I have previously written that recent disclosures over immunity deals with Clinton aides has seriously undermined the credibility of the FBI investigation into the email scandal and raises legitimate questions over the role of top ranking Justice Department officials in the closing of the investigation without criminal charges. Now a far more serious allegation has surfaced with the release of a FBI “302” that states that State Department Undersecretary for Management Patrick Kennedy proposed a “quid pro quo” to convince the FBI to strip the classification on an email from Hillary Clinton’s server. The FBI agent reported the encounter as an effort to “influence” the FBI in return to giving the Bureau long-sought agent placements overseas. Such an offer is more than a standard inter-agency “horse trade.” If the agent’s account is accurate, it was an effort to influence a criminal investigation to protect a high ranking politician and, additionally, an effort to alter a key piece of evidence. The fact that such an effort would be simply brushed aside by the FBI is shocking in itself and again raises questions over Director James Comey’s pledge to pursue any possible charges with independence and vigor. The FBI and State Department, as discussed below, have insisted that there was nothing untoward in the discussions and there is a difference in factual accounts. That is all the more reason for congressional oversight and investigation in my opinion.

The notes from an interview with an unnamed FBI official concern the effort to de-classify a particular email marked “SECRET.” Such classified emails were very damaging to Hillary Clinton and her campaign. Despite her decision to not to use the expensive, secured system at the State Department, Clinton insisted in a Fox interview that “I take classification seriously.”

When asked about the finding that she sent classified emails, she objected to that take on the FBI findings: “That’s not what I heard Director Comey say. Comey said that my answers were truthful and what I’ve said is consistent with what I have told the American people.” She repeated that the emails found to be classified were “retroactively” classified, which is not true. However, Comey said that 110 of her emails contained information that was classified at the time she sent or received them. He also said that a smaller number emails had markings showing them to be classified. She added that “Director Comey said my answers were truthful and consistent with what I have told the American people.” However, Comey called her careless in her use of the personal server and the sending of these emails. He also directly contradicted her on the classification of the emails and the Washington Post gave Clinton “Four Pinnochios” for continued spin of the investigation and its findings.

Now we have this suggested quid pro quo from Kennedy described in the 302 to “pressure” the Bureau to drop the classification:

“[Redacted] indicated he had been contacted by PATRICK KENNEDY, Undersecretary of State, who had asked his assistance in altering the email’s classification in exchange for a ‘quid pro quo,’” the 302 states. “[Redacted] advised that in exchange for marking the email unclassified, STATE would reciprocate by allowing the FBI to place more Agents in countries where they are presently forbidden.”

Kennedy later headed a meeting on the classification issue with the FBI, the agent describes how someone asked if any of the emails are classified and the agent reported the following to his superiors: “Making eye contact with [redacted] KENNEDY remarked, ‘Well, we’ll see.’” The agent left no ambiguity over what the State Department was trying to do in “attempting to influence the FBI to change its markings.”

Kennedy did not leave it there and asked to effectively go over the head of the agent and was referred to Michael Steinbach with the FBI’s Counterterrorism Division. Kennedy “continued to pressure the FBI to change the classified markings on the email to unclassified . . STEINBACH refused to do so.”

Kennedy however persisted and sought to confirm that the FBI would not make any public statement. Shortly after being told that the Bureau would not reveal the information, Clinton publicly denied having sent classified emails on her server.

As a criminal defense lawyer, I find the 302 to be astounding. Can you imagine what would have happened if I pressured an agent to change a critical piece of exchange in a quid pro quo? I would have been immediately accused of unethical or charged criminally or both. Moreover, such an effort in a criminal investigation usually deepens the suspicion of criminal activity and gives the FBI leverage in pressuring witnesses on who was aware of the effort to pressure or influence investigators.

The role of the State Department in the various investigations has been subject to ongoing criticism of bias. This 302 should be a matter of focused congressional investigation. Any connection drawn between adding agents and stripping classification is facially improper. What is equally disturbing is the response of the State Department to simply dismiss any concerns over the 302.

What is also curious is the disconnect between the current FBI position and the 302. Here is what the FBI is now maintaining:

“The FBI determined that one such email was classified at the Secret level. A senior State Department official requested the FBI re-review that email to determine whether it was in fact classified or whether it might be protected from release under a different FOIA exemption. A now-retired FBI official, who was not part of the subsequent Clinton investigation, told the State Department official that they would look into the matter. Having been previously unsuccessful in attempts to speak with the senior State official, during the same conversation, the FBI official asked the State Department official if they would address a pending, unaddressed FBI request for space for additional FBI employees assigned abroad. Following the call, the FBI official consulted with a senior FBI executive responsible for determining the classification of the material and determined the email was in fact appropriately classified at the Secret level.”

The FBI insisted to Fox News that “[a]lthough there was never a quid pro quo, these allegations were nonetheless referred to the appropriate officials for review.” It is not clear what that means. Is the FBI basically saying that the 302 author made up or exaggerated his or her account. Clearly there was no quid pro quo in that the classification was not changed. However, that is not the concern. The concern is whether there was an attempted quid pro quo. The FBI seems to suggest that it was a FBI official who raised the agent issue first. That is important, but it raises still raises the question of why the two issues were discussed at the same time and whether Kennedy later made this linkage to an agent.

There is ample reason for Congress to exercise its oversight authority to find out the truth behind these allegations. Indeed, this is a classic matter for oversight. Congress is the critical check on the executive branch, particularly when agencies are accused of collusion or conflicts of interest. It is hard to imagine how Congress would just walk away from such an allegation without investigation and this should not be a partisan matter. Democrats and Republicans alike should want answers to whether a quid pro quo deal was suggested in a criminal investigation of high-ranking government and former government officials.

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