Prepared Floor Statement of Senator Chuck Grassley of Iowa

Chairman, Senate Committee on the Judiciary

Comments on the FBI’s Refusal to Release Unclassified Clinton Investigation Files

to the Public and the Committee

Monday, September 12, 2016



Mr. President, today I want to discuss my serious concerns about the FBI’s selective release of Clinton investigation material and how the Senate is handling the un classified but, not yet public, information provided by the Bureau.

On the Friday before a holiday weekend, the FBI chose to release to the public only two of the dozens of unclassified documents it provided to Congress.

Director Comey said, “the American people deserve the details in a case of intense public interest,” and “unusual transparency is in order.”

He is right; the people have a right to know.

But, actions speak louder than words.

Right now, the public has only a very narrow slice of the facts gathered by the FBI.

The FBI has only released its summary of the investigation and the report of the interview with Secretary Clinton.

However, its summary is misleading or inaccurate in some key details and leaves out other important facts altogether.

There are dozens of unclassified reports describing what other witnesses said.

But, those reports are still hidden away from the public.

They are even being hidden from most Congressional staff, including some who have been conducting oversight of the FBI on these issues.

Why?

Because the FBI improperly bundled these unclassified reports with a small amount of classified information, and told the Senate to treat it all as if it were classified.

This is certainly not the “unusual transparency” Director Comey said he would provide.

In fact, it’s the opposite: unusual secrecy.

Normally, when an agency sends unclassified information to the Office of Senate Security, the office that handles and controls classified information, there is a simple solution.

The executive order and regulations governing classified information require that information be properly marked so that the recipient knows what is and is not classified.

In the past, when the Judiciary Committee needed to separate the classified information from the unclassified information, the Office of Senate Security simply looked at the markings and provided copies of the unclassified information without any restrictions.

But that has not been done in this case.

Why not?

Because the FBI has “instructed” the Senate office that handles classified information not to separate the unclassified information.

Think about that.

The FBI is instructing a Senate office about how to handle un classified information.

Our Constitution creates a carefully balanced system of separation of powers.

The Executive Branch cannot “instruct” a Legislative Branch office to keep information from the public unless the Legislative Branch agrees or there is a legal basis for keeping the information secret.

There are laws governing the handling of classified information, but those laws cannot and should not be used to shield un classified FBI documents from public scrutiny and vigorous Congressional oversight.

But, even setting aside the Constitutional concerns, what is happening now is totally inconsistent with the Executive Branch’s own rules and regulations regarding classified information.

Executive Order 13526 states:

“The classification authority shall, whenever practicable, use a classified addendum whenever classified information constitutes a small portion of an otherwise unclassified document or prepare a product to allow for dissemination at the lowest level of classification or in unclassified form.”

The binder that the FBI delivered containing interview reports is largely unclassified.

The vast majority of those reports are unclassified in full, and the rest have only a few classified paragraphs in each one.

According to the Executive Order, the FBI should have provided a separate set containing primarily classified material that could not be separated from any unclassified portions.

Further, that same Executive Order states:

“In no case shall information be classified, continued to be maintained as classified, or fail to be declassified in order to: prevent or delay the release of information that does not require protection in the interest of national security.”

Unclassified material is—by definition—information that does not require protection in the interest of national security.

Yet, contrary to the Executive Order, it is being locked away from the public and even most Congressional staff, and maintained as if it were classified.

Americans deserve accountability from their government.

There will not be any accountability if the federal government is not transparent.

The American people deserve to know the truth.

So, I want to be clear with the American people about what is going on.

If the FBI wants to provide unclassified information to Congress, but also keep it hidden from the public, then it should discuss the issue with the committee and negotiate any restrictions before-hand.

It should not be allowed to unilaterally impose its will on its oversight committee by delivering documents with all kinds of restrictions that prevent the committee from using them.

The selective releases of some of the documents deprives Congress and the public of the full context.

It is not fair to the public, Congress, or Secretary Clinton.

That’s why even Secretary Clinton has called for information to be released in full.

I agree with her 100%.

The FBI says it sent these documents to the Hill in keeping with our oversight responsibilities.

Well, oversight and investigation means more than just receiving whatever information the FBI provides.

Independent oversight means double-checking the facts, contacting witnesses, and asking follow-up questions.

We can’t use these documents to help us do these three steps if they are locked away in the basement of the Capitol.

