Closed-door testimony by former head of counterintelligence Bill Priestap reveals handpicked group ran the investigations outside of his control
Bill Priestap, the high-ranking FBI official responsible for overseeing both the Clinton email investigation and the agency’s counterintelligence investigation into the Trump campaign appeared to not have been in real control of his own investigations.
In closed-door testimony before congressional lawmakers in June last year, Priestap, who served as the head of the FBI’s counterintelligence division, acknowledged it was mostly FBI agent Peter Strzok and FBI analyst Jonathan Moffa who were “driving the train.”
Talking to lawmakers, Priestap described the unusual circumstances under which he inherited the team in January 2016, saying the members had been previously handpicked by an unknown high ranking official at the FBI.
In his June 5, 2018, testimony—a transcript of which was reviewed for this article—Priestap appears to have been unaware of key meetings that took place between Strzok and the second highest ranking official at the FBI, Deputy FBI Director Andrew McCabe.
Priestap’s congressional interview was conducted in an unclassified setting, with the appropriate agency counsel present to ensure that classified information didn’t enter into the unclassified setting.
When questioned about text messages sent between Strzok and FBI lawyer Lisa Page that showed a strong bias in favor of Hillary Clinton and against Donald Trump, Priestap told lawmakers “it wasn’t the Pete Strzok that I know.”
Priestap also said he was unaware of a meeting Strzok had with McCabe and Page—who served as counsel to McCabe—that was described in the now-infamous “insurance policy” text message.
“Somebody talking about an insurance policy, I would have asked, ‘What the heck do you mean by that?’” Priestap said in the interview before the House judiciary committee.
The FBI investigation into Clinton was opened on July 10, 2015, by Randall Coleman, then-head of the FBI’s counterintelligence division and predecessor to Priestap. At this time, McCabe was the assistant director in charge at the Washington Field Office and Strzok was an assistant special agent in charge at the Washington Field Office.
On July 30, 2015, McCabe was suddenly promoted to the No. 3 position within the FBI as associate deputy director and was transferred to FBI headquarters. Strzok would soon be transferred to headquarters as well.
Approximately two months after the opening of the Clinton investigation, FBI leadership asked for the transfer of hand-selected agents from the Washington Field Office. Strzok was one of those chosen and he was moved to FBI headquarters probably in Sept. or Oct. of 2015.
According to Priestap, Coleman had “set up a reporting mechanism that leaders of that team would report directly to him, not through the customary other chain of command” in the Clinton email investigation. Priestap, who said he didn’t know why Coleman had “set it up,” kept the chain of command in place when he assumed Coleman’s position in January 2016.
On Jan. 29, 2016, FBI Director James Comey appointed McCabe to the No. 2 position within the FBI as Deputy FBI Director. McCabe had served in the number three slot at the FBI for only six months.
Priestap Was Unaware of Key Conduit at DOJ
The FBI relied in large part on allegations contained in the so-called Steele dossier in obtaining a FISA warrant on Trump campaign adviser Carter Page. The author of the dossier, former MI6 agent Christopher Steele, as well as the company he was hired by, Fusion GPS, were both feeding information to the FBI through different channels.
A key conduit for Steele to the FBI was high-ranking DOJ official Bruce Ohr.
Asked if he was familiar with Ohr, Priestap told lawmakers, “I think I’ve seen Bruce Ohr, but I don’t think I’ve ever been in a meeting with Bruce Ohr.” Priestap also said he never worked with Ohr on a counterintelligence investigation, which would include the FBI’s investigation into Trump-Russia collusion:
Ms. Shen: So you have never worked with Bruce Ohr on a counterintelligence —
Mr. Priestap: I have not, no.
Priestap appeared to be completely unaware of the role that Ohr played in the FBI’s Crossfire Hurricane investigation into the Trump campaign—or of Ohr’s meetings with the FBI.
On July 30, 2016, Ohr had a breakfast meeting with Steele. In the days immediately following this meeting, Ohr met with McCabe and Page in McCabe’s FBI office.
In either late September or early October 2016, Ohr had another meeting—this time with Strzok, Page, and two or three DOJ career officials from the criminal division: Bruce Swartz, Zainab Ahmad, and Andrew Weissman (Ohr testified that he was unsure whether Weismann was at this or a later meeting).
