The backdrop to Hillary Clinton’s email scandal
On
September 11 2012, Islamic militants attacked the U.S. embassy in Benghazi
Libya killing four Americans, including the U.S. ambassador to Libya,
Christopher Stevens. Hillary Clinton, a member of President Obama’s cabinet,
was the Secretary of State at the time. The attack and its aftermath set in
motion an intense congressional investigation into who might be held
accountable for it. Hillary Clinton took responsibility for failing to secure
the embassy, though as she testified, security professionals in the State
Department had handled the specific security requests pertaining to Benghazi.
As she said, “I didn't see those
requests. I didn't approve them. I didn’t deny them.”
This
disclaimer did not satisfy congressional Republicans. Investigating further,
the House Select Committee on Benghazi asked to see Clinton’s emails and
records “to see what she and
others know about the deadly attack and the response by the U.S. government.”
This was when it became public knowledge that Clinton had used a private email
server rather than the State Department email system to conduct government
business. The focus on Clinton now expanded to include her careless if not
illegal use of a private email system for sending and receiving classified
information. After all, she had exposed such information to potential hacking
or to viewing by people without security clearances.
On
December 14, 2014 “Clinton’s lawyers delivered 12 boxes filled with printed
paper containing more than 30,000 emails while withholding 32,000 emails deemed
to be of a personal nature.” As ABC news reports, Clinton’s lawyers
asked her, “ ‘Do you want us to keep the personal emails?' And she said, 'I
have no use for them anymore.' It's then that they issued the direction that
the technical people delete them.” In total, more than 30,000 emails were
deleted, because as Clinton argued, they were personal and private “about
matters that I believed were within the scope of my personal privacy.” On March
27, 2015 Republican representative Trey Gowdy suggested that Clinton might in
fact be covering up emails that, were they available, would show that she
willfully violated security protocols. As he noted, Secretary
Clinton, “unilaterally decided to wipe her server clean and permanently delete
all emails from her personal server."
On
July 4, 2015 the Inspectors General of the
Intelligence Community and the State Department sent a note to Congress’
intelligence oversight committees that it had found classified emails in a
limited sample of emails Clinton had submitted as part of the Benghazi
investigation. “The report by the inspector general’s office concludes that
Clinton, the Democratic front-runner for president, handled email in a way that
was “not an appropriate method” for preserving public records and that her
practices failed to comply with department policy. The review found that
Clinton, who had said her system was secure, also “never provided security
details to agency officials responsible for safeguarding sensitive government
information.” The presenting question became, was
Clinton guilty of violating procedures that governed how classified information
should be handled, and did her behavior warrant criminal prosecution?
Comey’s
announcement on October 28
These events formed the backdrop for an
extraordinary moment in U.S. political history. On October 28, eleven days
before the 2016 presidential election, in which Hillary Clinton lost to Donald
Trump, the head of the FBI, James Comey, announced that he was reopening his
investigation into Clinton’s handling of her emails. He had closed the
investigation in July of that year, finding that she had not intended to
jeopardize state secrets by using a private email server. He added
though, that she and her colleagues “were extremely careless in their handling of
very sensitive, highly classified information.”
But in October, the FBI found, in an
investigation entirely unrelated to Clinton, that a close Clinton associate had
backed up thousands of Clinton's emails on her husband’s computer. FBI
investigators in New York City suspected that this trove of emails might
contain the 30,000 missing ones, or as Comey later testified
to Congress, “We may be finding the golden missing e-mails that would change
this case.”
Nate Silver, one of the
premier political pollsters in the United States, argues, in a carefully
examined study of the data, that Comey’s October announcement tipped a close
election in Donald Trump’s favor. As he writes, “The impact of Comey’s letter (as
opposed to other factors-LH) is comparatively easy to quantify. At a
maximum, it might have shifted the race by 3 or 4 percentage points toward
Donald Trump, swinging Michigan, Pennsylvania, Wisconsin and Florida to him,
perhaps along with North Carolina and Arizona. At a minimum, its impact might
have been only a percentage point or so. Still, because Clinton lost Michigan,
Pennsylvania and Wisconsin by less than 1 point, the letter was probably enough
to change the outcome of the Electoral College.”
