MEMORANDUM
TO:

Republican Members
COMMITTEE ON THE JUDICIARY
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

FROM:

Bob Goodlatte
CHAIRMAN

DATE:

June 19, 2018 at 10:00 a.m.

SUBJECT:

Hearing on “Oversight of the FBI and DOJ Actions in
Advance of the 2016 Election.”

Trey Gowdy
CHAIRMAN

In advance of Inspector General (IG) Michael Horowitz’s report on the handling of the
email investigation of former Secretary of State Hillary Clinton by the Federal Bureau of
Investigation (FBI) and Department of Justice (DOJ), we are providing this memorandum to
update Members about key facts we have learned during the course of our joint review.
In October of 2017, the House Judiciary Committee and the House Oversight and
Government Reform Committee opened a joint investigation into decisions made by the
Department of Justice in 2016 and 2017. Since the opening of the Committees’ investigation, we
have reviewed thousands of documents and conducted three interviews with key high-level
officials of the FBI during this period.
DOJ and FBI have yet to provide all materials and witnesses the Committees require to
perform Congress’ constitutional oversight.1 These are critical to understanding the full picture
of the agencies’ handling of the Clinton email investigation. This lack of full cooperation only
engenders theories or other conclusions which might not be supported by the full record.
Nevertheless, the Committees have been offered the opportunity to review in camera many of
the documents the IG also had available to him during his office’s review. While it would be
premature to draw conclusions on the investigation at this point, we must alert our Members
about what we have seen so far in preparation for next week’s hearing.
The following are interim observations resulting from the Committees’ joint
investigation. Please consider this guidance as you prepare for next week’s hearing.
1

See, Federal Bureau of Investigation’s Domestic Investigations Operations Guide (DIOG), stating, “Congressional
Oversight is conducted by various committees of the United States Congress, but primarily the Judiciary and
Intelligence Committees….it [Congressional oversight] provides additional important assurance that the FBI
conducts its investigations according to the law and the Constitution.” 2008 version of the DIOG, section 4.1(C),
available at,
https://vault.fbi.gov/FBI%20Domestic%20Investigations%20and%20Operations%20Guide%20%28DIOG%29/fbidomestic-investigations-and-operations-guide-diog-2008version/FBI%20Domestic%20Investigations%20and%20Operations%20Guide%20%28DIOG%29%20Part%201%2
0of%205/view.

1

 1.

We have substantial questions about whether DOJ and FBI properly analyzed and
interpreted the law surrounding mishandling of classified information. Officials
from both agencies have created a perception they misinterpreted the Espionage Act by
stating Secretary Clinton lacked the requisite “intent” for charges to be filed. 18 U.S.C. §
793(f)2 makes it a crime for someone “entrusted” with classified information to, through
“gross negligence,” allow the information to be “removed from its proper place.” Mrs.
Clinton, who as Secretary of State not only handled classified information, but also had
authority to classify information, set up a private email server to conduct official
business. In doing so she was grossly negligent in protecting the classified information
routinely “entrusted” to the Secretary of State. Documents produced to the Committees
also show the FBI was aware of two military cases where section 793(f) was charged.3
However, this precedent was not followed with respect to Mrs. Clinton, despite the fact at
least one classified document was “lost” through access by a foreign actor.4

2.

Documents provided to the Committees show foreign actors obtained access to some
of Mrs. Clinton’s emails – including at least one email classified “Secret”.5 Foreign
actors also penetrated private email accounts of some of Mrs. Clinton’s staffers.
This was confirmed in an email dated May 17, 2016, sent by Peter Strzok to other senior
FBI officials. Executive Order 13526,6 issued by former President Obama, defines
“Secret” information as information “the unauthorized disclosure of which reasonably
could be expected to cause serious damage to the national security.” To our knowledge,
despite spillage of classified information into the hands of foreign actors, no one has been
held accountable either criminally or administratively.

3.

Based on a review of draft statements delivered when the case was closed, it appears
the outcome of the investigation was predetermined at least two months before the
investigation concluded. In an email dated May 2, 2016,7 over two months before
Director Comey’s July 5 press conference, he personally drafted a press statement closely
resembling the final decision by the FBI in not recommending charges. On June 12,
2016, Mr. Comey characterized a similar statement as “my near final.”8 Mr. Comey’s
conclusory statement was not only unusual in the course of normal FBI investigations,
but came at a time during the investigation when multiple interviews – including of Mrs.
Clinton herself – had yet to occur.

