The Surprising Story behind “October Surprise”

In his new book October Surprise, journalist Devlin Barrett recounts some sage advice he’d been given by Sandy Johnson, the longtime Washington bureau chief of the Associate Press and later president of the National Press Foundation:

October is dangerous territory in election years, because the stakes are so high, the political strategists are so ruthless, and journalists are so tired. In this heightened atmosphere at the end of an election, the consultants dig out the meanest, ugliest oppo research and peddle it to sway an election. The worst danger is in those final weeks, because a false narrative or outright lie is hard to disprove or counter.

The book focuses on the two big FBI investigations at the end of the 2016 election, one concerning Hillary Clinton’s emails from her time as Secretary of State (“Midyear”), the other focused on the Trump campaign’s ties to Russia (“Crossfire Hurricane”).  As a Wall Street Journal reporter at the time, Barrett (now at the Washington Post) played a tangential, but not insubstantial role in covering the investigations and in at least one very significant way, influencing them.

Barrett’s quotation of Johnson’s warning comes in the context of describing attempts by the FBI to discover if the Trump Campaign was planning an “October Surprise” in 2016.  The month of October 2016 was full of them, and how they each came about is still largely unknown.  For example, in the afternoon of Friday, October 7, 2016 three consecutive bombshells dropped.  First, at 3:30pm the Obama administration issued a press release accusing the Russian government of hacking the emails of the Democratic National Committee.  Just thirty minutes later, the Washington Post published a 2005 video from an “Access Hollywood” interview where Donald Trump bragged about his ability to accost women (“It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the pussy.”). About 4:30 pm, WikiLeaks began releasing e-mails stolen from Clinton campaign chairman John Podesta, providing almost endless opportunities for false or misleading stories about Clinton and her campaign in the final weeks before the election.

These stories provided an array of  “narratives” for the final weeks of the election, but were largely displaced at the end of the month by what turned out to be the largest surprise of them all, the FBI’s decision to reopen the previously closed Clinton email investigation and seek a search warrant to review emails held on the laptop of disgraced former Congressman Anthony Weiner, the husband of Clinton’s longtime aide Huma Abedin.  That story dominated the final ten days before the election, almost certainly providing Donald Trump with enough of a swing in his direction to account for his very slim margin of victory in four key states.

While the source of the Access Hollywood tape remains an unsolved mystery, much has been written about the Russian government hacking of the DNC emails and the subsequent release by WikiLeaks, as well as the decision by James Comey to reopen the Clinton email investigation.  Still, some further mysteries remain, and Devlin Barrett’s role is one of them, notwithstanding his new book.

An October 12, 2019 New York Times story on James Comey revealed that the former FBI director is a fan of Hanlon’s razor, the maxim “never attribute to malice that which is adequately explained by stupidity.”  It’s a great rule of thumb that helps you avoid speculation about people’s motives.  And I believe it explains most of what happened with the re-opening of the Clinton e-mail investigation, which was just one mistake after another.  The surprising thing to me is that no one seems to have noticed the errors, not least of all the participants who played a key role, including both Comey and Barrett.

A quote-of-the-day calendar page on Mr. Comey’s desk.

The re-opening of the Clinton e-mail investigation at the end of October 2016 was the result of two independent complaints from within the FBI that managed, by coincidence to create a maelstrom.  The first of these complaints has already been well-documented, but Barrett provides even more details.  On September 27, John Robertson the FBI special agent in New York who was tasked with searching the laptop of Anthony Weiner for evidence of his sexting an underage girl discovered that the laptop also contained a large cache of emails (over 340,000) from Huma Abedin’s account, including many from the time when she was working as Secretary Clinton’s assistant at the State Department.  The agent dutifully notified his superiors and the information was passed on to Washington the very next day.  Pretty much everyone on the Midyear leadership team was informed (although Comey later said he did not remember hearing about it).  The team was led by Deputy Director Andrew McCabe and included Executive Assistant Director Michael Steinbach, Associate Director Bill Priestap, Agent Lead Peter Strzok and a Supervisory Special Agent (“SSA”) (whose name has never been disclosed).  The SSA was given the task of investigating further.  A warrant would be needed if anyone wanted to review the emails.

