FBI’s top lawyer believed Hillary Clinton should face charges, but was talked out of it
BY JOHN SOLOMON, OPINION CONTRIBUTOR — 02/20/19 08:10 PM EST 4,214
THE VIEWS EXPRESSED BY CONTRIBUTORS ARE THEIR OWN AND NOT THE VIEW OF THE HILL
For most of the past three years, the FBI has tried to portray its top leadership as united behind ex-Director James Comey’s decision not to pursue criminal charges against Hillary Clinton for transmitting classified information over her insecure, private email server.
Although in the end that may have been the case, we now are learning that Comey’s top lawyer, then-FBI General Counsel James Baker, initially believed Clinton deserved to face criminal charges, but was talked out of it “pretty late in the process.”
The revelation is contained in testimony Baker gave to House investigators last year. His testimony has not been publicly released, but I was permitted to review a transcript.
During questioning by Rep. John Ratcliffe (R-Texas), Baker was unequivocal about his early view that Clinton should face criminal charges.
“I have reason to believe that you originally believed it was appropriate to charge Hillary Clinton with regard to violations of law — various laws, with regard to mishandling of classified information. Is that accurate?” Ratcliffe, a former federal prosecutor, asked Baker.
Baker paused to gain his lawyer’s permission to respond, and then answered, “Yes.”
He later explained why he came to that conclusion, and how his mind was changed:
“So, I had that belief initially after reviewing, you know, a large binder of her emails that had classified information in them,” he said. “And I discussed it internally with a number of different folks, and eventually became persuaded that charging her was not appropriate because we could not establish beyond a reasonable doubt that — we, the government, could not establish beyond a reasonable doubt that — she had the intent necessary to violate (the law).”
Asked when he was persuaded to change his mind, Baker said: “Pretty late in the process, because we were arguing about it, I think, up until the end.”
Baker made clear that he did not like the activity Clinton had engaged in: “My original belief after — well, after having conducted the investigation and towards the end of it, then sitting down and reading a binder of her materials — I thought that it was alarming, appalling, whatever words I said, and argued with others about why they thought she shouldn’t be charged.”
His boss, Comey, announced on July 5, 2016, that he would not recommend criminal charges. He did so without consulting the Department of Justice, a decision the department’s inspector general (IG) later concluded was misguided and likely usurped the power of the attorney general to make prosecutorial decisions. Comey has said, in retrospect, he accepts that finding but took the actions he did because he thought “they were in the country's best interest.”
Baker acknowledged that during the weeks leading up to the announcement, Comey “would throw things out like that to get people to start talking and thinking about it and test his conclusions.”
Baker said that if he had been more convinced there was evidence that Clinton intended to violate the law, “I would have argued that vociferously with him [Comey] and maybe changed his view.”
He portrayed his former boss as someone who was open to changing his mind once he heard from his senior staff, even after drafting his announcement statement. "I think he would have been receptive to changing his view even after he wrote that thing," Baker said.
Baker’s account also shed light on revelations I first reported more than a year ago that the original draft of Comey’s announcement concluded Clinton had been “grossly negligent” in handling her classified emails. That is the term in espionage statutes for criminality, but the language later was softened.
Republicans have seized on the change as evidence that Comey and the FBI treated Clinton with favoritism. The IG, while criticizing Comey’s actions, concluded, however, there was no political bias involved in the decision.
What Baker's still-secret testimony makes clear is that, incredibly, we still don't know the full story on how the Clinton email investigation ended and if anyone else disagreed with the outcome — even after congressional hearings and an inspector general’s review.
If there is still the stomach to resolve the lingering questions, then there are two likely candidates to take the lead: the new attorney general, William Barr, and the new chairman of the Senate Judiciary Committee, Lindsey Graham (R-S.C.).
John Solomon is an award-winning investigative journalist whose work over the years has exposed U.S. and FBI intelligence failures before the Sept. 11 attacks, federal scientists’ misuse of foster children and veterans in drug experiments, and numerous cases of political corruption. He is The Hill’s executive vice president for video.
"Empire" actor Jussie Smollett leaves Cook County jail following his release.AP
In the wake of the arrest of actor Jussie Smollett, who was charged with staging his own racist and homophobic attack, here are just some of the other crimes that have been given prominent play by the media since the 2016 election — often accompanied by politicians decrying, “This is America today” — that turned out to be frauds:
Just before the 2016 election, the 111-year-old Hopewell Baptist Church was attacked with fire and graffiti that said, “Vote Trump.” “The political message of the vandalism is obviously an attempt to sway public opinion regarding the upcoming election,” said Rep. Bennie Thompson (D-Miss.). Turns out the arsonist was Andrew McClinton, 48, an African-American member of the church.
“Heil Trump” and ”F-g Church” were spray-painted on St. David’s Episcopal Church in Indiana after the election. It was the gay organ player who did it. “Over the course of that week, I was fearful, scared and alone, too, in my fear,” George Nathaniel “Nathan” Stang, 26, explained to the IndyStar. “I guess one of the driving factors behind me committing the act was that I wanted other people to be scared with me.”
