably, the third time in thirteen days that the FBI had briefed Yates on the matter. As Lanny Davis later speculated, the intensity and urgency behind the early outreach—especially through handwritten notes—suggests that James Comey himself was driving the agenda from the background.

By early 2016, both Giacalone and Coleman had left the Bureau. But that didn’t mean they were truly out of the picture. Many of the damaging leaks and conspiratorial buzz that would plague the Clinton campaign came from individuals described as “former FBI agents.” In reality, some of these “retirees” continued showing up at the Bureau—especially the New York field office, dubbed “Trumpland”—to complain about Clinton and shape the narrative.

The story doesn’t end there. In 2018, with Clinton long out of public life, the Republican-controlled Congress launched yet another inquiry into her emails—this time, essentially investigating a private citizen. One of their star witnesses? John Giacalone.

During his testimony, he was asked:

“When you retire from the FBI, it’s my understanding that you turn your equipment in, surrender your badge and gun, and they walk you to the door. You can’t get back into the building without an escort. Is that correct?”

The concern was clear: was Giacalone really a “former” agent—or part of a revolving door of influence that blurred the line between official duty and political agenda?

“Matter Not Investigation”: Truth as Heresy

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

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

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

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

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.

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.”

And here again, our friend Randy Coleman—previously encountered erupting over Obama’s factual statements and hand-delivering that infamous handwritten note to Sally Yates—reappears in telling fashion. As Coleman put it:

“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.”

But just how plausible is Coleman’s surprise? Given his early, active role in launching the Midyear Exam—alongside his emotional investment in portraying it as a legitimate criminal matter—his professed shock at the UNSUB designation seems more performative than genuine. Coleman had hand-delivered handwritten briefings to Sally Yates. He knew the architecture of this investigation from the ground up. He was, after all, the Assistant Director of the Counterintelligence Division, working closely with Deputy Director Mark Giuliano and directly reporting up to Comey. For someone so integral to the foundation of the probe to later claim ignorance about its basic framing is, at best, implausible.

And if that seems implausible from Coleman, consider this: even Comey himself, in his OIG interview, claimed he was unaware the investigation had an UNSUB designation. He stated:

“Clinton was the subject of the Midyear investigation.”

Similarly, in his book A Higher Loyalty, Comey wrote that one question the investigation sought to answer was what Clinton was thinking “when she mishandled that classified information.” Notably, he also conceded that it was never likely the FBI could prove Clinton’s intent—an essential prerequisite for criminal prosecution under the relevant statutes. And here’s the crux: if Comey knew from the beginning that the chances of proving intent were minimal, then the basis for probable cause—especially a criminal one—was flimsy at best.

This, once again, casts serious doubt on whether there was ever sufficient probable cause for opening a criminal investigation at all.

So we’re left with a strange and revealing pattern: two of the most influential figures in the early stages of Midyear—Coleman and Comey—each claiming surprise that Clinton was never a formal subject. Both relied on the narrative of a focused criminal inquiry. And both now assert they didn’t realize that, on paper, no subject was ever designated at all.

That’s not oversight. That’s narrative maintenance.

…[continued]…