And then nothing happened.  The Inspector General Michael Horowitz in his June 2018 report found four explanations for this inaction: (1) the FBI was waiting for additional information, (2) the FBI needed a search warrant, (3) the FBI did not believe that the information was likely to be significant, and (4) members of the team were reassigned to the investigation of Russian interference into the election.  Horowitz took the FBI to task for not following up quickly, finding the various explanations “unpersuasive justifications for not acting sooner.”  But Horowitz was clearly wrong.  The two middle explanations — the FBI needed a search warrant and no one thought the information would be significant — were not only absolutely true and correct, but also dispositive.  You cannot get a search warrant without probable cause, and if there was absolutely no indication that the emails would constitute evidence of a crime, there was no probable cause.  Without probable cause, no further investigative steps were possible.

But of course the agent in New York who discovered the emails didn’t know that.  He waited impatiently for someone to call him and became increasingly worried that no one was following up.  Barrett does an excellent job in his book of recounting Robertson’s increasing anxiety as the weeks went by.  According to Barrett’s account, Robertson worried that “someday angry members of Congress would come after him.”  He told his supervisors at the SDNY U.S. Attorney’s Office that he feared that “this is going to make us look really, really horrible.”  Concerned that Robertson would do something rash, on October 20 the two supervisors went up the chain of command in the US Attorney’s Office, while Robertson wrote himself an anguished “memo to self.”

On Friday, October 21, SDNY U.S. Attorney Preet Bharara tasked Joon Kim, the deputy US attorney in New York, to  call Sally Yates, the Deputy Attorney General, and let her know about their agent’s concern that no one was following up on the Clinton e-mails.  Yates referred Kim to George Toscas, the senior National Security Division Lawyer in the Attorney General’s office,  who then contacted Peter Sztrok and Justice Department lawyer David Laufman to inquire about the matter.

By coincidence that same week, Barrett was working on a story about Andrew McCabe and had started asking questions concerning $675,288 in donations by The Virginia Democratic Party and Common Good CA, a political action committee run by Virginia Governor Terry McCauliffe, to McCabe’s wife Dr. Jill McCabe’s unsuccessful 2015 campaign for Virginia state senate.  The genesis of this news story is something that Barrett does not reveal in his book, but it is actually more significant than the story itself.  Apparently Barrett had heard from “a number of people inside the FBI” who were concerned that the donations to McCabe’s wife’s campaign created a conflict of interest for McCabe, even though the FBI’s top ethics official, Patrick Kelley, had determined that there was no problem since McCabe’s wife’s campaign had ended before McCabe was assigned responsibility for the Clinton e-mail case, and the connection to Clinton, via McCauliffe, the former chair of Clinton’s unsuccessful 2008 presidential campaign was attenuated, at best.  That there might be a few disgruntled FBI personnel eager to take digs at McCabe, an ambitious, rising star in the office, is hardly news.  Most journalists would have dismissed the story as typical inter-office back-biting.

But not Barrett.  The matter “didn’t sit well” with him.  By complete coincidence, this minor, gossipy snipe against McCabe set Barrett off on a Proustian reverie that would have enormous consequences.  When Barrett was young, he tells us, his mother also ran unsuccessfully for the state legislature in New York.  As he was only nine years old, he said he had paid little attention at the time.

But I also remembered, years later when I was in high school, riding in her rusty Subaru sedan one day, she noticed a local businessman strolling down the sidewalk of out hometown. My mother sighed and reminisced about how the businessman had donated to her long-ago campaign. She not only remembered the donation, which was for no more than a few hundred dollars, but she still felt somewhat guilty about it, like she’d let him down.