2

See 18 U.S.C. § 793, Gathering, transmitting or losing defense information, available at
https://www.law.cornell.edu/uscode/text/18/793.
3
Document produced by DOJ to HJC/OGR, ID# 0.7.6106.1247504, comment stating, “We are aware of two
military case [sic] in which 793(f) was charged. However, these cases involved the loss of classified information.”
4
Id.
5
Document produced by DOJ to HJC/OGR, ID# FBI000051, email from E.W. Priestap to Peter Strzok, (redacted
Office of the General Counsel employee), and Jonathan Moffa, dated May 17, 2016.
6
Executive Order 13526, Classified National Security Information, available at,
https://www.archives.gov/isoo/policy-documents/cnsi-eo.html.
7
Document produced by DOJ to HJC/OGR and Senate Judiciary Committee, Document ID# SJC000148SJC000153, including former Director James Comey’s draft press statement.
8
Document produced by DOJ to HJC/OGR, ID# 0.7.6106.1110177, email from former FBI Director James Comey
to former FBI Chief of Staff James Rybicki, dated June 12, 2016.

2

 4.

Interviews of key high-level officials confirmed Mrs. Clinton’s case was treated
differently from other cases. A small cadre of investigators, analysts and lawyers at
FBI Headquarters and Main Justice made all the decisions on the “headquarters special,”9
as the Clinton “Mid-Year Exam” investigation was internally characterized.

5.

Parts of the Espionage Act pertaining to mishandling of classified information were
said by DOJ officials to be unchargeable, yet these parts remained codified in
statute.10 In one chart of legal analysis of various Espionage Act charges, the chart notes
the Department of Justice was not willing to charge gross negligence, apparently no
matter what the evidence proved. Statements made by former Director Comey and other
FBI officials indicate a belief intent was required and proof of intent was lacking,
ignoring meaningful aspects of this federal law.

6.

Mr. Comey chose to depart from DOJ and FBI policy in appropriating from the
Department of Justice the final decision on whether to prosecute Mrs. Clinton. Mr.
Comey, as the FBI Director, was the chief investigator, not the prosecutor. It was not up
to him to determine what a “reasonable prosecutor” would do with the evidence the FBI
had collected.

7.

The lead investigator on the case, Peter Strzok, and Deputy Director Andrew
McCabe’s personal legal advisor, FBI Office of the General Counsel official Lisa
Page, exhibited political bias against then-candidate Donald Trump.11

8.

Indiscretions involving Mr. Strzok and Ms. Page were not handled appropriately at
the time FBI management learned of them, resulting in their continued assignment
as key players on the Clinton Investigation and Special Counsel Robert Mueller’s
Russia investigation.12

9.

Text messages produced to the Committees reveal Mr. Strzok and Ms. Page - the
two primary individuals involved in investigating the communication practices of
Mrs. Clinton – were similarly emailing and texting work-related messages over
multiple other platforms, some of which were unsecured.13

9

Information learned through interview of former FBI Deputy Director Andrew McCabe, conducted December 21,
2017.
10
Document produced by DOJ to HJC/OGR, ID# FBI000596, email from (redacted Office of General Counsel
employee) to former Executive Assistant Director Michael Steinbach, dated July 5, 2016, noting in reference to a
gross negligence charge, “DOJ not willing to charge this….”
11
DOJ production of two sets of text messages on January 19, 2018 and April 26, 2018. Various messages show
bias against then-Presidential candidate Donald Trump and preference for then-Presidential candidate Hillary
Clinton. Also see, Michael S. Schmidt, Matt Apuzzo and Adam Goldman, In Texts, F.B.I. Officials in Russia
Inquiry Said Clinton ‘Just Has to Win’, The New York Times, December 12, 2017, available at,
https://www.nytimes.com/2017/12/12/us/fbi-trump-russia.html. Texts between FBI’s lead investigator, Peter Strzok,
and FBI Deputy Director McCabe’s lawyer, Lisa Page, referenced in the article include a sexual allusion to Mr.
Trump followed by the comment, “This man cannot be president,” that Hillary Clinton “just has to win,” that a
Trump presidency would be “terrifying,” and calling President Trump a “douche.”
12
Information learned through interview of FBI Assistant Director Bill Priestap, conducted June 5, 2018.
13
Note 11, supra, where Mr. Strzok and Ms. Page referenced on multiple occasions emailing and texting over their
private Gmail and iMessage accounts.

