National Security

The attorney general could have ordered FBI Director James Comey not to send his bombshell letter on Clinton emails. Here’s why she didn’t.

By Sari Horwitz December 22 at 7:27 PM 

FBI Director James B. Comey testifies during a hearing on July 7 before the House Oversight and Government Reform Committee on Capitol Hill in Washington. (Alex Wong/Getty Images)

Twelve days before the presidential election, FBI Director James B. Comey dispatched a senior aide to deliver a startling message to the Justice Department. Comey wanted to send a letter to Congress alerting lawmakers that his agents had discovered more emails potentially relevant to the investigation into Hillary Clinton’s private email server.

The official in Deputy Attorney General Sally Q. Yates’s office who received the FBI call immediately understood the explosive potential of Comey’s message, coming so close to the presidential election. Federal attorneys scrambled into offices on the fourth and fifth floors of Justice Department headquarters, where they huddled to figure out how to stop what they viewed as a ticking time bomb.

“It was DEFCON 1,” said an official familiar with the deliberations. “We were in­cred­ibly concerned this could have an impact on the election.”

Aides at Justice and the FBI — located in offices directly across the street from each other on Pennsylvania Avenue — began exchanging increasingly tense and heated phone calls, nearly a half-dozen throughout the afternoon and evening of Oct. 27 and into the next morning.

Justice officials laid out a number of arguments against releasing the letter. It violated two long-standing policies. Never publicly discuss an ongoing investigation. And never take an action affecting a candidate for office close to Election Day. Besides, they said, the FBI did not know yet what was in the emails or if they had anything to do with the Clinton case.

Remarkably, the country’s two top law enforcement officials never spoke. As Comey’s boss, Attorney General Loretta E. Lynch could have given the FBI director an order to not send the letter. But Lynch and her advisers feared that Comey would not listen. He seemed to feel strongly about updating Congress on his sworn testimony about the Clinton investigation. Instead, they tried to relay their concerns through the Justice official whom the FBI had called.

Their efforts failed. Within 24 hours of the first FBI call, Comey’s letter was out.

[Read the letter Comey sent to FBI employees]

Nearly two months later, the effect of that letter on the 2016 race is still being debated. Clinton told donors recently that she blamed a pair of “unprecedented” events for her loss. One was the Russian hacking of Democratic Party officials. The other was Comey’s letter. Corey Lewandowski, President-elect Donald Trump’s former campaign manager, said in a speech at Oxford University shortly after the election that what Comey did was “amazing” and gave Trump the “spring in his step” he needed to win the election.

Clinton calls FBI letter on new emails 'pretty strange' and 'deeply troubling'

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Democratic presidential nominee Hillary Clinton said the letter from FBI Director James Comey announcing an inquiry into additional emails was "pretty strange" and "unprecedented" with days to go before Election Day. Clinton told supporters at a rally in Daytona Beach, Fla., that voters "deserve to get full and complete facts." (The Washington Post)

An examination of how a single letter from the FBI became a political bombshell reveals that it was the result of two law enforcement leaders failing over months to navigate the unusually ugly politics of 2016. Having a presidential candidate under active criminal investigation was extraordinary. But Comey and Lynch repeatedly underestimated how much their actions would reverberate in a closely contested presidential race.

Lynch’s meeting in June with Bill Clinton on a tarmac in Phoenix led to a crisis in leadership at the department over how to handle the Clinton email investigation. Rather than formally recuse herself, Lynch left ambiguous who would be making final decisions on issues regarding Hillary Clinton.

Into that vacuum stepped Comey, an FBI director who prides himself on having a finely tuned moral compass that allows him to rise above politics. Weeks before the letter, Comey had advised against the Obama administration public statement admonishing Russia for the Democratic Party hacks, arguing it would make the administration appear partisan too close to the election. But to him, the Clinton email investigation was different.

Battered by Republican lawmakers during a hearing that summer, Comey feared he would come under further attack if word leaked about the Clinton case picking up again. He was surprised by the intensity of the reaction to his letter, according to people familiar with Comey’s thinking. His reputation fell further after the FBI acknowledged three days before the election that the emails amounted to nothing.

Comey has taken the harsher beating in public for his decision, but some political observers and former Justice officials say that Lynch deserves at least as much scrutiny.