Leaving aside the very remote likelihood that any person would actually have this sort of memory, the obvious differences between Barrett’s story and the McCabe situation seem not to have been noticed by the journalist.   Yes, Barrett’s mother might have expressed pangs of regret upon the sight of a former donor.  But would Barrett’s father have expressed similar feelings, not towards the donor himself, but towards a former boss of the donor to his wife’s campaign?  That is the McCabe situation.  If that type of attenuated Six-Degrees-of-Kevin-Bacon guilt by association is evidence of a disqualifying conflict of interest for a Deputy FBI Director, then good luck finding anyone in Washington to supervise an investigation of anyone else.  (By way of comparison, try finding any sort of  discussion about the obvious conflict of interest when a three-judge panel of the D.C. Circuit Court of Appeals appointed Kenneth Starr in 1994 to investigate the suicide death of Deputy White House Counsel Vincent Foster and the Whitewater real estate investments of Bill Clinton.  Starr had lost his job as Solicitor General, and a likely Supreme Court appointment, when Bill Clinton defeated his boss George H.W. Bush in 1992.)  No, the real story was not the story about McCabe and any conflict of interest, it was that anyone would take seriously this type of phony allegation against McCabe.  It was the very type of story that Barrett’s mentor Sandy Johnson had warned him about, a “false narrative” that was “hard to disprove or counter.”

The Wall Street Journal posted Barrett’s hatchet piece on McCabe on Sunday night, August 23, and it appeared in the print edition the next day above the fold.  That same morning, McCabe attended a regularly scheduled 9:00 a.m. briefing for Attorney General Loretta Lynch, after which George Toscas asked McCabe about the Weiner laptop.  Meanwhile, Barrett started asking the FBI questions about his next story, based on allegations that McCabe had told FBI agents not to pursue an investigation of the Clinton Foundation (a separate matter based on Republican fantasies of a pay-to-play scheme involving donations by foreign governments to the Clinton charity).  In fact, the Justice Department had given instructions to the FBI in February not to pursue any further action without any incriminating evidence because of the upcoming election.  Some agents in Brooklyn had tried to do an end-run and revive the case, and in August 2016 Principal Associate Attorney General Matthew Axelrod had instructed McCabe to tell the agents to stand down, which, after voicing some objections, McCabe had done.  But to Barrett the story was a perfect fit for the “false narrative” he and his unnamed sources were bent on spinning about McCabe.

With a growing cascade of unwarranted insinuations against his ethics, McCabe also had to deal with the Weiner laptop.  On Wednesday, October 26 the agents in Washington and New York had discussed the matter and reviewed the facts, which were nothing more than that as many as 675,000 emails from Abedin’s account were on the laptop.  All agreed that a warrant was required to review them.  That evening McCabe decided that they needed to re-open the case, no doubt to avoid yet another story by Barrett.  No one believed that searching the emails would result in any evidence of a crime.

Early the next morning, on October 27, McCabe and Lisa Page, the FBI attorney assigned to assist him, sent out emails calling a 10:00 am meeting of the Midyear Team with Director Comey.  McCabe was not in the office and had to call in to the meeting.  Before anything of substance could be discussed, however, FBI General Counsel Jim Baker stopped the meeting to ask whether McCabe should be recused and removed from the call “out of an abundance of caution” because of the very public allegations being leveled in Barrett’s articles.  Both McCabe and Page were then kicked out of the meeting that they had convened!

This was a fateful decision.  As anyone who has worked on a team knows, when a few key players get sidelined, the team can become unbalanced.  That is precisely what happened to the Midyear team without McCabe and Page.  After Comey was briefed on the Weiner laptop, he quickly gave the go-ahead to seek a search warrant, and immediately turned to what was for him the more pressing issue, what to tell Congress.  We’ve all heard Comey relay his explanation for that further step, but hardly a word has been said about the initial decision to seek a search warrant, which was the decision setting the ball in motion.

That Lisa Page wanted to be in the meeting and to discuss whether or not they should seek a search warrant is clear from the text messages she sent to Peter Strzok later that day: “I obviously don’t have to tell you how completely INFURIATED I am with Jim [Baker] right now. . .  Please, let’s figure out what it is we HAVE first. What if we can’t make out PC [probable cause]? Then we have no further investigate step.”