3

 10.

Mr. McCabe appears to have not been forthright with Congress during an interview
conducted by the Committees concerning his knowledge of meetings and actions
taken by Mr. McCabe and his team.14

11.

The head of the FBI’s Counterintelligence Division and ultimate management lead
over the Clinton investigation, the Counterintelligence Division’s Assistant Director
Bill Priestap, was not aware of possible evidence in the case indicating Mrs.
Clinton’s private email server had been penetrated by a foreign adversary, nor was
he aware of relevant legal process obtained by those under his watch during the
investigation.15

12.

While many employees lauded Director Comey’s July 2016 decision to publicly
announce the conclusion of the Clinton Investigation, emails produced to the
Committees show praise of Mr. Comey was significantly offset by criticism of Mr.
Comey expressed by multiple current and former FBI agents.16

13.

Emails and texts produced to the Committees show the FBI intentionally obscured
the fact President Obama had communicated with Mrs. Clinton’s private email
address by editing Mr. Comey’s final press statement, replacing “the President”
with the terminology “senior government official.”17

14.

Former Director Comey’s chief of staff shared talking points on the Clinton
Investigation to Mr. Comey’s friend and FBI “special government employee,”
Daniel Richman – someone hired not to work on Clinton-related matters but instead
to consult on issues related to encrypted communications.18 The talking points
describe the “primary difference between this investigation and the cases against David
Petraeus and Samuel “Sandy” Berger is a question of intent,” once again citing a legal
standard not existing under a charge of gross negligence and case precedent, which
appears to ignore other federal mishandling cases.

15.

Top FBI officials, including Mr. McCabe and Mr. Priestap, through their wives, had
close ties to Democrat and Clinton-affiliated entities, and should have seemingly
been recused from the Clinton investigation. Dr. Jill McCabe received campaign
donations from an organization affiliated with former Gov. Terry McAuliffe, the former

14

Note 9, supra.
Note 12, supra.
16
DOJ document production to HJC/OGR, ID# 0.7.6106.1244592, “Questions from the Society of Former Special
Agents of the FBI (SFSAFBI) for November 2016 interview with the Bureau spokesman,” and email to former
Director Comey from a Special Agent on behalf of 25 FBI agents and support staff, attached to an email from
former Director Comey to former FBI Chief of Staff James Rybicki, dated July 10, 2016.
17
Note 11, supra, text from Mr. Strzok to Ms. Page, stating, “He [appears in context to be Assistant Director Bill
Priestap] changed President to “another senior government official.” See also, email from Bill Priestap to James
Rybicki and Andrew McCabe, dated July 1, 2016, where Mr. Priestap stated, “I agree with the removal of mention
of the President on page 5.”
18
DOJ document production to HJC/OGR, ID# FBI000532, email from James Rybicki to Daniel Richman, dated
July 5, 2016.
15

4

 head of the Democratic National Committee and Chairman of Hillary Clinton’s
Presidential campaign. Mr. Priestap’s wife, Sabina Menschel, made significant
contributions to the Presidential campaigns of Hillary Clinton and Barack Obama.
16.

The Committees’ investigation to this point has revealed questionable decisionmaking by the Clinton email investigative team. Public confidence in the impartiality
of our law enforcement system is critical to ensure all are treated equally under the law.
Fallout from the investigation, however, gives the impression those with money and
influence are given lighter treatment than the so-called common person. Short-term
damage to the FBI and DOJ’s reputations is apparent; however, Congress’ investigation
will help to understand why certain deficiencies occurred during one of the most high
profile investigations in this nation’s history. The Committees’ investigation is a crucial
step toward repairing law enforcement’s reputation as an impartial fact finder and seeker
of truth.

5