Two days after Comey's October announcement,
99 attorneys general, former federal prosecutors and high-ranking Department of
Justice officials from Republican and Democratic administrations released a
letter castigating Comey severely. As they wrote, “Justice Department officials are instructed to refrain
from commenting publicly on the existence, let alone the substance, of pending
investigative matters, except in exceptional circumstances and with explicit
approval from the Department of Justice officials responsible for ultimate
supervision of the matter. They are also instructed to exercise heightened
restraint near the time of a primary or general election because, as official
guidance from the Department instructs, public comment on a pending
investigative matter may affect the electoral process and create the appearance
of political interference in the fair administration of justice.” They argued
that Comey’s unprecedented decision left them “astonished and perplexed” and
that his announcement “breaks with longstanding practices followed by officials
of both parties in past elections.”
Yet Comey,
acknowledged by everyone to be a person of great integrity, defends his
decision with great conviction. As he later testified to a congressional committee, “I had to tell
Congress that we were taking these additional steps. I prayed to find a third
door. I couldn't find it. Two actions speak or conceal. I don't think many
reasonable people would do it differently than I did, no matter what they say
today. If you were standing there staring at that on October 28, would you
really conceal that? So I spoke. Again,
the design was to act credibly, independently and honestly so the American
people know the system's not rigged in any way. And that's why I felt transparency
was the best path in July.”
The prospect of a rigged system
One important
question is what accounts for this discrepancy. What accounts for Comey's
conviction, for his experience of inevitability, as if he had no choice but to
reveal he was re-opening the investigation, when compared to his colleagues’
equally strong conviction that his decision was unprecedented and deeply
perplexing?
His reference to the
belief that the “system” might be rigged provides one clue. During the election
Trump introduced the trope that the election might be rigged. This was one
variant of his general attack on Clinton as representing privileged elites who
were above the law. This narrative was powerfully stimulated by the right wing
critique that the Clinton Foundation itself was a quintessential criminal
enterprise through which Bill Clinton made a great deal of money while
providing rich individuals and heads of states privileged access to Hillary
while she was secretary of state. Founded in 1997 and focused on humanitarian
relief efforts, the Foundation had raised some two billion dollars through
2016. Peter Schweizer developed this theme in his book, published in May of
2015, titled Clinton Cash: The Untold Story of How and Why
Foreign Governments Helped Make Bill and Hillary Rich, though he acknowledged that, “We cannot ultimately…prove the links between the money
they took in and the benefits that subsequently accrued to themselves, their
friends, and their associates.”
In addition, as
Bethany Maclean of Vanity Fair reports, FBI Agents,
primarily in New York, “had been trying over the last few years to put together
a case involving financial crimes or influence peddling against the Clinton
Foundation. One knowledgeable source says that agents went to several U.S.
Attorneys' offices, trying to get prosecutors to open a case, before finally going
to the Justice Department’s public-integrity office. This person says that the
agents did not have any facts that would support prosecutors taking further
steps. But angry agents leaked to The Wall Street Journal.” In addition, Ronald Hosko, who was assistant
director of the FBI’s Criminal Investigative Division until he retired in 2014,
told Maclean that a group of agents in the FBI’s New York office were
tremendously frustrated, “that someone [like Clinton] could carelessly traffic in
very sensitive material and walk away unscathed, arrogantly walk away and wait
for her coronation.”
These events suggests that Comey was exposed
to elements of the “rigged” narrative-- that the Clintons were criminals and
that Hillary could not be held accountable -- within the FBI itself. I don't
suggest that Comey in any away allowed this narrative to shape his
fact-finding. His integrity and his commitment to following the truth as he
uncovered it were far too strong. Rather, he could experience within his own
agency the power of the “rigged” narrative to shape beliefs and expectations.
He was sensitized to it in the extreme.
His response to this narrative also shaped
his decision making in the run-up to his first announcement on July 5, when he
told the press that Clinton’s carelessness with her email did not merit a
recommendation for indicting and prosecuting her. (The right wing attacked him
for this on the grounds that the law required only that he find negligence not
intent. But Comey was quite clear in his later Congressional testimony that 50 years of
precedent and practice required intent.) [1]
The backdrop for his July 5 announcement is
important to consider. On June 25, Loretta Lynch, the Attorney General of the
United States, and Bill Clinton landed by happenstance at the Phoenix airport
at about the same. “Lynch was in Phoenix for a routine meeting with local police officers, while
Clinton was finishing up a fund-raiser for his wife. Seeing Lynch’s airplane,
Clinton walked across the tarmac and entered it to talk with her. Lynch’s staff had no chance to intervene: they had already gotten off the
plane. Clinton just wanted to say hello. But he then proceeded to talk to her
for nearly half-an- hour about his grandchildren, about golf and about travel
according to Lynch.”