On Nov. 21, 2016, Ohr had an additional meeting with Strzok and Page where he was introduced to FBI agent Joe Pientka, who would become Ohr’s FBI handler. Pientka was also present with Strzok during the Jan. 24, 2017, interview of then-national security adviser Lt. Gen. Michael Flynn.
On the following day, Nov. 22, 2016, Ohr met alone with Pientka. Ohr would continue to relay his communications with Steele to Pientka. Unbeknownst to Ohr, Pientka was transmitting all the information directly to Strzok for use in the Crossfire Hurricane investigation Priestap was overseeing.
Priestap Unaware How Often Strzok Met With McCabe
Text messages sent between Strzok and Page, which were first obtained by DOJ Inspector General Michael Horowitz, suggest that McCabe was a preferred line of direct communication for Strzok. These same texts indicate that both Strzok and Page frequently met directly with McCabe. Priestap admitted he did not know the frequency of such meetings:
Mr. Brebbia: Would they frequently meet with then Deputy Director McCabe without you being there?
Mr: Priestap: No. I have no idea of the frequency in which that might have occurred. But while responsible for this case, I couldn’t drop the thousands of others cases and matters, issues I was responsible for. And so I had numerous regular meetings outside of the office with other U.S. Government entities, what have you.
And as a result, in this particular case, Pete would often be a point person if I was, for example, half the day at the Central Intelligence Agency, and things came up, they could go direct — “they” meaning my 7th floor, EAD, deputy director, would know they could go straight, of course, with Pete.
So I would think — I have no idea of the exact numbers, but these meetings absolutely would have occurred without me.
A report published by Inspector General Horowitz in June last year, which reviewed the FBI’s investigation of the Clinton email case, included the notable statement that several witnesses informed the IG that Page “circumvented the official chain of command, and that Strzok communicated important Midyear case information to her, and thus to McCabe, without Priestap’s or Steinbach’s knowledge.” Steinbach, who was the executive assistant director and Priestap’s direct supervisor, left the FBI in early 2017.
Page’s role as special counsel to McCabe has been described by former FBI general counsel James Baker in Congressional testimony as being both unique and undefined.
“I expected them [Page & McCabe] to report back to me about important things. And I had leave it to both of their discretion to figure out that — what important was, I know it’s kind of vague. But that was how we were supposed to try to work it out,” Baker told lawmakers on Oct. 3, 2018.
Priestap Inherited the Investigation
A repeating theme throughout Priestap’s testimony was his assertion that “I inherited the investigation and I inherited the investigative team.” The decision to prosecute the Clinton case as a counterintelligence matter, instead of a criminal investigation, also occurred before Priestap’s tenure. Priestap repeatedly stated that he “wasn’t there for those decisions.”
Priestap testified that the entire FBI team working on the Clinton email case was already in place at the time Priestap became the head of the Counterintelligence Division:
Mr. Parmiter: So, sir, you also in addition to — another question about you sort of inheriting the investigation. We just talked for a while about the makeup of the team or teams, the investigative team, the team that briefed the Director.
Mr. Priestap: Yeah.
Mr. Parmiter: How were those teams selected, particularly the investigative team?
Mr. Priestap: Yeah. I don’t know, meaning it was selected before I — I inherited the investigation and I inherited the investigative team.
Priestap said it was his understanding the entire team had been personally chosen and he was unaware of precisely who had controlled the selection process:
Mr. Priestap: [It’s] my understanding it was the first, that people were hand selected.
Mr. Baker: Do you have any understanding of who did that hand selection?
Mr. Priestap: No.
Priestap said the decision would have to be made “at least at the assistant director level, where I sit.” Priestap also noted that if a field office resisted the agent’s move, the decision “could be elevated further.”
McCabe and Strzok Moved to HQ for Clinton Investigation
Starting in October 2015 and into the first three months of 2016, FBI Director James Comey made a series of high profile reassignments that resulted in the complete turnover of the upper-echelon of the FBI Team working on the Clinton email investigation:
- Oct. 12, 2015: Louis Bladel was moved to the New York Field Office.
- Dec. 9, 2015: Charles “Sandy” Kable was moved to the Washington Field Office.
- Dec. 1, 2015: Randall Coleman, Assistant Director – head of Counterintelligence, was named as executive assistant director – Criminal, Cyber, Response, and Services Branch, and was replaced by Bill Priestap.
- Feb. 1, 2016: Mark Giuliano retired as Deputy FBI Director and was replaced by Andrew McCabe.
