Lindsey Graham's Faustian bargain
FBI’s top lawyer believed Hillary Clinton should face charges, but was talked out of it
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.