Yasmin Seweid, 18, told police that three Donald Trump supporters harassed her and tried to steal her hijab on a No. 6 train in New York City. But the Dec. 1, 2016, alleged hate crime fell apart two weeks later when Seweid admitted she made the whole thing up because she’d been out late drinking with friends and was afraid her strict Muslim Egyptian father would be angry.
Eastern Michigan University in Ypsilanti was vandalized for months by graffiti that said, “leave n—-s” and “KKK.” A former student, African-American Eddie Curlin, 29, was eventually caught. “It was totally self-serving,” said Robert Heighes, the university’s chief of police. “It was not driven by politics. It was not driven by race.”
More than 2,000 bomb threats to Jewish institutions, including the Israeli Embassy in Washington, DC, were made in the first three months of 2017. “My personal take is it’s a statement of where we are in this country,” Michael Feinstein, the chief executive of the Bender Jewish Community Center of Greater Washington, in Rockville, Md., told The Times. In March 2017, an arrest was finally made in many of the incidents: that of a 19-year-old Jewish Israeli-American named Michael Ron David Kadar. Kadar had been rejected from the Israeli Defense Forces over mental health issues and claimed in his defense that he had a brain tumor.
A few of the threats didn’t come from the Jewish teenager. At least eight were the work of Juan Thompson, 32, who was trying to frame a woman who had broken up with him. Thompson, a black journalist, had previously been fired from The Intercept for making up sources and stories. In response to his firing, he blamed the “white New York media” and claimed his editors were racist.
Forty-two Jewish tombstones were toppled in Washington Cemetery in Midwood, Brooklyn, in March 2017. While officials were worried it was an anti-Semitic act, after an investigation, the NYPD named another suspect: the wind. “[It was] due to neglect, or weather factors like soil and dirt and wind. There is no evidence to suggest this was a case of vandalism,” a police spokesman said.
Five black cadet candidates were bombarded with hate speech on message boards at the Air Force Academy Preparatory School in September 2017. It turns out that the comments were written by one of the African-American cadets. CNN commentator Frida Ghitis didn’t think that point mattered much in a follow-up report, saying, “The election of President Donald Trump lifted the rock under which much of the hatred had hidden, allowing it to squirm out into the light.”
African-American Adwoa Lewis, 20, of Long Island said four teens yelled “Trump 2016!,” told her she didn’t belong here and slashed her tires in September 2018, leaving a note that read “Go Home.” She later admitted to making the story up and putting the note on her car.
Union Temple in Brooklyn was defaced by messages such as, “Die Jew Rats” and “Jew Better Be Ready” in early November 2018. The culprit? Gay African-American James Polite, who had previously interned for City Council Speaker Christine Quinn and was raised by Jewish foster parents. He was charged for hate crimes for the graffiti and setting fires at four other Jewish temples and schools. But friends and advocates say bigotry isn’t to blame; Polite is bipolar and was convinced that the FBI and CIA had taken over the city’s homeless shelter system.
More than 100 students marched to demand “safe spaces” after “KKK,” swastikas and the last names of four black and Latino students were scrawled in a bathroom stall at Goucher College near Baltimore in November 2018. But it turned out one of those graffiti’d names, Flynn Arthur, 21, was the person responsible. The biracial lacrosse player explained to cops that “he had been drinking and just did something dumb.”
On Dec. 30, 2018, a 7-year-old African-American girl, Jazmine Barnes, was killed in a drive-by shooting. Witnesses said a white man in a pickup truck was nearby. “We’ve got to call it what it is. Black people are being targeted in this country,” said activist Deric Muhammad. Rep. Sheila Jackson Lee (D-Texas) insisted, “Do not be afraid to call this what it seems to be — a hate crime,” But the investigation led to the arrest of two African-Americans, Eric Black Jr. and Larry D. Woodruffe, who police believe shot into Barnes’ car in a case of mistaken identity.
This past New Year’s Eve, three Savannah churches and a civil rights museum were vandalized, raising the specter of a hate crime. But it was an African-American, David Smith III, who had thrown bricks through the doors.
Video went viral of a Jan. 18 confrontation at the March for Life in Washington, DC, showing a group of students from Covington Catholic HS in Kentucky, some in MAGA hats, in a confrontation with a Native American, Nathan Phillips. “They were in the process of attacking these four black individuals,” Phillips told the Detroit Free Press. “I was there, and I was witnessing all of this … As this kept on going on and escalating, it just got to a point where you do something or you walk away, you know? You see something that is wrong, and you’re faced with that choice of right or wrong.” Other videos quickly proved that Phillips was lying. A group of Black Israelites was taunting the Covington teens with racial insults such as, “Christ is coming back to kick your cracker asses.” And Phillips wasn’t surrounded by the Covington students; he walked into the group and started banging a drum in the face of one of the kids, whose bewildered expression had online commentators quick to label a smirk. A lawyer for a Covington student has filed a defamation suit against the Washington Post for $250 million in damages.