Eugene Kiely, Lori Robertson and D'Angelo Gore

FactCheck.org

FBI Director James Comey’s letter to Congress regarding an unexpected development in his agency’s investigation of Hillary Clinton’s private email server was brief and vague, creating a vacuum that has been filled by distorted claims — mostly from the campaign of Clinton’s opponent, Donald Trump:

• Trump strung together a series of debunked claims about Clinton’s use of a private server while secretary of State to conclude that “this is bigger than Watergate.”

• Trump also repeated his unsupported claim that Clinton’s “criminal action was willful, deliberate, intentional and purposeful.” The FBI found no evidence that Clinton “intended to violate laws” on classified information.

• Mike Pence, Trump’s running mate, claimed that Clinton “continues to refuse to turn over some 33,000 e-mails.” But Clinton’s non-work-related emails were deleted more than a year ago, so Clinton doesn’t have them to turn over.

• Clinton claimed that the FBI letter to Congress was “sent to Republican members of the House” and was “only going originally to Republican members of the House.” Both claims are false.

• Clinton’s campaign chairman claimed the FBI review of the new emails “might not be about [Clinton’s] server.” But the FBI has said it is reviewing the emails that “appear to be pertinent to the investigation” of Clinton’s “personal email server.”

On Oct. 28, the FBI director sent a three-paragraph letter to Congress that said FBI investigators, during the course of an unrelated investigation, found “the existence of emails that appear to be pertinent” to its prior investigation into Clinton’s use of a private email server as secretary of State. The letter said the FBI will review those emails “to determine whether they contain classified information, as well as to assess their importance to our investigation.”

Comey wrote that “the FBI cannot yet assess whether this material may be significant” or how long the review will take.

Multiple news reports, citing anonymous law enforcement officials, said emails were found on a computer owned by Anthony Weiner, who is the estranged husband of Huma Abedin, a longtime Clinton aide and former deputy chief of staff at the State Department.

The news came more than three months after Comey announced on July 5 that the FBI had completed its investigation and recommended that no charges be brought against Clinton or her aides for mishandling classified information.

The FBI’s review of potentially new evidence comes less than two weeks before Election Day. The lack of hard information and the timing of the FBI’s announcement have created conditions that are ripe for distortions.

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Watergate Comparison

At a rally in Manchester, N.H., on the day of the FBI director’s surprising announcement, Trump claimed that “this is bigger than Watergate in my opinion,” referring of course to the scandal that led to the resignation of President Richard Nixon and the convictions of numerous others.

But Trump’s case is weak. He supports his conclusion by distorting the facts to fit his conspiracy theory, mostly by repeating already debunked claims about Clinton’s emails.

Trump, Oct. 28: "But real change also means getting rid of the corruption in Washington, and again, maybe that’s happened. Wow. We have a big day. No think of it, I won my first primary in New Hampshire and I am getting here and the news this morning is — this is bigger than Watergate. This is bigger than Watergate in my opinion. This is bigger than Watergate. "Hillary bleached and deleted 33,000 e-mails after receiving a congressional subpoena. That alone to me — there were more serious things done, but how does it get much more? But that was so obvious. She gets the subpoena and she bleaches and deletes 33,000 e-mails. That to me — because it was so simple, you know? Not — it’s not about the sale of the uranium that nobody knows what it means — I know what it means — to Russia. Then she talks to me about Russia. 20% of the uranium in our country to Russia. "But you know, the deletion of 33,000 e-mails, boy, that just sort of is so out there, after receiving a subpoena from the United States government. She lied to Congress, she lied to the FBI, she made 13 phones disappear, some with a hammer. The Clinton crew gave more than $675,000 to the wife of the deputy director of the FBI and the man who was overseeing the investigation into Hillary’s illegal server."

Trump conflates and distorts three separate issues to make his Watergate comparison. Let’s take them in order.