- Feb. 11, 2016: John Giacalone retired as Executive Assistant Director and was replaced by Michael Steinbach.
- March 2, 2016: Gerald Roberts, Jr. was moved to the Washington Field Office.
Comey was the only known involved senior FBI leadership official who remained a constant during the entirety of the Clinton email investigation.
Strzok told lawmakers last year that the Clinton Mid-Year Exam was opened out of headquarters by then-Assistant Director Coleman. Strzok also noted that Section Chief Kable was involved in that effort. The FBI investigation into the Clinton emails was formally opened on July 10, 2015.
At this time, Strzok was an Assistant Special Agent in Charge at the Washington Field Office. The Assistant Director in Charge at the Washington Field Office during this period was Andrew McCabe, a position he assumed on Sept. 14, 2014.
Notably, on the same day, John Giacalone was appointed as the executive assistant director of the National Security Branch at FBI Headquarters, a position that had been held by McCabe prior to his move to head the Washington Field Office. Giacalone became the supervisor of Priestap’s predecessor, Coleman. Also on Sept. 14, Michael Steinbach replaced Giacalone as assistant director of the Counterterrorism Division. Steinbach would later replace Giacalone as the executive assistant director of the National Security Branch on Feb. 11, 2016, when Giacalone retired. With this appointment, Steinbach became Priestap’s direct supervisor.
Strzok said the decision to open the Clinton case at FBI headquarters as opposed to the Washington Field Office was made by senior executives at the FBI—certainly at or above Assistant Director Coleman’s level. At this time, Coleman was serving as the head of the FBI’s counterintelligence division—the same position Priestap would take over in January 2016.
On July 30, 2015, within weeks of the FBI’s opening of the Clinton investigation, McCabe was suddenly promoted to the No. 3 position within the FBI. With his new title of associate deputy director, McCabe was transferred to FBI headquarters from the Washington Field Office and his direct involvement in the Clinton investigation began.
Strzok would shortly rejoin his old boss. Approximately two months after opening the Clinton investigation, FBI headquarters reached out to the Washington Field Office, saying they needed greater staffing and resources “based on what they were looking at, based on some of the investigative steps that were under consideration.”
Strzok was one of the agents selected and, likely in September or early October 2015, he was assigned to the Mid-Year Exam team and transferred to FBI headquarters.
On Jan. 29, 2016, FBI Director Comey appointed McCabe as Deputy FBI Director, replacing the retiring Giuliano, and McCabe assumed the No. 2 position within the FBI after having held the No. 3 position for all of six months.
Strzok, in his comments to lawmakers, acknowledged that the newly formed investigative team was largely made up of personnel from the Washington Field Office and FBI headquarters.
This new structure resulted in some unusual reporting lines that went outside normal chains of command. Strzok, who did not normally fall under Priestap’s oversight, was now reporting directly to him. Priestap described the structure as being established by his predecessor, Randall Coleman, during his testimony:
“I don’t know why he [Coleman] set it up, but he set up a reporting mechanism that leaders of that team would report directly to him, not through the customary other chain of command. And I kept that on when I assumed responsibility,” Priestap said.
Sometime around September or October 2016, Strzok was promoted to Deputy Assistant Director, a position that came under Priestap’s normal line authority. By this time the Clinton email case was formally closed and Strzok had already opened the counterintelligence investigation into then-candidate Trump on July 31, 2016.
The Affair Notification
It was Priestap that sat down with Strzok and Page and told them he’d heard rumors of their ongoing affair. Priestap noted during his June 5 interview that he had this discussion “about a year ago,” placing the meeting in mid-2017. Priestap was informed of the possibility of the affair by one of Strzok’s two co-managers in the Clinton email investigation—either Moffa or FBI lawyer Sally Moyer:
Mr. Priestap: I spoke to Deputy Director McCabe about it. I also spoke to both Pete and Lisa about it. I felt I owed it to them. Lisa did not report to me, but I felt that they ought to be aware of what was being said. I didn’t ask them if it was true, but they needed to know that that impression was out there.
And I don’t remember my exact words. But what I was trying to communicate is this better not interfere with things, if you know what I mean. Like, to me, the mission is everything. And so, we all have our personal lives, what have you. I’m not the morality police.
According to Priestap, an affair was not technically against FBI policy—although he admitted that under certain circumstances it could become a blackmail concern, “if that was going on that potentially makes them vulnerable.” Priestap did not ask either Strzok or Page if the allegations were true. He simply placed them on notice that he was aware of the rumors.
