FBI director James Comey says he didn’t recommend indicting Hillary Clinton over her use of a private server to send and receive classified information because she lacked intent to mishandle such information. The relevant statutes didn’t require intent, but Comey read the requirement into the law based on what he said is the past practice of federal prosecutors in these sorts of cases.
Before letting Hillary off the hook, one would expect that the FBI, when it interviewed her, asked questions that went to her intent. But Rep. Trey Gowdy has read the official notes of the FBI’s interview of Hillary Clinton, and says, “I didn’t see any questions on the issue of intent.”
If such questions were asked, the FBI’s notes surely would include the exchange. After all, as Comey says, the issue of prosecute or don’t prosecute hinged (contrary to the statutory language) on Hillary’s intent.
What questions about intent should the FBI have asked? It might have asked Clinton why she set up the email system in her basement. According to Gowdy, the notes don’t reflect this question being asked.
In addition, the FBI could have interrogated Clinton closely about her direction to strip classified markings from emails being sent. “Turn [them] into nonpaper [with] no identifying heading and send nonsecure,” she wrote.
Maybe the FBI pursued this line of inquiry and others relating to intent. If not, I think we can infer that the interview was basically a formality — the decision having already been made not to prosecute Clinton unless, during the interview, she blatantly lied to the FBI.
I’ve always suspected that this is what Loretta Lynch told Bill Clinton when they had their infamous private meeting shortly before the FBI interviewed Hillary. I speculate that she told the ex-president, Hillary won’t be prosecuted unless the FBI catches her in a lie. The idea would have been to make sure Hillary played it straight during the interview so she could “walk.”
Obviously, I can’t prove that this is what was communicated in the private conversation between Lynch and Bill Clinton. But if the FBI didn’t asked Hillary questions relevant to her intent, this would tend to support my hypothesis that the fix was in and Lynch was letting Bill know.
Gowdy has argued that the FBI interview notes should be released to the public. So far, the FBI has refused to do so. Unless it does, I think we’re entitled to believe Gowdy’s representation that there isn’t anything in them to show that the FBI asked Hillary Clinton about her intent.