Senators say Comey drafted Clinton exoneration memo before she was interviewed

Senators Chuck Grassley and Lindsey Graham say they have reviewed evidence that James Comey drafted a statement to announce the closure of the FBI’s investigation into Hillary Clinton’s use of a private email server months before key witnesses, including Clinton herself, were interviewed. In a letter to current FBI director Christopher Wray, the two Senators characterize Comey’s approach as “conclusion first, fact-gathering second,” adding “that’s no way to run an investigation.”

Grassley and Graham base their concern primarily on the transcript of an interview of Comey’s then-chief of staff by the Office of Special Counsel in June of this year. In the key passage, the chief of staff says that in the early spring of 2016, Comey “emailed a couple of folks,” to ask, “knowing the direction the investigation is headed, what would be the most forward leaning thing we could do, information we could put out about it?”

In this connection, “he sent a draft around of what [the information] might look like.” The draft went through “many iterations” and was circulated to select members of senior FBI leadership.

In his testimony, the chief of staff acknowledged that, at this point, Hillary Clinton had not yet been interviewed. However, he agreed that “there was an idea of where the outcome was going to go.” A pretty clear idea, apparently.

In fact, Clinton was one of 17 witnesses the FBI would ultimately interview but had not yet gotten to when Comey drafted his statement. Others included her trusted aide Cheryl Mills and Bryan Pagliano, the IT guy who installed and maintained the secret server.

It may be going too far to say Comey had decided Clinton should not be charged before the FBI wrapped up its interviews. Conceivably, testimony from Clinton or other witnesses could have caused him to reach a different conclusion than the one he thought he was headed towards and had written up in draft. He always had the option of tossing his drafts and writing up a different outcome.

It should also be noted that Comey’s decision was based mainly on a reading (or misreading) of the applicable law that rendered it very difficult to make out a criminal case against. It was reasonable for Comey to doubt that the upcoming interviews would produce evidence that could meet the stringent legal standard he had adopted.

Finally, let’s keep the context in mind. Clinton was set to become the Democratic nominee for president. The sooner the public knew whether she would be criminally prosecuted, the better for the country. Thus, it was reasonable for Comey to want to be in a position to communicate this information as soon as he made a final decision.

Nonetheless, it is reasonable for Sens. Grassley and Graham to be concerned that Comey jumped the gun, especially given that drafts of his statements letting Clinton off the hook apparently circulated among members of senior FBI leadership. It’s quite possible that his view of the likely outcome came to the attention of those still investigating the facts and conducting interviews. This could taint their work.

It’s one thing for Comey to form a preliminary view of the likely outcome of a matter still under investigation and even to jot that view down. It seems like quite another to circulate draft “exoneration” memos within the agency, as Comey elected to do.

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