[This post was also published at The American Lawyer on January 13, 2017.]
The Justice Department’s Inspector General is looking into James Comey’s disclosures of the Clinton email investigation. But I’m not confident that he’ll reach the most important issue in that debacle: the underlying leaks that probably contributed to Comey’s actions. That will require Jeff Sessions to pick up the baton.
During his Senate confirmation hearings on January 10, Senator Sessions (R-AL) assured colleagues that he’s not Donald Trump’s lackey. Here’s his first test: Find out who at the FBI leaked information to Rudy Giuliani during the final weeks of the campaign.
Those leaks probably forced FBI Director James Comey into the corner producing actions that cost him and the Bureau integrity for years to come. They may have swung the election to Trump, too, but done is done. It’s not about re-litigating the last election. As United States attorney general, Sessions has to assure the integrity of the next one.
Roll the Tape
In October, polls showed Trump losing so badly that he was likely to cost Republicans the Senate. Three months earlier, Director Comey had announced that no reasonable prosecutor would bring criminal charges against Hillary Clinton for her use of a private email server while she was secretary of state. But in an unprecedented press conference, he’d opined about her recklessness anyway. That kept Trump’s “Crooked Hillary” rally theme alive. Even so, as summer turned to fall, the email-gate story was losing its legs.
On October 25, Rudy Giuliani appeared on Fox & Friends. When a host asked whether him Trump had anything other than “some more inspiring rallies” planned for the remaining 14 days of the campaign, Giuliani chuckled.
“Yes,” he grinned.
“What?” a co-host asked.
“You’ll see,” Giuliani answered in a full-throated laugh. “We’ve got a couple of surprises left. I call them surprises in the way we’re going to campaign, to get our message out there. Maybe in a little bit of a different way. You’ll see, and I think it’ll be enormously effective.”
Giuliani then discussed how “all of these revelations about Hillary Clinton, finally, are beginning to have an impact.”
On October 26, Giuliani appeared with Fox reporter Martha MacCallum. As the interview ended, he interrupted her to volunteer, “And I think he’s [Trump] got a surprise or two that you’re going to hear about in the next few days.”
MacCallum tried to conclude the interview, but Giuliani kept pushing: “I mean, I’m talking about some pretty big surprises.”
Finally, MacCallum took the bait.
“I heard you saying that this morning,” she said. “What do you mean?”
“You’ll see,” Giuliani laughed.
Friday, October 28
Shortly after Giuliani’s teasers, Comey violated Justice Department guidelines with a letter informing Congress that the Bureau was reviewing additional evidence relating to the Clinton email investigation. Conservative radio talk show host Lars Larson interviewed Giuliani.
“There’s a kind of revolution going on inside the FBI about the original [July] conclusion being completely unjustified and almost a slap in the face of the FBI’s integrity,” Giuliani said. “I know that from former agents. I know that even from a few active agents who, obviously, don’t want to identify themselves.”
Later, Giuliani backpedaled.
“I don’t know anything about leaks from the FBI or the Justice Department,” he told CNN’s Wolf Blitzer. “I haven’t talked to anybody in the FBI or Justice Department.”
When Blitzer confronted Giuliani with the Lars Larson interview, Giuliani responded, “Well, the information I’ve been getting is from former FBI agents. If I did say that, that was wrong.”
But Giuliani’s distinction doesn’t help the Bureau. Whether the leaks came directly from active agents, or whether active agents leaked to retired agents who then went to Giuliani, they originated within the FBI. In addition to professional responsibilities of confidentiality under the ABA Standards on Prosecutorial Investigations, agents sign employment agreements that have sharp non-disclosure teeth. Certain FBI personnel working on the Clinton investigation also signed a “Case Briefing Acknowledgement” in which they agreed, “[D]ue to the nature and sensitivity of this investigation, compliance with these restrictions may be subject to verification by polygraph examination.”
Wednesday, November 2
Less than a week before Election Day, another FBI leak produced a new bombshell. Bret Baier of Fox News cited “two separate sources with intimate knowledge of the FBI investigations” for what turned out to be a bogus report. He said that the Clinton investigations would likely to lead to an indictment. Trump milked that one. As rally crowds responded with “Lock her up” even more loudly than before, some members of the mob added, “Execute her!”
By Thursday, Baier admitted that he’d spoken “inartfully” about the false FBI report. By Friday, he was in full retreat: “That just wasn’t inartful, it was a mistake and for that I’m sorry.”
When MSNBC’s Brian Williams grilled campaign manager Kellyanne Conway on whether Trump would stop using the earlier false report in his stump speech, she smiled and said, “Well, the damage is done to Hillary Clinton…”
Sunday, November 6
Then Comey sent another letter confirming that his earlier missive had been a false alarm. But by then, early voters had cast 40 million ballots — almost 30 million of which came after his October 30 letter. Meanwhile, Trump had spent the week telling crowds that Clinton’s problems were “bigger than Watergate” and that criminal investigations into her dealings would continue for years into her presidency.
When confronted with Comey’s latest exoneration of Clinton, Kellyanne Conway kept her smile as she told MSNBC, “We have not made this a centerpiece of our messaging… This has not been front and center of our campaign.”
If all of this had happened to Trump, hearings in the Republican Congress would have begun immediately after the election. Rudy Giuliani would be under oath and senators would be asking him to name his FBI sources — active or retired.
In fact, Trump said that he wanted a full-scale investigation into leaks of the U.S. intelligence report on Russian hacking. The ones that emanated from the FBI are far more consequential to the future of American democracy.