Priestap said that he did not report the affair to the FBI’s Office of Professional Responsibility but did feel that McCabe needed “to be aware that there’s talk this might be going on.” It is not clear if McCabe ever discussed the issue with either Strzok or Page.
The Mid-Year Exam Teams
Priestap revealed a surprising level of detail regarding the composition of the team involved in the Mid-Year Exam. As Priestap described it, the make-up was comprised of three differing but intertwined elements; the filter team, the primary team and the senior leadership team.
Below Strzok and Moffa was a day-to-day investigative “filter” team of approximately 15 FBI agents and analysts that was overseen by Rick Mains, a supervisory special agent who reported directly to Strzok and Moffa. Joining the team were two DOJ lawyers from the Eastern District of Virginia and two attorneys from the DOJ’s National security Division (NSD) who, according to Priestap, were “heavily engaged.” According to testimony from Page, John Carlin, who ran the NSD, was receiving briefings on both investigations directly from McCabe.
The primary team was small, consisting only of Strzok, Moffa, Mains and to varying degrees, Moyer. Mains reported to Strzok and Moffa, who in turn, along with Moyer, provided briefings to Priestap.
The senior leadership team was more fluid, consisting of higher-level officials who provided briefings and updates to Comey and/or McCabe. In addition to Priestap, Strzok, and Moffa, frequent attendees included Moyer (“sometimes, but not always”), Page (“usually included”), Deputy General Counsel Trisha Anderson (“sometimes, but not always”), Comey’s chief of staff, Jim Rybicki (“most, if not all of these”) and general counsel James Baker (“often in those meetings”).
According to Priestap, Mains was never involved in the senior leadership meetings. Priestap described Mains’ role as being “in charge of the investigative team, the working level, all the day-to-day stuff.”
“[While] we asked his opinion on all kinds of things, we didn’t want him to be tied up in all those other meetings because he needed to advance the investigation. Somebody’s got to ride herd on all the people doing the work.”
The Insurance Policy
A key focus of lawmakers investigating the FBI’s handling of the counterintelligence investigation into the Trump campaign has been the “insurance policy” text sent by Strzok on Aug. 15, 2016, following a meeting with Page and McCabe in the Deputy Director’s office:
“I want to believe the path you threw out for consideration in Andy’s office – that there’s no way he gets elected – but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40 …”
When asked about the text, Priestap said he knew nothing of the insurance policy—or the discussion—until he saw public reporting on the texts:
Mr. Baker: There is a reference — again, these are the texts that have sort of become famous or widely reported — there is a reference to an insurance policy. And the innuendo was that there was something held in abeyance should Mr. Trump actually win the election. Do you have any thought or any idea what the insurance policy was?
Mr: Priestap: I do not. No, I know of the text, I mean, I saw in the media, the text that you’re referring to, but I’m at a loss for what they were referring to. I was not aware of the Counterintelligence Division or the FBI having this insurance policy thing.
Priestap was asked if he received a readout of that particular meeting. While acknowledging he did indeed receive readouts of meetings, he testified there were none pertaining to this specific meeting, noting that he would have remembered seeing one if it had existed:
Mr: Priestap: Somebody talking about an insurance policy, I would have asked, “What the heck do you mean by that?”
Priestap indicated that not only would he have been alarmed by the discussion, he would have required additional explanation as to what was actually being discussed, and why.
The Electability Factor
In addition to his concerns over the “insurance policy,” Priestap expressed significant reservations regarding the conversation between McCabe, Strzok, and Page relating to the electability of then-candidate Trump. Priestap agreed there was no rationale for this consideration to be present in a FBI investigation—or in a conversation regarding said investigation:
Mr. Somers: Stay on this text for a second. So you’re not aware of the insurance policy aspect of the text, but there’s also another aspect here, and that’s presumably Lisa Page discussing whether or not — presumably Trump — gets elected. Are you surprised that they would be discussing which candidate would be getting elected?
Mr: Priestap: Yeah, I am.
Mr. Somers: Would that be a proper consideration in whether to investigate someone, someone’s chances of election or not?
Mr: Priestap: Not in my opinion.
Priestap appeared to be genuinely concerned over the nature of the discussion and expressed surprise about the involvement of the Deputy FBI Director:
Mr. Somers: So you are surprised that this was a discussion that took place in the deputy director’s office?