“Hillary bleached and deleted 33,000 e-mails after receiving a congressional subpoena.”

Trump is referring to 31,830 emails that Clinton’s lawyers had deemed personal. These emails did not have to be turned over to the State Department, which in the summer of 2014 requested all work-related emails that the former secretary of state had in her possession. (See “A Guide to Clinton’s Emails.”)

The department’s policy allows its employees to determine which emails are work-related and must be preserved. “Messages that are not records may be deleted when no longer needed,” according to the State Department’s Foreign Affairs Manual (5 FAM 443.5). (See “Trump on the Stump.“)

That means Clinton was within her right to delete these emails, so that’s the first thing to know.

Now, Trump is right that these emails were deleted about three weeks after Clinton received a subpoena on March 4 from a Republican-controlled House committee investigating the 2012 deaths of four Americans in Benghazi. However, there is no evidence that she knew that the emails were deleted after the subpoena was issued.

According to the FBI’s investigative notes, Cheryl Mills, Clinton’s former chief of staff, in December 2014 told Platte River Networks that Clinton had preserved her work-related emails and “no longer needed access to any of her e-mails older than 60 days.” At that time, Mills instructed a PRN employee “to modify the e-mail retention policy” on Clinton’s server “to reflect this change.” That would automatically delete the old emails. But the PRN employee told the FBI that “he had an ‘oh shit’ moment” after learning about the subpoena sometime between March 25 and March 31, 2015, which is when he deleted Clinton’s emails. Clinton told the FBI that she was not aware that PRN deleted her emails in late March 2015, and the FBI did not say when she learned that they were deleted. (See “The FBI Files on Clinton’s Emails.”)

PRN used a free software program called BleachBit to delete the emails. That’s what Trump means when he says the emails were “bleached.” Other times he has said that Clinton “used chemicals” to “acid wash or bleach” her emails. That’s part of the deception, too. (See “Trump, Pence ‘Acid Wash’ Facts.”)

“She made 13 phones disappear, some with a hammer.”

It is true that the FBI said (on page 8) it “identified 13 total mobile devices … which potentially were used to send e-mails using Clinton’s clintonemail.com e-mail addresses.” But only eight of the 13 were used while Clinton was secretary of state, the FBI said, so Trump exaggerates the number of devices she had during her four years in office. (See “A Guide to Clinton’s Emails.”)

The FBI also quoted a Clinton aide (on page 9) as saying that he could recall on two occasions that he got rid of old mobile devices by breaking them in half or hitting them with a hammer.

Trump insinuates that there is something sinister about owning several mobile devices and destroying the old ones when they are replaced. But the FBI came to no such conclusion, and security experts interviewed by the technology website Wired said destroying old devices is a good way to erase data — if done properly.

Wired, Sept. 7: "Whether you’re a Secretary of State with a phone full of classified documents or an average sext-sending citizen, data removal is a crucial security step before you let a device leave your control or recycle it. And security experts agree there’s at least one surefire way to be certain that data is truly removed and unrecoverable: kill the hardware."

If anything, Wired said, Clinton’s aides “should have wrecked them more thoroughly” than they did. The website said her staff should have used a “jackhammer” instead of a hammer, to ensure that data was destroyed and not just the mobile device.

“The Clinton crew gave more than $675,000 to the wife of the deputy director of the FBI.”

Trump says the “Clinton crew,” but he isn’t talking about Clinton or anyone in Clinton’s campaign. He is talking about Democratic Virginia Gov. Terry McAuliffe, a longtime friend and supporter of Bill and Hillary Clinton. A political action committee controlled by McAuliffe and the Virginia Democratic Party combined donated more than $675,000 to Dr. Jill McCabe, who unsuccessfully ran for a seat in the Virginia Senate in 2015.

