Top Republicans on the Senate Judiciary Committee are alleging former FBI director James B. Comey planned to exonerate Hillary Clinton for conducting official business on a private email server long before the agency had completed its investigation.
Sens. Charles E. Grassley (R-Iowa) and Lindsey O. Graham (R-S.C.) sent a letter Thursday to FBI Director Christopher A. Wray demanding documents to flesh out what to them seems a suspicious timeline: that Comey was apparently drafting statements to close the Clinton email probe at least two months before he publicly announced in July 2016 that the FBI was shuttering its investigation. If that timeline is correct, they said, it means that Comey would also have been planning to exonerate Clinton before the FBI ever interviewed her, or 16 other "key witnesses," about her email server.
"Conclusion first, fact-gathering second — that's no way to run an investigation," Grassley and Graham wrote in the letter to Wray. "The FBI should be held to a higher standard than that, especially in a matter of such great public interest and controversy."
Grassley, who chairs the Judiciary Committee, and Graham, who chairs a subcommittee panel on crime and terrorism, have been investigating the FBI's handling of the Clinton email probe.
They base their timeline on heavily redacted transcripts the committee procured from the Justice Department's Office of Special Counsel of interviews with two FBI officials: James Rybicki, Comey's chief of staff, and Trisha Anderson, the bureau's principal deputy general counsel for national security and cyberlaw.
The transcripts are from an investigation the OSC opened last year into Comey's conduct surrounding the Clinton email probe after he informed congressional leaders just weeks before the election that the FBI was looking into the matter again. The OSC closed its investigation after Comey was fired as the office does not investigate former government employees.
According to Grassley and Graham, Rybicki and Anderson described Comey writing and circulating drafts of the statement he would eventually make exonerating Clinton "sometime in the spring," as one recalled it, or "in early May of 2016," as the other said. It is not entirely clear from the transcripts which official was speaking in which conversation because of the redactions, according to Grassley and Graham's letter.
But the interviewee Grassley and Graham assumed to be Rybicki told OSC investigators that by the time Comey was circulating drafts of his statement, he did so "knowing the direction the investigation is headed" and wanting to figure out "what would be the most forward-leaning thing we could do."
The Washington Post reported in May 2016 that "prosecutors and FBI agents investigating Hillary Clinton's use of a personal email server have so far found scant evidence that the leading Democratic presidential candidate intended to break classification rules," though the investigation was still underway.
The interviewee Grassley and Graham assumed was Anderson told OSC investigators that "there were many iterations of the draft that circulated." It is not clear from the transcript excerpts Grassley and Graham cited in their letter to Wray what the content of those other drafts were.
Grassley and Graham raised other concerns with the timeline of how the Justice Department operated around Comey's decision-making in the Clinton email investigation as well. They said that the DOJ "entered into highly unusual immunity agreements with [Clinton aides] Cheryl Mills and Heather Samuelson in June 2016" — at least a month after Comey would have been drafting an exoneration statement. Those immunity agreements were especially problematic, Grassley and Graham argued, because they stipulated the DOJ would destroy records and laptops not turned over to the investigative team — "evidence that had not been fully and completely reviewed," the senators wrote.
The senators gave Wray and the FBI a deadline of Sept. 13 to respond to the committee's request with all drafts and communications related to Comey's statements and decision to close the Clinton investigation, and all remaining records the OSC examined during its unfinished investigation.