Mr: Priestap: Yes. Yeah. Yes, I am surprised.
The Clinton Server Anomalies
At two points during Priestap’s testimony, the possibility of access by a foreign adversary to Clinton’s server was discussed. This issue was first broached during testimony by IG Horowitz and was again explored during Strzok’s public testimony under questioning from Rep. Louie Gohmert (R-Tx).
“The Intelligence Community Inspector General (ICIG) found an “anomaly on Hillary Clinton’s emails going through their private server, and when they had done the forensic analysis, they found that her emails, every single one except four, over 30,000, were going to an address that was not on the distribution list,” Gohmert said.
“It was going to an unauthorized source that was a foreign entity unrelated to Russia,” he added.
The Clinton email server investigation originated from an assessment contained within a June 29, 2015, memo from the Inspectors General of the Intelligence Community and the State Department, which detailed the existence of “hundreds of potentially classified emails.”
On July 6, 2015, the IGs for the Intelligence Community made a referral to the FBI pursuant to the Intelligence Authorization Act. The FBI then formally opened an investigation on July 10, 2015.
In either late 2015 or early 2016, the IC Inspector General, Chuck McCullough, sent Frank Rucker and Janette McMillan to meet with the FBI in order to detail the anomaly that had been uncovered. That meeting was attended by four individuals, including: Strzok, then-Executive Assistant Director John Giacalone, and then-Section Chief Dean Chappell. The identity of the fourth individual remains unknown, though Moffa, who also met with the IG at various times, is a possible candidate. Charles Kable, who also met with the ICIG at several points is another possible candidate.
Priestap testified that he had not been briefed on the Clinton server anomaly by Strzok, noting “this would have been a big deal.”
“I am not aware of any evidence that demonstrated that. I’m also not aware of any evidence that my team or anybody reporting to me on this had advised me that there were anomalies that couldn’t be accounted for. I don’t recall that.”
Priestap’s admission that this was all new information to him, prompted an observation from Rep. Mark Meadows (R-N.C.) that Strzok appeared to be exercising significant investigative control:
Mr. Meadows: It sounds like Peter Strzok was kind of driving the train here. Would you agree with that?
Mr. Priestap: Peter and Jon, yeah.
As Meadows noted during testimony, this matter still had to be officially “closed out” by the FBI before the official closing of the Clinton investigation. Strzok personally called the IC Inspector General within minutes of Comey’s July 5, 2016, press conference on the Clinton investigation, telling him the FBI would be sending a “referral to close it out.”
Meadows seemed genuinely surprised that Strzok had apparently kept this information successfully hidden from Priestap, noting “I’m a Member from North Carolina, and you’re saying that I have better intel than you do?”
Priestap’s London Trips
Priestap testified that while he preferred to travel as little as possible, he had made three international trips in 2016—with the final one possibly occurring in early 2017. All three trips were to London.
Priestap’s first trip took place in the Spring of 2016, and according to Priestap, was some sort of generalized briefing where he was “on the receiving end.” Priestap said this meeting originated after a UK contingent came to the United States in the immediate months following his appointment as head of Counterintelligence. Priestap was asked to follow up with a return visit to the UK:
“[T]hey asked if I would please visit their country and service because they would like to tell me some more about some of their efforts. And I said, as so as soon as my schedule allows, I will do that. And when my schedule allowed, I went, and they were telling me things.”
When Priestap was asked about his subsequent trips to the UK, he testified that he was unable to discuss anything surrounding either of the two following UK visits:
Rep. Jordan: What was the second trip? Later in 2016 you go to your second trip. What is that?
Mr. Priestap: I’m not at liberty to talk about that one. It had nothing to do, that trip, with the Midyear Exam investigation. Actually, the first one didn’t either, but the second one had nothing to do with —
Rep. Jordan: What did it have to do with?
Mr. Priestap: I’m not at liberty to discuss that today.
Despite having the appearance throughout his testimony of a cooperative witness, Priestap adamantly refused to discuss the nature of his UK trips:
Rep. Jordan: Was your second trip then concerning the Trump-Russia investigation, the other counter — a second counterintelligence investigation launched by the FBI?
Mr. Priestap: Sir, again, I’m just not at liberty to go into the purpose of my second trip.
Priestap did volunteer that “all three trips, to the best of my recollection, were for three different purposes. Completely, completely different purposes.”