Clearly the optics
here were all wrong. The FBI was investigating Hillary. Following normal
procedure, Comey would recommend whether or not she should be indicted. But it
would be up to Lynch as Attorney General to make the final decision. But if a
substantial number of citizens believed that that the system and the election
were rigged, could Lynch, an Obama appointee and a Hillary supporter, credibly
decide “no indictment” and maintain her standing as an impartial judge of the
facts? How could voters be sure that Bill Clinton had not persuaded her, or
even tried to persuade her, to go easy on his wife?
Recounting his
response to this event, Comey told a Congressional committee, “A
number of things had gone on which I can't talk about yet, that made me worry
that the department leadership (Department of Justice headed up by Lynch-LH)
could not credibly complete the investigation and decline prosecution without
grievous damage to the American people's confidence in the justice system. And then the capper was -- and I'm not
picking on the attorney general, Loretta Lynch, who I like very much -- but her
meeting with President Clinton on that airplane was the capper for me, and I
then said, you know what, the department cannot, by itself, credibly end this.”
Institutions versus persons
Yet in announcing to
the press and public that he would not recommend indicting Clinton, Comey
contravened deeply held convictions about the relationship between the FBI and
the Department of Justice. In a memo Rod Rosenstein, the current Deputy
Attorney General, wrote on May 8, 2017-- the day before President Trump fired Comey--
that, “Almost everyone agrees that the Director (Comey) made
serious mistakes; it is one of the few issues that unites people of diverse
perspectives. The Director was wrong to usurp the Attorney General’s authority
on July 5, 2016, and announce his conclusion that the case should be closed
without prosecution. It is not the function of the Director to make such an
announcement. At most, the Director should have said the FBI had completed its
investigation and presented its findings to federal prosecutors.”
Rosenstein goes on to note that Comey
made his announcement without the authorization of duly appointed Justice
Department leaders, that in calling Clinton extremely carless he was
incorrectly releasing derogatory information, that in later defending his
performance on the grounds that he was revealing the truth of the situation he
was commandeering the role of a jury and judge. As an investigator, Rosenstein
argued, Comey’s sole role was to determine whether there was sufficient
evidence to justify a federal criminal prosecution.
Rosenstein’s memo expresses powerfully
what we can call an institutional
perspective. The latter is based upon the idea that precedents, role
configurations and the formal distribution of authority create ethical
obligations that require certain conduct while disallowing others. This
perspective is based on the underlying idea that there is certain “wisdom” to
our inherited practices, honed as they have been by the generations that have
preceded us. These practices and the institutional design that embeds them are good enough; ensuring justice and fair
play not every time but most of the time. When respected they protect us from
the vicissitudes of personal prejudice, ambition, and a person’s desire for
fame, sex, money and standing.
One can see the limits of the
institutional perspective when in fact institutions are themselves deeply
corrupted. One is reminded of extreme situations, for example the case of
Dietrich Bonheoffer the German pastor who challenged the Nazi Party’s
legitimacy. Standing against the 1933 rigged elections for protestant church
officials, which the Nazi-party affiliated “German-Christian” movement won, he
founded underground seminaries for pastors opposed to the party. He joined the
German resistance movement, whose members tried to assassinate Hitler in 1944,
and in 1945 he was executed. Under extreme situations courageous people in dark
times have reference to ethical principals that stand against institutions and
draw instead on a their personal relationship to supervening ethical ideals,
for Bonheoffer, his original idea of “costly grace.” The person displaces the institution.
In his testimony to Congress, Comey
evinces the idea of facing extremes. Describing his choice on October 28 to
announce the re-opening of the Clinton email investigation, he says that were
he to “conceal” his decision “down that path lies the death of the FBI as an independent institution in America (my bold). This prospect was so extreme
that Comey, as he told Congress, was willing to violate a deeply held principle
that, “If you can possibly avoid it, you avoid any action in the run-up to an
election that might have an impact. Whether it's a dogcatcher election or
president of the United States.” As Comey notes, “I've lived my entire career
by (this) tradition.”