When asked afterwards why he authorized the re-opening of the Clinton e-mail case, Comey testified that it was because he thought they might find what he referred to as the missing “golden emails”

Comey told us that the potentially great evidentiary significance of the newly discovered emails would have made it particularly misleading to stay silent. But we found that the FBI’s basis for believing, as of October 28, that the contents of the Weiner laptop would be significant to the Clinton email investigation was overestimated. Comey and others stated that they believed the Weiner laptop might contain the ‘missing three months’ of Clinton’s e-mails from the beginning of her tenure when she used a BlackBerry domain, and that these ‘golden emails’ would be particularly probative of intent, because they were close in time to when she set up her server. However, at the time of the October 28 letter, the FBI had limited information about the Blackberry data that was on the laptop. The case agent assigned to the Weiner investigation stated only that he saw at least one BlackBerry PIN message between Clinton and Abedin. As of October 28, no one with any knowledge of the Midyear investigation had viewed a single email message, and the Midyear team was uncertain they would even be able to establish sufficient probable cause to obtain a search warrant. [IG Report, p. 373.]

To understand how insane this is, we really need to back up a bit, to July 5, 2016 when Comey announced that the investigation had come up with no basis for prosecuting Clinton.  At that point, the FBI had reviewed all of the work-related emails voluntarily turned over by Clinton, Abedin and numerous others, over 30,000 of them.  From that group “110 emails in 52 email chains have been determined . . . to contain classified information at the time they were sent or received,” Comey had announced, yet none of the emails had been marked classified at the time they were received.  After all of the hoopla over Clinton’s emails, you might be forgiven if you believed, like Barrett apparently still does, that “[i]t was against the law to put classified information in a low-side [i.e. unclassified] government email, so in criminal terms it didn’t matter very much whether such classified information was in an unclassified government email or a personal email.” What Barrett should have said is that it is against State Department rules and regulations to put classified information in an unclassified email.  See, e.g. Foreign Affairs Manual, 5 FAM 750 Electronic Mail (Email) Policy.  You can be fired for violating those rules.  But that is not the same as saying it is against the law.

For the actual criminal law on handling classified materials, we need to look at the Espionage Act of 1917, 18 U.S.C. § 793.  The two provisions of that law that were at issue in the Clinton email investigation — the only ones identified in the search warrant affidavit for the Weiner laptop — were § 793(e) and (f).  The provisions authorize a sentence of up to ten years for anyone who has unauthorized possession of information related to the national defense that the possessor has reason to believe could be used to the injury of the United States, if the person willfully transmits the information to an unauthorized person, or through gross negligence permits the information to be removed from its proper place of custody or delivered to anyone in violation of his trust.  Trying to fit the facts of Hillary Clinton’s use of a private email server into this criminal statute is like trying to fit a round peg into a square hole.  It just can’t be done.  The law is aimed at real espionage, not using a private server to send and received emails between authorized recipients.

Comey had gone off the reservation in his July 5 press conference to suggest that Clinton was “extremely careless” in the handling of very sensitive, highly classified information.  There was also no evidence of that.  In reality, Clinton had received emails that were not marked as classified from other State Department officials and presumably had merely replied to them or forwarded them to others.  It is hard to see how that could ever be characterized as careless, let alone extremely careless.  But regardless, it was never criminal.  Indeed, in the entire 99-year history of the statute, the Justice Department had never charged anyone for violating the “gross negligence” section of the statute, which also requires that the materials be actually delivered to or removed by an unauthorized person to the detriment of national security.   Very simply, what Clinton had done in using a private server for emails was not a crime.  It wasn’t espionage, or anything even close to espionage.

