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FBI Director James Comey said in a hearing before the Senate Judiciary Committee on Wednesday that he treated the bureau’s probe into Hillary Clinton’s private email server and its investigation into President Donald Trump’s ties to Russia “consistently,” and “under the same principles.”
Comey was grilled by the committee’s Democrats about why he decided announce, 11 days before the 2016 election, that the FBI was revisiting the Clinton email investigation but did not reveal that the FBI had also been investigating possible collusion between Trump associates and Russia.
“Americans across the country have been confused and disappointed by your judgment in handling the investigation into Secretary Clinton’s emails,” Democratic Sen. Patrick Leahy told Comey on Wednesday.
“On a number of occasions, you told us to comment directly and extensively on that investigation. You even released internal FBI memos and interview notes. … But you said absolutely nothing regarding the investigation into the Trump campaign’s connections to Russia’s illegal efforts to help elect Donald Trump. Was it appropriate for you to comment on one investigation repeatedly and not say anything about the other?”
Comey replied that, “With respect to the Russian investigation, we treated it like we did with the Clinton investigation. We didn’t say a word about it until months into it and then the only thing we’ve confirmed so far about this is the same thing with the Clinton investigation. That we are investigating.”
He also said he felt compelled to speak out about the renewed look into Clinton’s email server because he had previously testified under oath that the Clinton investigation was wrapped up. He hadn’t, however, publicly commented on the Trump investigation yet.
The FBI has the right, and is normally expected, to not disclose the existence of an ongoing investigation. Comey circumvented that policy in both the Clinton and Trump probes – albeit months apart – citing “unusual circumstances” such as a high degree of public interest in the cases due to the presidential election.
“Disclosure of an investigation, unless it’s classified, is triggered by the end of the investigation, not the beginning,” said Scott Olson, a 35-year FBI veteran who served as the bureau’s assistant special agent in charge of counterintelligence operations. “Usually, disclosure is by announcement of an indictment or announcement that no charges will be filed.”
“While the public often learns of investigations before they are concluded, those stories are virtually all leaks or speculation,” Olson added. “They are not official statements from agency heads like Comey.”
While Comey did not make an official statement about the Clinton probe until July 2016 – when he announced in a rather unprecedented press conference that the bureau would not be recommending criminal charges – he confirmed to reporters in October 2015 that the bureau was investigating Clinton’s use of a private email server while she was secretary of state.
In contrast, Comey declined to publicly confirm the existence of an investigation into the Trump campaign’s potential ties to Russia until March 2017 – eight months after the bureau first opened the probe, and four months after the election in which Trump defeated Clinton, who was the Democratic nominee for president.
‘We don’t confirm or deny investigations’
By late August 2016, top US lawmakers had already been briefed by then-CIA Director John Brennan about suspicious “interactions” between Trump associates and suspected or known Russian operatives, according to the Guardian. Those interactions had reportedly been picked up by foreign intelligence services and handed over to their American counterparts for further investigation.
Because the CIA deals exclusively with foreign intelligence, however, Brennan did not have the authority to announce the evidence the agency apparently had of the communications. So one of the lawmakers Brennan had briefed on the matter, Democratic Sen. Harry Reid, wrote an open letter to Comey asking for the FBI to investigate “the evidence of a direct connection between the Russian government and Donald Trump’s presidential campaign.”
“This matter should be fully investigated and the investigation made public,” Reid wrote on August 27, 2016.
The letter caught the attention of Democrats on the House Judiciary Committee, who asked Comey during a hearing on September 28 whether the FBI was investigating “the activities of Mr. Trump or any adviser to the Trump campaign with respect to any line of communication between the campaign and the Russian government.”
Comey replied that “we don’t confirm or deny investigations.”
Democratic Rep. Jerry Nadler pressed Comey further, addressing what he saw as a discrepancy between the bureau’s handling of the accusations against Clinton and Trump.
“The FBI… acknowledged that it was investigating Secretary Clinton’s use of a private email server, and that was while the investigation was still ongoing,” Nadler said. “Now you can’t comment on whether there is an investigation [into Trump]. Is there a different standard for Secretary Clinton and Donald Trump? If not, what is the consistent standard?”
Comey replied that “our standard is we do not confirm or deny the existence of investigations.” But he said “there is an exception for that: when there is a need for the public to be reassured; when it is obvious it is apparent, given our activities, public activities, that the investigation is ongoing. But our overwhelming rule is we do not comment except in certain exceptional circumstances.”
“In the matter of the email investigation, it was our judgment- my judgment and the rest of the FBI’s judgment that those were exceptional circumstances where the public needed transparency,” Comey added.
Four months after the election, Comey ultimately came to the conclusion that the Trump-Russia investigation was an “exceptional circumstance” where transparency was in “the public interest.”
