The FBI’s raid of Mar-a-Lago last week drew immediate comparisons to the bureau’s handling of its investigation into Hillary Clinton’s private email server.
The federal investigations of former President Donald Trump and his 2016 foe both stem from the duo’s handling, or mishandling, of classified information.
Clinton investigation launch
The FBI said its Clinton email investigation, dubbed “Midyear Exam,” began with a July 2015 referral from the intelligence community inspector general in connection with Clinton’s use of a private email server during her time as secretary of state. It was hosted in the basement of her New York home.
The referral detailed “the potential compromise of classified information to security officials within the Executive Branch,” and its main purpose “was to notify security officials that classified information may exist on at least one private server.” The watchdog “did not make a criminal referral — it was a security referral made for counterintelligence purposes.”
Trump investigation launch
Then-Archivist David Ferriero said in February that the National Archives “identified items marked as classified national security information within the boxes” it received from Mar-a-Lago this year and that “because NARA identified classified information in the boxes, NARA staff has been in communication with the Department of Justice.” Ferriero said the National Archives had “ongoing communications” with Trump representatives throughout 2021, “which resulted in the transfer of 15 boxes to NARA in January 2022.”
The referral has not been made public despite Republican demands for it to be produced.
Conduct of the Clinton email investigation
Midyear Exam was led by FBI officials who would also be involved in the Trump-Russia Crossfire Hurricane investigation. Since-fired FBI agent Peter Strzok exchanged numerous anti-Trump texts with former FBI lawyer Lisa Page, with whom he was having an affair, and Strzok promised Page that “we’ll stop” Trump in August 2016.
Kevin Clinesmith, now an ex-FBI lawyer, was also involved and expressed favor toward Clinton, saying “viva le resistance” after Trump’s win. Clinesmith later pleaded guilty in special counsel John Durham’s investigation for fraudulently editing an email in 2017 to state Trump campaign associate Carter Page was “not a source” for the CIA.
“We found that the inappropriate political messages cast a cloud over the Midyear investigation,” Department of Justice Inspector General Michael Horowitz said in his 2018 report, saying it was “deeply troubling” that top FBI officials seemed willing to undercut Trump’s election chances.
The DOJ watchdog also noted the FBI’s preference for voluntary means to obtain evidence, including voluntary witness interviews, its decision not to seek certain evidence from Clinton aides, the granting of immunity to witnesses, and the unusual way Clinton’s lawyers were allowed in her July 2016 interview with the bureau.
Without alerting then-Attorney General Loretta Lynch of what he would be saying, then-FBI Director James Comey announced in July 2016 that he did not believe charges should be filed.
Comey’s ‘October surprise’
The FBI investigation was reopened when, in late September 2016, thousands of emails belonging to Clinton aide Huma Abedin were found on the laptop belonging to her husband, former New York Democratic Rep. Anthony Weiner. Comey sent a letter to Congress in late October 2016 saying the FBI uncovered emails possibly pertinent to the investigation.
FBI agent John Robertson unearthed the emails in September 2016, but for weeks after being alerted, top FBI leaders, including Strzok and then-FBI Deputy Director Andrew McCabe, took little to no action.
Horowitz wrote, “We did not have confidence that Strzok’s decision to prioritize the Russia investigation over following up on the Midyear-related investigative lead discovered on the Weiner laptop was free from bias.”
The FBI investigation was closed again just before the election. Clinton and her allies blamed Comey for her loss.
Conduct of the Trump email investigation
The FBI indicated in April it was investigating Trump and, in May, issued a subpoena to the National Archives to obtain the Mar-a-Lago records. Federal investigators, including Jay Bratt, a top DOJ counterintelligence official, reportedly visited Mar-a-Lago in early June and met with Trump lawyers, and the former president reportedly stopped by. The DOJ reportedly followed up a few days later, asking the Trump team to further secure the room where the records were held.
An FBI search warrant was approved by Magistrate Judge Bruce Reinhart on Aug. 5, and the bureau raided Mar-a-Lago on Aug. 8.
The unsealed warrant cited 18 U.S. Code 793 (part of the Espionage Act) related to “gathering, transmitting, or losing defense information.” The warrant also pointed to 18 U.S. Code 2071 on “concealment, removal, or mutilation” and 18 U.S. Code 1519 on “destruction, alteration, or falsification of records in Federal investigations.” The latter relates to obstruction of justice.
Attorney General Merrick Garland said he “personally approved the decision to seek a search warrant.”
The property to be seized included documents constituting “evidence” of violations of the listed criminal statutes, including “any physical documents with classification markings” along with any boxes containing that information and any other containers stored with those records. The FBI also looked for “any government and/or Presidential Records” from Trump’s presidency.
Obama’s vs. Biden’s knowledge of the investigations
Notes from a 2016 FBI interview with Abedin reveal former President Barack Obama used a pseudonym when emailing Clinton in 2012. Obama later claimed in 2015 that he found out about her private server “the same time everybody else learned it — through news reports.”
White House press secretary Karine Jean-Pierre said President Joe Biden “was not briefed, and he was not aware” of the Trump raid beforehand, saying, “No one at the White House was given a heads-up.”
Clinton investigation findings
Comey said that from the 30,000 Clinton emails returned to the State Department, 110 emails in 52 email chains were determined to contain classified information when sent, eight chains contained top secret information, 36 secret information, and eight confidential.
The FBI was only able to recover about 5,000 of the 30,000 she deleted and did not hand over. Comey said that of those, three were classified. Comey “found no evidence” those emails “were intentionally deleted in an effort to conceal them.”
In 2019, the State Department identified nearly 600 security violations in its review of email records of former officials and aides to Clinton.
Trump investigation findings
It is not yet known what the DOJ will conclude about Trump’s records.
The items seized included “various classified / [top secret] / [sensitive compartmented information] documents,” four “miscellaneous top secret documents,” three “miscellaneous secret documents,” two “miscellaneous confidential documents,” and one “confidential document.”
Trump and his allies said he declassified the records, and the former president contended in a statement that he had a “standing order” throughout his presidency that “documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”
Clinton prosecution declined
Clinton was investigated under 18 U.S.C. 793(f), whose statute cites “gross negligence.” Comey said in July 2016 that “although we did not find clear evidence” that Clinton or her associates “intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.” An earlier FBI draft used the term “grossly negligent.”
Comey declared, “Although there is evidence of potential violations … regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”
Horowitz concluded, “We found no evidence that the conclusions by the prosecutors were the result of improper considerations.”
Possible Trump prosecution
It is not known whether Trump will be prosecuted or what charges may be considered, if any.
The search warrant cited 18 U.S.C. 793, part of the Espionage Act, and if charged under that, Trump could face up to 10 years in prison.
If charged under 18 U.S.C. 2071, Trump could face up to three years in prison. That statute contains a provision barring those found guilty from holding office, though it is unlikely that would apply to a constitutionally defined office like the presidency. If charged with obstruction of justice under 18 U.S.C. 1519, Trump could face up to 20 years behind bars.