Perhaps Comey’s “golden emails” explanation was so bewildering that no one ever bothered to ask him what exactly he meant.  Seriously, what could he have thought he was going to find that would result in a criminal prosecution?  He has never explained that and it is hard to imagine what he could have been thinking, and how that would fit into the requirements of the criminal statute.  Did anyone really think that they might find an email from Hillary Clinton directing the setup of a private email server so that she could illegally transmit classified information to harm our national security?  Is that what they thought they would find?  It seems insane, and yet that apparent fantasy seems to be the sole justification Comey and the FBI have provided for re-opening the investigation.

There was an additional problem, however.  If the FBI wanted to find those three months of missing emails with evidence of some sort of criminal intent, what probable cause did they have to believe that they would be on the Weiner laptop?  The answer is that they had none.  And so the search warrant application that was presented to a magistrate judge in New York on Sunday October 30 contained no reference whatsoever to the three months of missing emails that Comey and others said they wanted to find.  IG Report p. 325 n. 178.  Instead, to obtain the warrant, the Supervisory Special Agent merely suggested that the laptop might have classified emails that the FBI wanted to clean up.  That was super dishonest, because we know that the FBI wasn’t at all interested in finding more copies of  classified emails.  Comey and Strzok were emphatic that this was not a spill clean-up and that classified emails alone were not enough to support a prosecution.  Comey stated in his book Higher Loyalty “[n]o fair-minded person with any experience in the counterespionage world (where ‘spills’ of classified information are investigated and prosecuted) could think this was a case the career prosecutors at the Department of Justice might pursue. There was literally zero chance of that.” IG Report 374.  Strzok said there was “there was no evidence of intent and it’s looking, despite the prominence of it, like an unusual, but in a way fairly typical spill and there was no fricking way the Department of Justice in a million years was going to prosecute that.” IG Report 167.

Of course, the laptop didn’t contain anything new and significant, mainly just copies of the same classified emails the FBI had already reviewed.  But it is important to remember that there was never any basis to believe that the FBI would find anything new.  Everyone admitted that they didn’t expect there to be anything significant on the laptop.  The sole justification was the hope they might find emails from an earlier time period, before the server was set up.  So, having no reason to review for more classified emails, and no probable cause to believe they’d find anything else, the FBI presented an intentionally misleading pretextual warrant application to the magistrate judge.  Of course, by the time the judge reviewed the application, Comey’s letter announcing the new investigation was all over the news, and there was no chance that the judge would stick his neck out and hold up review of the laptop.

By now probably everyone has heard the story that the FBI worked tirelessly over the next week to carefully review the hundreds of thousands of emails on the laptop, before finally concluding on Sunday, November 6 that there was nothing significant so that the FBI could announce the re-closure of the investigation.  Barrett also recounts that narrative, but it is likely false.  The truth is that there were no emails at all on the laptop from the three-month period that Comey and the others thought might be significant.  Surely that fact was discovered by the agents almost immediately.  But who wants to tell the boss?  How would that look?  So the agents decided to search the rest of the emails to see if they could find something to justify what they had just done.  After a week of searching through them, they could safely say that nothing was there, which is what everyone had believed all along.

In the end, the story of this cascade of errors is a sad one.  Comey’s maneuver did not manage to preserve the reputation of the FBI, nor his own.  When recounting what happened, to this day he still maintains his decision was the correct one.  The other path, he claims, would have been “catastrophic.”  Really?  How so?  No one ever bothers to ask him to do the mental exercise and explain just what he means.  How exactly could the decision not to search for non-existent evidence of a crime that never happened, which no one even thought was there, have ever led to a catastrophe?  Sure, if the news had gotten out that Weiner’s laptop was found with Abedin’s emails and the FBI had decided not to search it, it would have led to the normal wild speculation of the right-wing fever swamp, but a catastrophe?  Surely, the FBI could have explained that there was no probable cause to conduct a further search.

There is a maxim in the law that one should avoid the appearance of impropriety, but Comey sort of mangled it.  Avoiding the appearance of impropriety cannot justify doing something that is actually improper.  In other words, you cannot do the wrong thing just because it will make you look like you are doing the right thing.  For whatever reason, Comey never understood that.  And as a result, we all are suffering.

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