McAuliffe’s PAC, Common Good VA, made other large donations in 2015: $803,500 to state Senate candidate Jeremy McPike, who won his election, and $781,500 to Daniel Gecker, who lost. The big donations were part of an all-out effort by the Democratic governor to help his party gain control of the Senate in the November 2015 elections. That effort failed, and the makeup of the Senate remained unchanged with the Republicans holding a narrow 21 to 19 advantage.

Trump focuses on the donations to McCabe, because she is the wife of Andrew McCabe, who at the time of the donations was either head of the FBI field office in Washington, D.C., or assistant deputy director of the FBI. Andrew McCabe was not involved in the FBI investigation of Clinton’s emails when his wife was running for office. He was promoted to deputy director in February 2016, and at that time he assumed “an oversight role in the investigation into Secretary Clinton’s emails,” according to a statement from an FBI spokesman.

There is no evidence that Clinton had any knowledge of the donations or that they were made to influence the FBI investigation of her handling of classified information. (See “Clinton’s Connection to FBI Official.”)

Trump assembles — or rather disassembles — these half-truths and innuendos to reach his shaky conclusion that “this is bigger than Watergate.” That’s his opinion, but at least one person who was involved in Watergate disagrees.

John Dean, who served as White House counsel to Nixon from 1970 to 1973. wrote an op-ed in The New York Times calling the Watergate comparison “nonsense.”

“Only someone who knows nothing about the law, and the darkest moment of our recent political history, would see a parallel between Nixon’s crimes and Mrs. Clinton’s mistakes,” Dean said, noting that “some four dozen Nixon aides and associates were convicted of or pleaded guilty to criminal misconduct, including me.”

Trump on Clinton’s Intent

Trump also has repeatedly claimed that Clinton’s “criminal action was willful, deliberate, intentional and purposeful.” But the FBI disagrees. Comey said the FBI’s investigation didn’t find evidence that Clinton “intended to violate laws” on classified information. And he said that “no charges are appropriate in this case.”

Trump made the claim in Oct. 29 speeches in both Colorado and Phoenix.

At his July 5 press briefing on the FBI’s investigation into Clinton’s use of a private email server, Comey explained that the inquiry specifically concerned whether classified material had been mishandled “either intentionally or in a grossly negligent way” in violation of federal law or if classified information has been “knowingly remove[d]” from “appropriate systems or storage facilities.”

Comey, who said there was evidence Clinton and her colleagues had been “extremely careless” in handling classified material, said that the FBI didn’t find any evidence of an intent to violate such laws.

Comey, July 5: "Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information."

The FBI director went on to say that while there was evidence of “potential violations” of classified information statutes, “no reasonable prosecutor would bring such a case” in this instance. Why? Comey specifically pointed to the issue of intent. He said that past cases that were prosecuted involved “clearly intentional and willful mishandling of classified information” combined with other factors, such as “vast quantities of materials exposed,” adding that the FBI didn’t see that in the Clinton case.

Comey, July 5: "Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past. "In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here."

In his campaign speeches, Trump went on to speculate that Clinton “set up an illegal server for the obvious purpose of shielding her criminal conduct from public disclosure and exposure.” No such cover-up of any criminal conduct has been revealed.

The FBI “read all of the approximately 30,000 e-mails provided by Secretary Clinton to the State Department in December 2014,” Comey said. And the bureau also found “several thousand work-related e-mails” that weren’t in that batch.

Comey said that it was “not surprising” that the FBI found emails that Clinton hadn’t given to the State Department. “Our assessment is that, like many e-mail users, Secretary Clinton periodically deleted e-mails or e-mails were purged from the system when devices were changed,” he said. And, the FBI found no evidence of any kind of cover-up. Comey said the investigation “found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them.”

Pence on Clinton’s Deleted Emails

In an Oct. 30 interview on Fox News Sunday, Pence said that “Hillary Clinton continues to refuse to turn over some 33,000 e-mails.” But, as we said earlier, Clinton’s non-work-related emails were deleted more than a year ago, so Clinton doesn’t have them to turn over.