Jack Goldsmith, a Harvard Law School professor and senior fellow at Stanford University’s Hoover Institution, said that the controversy shines a light on Lynch’s compromised position and failed leadership as attorney general.

“If she thought [the letter] violated department policy or was otherwise a bad idea, she could have ordered him not to send the letter,” said Goldsmith, who noted that soon after the letter was released, Justice officials proceeded to criticize Comey when Lynch had the power all along to stop him. “It was an astonishing failure of leadership and eschewal of responsibility, especially if Lynch really thought what Comey did was wrong.”

A former senior FBI official who worked closely with Comey for several years said that Comey’s sense of obligation to Congress was the key factor driving his decision. He had testified under oath months earlier that the Clinton investigation was closed. But another factor that day was that Lynch’s credibility had been compromised months earlier in Phoenix.

“Anybody who’s ever worked with Jim Comey knows that he has an independent spirit,” the official said. “But he still very much believes in the chain of command. If he has a boss who’s asking him to do something that’s in the scope of the law and reason, he’s going to follow it. He would have followed protocol. Had the issue with Loretta Lynch on the tarmac not happened, things would be different. People forget that.”

The tarmac

Attorney General Loretta E. Lynch, shown in Phoenix on June 28, spoke to Bill Clinton on the tarmac at the airport. (Nancy Wiechec/Reuters)

It was a sweltering June day in Phoenix, and Lynch’s plane had just landed at the airport. She and four staffers had flown west for a series of meetings with local police officers.

The staffers walked down the plane stairs first and stepped into a van on the tarmac. The plan was for Lynch — and her husband, who was also on the trip — to follow quickly afterward and step into another vehicle. As the staffers waited for about five minutes in the van, checking their smartphones, they suddenly saw a man with silvery white hair approaching the plane.

At first, the staffers could not tell who it was. But then, as the man got close to the airplane steps, one of the staffers said with surprise, “Is that Bill Clinton?”

It was. Clinton had just wrapped up a fundraiser for his wife and arrived at the tarmac to fly out of Phoenix. His Secret Service detail tipped him off that Lynch was there, too, and he sent word that he wanted to say hello.

Lynch felt she could not say no to the former president, who 17 years ago promoted her to U.S. attorney. Once inside the plane, Lynch said that she, Clinton and her husband discussed their travels, Clinton’s grandchildren, golfing and Brexit.

But as the visit dragged on, Lynch became anxious. The Justice Department was still conducting an investigation into Hillary Clinton’s email practices during her tenure as secretary of state. Lynch had just wanted to say a quick hello to Bill Clinton, and now they had been talking for close to half an hour.

Her aides outside were also concerned. One of them got out of the van and walked back onto the plane to tell Lynch that they needed to get moving.

Lynch would later insist that she and Clinton did not discuss the investigation into his wife.

But the optics were immediately damaging. Republican legislators raised questions about whether Lynch and the Justice Department’s investigation had been compromised.

[How everyone looks bad because Clinton met with Lynch]

Four days later on July 1, Lynch acknowledged in an interview with Washington Post editorial writer Jonathan Capehart that her meeting with the former president “cast a shadow over how [the Clinton] case may be perceived” and she “certainly would not do it again.” Then, in an effort to allay any concerns, Lynch said she would “fully accept” the recommendations of career prosecutors and the FBI on how to proceed with the Clinton case.

Capehart pressed her to explain. Did that mean she would review their recommendation and make her own judgment? No, she said. He asked further. Did that mean she was recusing herself from the case? Lynch did not give a clear answer.

Those close to Lynch said that she planned all along — before the tarmac incident even — to accept the recommendations of the FBI and career prosecutors. To this day, aides say she does not see any connection between her meeting with Bill Clinton and what Comey would do next.

‘Extremely careless’

FBI Director James B. Comey, shown at the agency’s headquarters in Washington on July 5, filled the leadership vacuum created by Attorney General Loretta E. Lynch, some analysts say. (Cliff Owen/Associated Press)

Four days after Lynch’s remarks, Comey, known for his independent streak, called reporters to FBI headquarters on Pennsylvania Avenue to announce the conclusion of the year-long Clinton investigation. It was a stunning event both because of what he said and how he said it.

Usually, in a high-profile case, the FBI makes a recommendation to the Justice Department, and then the attorney general — not the FBI director — announces in a news conference the final decision on any charges. It is rare for officials to hold a briefing when prosecutors decline to pursue a case.