FBI Director James Comey threatened to call for a special prosecutor to investigate Hillary Clinton’s email server in the spring of 2016, after Clinton’s lawyers refused on the grounds of attorney-client privilege to turn over their laptops for examination by the bureau’s agents.
The hard line taken by Clinton’s legal team made Justice Department lawyers “very nervous” and cast a “chill” in relations between the DOJ and the FBI at a critical moment in the politically charged case, Comey writes in his book, “A Higher Loyalty,” which was released Tuesday.
The new details about the laptop dispute — including Comey’s previously undisclosed threat to request a special counsel over the issue — takes on fresh relevance in light of the current dispute over whether the government seizure of documents from Michael Cohen, President Trump’s personal lawyer, infringes on attorney-client privilege.
As Comey recounts it in his book, he was adamant the bureau get access to the lawyers’ laptops to complete its investigation into Clinton’s email server. The reason: the FBI needed to determine how Clinton’s lawyers determined which of the 60,000 emails on her private server were “personal” before they turned over the remaining government-related emails to the State Department.
Although Clinton’s lawyers insisted they made the deletions in good faith, “we weren’t just going to take their word for it,” Comey writes. “We needed to know firsthand how the lawyers made those decisions and we wanted to see the devices they used so our experts could look for traces of the deleted emails.”
But, Comey writes, Beth Wilkinson, the veteran Washington defense lawyer who represented Clinton’s lawyers, started “talking tough” to Justice Department officials. She told them there was “no way” she would turn over laptops that contained clients’ privileged communications, some of which were unrelated to Hillary Clinton. (Wilkinson did not immediately respond to an email request for comment by Yahoo News, saying she had not yet seen the book.)
When Justice Department lawyers failed to back up the FBI, the investigation into Clinton’s private email server nearly blew up, according to Comey.
“We were at an impasse,” Comey writes. “The FBI could not, with a straight face, tell the American people we had done a competent investigation if we didn’t move heaven and earth to understand that email review and deletion process. It didn’t matter to us that it involved her lawyers. I would not agree to complete the investigation without seeing those laptops and interviewing those lawyers. Period. If Secretary Clinton wanted to still be under criminal investigation for the next two years, fine.”
In Comey’s account, the laptop dispute nearly derailed the Clinton investigation on the eve of the former secretary of state’s expected nomination as the Democratic candidate for president.
That May, Comey went to then Deputy Attorney General Sally Yates and made a threat that would have caused the issue to erupt into public view. He told her, “I was close to the point where I was going to recommend the appointment of a special prosecutor,” Comey writes. “I said that soon it would be too late for this Department of Justice to complete the investigation without grievous damage to public faith in our work. It would require a prosecutor outside the control of the political leadership of the department. I didn’t know the date I would recommend such a thing, I said, but we were getting close, unless we got those laptops.”
Comey’s threat apparently worked: Almost immediately after he raised the issue of a special counsel, “junior lawyers” at the Justice Department were suddenly “hell-bent on getting those laptops” and a deal was worked giving them access to the computers.
What Comey doesn’t mention is that the deal also included limited immunity for Clinton’s lawyers, Cheryl Mills and Heather Samuelson — a concession that later drew criticism from Republican members of Congress.
Comey makes clear that, after reviewing the laptops, the FBI “found nothing” that changed its view that the case did not merit criminal prosecution of Clinton. But his lengthy recounting of the episode suggests it weighed heavily on him at two pivotal events during the campaign: his July 5 announcement (made without consulting Justice Department lawyers) that the FBI would not recommend pursuing charges against Clinton but that he viewed her handling of classified emails as “extremely careless,” and his Oct. 28 letter informing Congress that the bureau had found additional Clinton emails on the laptop of former Rep. Anthony Weiner, husband of Clinton’s personal aide, Huma Abedin.
Clinton has said she believes the October letter probably cost her the election.
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