Strikingly, Rosenstein comes to just the
opposite conclusion, that in announcing his reopening of the investigation into
Clinton’s emails, “the FBI’s reputation and credibility have suffered substantial
damage.” If we assume that Rosenstein and 99 attorneys general and prosecutors
are good-enough assessors of what actions either protect or undermine the
credibility of the FBI, then Comey’s anticipation that the FBI faced its
“death” as an independent institution is not so much extreme as it is grossly
exaggerated. But facing this imagined consequence, it nonetheless makes sense, from Comey’s point of view, that he
should act against precedents and their institutional nexus, and take a stand
as a person following his own ethical compass.
A personal valence?
Some
analysts have speculated that Comey had a personal valence for acting on the
basis of his own ethical instincts even if this meant contravening lines of
authority. This valence would make it more likely that he would interpret
situations as extreme when others might see them as more nearly normal. In the
oft-repeated story, John Ashcroft the Attorney General in the (second) Bush
administration was hospitalized with severe gallstone pancreatitis. Comey was
deputized as Acting Attorney General only several days before “the Justice Department’s regular 45-day legal reauthorization of the secret
N.S.A. surveillance programs was due.”
Comey objected to facets of the program and he told the White house
counsel Alberto Gonzales that unless these elements of the program were changed
he would not agree to its reauthorization. Bush told Gonzales to seek
authorization directly from Ashcroft, and Comey, upon learning of this plan,
raced up
the stairwell of the hospital to beat Gomez to Ashcroft’s hospital room. Comey
told Ashcroft not to sign anything, and when Gomez reached Ashcroft’s bedside
the latter told Gomez, “‘I’m not the Attorney General. There is the Attorney General,” and pointed
at Mr. Comey.’” Bush then decided to reauthorize the program without Comey’s
approval. But after Comey and Robert Mueller, then the head
of the FBI, considered resigning, Bush modified the program to satisfy Comey.
When Obama later appointed Comey to head the FBI he praised Comey saying, “To know Jim Comey is also to know his fierce
independence and his deep integrity… He’s that rarity in Washington sometimes
-– he doesn’t care about politics, he only cares about getting the job
done. At key moments, when it's mattered most, he joined Bob (Mueller) in
standing up for what he believed was right. He was prepared to give up a job he
loved rather than be part of something he felt was fundamentally wrong. As
Jim has said, " ‘We know that the rule of law sets this nation apart and
is its foundation.’ ”
It is a matter of speculation as to whether or not
this event and the subsequent accolades Comey received influenced his
self-concept in a way that distorted his judgment. According to this way of
thinking we would say in psychological terms, that he had a valence toward
taking up the hero role. Indeed, Matt Miller, Comey’s close friend and a
former director of Public Affairs for the Department of Justice told Bethany
Maclean that; Comey believes in the salience of his integrity. “In a way that
creates big blind spots, because he substitutes his judgment for the rules.”
Another said, “He is a man of integrity, and he holds himself to high
standards. But he didn’t see the bigger issue. All he could see was, ‘Will they
question my integrity?’ I think it was his integrity he was worried about, not
the Bureau’s (FBI), and the Bureau’s integrity has suffered a devastating blow
as a result of his decision-making. He would have protected the Bureau by
playing it by the book.” What these close friends are saying is that he was
susceptible to idealizing himself, as opposed to the institutional setting in
which he took up his role.
Abdication
A
psychological valence is like susceptibility. It does not so much trigger a
sequence of events as it is triggered by a situation. One hypothesis is that
Lynch’s response to Bill Clinton’s visit to her airplane was just such a
trigger. Pressed by her poor judgment in accepting Bill’s invitation to talk on
her plane, she announced subsequently in an interview at Aspen that she, “expected to accept” whatever Comey
recommended. This phrase, to my ear, has the hallmarks of passivity and
ambivalence; ambivalence because of the word “expect,” passivity because of the
word “accept” unconditioned by the idea that she would exercise judgment in
either accepting or rejecting his recommendation. After all, from an
institutional point of view the FBI is not authorized to decide whether or not
to prosecute a person. Rather, its role is to make a recommendation to a
Department of Justice attorney who then decides.