Notably, Priestap ruled out ever having met key players in the Spygate scandal, including Christopher Steele, Joseph Mifsud, Australian diplomat Alexander Downer and Fusion GPS co-founder Glenn Simpson.
Refuses to Discuss Crossfire Hurricane
The vast majority of Priestap’s testimony centered around the Clinton email investigation. The specific focus was not due to a lack of Priestap’s involvement in the Trump–Russia investigation, but rather a notable inability on his part to disclose any information relating to Crossfire Hurricane:
Ms. Shen: Can you describe the extent of your involvement in the FBI’s investigation of whether there was any coordination between people associated with the Trump campaign and the Russians?
Mr. Priestap: Yeah. I’m sorry. I’m not at liberty to discuss that today.
Ms. Shen: Are you a part of that investigation?
Mr. Priestap: Sorry. I’m just not —
Ms. Shen: Okay.
Mr. Priestap: — at liberty to discuss that.
The pattern of staunch refusal by Priestap was notable in relation to other testimonies we have reviewed. In congressional interviews with other individuals, varying levels of discussion pertaining to Crossfire Hurricane was allowed. In Priestap’s case, protection from discussion extended to activities that may have preceded the actual opening of Crossfire Hurricane:
Rep. Jordan: Well, let’s go back to the second visit then. Is the second visit, was it about the Trump-Russia investigation, the one in 2016?
Mr. Ettinger [Counsel for Priestap]: You can answer.
Mr. Priestap: I’m not at liberty to talk about the topic of the second visit.
Special Counsel Investigation
Dana Boente, who replaced James Baker as the FBI’s general counsel, noted that in order for Priestap to discuss his London trips further, approval from the special counsel would be required because of an active criminal investigation:
Mr. Boente: We would also need to talk to special counsel about that.
Rep. Meadows: And why would that be?
Mr. Boente: Because he has an active investigation, an active criminal investigation.
Rep. Meadows: So by your suggesting that he needs to talk to counsel, we’re assuming that the matter that he met in London is the very fact that is under special counsel’s review?
Mr. Boente: You can make your assumptions, but we can’t go into those things without talking to special counsel. I’m just trying to be helpful, sir.
Rep. Meadows: So let me get back to this —
Mr. Boente: Congressman, I’m sorry. We will make the dates of AD Priestap’s travel available to you, travel records. That is not a problem.
It appears that at least one of Priestap’s three London trips has, in some manner, fallen under the purview of the Special Counsel’s criminal investigation.
Both the Clinton email investigation and the Trump–Russia investigation were classified as counterintelligence investigations from their inception, although Priestap was unaware who made the decision to classify the Clinton case as such versus a criminal investigation.
Both cases, however, were also considered to be potential criminal investigations within the FBI as stated by former FBI general counsel James Baker during his Oct. 18 testimony:
“The FBI walks in with all of its options on the table. And it can pursue things in a strictly, you know, foreign intelligence channel, interacting with other intelligence agencies and things like that and never have anything to do with, you know, a grand jury subpoena or putting anybody in a courtroom or anything like that, or an indictment.
But at the same time, if the facts and circumstances warrant going — using criminal tools, including up to and including prosecution, then the FBI can do that. And so I think it’s just misleading to think of a counterintelligence investigation as not also being, in part, at least potentially a criminal investigation.”
The difference between these cases and the special counsel investigation is that, by definition, the special counsel investigation is a criminal one. The grounds for a special counsel appointment require “that criminal investigation of a person or matter is warranted.” Additionally, the determination must be made that prosecution by the DOJ presents “a conflict of interest for the Department or other extraordinary circumstances.” Finally, the appointment must be “in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.“
Notably, Comey told President Trump he was not under investigation—criminal or otherwise—at several points during early 2017. This was confirmed by former FBI General Counsel James Baker during his Oct. 18, 2018 testimony.
General Counsel Office Instructed Priestap Not to Discuss Crossfire Hurricane
Priestap had been specifically cleared through the FBI’s General Counsel office as to what could be discussed during his testimony. Exactly who provided the specific disclosure parameters is not known, although Boente, as the general counsel, appeared to be fully briefed:
Mr. Priestap: I’m sorry if there’s confusion there. What I’m referring to is it’s my understanding that somebody communicated with the staff up here and they told us to focus on the four bullet points.
Rep. Meadows: I don’t know who’s giving you that advice. I mean —
Mr. Ettinger [Counsel for Priestap]: I can tell you it was — I was sent this letter with the four bullet points to talk on this. So this is what I talked to —
Rep. Meadows: But that’s not — but that’s not mutually exclusive of other areas.