In order to do its job, the committee will have to refer to these documents in the course of speaking to witnesses and writing oversight letters.

This is investigation 101.

But, the FBI is trying to have it both ways.

At the same time it talks about unprecedented transparency, it’s placing unprecedented hurdles in the way of Congressional oversight of unclassified law enforcement matters.

It turned over documents, but with strings attached.

It unilaterally “instructed” the Senate to keep them secret, even though they are unclassified.

They want to keep the information locked-up.

If we honor that instruction, we cannot do our constitutional duty of acting as an independent check on the executive branch.

At least the FBI has publicly released small portions of unclassified material.

However, that selective release has contributed to inaccuracies in the public discussion of this issue.

That’s why I agree with Secretary Clinton that it should all be released as soon as possible.

Here’s why.

On Tuesday last week, a Boston Globe article wrote about evidence from the publicly-released FBI summary that suggests an engineer for an IT company managing the server may have intentionally deleted emails even though he knew they were the subject of a congressional investigation and subpoena.

The timeline of deletion occurred around a conference call with the engineer, Cheryl Mills, and David Kendall—Hillary Clinton’s lawyers.

Relying on the publicly available information, some have claimed that the engineer deleted the emails on his own volition.

Whether he did so on his own or at the instruction of someone else is a key question.

And, there is key information related to that issue that is still being kept secret, even though it is unclassified.

If I honor the FBI’s “instruction” not to disclose the unclassified information it provided to Congress, I cannot explain why.

Meanwhile, the New York Times has reported that a second computer expert that worked on Secretary Clinton’s server for a contractor was also given immunity by the Justice Department.

The Department of Justice didn’t inform Congress about the immunity deal.

The Justice Department is briefing the New York Times anonymously while refusing to answer questions from its oversight committee about the immunity deals.

And at the same time, it is putting a stranglehold on unclassified documents that describe what these witnesses said to the FBI.

That is the opposite of transparency.

The other witness granted immunity, Bryan Pagliano, pled the Fifth to Congress.

Congress has a right to question these individuals.

They have reportedly received some sort of immunity for their cooperation with the FBI.

The public ought to know what information they provided in exchange for a get-out-of-jail-free card.

The American people deserve the whole truth.

The public’s business ought to be public, and if it is not classified, then all the facts should be part of the public discussion.

Inaccuracies are spreading because of the FBI’s selective release.

For example, the FBI’s recently released summary memo may be contradicted by other unclassified interview summaries that are being kept locked away from the public.

Unfortunately, the public can’t know without disclosure of information that the FBI has “instructed” the Senate not to disclose.

I’ve objected to those restrictions.

I have written to the Office of Senate Security twice noting that the Judiciary Committee did not agree to those restrictions.

I have asked the FBI to provide the unclassified material directly to the committee.

That letter has not been answered.

These kinds of restrictions and document controls on un classified information have no legal basis and there is no authority for them.

They are unprecedented and out of bounds.

They violate the Executive Order on classified information and intrude on Congress’s constitutional oversight authority.

Senators need to consider the consequences of allowing the Executive Branch to unilaterally impose restrictions on unclassified information like this.

If this is allowed to stand, other agencies will be able to abuse the system to undermine transparency.

The Senate should not allow its controls on classified material to be manipulated to hide embarrassing material from public scrutiny, even when that material is unclassified.

The FBI ought to do what it should have done from the beginning: release all the UNCLASSIFIED information to the public.

Now, more than ever, the public has a right to know the whole picture and all the facts gathered by the FBI.

Let the people see the evidence and judge for themselves!

That would be true transparency.

As a constitutionally elected official, I have an obligation to my constituents to represent them, be honest with them, and assist them to the best of my abilities.

I cannot in good conscience do that when the FBI attempts to assert a vice-grip on unclassified information which would be helpful in answering the calls and letters of my constituents.

How can I look Americans in the eye and tell them that I have answers but can’t share them because the FBI says so, even though the answers come from unclassified information.

My fellow Americans, in times like these I cannot help but think about a quote from Thomas Jefferson,

“It is the people, to whom all authority belongs.”

It is the federal government that works for us; we do not work for the federal government.

Facts and information gathered by public officials that are relevant to the debate over a public controversy belong to the public.

I urge my colleagues to discuss and resolve this issue together.

I will continue to do everything in my power to ensure that the full set of facts are brought to light.

I yield the floor.

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