‘The public has a right to know this information’
By late September, when Comey testified before the House Judiciary Committee, the election had already been rattled by several Russia-related events that often dominated 24-hour news cycles.
WikiLeaks had begun its steady release of emails stolen by Russian hackers from the Democratic National Committee; Carter Page, an early foreign policy adviser to the Trump campaign, had traveled to Moscow and given a speech that was highly critical of US foreign policy; Paul Manafort had been ousted as Trump’s campaign manager amid questions about his work for a pro-Russia political party in Ukraine; and Trump confidante Roger Stone had boasted of his foreknowledge of further hacks that would target Clinton’s campaign chairman, John Podesta.
Comey’s decision to inform Congress on October 28 that the FBI would be revisiting the Clinton investigation – while still avoiding comment on whether the bureau was pursuing an investigation into Trump and Russia – was evidently the last straw for Reid.
In an open letter dated October 31, Reid accused Comey of breaking the law by making public comments about an open investigation so close to the election, and drew a contrast to how Comey was handling allegedly “explosive information about close ties” between Trump and the Kremlin.
“In my communications with you and other top officials in the national security community, it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisers, and the Russian government – a foreign interest openly hostile to the United States, which Trump praises at every opportunity,” Reid wrote.
“The public has a right to know this information,” Reid said. “I wrote to you months ago calling for this information to be released to the public.”
That letter unleashed a media frenzy, as reporters tried to pin down exactly what “explosive information” Reid was talking about and whether the FBI had treated the candidates differently.
But Comey continued to refuse – even through January and in closed briefings for member of Congress – to clarify whether the bureau was investigating Trump’s ties to Russia.
Starting the night before Trump’s inauguration, The New York Times and The Washington Post began publishing a steady stream of reports sourced to anonymous intelligence officials that the FBI was investigating intercepted communications between Trump associates and Russians. Further reports surfaced, moreover, about previously undisclosed contacts between some of those associates – like Carter Page and former national security adviser Michael Flynn – and Russian ambassador Sergey Kislyak.
On March 5, Trump alleged that the Obama administration had ordered intelligence officials to wiretap Trump Tower amid allegations that his campaign was colluding with the Kremlin. Comey was reportedly furious about the accusation, and pressured the Justice Department to publicly rebuke Trump’s claim.
The DOJ didn’t do that. But it did authorize Comey to confirm to Congress in an open hearing on March 20 that the FBI was “investigating the nature of any links between individuals associated with the Trump campaign and the Russian government, and whether there was any coordination between the campaign and Russia’s efforts.”
‘This is one of those circumstances’
Much like his justification for telling Congress that the FBI was revisiting the Clinton email probe, the reason Comey gave for disclosing the investigation into Trump’s Russia ties was that it was “in the public interest.”
“As you know, our practice is not to confirm the existence of ongoing investigations, especially those investigations that involve classified matters,” Comey told the House Intelligence Committee in March. “But in unusual circumstances where it is in the public interest, it may be appropriate to do so as Justice Department policies recognize. This is one of those circumstances.”
The difference, as many have noted, is that Clinton’s “unusual” case was revealed before the election, while Trump’s was not revealed until four months after.
“It’s still very unclear why the FBI’s treatment of these two investigations was so dramatically different,” Sen. Dianne Feinstein said on Wednesday. “With the Clinton email investigation, it’s been said that ‘exceptional circumstances’ … required public comment from the FBI. However, I can’t imagine how an unprecedented, big, bold, hacking interference in our election by the Russian government did not also present exceptional circumstances.”
Comey insisted that he treated both investigations “consistently and under the same principles.” He also noted one difference between the two investigations – that in the case of the Clinton investigation, he’d testified under oath that it was finished before the FBI decided to revisit it.
“I commented, as I explained earlier, on October 28 in a letter that I sent to the chair and ranking [members] of the oversight committees that we were taking additional steps in the Clinton email investigation because I had testified under oath repeatedly that we were done – that we were finished there,” Comey said.
While Comey didn’t confirm the existence of the Trump investigation until after the election, reports about it did surface.
On October 31, The New York Times published a story about how the FBI had spent much of that summer examining the potential ties between Trump’s associates and the Kremlin.
The Times reported that the Clinton campaign had been pushing the FBI to discuss the probe publicly, or at least confirm that it was ongoing, as Comey had a year prior in the case of Clinton’s email server. The FBI ultimately declined to do so, and law enforcement officials told the paper that the bureau had been unable to establish a “clear link” between Trump associates and Russia.
The Times’ piece was nuanced, leaving room for questions about who the FBI was investigating – Paul Manafort, computer data between Trump Tower and a Russian bank – and why. But its headline was decisive: “Investigating Donald Trump, F.B.I. Sees No Clear Link to Russia,” it read.