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Trading  | June 13, 2018

The highly anticipated OIG report from the Justice Department’s internal watchdog will hit tomorrow at 3pm EST, on President Trump’s 72nd birthday. The 400-500 page document, prepared by Inspector General Michael Horowitz, will specifically address the DOJ/FBI’s conduct surrounding the Hillary Clinton email investigation. It will not cover any of the FISA abuse / surveillance on the Trump campaign – for which a separate OIG investigation was launched in late March

Here’s what to look for: 

Hillary Clinton’s exoneration letter

In December, Congressional investigators discovered that edits made to former FBI Director James Comey’s statement exonerating Hillary Clinton for transmitting classified info over an unsecured, private email server went far beyond what was previously known. 

While Comey’s original draft criminalized Clinton’s behavior by using the term “gross negligence” and other language supportive of criminal charges, the FBI’s top brass passed the draft around and neutered it. Instead of “grossly negligent,” Clinton’s conduct was reclassified as “extremely careless” – a term which carries no legal significance. 

According to an Attorney briefed on the matter, “extremely careless” is in fact a defense to “gross negligence”: “What my client did was ‘careless’, maybe even ‘extremely careless,’ but it was not ‘gross negligence’ your honor.” The FBI would have no option but to recommend prosecution if the phrase “gross negligence” had been left in.

18 U.S. Code § 793 “Gathering, transmitting or losing defense information” specifically uses the phrase “gross negligence.” Had Comey used the phrase, he would have essentially declared that Hillary had broken the law. 

Involved in the edits were Andrew McCabe, Peter Strzok, E.W. “Bill” Priestap, Jonathan Moffa and DOJ Deputy General Counsel Trisha Anderson.

Immunity agreements

The FBI granted immunity in June 2016 to top Obama advisor Cheryl Mills and aide Heather Samuelson – who helped decide which Clinton emails were destroyed before turning over the remaining 30,000 records to the State Department. Of note, the FBI agreed to destroy evidence on devices owned by Mills and Samuelson which were turned over in the investigation. 

The FBI also granted immunity to the guy who wiped Hillary’s server with “BleachBit”, Paul Combetta.

For those who “do not recall” the specific timeline leading up to Combetta wiping Hillary’s server, here is a breif recap: 

December 2014 / January 2015 – “Undisclosed Clinton staff member” instructs Combetta to remove archives of Clinton emails from PRN server but he forgets.

March 4, 2015 – Hillary receives subpoena from House Select Committee on Benghazi instructing her to preserve and deliver all emails from her personal servers.

March 25, 2015 – Combetta has a conference call with “President Clinton’s Staff.”

March 25 – 31, 2015 – Combetta has “oh shit” moment and realizes he forgot to wipe Hillary’s email archive from the PRN server back in Decemberwhich he promptly does using BleachBit.

February 18, 2016 – Combetta meets with FBI and denies knowing about the existense of the subpoena from the House Select Committee on Benghazi at the time he wiped Hillary’s server. 

May 3, 2016 – Combetta has follow-up meeting with the FBI and admits that he “was aware of the existence of the preservation request and the fact that it meant he should not disturb Clinton’s e-mail data on the PRN server.”

McCabe’s conflicts of interest

While an earlier IG report which led to former Deputy Director Andrew McCabe’s firing focused on McCabe leaking self-serving information to the press and then lying about it (four times), this portion of the IG report will focus on [a]llegations that the FBI Deputy Director should have been recused from participating in certain investigative matters,” after his, Jill McCabe, accepted $675,000 from “groups aligned with Clinton and McAuliffe” during her unsuccessful Senate bid – which constituted nearly 40% of the campaign’s total funds. 

In addition to discussing whether McCabe should have recused from the investigation, Horowitz’s report will likely discuss the FBI’s ethics office decision that recusal was not required, and the FBI’s creation of “talking points” to counter complaints about McCabe’s participation in the Clinton probe. –The Federalist

Comey’s higher loyalties

The report will also focus on Comey’s conduct during the investigation – as IG Horowitz outlined “Allegations that Department or FBI policies or procedures were not followed in connection with, or in actions leading up to or related to, the FBI Director’s public announcement on July 5, 2016, and the Director’s letters to Congress on October 28 and November 6, 2016, and that certain underlying investigative decisions were based on improper considerations.”

Also under investigation will be the FBI’s decision to reopen the Clinton email investigation on October 28, 2016 after additional emails were found on the laptop of Clinton’s top aide, Anthony Weiner – who is currently in prison for sex crimes involving a minor. After a very fast reviewComey told Congress on November 6, 2016 that the FBI’s assessment that Clinton should not be charged had not changed. 

“I think the report of Horowitz, the [inspector general], and the Justice Department will confirm that Comey acted improperly with regard to the Hillary Clinton investigation,” Trump’s lawyer Rudy Giuliani recently told New York radio host John Catsimatidis.

“Comey, really, has a chance of being prosecuted as a result of [this report], but we’ll see,” Giuliani said.

Criminal prosecution?

While the IG has already issued a criminal referral for Andrew McCabe based on the earlier report, tomorrow’s release will similarly shed light on others who may receive (or have already received) criminal referrals. 

Anyone within the senior ranks of the FBI who was involved with the Clinton email investigation is at risk – including James Comey, Peter Strzok, Lisa Page, Bill Priestap, Jonathan Moffa, Peter Kadzik and DOJ Deputy General Counsel Trisha Anderson. 

A tipoff?

The OIG investigation will also cover “[a]llegations that the Department’s Assistant Attorney General for Legislative Affairs improperly disclosed non-public information to the Clinton campaign and/or should have been recused from participating in certain matters.”

In particular, the report will look at former Assistant Attorney General Peter Kadzik‘s role in the investigation and whether he “tipped off Clinton presidential campaign chairman John Podesta about two issues: an upcoming hearing where a Justice Department official would be asked about the Clinton emails, and the timing of the release of some Clinton emails”

Notably, Kadzik “previously worked for Podesta as an attorney.”

That weird FBI twitter account

The OIG will also look at “[a]llegations that decisions regarding the timing of the FBI’s release of certain Freedom of Information Act (FOIA) documents on October 30 and November 1, 2016, and the use of a Twitter account to publicize same, were influenced by improper considerations.”

This is related to a series of tweets issued by the largely dormant @FBIRecordsVault account which began one day after Comey reopened the Clinton email investigation. On October 30 at 4 a.m., the account released a series of documents – including information on the Clinton Foundation, and President Clinton’s controversial pardon of Marc Rich, along with several other notable files.

Two days before the Clinton Foundation tweet, the @FBIRecordsVault account tweeted records of Donald Trump’s father, Fred Trump, which referred to him as a philanthropist.

At the time, the FBI said that the timing reflected “standard procedure for FOIA” in which records that requested three or more times are released publicly and processed on a “first in, first out” basis. 

We’re gonna need a bigger popcorn box…

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