To
observers, Lynch chose the worst of both worlds. If she truly felt that her
credibility as an independent judge of Comey’s recommendations was undermined,
she should have recused herself and appointed Sally Yates, her Deputy, as
Acting Attorney general in this matter. Or, if she had the fortitude to
withstand political attacks, and assured by her self-knowledge that she could
review his recommendations objectively irrespective of her figure as a leading
Democrat, she should have exercised her prerogative and told Comey that he
could not contravene practice and announce his conclusions to the press. In
doing so, she may have risked his resigning but that would have been a
political price she paid, a sacrifice to her own standing, in the service of
protecting the institution she represented. As one person close to the event said, “It was an
unfathomable decision to make. Lynch created a situation where the FBI director
could freelance.” Another added, “Lynch was more than happy to have Jim Comey
take responsibility. It was complete and total abdication.”
This
suggests that Lynch enacted just the situation that triggered Comey’s valence
to deciding based on his personal judgment, unconditioned by his role; to
become in effect a hero in a drama of his own making. After all, in her
passivity Lynch was communicating that she could not stand for and represent
the Justice system, which in the wake of the accusations against Clinton, was
in fact under duress. She amplified rather than contained Comey’s anxiety that
it was left up to him to assure Americans that the system was not rigged. And, in
the end he did not convey any recommendation to her. Nor did he tell her in
advance that he was about to make a public announcement about this decision. In
the end, there was nothing for her to “accept.” Instead, he made the decision
himself to not prosecute Clinton, contravening all established practice. This
is what so angered his attorneys general colleagues.
Influencing elections
One
question remains. Why was he so willing to contravene the strong tradition of
never making statements, from his role as FBI director, that could influence
elections? As I have already noted he told a congressional committee, “I've lived my entire
career by the tradition that if you can possibly avoid it, you avoid any action
in the run-up to an election that might have an impact. Whether it's a
dogcatcher election or president of the United States.”
I
have already offered one hypothesis. Comey felt that the cost of people feeling
that the “system was rigged” was greater than the cost of contravening
established practice and potentially influencing an election.
But
I am unsatisfied with this hypothesis for the following reason. Testifying to
this same congressional committee he said that, “It makes me mildly nauseous (my emphasis) to think
that we might have had some impact on the election.” If the thought in that
moment in front of the congressional committee made him mildly nauseous, it
suggests that he did not give this thought much consideration when making the
decision to re-open the investigation. Otherwise, he would have had time to
metabolize the emotions associated with the possibility that he might influence
the election. One simple hypothesis is that he believed, like many others, including
professional pollsters, that Clinton was going to win the election.
A decision tree
I
found it helpful to imagine how Comey would have made his decision if he had in
fact engaged in a systematic examination of his alternatives. Consider the
following diagram
In
this conception of a decision tree,
Comey faced two separate sequences, one if he revealed that he reopened the
investigation, and one if he did not. (It should be noted that at the onset of his reopened investigation Comey believed that he could not complete it until after the election.) The column on the right hand side
represents the final impact on the FBI’s reputation of any particular sequence.
The term “positive findings” means that the newly discovered emails would show
that Clinton knowingly violated security protocols; for example, they contained
a preponderance of classified emails when compared to the original cache. (In
the latter, the FBI had identified 110 out 30,000 that were classified at the
time they were sent.) Such a positive finding could indicate as well that the
lawyers who culled her emails before submitting them to the FBI may have
obstructed justice. “Negative findings” mean that the new cache revealed
nothing more than the original set, which in the end turned out to be the case.
A
perusal of the decision tree shows that if Clinton won there would be only one bad outcome. This would happen
if Comey concealed his decision to
reopen the investigation and the second investigation resulted in positive
findings. In this case the FBI would stand accused of helping to elect a
president who violated security protocols and whose lawyers, or potentially
herself, had obstructed justice. This could confirm that indeed the system was
“rigged,” and that the FBI was part of a rigged system, an outcome that Comey
feared most. The yellow links show this. This helps explain why Comey
experienced his choice to reveal as inevitable, as exclusively correct. Only
concealing was bad.