Mr. Ettinger [Counsel for Priestap]: I’m telling you what I was told in order to prepare Mr. Priestap, and what he had cleared through the OGC.
Rep. Meadows: So, are you saying he’s not cleared to talk about that, Mr. —
Mr. Boente: Depends on how far we go, sir.
Section 792 & the Weiner Search Warrants
During Lisa Page’s testimony, there was a significant amount of discussion regarding “gross negligence” and “intent.”
Page repeatedly noted that what they were looking for was intent on the part of Clinton to mishandle classified information. Page also addressed the issue of why the term “gross negligence” was removed from Comey’s draft letter that exonerated Clinton, saying, “We neither had sufficient evidence to charge gross negligence, nor had it ever been done, because the Department [DOJ] viewed it as constitutionally vague.”
Page also told lawmakers that, “we had multiple conversations with the Justice Department about bringing a gross negligence charge. And that’s, as I said, the advice that we got from the department was that they did not think—that it was constitutionally vague and not sustainable.”
The applicable statute applying to gross negligence in the handling of national defense information is 18 U.S.C. 793(f). During Priestap’s testimony, the use or nonuse of this statute in relation to the Clinton email case was discussed.
Despite DOJ unwillingness to pursue the statute, the FBI actually utilized that same statute while obtaining a search warrant in the Clinton email case. Priestap appeared to be unaware of the search warrant:
Mr. Breitenbach: You don’t remember whether there were search warrants obtained in the case, other than the Weiner laptop?
Mr. Priestap: There certainly could have been, but I don’t remember.
Mr. Breitenbach: I can stipulate that we have seen drafts of search warrants submitted to the Eastern District of Virginia to obtain material in the Hillary Clinton case.
Mr. Priestap: Okay.
Mr. Breitenbach: Based on those search warrants, the predication in the search warrants were listed the statute of 18 U.S.C. 793(f).
Priestap defined predication as the “information necessary to meet a legal standard to take certain investigative action…legal justification.”
Priestap was shown an email sent from an unknown individual in the FBI’s general counsel’s office to Priestap’s former boss, Michael Steinbach, which contained a chart of “available statutes for prosecuting the former Secretary of State.” Priestap had not previously seen the document and expressed concerns that the language used might have hindered the work of FBI investigators:
Mr. Breitenbach: We see in this chart that DOJ is not willing to charge this, meaning 18 U.S.C. 793(f). My question is going back to those draft affidavits. If DOJ is not willing to charge this statute, why would the FBI in an affidavit use this statute as predication to obtain a search warrant if this statute is never going to be prosecuted?
Mr. Priestap: So I — I don’t know who put this together and used this language.
Mr. Breitenbach: Well, someone in the FBI general counsel’s office.
Mr. Priestap: Yeah. No. No. I trust you.
But I don’t know why they, again, put it together. I don’t know why they used this language, “DOJ not willing to charge this.”
My attitude is that if there is a Federal criminal statute still on the books, then, you know — and we think there may or might be a violation of that, we still have to work to uncover whether, in fact, there was.
The prosecutive history of a particular statute isn’t going to affect — I sure hope it does not affect the fact-finder’s work.
It has been repeatedly noted in testimony from Page and James Baker that the DOJ had no intention of pursuing “gross negligence” charges in the Clinton case. Page appeared to indicate that because of the DOJ’s position, there was no reason for the FBI to pursue evidence related to this specific statute.
“Let’s assume things are going swimmingly and, in fact, all 17 of those witnesses admit, ‘We did it, it was on purpose, we totally wanted to mishandle classified information,’ gross negligence would still have been off the table because of the department’s assessment that it was vague. We would have other crimes to now charge, but gross negligence would not have been among them,” Page said in her testimony.
Priestap did not appear to have the same clarity from the DOJ regarding the ability to pursue gross negligence charges. Indeed, despite Page’s testimony that gross negligence was effectively off the investigative table, Priestap appeared to have an entirely different perspective, noting that it was his understanding that the gross negligence standard had not been met—as opposed to not pursued—in the Clinton case. As Priestap noted, “I don’t know why they used this language, “DOJ not willing to charge this.””
