Schmidt S. - Donald Trump V. the United States - Inside the Struggle to Stop a President

By contrast, to Jim, politics was a danger that could infect anything it touched. He had been paying significant attention to the Clinton probe, receiving briefs on its progress more than any other in his time at the bureau. But unlike his wife, Jim had studiously avoided any personal, political view of any investigation, especially this one. This was in keeping with his almost obsessive efforts since becoming director to put distance between himself and partisan politics. If the bureau’s mission was to follow the facts regardless of politics, then the director needed to take extraordinary steps to embody that ethos. Jim had decided that while he ran the FBI, he would not vote. His concerns about any perception of politics influencing his impartial role atop the bureau ran so deep that Jim—who at six feet eight would have been a strong rebounder—refused to even entertain the idea of playing in Obama’s weekend pickup basketball game, which was often held at the gym in the basement of FBI headquarters. In Jim’s mind, simply shooting hoops with the president could be viewed as a conflict of interest, undercutting the arm’s-length distance between the bureau and the White House that he believed was absolutely crucial to maintain.

Every other week during the investigation, the agents and analysts leading the effort sat down with the director in his conference room and briefed him on the status of their work. By the spring of 2016, this investigative team reported to Comey that unless something changed drastically, it was unlikely the bureau would have enough evidence to charge Clinton with a crime.

Charging a crime is hard enough when facts, motive, and intent are all in alignment and easy to discern, with no vagaries and no controversy. But this investigation came with another complicating factor: It was already highly controversial, because Clinton’s use of a personal email account had become a scandal in the media, and she was going to be the Democratic Party’s nominee for president. To make a case, the bureau would need to clear an incredibly high bar. Investigators had to answer one main question: Had Clinton been so careless with classified information through her use of a personal email account that she endangered national security?

To do that, they would have to first prove that she had indeed discussed classified matters on her email account. And then they would need to show that she had done it knowingly, essentially declaring to her aides something outlandish: I know that I should not be discussing these classified matters on my personal email account, but I want to do this anyway.

The FBI had found more than one hundred instances in which Clinton had received or discussed classified information on the account. But the bureau had no evidence that she had done so for any other reason than she simply did not realize she was sending and receiving classified information. The practice might have been malignant, but the intent was benign.

Another major factor stood in the way of making a case. In 2015, the FBI had found that while he was CIA director, David H. Petraeus, a retired four-star general, had taken classified information home with him, provided it to a lover, and then lied to the FBI about it. Despite protests from Comey that Petraeus should plead guilty to a felony, Attorney General Eric Holder had allowed Petraeus to accept a misdemeanor, essentially a glorified slap on the wrist. If Petraeus’s conduct was far worse than Clinton’s—and Petraeus was allowed to plead to a misdemeanor—making a felony case against Clinton, a major-party candidate for president, would be all but impossible.

By that June, a year after the investigation began, it was coming to an end, and Jim faced a critical decision about how to proceed. For a director who had developed the habit of explaining privileged decision making about sensitive investigations to the public, the conclusion of the Clinton email investigation could not have come at a more perilous time.

The way Jim thought about this decision was also linked to his growing sense that something serious was ailing the country. He had been FBI director for three years, after being out of government for nearly a decade. Upon his return to Washington, Jim could see that partisan politics had turned so toxic that the parties were dividing not just into separate camps but into separate realities.

He saw it as a virus spreading in the country that was eating away at the truth and infecting even national security and law enforcement decisions with politics. When he went up to Capitol Hill for hearings, right-wing Republicans asked all sorts of questions about issues based on conspiracy theories that had nothing to do with the major national security threats the country faced. The mainstream media paid little attention to these rantings, but these narratives found a home on Fox News, Breitbart News Network, and elsewhere in the conservative media world, where the lawmakers pushing the conspiracy theories were treated as credible and given the platform to reach millions of people with false information that warped their views and programmed their politics. No matter the topic, there was a single theme that drove this rhetoric: The government was a corrupt institution. Instead of advancing the interests of the people, it was actually out to hurt them.

Jim saw a similar, but less virulent, strain of this phenomenon on the Left: Democrats were also capable of disregarding facts when the evidence contradicted their own preferred narratives. Most strikingly, during the Clinton email investigation Comey was scheduled to meet with members of the news media for an on-the-record question-and-answer session. Comey and Attorney General Loretta Lynch knew that he would almost certainly be asked about the Clinton investigation, which had been widely reported on at the time. They agreed that he would have to acknowledge the existence of the investigation. But Lynch insisted that Comey refer to it only as a “matter,” not an “investigation.” When Comey heard Lynch say that, a strange tingling sensation shot up through his neck. The bureau had a full blown criminal investigation underway. But the Clinton campaign had made up a false narrative that the FBI was not actually conducting an investigation but was doing a “routine security review.” He was also troubled by how he believed the Obama administration, hellbent on emptying Guantanamo Bay of enemy combatants, inappropriately pressed the intelligence community to water down the assessments of whether the combatants would pose any threat if released.

“I witnessed brow-beating and shaming of Secretary of Defense Chuck Hagel for his reluctance to clear people for transfer,” Jim said to me. “To his credit, he stood tall, but they hated him for it and he left as a result.”

In such a toxic atmosphere, in the heart of an election year, how could the FBI bring an end to such a fraught investigation in a way that gave the public confidence that a Justice Department, controlled by a Democratic administration, had made a decision based on the facts and not politics?

Making matters worse in Comey’s mind, Attorney General Loretta Lynch and President Barack Obama had said and done things during the investigation that he worried had already created an impression that the fix was in to protect Clinton.

Given this state of affairs, in Comey’s mind it was unlikely that Republicans would accept that Democratic political appointees running the Justice Department would have conducted an investigation into their own party’s presidential nominee fairly and without political bias.

No FBI director had ever been in the position of closing a highly public—and exceedingly politicized—investigation into the nominee of a major party just months before a presidential election. Comey and his deputies began throwing around ideas on how they could bring the investigation to an end. The traditional ways—like saying nothing or putting out a short statement and leaving it at that—likely wouldn’t suffice because of the attention the investigation had received, the strong feelings it had engendered, and the fact that Clinton was highly likely to be the next president.