But
if Clinton lost, as indeed happened, and the findings were negative, revealing
his decision to reopen the investigation would also create another bad outcome,
the outcome that actually ensued, and
for which Comey was excoriated. The red links show this. If Comey had
considered both possibilities, Clinton losing or Clinton winning, then revealing
and concealing each posed risks to the FBI. In this scenario Comey’s decision
would no longer have the force of inevitability.
Emotional biases and
decision-making
Based
on this analysis it seems reasonable to assume that Comey and this team, for
all the vigorous effort I am sure they committed to making the best decision
possible, assumed that Clinton would win. That is why, when in front of the
congressional committee, Comey said that he felt mildly nauseous when
considering that he could have influenced the election’s outcome. But should we
forgive him for assuming what many others, pollsters included, had assumed. Did
he and his colleagues have an extra responsibility to explore the widest range
of possibilities in the face of the most portentous decision he was about to
make?
I
am drawn here to his use of the word “conceal” in assessing his options. As
Rosenstein notes in his memo, “Conceal is a loaded term that necessitates the issue.
When federal agents and prosecutors quietly open a criminal investigation, we
are not concealing anything; we are simply following the longstanding policy
that we refrain from publicizing non-public information. In that context, silence
is not concealment.” In other words, the term “conceal” is on its face
prejudicial. Who would want to conceal?
Let me propose that in using the term
“conceal” he was biasing his thinking emotionally, pulling himself into the
drama of intervening in the political process, a role that accorded with his
self-concept as someone who could alone protect the public’s confidence in the
country’s system of justice. This bias conditioned his decision making so that
the choice to “reveal” seemed inevitable. He
had no choice but to reveal. As I noted earlier, he told the congressional
committee:
“When the Anthony Weiner thing landed on me on
October 27 and there was a huge -- this is what people forget -- new step to be
taken. If I were not to speak about that, it would be a disastrous,
catastrophic concealment. It was an incredibly painful choice, but actually not
all that hard between very bad and catastrophic. I had to tell Congress that we
were taking these additional steps. I prayed to find a third door. I couldn't
find it. Two actions speak or conceal. I don't think many reasonable people
would do it differently than I did, no matter what they say today.”
Let
me suggest that his bias toward action – let’s call it his heroic self-concept--
conditioned his thinking in a way that hampered him. He did not have access to the
full play of rational thinking through which he could consider his situation in
the round and ask what would happen if either Clinton lost or if Clinton won.
If he had, he would have come to terms with the irreducible uncertainty of his
situation. Instead, he found inevitability, which satisfied his need for action
and for closure. In other words, his decision process did not lead him to an
inevitable choice. Rather, his bias for an inevitable choice led him to a
flawed decision process. If true, this conception reminds us how formal methods
for guiding decision making, like a decision tree, can support good
decision-making when emotions run high.
In sum
Comey
was motivated to ensure the American people that the “system was not rigged.”
Facing an abdicating Attorney General, he stepped into the breach and in the
process violated long-standing precedents that governed the relationship
between the FBI and the Department of Justice. He also tipped the election. Reviewing
his decision in front of Congress he argued that he had no choice. He had to
reveal that he was re-opening the investigation of Hillary Clinton, else he
oversee the death of the FBI as a credible institution. This extreme view, contradicted
by 99 attorneys general and prosecutors suggests that he had a valence for
taking up the hero role and a bias for action. This valence and bias distorted
his judgment by foreclosing his considering the effects of his decision should
Clinton lose- the situation that actually ensued. One result, according to his
colleagues, is that he has severely damaged the FBI’s reputation.
[1] Comey: In the -- for
generations -- generations I think is a fair way to say it -- the Department of
Justice has understood that statute to require in practice -- and I believe
they think in law -- to require a general sense of criminal intent. That is not
a specific intent, but a general criminal intent and a sense -- a knowledge
that what you're doing is unlawful, not violating a particular statute but some
general criminal mens rea. I can't find a case that's been brought in the last
50 years based on negligence, based on -- without some showing or indicia of
intent. That is not a specific intent, but a general criminal intent and a
sense -- a knowledge that what you're doing is unlawful, not violating a
particular statute but some general criminal mens rea. I can't find a case
that's been brought in the last 50 years based on negligence, based on --
without some showing or indicia of intent.
