Feds debate releasing Clinton's FBI interview
Congress wants documents from email probe, but some insist it's wrong to make interrogations and deliberations public.
13 August, 2016
The Obama administration is urgently debating how to respond to congressional demands for the official report on Hillary Clinton's three-and-a-half-hour interview at FBI headquarters, as some inside and outside government raise concerns about giving lawmakers access to politically sensitive records of the FBI's investigation into Hillary Clinton's private email system.
During congressional testimony last month, FBI Director James Comey promised to respond promptly to lawmakers' requests for the interview summaries known as "302s" for Clinton and other witnesses, as well as other information gathered in the course of the year-long FBI probe.
"I'll commit to giving you everything I can possibly give you under the law and to doing it as quickly as possible," Comey told the House Oversight and Government Reform Committee July 7.
Oversight Committee Chairman Jason Chaffetz (R-Utah) sent Comey a letter the same day requesting the entire "investigative file" on the Clinton email issue. Senate Homeland Security and Government Affairs Committee Chairman Ron Johnson (R-Wis.) also asked Comey for all 302 reports related to the case, requesting that they be turned over by the end of last month.
Comey and the FBI are pressing to send at least some of the requested information to the Hill soon, but others in government have stepped in to question such a move, officials tracking the debate said.
Among those involved in the discussions are State Department officials, since many of those interviewed in the FBI probe are current or former State employees.
A State spokeswoman denied her agency has objected to any disclosure of interview transcripts to Congress, but acknowledged that State has asked to be informed about what FBI plans to send to the Hill.
"The State Department has cooperated — and will continue to cooperate — with the FBI every step of the way. We support and understand the FBI’s desire to provide information to Congress. Any suggestion to the contrary is false," State Department Director of Press Relations Elizabeth Trudeau said in a statement.
"The State Department has asked the FBI that we be kept apprised of information to be provided to Congress that contains sensitive information related to State Department equities and for an opportunity to review it. Such an opportunity for review is in keeping with the standard interagency review process when dealing with another agency’s documents or equities," Trudeau added. She noted that in relevant cases State checks in with the FBI before sending information to Congress or making it public under the Freedom of Information Act.
Comey has already faced criticism both for the unusual public statement he made about the conclusion of the Clinton email probe and for the decision not to recommend prosecution in the case. Whatever the FBI turns over, or chooses not to turn over, seems certain to trigger another round of political recriminations.
Some former Justice Department officials said the FBI should not be opening its files to members of Congress.
"The Justice Department would be right to be concerned about the effect that disclosure will have in the future on people being candid with investigators," said former Assistant Attorney General for Legislative Affairs Ron Weich, now dean at the University of Baltimore Law School. "It's important that the FBI and Justice Department be able to gather evidence and deliberate about potential culpability without fearing that material will be viewed by the public ... Congress needs to stay out of law enforcement. Their job is to pass laws and the executive branch's job is to carry them out. For me, this is very straightforward."
Justice Department prosecutors' statements and thoughts about the Clinton probe could be among the requested FBI materials, since prosecutors were present at the interview with Clinton and asked questions, and court records indicate prosecutors interacted with Justice's National Security Division as the probe progressed.
"Really, the Hill wants to second-guess the investigation. Congress wants to put on their Sherlock Holmes hats and decide whether Hillary Clinton should've been indicted," Weich added.
At the moment, it's unclear what role the Justice Department is playing in the disclosure debate.
"I'm sure this is causing a lot of consternation at main Justice," said Anne Weismann, a former Justice Department official now with the non-profit Campaign for Accountability.
The FBI is part of the Justice Department but has traditionally operated with more autonomy than other agencies. When Comey made his unusual, 15-minute press statement last month announcing that he was recommending no prosecution over the Clinton emails, he proudly said he had not sought approval for his decision to speak out about the FBI's findings.
"I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say," Comey said.
During a House Judiciary Committee hearing last month, Attorney General Loretta Lynch repeatedly noted that Comey's statement departed from the way Justice usually handles cases that result in no charges. However, she never clearly said if she agreed with his decision to speak out or not and she declined to add any detail beyond what Comey stated.
"I believe the FBI has provided extraordinary clarity and insight," Lynch said.
However, some former officials said Lynch is unlikely to seek to block disclosure in the email saga—in part because of the uproar over her meeting with President Bill Clinton just days before his wife's FBI interview.
Spokespeople for the Justice Department and the FBI declined to comment for this story.
A House Oversight Committee spokesperson said discussions with the FBI are ongoing, but declined to elaborate.
Release of the interviews Clinton and others gave during the investigation could be also complicated by classification issues. During his testimony last month, Comey indicated Clinton's interview got into some of the classified matters investigators determined were discussed in her email, making the interview itself classified as Top Secret, Sensitive Compartmented Information.
"For example, the 302 of Secretary Clinton, it's classified at the TS/SCI level. We got to sort through all that. But we’ll do it, we’ll do it quickly," Comey said.
The FBI could send a redacted copy to the Hill in unclassified form, but that would surely generate charges that the most damaging or exculpatory portions of the interview were being kept from the public. Sending it to Congress in classified form would be sure to prompt leaks, as well as claims and counter-claims about whether Clinton contradicted her prior public statements.
One former Justice Department official warned against rushing the process for political reasons.
"Justice should go through its usual process, taking into account interagency equities, the fact that much of the file would be classified, and the relevant precedents for dealing with these requests," said former Justice spokesman Matthew Miller. "What they absolutely should not do is short circuit that process just because of political pressure from the Hill. Hillary Clinton shouldn’t be treated any worse than any other American just because Republicans want to keep politicizing this case.”
Each side in the debate can point to precedents for keeping investigative records in high-profile cases secret or for making them public.
Republican lawmakers have noted that the House was provided with 302s and other records from the FBI's now-closed investigation into the political targeting of non-profit groups at the IRS. And in 2011, Attorney General Eric Holder provided Congress with records about internal Justice Department deliberations related to the aftermath of the Fast and Furious gunrunning operation.
However, Justice has dug in its heels on other matters similar in some respects to the Clinton email probe
When Congress demanded access to interviews with senior George W. Bush White House officials interviewed in connection with the leak of a CIA operative's identity, the Justice Department resisted many of the requests, with Attorney General Michael Mukasey eventually persuading Bush to invoke executive privilege. Mukasey warned that granting the request "would chill deliberations among future White House officials and impede future Department of Justice criminal investigations involving official White House conduct."
FBI 302 reports are routinely turned over to criminal defendants and often discussed or shown at trials. However, in certain cases, the Justice Department has fought making them public, even in closed investigations.
Justice has argued that when FBI agents are working closely with prosecutors, the agents should be considered part of the prosecutors' deliberative process and their 302 reports should be protected as attorney "work product" even though those interviewed know what they were asked and how they answered. Such an argument was successfully used to shield records of the investigation into the deaths of detainees in CIA custody, although a court case on the issue is still pending.
But some of Justice's more theoretical arguments against disclosure may have already been mooted by Comey's detailed press statement and his marathon, four-and-a-half hour House testimony last month. The FBI director may have laid bare so much of the process and of Clinton's testimony that—for better or worse—he doomed efforts to limit disclosure about the probe.
As Comey said during the session: "I'm a big fan of transparency."