As we have previously written, Clinton’s office disclosed on March 10, 2015, that she gave the State Department 30,490 work-related emails on Dec. 5, 2014, and “chose not to keep” 31,830 emails she deemed “personal.”

“We went through a thorough process to identify all of my work-related emails and deliver them to the State Department,” Clinton said at a press conference on March 10, 2015. “At the end, I chose not to keep my private personal emails.”

The 31,830 personal emails were deleted “sometime between March 25-31, 2015,” according to the FBI notes of its investigation. As we said earlier, the emails were deleted by a PRN employee about three weeks after Clinton received a congressional subpoena on March 4, 2015.

So Clinton is not “continu[ing] to refuse to turn over some 33,000 e-mails,” as Pence claimed. Because they were deleted by PRN, she doesn’t have them to release.

Clinton’s Partisan Implication

In a press conference on Oct. 28, Clinton claimed that the letter Comey sent that day to Congress was “sent to Republican members of the House.” A few minutes later in that press conference, Clinton said that letter was “only going originally to Republican members of the House.” Both claims are false.

The letter was addressed to Republican chairmen of eight House and Senate committees, but it was sent to the committees, not just those individuals. Listed at the bottom of Comey’s letter are the ranking Democratic members of those committees, and, in fact, one of them issued a statement on Oct. 28 indicating that he had received the letter.

The press release from Democratic Rep. Elijah E. Cummings, ranking member of the House Committee on Oversight and Government Reform, said that he was issuing “the following statement after receiving a letter from the FBI explaining that it would review new emails related to its investigation of Secretary Clinton.”

Cummings and Rep. John Conyers Jr., the Democratic ranking member of the House Committee on the Judiciary, wrote a joint letter to Comey and Attorney General Loretta Lynch, also dated Oct. 28, that said the FBI director had “sent a letter to eight Congressional Committees.”

The Clinton campaign told PolitiFact.com that she had misspoken.

Not About Clinton?

On CNN’s State of the Union, John Podesta, Clinton’s campaign chairman, claimed the FBI decision to review a new batch of emails “might not be about [Clinton’s] server,” citing reports based on anonymous sources.

Podesta, Oct. 30: "So far there’s no charge of wrongdoing. There’s no charge even that Hillary — and the reporting that backs it up coming from anonymous law enforcement sources indicates it might not be about her server, it may not be about her at all."

Podesta is right that there’s no charge of wrongdoing. But is it true that the latest FBI review “might not be about [Clinton’s] server”? We asked the Clinton campaign what Podesta meant. But we did not get a response.

We don’t know if the FBI review isn’t about Clinton’s server, but neither does Podesta.

Here is what we know: The FBI director’s statement said investigators during the course of an unrelated investigation found “the existence of emails that appear to be pertinent to the investigation.” By investigation, Comey said he means “the investigation of former Secretary Clinton’s personal email server.”

The FBI does not know yet if the emails are pertinent, and that is the point that Podesta and the campaign have stressed.

However, as we said earlier, news reports indicate that the emails were found on a computer owned by Weiner, the former congressman and estranged husband of Abedin. When she was interviewed by the FBI, Abedin told investigators (page 86) that she had an email account on Clinton’s private server — huma@clintonemail.com — and that she “routinely forwarded emails from her state.gov account to either her clintonemail.com or her yahoo.com account so she could print them.” That would explain how the FBI came to discover potential classified information on Weiner’s computer.

NBC News’ Pete Williams reported that he was told by law enforcement that “these are not emails from Hillary Clinton,” and that may explain Podesta’s comment. But Williams did not say that the latest FBI review “might not be about [Clinton’s] server.”

Also, The New York Times reported that “[s]ome of Ms. Abedin’s emails passed through Mrs. Clinton’s private server,” citing unnamed law enforcement officials.

For a full list of sources, see FactCheck.org.