Comey’s Notification of Congress
During his March 2017 testimony, FBI Director Comey was questioned by Rep. Elise Stefanik (R-N.Y.) regarding the requirements for notifying Congress and the executive branch of an FBI counterintelligence investigation:
Rep. Stefanik: Broadly, when the FBI has any open counter-intelligence investigation, what are the typical protocols or procedures for notifying the DNI, the White House, and senior Congressional leadership?
Mr. Comey: There is a practice of a quarterly briefing on sensitive cases to the chair and ranking of the House and Senate Intelligence Committees. And the reason I hesitate is, thanks to feedback we’ve gotten, we’re trying to make it better. And that involves a briefing of the Department of Justice, I believe the DNI [Director of National Intelligence], and the — some portion of the National Security Council at the White House…
Comey was asked when he notified the DNI, the White House, or senior congressional leadership:
Mr. Comey: It’s a good question. Congressional leadership, some time recently. They were briefed on the nature of the investigation in some detail as I said. Obviously the Department of Justice has been aware of it all along. The DNI, I don’t know what the DNI’s knowledge of it was because we didn’t have a DNI until Mr. Coats took office and I briefed him his first morning in office.
Stefanik then asked Comey why, if the FBI opened their investigation on July 31, 2016, did Comey wait until March 2017 to notify Congress. Comey stated that “it was a matter of such sensitivity that we wouldn’t include it in the quarterly briefings.”
Comey was then asked whose decision it was. Note the following use of the word “usually” by both parties:
Rep. Stefanik: So when you state our decision is that your decision? Is that usually your decision what gets briefed in those quarterly updates?
Mr. Comey: No, it’s usually the decision of the head of our counter-intelligence division.
According to Priestap, this was not entirely accurate, depending on how you view Comey’s use of semantics. Priestap stated that “Mr. Comey was involved in those notifications, I was not.” Priestap continued, “I don’t instruct Mr. Comey, nor did I ever instruct him to do anything.”
Priestap said that, as the head of the FBI’s Counterintelligence Division, it was his responsibility to brief the chair and ranking members of House and Senate Intel Committees on “significant intelligence failures or significant intelligence successes.” Priestap also noted that the FBI does not brief Congress “every time we open a counterintelligence investigation.”
Priestap said that he would propose topics to his immediate boss, Executive Assistant Director Michael Steinbach, who would then render the final decision on what was to be covered. Priestap was only responsible for recommending what would be covered—but the final decision came from Priestap’s boss who might be getting a final decision from his boss, Director Comey:
Rep. Jordan: I guess what I’m asking, Mr. Priestap, is who made the decision not to brief Congress in this particular instance?
Mr. Priestap: Mr. Comey.
Despite the use of semantics and perhaps some disingenuousness, Comey made the decision not to inform Congress initially, and he also made the decision to inform congressional leadership in late February or early March 2017.
Boente Attended Priestap Interview
FBI General Counsel Dana Boente was present at Priestap’s congressional interview. Of the transcripts reviewed, this is the only interview Boente was present at. He was appointed as FBI general counsel on Jan. 23, 2018, replacing James Baker, who was demoted and reassigned.
Boente has served in a series of critical shifting roles within the Trump Administration. Boente, who remained the U.S. Attorney for the Eastern District of Virginia until early 2018, concurrently became the Acting Attorney General following the firing of then-Acting Attorney General Sally Yates. Boente, who was specifically appointed by President Trump, was not directly in the line of succession that had been previously laid out under an Executive Order from the Obama Administration.
Upon the confirmation of Jeff Sessions as Attorney General, Boente next served as Acting Deputy Attorney General until the confirmation of Deputy Attorney General Rod Rosenstein on April 25, 2017. Boente then became the Acting head of the DOJ’s National Security Division on April 28, 2017, following the resignation of Mary McCord.
On March 31, 2017, the Trump Administration asked for the resignations all 46 holdover U.S. Attorneys from the Obama Administration. Trump refused to accept the resignations of just two of them—Dana Boente and Rod Rosenstein.
Boente appeared to be supportive of Priestap throughout the interview. Unlike so many other legacy officials within the FBI, who abruptly resigned in late 2017 and early 2018, Priestap continued in his position as head of Counterintelligence throughout most of 2018.
Priestap, who represented the last remaining high-ranking FBI official present for both the Clinton email and Trump–Russia investigations, announced his retirement on Dec. 4, 2018. His departure from the FBI was reported to be unrelated to either investigation.
This article is part of my ongoing series at The Epoch Times.